HIGH COURT OF CHHATTISGARH. BILASPUR MW \__ DIVISION BENCH BLE MR. T.P. SHARMA AND BLE MR. R.L. JHANWAR, JJ. CORAM: HON’ HON’ Criminal Agpeal No.1 104 of 2007 Prabhakar Reddy - Versus - State of Chhattisgarh \ JUDGMENT FOR CONSIDERATION Sdl- T. P. Shara .s Judge HO\ N’BLE MR. JUSTICE R.L. JHANWAR Sd/— ”111) Shanna Judge” x m (B? HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA AND HON’BLE MR. R.L. JHANWAR, JJ. Criminal Agpeal No.1 1 04 of 2007 APPELLANT: Prabhakar Reddy S/o Kamraju Reddy, (In Jail) aged about 34 years, R/o Village Teblar Road, Rajhara, Police Station Rajhara, Tahsil Rajhara, Distt. Durg (C.G.) Versus RESPONDENT: State of Chhattisgarh Through Police V Station Rajhara, Distt. Durg (C.G.) {Criminal appeal under Section 374 (2) of Criminal Procedure Code, 1973} Present: ' Mr. Jitendra Gupta, counsel for the appellant. Mr. D.K. Gwalre, Govt. Advocatefor the State/respondent. JUDGMENT (19m Aprll, 201 1) Thefollowing iudgment of the Court was passed by T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 4-8—2006 passed by the Additional Sessions Judge, Balod, in Sessions Trial No.74/2006, whereby & whereunder learneda Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Ashok Shende, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.1,000/—, in default of payment of nne to further undergo Rl for one year. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 2 . As per case of the prosecution, on the fateful day of 31-8—2005 at about 7.30 p.m. the appellant quarrelled with Ashok Shende (since deceased) and caused stab wound by knife on abdomen whereby stomach was cut, relatives of Ashok Shende brought him to the hospital and he made dying declaration that the appellant has caused injury to him. During the course of treatment, Ashok Shende died. Death was intimated to the police vide Exs.P—21 & P-21A. FIR was recorded at the instance of Siddharth (PW-2) - younger brother of Ashok Shende. After summoning the witnesses vide Ex.P-1, inquest over the dead body of Ashok Shende was prepared vide Ex.P-2. Bloodstained and plain soil were recovered from the spot vide Ex.P—12. Dead body was sent for autopsy to Government Hospital, Chikhlakasa vide EXP-16A. Dr. P. Ghanendra (PW-8) conducted autopsy vide EXP-16. Brief autopsy report was submitted vide Ex.P-17. One stab wound of 1” x 1/2” x 2 1/2” over abdomen with profuse bleeding, one stitched wound over left forehead, contusion over right chest of 1 1/2" x 1/2" were found over the person of Ashok Shende. Perforation and cut injury were also found over stomach. Clothes of the deceased were sealed and same were seized vide Ex.P- 13. The accused/appellant was taken into custody, he made discloser statement of knife vide Ex.‘P-1O and same was recovered at the instance ‘ of the appellant vide Ex.P—1 1. . Statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court 'of Judicial Magistrate First Class, Balod who committed the case to the Court of Sessions, Durg, from where learned Additional Sessions Judge received the case on transfer for trial. . In order to prove the guilt of the accused, the prosecution has examined as many as twelve witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication. The accused has taken the defence of alibi and false implication on the ground of enmity. He has examined Ganesh Singh (DW—1) and Tirupati Malik (DW—2) who have deposed that injured Ashok Shende (since deceased) was coming towards his house, he was not in a position to walk properly, on being asked, he was telling that he will not spare, thereafter, he became unconscious, they shifted him to the hospital, he was not in a position to talk, doctor was not present in the hospital, nurse was present and within 10-15 minutes he died. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction is substantially based on the evidence of Dhananjay Singh (PW-10) and Nasiruddan (PW—1 1) relating to dyingdeclaration made by the deceased which does not inspire confidence and is not trustworthy. ln order to convict the appellant on the basis of dying declaration, the prosecution is required to prove that the deceased was in a position to make dying declaration that too voluntarily, but in the present case, by adducing the evidence of defence witnesses Ganesh Singh (DW-1) and Tirupati Malik (DW—2), defence has discharged its burden and has proved that Ashok Shende (since deceased) was not in a position to talk properly and he has not made any dying declaration, he was unconscious. Except the evidence of dying declaration, the prosecution has not adduced any evidence to connect the appellant with the crime in question. ln absence \ i l @ of other clinching and credible evidence, the