Dismissed

Rakesh Sahu v. State Of Chhattisgarh

Chhattisgarh HC3 Oct 2023CRA/1517/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh dismissed an appeal against a conviction and sentence for murder and dowry harassment. Upholding the trial court's finding, the court ruled that the death was not natural and confirmed the appellant's guilt based on the dying declaration, medical evidence, and circumstantial evidence involving dowry disputes.

What did the court decide?

Criminal appeal dismissed; conviction and sentence upheld.

Rakesh Sahu Vs State Of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 1517 of 2015

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Judgment reserved on 20.09.2023 Judgment pronounced on 03.10.2023

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Rakesh Sahu, S/o Chaitram Sahu, aged about 26 years, R/o Boring Chowk, Ramnagar, P.S. Gudhiyari, Raipur, Distt. Raipur (C.G.)

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police Station- Gudhiyari, Distt. Raipur, Chhattisgarh.

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---- Respondent

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For Appellant : Shri Naveen Kumar Shukla, Advocate For State : Shri Sudeep Kumar Verma, Deputy G.A.

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Hon'ble Shri Sanjay K. Agrawal and Hon'ble Shri Radhakishan Agrawal, JJ.

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C.A.V.Judgment

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Radhakishan Agrawal, J.

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This appeal is directed against the judgment of conviction and

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order of sentence dated 03.10.2015 passed in Sessions Case No. 257/2013 by the Additional Sessions Judge (F.T.C.) Raipur (C.G.), by which the appellant stands convicted & sentenced as under:-

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Conviction	Sentence
U/s 302 IPC	Life imprisonment with fine of
	Rs.1000/- and in default of
	payment of fine amount,
	additional RI for one year.

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U/s 498A IPC RI for 2 years with fine of Rs.1000/-, in default of payment of fine, additional RI for three months.

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Both sentences were directed to run concurrently.

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Case of the prosecution, in short, is that on 25.06.2013 at about 6.00 am at Bhavani Nagar, near Kalimandir situated under Police Station Gudhiyari, the appellant herein killed his wife – Lalli Bai (hereinafter referred to as the deceased) by pouring petrol on her and thereby committed the aforesaid offences. Further case of the prosecution, in brief, is that on 25.06.2013, the complainant – Dilip Kumar lodged a report at Police Station Gudhiyari alleging therein that marriage of his daughter was solemnised one year prior to the date of incident with the appellant. Soon after the marriage, the deceased was being subjected to harassment in connection with demand of dowry by the appellant and his father (co-accused convicted under Section 498-A IPC), on account of this, the deceased Lalli Bai left her matrimonial home and remained in her maternal home for two months. Three days prior to the date of incident, the appellant persuaded his father-in-law over telephone, upon which, the complainant left the deceased at her matrimonial home. On the fateful day at about 6:30 am, the appellant informed the complainant over telephone that “he set his daughter on fire”. Thereafter, the complainant rushed to the Hospital where his daughter (deceased) told him that at around 6.00 am in the morning, the appellant poured petrol on

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her and set her on fire with a lighter, due to which, her face, throat, chest and hands were burnt, at that time, his daugher (deceased) was carrying pregnancy of 5 months. On the basis of complaint, Dehati Nalishi was lodged vide Ex.P.12 and thereafter F.I.R. was lodged vide Ex.P.17 against the appellant and his father – Chaitram. On 25.06.2013 itself, the deceased was admitted to Ambedkar Hospital, Raipur for treatment and remained there for 10 days. On the same day, P.W.20 Pulak Bhattacharya, Additional Tahsildar, Raipur has recorded dying declaration vide Ex.P.28 after certifying by the concerned Doctor that she was mentally and physically fit to give statement. During course of treatment, the deceased died on 04.07.2013, pursuant to which, merg intimations were recorded vide Ex.P.1 and Ex.P.3. Thereafter, inquest proceedings was initiated vide Ex.P.10 and dead body of deceased was sent for autopsy and Dr. Raj Kumar Singh (P.W.7) conducted post-mortem examination vide Ex.P.5 and opined that cause of death of deceased was due to cardio-respiratory failure as a result of burn injuries and its complications. Vide Ex.P.8 clothes of the deceased Lalli Bai, one burnt mattress, plastic bottle with petrol smell, mug and one burnt lighter were seized and vide Ex.P.21, the appellant was arrested. Seized articles were sent for chemical examination to F.S.L. and F.S.L. report was brought on record vide Ex.P.27. According to F.S.L. report, cloths, mattress, plastic bottle and one mug seized from the deceased contains petrol contents.

