1 2025:CGHC:14059-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 219 of 2019 1 - Peeluram Kashyap S/o Manganram Kashyap Aged About 30 Years R/o Village Taraibeda, Durkadongri, Police Station Makdi, District Kondagaon Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarth Through The Station House Officer, Police Station Makdi, District Kondagaon Chhattisgarh ... Respondent(s) For Appellant (s) : Shri Vijay Kumar Sahu, Advocate For Respondent(s) : Ms. M. Asha, Panel Lawyer DB : Hon’ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board Per Sachin Singh Rajput, J. 24/03/2025 The appellant has filed this appeal under Section 374 (2) of CrPC assailing legality, correctness and judicial propriety of the judgment dated 07/01/2019 passed in Sessions Trial No.62/2017 by the learned Sessions Judge, Kondagaon (CG) (for short ‘trial Court’). By the impugned judgment, the appellant has been convicted for the offences punishable under Section 302 of Indian Penal Code, 2 1908 (for short ‘IPC’) and sentenced to undergo life imprisonment and fine of Rs.100/- and in default of payment of fine, 3 months additional R.I. was imposed. 2. Prosecution case in nutshell is that the appellant and the deceased-Sonsingh are brothers. On 14/03/2027 at noon, the appellant and his brother Sonsingh had gone to village-Kanera to sell Mahua and came back to home at 5 PM and consumed Salphi (local liquor). On the same date at about 9 PM, the appellant and Sonsingh were sitting in the courtyard of their house and they were served food by Somari Kashyap (PW6) wife of Sonsingh. At that time, a quarrel started between them on account of sale of Mahua, upon which, the appellant brought kerosene kept inside the house and poured upon him and set him on fire with the help of match stick. Sonsingh cried for help. At that time, Somari Kashyap (PW6), Magan Kashyap (PW2) and Smt. Kamli Bai (PW9) came. At that time, the deceased was running towards kitchen garden (baadi) in burning condition. They extinguished fire by pouring water on the body of Sonsingh. At that time, after hearing noise, Gudduram (PW4) and Dama Kashyap (PW5) reached the spot who saw Sonsingh in burned condition. Other people were also called who also saw Sonsingh in burned condition. Immediately, Sonsingh was taken to Bhanpuri Hospital and thereafter, he was taken to Maharani Hospital, Jagdalpur where his dying declaration was recorded by the Executive Magistrate. 3. Written report (Ex.P/1) was lodged by Jagturam (PW1) in Police Station – Maakdi, upon which, Inspector B.R.Mandavi (PW10) registered FIR under Crime No.13/17 under Section 307 of IPC on 16/03/2017. Spot map was prepared. Jerrycan, lungi, underwear were seized from the spot and a scarf was seized from the appellant. Sonsingh died at about 3:30 AM on 30/03/2017 during treatment at Maharani Hospital, Jagdalpur. Then on the information of Magan Kashyap (PW2), 3 merg intimation was registered. Post mortem of the dead body was conducted. Statement of the witnesses were recorded. Hair of the deceased Sonsingh, gaajpis etc. were seized and the seized articles were sent to Forensic Science Laboratory for chemical examination. After completion of investigation, charge sheet under Section 302 IPC was filed before the concerned Magistrate. 4. The Chief Judicial Magistrate, Kondagaon committed the matter to the Sessions Court. The appellant was charged for the offence under Section 302 of IPC who denied the charge and claimed to be tried. The prosecution, in order to prove its case examined as many as 13 witnesses and exhibited 21 documents. By the judgment impugned, the appellant was convicted and sentenced as stated earlier. Challenging the same, this appeal has been filed. 5. Learned counsel for the appellant vehemently argued that the learned trial Court committed an error of law in convicting and sentencing the appellant. Learned trial Court has not appreciated the evidence brought before it in its proper perspective and erroneously convicted the appellant. He submits that the dying declaration (Ex.P/11) cannot be relied upon to sustain conviction of the appellant. He submits that the eye witnesses and other witnesses are interested witnesses and therefore, their statement cannot be relied upon. He submits that it has not been established on record by cogent and prudent evidence that the dying declaration was trustworthy and truthful, therefore, the conviction of the appellant deserves to be set aside. 6. Per contra, learned State counsel opposes the above submission and submits that after the incident, the appellant was seen burning by Gudduram (PW4) and Dama Kashyap (PW5) and they have categorically deposed that Sonsingh was shouting that he was set on fire by the appellant. Apart from this, he submits that 4 the cause of death is reported to be shock and Septicaemia due to 75% burn injuries. The dying declaration was recorded by Executive Magistrate and the doctor has given certificate that he was in a conscious position to give dying declaration. She further submits that the dying declaration (Ex.P/11) inspires confidence and conviction can be sustained solely relying upon the dying declaration. Therefore, the appeal does not have any merit and is therefore, liable to be dismissed. 