factum of alleged dying declaration does not inspire confidence, it is not trustworthy and is not safe to rely. On the other hand, teamed State counsei opposed the appeal and submitted that the dying declaration is a kind of evidence and if it is proved, then same is sufficient for conviction of the accused. In the present case, by examining Dhananjay Singh (PW—10) and Nasiruddan (PW-1 1 ), the prosecution has proved the fact that the deceased was able to make dying declaration and has made'dying declaration before them, they have also seen the appellant who was standing near his house and was holding knife. This also corroborates the factum of dying declaration made by the deceased which is sumcient for conviction of the appellant. After appreciating the evidence available on record, the Additional sessions Judge convicted & sentenced the appellant. While convicting and sentencing the appellant, the trial Court has not committed any illegality. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11. in the present case, homicidal death of Ashok Shende as a result of fatal injuries found over vital part of his person has not been substantially disputed on behalf of the appellant, otherwise also it is established by evidence of Dr. P: Ghanendra (PW-8), autopsy report Ex.P—16 and brief report Ex.P-17 that the death of Asok Shende was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction is substantially based on the dying declaration made by the deceased l before Dhananjay Singh (PW-10) and Nasiruddan (PW-11). The s @ appellant has examined Ganesh Singh (DW—1) and Tirupat Malik (DW- i 2). 13.Ganesh Singh (DW—1) has deposed that on the fateful day he was sitting with Dhananjay, at that time injured Ashok Shende (since deceased) came, he was not in a position o walk properly, he was badly injred, he was only telling tha he will not spare and thereafter, he became unconscious. s per h vidence, he has accompanied Ashok Shende A is e to the hospital along with Dhananjay & Mo. nu 14.As per evidence of Tirupati Mali (W-2), on the date of incident he was k D sitting near the uare, he was informed by mother of Ashok Shende that sq her son is injured, then he alon with Ganesh & Dhananjay went to the g house of Ashok Shende, rother of Ashok hende was asking Ashok b S and Ashk was replying that he will no spare, thereafter, Ashok Shende o t becam unconscious, then Dhananjay went for arranging vehicle, e Dhananja & Siddharth took Ashok Shende in the veicle- and they went y h to he hostal, he also accompanied them, after examining Ashok t pi hnde, doctor declared Asok Shende as dead. Se h 15.Defence has examined these witnesses, but it has not suggested presence of these witnesses to Dhananjay Singh (PW-10) or Nasiruddan (PW-1 1). Even as per evidence of Ganesh Singh (DW-1), he was sitting with Dhananjay and Dhananjay & Monu brought the injured to hospital by vehicle. But as‘per evidence of Tirupati Malik (DW—2), Ashok Shende was brought to hospital by Dhananjay & Siddharth and not by Monu. Although the prosecution has not examined the doctor who has initially treated the injured, but Exs.P-21 & P—21A —- MLC of Ashok Shende, reveal that Ashok Shende was admitted in the hospital on 31-8-2005 at 8 ’ p.m. and he died at 8.40 p.m. as a result of stab injury, he was treated by t u t ?%2 " J @ the doctor, intra venial haemoxyl was found and the injury was stitched and dressed. These two documents are sufficient to discard the evidence of Ganesh Singh (DW—1) and Tirupati Malik (DW—2) that they have not accompanied the injured, the injured was firstly treated and during treatment he died. 16.As per evidence of Dhananjay Singh (PW-10), on the fateful day he was present in his house aiong with Nasiruddan (PW—11), they are students and they were reading book ‘at that time and at the same time, Ashok Shende rushed to his house and shouted that the accused has assaulted him, he saw injury over his forehead, then he told Ashok Shende that his father is not present in the house on which Ashok Shende rushed to his house, they also accompanied Ashok Shender and after closing the door Ashok Shende went to sleep. ‘While they were going to the house of Ashok Shende, they saw that the appellant was standing in front of his house, he was holding knife and betel axe. They knocked the door of Ashok Shende and finally his mother opened the door. Mother of Ashok Shende was taking care of his son for stopping bleeding, thereafter, after arranging vehicle they took the injured to the hospital. On being asked by the doctor, Ashok Shende made dying declaration that appellant Prabhakar Reddy has assaulted him by knife and betel axe. Nasiruddan (PW-1 1) has substantially corroborated the evidence of Dhananjay Singh (PW-10). 