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Statements of witnesses were recorded under Section 161 Cr.P.C. After due investigation, the appellant and co-accused Chaitram were charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court for hearing and disposal in accordance with law, in which appellant and co-accused person abjured their guilt and entered into defence.

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In order to bring home the offence, prosecution has examined as many as 21 witnesses and brought on record 29 documents whereas the appellant-accused person in support of his defence has exhibited one document Ex.D.1, statement of Bholaram Sahu.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for the offence punishable under the aforesaid sections, as mentioned in para 1 and sentenced as above against which the present appeal has been preferred. The co-accused Chaitram Sahu has been convicted for the offence punishable under Section 498A of IPC. However, no appeal on behalf of co-accused Chaitram Sahu has been preferred against the said judgment impugned.

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Learned counsel for the appellant would argue that the appellant has been falsely implicated in the present case. It has been further argued that the appellant and deceased are husband and wife. The dying declaration Ex.P.28, being highly doubtful, is not true and voluntary. He would also submit that the conviction of the appellant based on such dying declaration without appreciating the evidence

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of Dr. Raj Kumar Singh (P.W.7) and his report Ex.P.5 is contrary to law and that motive has not been proved by the prosecution. Hence, the impugned judgment deserves to be set aside and the appellant may be acquitted of the charges.

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Per contra , learned State counsel would support the impugned judgment of conviction and order of sentence and submit that learned trial Court, in view of categorical statement made by the deceased in dying declaration (Ex.P.28) duly proved by the Executive Magistrate-cum-Additional Tahsildar Pulak Bhattacharya (P.W.20) coupled with the medical statement of Dr. Raj Kumar Singh (P.W.7) and his report Ex.P.5, was absolutely justified in bringing home the guilt of the appellant for the aforesaid offences as the prosecution has proved the offence committed by the appellant beyond reasonable doubt by leading cogent and clinching evidence, therefore, the instant appeal deserves to be dismissed.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records carefully.

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The first and foremost question that falls for our consideration is as to whether the death of the deceased was not a natural death?

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Dr. Raj Kumar Singh (P.W.7) conducted post-mortem examination (Ex.P.5) of deceased Lalli Bai, in which, he found superficial

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infected burns on face, neck, chest, upper abdomen flank parts & on front small part, both shoulders, both upper limbs (except axillary pits & parts of both palms) and nape of neck, upper chest upper 1/6, left flank chest & left flank upper abdomen 2/3, which is duly proved by him. After conducting post-mortem examination, Dr. Raj Kumar Singh (P.W.7) has opined that death of deceased was due to cardio-respiratory failure as a result of burn injuries and its complications. Accordingly, taking into account the post-mortem report (Ex.P.5) and the statement of Dr. R.K.Singh (P.W.7), the trial Court has recorded its finding that death of deceased was not a natural death but was caused by burning, otherwise than under normal circumstances, which, we are of the considered opinion, that the learned trial Court is absolutely justified in holding as such, as the same is correct finding of fact based on evidence and the same is neither perverse nor contrary to the record. Accordingly, we hereby upheld the said finding.

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Now the next question would be whether the learned trial Court is fully justified in holding the appellant as author of the crime in question?

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The trial Court, after analyzing the evidence led before it, has come to the conclusion that the prosecution has been able to prove the following 7 incriminating circumstances against the accused/appellant, which read as under :-

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60- izdj.k esa izLrqr lk{; fo'ys”k.k i'pkr vfHk;qDrx.k ds fo:)

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vijk/k fl) fd;s tkus ds laca/k esa vfHk;kstu }kjk fuEu lk{; izekf.kr fd;s x;s gS%&

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01- efrdk ds fookg ds ckn ls vfHk;qDrx.k o efrdk ds e/; ngst laca/kh ekax dks ysdj fookn gksuk o mls izrkfMr fd;k tkukA

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02- e`frdk dk ?kVuk ds yxHkx nks ekg iwoZ ls ek;ds esa jguk o ?kVuk ds ek= rhu fnu iwoZ okil ifr ds ?kj esa vkukA

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03- ?kVuk fnukad dks e`frdk vfHk;qDr jkds'k ds lkFk ?kj esa vdsys gksukA

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04- mDr laca/k esa efrdk }kjk eR;q ds Bhd iwoZ fn;k x;k e`R;q dkfyd dFku iz-ih-28]

