"':9 ^•^ ^' "^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma, J.J. Criminal Appeal No. 127of 1996 Lakheshwar @ Lakhneshwar Kahra Vs. State of M.P. (Now State of C.G.) JUDGMENT For^considjgration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RADHE SHYAM SHARMA ^ ^^^-<_ Sd/- R.S. Sharma Judge Post for Judgment : ^ /09/2011 Sd/- Sunil Kumar Sinha Judge \ dp HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE Mr. JUSTICE SUNIL KUMAR SINHA & HON'BLE Mr. JUSTICE RADHE SHYAM SHARMA CRIMINAL APPEAL N0.127/1996 APPELLANT Lakheshwar @ Lakhneshwar Kahra, S/o Bisahu, aged 21 years, R/o Bhatapara, Janjgir, District Bilaspur (M.P.) (Now C.G.) RESPONDENT Versus State of M.P. (Now State of C.G.) CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIM1NAL PRQCEDURE Appearance : Mr. Atul Pandey, Counsel for the appellant. Mr. Ashish Shukla, Government Advocate for the State. JUDGMENT (0&.09.2011) The following judgment of the Court was passed Sunil Kumar Sinha. J. by (1) This appeal is directed against the judgment dated 20th of November 1995 passed in S.T. No. 134/1994 by the Additional Session Judge, Sakti Camp, Janjgir. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life. .-<^^-^7S^ •^ 1.' 1J Criminal Appeal No. 127 of 1996 (2) The facts, briefly stated, are as under: Deceased- Balgovind was the uncle of the appellant. The allegations are that on 08.03.1994, at about 8:00 a.m., the appellant assaulted the deceased by a spear. After the assault, the appellant himself went to the Police Station and lodged the First Information Report (Ex.P/19). The appellant also took spear to the Police Station, which was handed over to the Police authorities. The FIR was registered under Section 307 IPC, because, the deceasedwas alive at that time. The deceased was also brought to the Police Station and was sent for medical examination. His medical examination was conducted by Dr. Shankar Lal Paliwal (PW-5), who noticed as many as 14 incised wounds on the person of the deceased. He advised for X-Ray examination of chest and abdomen. The injury report of the deceased is Ex.P/5. The deceased was admitted in the hospital. hle died in the hospital on the same day. Information was sent to the concerned Police Station. The Investigating Officer reached to the hospital, gave notice (Ex.P/24) to the Panchas and prepared inquest (Ex.P/25) on the dead body of the deceased. The dead body of the deceased was sent for postmortem. The postmortem examination was conducted by Dr.U.S. Gupta (PW-4). He noticed following injuries on the body of the deceased: (i) incised wound 3 x 1 cm, just above the umbilicus , it has damaged liver also: (ii) incised wound 3 x1 cm above injury No.1, it has pierced inside peritoneal cavity; (iii) incised wound 3 x 1.5 cm, deep into peritoneal cavity; (iv) incised wound 3 x 1 cm, muscle deep on the right forearm; (v) incised wound 3x1.5cm, muscle deep on the right shoulder; (vi) incised wound 2 x 1 cm, muscle deep on the front portion of right shoulder; L Criminal Appeal No. 127 of 1996 (vii) incised wound 2 x 1 cm, muscle deep on the right collar bone; (viii) incised wound 1 x 0.5 cm, muscle deep on the right collar bone; (ix) incised wound 3x1 x6 cm on the right portion of the neck, veins and arteries were cut; (x) incised wound 5x2 x4 cm on the back portion of the neck; (xi) incised wound 3 x2 x4.5 cm on the back portion of the neck (above injury No.10); (xii) incised wound 3x1 x6 cm on the left scapular region; (xiii) incised wound on 3 x 1 x 5 cm on the right back portion of the chest; (xiv) incised wound 4x 1 x5 cm near injury No.13; All the injuries were caused by sharp and pointed weapon. Injuries No.4 to 8 were simple and injuries No.1 to 3 and 9 to 14 were grievous and sufficient to cause death. On internal examination, it was found that there was laceration of2x1 x 1 cm over larynx. Incised wound of6 x4 x3 cm was al-so present over the liver. The Autopsy Surgeon opined that the cause of death was haemorrhage and shock on account of above multiple injuries and it was homicidal in nature. The postmortem report is Ex.P/4. When the deceased was alive, his dying declaration (EX.P/11)was recorded by the Executive Magistrate Dwarikesh Pandey (PW-8). In the dying declaration, the deceased stated that he was assaultedby the appellant with a spear. The seized articles including the spear were sent for their chemical examination to Forensic Science Laboratory vide memo Ex.P/32, but the FSL report could not be filed. There were three sets of evidence against the appellant. First eye-witness account ofAshok Kumar (PW-1), Janmati (PW-2) and Basawan (PW-3); Seco/pcforal dying declaration before Ramkumar Katakwar (PW-14); and third written dying declaration (Ex.P/11) Criminal Appeal No. 127 of 1996 recorded by Dwarikesh Pandey (PW-8), Executive Magistrate. All the three eyewitnesses turned hostile and they did not support the case of the prosecution. However, RamkumarKatakwar (PW-14) stated about the oral dying declaration and Dwarikesh Pandey (PW-8),Executive Magistrate proved the written dying