J-‘ HIGH COURT OF CHHAI HSGARH : BiLASPu‘R GKiWIiNAL APPEAL N0. 303 CF 139$ ‘ v bniKam VS. The State of Madhya Pradesh z ‘ (New Chhattisgarh) u JUDGMENT WW7! HIGH COURT OF CHHATTI$GARH : BILASPUR CRil‘viiN ‘ L APPEAL NG. 303 OF 1§§9 Bhikam V‘s. The State of Madhya Pradesh (New Chhattisgarh) HON’BLE §HRI FAKHRUIT)biN & HGN‘BLE $HRI DHIRENDRA Mi$HRA, JJ £4: Present: Shfi SK Dadsena, counsei for the appeiiant. Shri MRS. Bhatia, Panei Lawyer for the State. A “ JUDGMENT Per Ehirendra fv‘lishra, J The appeiiant has preferred this appeai under 3ection 374(2) of the « Code of Criminai Procedure against the impugned judgment dated 29-1—1999 passed by iearned Additionai Sessions Judge, Kanker, in Sessions Triai No.444/‘94' by which iearned Additionai Sessions Judge after hoiding the appeiiant guii‘ty for causing homicidai death of deceased Laxmi Narayan @ Dhuimui has convicted the appeiiant under Section 302 ‘f\.v of the indian Penai Code and sentenced to undergo imprisonment for life. \ '2‘ Case of the prosecution in brief is that the appeiiant had gone to the house of a lady nameiy Laxmi of the viiiage at about i200 in the night on the date of incident i.e. 2-6-1 994. Deceased and his friends suspected that the appeiiant had iiiicit retationship with Laxmi and therefore they ail with intention to catch the appellant went there and in the meanwhile the appeiiant deait several knife blows on Laxmi Narayan. Somehow deceased struggied to reach up to varandha of Shankar Himani. // /‘J “w ax '3. Ramesh (PW-1‘) saw the incident and in fact he dissuaded the ‘ appeiiént. At that time Raghuveer (PW-‘3) reached'there and the deceased made an orai dying deciaration before him that he was assauited by the appeiiant and thereafter he died. Rikeshwar (PW-2) i iodgedithe report on 3-6—1994 intimating Bhikam Yadav responsibie for the death of Laxmi Narayan vide EXP/’8‘ After pen‘orming inquest on the personi of the deceased (EXP/'11) the body was sent for autopsy to I " ‘ Primary Health Centre, Charama where Dr. RC. Agrawai (PW-4) condueted post mortem and submitted his report of Ex.Pi8. A A: t 4. After investigation charge sheet was fiied and charge under Section E 302 of the indian Penai Code was framed against the appeiiant, who abjured the guiit. y, 5. The prosecution in order to estabiish the charge against the appeiiant has examined 6 witnesses in aii. Thereafter statement of the accused was recorded under section 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him in the prosecution case and pieaded innocence and faise impiication. Learned triai Court after hearing the Pubiic Prosecutor and the counsei for the appeiiant heid the appeiiant guiity and convicted & sentenced him as mentioned above. \ i 6. Dr. RC. Agrawai (PW-4‘) has ted post mortem and submitted his report of EXP/'8. in the report the Doctor has found 1‘4 i") incised injuries over the person of the deceased which have been described in para 8 of the impugned judgment. it is further opined that the f/,c / w cause of death was excessive bieeding due to the above injuries and the same Was homicidai in nature. Thus from the evidence of Dr. RC. Agrawai (PW-4) and his repon‘, the homicidal death of the deceased Laxmi Narayan is estabiished. 7. Rikeshwar (PW-2) son of the viiiage Kotwar has iodged the report of EXP/’8 & merg intimation of EXP/9 and has proved the above documents. He has stated before the Court that he does not know as to ‘ . how Laxmi Narayan died. 0n the date of incident at about 12.00 and 1.00 in the night Narayan Sahu and Kewai Sinha came to him and they A informed that the murder has taken piaoe near the house of shanKar whereupon he reached there and found Laxmi Narayan was crying for water. He brought water from near by a house and in the meanwhiie Raghubeer reached there and thereafter he went to caii the rather or Laxmi Narayan as per the advice of Raghubeer. At that time the father of the deceased came and Laxmi Narayan handed over the watcn to ms- father and thereafter he died. 8. Ramesh (PW-1‘) is the soie witness according to the case of the prosecution, however, he has not supported the prosecution case and he has been deciared hostiie. This witness has stated in examination—ih-chief that on the date of incident he was steeping in his house and there he heard noise that murder has taken piace whereupon he woke up and went near the house of Bahhu and saw that Dhuimui@Laxmi Narayan had faiieh on the iane and he had died. He has aiso stated that there was a <9 iarge crowd of the viiiagers gathered and viiiagers were shouting that the accused Bhikam has kitted Laxmi Narayan, however, he did not Ti find Bhikam near by nor he had seen Bhikam assauiting the deceased. He was confronted with his diary statement of EXP/'8 by the ieamed Pubiic Prosecutor, after deciaring him hostiie. However, he stuck to his statement m tne examination-in-chief. 