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05- vfHk;qDr jkds'k }kjk vfHk;kstu lk{kh lfjrk lkgw ¼v-lk- 3½ ,oa dsnkj lkgw ¼v-lk- 11½ ds le{k dh xbZ U;kf;dsRrj laLohd`frA

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06- efrdk ds eR;q ds laca/k esa izLrqr fpfdRlh; lk{; rFkk tIrh i= iz-ih-08 ds vuqlkj ?kVuk esa iz;qDr lkexzh isVªksy cksry] ,d gjs jax dk eXxk ,oa ,d tyk gqvk ykbZVj dh tIrhA

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07- izdj.k esa layXu ,Q-,l-,y fjiksVZ iz-ih-27 ds vuqlkj izdj.k esa tIr'kqnk oLrq ,] ch] lh] Mh ,oa bZ esa isVªksy o mlds va'k mifLFkr ik;k tkukA

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The entire issue in the present case centers around on the admissibility and evidentiary value of the dying declaration (Ex.P.20) made by the deceased, which was reduced in writing and recorded by P.W.20 Pulak Bhattacharya, Additional Tahsildar & Executive Magistrate in the Ambedkar Hospital after certifying by the Doctor posted in Burn Unit that the deceased was mentally and physically fit to give such dying declaration, which is specifically mentioned in dying declaration (Ex.P.28) and after obtaining such certificate, he (P.W.20) has recorded the same as per statement of deceased Lalli Bai in question and answer form, where she has specifically deposed that she was set on fire after pouring petrol by her husband, i.e., the present appellant. Contents of Ex. P.28 (dying declaration) are relevant and reproduced here under :-

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e`R;wiwoZ dFku

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uke& yYyh ckbZ] w/o jkds'k lkgw

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mez & 20 o"kZ] tkfr & rsyh

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fuokl& jkeuxj] xqf<+;kjh

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LFkku& esdkgkjk cuZ ;wfuV dsfcu &8

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iz'u D;k vki c;ku ns ldrh gks ? mRrj gkW] eSa c;ku ns ldrh gwWA iz'u ;g ?kVuk vkids lkFk dSls ?kVh?

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mRRj vkt lqcg 6 cts eSa ?kj es lks jgh FkhA vpkud esjs Åij ikuh tSls dqN fxjk rc eSa tkx ds ns[kh fd esjs ifr jkds'k lkgw esjs Åij isVªksy NhaV jgs gSA e S a gMcM+k ds mBh ysfdu rc rd mlus ykbVj ls esjs diM+ks dks tyk fn;kA eSaus vius vkidks tyrk ik;k rc [kqn cq>k;h ysfdu rc Hkh esjs ifr us esjs dks ekjkA esjh pkph esjs dks ;gkW ysdj vk;hA mudk uke lfjrk lkgw gSA

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iz'u vkids ifr us vkidks D;ksa tyk;k?

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mRrj fiNys lky esjs 'kknh gqbZA 'kknh ds ckn ls gh esjs ifr esjs ls ekjihV djrk gSA esjs dks dHkh ngst ykus cksyrk gS dHkh :i;k ek;ds ls ykus cksyrk gSA dbZ jkrks dks ?kj okil ugha vkrk gSA oks xkatk 'kjkc ihus dk vknh gSA mldk fdlh vkSj ds lkFk laca/k Hkh gS blh fy;s ?kj jkr dks ugha vkrk FkkA eSa ikap ekg ls xHkZorh gwW blds ckn Hkh esjs ls ekjihV djrk FkkA bUgha lc dkj.kksa ls mlus eq>s tyk;kA

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iz'u ?kj esa dksbZ vkSj Hkh ijs'kku djrs Fks D;k?

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mRrj Eksjs llqj pSrjke lkgw ges'kk xkyh xykSp djrs Fks ,d ckj ekjihV djs ?kj ls fudky fn;s FksA ekbds ls nsgt @ iSlk ykus cksyrs FksA lkl panjckbZ Hkh xkyh xykSp djrh Fkh ij ngst ds fy;s dHkh ugha cksyhA nsojkuh] tsBkuh nks uun Hkh >xM+k djrs FkS ij ngst ds fy;s dHkh ugha cksysA ;g cksyrs jgrs Fks fd dke fd;k dj ges'kk lksrh jgrh gSA

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iz'u vkidks dqN vkSj dguk gS?

