•'s'y '^:. 'yy .*''•'•"'*'~-a & '•^..:::;'!^. ^ B. ''^v- Hoa'ble Shri T.P.Sharma & Hon'ble Shri Raagaath Chandrakar, JJ. CR. A. No. 233 OF 2006 Mohit Kumar Yadu, aged 28 years, son of late Shri Jagmohan. Lal Yadu, resident of Qudrupara, wai'a iio. x^t, iviaiia.scuuuiiu, iciisu & district Mahasamiind (C.G.) VERSUS RESPQNDENT State of Chhattisgarh, througli the police station Ganj, Raipur (Chhattisgarh) CRIMINAL APPBAL N0. 248/2006 ACCUSED (In custody sitice 13/4/05 tffldate) RESPONOENT VERSUS Bliikham Chaiihan @ Rohit, Aged about 25 years, S/o Nera. Singh Chaulian, R/o Parasiiagar, Behind Masjid, Raipur (C.G.) State of Chhattisgarh, Througti Police Station Gaiij. CRIMINAL APPEAL UNDBR SBCTION 374(21 OF THB CMMINAL PROCEDURB CODE, 1973. Presenfc- Mrs. Indira Tripathi, Advocate for the appellant (in Cr.A. No. 233/2006). Mr. Pawan Kesharwani, Advocate for the appeilant (in Cr.A. No. 248/2006). Mr. Akhil Mishra, Dy. G.A. forthe State/respondent. JUDGEMENT (Passed on 30/08/2011) The following tudgment of the Court was uassed bv T.P. Sharma, Js- 1. Crimiaal Appeal No. 233/2006 tUed by appeUaut- Mohit Kumar Yadu & Crimmal Appeal No. 248/2006 filed by appeUaiit- Bhikham ^'/ / Chaubaa @ Rohit against the judginent of conviction and order of senteuce dated 4/3/2006 passed by 12th Additional Sessions Judge (F.T.C.), Raipur in Sessioas Trial No. 226/05 are being disposed of by this comiaoa judgment. By aforesaid these two crimiaal appeals Nos. 233/2006 & 248/2006 appeBaats Mohit Kumar Yadu & Bhikham Chauhan @ Rohit have challenged the legaUty and propriety ofjudginent ofconviction and order of sentence dated 4/3/2006 passed by 12th Additional Sessions Judge (F.T.C.), Raipur in Sessions Trial No. 226/05 whereby aiid where under after holdnig tlie appeUants guilty for fhe coinnussion of culpable hosaicide aiuountiitg to Baui~der of Sun.il Tiwari in sharing conuiion intention, convicted fhe appellants under Section 302 read wifh Section 34 of the Indiaii Penal Code senteuced r^orous unprisonment for Ufe aud fine of Rs. 1000/ -, ui default of payiaent of fine amount additional r^orous irnprisorunent for 3 monttis each. Convictions are unpugned on fhe grouiid that wifhout any iota. of evidence suificient for conviction of fhe appellaiits, Court below has convicted and seiitenced the appeUants as aibrementioned and fhereby coiaiaitted an illegality. As per case of the prosecution, on account of previous dispute relating to man-iage of Shweta Tiwari, wife of SunU Tiwan (smce deceased), on 6/4/2005 one day prior to iacident appellants came to the house of SunU. Tiwari situated at Parasnagar, Raipur aad were watching froin window, som.e dispute took place but Sunil Tiwari did not decide to lodge report. On second day i.e. 7/4/2005 at about 9:30 P.M. he was called by both appellauts near Shiv Temple and after abusing bim, bofh fhe appeUaats assaulted him, ^-7^"r<J^t>"*h' —<*i .H^' thereatter appeUant Mohit Kuiuar Yadu took out knife and caused repeated 3-4 assaults over his chest, he shouted for faelp fhen Krishna & other persons came and they took him to Khemka Hospital, Raipur. PW18 Dr. Sunil Kheinka intimated the PoUce vide Ex. P-25 aad started treataient, Police came to hospital and recorded Dehati Nalishi given by iajured Sunil Tiwari vide Ex. P-12. On the basis of Dehati Nalishi, First Infonnation Report was recorded vide Ex. P-13. SuaU Thvari who was under treatraent of PW18 Dr. Sunil Khemka. PW18 Dr. SunU Khemka examined Sunil Tiwari vide Ex. P-28 and found foUowing circuinstances:- (i) Multiple stab wounds over