Dismissed¶31

Buddheshwar Shriwas v. State of Chhattisgarh

Chhattisgarh HC23 Jul 2024CRA/509/2023

Case brief

AI extract

What is this about?

Chhattisgarh HC criminal appeal dismissed 24.07.2024 upholding Section 302 IPC life-sentence conviction of husband for kerosene-burn death of wife; dying declaration Ex.P/16 recorded by Executive Magistrate after doctor's fitness certificate treated as valid sole basis; Section 32(1) Evidence Act; medical certification merely a rule of caution (Laxman; Jagbir Singh); fit state of mind; nemo moriturus praesumitur mentire; FSL kerosene traces in jerrycan and half-burnt sari; co-accused acquitted; conviction under S. 302 IPC affirmed; fine Rs. 2000/-; Criminal Appeal No. 509 of 2023.

What did the court decide?

It is established beyond any doubt, from the burn-injury evidence, postmortem report Ex.P/21 and dying declaration Ex.P/16, that the deceased died due to burn injuries which resulted into septicemia. ¶41

Buddheshwar Shriwas Vs State of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the deceased died in unnatural circumstances and whether her death is homicidal in nature. +1 more

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Court's answer

It is established beyond any doubt, from the burn-injury evidence, postmortem report Ex.P/21 and dying declaration Ex.P/16, that the deceased died due to burn injuries which resulted into septicemia.

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Ratio / Principle

Before recording the dying declaration of the deceased Heera Bai, she was certified by Dr. Hemant Kumar Sahu, PW-7, that she is capable to give her statement, whereupon dying declaration Ex.P/16 was recorded by Executive Magistrate Neelam Toppo, PW-9.

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Key takeaways

The contention that the dying declaration is forged because the doctor was not present is rejected: the doctor's signature on the declaration indicates he was present when it was recorded and had opined the deceased was fit to give it.ratio¶84
Nothing was extracted from the statements of PW-7 Dr. Hemant Kumar Sahu and PW-9 Neelam Toppo to hold that the deceased was not in a fit physical and mental state or gave no dying declaration; the Executive Magistrate's statement cannot be disbelieved; there is sufficient evidence that the declaration Ex.P/16 was given and is true and voluntary.ratio¶87

Detailed headnote1 paragraphs

High Court of Chhattisgarh at Bilaspur, Criminal Appeal No. 509 of 2023 (bench: Ramesh Sinha, CJ and Ravindra Kumar Agrawal, J.; judgment per Agrawal, J.), decided 24.07.2024 — appeal DISMISSED. The appellant Buddheshwar Shriwas, convicted on 24.02.2023 by the First Additional Sessions Judge, Sakti (Sessions Trial No. 27 of 2017) under Section 302 IPC to life imprisonment with fine of Rs. 2000/- for the burn-death of his wife Heera Bai (suffered burn injuries on 06.05.2017; died 13.05.2017; postmortem attributed death to septicemia as a result of 52 percent mixed flame burn), appealed pleading false implication, acquittal of co-accused on the same evidence, and untrustworthiness of dying declaration Ex.P/16 for want of a medical fitness certification. Holding: death due to burns resulting in septicemia established beyond doubt; the dying declaration was recorded on 06.05.2017 by Executive Magistrate Neelam Toppo (PW-9) after Dr. Hemant Kumar Sahu (PW-7) certified the victim capable of giving her statement; following Laxman (2002) 6 SCC 710 and Jagbir Singh (2019) 8 SCC 779, a doctor's certification is essentially a rule of caution and its absence is not fatal; the doctor's signature on the declaration shows his presence; the declaration is true and voluntary, supported by seizure of a kerosene jerrycan, matchboxes and half-burnt sari and FSL findings of kerosene in the jerrycan and sari; the appellant is the author of the crime and the conviction involves no infirmity. Principles on the scope of Section 32(1) Evidence Act and on recording/reliability of dying declarations drawn from Sharad Birdhichand Sarda (1984) 4 SCC 116 and Purshottam Chopra (2020) 11 SCC 489. Co-accused (Dilchand Shriwas, Pushpa Shriwas, Kheer Bai Shriwas) had been acquitted by the trial court, and the appellant himself acquitted of Sections 498-A and 120-B IPC. Appellant, in jail, to serve the remaining sentence.