9. Raghubeer Ram (PW—3) is a witness of orai dying deciaration. He has stated that he recognized the accused, Laxmi Narayan has died. Laxmi Narayan died two years back. Laxmi Narayan was tying dead near u f the house of Shankar. He aiso stated that he went there after hearing notse. When he reached, the deceased was crying for water whereupon A he offered him water... At that time deceased said that Bhikam has assauited him by knife and he wouid not survive. in the meanwhiie father ot the deceased came there whereupon he handed over the deceased to his father and gone away. in the cross-examination the witness stated that at that time 8-10 persons were aiso present and they did not disciose about the marpeet. He aiso did not notice any injuries on the person of- x the deceased. Deceased was crying for water and he was not in a position to taik property. He has denied the suggestion that after drinking water there was no conversation between him and the deceased or the deceased did not inform that Bhikam assauited him with knife. He has further stated that other 8-10 persons referred above were standing at a distance and nobody dared to come near the deceased. He has admitted that he did not see the accused assauiting the deceased with knife. He was again called ror cross-examination on 7-11-1Q98; however, the defence couid not eiicit anything in the cross-examination of this witness which makes the statement of this witness unreiiabie or untrustworthy. \x. ¢ i ? 10. Learned counsel appearing for the appeiiant sCIbmits that there is no eyeWitness i0 the incident and orai dying declaration is; the weak type ’of evidence and Couit beiow ought not to have acted upon the statement ‘ of Raghubeer (PW-'3) and ought to have extended the benent of doubt to the appeiiant as the statement of this witness is not corroborated by any other evidence. Learned counsei submits that the case of the prosecution is based on eyewitness account, however, the aiieged eyewitness Ramesh‘CPW-t‘) has not supported the prosecution case and in tne aforesaid circumstances the impugned judgment suffers from iiiegaiity and the same is‘based on improper appreciation of evidence. u 1‘1‘. On the other hand, ‘iearned counsei for the State supported the impugned judgment. 1‘2. We have perused the record as aiso the impugned judgment. We have aiready recorded the main features of the evidence on the basis of which the conviction is based.‘ The Court beiow basicaiiy reiying upon the statement of Raghubeer (PW-3) has heid the appeiiant responsibie for the . crime in question. We have aiready heid above that the defence has not ex: been abie to eiicit anything which discredits the statement of Raghubeer (PW-3). Further more the statement of Raghubeer (PW-'3) is corroborated in materiai particuiars by the statement of Rikeshwar (PW-‘2) who has iodged the report of the incident and in which he has mentioned that the deceased made a orai dying deciaration that the accused assauited him with knife. Rikeshwar (PW-2) has stated that when he reached near the ’1; spot he saw that Laxmi Narayan was crying for water and at that time Raghuveer came there and as per advice of Raghuveer he‘went to caii the i 6 father of Laxmi Narayan. Thus the presence of Raghuveer when the deceasejd was crying for water was estabiished. The knife injun'es have been found by Dr. RC. Agrawai (PW-4) in his post mortem report, which corroborates the oral dying deciaration of the deceased. Therefore, considering the statement of Raghubeer (PW-'3), we are of considered opinion that the statement of this witness is such on which impiicit reiiance can be piaced and the Court beiow has not committed any iiiegaiity or materiai integuiarity in convicting the appeilant on the basis of statement of t Raghubeer (PW-‘3). £ 1'3. in the result, the.appeai faiis being devoid of substance and is ‘ r (r Jggoigmmmlsmtsseb Sdl— Fakhruddin i Sd/- DHIRENDRA MISI’mA] Judge i Judge ‘"30Y8¥2?JO6W 30-3-2006