chest & abdoinen. (ii) Severe bleediag. (iii) Pt is in shock. (iv) Injuries were grievous in nature. (v) Injuries were explored. During course oftreatinent of Surul Tiwari, vide Ex. P-15 quen' was made to PW18 Dr. Suail KhemJka relating to fitness of Sunil Tiwari to give statement which was repUed by PW18 Dr. Sunil Khcmka in Ex. P-15 fhat patient is not complete fi.t to give statemeut. On accouat of injuiy of lungs & its effect, Suail Tiwari was shifted to Ramkrishna Hospital, Raipur vide Ex. P-26. On 8/4/2004 PW17 Rajiv Sharma, Investigatmg Of&cer recorded his statement under Section 161 of the Crimmal Procedure Code, 1973 (in short 'fhe Code') vide Ex. D-4. Injured Sunfl Tiwari died diiring course of treatment in Ramkrishna Hospital, Raipur. Deafh was mtunated vide Ex. P-10. On the basis of Ex. P-10, Marg mtimation was recorded vide Ex. P-11. After summoning the witaesses vide Ex. P-7, iuquest over the dead body of Suml Tiwari was prepared vide Ex. P- 8. Dead body of Sunil Tiwari was sent for autopsy to Goveniment / Aiabedkar Hospital, Raipur vide Ex. P-19 where PW1 Dr. Rajkiiuiar Singh conducted autopsy vide Ex. P-1 and found foUovii'mg mjuries:- (i) Stitched wound over abdoinen of2 x 2 c.ni. (ii) Stitched wouud over abdoraen affecting left Uver along wifh injuiy over liver of 1.5 x 0.6 x 2 c.m. Depfh. ofiajury was 6 c.ni. (iii) Stitched wouiid over thorax of 1.5 x 0.6 c.m. with left coastal region up to abdoniuial cavity deep. (iv) Stoiaach was aSected by iajury and two injuries were found in fhe stoiaach. (v) Onientuin of stoniach, pancreas & diaphragm were also affected by injuries. (vi) Stitched wound found near iliac bone of 3.5 x 1.4 c.m.. with uy'uiy over spleen of2 x 0.8 x 1.2 C.BI. (vii) Stitehed wound near left eye of 1.8 x 0.7 c.in. (viii) Stitched wouad over left lung of 1 x 1.5 x 0.5 c.ni. and presence ofblood in the thorax cavity. (ix) Stitehed wound near left iliac boue up to abdonunal deep of 1.5 x 0.5 c.sa. (x) Diaphragni was also affected by injuries. (xi) Stitched wound of 22 c.in. ia length with 25 stitehes in abdoinen. (xii) Two Stitched wounds over back of 1.5 x 0.8 c.m. Thorax cavity was also affected by itijuries. (xiu) Stitched wound over left side of chest up to tliorax cavity deep of 1.5 x 0.8 c.m. (xiv) Stitohed wound over abdonien witti 15 stitches up to abdoniinal cavity.deep. Mode of death was shock and death was honiicidal in nature. Brief autopsy report was also prepared vide Ex. P-2. Blood stained cloths of deceased was seized vide Ex. P-5. During course of invest^ation, appeUant Mohit Kumar Yadu was taken into custody aad he made discloser statemeut of knife & infonned that knife is hidden under the dust [Kachrc^ vide Ex. P-16, saiue was recovered / f~" at his instance vide Ex. P-17. Spot map was prepared vide Ex. P-21. Seized articles were sent for cheniical examination vide Ex. P-22. Presence ofblood was coiifirmed over kaife recovered frow. appeUaat Mohit Kiunar Yadu vide Ex. P-29. 7. Stateiuents ofthe witaesses were recorded under Section 161 offhe Code of Criiniual Procedure, 1973 (in short 'Code^. After completion of investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Raipur who in tura comniitted the case to the Court of Sessions, Raipur froni wbere learaed 12th Additional Sessions Judge (F.T.C.), Raipur has received the case ou traasfer for trial. 8. ln order to prove the guilt of the accused/appeUaats, prosecution examined as inaay as 18 witoesses. Statements of the accused/appeUants were recorded under Section 313 ofthe Code where fhey denied the cu-cuinstaaces appearing against fhein and pleaded iruiocence aad false impUcation ia the crirae iu question. 