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 509 of 2023

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Buddheshwar Shriwas son of late Sushilchand Shriwas, aged about 24 years, Resident of Sakrali, Police Station Dabhra, District Janjgir Champa (New District Sakti) Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh Through Police of Police Station Dabhra, District Janjgir Champa (New District Sakti), Chhattisgarh.

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---- Respondent

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For Appellant : Shri Ishwar Jaiswal, Advocate. For State : Shri R.S. Marhas, Addl. Advocate General.

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Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J

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Judgment on Board

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Per, Ravindra Kumar Agrawal, J. 24.07.2024

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1. The Appellant stands convicted under Section 302 IPC to life imprisonment with fine of Rs. 2000/-, in the event of failure to pay fine he was required to undergo two months further rigorous imprisonment, as ordered by the judgment of conviction and sentence dated 24.02.2023 passed by the First Additional Sessions Judge, Sakti, in Sessions Trial No. 27 of 2017.

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2. Brief facts of the case are that, on 06.05.2017 MLC intimation with respect to burn injuries of deceased Heera Bai was given by the Doctor of Community Health Centre, Dabhra vide Ex.P/12 that the victim Heera Bai suffered burn injuries and admitted in the hospital on 06.05.2017 at about 4:55 pm. Dr. Hemant Kumar Sahu, PW-7, gave her primary treatment and looking to her injuries she was referred to higher centre vide MLC report Ex.P/13. The victim Heera Bai was

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referred to late Lakhi Ram Agrawal Memorial Medical College Hospital, Raigarh where she was being admitted and during treatment she died on 13.05.2017 at about 5:30 am. Death intimation was given by the doctor of said Hospital at Raigarh vide Ex.P/29 to City Kotwali Raigarh and based on it Merg intimation Ex.P/30 was recorded by the police on 13.05.2017. Unnumbered merg intimation was sent by City Kotwali Raigarh to the jurisdictional police at police station Dabhra where numbered merg intimation Ex.P/17 was recorded. FIR Ex.P/26 has been lodged on 13.05.2017 for the offence under Sections 307, 498-A, 34 IPC. When the victim Heera Bai was admitted in the Hospital, the requisition for recording her dying declaration was made by the police of police Station Dabhra to the Executive Magistrate, PW-9, Neelam Toppo, who on 06.05.2017 at about 6:00 pm has recorded dying declaration of the victim vide Ex.P/16.

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3. After receiving death intimation of the victim, the police Station City Kotwali Raigarh have prepared the inquest of the dead body of the deceased in presence of the witnesses vide Ex.P/10. The dead body was sent for its postmortem to late Lakhi Ram Agrawal Memorial Hospital, Raigarh where Dr. Rajesh Goswami, PW-18, has conducted postmortem of the deceased and found that cause of death of the deceased was Septicemia as a result of 52 percent mixed flame burn. Spot map Ex.P/2 was prepared by the police and Ex.P/3 was prepared by the Patwari. Viscera of deceased was seized vide seizure memo Ex.P/14. Plastic Jerrycan containing kerosene oil, one matchbox and half burnt Sari of the deceased were seized from the spot vide seizure memo Ex.P/20. The seized articles were sent for its FSL examination

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from where the FSL report Ex.P/38 & P/39 were received, according to which, the viscera of the deceased does not contain with any poisonous substance, however, in the jerrycan and half burnt sari, kerosene oil was found present and matchbox and half burnt hair of the deceased does not found to be contained with kerosene oil.

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4. The statement of the witnesses were recorded and after completion of usual investigation charge sheet was filed before the Judicial Magistrate First Class, Dabhra for the offence under Sections 302, 498-A and 34 IPC against the present appellant and his family members namely Dilchand Shriwas, Smt. Pushpa Shriwas and Kheer Bai Shriwas.

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5. The case was committed to the court of learned Sessions Judge from where it has been transferred to the trial court for its trial. The Trial court framed charges against the appellant and other co-accused persons for commission of offence under Sections 498-A, 302, 34 and 120-B IPC. The appellant and other co-accused persons denied the charges and claimed trial.

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6. In order to prove offence against the appellant as well as other coaccused persons, the prosecution has examined as many as 27 witnesses. Statement under Section 313 CrPC of accuse persons were also recorded in which they denied the circumstances appears against them and submitted that they have been falsely implicated in the offence and the victim set ablaze herself.

