w- CF0000063'64'3' 0-^5^^^ Xii~189ljaiJLlC*J.P.R^-/?-94 . A APPEAL O'F PRISONER ), ..A^ .^. ^^/^. ^n^ ^^^^^^- - No,:. Fazher ?s -name _fv-l ^^^''-^TM^",- - - - ~. ~ -^ O - ' - . R-:-idence .-^^-.^c^^,^^-- _---...- Age^^^——- - slrten d:tQ«^=•^T^-^TO^^- ^r": °" -^£v- 1%-:'^.-- Und.r Section^^^(^^^^^<^y ^^-^ - ^.,..^--^-^-.»35^^^::€-^^-J^^^4~'^~~~^~~~~~ is explained to the p^i.soner that if he s-fcates he wishes -feo , h€^r represenfed by a legal practifioner -fehe appellate Court will ; not prqceed with the case for seyen d ays uniiess, -fchte legal ' , practitioner appears earlier, If the legal practitioner does not aopear wifhins-even days ,he may not heard at all if the Prisoner states that he does not wi$h to be representedb y legal practition- "er the court may proceed af once with fhe case and will not be obliged to give a hearing to my. legal practitioner who should 8ip]p; apoear^ - 1 <» Date. of Application for copy of Jud^ement-s^^^.^ 2, Date en which copy received- 3. Date on which Appeal 5ent- - - -- -^~-^'^y's:®<?•©•--—* • 4. Whether the prisoner ;wishes tb be represQnted or ^©^-t-<<--t^:<t?-:' :r "^gs^?.^^^-- .Nc^.-. ^^T-W^^l/J^-. isfame -^^a^%tPI^^W^J^^ ^rfined' :in ^<3.-e-*-l.&ol^-- - ..- .- jai l- A&^a^: ^.^^-•~:-- -.——' - -S " » ^S^9 ^- - - - ~ Dated^ - -^-/S-/ &-cs-©r99—-. - - -— t.<(,Qether with a copy of judgerrient or order passed iri the ^ase for of transmiss ton to the proper Appeliate Court< ^Vs^- SKR. sownvmf ••>——^NN«—«—^J ci'J-J^—.r-''~"M't.1 ' r •"II'rn1111 ni i iii i Office. D:a';:e of re»eipt in—• Datu of reeeipt ef record^io accompany the T^S-^"/.-.^^^,^ . . -~ '•".'.-. •-. ' Me:ro of Appeal to ^the^ AiSRe.Xla-fce Cburt- - • -^^•^^(.<- .^:^p'^.^ '•. No.- •- - - ^ '». •• Fbrwarded te the :- Date *.......199 Da+e- of receipt inAppe"'late Couri —•^r:y}H^im^^ . $i...,./...t^. ..A^.-^mi.s- /^ / HIGH COURT OF JUDICATURE AT BILA8PUR. (DIVISION BENCH) Criminal Aooeal No.994 of 2000 Saat Kumar Chouhan - Versus - State of Chhattisgarh l^ .TlttSGARH JUDGMENT FOR CONSIDERATION Sd/- JUD GE >>^ 11-2005 HON'BLE MR. JU8TICE DILIP R DESHMUKH Sd/- Dilip Raosaheb Deshmukh Judge POST FOR JUDGMENT ONJe^L,NOVEMBER. 2005 Sd/- L.C. Bhadoo Judge @ HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal Hp.994 of 2000 Saiit Kum.ar Chouhan - VCTSUS - Statc of Chhattisgai'h Preseiit: - Mrs. Kiraii Jaia.Advocate: Mr. Akhil Mislira, Paael La^vyer For the appeUaiit. For the State/respondeiit. DIVI8ION BENCH: - HON'BLE MR. L.C. BHADOO AND HON'BLE MR.DILIP RAOSAHEB DE8HMVKH JJ. JUD GM ENT (DeUvei-ed on^^November, 2005) fHie followinci jud^ment ofths Court was delivewd fo^ L.C. Bhadoo, J> 1. This appeal is directed against the judgitient dated 14.02.2000 delivered in Sessions Trial No.429/98 by Shri Vinod Bhardwaj, Additional Sessions Jiidge, Korba whereby appellant Sant Kuniar was convicted iinder Section 302 of the Indian Penal Code for committing inurder of Sainay Lal on 23.5.1998 at about 7.30 p.m. in Village Kohadia Basti and was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further zindergo S.I. for 03 nionths. 2. The factual matrix lies within a narrow coiiipass. On 23.5.1998 at about 7.30 p.m. Samay Lal had gone for a walk iii Kohadia Basti. The appellant came on a bicycle in a drunken state and saying that Samay Lal you have to face the consequences of qiiarrelling with Pyarelal, took out a kuife and stabbed Samay Lal on the right side of his stomach. Saniay Lal fell down. The appellant ran away. F.I.R. was lodged by Saniay Lal in Police Station Outpost, Ranipiir vide Ex.P-10 wherein nanie of the assailant was not inentioned. It was stated therein that assailant was a giiest of Pyarelal Chouhan. Samay Lal was sent for medical examination. Dr. A.D. Puraina (PW-9) exaniined Saraay Lal and found a stabbed injiiry in the size of 2 x 0.5 cm at the right side of abdomen in the liver area. The raargins were sharp. He advised X-ray of abdom.eu. Sam.ay Lal was admitted in Hundred Bedded Hospital, Korba. On 27,5.1998 Naib Tehsildar Shri B.R. Thakiir (PW-4) recorded the dying declaration of Saniay Lal vide Ex.P-3 who nam.ed Sant Kum.ar as the assailant. Samay Lal succumbed to the injury on 27.5.1998. Post mortem was conducted by Dr, M.S. Paul (PW-8) who found one stab injury in the abdomen hepatic area in rn.id circular line 2 inches below the szib costal line size 1.5 inches in lcngth and peritoneuni deep. The direction of the wound was towards stom.ach. Abdom.inal disteusion was present. He opined that death of Samay Lal was due to syncope as a result of septicaemia due to perforation of the stomach. During investigatiou, Assistant Sub-Inspector Sliri M.M. Khan (PW-11) recovered under the m.emorandum Ex. P-5 of the appellant one iron knife with a wooden handle. After conipletion of iiivestigation, the appellant was prosecuted under Section 302 of the Indian Penal Code. 3. The appellant abjured the guilt, pleaded innocence aiid led no evidence in defence. 