7. We have heard learned counsel for the parties and perused the records. 8. Homicidal death of the appellant is not in dispute, however, from the statement of the doctor Kiran Patil (PW12) and other evidence collected by the prosecution, it is established that the deceased died due to shock and Septicaemia because of 75% burn injuries and the finding recorded by the learned trial Court is based upon proper appreciation of evidence and is hereby affirmed. 9. Next question which comes for determination is as to whether the appellant was the author of the crime. The case of the prosecution is that the appellant and the deceased were sitting in the courtyard of the house and they were served with food. At that time, a quarrel on account of sale of Mahua started between them. At that time, the appellant poured kerosene over the deceased which was kept inside the house in a jerrycan and set him on fire. Magan Kashyap (PW2) father of the deceased has deposed that the appellant is the elder son and deceased was his second son out of three. He has further deposed that he was sitting in the verandah of his house alongwith his wife Kamli Bai (PW9) and the appellant and the deceased were taking meal in the courtyard of the house. At that time, the deceased Sonsingh 5 came out burning towards the courtyard followed by Somari Bai (PW6) shouting to save. At that time, the appellant ran away from the house. The deceased Sonsingh reached towards the haystack (pairavat) and as a result, it also burnt. The fire was extinguished by pouring water upon Sonsingh and he was conscious. On being asked, he stated that the appellant set him on fire and ran away. 10. Somari Bai (PW6) wife of the deceased categorically deposed that at about 8 PM, his husband (the deceased) and the appellant were taking meals outside the house in the courtyard and he was inside the house. His father-in-law and mother- in-law were sitting in the verandah. At that time, the appellant brought the kerosene from inside the house and poured upon Sonsingh and set him on fire with the help of match stick. At that time, he was coming out of the house. She saw the appellant setting the deceased on fire. She also stated that after being burned, Sonsingh (the deceased) went towards the verandah and the appellant (Peeluram) ran away. Kamli Bai (PW9) is the mother of the appellant and the deceased Sonsingh. She also deposed in the line of Magan Kashyap (PW2) that the appellant set the deceased on fire. Despite of cross-examination, on material particulars, this witness remained firm. 11. Their evidence clearly show that the appellant set the deceased on fire. Apart from this, the dying declaration (Ex.P/11) was also recorded by R.P.Baghel (PW8). He deposed that the appellant set the deceased on fire by pouring kerosene on him and ran away. He also stated that the incident was witnessed by his wife Somari Bai (PW6). This witness also stated that the injured was fully conscious throughout. He further stated that an opinion was also sought from the doctor as to whether the injured was in a position to give statement and thereafter only the dying declaration was recorded and the doctor was also present. Though in the 6 cross-examination, learned counsel for the appellant tried to discard the statement of R.P.Baghel (PW8) but this witness remained firm with regard to the dying declaration. It is settled position of law that conviction can be sustained solely on the basis of dying declaration of the deceased if it inspires confidence. [Please see judgment of Hon’ble Supreme Court in the case of Naeem v. State of Uttar Pradesh (Criminal Appeal No.1979/2022)] 2024 INSC 169. 12. Here in this case, apart from the dying declaration, Somari Bai (PW6) has categorically deposed that Sonsingh (the deceased) was set on fire by the appellant by pouring kerosene on him with the help of match stick. Magan Kashyap (PW2) and Kamli Bai (PW9) also corroborate the statement of Somari Bai that when the deceased came out of the house in verandah and fire was extinguished by pouring water, on being asked, he told that he was set on fire by the appellant. 13. In the light of categorical evidence available on record, the submissions made by learned counsel for the appellant that the dying declaration cannot be relied upon and statement of the eye witnesses and other witnesses is not credible, cannot be accepted. 14. Therefore, in the considered opinion of this Court, the appeal has no merits. It is liable to be dismissed and is hereby dismissed. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput}) JUDGE JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.03.26 14:31:25 +0530