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7. After considering the oral as well as documentary evidence led by the prosecution, the trial court has convicted the appellant for the offence under Section 302 IPC, however, acquitted the other co-accused

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persons from the offence under Sections 302, 34, 498-A and 120-B IPC. The appellant herein was also acquitted from the offence under Section 498-A and 120-B IPC. Hence this appeal against conviction and sentence to the appellant.

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8. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the offence. No offence has been committed by the appellant as alleged. There are material omissions and contradictions in the evidence of prosecution witnesses. On the same set of evidence the other co-accused persons have already been acquitted. The case of present appellant is also similar to them and therefore he is also entitled for his acquittal. He would further submit that dying declaration allegedly recorded by the Executive Magistrate suffers from perversity as the doctor who has given his opinion about the physical condition of the victim at the time of recording her dying declaration have not stated in his evidence that he has given the said certificate that victim was in fit state of mind to give her statement. In absence of any certification from the doctor, the dying declaration cannot be relied upon. There are reasons to commit suicide by the deceased herself and therefore no offence under Section 302 IPC have been made out against the appellant and he is entitled for acquittal.

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9. On the other hand, learned counsel for the State would submit that the prosecution has proved its case beyond reasonable doubt. There are evidence with respect to harassment given by the appellant to the victim. From dying declaration Ex.P/16 recorded by PW-9, the guilt of appellant is duly proved. A dying declaration under Section 32 of the

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Evidence Act is an important evidence as the law presumes that a person approaching the maker will not state falsely at that point of life. The parents of the deceased have duly supported their case and stated about the conduct of the appellant. The case of other accused persons are not similar to the case of present appellant for the reason that in the dying declaration the deceased has named only the present appellant that he set her ablaze by pouring kerosene and therefore the trial court has acquitted the other accused persons and convicted the present appellant. Further, there is no plausible explanation given by the present appellant about the cause of incident. The incident took place inside the house of the appellant and therefore he has to explain the fact within his special knowledge, but he failed to explain the same. Therefore, the judgment of conviction and sentence passed against the appellant is absolutely justified which needs no interference.

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10. We have heard the counsel appearing for the parties and perused the records.

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11. The first question arises for consideration is as to whether the deceased died in unnatural circumstances and her death is homicidal in nature or not?.

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12. On 06.05.2017, the victim Heera Bai was taken to Community Health Centre Dabhra in burn condition where PW-7 Dr. Hemant Kumar Sahu gave her primary treatment and looking to her condition and burn injuries she was referred to the higher centre for further treatment. At the time when this doctor has medically examined the victim, she was found to be suffered by 51 percent burn injuries on the upper part of

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her body. She was being shifted to late Lakhi Ram Agrawal Memorial Medical College Hospital Raigarh where she was admitted. During treatment she died on 13.05.2017 and the intimation about her death was given to the police station, City Kotwali, Raigarh vide death intimation Ex.P/29. The Police station City Kotwali Raigarh prepared inquest of the dead body of the deceased and body was sent for postmortem where PW-18 Dr. Rajesh Goswami has conducted its postmortem and gave a report vide Ex.P/21. While conducing postmortem, the doctor found following external injuries on her body and percentage of burn on body surface:

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“Externals- Right eye semiopen, left eye closed, cornea hazy, mouth semiopen, teeth visible and intact, tongue inside mouth. Upper and lower limbs straight, rigor mortis present in both upper and lower limbs, vene puncture marks with effusion of blood present over dorsum of both foot and medial part of both lower legs just above medial malleolus, infected dermo- epidermal to deep burns present over head, face, neck, both upper limbs except small area over the postero-lateral part of right forearm, anterior and posterior part of chest region and anterior and posterior part of upper abdomen above umbilicus, Small fluid filled blisters present over anterior and posterior part of both upper limbs at places, peeling of skin evident at places over the body over burnt area, scalp hairs present at places all over the scalp, scalp and axillary hairs singed and blackish, pitting oedema present over lower 1/3rd of both legs, Medicinal application evident over injuries at places.

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Body surface burn percentage-

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1	Head neck face	Right	09%
2	Upper limbs	Left Right	07% 09%
3	Trunk	Front Back	13.5% 13.5%

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4	Lower Limbs	Right	00%
		Left	00%
5	External Genitalia		00%

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The doctor opined that cause of death was septicemia as a result of 52 percent mixed flame burn and the manner of deathpending investigation.