4. The prosecution examined as niany as 11 witnesses. Relying upon the evidence led by the prosecution, the trial Judge convicted the appellant under Section 302 of the I.P.C. for coniiiiitting miirder of Sam.ay Lal and sentenced hixn as aforesaid in Para-1. 5. Mrs. Kiran Jain, learned counsel for the appellant has argiied that no legal & reliable evidence was led by the prosecution to justify conviction of the appellant under Section 302 of the I.P.C. Shc has drawn attention of the Court to the fact that in the F.I.R. lodged by the deceased himself, the appellant had not been named as the assailant which renders the testimony of Sawan Bai (PW-1) wife of the deceased wholly unreliable that Samay Lal had told her that he was stabbed by appellant Sant Kuinar. In the alternative, ^^.^.^J'.^...,.^.,--^^^^^^,^^^,. <:-.. learned counsel has coiitended that there was no evidence, which would show niotive for the appellaut to com.mit murder of Saniay Lal. Only a single injury in the stoniach was alleged to have been caused by the appellant and therefore, the offence, if any, coiumitted by the appellant would not travel beyond Section 304 Part-II of the I.P.C. and custodial detention already undergone by the appellant since 18.5.1998 would be sufficient to meet the ends of justice. 6. On the other hand, Mr. Akhil Mishra, learned Panel Lawyer for the State argued in support of the impugned judgxnent. 7. We have heard the rival contentions and also perused the record. The testimony of Dr. M.S. Paul (PW-8) and the injury found on Samay Lal leaves no doubt that death df Samay Lal was hoiaicidal. This aspect has also not been disputed by learned counsel for the appellant during the course of arguraent. 8. Head Constable Gorelal (PW-12) has proved the F.I.R. Ex.P- 10 lodged by Saniay Lal at the Policc Out-post, Ranipur on 23.5.1998 and has iii Para 5 of his testimony clearly stated that the deceased did not nam.e the appellant in the F.I.R. lodged by him.. The F.I.R. Ex.P-10 shows that a guest of Pyarelal was alleged to have stabbed Samay Lal. 9. Now coming to the involvement of accused/appellant in committing the murder of Samay Lal, there is no eyewitness in this case and whole case rests on; (a) dying declaration niade by deceased Samay Lal (Ex. P-3) before tlie Naib Tehsildar Shri B.R. Thakur (PW-4) in presence of Dr. A.D. Piiraina (PW-9) in Sai Hospital, Korba; (b) oral dying declaration niade by deceased Saxnay Lal before his wife nam.ely Sawan Bai (PW-1) and; (c) recovery of weapon of offence i.e. knife at the instance of the accused/appellant in pursuance of information given by hini under Section 27 of the Evidence Act. c <. 10. As far as Point No.l is concerned, the question before the Court is whether a conviction can be based solely on the dying declaration made by the deceased aiid whether the dying declaration made by deceased inspire full confidence of the Court. It would be relevant to have a glance on the law laid down by the Hon'ble Apex Court in this respect. In the matter ofK, Ramachandra Reddy and another Vs< The Public Prosecutor reported in AIR 1976 8UPREME COURT 1994 the Hon'ble Apex Court has held that <<(he dying cleclaration is admissible under Section 32 and not being a staternent on aath so that its truth could be testecl by cross- examination, the Courts have to apply the strictest scrutiny and the close.st circumspectionto the statement before acting upon it. While great solemnity and sanctity is attached to the words ofa dying man because a person on the verge ofdeath is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, proinpting oraproduct ofhis imagination. The Court must be satisfied that the deceased was in a fit state ofmind (o make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he ivas making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. In order to te.st the reliability ofa dying declaration, the Court has to kept in view the circumstances like the opportunity of the dying man for obseri^ation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity ofthe man to remember the facts stated had not been ifnpaired at the time he was making the stateinent by circumstances beyond his control; that the statement has been consistent throughout ifhe had several opportunities of making a dying declaration apart from the official record ofit; and that the statement had been made at the earliest opportunity and was not the result oftutoring by interested parties." One of the important tests of reliability of a dyiiig declaration is that the person who recorded it must be satisfied that the deceased was iu a fit state of mind. The Constitution Bench of tlie Hon'ble Apex Court in the m.atter ofLaxman Vs, State of Maharashtra reported in (2002) 6 Supreme Court Cases 710 has held that; T "The situation in which a nian is on the deathbed is very soleinn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross- exaniitiation are dispensed with. Since the accused has no power of cross-exaniination^ the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the coiirt in its truthfulness and correctness. The court, however, has always to be on guard to see that the stateinent of the deceased was not as a result of either tutoring or promLpting or a product of imagination. The court also m.ust further decide that the deceased was in a fit state of snind and had the opportunity to observe and identify the assailant. Nornially, therefore, thc coiirt in order to satisfy whether the deceased was in a fit mental condition to laiake the dying declaration looks iip to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to inake the declaration, the raedical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the inind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate xaethod of coniiiiunication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration niust nccessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory forni for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testim.ony of the Magistrate that the declarant was fit to make the stateraent even without exainination by the doctor the declaration can be acted upon provided the court ultimately holds the sanie to be voluntary and truthful...?? In the matter of P.V^Radhakrishna Vs. State of Karnataka reported in AIR 2003 8UPREME COURT 2859 ^) 6 <„ the Hon'ble Apex Court has held that "Clciuse (1) of Section 32 makes relevant what is generally described cis dying declczration. The grounds ofadmission are; firstly, necessity for the victim being generally the only principal eye'witness to the crijne, the exclusion ofthe statement might deflect the ends ofjustice; and secondly, the sense ofimpending decith, which creates a sanction equal to the obligation ofan oath. The general principle on which this species of evidence is admitted is that they are declarations rnade in extremity, zohen the party is at the point of death and when every hope of this world is gone, -when every inotive to falsehood is silenced, and the mind is induced by the most powerful eonsiderations to specik the truth; a situation so solemn and so lawful is considered by the law as creating as obligation equal to that which is imposed by a positive oath adininistered in a Court ofjustice. ' Therefore, in view of the law laid down by the Hon'ble Apex Court if a dying declaration inspires full confidence of the Court in its truthfulness & correctness and same stood up to the tests laid down by the Hon'ble Apex Court, the conviction can be based solely on the dying declaration because the sanctity attached behind the dying declaration is that a person on the verge of death will not iinplicate any person in a false case. 11. Now on the basis of above law, we proceed to exainine the facts of the preseut case and also consider the argunients advanced by learned counsel for the accused/appellant. Dying declaration (Ex.P-3) was recorded by the Naib Tehsildar Shri B.R. Thakur-(PW-4) on 27.5.1998 and in this dying declaration deceased Samay Lal had categorically stated that Sant Kuxnar was the person who stabbed hini. PW-4 Shri B,R, Thakur, Naib Tehsildar cum Executive Magistrate, who recorded the above statenient has categorically stated iu Para-2 of his evidence that after reaching the hospital he asked certain qucstions to Sainay Lal and he found that Samay Lal was in a position to understand the questions and reply the same. First of all hc asked the nam.e of declarant and thereafter his father's z^ nanie. Even the deceased disclosed