;:S:BS "oiSii'ls^Jt f . "1(8.^ ""yiEll^ ?iS-;iSi' l:'fa,^, 5;;!'":"Nte.k ^/ HIGH COURT OF CHHATTES6ARH AT BILASPUR DIVISION BENCH: HON'BLE MR. &HIRENDRA MISHRA <S HON'BLE MR. R.N. CHAN&RAKAR. JJ APPEU.AWS (Injail) CRIMINAL APPEAL N0.744/2003 (Criminal Appeal U/s 374 (2) of Cr.P.C.) 1. Shibo, S/o Chaitu Mahara, Age 30 years, R/o Village Junavani 2. Ramdas, S/o Sameer Mahara, Age 35 years, R/o Village Junavani. 3. Mahangu, S/o Sahdeo, Age 25 year, R/o Village Chhote Dewda, Junavani. 4. Shankar, S^o Chaituram Mahara, Age 27 year, R/o Villag? Junavani, Distt. Bastar. Vs RESPONOENT State of Chhattisgarh, Through Police Station Nagarnar, Distt. Bastar. Present; Mr. Vimlesh Bajpai, Advocate for the appellants. Mr. S. Yadav, Dy. 6ovt. Advocate for the respondent-State. ORAL JUDGMENT (09th October. 2009) Dhirendra Mishra, J; 1. The appellants have preferred this criminal appeal under Section374 (2) of the Cr.P.C. against the judgment of conviction and order of sentence dated 17.7.2002 passed in S.T. No.355/2001 whereby learned Special Judge, (Atrocities), Bastar after holding the appellants guilty under Sections 341 & 302/34 of the IPC, sentenced each of the appellants to undergo S.I. for 1 month and R.I. for life & fine of Rs.1,000/-, in default to undergo additional R.I. for one year respectively for causing homicidal death of Rajesh. 2. Case of the prosecution, in brief, is that on 18.6.2001 Rajesh had gone to Village Talnaar with his mother Kamli Bai <& aunt Sukaldei for attending some function and while he was returning from Village Talnaar in the evening at 6.00 p.m. uvith his rnother <& aunt, the appellants attacked Rajesh with an intention to cause his death on account of some land related dispute. Appellant Shibo was armed with Jsattleaxe, Mahangu was armed with axe, Ramdas was hplding dagger '^•. t' :'iiis;s<iiSi, s .^i^/' '"tIS!i: :!«!<"'' Si^ ^w-m^ and Shankar was holding club. They all caused various injuries on the person of the deceased. 3. On the information by Kamli Bai <& Sukaldei, Budhsen lodged report in \ Police Station Nagarnar, whereupon, the aforesaid crime was registered vide Ex.P-8. Rajesh was admitted in the hospital. He was also sent for medical examination to Maharani Hospital, Jagdalpur and his medico legal examination report is Ex.P-27. In the same incident Kamli Bai also sustained injuries and she was also sent for medicail examination and her medico legal e^amination report is Ex.P-28. Rajesh ,,f, succumbed to the injuries on 21.6.2001 at about 9.10 in Maharani Hospital, Jagdalpur. Morgue was registered in Police Station Nagarnar vide Ex.P-24. Inquest over the dead body of deceased was prepared in the presence of witnesses vide Ex.P-42. t>ead body was sent for autopsy to Maharani Hospital, Jagdalpur where &r. V.S. Thakur conducted postmortem and gave his report vide Ex.P-15. The Deputy Collector Shri G.R. Mandavi had recorded dying declaration (Ex.P-9) of deceased Rajesh on 19.6.2001. On the memorandum of accused Ramdas (Ex.P-4), Shibo (Ex.P-6), Shankar (Ex.P-28) and Mahangu (Ex.P-30) weapons of offence axe, battleaxe, club were taken into possession vide Ex.P-5, P-7, P-29 <& P-31. 4. After completing investigation, charge sheet was filed in the Court of the learned Judicial AAagistrate 1 Class, Jagdalpur, who in turn committed the case to learned Sessions Judge, Jagdalpur from where the legrned Additional Sessions Judge received the case on transfer for trial. Learned trial Court framed charge under Sections 341, 120B, 302/34 <& 302 of the IPC against the accused/appellants, who abjured their guilt. The prosecution, in order to establish the charges against the accused/appellants, examined sixteen witnesses in all. Thereafter, statements of the accused/appellants were recorded under Section 313 of Cr.P.C. in uvhich they denied the circumstances appearing against them in the prosecution case and pleaded innocence & false implication. The accused persons also examined five witnesses in their defence. se'»l!s*g*. ViwW»'it^S •:cl''~£^:;i?%. 5. Learned trial court after hearing the arguments of learned counsel for the respective parties, convicted and sentenced the appellants herein, as aforementioned. v 6. Homicidal death of deceased Rajesh is not in dispute. Even otherwise, from the evidence of injured eyewitness Kamli Bai and eyewitness Sukaldei, oral dying declaKation of the deceased before Budhsen & Ramnath and dying declaration of Ex.P-9 recorded by the Executive Magistrate Shri 6.R. Mandavi (PW-16) and further considering the •'•!. evidence of Dr. V.K. Thakur (P.W-13), who has conducted postmortem \. over the person of deceased, fdund fbllowing injuries on his person and opined cause of death of deceased as syncope due to cardio respiratory arrest and has further opined that deceased died homicidal death, the homicidal death of deceased Rajesh is established. INJURIES SUSTAINED BY THE DECEASEb: 1. Incised wound on the left check to left temporal region of skull of the size of 6" length. 2. Incised wound-oblique direction, on the right side of temporal region of the size 5" length 2" above right ear. 3. Incised wound- oblique direction of the size 1 T" below injury no.2. 4. Lacerated wound of size 2 |-cm x 1 ?cm over occipital region of skull. 5. Incised wound over left side of the neck of the size 5 inches. 6. Incised wound over the right joint of wrist of the length 2". 7. Incised wound on left deltoid region of the length 4 inches 8. Incised wound on left side of deltoid region of the size 2". 9. Incised wound on middle of left arm of the length 2" 10. Incised wound above the elbow joint of the size 3" length. 