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13. From the evidence available on record with respect to burn injuries found on the body of the deceased as well as her postmortem report Ex.P/21 and also from dying declaration Ex.P/16 it has been established beyond any doubt that the deceased died due to burn injuries which resulted into septicemia.

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14. The next question for consideration would be the involvement of the appellant in offence in question.

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15. The prosecution has relied upon dying declaration Ex.P/16 which is recorded by the the Executive Magistrate Neelam Toppo, PW-9. From perusal of dying declaration it appears that PW-7 Dr. Hemant Kumar Sahu has given his opinion that the victim Heera Bai is in fit state of mind for giving her statement and the said certification was given on 06.05.2017 at 6:00 pm. Thereafter, Neelam Toppo, Executive Magistrate, has recorded her dying declaration in presence of the witnesses who have duly proved that he recorded dying declaration of victim on 06.05.2017. In her cross examination nothing could be extracted by the defence that he has not recorded her dying declaration or prepared it on table or even the deceased has not made any dying declaration before him.

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16. At this stage, it would be appropriate to notice Section 32 (1) of the Evidence Act which states as under: -

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“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence,or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

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(1) when it relates to cause of death.— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

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Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

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xxx xxx xxx”

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17. The general ground of admissibility of the evidence mentioned in Section 32(1) of the Evidence Act is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60 of Evidence Act). The eight clauses of Section 32 o the Evidence Act may be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently

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trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and crossexamination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., “ nemo moriturus praesumitur mentire” which means a man will not meet his Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance of this very fact, is an exception to the rule of hearsay evidence. Section 32(1) of the Evidence Act is famously referred to as the “dying declaration” section, although the said phrase itself does not find mention under the Evidence Act. Their Lordships of the Supreme Court have considered the scope and ambit of Section 32 of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 in which their Lordships have summarised the principles enumerated in Section32(1) of the Evidence Act, including relating to“circumstances of the transaction”, which are as under: -

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“21. Thus, from a review of the authorities mentioned above and the clear language of Section32(1) of the Evidence Act, the following propositions emerge:-

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(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the

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statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

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(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of crossexamination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

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(4) It may be important to note that Section 32does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

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(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”

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18. In the matter of Purshottam Chopra and another v. State

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(Government of NCT of Delhi), reported in (2020) 11 SCC 489 , principles relating to recording of dying declaration and its admissibility and reliability were summed up in paragraph 21 as under: -

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“21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

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21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

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21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

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21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

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21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

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21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

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21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility,it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

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21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

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21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”

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19. In addition to this, a Constitution Bench of Hon’ble Supreme Court in the matter of Laxman v. State of Maharashtra , reported in (2002) 6 SCC 710 has clearly held that 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. Their Lordships held in paragraph 5 of the report as under: -

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“5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab [(1999) 6 SCC 545]

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wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier,we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695] (at SCC p. 701, para 8) to the effect that

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"in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"

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has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma (supra) must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562] .

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20. The Supreme Court in the matter of Jagbir Singh v. State (NCT of

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Delhi) , reported in (2019) 8 SCC 779 following the principle of law laid down in Laxman (supra) has clearly held that even absence of the certificate by a doctor is not fatal to act upon a dying declaration,

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however, the requirement remains that the person who records dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.

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21. Reverting to the facts of the present case, in the light of law laid down by the Supreme Court in the aforesaid judgments, it is quite vivid that before recording dying declaration of the deceased Heera Bai, she was certified by Dr. Hemant Kumar Sahu, PW-7 that she is capable to give her statement and thereafter her dying declaration Ex.P/16 was recorded by the Executive Magistrate Neelam Toppo, PW-9, in which she clearly states that it is the appellant Buddheshwar Shriwas who set her ablaze on fire after pouring kerosene oil on her body. While examining by Dr. Hemant Kumar Sahu neither the prosecution nor the defence has raised any question to this witness as to whether the deceased Heera Bai was in a fit condition to give statement or not.

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22. The contention of counsel for the appellant that in the statement of the Executive Magistrate, Neelam Toppo, that the doctor Hemant Kumar Sahu was not present, but has opined that deceased could give her dying declaration, itself shows that the said declaration is forged one as the doctor was not present. The aforesaid contention is noticed to be rejected as from perusal of dying declaration it is apparently clear that there is signature of said doctor which is indicative of the fact that he was present when dying declaration was recorded and he had given his opinion that deceased was fit to give her dying declaration.