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mRrj ugha] eq>s vkSj dqN ugha dgukA

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i<+dj lquk;k@lp gksuk Lohdkj fd;kA lgh@& 11%50 am 25-06-13 iqyd HkV~Vkpk;Z vfr- rglhynkj] jk;iqj

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The Supreme Court in the matter of Laxman v. State of Maharashtra (Constitution Bench)¹ has clearly held that a

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1 (2002) 6 SCC 710

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certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise and observed as under:

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“3. … Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

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Following the principles of law laid down by their Lordships of the Supreme Court in Laxman (supra), recently in the matter of Jagbir Singh v. State of NCT² , it has been held by the Supreme Court that even absence of the certificate by a doctor is not fatal to act upon a dying declaration. However, the requirement remains that the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

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In the matter of Atbir vs. Government of NCT of Delhi³ , the Supreme Court held that while recording dying declaration, factors such as mental condition of maker, alertness of his/her mind and memory, evidentiary value, etc. have to be taken into account, laid down principles. Paras 14 to 22 are relevant for the purpose, which read as under :-

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“ (A) Dying declaration

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It is true that in the case on hand, conviction under Section 302 was based solely on the dying

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2 (2019) 8 SCC 779

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3 (2010) 9 SCC 1

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declaration made by Sonu @ Savita and recorded by Investigating Officer in the presence of a Doctor. Since we have already narrated the case of prosecution which led to three deaths, eliminating the second wife and the children of one Jaswant Singh, there is no need to traverse the same once again. This Court in a series of decisions enumerated and analyzed that while recording the dying declaration, factors such as mental condition of the maker, alertness of mind and memory, evidentiary value etc. have to be taken into account.

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In Munnu Raja and Another vs. The State of M.P, (1976) 3 SCC 104, this Court held: ( SCC pp. 106-07 para 6 )"

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“6....It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross- examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated...."

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It is true that in the same decision, it was held, since the Investigating Officers are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an investigation ought not to have been encouraged.

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In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126, this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement.

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The effect of dying declaration not recorded by the Magistrate was considered and reiterated in Balbir Singh & Anr. Vs. State of Punjab , (2006) 12 SCC 283. Para 23 of the said judgment is relevant which reads as under:

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"23. However, in State of Karnataka v. Shariff , (2003) 2 SCC 473, this Court categorically held that there was no requirement of law that a dying declaration must necessarily be made before a Magistrate. This Court therein noted its earlier decision in Ram Bihari Yadav v. State

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of Bihar , (1998) 4 SCC 517, wherein it was also held that the dying declaration need not be in the form of questions and answers. (See also Laxman v. State of Maharashtra , (2002) 6 SCC 710)."

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It is clear that merely because the dying declaration was not recorded by the Magistrate, by itself cannot be a ground to reject the whole prosecution case. It also clarified that where the declaration is wholly inconsistent or contradictory statements are made or if it appears from the records that the dying declaration is not reliable, a question may arise as to why the Magistrate was not called for, but ordinarily the same may not be insisted upon. This Court further held that the statement of the injured, in event of her death may also be treated as FIR.

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In State of Rajasthan vs. Wakteng , (2007) 14 SCC 550, the view in Balbir Singh case has been reiterated. The following conclusions are relevant which read as under: ( Wakteng case, SCC p. 554, paras 14-15)

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"14. Though conviction can be based solely on the dying declaration, without any corroboration the same should not be suffering from any infirmity.

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While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lie or to concoct a case so as to implicate an innocent person but the court has to be careful to ensure that the statement was not the result of either tutoring, prompting or a product of the imagination. It is, therefore, essential that the court must be satisfied that the deceased was in a fit state of mind to make the statement, had clear capacity to observe and identify the assailant and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction."

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In Bijoy Das vs. State of West Bengal , (2008) 4 SCC 511, this Court after quoting various earlier decisions, reiterated the same position.

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In Muthu Kutty & Anr. Vs. State By Inspector of Police, T.N. , (2005) 9 SCC 113, the following discussion and the ultimate conclusion are relevant which read as under: (SCC p. 120, paras 14-15)

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"14. This is a case where the basis of conviction of the accused is the dying

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declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason that the requirements of oath and crossexamination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

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Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

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The same view has been reiterated by a three Judge Bench decision of this Court in Panneerselvam vs. State of T.N . , (2008) 17 SCC 190 and also the principles governing the dying declaration as summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474.

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The analysis of the above decisions clearly shows that,

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( i ) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

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( ii ) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

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( iii ) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction

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without any further corroboration.