declaration (Ex.P/11).On the above sets of evidence, the appellant was convicted. (3) Mr. Atul Pandey, learned counsel appearing on behalf of the appellant, argued that the contents of the confessional F.1.R. lodged by the appellant would not be read against him. He also argued that the evidence of oral dying declaration and written dying declaration are shaky and theeyewitnesses have turned hostile, therefore, the conviction ofthe appellant cannot be sustained. (4) On the other hand, Mr. Ashish Shukla, learned Government Advocate appearingon behalf of the State, opposed these arguments and supported thejudgment passed bythe Session Court. (5) We have head learned counsel for the parties at length and have also perused the records of the Sessions Case. (6) So far as the argument regarding confessional First Information Report is concerned, the Apex Court held in the matter of Aahnoo NasiesiaVs. State ofBihar. AIR 1966 SC 119 that "The first information report recorded under S. 154, Criminal P.C. as such is not substantive evidence, but may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 145 of the Act, if the informant is called as a witness. Where the accused himselfgives thefirst information, the fact of his giving the information is admissible against him '"^. ^l1 :%^..:^'y. ^3' Criminal Appeal No. 127 of 1996 as evidence of his conduct under S. 8 of the Evidence Act. If the information is non-confessional, it is admissible against the accused as an admission under S.21 of the Evidence Act and is relevant. But a confessional first information report by the accused to a police officer cannot be used against him in view of S. 25 of the Evidence Act". The Apex Court also relied on the decisions rendered in the matter of Faddi - vs- State ofMadhva Pradesh. AIR 1964 SC 1850: Nisar Ali-vs-State of U.P.. AIR 1957 SC 366 & Dal Sinah -vs-Kina Emperor. AIR 1917 PC25. (7) Therefore, the confessional first information report cannot be read against the appellant. However, the First Information Report lodged by him would be admissible against him as the evidence of his conduct and the evidence of the fact that a spear was seized from the possession of the appellant, which he himself produced in the Police Station. (8) Dwarkesh Pandey (PW-8) deposed that after receiving the information vide memo Ex.P/2 , he went to thehospital and contacted the concerned Doctor for recording dying declaration of the deceased. He deposed that he recorded the dying declaration (Ex.P/11), in which, the deceased stated that he was assaulted by the appellant with spear. The dying declaration (Ex.P/11) contains the certificate of Dr. Shankar Lal Paliwar (PW-5), who certified that the deceased was in a position to give dying declaration. The above certificate was signed by him at 9:35 a.m. on 08.03.1994, when the dying declaration was recorded by the Executive Magistrate. The Executive Magistrate has clearly denied the suggestion of the defence that the deceased was in semi-conscious condition. He also denied that the deceased was not speaking properly. 0 Criminal Appeal No. 127 of 1996 On appreciation, we find that there is no infirmity in the dying declaration recorded by the Executive Magistrate. The deceased in clear words stated that he was assaulted by the appellant with spear, which the Executive Magistrate has reduced into writing. The deceased had taken the name of the appellant also. Therefore, the reliance placed on the above dying declaration was fullyjustified. (9) Ramkumar Katakwar (PW-14) is son of the deceased. He deposed that on the fateful day, when he was going to work in a brick-kiln along with Shiv Kumar, one rickshaw puller came to him and asked "who is son of Balgovind (deceased)?", on this, he replied about him. Rickshaw puller told him that appellant Lakhneshwar has assaulted his father. He immediately accompanied the rickshaw puller, who was on a bicycle, and reached to the place of occurrence and saw that the crowd had surrounded his father (deceased), who was in injured condition. He saw many injuries on the person of his father. Huge quantity of blood was oozing out from the injuries. He was in pool of blood. His father was in conscious condition. He asked his father as to what happened to him, on this, his father replied that Lakhneshwar has assaulted him. Thereafter, he went to call a rickshaw and took his father to the Police Station on the rickshaw. Ramkumar Katakwar (PW-14) has been cross-examined by the defence, but the defence has not been able to elicit any such circumstance, on which, either his testimony may be disca.rded or it may be said that he was falsely implicating the appellant in the present case. His evidence relating to the oral dying declaration of the deceased is intact. On appreciation, we find that there is no infirmity in his evidence and the learned Session Judge has rightly relied on his evidence also. ^- shyna Crimmal Appeal No. 127 of 1996 (10) For the foregoing reasons, we find no substance in this appeal. (11) The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge '"^ k