the place where he was stabbed and then he disclosed that Sant Kumar i.e. the present accused/appellant stabbed him with a knife. It is true that in Para-4 this witness has stated that deceased Sam-ay Lal was in injured condition andwas uot able togive answers in clear-cut voice, but this does not niean that Saniay Lal was not able to understand the questions and also was not able to give answers of the sam-c. In the earlier part of evidence, this witness has categorically stated that injured was in a fit condition to give the statement and was understanding the questions and replying the sanie. In cross-exam.ination of this witness the defence counsel has not been able to elicit anything which makes the evidence of this witness unreliable or untrustworthy or that the deceased Samay Lal was not fit to give the statement. PW-9 Dr, A.D. Puraina, who was present at the tinie of recording of dying declaration^ has categorically stated in his evidence that Saniay Lal was in a fit state of m.ind to give the statenient and that is why he gave a certificate on the dying declaration which bears his signatiires between 'C to C?. In the cross-exara.iiiation of this witness also the defence counsel has not been able to elicit any fact that Samay Lal was not in a fit state of niind to give the stateinent. The dying declaration (Ex.P-3) bears the certificate and signatures in which doctor has mentioned that the patient is conscious and can give his statement. Therefore, in view of the above evidence of PW-4 Shri B.R. Thakur and PW-9 Dr. A.D. Puraina it is established that Samay Lal was in a fit state of m-ind to give the statement and infact he gave the statement Ex.P-3 in which he categorically stated that accused Sant Kumar was the author of his stab wound. Nothing has been elicited in the cross-exainination of the Executive Magistrate that Samay Lal gave the false statenient iu order to iniplicate the accused/appellant without any rhym.e or reason. This dying declaration further stands corroborated by the evidence of PW-1 Sawan Bai, wife of the deceased before whom. the deceased m.ade the oral dyiiig declaration when she went to nieet her husband 8 Saxnay Lal in the hospital. She has stated that on her enquiry, Saniay Lal inforraed her that Sant Kiimar stabbed him. In the cross-exaiaination of this witness also the defence has not been able to elicit any circuiastance or fact that the above evidence of this witness, for any reason, is riot reliable or trustworthy. Even in the statement recorded by the police iinder Section 161 of the Cr.P.C. this witness has stated that her husband infornied her in the hospital that Sant Kum.ar was the person who stabbed hini. 12. Now coming to the argum.ents advanced by learned counsel for the acciised/appellant that in the F.I.R., which was lodged none else than by injured Saniay Lal hiniself, the nanie of accused/appellant does not find place, therefore, the dying declaration in which the name of accused was disclosed first tim.e by the deceased cannot be relied upon. If we look into the FJ.R. (Ex. P-10), in this report deceased Samay Lal disclosed that on 23.5.1998 at about 7.30 p.m. when he was going for walk a guest of Pyarelal Chouhan, was coining on a bicycle, met him. on the way and said that you do not know him, you liave quarreled with Pyarelal and at the sanie tiicic he took out a knife from his attire and stabbed him on stomach, the blood started oozing out of it. It is true that in this F.I.R. deceased has not clearly mentioned the name of accused Sant Kuiiiar Chouhan, but he has clearly stated that the assailant was a guest of Pyarelal Chouhan. Siinilarly, in the dying declaration Samay Lal had clearly disclosed the identity of assailant as being the relative of Pyarelal Choiihan. Thus, he had disclosed sufficient identity of the person who stabbed him and there is every possibility that due to pain or for any other reason Saiiiay Lal could not mention the name of accused at the time of lodgiiig the report, but later on he^ discloscd the naiae of accused, This fact has not been denied by the accused that he is not the relative of Pyarelal Chouhan. Even in the police custody the accused/ appellant gave the inforraation (Ex.P-5) under Section 27 of the Evidence Act in which he has stated that weapon of offence has been kept in the house of Pyarelal Chouhan. In pursuance of this c, information the knife was recovered at the instance of the accused from the house of Pyarelal Chouhan under Ex. P-6, which has been proved by the Investigating Officer Shri M.M. Khan, Assistant Sub-Inspector (PW-1 l),who conducted the investigation. 