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( iv ) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

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( v ) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

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( vi ) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

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( vii ) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

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( viii ) Even if it is a brief statement, it is not to be discarded.

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( ix ) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

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( x ) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration.”

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17. Dying declaration is the last statement that is made by a person as

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to the cause of his/her imminent death or the circumstances that

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had resulted in that situation, at a stage when the declarant is conscious of the fact that there are virtually nil chances of his/her survival. On an assumption that at such a critical stage, a person would be expected to speak the truth, courts have attached great value to the veracity of such a statement. Section 32 of the Indian Evidence Act, 1872 states that when a statement is made by a person as to the cause of death, or as to any of the circumstances which resulted in his death, in cases in which the cause of that

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person’s death comes into question, such a statement, oral or in writing made by the deceased victim to the witness, is a relevant fact and is admissible in evidence. It is noteworthy that the said provision is an exception to the general rule contained in Section 60 of the Evidence Act that ‘hearsay evidence is inadmissible’ and only when such an evidence is direct and is validated through cross-examination, it is considered to be trustworthy.

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P.W.10 Dilip Kumar Sahu is the father of the deceased Lalli Bai. He has testified that marriage of the deceased was solemnised with the appellant prior to two years from the date of incident and on the date of incident, the appellant informed him over telephone that “he set his daughter on fire by pouring petrol”, upon which, this witness rushed to the Ambedkar Hospital and saw his daughter lying in burnt condition. He lodged the report vide Ex.P.12 in Police Station, Gudhiyari. Thereafter, the Police started investigation and all the mandatory proceedings were drawn by the Police. He has further deposed that the appellant and co-accused Chaitram used to quarrel with the deceased with respect to demand of dowry and used to drive her out and ultimately, she was left at her parental house for a period of two months and prior to three days of the incident, appellant requested this witness to send his daughter (deceased), which was complied by this witness by leaving the deceased at her matrimonial home and after two-three days, appellant set the deceased on fire. He has also stated that the

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appellant also caused injury to his first wife namely Anita Sahu and for that the appellant was also punished. He has also stated that when he asked his daughter while she was in Hospital, she told that the accused Rakesh Sahu had poured petrol over her and set her on fire with intention to kill her. In cross-examination, this witness declined that his daughter (deceased) sustained burn by accident and nothing has been elicited from his examination to disbelieve his statement.

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PW-3 Sarita Sahu is the aunt of the deceased. She has stated that although she did not have any knowledge about the incident but upon information given by the appellant that he set her on fire, she immediately rushed to the house of the deceased and saw her in burnt condition and thereafter appellant called the Ambulance and took the deceased to the Ambedkar Hospital and she was also along with her. P.W.11 Kedar Sahu is uncle of the deceased and has deposed that the appellant came to him to ask for phone number of Dilip Sahu (P.W.10) by stating that he set the deceased on fire by pouring petrol. Except this, nothing has come out in his evidence.

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P.W.17 D.N. Jha, A.S.I. posted at Gudhiyari Police Station, has stated that on receipt of information with respect to burning case, he immediately rushed to Ambedkar Hospital and after completing necessary formalities, prompt F.I.R. has been lodged vide Ex.P.17 at the behest of deceased's father Dilip Sahu (P.W.10). He has

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further stated that he has informed the Executive Magistrate, Raipur to take dying declaration of Lalli Bai vide Ex.P.18. On the same date, he has also informed to CMO, District Hospital, Raipur to give certificate, which is marked as Ex.P.19, upon which, the concerned Doctor certified that patient is able to give statement. As per his evidence, during course of investigation, he recovered one black coloured burnt blouse, blue coloured burnt saree, one burnt mattress, plastic bottle containing 200 grams petrol, green colour mug and one burnt lighter before the witnesses, which was supported by P.W.10 Dilip Sahu. This witness was subjected to cross-examination, but nothing has been elicited from his evidence to disbelieve the same. F.S.L. report (Ex.P.27) also shows that some petrol was found in seized plastic bottle, marked as article 'D' and also presence of petrol was found in burnt clothes, saree and mattress, which are marked as articles 'A', 'B' & 'C'.