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23. Nothing has been extracted from the statement of PW-7 Dr. Hemant Kumar and PW-9 Neelam Toppo, Executive Magistrate, to hold that deceased was not in fit in physical and mental state of mind to give

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dying declaration and she has not given any dying declaration. The statement given by the Executive Magistrate cannot be disbelieved as he is a government officer and has no vested interest in either of the party. Even there is no suggestion as to why the Executive Magistrate would have deposed falsely against the appellant. As such, there is sufficient evidence available on record to believe that dying declaration has been given by Heera Bai (deceased) and her declaration Ex.P/16 is true and voluntary.

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24. From the house of the appellant, Jerrycan contained with kerosene oil, two matchbox and half burnt Sari were seized. In the FSL report, Ex.P/39, the half burnt Sari of the deceased and Jerrycan was found to be contained with kerosene oil.

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25. Since the appellant has been acquitted by the trial court from the offence under Section 498-A IPC, the evidence of her parents and other family members do not have much relevance, yet for the conduct of the appellant it is necessary to deal with their evidence on relevant point of their allegation.

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26. PW-4, Krishna Lal Shriwas, the father of the deceased, have stated in his deposition that marriage of his daughter was solemnized on 27.04.2016. After sometime of marriage she started making complaint about harassment by her husband and in laws. He tried to convince her husband and in laws but the harassment was continued. Community meeting was also convened in which the accused persons were convinced by the community persons which was in writing in register of the community and when he received information about the fact that his daughter is burnt and admitted in the hospital, he met her

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in Raigarh Hospital and asked about the incident, to which she replied that the appellant set her ablaze after pouring kerosene on her body. The aforesaid facts disclosed by her father could not be rebutted in his cross examination and he remain firm in making allegation that his daughter was harassed by the accused persons.

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27. PW-17, the mother of the deceased, has also stated the similar fact as PW-4, the father of deceased, has stated. She too have disclosed the harassment given to her daughter by the accused persons. She also deposed that at Raigarh hospital when she met with her, she disclosed about the incident that accused persons poured kerosene on her body and set her ablaze. Nothing could be abstracted from her evidence also by the defence to disbelieve her version.

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28. PW-20, Suresh Shriwas, brother of the deceased have also stated about harassment given by her husband and her in laws. They convinced her in laws and her husband not to raise quarrel with her and when he received information about her burn, he came from Punjab to meet her sister where she disclosed that her husband set her ablaze by pouring kerosene oil. In cross examination this witness has also remain firm and has not diluted his evidence in his cross examination.

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29. PW-1, Murli Shriwas, relative of deceased, PW-2, Anju Shriwas, neighbour of appellant, PW-3, Kundan Lal Shriwas, member of community meeting, PW-5 Bhawani Prasad Shriwas, block President of the community and PW-6, Uma Bai Shriwas, sister in law of the deceased, have not fully supported the case of prosecution and therefore in view of dying declaration as also the evidence of PW-4,

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PW-17 and PW-20, their evidence is of not much relevance to discuss here.

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30. In view of the above, we are of the considered opinion that the trial court has rightly held that it is the appellant Buddheshwasr Shriwas who is the author of the crime in question relying upon the dying declaration Ex.P/16 made by deceased Heera Bai before the Executive Magistrate Neelam Toppo, PW-9, after getting fitness certificate by Dr. Hemant Kumar Sahu, PW-7, that she is capable to give statement and the accused appellant Buddheshwar Shriwas was found to be guilty for commission of the offence. Consequently, we do not find any infirmity in the impugned judgment of conviction and order of sentence in convicting the appellant for the offence under Section 302 IPC for committing murder of his wife-Heera Bai.

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31. For the foregoing reasons, the appeal filed by the appellant is dismissed. The appellant is in jail. He shall serve the remaining sentence as ordered by the concerned trial court.

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32. The trial court records along with a copy of this judgement be sent back immediately to the trial court concerned for compliance and necessary action.

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Sd/Sd/(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice

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inder

Buddheshwar Shriwas v. State of Chhattisgarh

Case brief

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Buddheshwar Shriwas v. State of Chhattisgarh

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