DASIN BAI@ SHANTI BAIversusSTATE OF CHHATTISGARH

                       (2015) l S.C.R. 1060


A                   DASIN BAI@ SHANTI BAI
                                V.
                   STATE OF CHHATTISGARH
                (Criminal Appeal No.827 of 2008)
                      FEBRUARY 11, 2015.
B
      [M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]

       Penal Code, 1860 - s. 302 - Murder - By setting the
  deceased on fire - Circumstantial evidence - Conviction
C under, by Courts below relying on the dying declaration - On
  appeal, held: Conviction was justified - Truthfulness of the
  dying declaration cannot be doubted - It was within special
  knowledge of the accused as to how the deceased came to
  the premises of her house and how he got burnt -Thus, the
D burden to prove those facts is upon the accused u/s.106 of
  Evidence Act - The failure of the accused to discharge the
  burden cast upon her uls. 106, provides an additional link in
  the chain of circumstances proved against her - When the
  facts are clear, absence of motive to kill is inconsequential
E and does not break the chain of circumstances - Evidence
  Act, 1872 - s. 106 - Dying Declaration - Motive - Evidence
  - Circumstantial Evidence.

        Dismissing the appeal, the Court

F       HELD : 1.1. If the truthfulness or otherwise of the
    dying declaration cannot be doubted, the same alone can
    form the basis of conviction of an accused and the same
    does not require any corroboration, whatsoever in law.
    [Para 1O] [1064-G]
G
        Ravi & Anr. v State of T.N. 2004 (10) SCC 776; Mafabhai
    NagarbhaiRaval v. State of Gujarat (1992) 4 SCC 69 - relied
    on.


H                              1060
       DASIN BAI@ SHANTI BAI v. STATE OF              1061
                 CHHATIISGARH

     1.2. There is consistency between the statements of      A
PW1 and PW3, who were present when the deceased
gave the oral dying declaration in the hospital, before he
succumbed to the injuries. There is consistency in their
statements. [Para 12] [1065-E-F]
                                                              B
    1.3. Merely because the deceased suffered 70 per
cent burns, this does not raise an assumption that he
could not have given the oral dying declaration. The High
Court was right in believing the oral dying declaration of
the deceased as it did not suffer from any infirmity. [Para   C
14] [1066-E-F]

    Pothakamuri Srinivasulu v. State of A. P. (2002) 6 SCC
399 - relied on.

     2. When there is any fact especially within the          o
knowledge of a person, the burden of proving that fact
is upon liim. Where the presence of special knowledge
is with the accused, "in a case resting on circumstantial
evidence, if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him by       E
Section 106, that itself provides an additional link in the
chain of circumstances proved against him." The
appellant-accused is unable to discharge the burden cast
upon her by Section 106 of the Evidence Act, as it was
within her special knowledge as to how the deceased
                                                              F
came into the premises of her house. [Paras 15, 16 and
18] [1067 -A, C, D, H]

     State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254:
2006 (8) Suppl. SCR 501; Babu alias Balasubramaniam &
Anr. v. State of Tamil Nadu (2013) 8 sec 60 - relied on. G

    3. The ground of defense taken by the appellant, that
she did not have any motive to kill the deceased, is ill
founded and does "not break the chain of circumstances.
Therefore, when facts are clear it is not necessary to have   H
    1062     SUPREME COURT REPORTS               [2015) 1 S.C.R.

A proof of motive or ill-will to sustain conviction. [Para 19]
    [1068-A·B]
        Mulakh Raj & Ors. v. Staish Kumar & Ors. (1992) 3 SCC
    43:1992 (2) SCR 484 - relied on.
B                        Case Law Reference :
        2004 (1 O) sec 116          relied on            Para 10
        (1992) 4 sec 69             relied on            Para 11

c       c2002) 6 sec 399            relied on            Para 13
        2006 (8) Suppl. SCR 501 relied on                Para 15
        (2013) 8 sec so             relied on            Para 17
        1992 (2) SCR 484            relied on            Para 19
D
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 827 of 2008

        From the Judgment and Order dated 01.12.2006 of the
    High Court of Chhattisgarh, Bilaspur in CRLA No. 1171 of 2001.
E
        Chaitanya Siddhartha (A.C.) for the Appellant.

        Apporv Kurup, Sakshi Kakkar, C. D. Singh for the
    Respondent.

