é‘ ,‘ fijv @ ML; HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA 85 HON’BLE MR. R.L. JHANWAR, JJ. CRIMINAL APPEAL NO. 102 1/ 2003 CRIMINAL APPEAL UNDER SECTION 374(g} Cr.P.C. Presentz— Shri VP. Gupta, Advocate for the appellant. Shri Rakesh Jha7 Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 22/03/20 10) The following iudgment of the Court was passed bV T.P. Sharma, J:— 1. Challenge in this appeal is to the judgment of c‘onviction and order of sentence dated 7/8/03 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 491/2002 whereby and where under after l holding the appellant guilty for the commission of culpable homicide amounting to murder of his brother deceased Melaram alias Manish Gond convicted the APPELLANT Chandu alias Chandrahas (IN JAIL Dhruw, son of Mohit Ram Dhruw, CUSTODY) aged about 22 years, resident oii Village— Chhotapara Sorum, RS.— Dhamtari, Distt.— Dhamtari (Chhattisgarh) Versus RESPONDENT State of Chhattisgarh, through P.S.— Dhamtari, Distt.— Dhamtari (Chhattisgarh) w&91 ' ,. @ appellant under Section 302 of the Indian P€nal Code and sentenced imprisonment for' life and fine of Rs. 500/~ in default of payment 0f fine amount additional rigorous imprisonment for 6 months. 2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. 3. Brief case of the prosecution is that on fateful night of 16/9/02 at about 0.30 A.M. (at night) appellant Chandu alias Chandrahas, brother of Melaram assaulted his brother Melaram by Sickle over his neck and caused fatal injury. After hearing the incident, PWS Itvvari Nishad went to the house of Melaram, he was agonizing and made dying declaration to him that his brother i.e. Chandu alias Chandrahas has assaulted him. They took injured to the hospital where doctor declared him dead then PWI Chhabilal lodged First Information Report vide Ex. P—22 and Marg was recorded vide Ex. P—l. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P—5, inquest over the dead body of the deceased Melaram was prepared vide Ex. P—6. Dead body was sent for autopsy to District Hospital, Dhamtari vide EX. P—17A. Autopsy was conducted by PW15 Dr. Y.K. Singh yr g?m ‘ Vide EX.P~17 and found following injuriesz— (i) Spindle shaped 3 X 2 x 5 c.m. (ante—mortem) over right side of the neck. (ii) Common cardiac cut along With the adjacent muscles. Cause of death was syncope as a result of hemorrhage and death was homicidal in nature. 4i Blood stained and plain soil were recovered from the spot Vide Exs. P-2 81, P—3. One aluminum part recovered K, from the spot Vide EX. P—4. Appellant was taken into custody, he made disclosure statement of Sickle Vide EX. P—7 and same was recovered at instance of the appellant Vide Ex. 13—8. Blood stained cloths of the appellant/accused were seized from the appellant Vide Ex. P—9. Patwari prepared spot map Vide EX. P—14. Investigating officer also prepared spot map Vide EX. P— 23. Sealed cloths of the deceased were seized Vide Ex. P—24. Sickle was examined by PW15 Dr. Y.K. Singh Vide EX. P—l8. Sealed articles were sent for chemical e§amination Vide EX. P—25, presence of blood was confirmed over Sickle and cloths seized from the accused Vide EX. 13—26. 5i Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed“ before the Chief Judicial Magistrate, Dhamtari who in. turn committed the case to the Court of Sessions, Dhamtari. Learned Second Additional Sessions Judge, Dhamtari received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many aS’17 Witnesses and defence Witness DWI Shankarlal who ha‘s deposed that on the date of incident at about 12 at night deceased was‘under intoxication. He went towards his house, he 'Was found lying in the land and injury was found over his neck. At that time, he became unconscious. In his cross—examination, he has admitted that after hearing the sound of help he rushed towards the house of Melaram where he saw injury over neck of Melaram. Accused/appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. A‘fter affording an opportunity of hearing to the parties learned Additional Sessions Judge, Dhamtari has convicted and sentenced the appellant as aforementioned. Learned counsel for the appellant Shri V.Pi Gupta and learned Counsel for the State/respondent Shri Rakesh $ Jha, Dy. G.A. are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that case is substantially based on the dying declaration made by the deceased Melaram to PWS Itwari Nishad Whose evidence does not inspire onfidence and is not safe to rely. His evidence is full of contradiction and omiSsion, his conduct is not natural. This witness aged about 7O years and even his memory was not natural. 10. On the other hand, learned counsel for the respondent/State opposed the appeal andsubmits that conviction is based on evidence of PWS Itwari Nishad whom deceased is made dying declaration which inspire confidence. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. I In the present case, hOmicidal death as a result of ante— ‘ . mortem fatal injury of deceased Melaram has not been substantially disputed by the appellant, on the other hand, also established bythe evidence of PW15 Dr.‘Y.K. Singh and autopsy report vide EX. P—17 which reveals that fatal injury was found over the neck of thee deceased and death was hpmicidal in nature. DWI h’‘ ' a. i5: c Shankarlal has also admitted homicidal death of the deceased. As regard the complicity of the appellant in crime in question is concerned, conviction is substantially based on the evidence of PWS Itwari Nishad whom deceased has made dying declaration. PWS Itwari Nishad has deposed in his evidence that appellant is brother of Melaram, at about 11.30 p.m. he was present in his houSe. Witnesses Janakram 85 Shivram came, knocked the door of his house. They told that big incident is committed in their ward. They also told that you go to the house of Melaram then you Will know that what happened, and then he went to the house of Melaram along with Balaram Panch where Melaram was agonizing. Melaram told him that his brother has assaulted him; he saw injury over his neck. Blood was coming out then they took him to the hospital where doctor declared him dead. He has also deposed that P‘unchnama was prepared before him. In his cross— examination, he has admitted that his eyesight is weak. He has also admitted in Para—7 of his evidence that smell of liquor was coming out from .the mouth of Melaram. He has also admitted that after completion of Ramsatta function the incident took place. He has also admitted that his memory is weak and he has seen the f2]: r? /"i‘ body of Melaram from reasonable distance. In his detail cross-examination, defence has not asked anything to this witness that Melaram has not made dying declaration to him. In absence of any suggestion and consideration, his evidence relating to the dying declaration made to him by Melaram inspires confidence. The principle of dying declaration is based on legal maxim “nemo moriturus proesumitur mentiri" a man will not meet his maker With a lie in his mouth. While dealing with the question of evidencary value of dying declaration in case of P. V. _Radhakrishna v. State of Karnatakal in which Apex Court has held that dying declaration — Can be sole bases for conviction ~ Since a person’ on death bed is in a situation so solemn and serene equal to obligation of oath. Paras 12 81, 13 which reads as folloWs:- “12. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement, ii is for this reason ‘the- requirements of oath and cross—examination are dispensed with. Besides) should the dying declaration be excluded it will result in miscarriage ofjustice because the victim being AIR 2003 SC 2859 ££m a @ $ (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of Uttar Pradesh u. Ram Sagar Yadav and others (AIR 1 985 SC 41 6) and Ramauati Devi v. State ofBihar AIR 1983 SC 1 64); (m) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy and another v. Public Prosecutor (AIR 1976 SC 1994)); (iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of Madhya Pradesh (1 974 (4} SCC 264)); (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kaka Singh v. State of MP1 (AIR 1982 SC 1021)); (vi) A dying declaration which suffers from infirmity cannot from the basis of conviction. (See Ram Manorath and others v. State of U,P. (1 981 (2) SCC 654)); (vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected (See State of Maharashtra v Krishnamurthi Laxmipati Naidu (AIR 1981 SC 61 7)), (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the $ 10 contrary, the shortness of the statement itself guarantees truth. {See Surajdeo Oza u. State of Bihar (AIR 1979 sc 1505))’ (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye—witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanahau Ram and another v. State of Madhya Pradesh {AIR 1 988 SC 912)); (x) Where the prosecution version differs from the version as given in the dying declaration) the said declaration cannot be acted upon. {See State of U.P. v, Madan Mohan and others (AIR 1989 sc 1519)); (xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839))” 15. As held in case of P. V. Radhakrishna v. State of Karnataka (Supra) the dying declaration in the l present case made to the PWS Itwari Nishad inspires confidence, trustworthy and is safe to rely. After appreciating, the evidence available on record learned Additional Sessions Judge, Dhamtari has convicted and aforementioned. as sentenced the appellant 17. For the foregoing reasons, conviction of the appellant is “based on credible, clinching and reliable evidence sustainable under the law. While convicting and sentencing the appellant under Section 302 of the Indian Penal Code, Court below has not committed any illegality. Criminal appeal is devoid of merits. Consequently, this criminal appeal is liable to be dismissed and is hereby dismissed. Sdl- R.L. Jhanwar Judge