17.Defence has cross-examined these witnesses in detail, but has not been able to elicit anything in their cross-examination to discredit their testimony especially relating to the fact that the deceased has not made dying declaration to them and that the appellant was not standing before his house and was not holding knife & betel axe. \ \ \ \ @ 18.Dying declaration is a hearsay evidence and is an exception to the general rule of evidence. The principle of dying declaration is based on legal maxim “nemo moriturus proesumitur mentirf’ a man will not meet his maker with a lie in his mouth. 19.Lord Chief Justice Baron Eyre {See R. v. Woodcock, (1789) 1 Lea 502} expressed his View relating to dying declaration as follows: - "...That such declarations are made in extremity, when the party is at the point of death, and when every hope of this world is goneywhen every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation, equal to that‘which is imposed by a positive oath in a court ofjustice...” 20.The factum of dying declaration also finds corroboration fromlthe immediate conduct of the appellant that he was standing in front of his house and was holding knife & betel axe. As per evidence of Jeevan Nagesh (PW-12) — Investigating Officer, he has interrogated the appellant in custody, the appellant made discloser statement of knife vide Ex.P-1O and knife has been recovered at the instance of the appellant vide Ex.P-11. Bloodstained clothes were also recovered from the appellant Vide Ex.P—14. Although panch witnesses Manuram (PW-5) & Bihauram (PW-6) have not supported the factum of discloser statement and recovery of knife, and the prosecution has declared them hostile, but they have admitted signature over both the documents. Even they have denied arrest of the appellant vide Ex.P-15. They have not explained the cause that when the appellant has not made discloser statement and knife has not been recovered, then why they have signed over the aforesaid documents. These circumstances show that they are concealing the truth and in these circumstances only the evidence of @ Jeevan Nagesh (PW—12) -— Investigating Omcer, who is also a witness, is sufMient to establish the fact that knife has been recovered at the instance of the appellant. While answering question Nos.37 & 38, the appellant has denied the factum of discloser statement and recovery. Virtually, the factum of recovery of knife is well established by evidence of Jeevan Nagesh (PW-12) — Investigating Officer. ln these circumstances, the appellant was under obligation to explain as to how knife was found in his possession, but instead of explaining the circumstances, the appellant has simply denied recovery. The factum of dying declaration also finds corroboration from medical evidence. 21.As held by the Supreme Court in the matter of Meherban v. State of M.P.1, dying declaration corroborated by medical evidence and recovery of weapon can be relied upon. While dealing With the question of eVIdentIary value of dying declaration the Supreme Court in the matter of State of Assam v. Maflzuddin Ahmedz has held that conviction can be based on the uncorroborated dying declaration of the deceased if truthful. While dealing with same question, the Supreme Court in the matter of Chirra Shivraj v. State of Andhra Pradesh3 has held that dying declaration can be sole basis for conviction if it can be shown'that person making statement was not influenced by any exterior factor and made statement which was duly recorded.‘ 22.ln the present‘case, evidence relating to dying declaration made by deceased Ashok Shende to Dhananjay Singh (PW—10) and Nasiruddan (PW-11) is corroborated by medical evidence and immediate act of the appellant, same inspires confidence, it is trustworthy and safe to rely upon. R 1997 on LJ 766 (SC) AIR 1983 SC 274 2011 AIR SCW 286 A V4f‘ 23.After appreciating the evidence avai1able on record and placing reliance upon the dying declaration, the trial Court has convicted and sentenced the appeilant in the aforesaid manner for causing fatal blow on abdomen by knife having sufficient depth affecting stomach which shows grave intention of the appellant for causing such homicidal death. While convicting and sentencing the appellant under Section 302 of the IPC, the Additional Sessions Judge has not committed any illegality or innrmity requiring interference in exercise of appellate jurisdiction. 24.Consequently, we do not find any substance in the appeal, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. ,ArrA ,i ,/* r, Sd/- ‘ Sd/— R.L.Jhanwar 7 ' T.P Shanna Judge (K Judge Soma