9. After affordiag an opportuuily ofhearmg to fhe parties leamed 12th Additional Sessions Judge (F.T.C.), Raipur convicted and sentenced the accused/appellants as aforementioned. 10. We have heard Mrs. Indira Tripathi, Advocate for the appeUant (ia Cr.A. No. 233/2006), Mr. Pawan Kesharwaai, Advocate for fhe appeUant (in Cr.A. No. 248/2006) and Mr. Akhil Mishra, Dy. G.A. for fhe State/respondent and perused judginent impugned as also record of the trial Court. 11. Mrs. Indira Tripathi, leamed counsel for fhe appeUaat Mohit Kiuaar Yadu veheinently argued tliat conviction of fhe appeUant Mohit Kuiaar Yadii is based on ciicuiastantial evidence. In order to convict the appeUant on fhe basis of circunistantial evidence as held in case ^ // f£^^^ ''ssssass''' l/,- 12. of C. Chaaga Reddy v. State of A.P.1, the prosecution is reqiiired to adduce evidence aad such evjdence inust satisfy the foUowiug tests:- i. tbe circuiastances froia wbich an iaference of guilt is sought to be drawn, inust be cogently aad firmly established; ii. those circimistaaces should of a definite tendency unerringly poiating towards fhe guilt of tfae accused; iii. the circuinstauces taken cuniulatively should fonn a chain so complete fhat fhere is no escape iroui fhe conclusion that wifhin all huinan probabiUty the criine was coniraitted by fhe accused aad none else; aiid iv. the circuxustaatial evidence in order to sustain conviction luust be coraplete aad incapable of explaaation of aay ofber hypofhesis thaa tliat of fhe guilt of the accused and such evidence should not onlv be consistent witii fhe guilt of the accused but should be inconsistent with bis innocence. In fhe present case, prosecution has tried to adduce evidence relating to last seen theory and dying declaration niade by deceased SunU Tiwari before his mother PW2 Jaaki Bai, PW12 Ramesh Kumar Manjhi, Assistant Siib-Inspector & PW17 Rajiv Sharma, Inspector whom injured Suiul Tiwari has lodged aUeged Dehati Ncdishi & statement under Section 161 of the Code vide Ex. D-4 which became dviae declaration after deafh of Sunil Tiwari. Aforesaid evidence does not inspire confidence and trustworthy. Prosecutioa has not proved circuinstances relating to last seen fheoiy. Evidence of prosecutionwitaesses especially ia tlie light of AIR 1996 SC 3390 : (1996) 10 SCC 193 '~-\ / > / 13. 14. evidence ofPWlS Dr. Sunil Kheinka is self-contradictorv. Evidence of PW18 Dr. Suiul Khemka reveals that Sunit Tiwari was not havins any opportunily to lodge Dehati Nalishi ajld be was not in fit condition to state fherefore, alleged dying declaration, Dehati Nalishi Ex. P-12 & sta.teuient recorded under Section 161 as Ex. D-4 ofttie Code suffer froni serious infirmiiy and are not safe to rely without furfb.er corroboration froia independent sources. Prosecution b-as not proved the' recovery of weapon at the instance of appellant or knowledge of such weapon hiddea in soiue place. Evidence adduced on behalf of fhe oiosecution is suf&cient for castine suspicion that appellaut inay have committed offence but is not sufScieiit for diawing definite conclusion fhat appeUant Mohit Kuniai' Yadu has coauiutted aforesaid offence. Leanued counsel for the appeUant Mohit Kumar Yadu fiu-ther argued that prosecution. has not proved fhe motive even othemdse incideiit took place on spur of inoiaent and on sudden provocation fherefore, if the evidence of nrosecution is adinitted in its face value then tjbe act of appeUant Mohit Kumar Yadu does not traveled beyoiid the scope uader Section 304 Part-I ofthe Indian Penal Code. Mr. Pawan Kesharwani, leamed counsel for fhe appellant Bhikham Chauhan @ Rohit veheinently argued tiiat as per case of fhe prosecution, present appellant along with co-acczised ^Aohit Kuiaai Yadu had caUed Siuul Tiwari from his house and appeUant has assaulted him by haads & fists, no injury caused by hands & fists has been noticed by the doctor. There is iaconsistency between ocular & medical evidence. Prosecution has not proved ttie fact that at fhe tiine of callmg Suiul Tiwari or causing mjuiy by hands &, fists by appeUaat, present appeUant was not having knowledge tfaat co- Y accused Mohit Kuinar Yadu will took out the knife and cause serious repeated assault siifEicient to cause deafh to Sunil Tiwari therefore, if fhe act attributed to appellant Bhikhani Chauhaa. @ Rohit is considered in its face value then same inay be punishable under Section 323 ofthe Indian Penal Code. 15. On fhe other hand, Mr. Akhil Mishra, Deputy Govt Advocate for fhe State/respondent veheinently opposed fhe criiuuial appeals and argued fhat as per evidence of prosecution, both the appeUants had called Suiul Tiwari JEroiu his house TIien thev abused and assau]ted him duriug course of assault appellant Mohit Kuinar Yadu took out kaife and caused iajuries to Sunil Tiwari 8s overt act of appellant Bhikhaaa. Chauhau @ Rohit is siif&cient for drawing aa iafereiice that he has shared coniiuon uitention of co-accused Mohit Kuniar Yadu who has caused hoinicidal deafh of Sunil Tiwari. Nuiaber of iaiuries, weanon used and inaiuier ia which they have caused fatal injuries on fhe vital part shows that appeUants have caused homicidal death of Suiul Tiwari wifh intent to cause his death ia sharing coiuiuon intention. The case of fhe appeUants does not fatl wifhtu fhe exceotion of Section 299 offhe Indiaa Penal Code. 16. Learued Deputy Govt. Advocate for the State/respondent fuither argued that conviction of fhe appellants are based on iast seen theory & dynig declaration niade by SunU Tiwan before PW2 Janki Bai, ruother of Sunil Tiwari, PW12 Ramesh Kuniar Manjhi, Assistaat Sub-Inspector & PW17 Rajiv Sharma, Inspector as Exs. P-12 & D-4 oral aad written dying declaration are suf&cient to establish the guflt ofthe appeUaats. &. ^? s/ 17. In order to appreciate the argunients advanced on behatf of the parties, we have exainiaed the evidence adduced oa behalf of tlie prosecution. 18. In the present case, hoinicidal death of Sunil Tiwari as a resi.ilt of fatal iaiuries found over the vital part aad its coiapUcation has not been substaatiaUy disputed on behatf of the appellants, on the other haad, otherwise also established bv the evidence of PW1 Dr. Rajkum.ar Siagh aad autopsy report Ex. P-1, brief autopsy report Ex. P-2, evidence of PW18 Dr. Siinfl Khenika, iiitimation aad reference made by Dr. Sunil Khemka vide Exs. P-25 fis P-26. DeatJi of Sunil Tiwari was hoinicidal in nature. 19. As regard the coniplicity of appeUants iii criine iu question is conceraed, conviction of the appeUaats is based on circunistatitial evidence aud prosecution has tried to proof the foUowuii circuinstauces: - (ij Present appeUaats were haviag inotive for conunission ofoffence on the ground ofatleged atteiupt ofmarriage wifh wife of Suiul Tiwan namely Sbewta Tiwari. (ii) Appellan.ts caUed SunU Tiwari just before tbe iacident fhereafter Surul Tiwari came to his house ia iaiured condition. (iii) Deceased Surul Tiwari inade oral dyuig declaration before his inother PW2 Jaaki Bai. (iv) Deceased Sunfl Tiwad has lodged Dehati Nalishi Ex. P- 12 to PW12 Ramesh Kumar Maujhi, Assistant Sub- Inspector and stateinent recorded under Section 161 of the Code as Ex. D-4 to PW17 Rajiv Sharnia, Inspector, after death of Surul Tiwari i.e. deceased, these above two documents becaine dying declaration of Sunil Tiwari and both the witaesses have proved the aforesaid dying declaration. 10 /"/1/ 20. As per evidence of PW2 Janki Bai; xnother of deceased Surul Tiwari, on account of previous dispute his son Sunil Tiwari was cailed by bofh fhe appellaats/accused just before the incident thereafter his son Suiul Tiwari rushed towards his hoiise, he was iii injured condition fhen fhey inLniediately sbifted hira to Kbeinka Hospital, Raipur where he ta-eated aud fuially, he died. As per ber evidence, ater regauiing conscious at Kheinka Hospital, Raipur; Suuil Tiwad niade dyiag declaration. to her that appellaat Mohit Kuiaar Yadu aad Bhikham Chauhan. @ Rohit have caused uyuries by kaife/Degar aad fherc was sb< wounds over abdonien ofher son, 21. As per Ex. D-2 her stateinent recorded under Section 161 of fhe Code, Sunil Tiwari'faas not inade dyiug declaration during course of treatment in. fbe hospital, it was confi-onted by the defence to this witaess then she meiiiorized that when Sunil Tiwari came to her house after receiviag tajuries then he niade dyiug declai^tion to her fhat bofh the appeUaiits have assaulted him. fhen fhey took hrm to fhe hospital. In Para-12 ofher cross exainmation, she has described fhe circuiastaaces of dying declaration luade by her son to Jaer and circunistances in which she has not stated aforesaid stateiaent at fhe time of her exanaination-ia-chief. 22. As regard Ex. P-12 alleged Dehati Nalishi is concemed, as per evidence of PW12 Ramesh Kumar Maajhi, Assistant Sub-Inspector he received telephonic iuformation from Khemka Hospital fhen he rushed to the hospital and has recorded Dehati Nalishi mcised Operation Theater in presence of Dr. Surul Khemka. In Para-3 of his cross-examiaation, he has specificaUy deposed that he received iaformation from Khemka Hospital, Raipur at 7:00 P.M. aiict mcident took place at 7:30 P.M., which clearly reveals ^ 11 / I inconsistency, it was not possible that incident which took place at 7:30 P.M. woiUd be in the knowledge of any person prior to coinruission. of such iricident. This sbows fhat erroneous stateineut or bonaftde inistake wbich could not alTect ftie credibility of witnesses. In his detail cross-examination, he has speci&cally deposed ftiat he has recorded Dehati Nalishi in fhe hospital Ex. P- 12. On the basis of Dehaii Nalishi, he bas recorded First Infonaiatioii Report Ex. P-13. He has also proved Ex. P-14, requisition for uiedical exainination & Ex. P-15 for fitaess of SunU Tiwari for giving statement which are iu consequent to aforesaid docuiaents. 23. PW18 Dr. Sunil Kheiaka has speci&cally deposed in Paras-8 & 9 of his cross-exaiaination fhat before reachiug of Police to his liospital, patient was sbifted to the Operation Theater and Police visited his bospital so inaay times, when Police reached to the hospital, at the.t tiaie patient was in stage of shock, he has also informed tlie Police that Sunfl Tiwari was not complete -fit to state fb.erefore, his stateuaent should not be recorded. As per his opinion, Police ruay have recorded statement between 11:00-12:00, at night. On 10/4/2004, he was shifted to RamJerisbna Hospital, Raipur. Evidence of fbis \vitness reveals that at fhe tune of admission, Sunfl Tiwari was serious but he was not unconscious and he wa,s imder shock but he was talking. He bas also deposed fhat before reachia^ PoUce to hospital, patient was shifted to Operation Theater aad PW12 Ramesh Kumar Maajbi, Assistant Sub-Inspector has deposed fhat he bas recorded Dehati Nalishi iuside Operation Theater. Tliis facts rules out controversy and inconsistency. Ex. P-12 supported Exs. P-13, P-14 & P-15 reveal ftiat PW12 Riamesh Kumar Manjhi, Assistaat Sub-Inspector has recorded Dehati Nalishi at aboiit 8; 10 12 24. 25. P.M. at Kheiuka Hospital, Raipur and another witaesses PW17 Rajiv SIianna, Investigating Of&cer bas deposed fhat he has recorded statement of SuaU Tiwari. In Para-17 of his cross-exaaiuiation, he has adiaitted ttiat he has recorded the stateinent of Sunil Tnvari as Ex. D-4. After deatb of SunU. Tiwari, Exs. P-12 & D-4 became dyine declaration in which he has stated the cause of his deatii that he was called by bofb. the appeUaats, he was assaulted by bofh tlie appeUants and appAlant Mohit Kuinar Yadu has caused repeated injuiy by knife, saiae was also corroborated from. the oral dyin.s declaration inade by him to his inofher PW2 Janki Bai. Defence bas cross-examiaed ftiese witnesses at length but they have not been able to elicit aaything iu their cross-examination to discredit their stafeiuent especially relating to aforesaid docuiaents i.e. dyiug declaration. In ftie present case, vutually prosecution has proved the factiini of dying declaration made by deceased Sunil Tiwan. Dyuig declaration is also evidence and is based on legal inaxiui "nemo Tnoritwus proesumitur meniiri'- a niaa will not nieet his ruaker wifh a lie in his mouth and once it is proved to be true then saiae is sufficient for drawiag definite conclusion. Evidence of aforesaid witaesses relati&g to dyiug declaration are suf&cient to estabUsh the fact that appeUaats have caused honiicidal death of Suuil Tiwari. As regard fhe question of intention ia sharing coinraon intention is conceraed, the factuai of question of iatention can be gathered injuries fouud over part of fhe body and its aSect, niimber of injuries, weapon used aad like ofher circumstances. Injuries fouiid over the body of deceased Sunfl Tiwari affectmg major mtemal & vital parts and use of daagerous weapon i.e. kiufe/ Degar reveal tl-iat 13 hoiuicidal deafh has been caused wifh intent to cause the deafh of SunU Tiwari. 26. As regard fhe question of shanng coininon iutention is concenied, as per evidence especiaUy dying declaration iaitiaUy he was called by bofh fhe appellants, both fhe appeBaiits abused & assaulted hiru thereafter appeUant Mohit Kuniar Yadu has caused repeated injury bv knife. This shows flie close association of co-accused Bhikhani Chauliaa (@ Rohit iii causing such honiicidal deafh of Sunil Tiwari in sharuig conuaon iatention. 27. After appreciating fhe evidence available on fecord, leamed 12th Additional Sessions Judge (F.T.C.), Raipur has righUy convicted aad sentenced fhe appellants as aforeBientioned. Conviction and sentence of fhe appeUants is based on legal, clinchuig & credible evidence sustaiaable under fhe law. 28. On close scrutiny of the evidence, we do not find any iUegalily or iafuinity ia the judgiuent of conviction aad order of sentence. Consequentty, cruniaal appeal No. 233/2006 filed by appeUant Mohit Kumar Yadu 8s cnminal appeal No. 248/2006 filed by appellant Bhikham Chauhan @ Rohit are devoid of raerits, same are liable to be dismissed and are herebv disnaissed. Sd/- T.P. Sharma Judge Sd/- R.N. CHANDRAKAR. Judge