,\ '^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha, J. Criminal Appeal No. 1606 of 1994 ,<..- Kalloo & Another Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT /^- For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 ^i_sy)-^— - • cl Sd/- Chief Justice Post for Judgment : JT/05/201 1 Sd/- Sunil Kumar Sinha Judge ^s"^ /^^ A^^K HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. l' <:. APPELLANTS Criminal Appeal No. 1606 of 1994 1 Kalloo, aged about 40 years, son of DayaramYadav 2 Manglu, aged about 25 years, son of Budhram Yadav Both residents of village Baheramuda, P.S. Kota, District Bilaspur, M.P. (Now Chhattisgarh) RESPONDENT Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedurel Appearance: Mrs. Renu Kochar, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (^'.05,2011) Following judgment of the Court was delivered by Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 30 of November, 1994 passed in Sessions Trial No. 103/94 by the Third Additional Judge to the Court of Sessions Judge, Bilaspur. By the impugned judgment, the appellants have been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. .fyc°% \."^/ '^^£y^—-r"^' Criminal Appeal No. 1606 of 1994 ^. ^ (2) The facts, briefly stated, are as under:- On 21.2.93, in the morning, Itwara Bai (PW-1 - wife of the deceased) was assaulted by wife & daughter of appellant- Kalloo on the pretext that deceased- Angad had tried to assault appellant- Kalloo in the market. Itwara Bai (PW-1) called her husband (deceased- Angad) and they decided to lodge a report to the police station. In the afternoon, Itwara Bai (PW-1), deceased- Angad and one Santosh started from their village to go to police station, Belgahana. Itwara Bai (PW-1) and Santosh went on a bicycle and Angad went on foot. In fact, Angad did not accompany them. When Itwara Bai (PW-1) and Santosh were waiting for Angad in Betgahana, Chunnilal (PW-11) came there and informed that Angad (deceased) was assaulted by appellant- Kalloo and another person and he is lying in village Bhathapara. Raju (PW-10) any how came there. Itwara Bai (PW-1) asked him to go and see her husband. Raju (PW-10) went to the place of occurrence and saw that Angad was lying in injured condition and was calling as "Kalloo-Kalloo". He informed all this to Itwara Bai (PW-1). The matter was reported to police-chowki Belgahana, where First tnformation Report (Ex.-P/1) was recorded. When they reached to the place of occurrence, they found that Angad was dead. He had sustained multiple injuries. On the next day i.e. on 22.2.93, the Investigation Officer gave notice (Ex.-P/18) to the Panchas and prepared inquest (Ex.-P/19) on the body of the deceased. The dead body of the deceased was sent for post-mortem to Primary Health Center, Belgahana vide memo Ex.-P/6. The post-mortem examination was conducted by Dr. Subhash Ghosalkar (PW-6). He found as many as 14 injuries on the body of the deceased. They were contusions, abrasions & lacerated wounds. The Autopsy Surgeon opined that the cause of death was shock & coma on account of s %f^^% ', ^..^/ Criminal Appeal No. 1606 of 1994 ^ -^- multiple injuries on skull and different parts of the body and it was homicidal in nature. The post-mortem report is Ex.-P/7. The prosecution came with 2 sets of evidence. First, eye-witnesses account of Sarwan (PW-2), Shivnandan and Ratanlal (PW-12); and second, oral dying declaration before Raju (PW-10). Shivnandan was not examined. Sarwan (PW-2) did not support the case of the prosecution. The Sessions Judge, thus relied on the testimonies of Ratanlal (PW-12) & Raju (PW-10) and convicted & sentenced the appellants as aforementioned. (3) Mrs. Renu Kochar, learned counsel appearing on behalf of the appetlants, argued that it was not established on the evidence of Ratanlal (PW-12) that he, in fact, saw the incident; he was not an eye-witness. About oral dying declaration, she argued that the evidence of Raju (PW-10) was not reliable and it was not established that the deceased made oral dying declaration before him. (4) Mr. JameelAkhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment & finding recorded by the Sessions Court. (5) We have heard learned counsel for the parties at lengthand have also perused the records of the sessions case. (6) Ratanlal (PW-12) deposed that on the fateful day, when he was present in his house, he heard commotion. His brother Shivnandanand Sarwan (PW-2) rushed towards that side. Since he % :.-^, 1 Criminal Appeal No. 1606 of 1994 '^. ^ was taking his meals, after sometime, he also followed them. On the way he met Shivnandan and Sarwan (PW-2). They were returning from the place of occurrence. They told that appellant- Manglu and another boy have assaulted deceased- Angad. He saw that Angad was lying on the ground. He further added that he saw Manglu and an other person dragged the deceased from the road and threw him on the road-side. He could not identify the other person. In Para-2 of his examination-in-chief, he further added that, in fact, he saw that Manglu and his friend were assaulting the deceased by lathi. fcd/^r Ratanlal (PW-12) was confronted/his case-diary statement (Ex.