F       The Judgment of the Court was delivered by

        PINAKI CHANDRA GHOSE, J. 1._This appeal has been
  filed by Dasin Bai against the judgment and order dated 1st
  December, 2006 passed by the High Court of Chhattisgarh at
G Bilaspur in Criminal Appeal No.1171 of 2001 by which the High
  Court while upholding the findings of the Trial Court has
  dismissed the appeal filed by the appellant. The facts of the
  case as narrated by the prosecution are briefly stated as under:

      2. On February 1, 2000, in the evening, one Raju Rajak
H (who is the deceased in this case) was roaming near Kargi
     DASIN BAI@ SHANTI BAI v. STATE OF    1063
  CHHATTISGARH [PINAKI CHANDRA GHOSE, J.]

road railway station after finishing his work in a hotel. There he   A
met with Dasin Bai, the Appellant herein. On the request of
Dasin Bai, he went to drop her to her house at Kotsagar Para,
Kota, and after dropping her there when he was returning,
Dasin Bai asked her to stay back at her house. The deceased
slept there by covering himself with a quilt. While he was asleep,   B
Dasin Bai poured Kerosene, kept in a Jerricane, on him. The
deceased woke up by the smell of Kerosene and at the same
time, Dasin Bai set him on fire with a match stick. He got burnt
and shouted for help. On hearing his shout, a neighbor, namely
Santosh Yadav and others ran towards the house of Dasin Bai.         c
       3. Santosh Yadav covered the body of the deceased with
a shawl while Dasin. Bai was standing there. Santosh Yadav
(PW 1) brought Raju Rajak out, while the smell of kerosene was
still emanating from the body of Raju. Raju disclosed that Dasin
                                                                     0
Bai poured kerosene on him and set him on fire. Raju was
taken to Primary health centre, Kota and then he was taken to
District hospital, Bilaspur for treatment where on 3.2.2000 he
died. In the hospital, dying declaration of Raju was recorded
by S.L. Soni (PW 12) in the presence of Radheyshyam (PW
3), Santosh and Basant Singh.                                        E

      4. The investigating officer seized burnt bedding, bed
sheet, plastic jerrican, one match box, one half-burnt match
stick, half burnt clothes of the deceased and one wrist watch
from the place of occurrence. Upon investigation, it was found       F
that Dasin Bai committed murder by setting the deceased on
fire. She was arrested, the charge-sheet was filed and the case
was committed to the Sessions for trial.

     5. The Prosecution examined 12 witnesses to establish the
charge against the accused. Statement of the accused was             G
recorded under section 313 of the Code of Criminal Procedure,
1973. The accused examined one witness, namely, Basant
Singh Thakur in her defence.

     6. The Sessions Court after hearing the counsel on both         H
         1064      SUPREME COURT REPORTS                 [2015] 1 S.C.R.


     A   the sides and after perusing the record, by its judgment dated
         September 29, 2001, convicted the appellant under Section
         302 of the Indian Penal Code and sentenced her to life
         imprisonment. Aggrieved by the said judgment of conviction and
         sentence, the appellant preferred an appeal before the High
     B   Court of Chhattisgarh at Bilaspur. The High Court upheld the
         judgment of conviction and sentence rendered by the Trial Court
         and dismissed the appeal filed by the appellant. Against the
         judgment and order passed by the High Court, the appellant
         has filed this appeal petition from jail.
     c         7. The learned counsel for the appellant contended that the
         dying declaration should not have been relied upon by the Trial
         Court and the High Court. It was his case that considering the
         extent of burns, sustained by the deceased, it was impossible
         on his part to give any dying declaration. The learned counsel
     0
         for the appellant further contended that the evidence provided
         by the prosecution was not free and independent since they
         were putting forward the version of interested witnesses.

             8. The learned counsel for the respondents on the other
     E   hand supported the impugned judgment of the High Court.

             9. We have heard the learned counsels for the parties. We
         see no reason to doubt the veracity of the dying declaration
         especially since there is consistency between them.
     F      10. This Court has observed in a number of cases, that
       there is no reason to doubt the veracity of the dying declaration
       especially, since there is consistency between them. In the case
       of Ravi & Anr. v State of T.N. (2004 (10) SCC 776), it has been
       held by this Court that if the truthfulness or otherwise of the dying
     G declaration cannot be doubted, the same alone can form the
       basis of conviction of an accused and the same does not
       require any corroboration, whatsoever in law.

             11. In Mafabhai Nagarbhai Raval v. State of Gujarat,
II   H   (1992) 4 sec 69 it has been held by this Court:
     DASIN BAI@ SHANTI BAI v. STATE OF                    1065
  CHHATTISGARH [PINAKI CHANDRA GHOSE, J.]

    "It must be noted that PW2 recorded the statement within A
    five minutes and noted time also in the statement. The
    High Court has rightly pointed out that both the dying
    declarations are true and voluntary. It is not the case of the
    defense that she gave a tutored version. The entire attack
    of the defense was on the mode of recording the dying B
    declarations and on the ground that the condition of the
    deceased was serious and she could not have made the
    statements. On these aspects as noted above, the
    evidence of the doctor is important and relevant. We have
    gone through the evidence of the doctor as well as that of c
    the Executive Magistrate. We find absolutely no infirmity
    worth mentioning to discard the evidence. It therefore
    emerges that both the dying declarations are recorded by
    independent witnesses and the same give a true version
    of the occurrence as stated by the deceased. The dying .D
    declarations are themselves sufficient to hold the appellant
    guilty. The High Court has rightly interfered in an appeal
    against acquittal. The appeal is accordingly dismissed."