11. Incised wound on the middle of left forearm of the size 3 i" length. 12. Ineised wound on the left wrist joint of the size 2" length. IS.Incised wound on the left illic region transverse directions 14. Incised wound on knee joint of the size 2" length. 15. Incised stitched wound on right below the right knee joint of the size 5" length. 7. Mr. Bajpai, learned counsel for the appellants argued that conviction is based on the evidence of alleged eyewitnesses namely Kamli Bai (PW-6) <& Sukaldie (PW-6). Kamli Bai (PW-6) is mother of the deceased, •^a^ iaii !J ^••^ss' (S) untrustworthy or doubtful. The fact that this witness also sustained injuries in the same incident caused by the appellants proves her presence at the place of incident. \ IZ.Version of Kamli Bai (PW-6) is duly corroborated from the evidence of Sukaldie (PW-5) who has also deposed that at the tjme of incident she accompanied Rajesh and Kamli Bai in another cycle with Boti when the appellants armed with weapons started assaulting Rajesh. She has further stated that KamJi Bai was also assaulted by Ramdas <& Shankar and thereafter the deceased was tgken to the hospital. Minor omissions and contradictions present in the eviijence of this witness does not impeach her credibility. IS.Argument of learned counsel for the appellants that independent witnesses though available have not been examined is also not correct as Tulsiram, Boti <& Kartal have been examined as independent witnesses, however, they have not supported the prosecution case. Version of two eyewitnesses is further corroborated from the evidence of other hostile prpsecution witnesses who have also deposed that while returning from Talnar, Botiram, Sukaldie <& Kamli accompanied the deceased when they reached the place of incident. 14.1ndisputably, there was dispute between the appellants and the complainant party and cases are pending in the courts of S.D.M. & C.J.M. and thus, the appellants had a motive for committing the offence. Apart from the evidence of above two eyewitnesses, dying declaration of the deceased has also been recorded by the Executive Magistrate Shri 6.R. Mandavi. Budhsingh (PW-4) <& Ramnath (PW-10) are the witnesses of oral dying declaration made before them by the deceased. There is no evidence on record to show that deceased Rajesh was not in a fit condition to speak. Witnesses have categorically denied the suggestion that the deceased was unconscious and he was not able to speak. 15. The Executive Magistrate/Deputy Collector Shri G.R. Mandavi (PW-16) has deposed that on 19.6.2001 he went to Maharani Hospital, Jagdalpur •iiii Mt, : t ""^: .<; ^ le' ^Sff^" Uvss'i-w.e'W i'":®":B3®S l;l^teteS.I"s< 'f^ on being infor-med by the police that he has to record dying declaration of Rajesh. Thereafter, he recorded statement of Rajesh who had sustained various injuries on his neck, head and other parts of the body. He recorded the statement as stated by the deceased and thereafter he obtained signature of the deceased over his statement. It is true that there is no endorsement of the doctor in the dying declaration that the decease'd was fit to give statement, however, only on that ground the dyin9 declaration cannot be discarded, particularly when the dying declaration bears signature of the deceased and the same is also signed by the 'other witnesses. Shri Mandavi has categorically denied the suggestion that Rajesh was unconscious and therefore, he was not able to speak. Since the Executive Magistrate is an independent witness, his above version cannot be disbelieved. 16.Dalpat (PW-9) <& Ramnath (PW-10) have also stated that deceased Rajesh was interrogated before them by the police and doctors and he has stated categorically that all the four accused persons had assaulted him on account of land related dispute and the same was recorded. 17./Ippellant Shankar has examined defence witness Sukhdeo (DW-5) and Kedar (DW-3) in his defence. These witnesses have deposed that appellant Shankar had gone to Jagdalpur with them, however, it was the onus of the appellant Shankar to establish the defence of alibi conclusively. On due examination of evidence of the aforesaid witnesses the trial court has rightly held that their evidence is not trustworthy. 18. Sonuram (&W-1) has stated that incident occurred at a distance of 30- 40 feet from his shop. 7-8 persons had chased two cyclists who ran away leaving their cycles. There were no womenfolk at that time. One injured person was lying on the road. He was alone and there is no woman present at that time, however, subsequently few ladies came there. Rameshwar (DW-2) has also deposed in the same way. Sukhlal (OW-4) has deposed that on the date of incident the appellant Mahangu ^ame to him in injured condition and he was having injuries over his ..-^''.y :n .i^^.^ •"!; head. However, he did not enquire from Mahangu as to how he sustained those injuries. 19. Version of the defence witnesses is of no help to the defence as it \ does not throuv any light as to how incident occurred. Thus, we are of the considered opinion that the triat court has rightly convicted the appellants on the basis of evidence of eyewitnesses Kamli Bai (PW-6) <& Sukaldie (PW-5) as also on the basis of evidence of oral dying declaration and dying- declaration recorded by the Executive Magistrate Shri G.R. Mandavi (PWffl6). 20. In the result, there is no substance 1n. this appeal, the same deserves J^be dismissed and is, accordingly, hereby dismissed. Sd./- Ira' idge 'iir.-B Sd/- R.N. Chandrakar Judge Roshan/-