- D/3). There were many contradictions in his evidence. In the cross- examination, he admitted that he did not reach to the place of occurrence as he met Sarwan (PW-2) and Shivnandan on the way who told him that the deceased was assaulted by Manglu and another person. He further admitted that he had seen the incident from his house, but he could not identify the assailants and he came to know about the incident when he was informed by Sarwan (PW- 2) who was returning from the place of occurrence. In appreciation of entire evidence of this witness, it is clear that he never reached to the place of occurrence which was at some distance from his house; he saw the incident from his house; he could not identify the assailants; and in fact he was told by Sarwan (PW-2), on the way, that the deceased was assaulted by Manglu and one of his friends. Sarwan (PW-2) did not support the case of the prosecution. AA Criminal Appeal No. 1606 of 1994 Shivnandan has not been examined. Therefore, the evidence of Ratanlal (PW-12) would be "hearsay" on the basis of 2 other witnesses out of whom one was not examined and one did not support the case of the prosecution. We are of the view that the Sessions Judge erred in relying on the testimony of Ratanlal (PW- 12) treating him as an eye-witness. (7) Now we shall consider the evidence of oral dying declaration. (8) Raju (PW-10) deposed that when he reached to the place of occurrence he saw that the deceased was lying on the ground. He had received multiple injuries. After giving him water, when he asked as to who caused injuries, the deceased called "Kalloo- Kalloo". Thereafter he returned to the place where the wife of the deceased was present. He narrated the above facts to the wife of the deceased and accompanied her to police-chowki to lodge the report where the F.1. R. (Ex.-P/1) was lodged by her. It appears that after the incident, he along with Chunnilal (PW-11) and other family members of the deceased had gone to the house of one Lalla Maharaj and Chunnilal had narrated the story to Lalla Maharaj. Chunnilal (PW-11) did not take the names of the accused persons. The above statement of Raju (PW-10) was recorded by the police vide Ex.-D/2. Raju (PW-10) denied the above statement and stated that Chunnilal (PW-11) had not told Lalla Maharaj that Angad (deceased) was assaultedby Raouts (people of particular caste) and if such statement (A to A) has been recorded by the police, it is Criminal Appeal No. 1606 of 1994 wrong and he cannot tell the reason for that. Chunnilal (PW-11) is son of the deceased. He admitted that Raju (PW-10) told him that his father stated to him that he was assaulted by appellaht- Kalloo. Thereafter he went to Lalta Maharaj, and his mother- Itwara Bai (PW-1) and Raju (PW-10) went to lodge the report. He further admitted that he had gone to Lalla Maharaj and told him that somebody had assaulted his father. If Chunnilal (PW-11) was knowing that his father was assaulted by Kalloo, he should have disclosed his name before Lalla Maharaj which he did not do. This also supports the statement madeby Raju (PW-10) before the police. (9) F.1.R. (Ex.-P/l) was lodged by Itwara Bai (PW-1) after due discussion with Chunnilal (PW-11) and Raju (PW-10). In the F.I.R. she mentioned that Raju (PW-10) told her that her husband was not in a position to be brought on the bicycle and he was calling "Kalloo- Kalloo". This shows that it was not the case of the prosecution that when Raju (PW-10) asked to the deceased as to who assaulted him, then only the deceased took the name of Kalloo. It appears from the contents of the F.1.R. (Ex.-P/1) that the deceased was simply taking the name of Kalloo, but it does not appear that he was taking his name in reference to the assault given to him by Kalloo. (10) Dr. Subhash Ghosalkar (PW-6) had found 14 injuries on the body of the deceased. There was a fracture on his left parietal bone. ^t^The fractured bone had caused injury to left parietal lobe due to /{^. Criminal Appeal No. 1606 of 1994 which haemorrhage took place and a blood clot was formed which caused coma and death of the deceased. Looking to the multiple serious injuries sustained by the deceased as also the fracture and position of fractured parietal bone, we doubt that the deceased was in a position to make a dying declaration. In Bhaawan Das and another -Vs- State of Raiasthan, A.I.R. 1957 S.C. 589, the prosecution alleged that the deceased who had been severely hit several times by the accused fell down unconscious. The eye witness who was grazing his camels in a nearby field went to him and sprinkled some water on him. Thereon the deceased recovered consciousness and then was led to a threshing floor at a short distance where he made a statement to J regarding the assault. From there he was taken to a neighbouring town to the shop of G where he again made a statement to G. The prosecution relied on the evidence of the eyewitness and also the dying declaration proved by G and J for the conviction of the accused for murder. From the doctor's evidence it was found that it was improbable that the deceased would have been in a position either to walk or speak so as to make a dying declaration. Apart from the fact that the statements of G and J suffered from material contradictions at various stages the evidence of the eye witness was also found to deserve being disregarded. The Supreme Court held that in these circumstances the evidence of G and J could not be a sure foundation for maintaining the conviction when the evidence of the / (^ Criminal Appeal No. 1606 of 1994 sole eye witness was disregarded. Ordinarily the dying declaration of the kind which the prosecution relied upon in the case was by itself insufficient for sustaining a conviction on a charge of murder. (11) In the present case as we have held, the evidence of sole eye- witness was not reliable. After going through the post-mortem report (Ex.-P/7) and the evidence of Doctor, we are of the view that the deceased was not in a position to make oral dying declaration before Raju (PW-10). The oral dying declaration, allegedly made by the deceased in the manner as stated by Raju (PW-10) is also not corroborated by the contents of the F.1.R. (Ex.-P/1). Therefore, the Sessions Judge erred in law in relying on the oral dying declaration allegedly made by the deceased before Raju (PW-10). (12) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants u/s 302 IPC are set-aside. The appellants are acquitted of the charges framed against them. It js stated that appellant- Manglu was arrested on 23.2.93 and was directed to be released on bail on 11.10.95. Appellant- Kalloo was also arrested on 23.2.93 and was directed to be released on bail on 10.10.2001. Presently theyare on bail. Their bail bonds are cancelled and sureties stand discharged. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti