HIGH ' ‘ ‘ COURT ' "‘ """"""""_\"" OF CHHATTISGARH AT "" BILASPUR " ‘ "" ' Criminai Amal No.975l2004 APPELLAM in jail aged ‘Domar about smgh 20 s/o was Mahmdm Oécupau'tm Singh ’ I Tailor R/o Bhishma Pun'v RSV Sihava District Dhamtari CG VEksU§ RESPONDENT State of Chhath'sgarh M CRIMINAL APPEAL UNDER SECTIQN 374 ‘2! OF THE CODE OE I CRIMINAL PROCEDURE 5 Appearance: Shn' H.P. Agrawal, counsel for the appcllant. Shri N.K. Mehta, Panel Lawyer for the Stem: [Division Bench:- ggn’ble Shgi T.P. Sharma & Hon’bie M smi Rndhanwa: JJ own. JUDGMENT (22.10.2010) Per T.P.Shaxma, J. 1. Challenge in this appeal is to the judgmen? of convietion and order of sentence dated 15.9.2004, passed by the Additional i; ’ Sessions Judge, Dhamtari, Sessions Division Raipur (CG) m Sessions Trial No.204] 2003, whemby and whereunder, the learned Additibnal Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to mm-der‘of his father- Mahendra, convicted the appellant Section 302 of the IPC and sentenced to undergo imprisonment for life and to pay a one of Rs. 100/-. '2. The conviction is impugned on the ground that without there being any iota of evidence su$cient for convicu‘on of the appellant thf: Court below has conv1cted and sentenced the appellant as , aforemenuoned and themby commltted megahty 3‘. Prosecuhon case 1n bnef 1s that on tateiul mght of 18 3 2003 at about 8 00 pm, on account of dlspute of onuttlng’ after consummg hquor by the deceased, appellant took out a kmfev from his room and caused fatal injuly to his father, resulting into death of his father. Mother of the appellant namely- Ramkunwax; a Bai(PW 1) immediately narrated the incident to the biother bf the V A deceased- Laxmmath (PW-3), who brought the Jeep and they took Mahendra to Police Station and thereafter to Hoepitalr»; Ramkunwar Bai lodgedFlR vtde Ex. P/ 1. Mahendra was examined by Dr. D.R. Thakur (PW—8) vide Ex. P/11 and found following injuries :z i. lacerated wound in abdomen of 4 x 1 cm. 11 lacerated wound in abdomen of 5 x 1 cm He was referred to District Hospital Dhamtan Where he was H examined by Dr Roshan Upadhyay (PW—9) Vide Ex P/ 12 and , - V, found followmg injuries One incised wound over upper part of umbilicus of 3 x_ 1 cm, intestine was coming out nom the injury 11 Incised wound of 2 x 1 cm on‘the left side of umbilicus; ‘ omentum was coming out Inelsed wound of 3 x 1 cm 1n the post auxiliary line at a i highest pomt of mac crest omentum was coming out Inc1sed wound of 3 x 1 cm at left Side Just med1al to sternum Patient was conscious. He was in shocked condition. He was _E referred for suxgical treatment; surgexy was conducted and huge amount of bleeding was found inside the omentum. He died on 20.3.2003 as a lesult of injulies. Incidentwas intimated to Police: vide Ex. Pf 12 and death was imimated vide Ex. P/ 14. 011 the basis of EX P/ 14 merg was mcorded vide Ex P/ 18 After summomng the mmesses v1de Ex P/ 6 Inquest over the dead body was prepared v1de Ex P/7 Dead body was sent for autopsy to; - Government Hosprtal Dhamtan v1de EX P/ 19 Dr R K. Txipatln (PW 12) conducted autopsy Vlde Ex P/20 and found followmg mjunes. i. incised wound of 5 x 1".x bone deep over the chest incised wound of 1 V2 x 1" near umbilicus- mused wound of 2 V2 x 1 V2 up to deep near the .mpple .mc1sed wound of 2 x 1" near lett s1de of the mpple iv. incised wound of 1 1/2 x 1/4 on the heart. Mode oi death was shock as a result of excesswe haemorrhage Spot map was prepared Vlde Ex P/ 4 Patwan pmpared spot map ‘ v1de Ex. P/8. During the course of investigation, accused was ‘ taken into custody. He made disclosme statement of knife vide Ex. P/ 15. Same was recoveied vide EXP] 16. Blood stained soil and plain soil was recovered from the spot vide Ex. P/ 17. Knife J was examined by the Doctor vide Ex. P/ 22. Statements of the witnesses were recorded under Section 161 of the Code of Criminal ' Proceduxe, 1973 (in short the Code). Q 4. After completion of the investigation, charge sheet was med before the Judicial Magistrate First Class, Dhamtari, who in turns! committed the case to the Court of Sessions, Raipur, from when: the learned Additional Sessions Judge ‘neceived the case 0nd transfer for trial. F: F: E3 5. w In onier to pmve the guilt of the aécuscd/appellant, prosacuh'on examined as many as 15 Witnesses, The accused was 3 axamincd under Saction 313 of the Code, where he denied the ‘1? circumstances appearing against him, innocence and falsex ' implication in crime in question was claimsd. He wok defence 0f- V‘ alibi that at the time of oa'ence, he was not presént in the house 1; and he had gone to attend the Holi function. He has also examined Hemlal as defence witness in support ofhis contention. 6. After an‘ording opportunity of hean'ng to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. We have heard Shn H P Agrawal learned counsel for the: 3 appellant and Shn N K Mehta learned Panel Lawyer for the State perused the Judgment impugned and mcord of the Court below f 8. Leaxned counsel for the appellant vehemently argued that in ‘- l‘ the present case conv1ctlon of the appellant 1s based on the oral f dying declaration made by the appellant before the brother at the g deceased namely Laxnnnath (PW—3), but 1t does not mspn’e confidence and trustworthy to rely as also 1t does not nnd support to the facts and cncnmstances of the case. Statement of such Witness is not reliable for conviction of the appellant He further argued that as per statement of Laxminath (PW 3) recorded umier: Section 161 of the Code as Ex D/ 1 he has seen the appellant Just after the moldent and he was m angry condition, but it does not reveal that deceased has made dying declaration to him m Hospital Laxmmath has not stated anything relating to presence a: of the appellant at the place of moident However 1n para 3 oi his r ev1dence he has stated that at Maelhi Hospital when his brother regain consolousness, he made oral dying declaration before him g‘t. @ that the appellant has assaulted him and he is not his son but h: r 1s hts enemy Further 1n pam 11 he has specmcally adnnthed that Vg he has not stated tms fact to Pohce 1n 1113 statement recorded under Section 161 of the Code Vida Ex. D/ 1. Theretom, m these r circumstances the alleged evidence of dying declaration is not safe ~ to rely for conviction of the appellant under Section 302 of the 1m. K 9. On the other hand, learned counsel for the State vehemently argued that the conviction is substantially based on the oral dying declaration made by the deceased to his brother Laxminath (PW—3) J at Masihi Hospital. < 10. In order to appreciate the arguments advanced on behalf of the panics, we have examined the evidence adduced on behalf of the prosecution. 11. In the present case, homicidal death as a result of fatal injuries over the body of Mahendra has not been substantially disputed on behalf of the appellant, on the other hand it is also j established by the evidence of Dr D R Thakur (PW-8) ingury mport Ex P/ 11 inJuIy report Ex P/ 12 and other reports Ex. P] 13 and Ex P/ 14 ev1dence of Dr R K ’I‘npathi (PW- 12) and autopsy report pg Ex P] 20 and death was hormoidal in nature 12. In the present case, conviction of the appellant is substantially based on the factum of oral dying declaration made by ‘the deceased to Laxminath (PW-3) his brother. Oral dying declaration 1s also a kind of ev1dence and unless 1t is dlsproved same may be relied upon and 1t 1s summent for convxction even for the hemous od‘ence As per ev1dence of Laxminath (FW‘3) when he heard the moident he went to the house of his brother where his Wife Kuman Bai was present and she told him that the appanant has assaulted his brother and 116d fmm the spot. Then ¢ ha took his brother to Police Station ~Sihava and thenafter to the-i Dhamtari hospital fmm them he was taken to Masihi Hospital Dhamtari and was admitted there His brother mgamod conscxousness and made dying decimation before h1m that the: appellant has assaulted hlm. H18 statement was recoxtled unéer section 161 of the Code vide Ex. D/ 1, in which he has not stated anything relating to oral dyihg declamtion He has specmcally deposed 1n paxa 1 1 of h1s ev1dence that he has not stated anythmg relatmg to dytng declaranon 1n hls statement moorded under t Section‘jél of the Code, which was mootded on 19.3.2003, just on second day of the incident. He has not on‘ered any explanation that Why he has not informed the Police and gave statement relating to oral dying decimation maderby his brother in Ex. D/ 1. In the present case, he has deposed Ielating to the factum of dying . declaration only on 28.8.2003 at the time of evidence befomrthe comt i.e. after 5 months of the incident. In these circumstances, as per FIR lodged by Ramkunwar Bai (PW— 1) wife of the deceased who has seen the 1nc1dent appellant has assaulted h1s father, but 1n her ev1dence she has not supported the vexslon of FIR and has specdically deposed that on account of enm1ty between the deceased and the appellant; appellant went out nom the house. This shows that at the‘time of incident, appellant was not present in the house. \u 13. Considen'ng the contradictory evidence of oral dying 3 dedaran‘on which does not inspire conndence and trustworthy, it v t can be mferred that at the time of mc1dent the appellant was not 1 present 1n the house Wh11e convtctmg and sentencmg the appellant Court below has not cons1dered the matenal aspect of the above fact and thereby committed illegallty Virtually, m the piesent case prosecutton has not adduced any evxdence of V /