y-Sv, ^ v /L^- HIGH COURT OF CHHATTISGARH AT mLASPUR DIVISION BENCH CORAM: HON'BLE BtR. T.P. SHARMA & HON'BLEMR. R.L. JHANWAR, JJ. CRIMINAL APPEAL No. 115/2006 Ml APPELLANT VERSUS RESPONDENt Dhansingh S/o Mangalsai, Caste Gond, aged about 36 years, Village Madamnar Mahtma Gawadi, Police Station Chhotedongar, District Bastar. , State of Chhattisgarh; through Police Station Chhotedongar, District Bastar. CRIMINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF GRIMINALI'ROCEDURE. 1973. Present:-Mr. Ranbir Singh Marhas, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. I't!'-.:-1 ORAL-JUDGEMENT (Passedon 18/02/2011) The following iudgrnent of the Court was passed bv TJ>. SharBia.J:- 1. Chatlenge in this appeal is to' the judgment of eonviction and order of sentencedated 20/1/2006 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 438/2005 whereby and where under after holding the appellant guilty for the conunissiQn of offence of culpable homicide amounting to murder of Kishnu convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of the proseeution, on fateful evening of 3/9/2005 at about 7:00 P.M. Kishnu (since deceased) was standing near his hQuse, appeUant who was hiding himself behind the tree.standing on the Eeld of Manglu shot arrow upon Kishnu and caused fatal injiuy, Kishnu watked up to the house of PW2 Sukhdal whom he-,.made dying declaration. He also shouted to his mofher that appellant has shot arrow thereafter he died. On second day marg intimation was recorded vide Ex. P-1. First Information Report was lodged by PW1 Chaitibai vide Ex. P-2. Spot map was prepared vide Ex. P-3. Invesfigating Officer left for scene of occiu-rence and after SLimmoning the witnesses vide Ex. P-5. Inquest over the dead bpdy of Kishnu was prepared vide Ex. P-4. Blood stained and plain soil were recovered from the spot vide Ex. P-8. Arrow rempved fi-om the body of deceased Kishnu was seized vide Ex. P-9. ' Dead; body; pf 'Ki&B,nu ;was sent, for autopsy; to KBI s^ 77 INii! 1' \ Primary Health Center, Chhotedongar vide Ex. P-13 where PW6 Dr. Prabhakar Dhote conducted autopsy vide Ex. P-16 and found one stab wound over chest near nipple of 3 x 0<5 c.m. with considerable depth and penetrated injury was found over stomach. Mode of death was shock and death was homicidal in nature. During course of investigation, accused/appellant was taken into custody, he made discloser statement ofbow vide Ex. P-6, same was recovered at his instance vide Ex. P-7. Sealed cloths of deceased Kishnu was seized vide Ex. P-10. Statements of the witnesses were recorded under SeGtion 161oftheCode,ofCriminalProcedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate Fu-st Class, Jagdalp'ur who in turn committed the case to^the Court ;of Sessions.idagdalpiu'. • - In order to prove the guilt of the appellant/accused prosecution examined as many as 6 witnesses. Accused/appellant was examined under Section 313 of the Code where he denied the circunistances appearing against him, innocency and false implication in crime in question is claiined. After affording an^gR@prtyiuty,pf hearing tp the parties leamed Sessions Judge, Bastar at Jagdalpur has xiio.gl Maire ^dqg oi[A"tBLp 'SSS' oi'?ftUt[STy'^ia'ffe9o3p 'sitp .[Oj 3tclTSS<31i ^ovl SBA V1 V^t JG aojnos Xire jo souasqB m 'saouBisuinojp ssai.p HI •nuqsr^ pasBsoap atp HIOJJ sotiBisip s^qBjapisuoo §uiA^q sa-i^ SI.R pt.nrqaq uoii.isod usppiq ui SBM ^uBnaddB ^Bip: ^BSASJ qojqM g-d -xg dBCT ^ods p3jBd3.id SBq uoi^noasojd '3:)Bld.3[00^ ^uapraui VL3VQ. ssnoq siiq mojj ^no SUIBO nuL[si3[ pssBsoap usqA reaxH ")X[§iu siq guo[B^ .iayv'll'^q§i:u ye saeid ?[oo; ^usppui 'ssssau^iM. ai^ ip.oq jo souapiAa jsd SB ^q^ panSje jsqi.jnj tUBnsdd'B aq^ -ioj psunoo paujBaq •nuqsT^ pssBsosp ^q apBui uopBJrepap SvifSp aq^7p3urti[sSJ'd"'^3ijBs"3q ueo '^.r Hjsq^ o^ (pasBaoap soms) nuLisi^ pajnfuT^q pa^'e^s SBM^BqM ^ino^ 3VQ sjojaq pasodap 3A^q Xstp 'yev^ psnTiiiqns pue souapiAa jraq^ jo ssaup-ijt.pn.q Supndstp tou ST sq 'BSJB ^sa-ioj •3-i vajs aiouisj jo ^.uspissj pue sja§B^TA opsru 3JB UOpBJBpSp gULltp psSs^YB JO sassau^iA 'repiping SAVd % TBqBTBI'IO TMd ^ip 40Bj aq^ Siiuspisuoo ^q^ psnSje ^puaui9i.[3A ^UB^add^ SLp, joj psunoo p3u.rey[ •pasrusd Aopq i-m.03 jo pjoosj PLTG psu8ndu.il ^usuiSpnp -pjesq aje ^uspuodssj/a^B^g 3Vft JQJ -q-j 'i-[§uTg aqsiN nqpay^ •s]/\[ pire ^uBipddB av^ joj psunoo paujes^ 's'eqjB]^ L[§UIS -tiqtrey •j.yi •p3UOT).U3UJ3JOJB STS ^irenaddB stp paoua^uss pue pa^aiAuoo B^. ^B'.- u^':^- ^e::.:: 1:!: !1 ii::i:l which place therefore, the factum of dying declaration made by him to witnesses does not inspire confidence & tn-istworthy and-saine is not safe to rely for the conviction of heinous offence i.e. murder. 10. On the other hand, leamed P.L. for the respondent/State opposed the appeal and argued that evidence of PW1 Chaitibai & PW2 Sukhdai whom deceased Kishnu raade dying declaration are sufficient for drawing an inference that present appellant has com.m.itted homicidal death of Kishnu. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence addueed on behalf of fhe prosecution. 12. In the present case, homicidal death as a result of fatal inj,uryJouTl4, ,PS?r ftt&i^o^.y, ,p,f ^^efl.sed Kishnu ,has not been substantially disputed on behalf of the appellant on'the ofher hand, otherwise also established by the evidence of PW6 Dr. -Prabhakar Dhote and ^.utopsy report Ex. P-16 and deathwas homicidal in nature. 13. As regard the complicity of the appellant in erime in question, the conviction ofthe appellant is based on the factum of dying declaration made by deceased Kishnu to PW1 Chaitibai (mother of deceased Kishnu),85 PW2 Sukhdai.As per evidence of both the witnesses, deceased Kishnu shouted and made dying deqlaratiQn . -~^—\-\-'rr•':".".' i''".|1'^ "'Tld •ctc^T^i'^vr'"^ no^'': ::<;^? •l'!tS% !:'s^' ;^:^'.;- ?i; :.:.i \ ''•''•:.:•;.''? lli if 14. "-•s. that Dhansingh has shot arrow upon him, they have also seen the arrow upon the body of injured Kishnu who subsequently died. PW1 Chaitibai has renioved arrow from the body of Kishnu. She has lodged marg intiraation and First Information Report Exs. P-l 85 P-2. DeEnitely, they are rustic villagers and resident of remote forest area there is some discrepancy in their eyidence but on the ground of aforesaid discrepancy, their evidenee cannot be discarded. Evidence of PW1 Chaitibai & PW2 Sukhdai are sufficient for drawing an inference that injured Kishnu has ma.de dying declaration before his, de^.th that present appellant has shot arrow to him. As regard the truthfukiess of dying declaration and factum of dying deelaration is concemed, .as per evidence,^of,FWli,C;haitibai,.,afiter 'taking nighti meal deceased Kishnu went from his house at night thereafter he shouted that appellant has shot arrow to him. PW2 Sukhdai has also corroborated the sarae fact that incident took place at night. As per evidence of PW3 Mirgeen, incident took place at night, this is incident of forest viU.age.As per spot map Ex. P-3, dpes not reveal the a.Yailabili,tx,_gf source pf Ught, appellant was also hidden near tree standing on the field bf one Manglu, deceased Kishnu was standing another side of hl i|l:!i- E.:j:Siaa^' 1 -y- r-!' •'iit 15. road. Incident took place at night and in absence of any source of light facility and the fact that appellant was hiding himself behind the tree and has shot arrow it was difficult for anyperson to see that who has shot arrow and that too from which place. This is not a case in which after causing such injury, appellant came out from the place where he was hidden and exposed himself before deceased or any other person or witnesses had caught red-handed the appellant or has chased the appellant. In these circum.stances, it is diffieult to hold that deceased Kishnu has seen the appeUant while he received injury by arrow shot and has made la-i^thful d5ting,,declaration to EW1 Chaitibai & PW2 Sukhdai. In the aforesaid circumstances there may be mistaken identity therefore in absence of corroboration such uncorroborated dyuigdeclaration would not besafe to rely, whUe dealing with the question of reliabiUty of dying declaration in afpresaid circumstances in case of Puarelal V. State ofJtf.P.^ High Court of M.P. has observed that where the deceased was sleeping when he was fired on his abdomen at night and was erying in agony, he could not haye eorrectly identified the assailant and calling 'pyt rthe name pf acci-ised as \I_1994er.L.J.958(Para IO)(M.P. ^ ,.<.'" /• R assailant tb his relatives could be a case of mistaken identity and such uncorroborated dying declaration could not be relied upon- 16. Prosecution has not collected any other evidence to conriect the appeUant with crirae in question. Evidence adduced on behalf of the prosecution is not siifficient for conviction of the appellant for commission of murder of Kishnu'punishable under Section 302 of the Indian Penal Code. While convicting the appellant under Seetion 302 of the Indian Penal Code Court below has not considered the aforesaid evidence and provability possibility of truthfulness of dying declaration rnade by ; deceased Kishnu [thereby committed an iUegality. Consequently, conviction and sentence imposed upon the appeUant by trial Court is not sustainable under the law. , 17. For .the-foregQing, .rea,sprts,;-.crimmal appeal deserves to be allowed and is hereby allowed. Convicfion and sentence ofthe appellant Dhansingh underSection 302 of the Indian Penal Code is hereby set-aside. He be set at liberty at once. He be released forthwith, if not required in any othercase. Sd/- T.P. Shagna Judge Sd/- R.L.Jhanwar Judge i- rf- 'A K + <>