13. Therefore, in view of the above circumstanceSy it is established that acczised/appellant was the author of attack, as the weapon of offence i.e. knife was recovcred froin^ the house of Pyarelal at the instaiice of accused/appellant and the deceased mentioned in the F.I.R. that a relative of Pyarlal Chouhan stabbed hiiii and thereafter in the dying declaration he disclosed the name of accused/appellant and it is adraitted position that accused is the relative ofPyarelal Choiihan. In the cross-exam.ination of Sawan Bai (PW-l)-wife of the deceased or in the cross- examination of PW-4 Shri B.R. Thakur the defence has not been able to bring any circuinstance, which shows that the deceased has iniplicated the acciised in a false case due to animosity or any other reason. Therefore, the conviction can be based on the basis of dying declaration (Ex.P-3) & oral dying declaration raade before Sawan Bai (PW-1), as the same does not suffer froin any infirmity and sarae has stood up to the tests laid down by the Hou'ble Apex Court. The above dying declaration also stands corroborated by the fact that the weapon of offence i.e. knife was recovered at the instance of the accused/appellant based on the information Ex.P-5 given by him to PW-11 Shri M.M. Khan, Investigating Officer and in pursuance of that under Ex.P-6 the weapon of offence was recovered from the residence of Pyarelal Chouhan. The independent witness has also stated that the knife was recovered from. the residence of Pyarelal Chouhan under Ex. P-6. Even though this witness has not supported the prosecution regarding giving information Ex.P-5 but the sanie has been proved by the Investigating Officer (PW-11) and in the cross-examination of this witness tlic defence has not been able to elicit any circum.stance, which makes the above evidence of this witness unreliable. Therefore, we are of the coiisidered opinion that based on the dying 10 /'•'^ ^..... declaration the prosecution has been able to establish the case against the accused/appellant beyond reasonable doubts and the finding to that effect of the trial Court does not require interference by this Court, as there is no infirmity. 14. Now coming to the second limb of argumeut advanced by learned counsel for the accused/appellant that the offence against the accused/appellant does not travel beyond Section 304 Part-11 of the Indiau Penal Code. From the evidence available on record it is established that the accused/appellant all of a sudden stabbed the deceased Samay Lal only once and the deceased died after four days from the date of incident. Post mortem report and the evidence of Dr. Paul (PW-8) shows that death of deceased Saitiay Lal was due to syncope as a result of septicaeaiia diie to perforation of the stomach. Therefore, it appears that the deceased was not treated properly, had the deceased Saniay Lal was given proper treatinent there was every chance of his survival. There is no definite medical opinion on record that the injury inflicted on the stomach of deceased was sufficient in the ordinary course of nature to cause death. There is no evidence on record that the accused assaulted the deceased with a pre-concerted plan with the intention to cazise death, but according to the evidence it appears that the accused all of a siidden without any pre-meditation in a sudden quarrel withouf taking iindue advantage stabbed the deceased. Therefore, the case of the accused is covered under Exception-4 of Section 300 of the Indian Penal Code, 1860 and offence against the accused iinder Section 304 Part-2 was made out for which we are fortified by the decision of the Hon'ble Apex Court in the niatter of Shanmugam alias Kulandaivelu Vs State of Tamil Nadu reported in 2003 Cri,L,J, (Supreme Court) 418 wherein the Court has held that ^accused in a petty quarrel armed with spear stabbed deceased on his abdomen and chest- Victim died a week after the incident, out of septicaemia and evidence of doctor, who attended victirn in the hospital not leading to a definite conclusion as to sufficiency of injuries 11 causing death in the ordinary course and in order to held accused guilty for murder it has to be established that the intention was to cause severe boclily injuries which were likely to cause death in the ordinary course ofnature^ 15. In the result,