     12. For the factual situation before us, we find that there
is consistency between the statements of Santosh Yadav             E
(PW1), and Radheyshyam (PW3). who were present when Raju
gave the oral dying declaration in the hospital, before he
succumbed to the injuries. There is consistency in their
statements, both stated that they reached the house of Dasin
Bai on hearing the voice "save-save".                              F

     13. Further, the appellant has alleged the dying
declarations to be impossible to give as the deceased was not
in a position to do so, as he had suffered burn injuries.
However, this Court has rightly taken the following view in a      G
situation as contended by the learned counsel for the
respondent in Pothakamuri Srinivasulu v. State of A.P. ,(2002)
6 SCC 399, where this Court observed:

    "The learned Counsel for the appellant submitted that for
                                                                   H
    1066     SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A       several reasons the dying declaration cannot be believed.
        She submitted that looking to the nature of injuries suffered
        by the deceased possibly she could not have spoken and
        must become unconscious instantaneously. However no
        such suggestion has been made to any of the witnesses
B       including the two doctors who respectively conducted the
        medico-legal examination of the victim. On the contrary the
        three eye-witnesses have positively stated that the
        deceased was speaking when they had met soon after the
        incident. the victim had died two days after the incident.
C       We cannot in the face of this positive evidence just
        assume that the injured must have become unconscious
        and speechless because of the injuries and discard on
        such assumption the dying declaration deposed to by the
        independent witnesses corroborated by the promptly
D       lodged FIR."

        14. Applying the ratio of the above mentioned cases to
  the present case, we find that the counsel for the appellant has
  argued on the same lines. Merely because the deceased
  suffered 70 per cent burns, this does not raise an assumption
E that he could not have given the oral dying declaration. We are
  of the opinion that the High Court was right in believing the oral ·
  dying declaration of the deceased as it did not suffer from any
  infirmity. Therefore, the contention of the respondent that the
  deceased could not give a dying declaration is devoid of merit.
F
       15. We are of the opinion that present case also involves
  appreciation of circumstantial evidence and application of
  Section 106 of the Evidence Act, .which unambiguously lays
  down the law with respect to any fact especially within the
G knowledge of a person. In State of Rajasthan v. Kashi Ram,
  (2006) 12 sec 254, it was observed by this Court in respect
  of Section 106, that when there is any fact especially within the
  knowledge of a person, the burden of proving that fact is upon
  him. This Court held as follows:
H       "The provisions of Section 106 of the Evidence Act itself
     DASIN BAI@ SHANTI BAI v. STATE OF    1067
  CHHATTISGARH [PINAKI CHANDRA GHOSE, J.]

    are unambiguous and categoric in laying down that when          A
    any fact is especially within the knowledge of a person, the
    burden of proving that fact is upon him. Thus, if a person
    is last seen with the deceased, he must offer an
    explanation as to how and when he parted company with
    the deceased. He must furnish an explanation which              B
    appears to the Court to be probable and satisfactory. If he
    does so he must be held to have discharged his burden.
    If he fails to offer an explanation on the basis of the facts
    within his special knowledge, he fails to discharge the
    burden cast upon him by Section 106 of the Evidence Act."       C

     16. Further, while dealing with issue of cases resting on
circumstantial evidence, where the presence of special
knowledge is with the accused, this Court has reiterated time
and again that "in a case resting on circumstantial evidence if
                                                                    0
the accused fails to offer a reasonable explanation in discharge
of the burden placed on him by Section 106, that itself provides
an additional link in the chain of circumstances proved against
him."

     17. The same observation has again been given in Babu          E
alias Balasubrtmaniam & Anr. v. State of Tamil Nadu, (2013)
8 sec 60, that "appellant-1 could have by virtue of his special
knowledge reg rding the said facts offered an explanation from
which a different inference could have been drawn. Since he
has not done so, this circumstance adds up to other                 F
circumstances which substantiate the prosecution case."

     18. The appellant/accused in her statement, recorded
under Section 313 of Criminal Procedure Code, has not given
any explanation as to how the deceased was burnt and she
even admits to be unaware of the name of the deceased. This         G
is highly improbable and cast doubt on the innocence of the
accused. She is unable to discharge the burden cast upon her
by Section 106 of the Evidence Act, as it was within her special
knowledge as to how the deceased came into the premises
of her house.                                                       H
    1068       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A       19. The ground of defense taken by the appellant, that she
  did not have any motive to kill the deceased, is ill founded and
  does not break the chain of circumstances. Therefore, when
  facts are clear it is not necessary to have proof of motive or ill-
  will to sustain conviction. (See Mulakh Raj & Ors. v. Staish
B Kumar & Ors., (1992) 3 SCC 43.

        20. Further, with regard to the aspect of the witnesses, PW-
    1 and PW-3, who recorded the dying declaration, were
    neighbours of the accused and hence the Trial Court correctly
c   held that they are not interested witnesses. The findings of the
    Trial Court also bring to light the fact that they had no animosity
    with the appellant, and were visiting her house only on the fateful
    night.

        21. The Trial Court and the High Court have rightly analysed
D the evidence of these witnesses and the statements made in
  the dying declaration referred to above and held the accused
  guilty. That being so, no interference is called for. This appeal
  fails and is dismissed. There shall be no order as to costs.

    Kalpana K. Tripathy                               Appeal dismissed.