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P.W.20 Pulak Bhattacharya, who has recorded the dying declaration of deceased Lalli Bai, has stated that after receiving information from the In-charge Police Station Gudhiyari, he had gone to the Ambedkar Hospital, where after obtaining certificate to the effect that the patient is able to give her statement by the Doctor working in Burn Unit, he started recording the statement of Lalli Bai in question and answer form at 11:40 am and completed the same at 11:50 am, wherein the deceased has disclosed about the incident, which is marked as Ex.P.28. He was also subjected

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to cross-examination, but nothing has been elicited by the defence to disbelieve the same.

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When we examine the evidence of above prosecution witnesses coupled with the 7 incriminating circumstances, which have been relied upon by the trial Court and medical evidence of Dr. Raj Kumar Singh (P.W.7) and his autopsy report Ex.P.5 in the light of the decisions rendered by their Lordships in the above referred matters, the following picture emerges :-

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marriage of the deceased Lalli Bai was solemnised with the appellant and soon after the marriage, the deceased was subjected to harassment with respect to dowry by the appellant and his father Chaitram;

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the deceased was living in her maternal home for about two months before the incident and came back to her in-law's house only three days before the incident;

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on the date of the incident the deceased was found alone with the accused/appellant,

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ultimately on 25.06.2013, the incident took place at around 06:00 am inside the house and at that time no eye-witness was present to witness the incident except the appellant,

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after the deceased being set on fire by the appellant by pouring petrol, the appellant has informed the same over telephone to P.W.10 Dilip Sahu, and orally to P.W.3 Sarita Sahu and P.W.11

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Kedar Sahu;

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the said dying declaration of deceased was also recorded only after the deceased being found medically in fit condition.

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after admission of Lalli Bai in Ambedkar Hospital, a dying declaration was recorded vide Ex.P.28 wherein she has specifically mentioned the name of the appellant as the author of the crime;

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prompt F.I.R. has been lodged vide Ex.P.17 at the behest of Dilip Kumar Sahu (P.W.10)

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seized articles from the spot were sent to F.S.L. and as per F.S.L. report, contents of petrol were found on the articles, marked as 'A', 'B', 'C' & 'D'.

¶137

after commission of offence, the appellant made extra-judicial confession before P.W.3 Sarita Sahu and P.W.10 Dilip Sahu, which is voluntary and true.

¶138

from the evidence of P.W.10 Dilip Sahu, it is clearly established that the appellant also caused injury to his first wife namely Anita Sahu and for that the appellant was also punished. Similarly, it has also come in his evidence that when he asked his daughter while she was in Hospital, she told that the accused Rakesh Sahu had poured petrol over her and set her on fire with intention to kill her.

¶139

Apart from the above, there is no specific defence on behalf of the appellant in his statement recorded under Section 313 of Cr.P.C.

¶140

¶141

As regards question of motive, in case of direct evidence, motive loses its importance. Even otherwise, it only aids in criminality and can be inferred from the kind of weapon used, part of body hit, nature of injury and other circumstances. In the present case, as per case of the prosecution, burning of the deceased by pouring petrol by the accused/appellant shows that he intended to cause or to cause such injury as was sufficient to cause death to the deceased in the ordinary course of nature.

¶142

Therefore, from the statements of aforesaid prosecution witnesses coupled with the dying declaration (Ex.P.28) proved by P.W.20 Pulak Bhattacharya, Executive Magistrate and also medical evidence showing the death of deceased was not a natural death but was caused by burning, otherwise than under normal circumstances, it would be proved beyond doubt that it was the appellant, who had intentionally caused the death of his wife/deceased by pouring petrol on her, which was homicidal in nature and thereby committed the offence.

¶143

The prosecution has also been able to prove the circumstances of the case in the light of five golden principles to constitute the 'panchsheel' of the proof of a case based on circumstantial evidence, as laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda vs. State of Maharashtra⁴ . In that view of the matter, we are of the considered

¶144

4 1984 AIR SC 1624

¶145

¶146

opinion that the appellant is not entitled to be acquitted of the charges.

¶147

In the light of aforesaid discussion, we are inclined to endorse the conclusion arrived at by the trial Court convicting the appellant on the basis of evidence adduced by the prosecution witnesses and dying declaration (Ex.P.28). Therefore, conviction of the appellant for the offence under Sections 302 & 498-A of IPC as well as the sentence imposed upon him by the learned trial Court is well merited and does not call for any interference by this Court.

¶148

In the result, the criminal appeal is dismissed.

¶149

Sd/Sd/-

¶150

(Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

¶151

Anjani/Akhilesh

Rakesh Sahu v. State Of Chhattisgarh

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Rakesh Sahu v. State Of Chhattisgarh

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