HIGH COURT OF CHHATTISGARH. BILASPUR l, 3 ^ Criminal Appeal No.780 of 2005 APPELLANT: (In Jail) RESPONDENT/: (Prosecution) Rainu Ram S/o Ranjeet Gond, aged about 50 years R/o Village Ghotha, P.S. Bhanu Pratappur Distt. North Bastar, Kanker (C.G.) Versus State of C.G., Through S.H.O. of P.S. Bhanu Pratappur, District North Bastar, Kanker (C.G.) {Appeal under Section 374 Criminal Procedure Code, 1973} Present: Mr. Ravish Verma, counsel for the appellant. Mrs. Madhunisha Singh, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and_ Hon'ble Mr. R.N. Chandrakar, JJ ORAL JUDGMENT (16-6-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & orderof sentence dated 11-8-2005 passed by the 4 Additional Sessions Judge (FTC), Kanker in Sessions Trial No.326/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife Amro Bai, convicted the appellant under Section 302 ofthe IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.1,000/-, in default of payment of fine to further undergo Rl for six months. 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. 3. As per case of the prosecution, on the fateful day of 26-9-2004 at about 10 p.m. unfortunate deceased Amro Bai - wife of the appellant was residing with the appellant in the house of the appellant where the appellant assaulted her by stick over her left arm and chest causing serious injuries, and after closing the door from outside, the appellant fled away from the spot. Jagdish (PW-1) - son of the appellant & the deceased was informed, he came and took his mother AmrS^Bai to hospital for treatment. He lodged FIR at Police Station Bhanupratappur vide Ex.P-1. Offence punishable under Sections 451, 506B & 323 of the IPC was initially registered. Injured Amro Bai made dying declaration before her son Jagdish (PW-1), Sonbati (PW-2), Bisahin Bai (PW-3), Jaibati (PW-4), Rajbati (PW-5) & Karim (PW-6) that the appellant (her husband) has caused fatal injuries on her person. Injured Amro Bai was examined by Dr. Prakash Patil (PW-16) vide Ex.P-27 who found following injuries on her person: - (1) Contusions of6 c.m. x3 c.m. and 5 c.m. x 3 c.m. over left arm with deformity of hand. (2) Contusion of 10 c.m. x 3 c.m. over left side of chest. (3) Contusions of 8 c.m. x 3 c.m. and 8 c.m. x 3 c.m. on back portion. (4) Two lacerated wounds of 1 c.m. x Vzc.m. x 1/2 c.m. over left side of chest. Injured Amro Bai was also examined radiologically and on her examination commuted fracture of left hand, fracture of left femor, and fracture of 2 & 7 left ribs were found vide Ex.P-28. During the course of treatment she died on 27-9-2004. Merg was intimated vide Ex.P-20. Merg was recorded vide Ex.P-21. After summoning the witnesses vide Ex.P-2, inquest over the dead body of the deceased was prepared vide Ex.P-3. Blood stained khathri (bed sheet) was seized vide Ex.P-4. The appellant absconded from his house. Panchnama was prepared vide Ex.P-6. Spot map was prepared vide Ex.P-8. Bloodstained and plain soil were recovered from the spot vide Ex. P-9. Dead body was sent for autopsy to Community Health Centre, Bhanupratappur vide Ex.P-21. Dr. Prakash Patil (PW-16) conducted autopsy vide Ex.P-31 and found aforesaid injuries which have been noticed vide Ex. P-27 along with rupture of plural cavity of left lung. Cause of death was asphyxia as a result of injury over chest. During the course of investigation, the accused was taken into custody, he made discloser statement of stick vide Ex.P-10 and same was recovered at the instance of the accused/ appellant vide Ex. P-11. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was fited before the Court of Judicial Magistrate First Class, Bhanupratappur who I: ^ "Mj committed the case to the Court of Sessions, Jagdalpur from where learned Additional Sessions Judge received the case ontransfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as sixteen witnesses. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. He has also taken the defence of alibi. He has examined Bhanjan Singh (DW-1) in support of his defence of alibi. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant submits that the incident has not been witnessed by any person, the alleged dying declaration of the deceased does not inspire confidence and it is not trustworthy. The prosecution has not established the factum of presence of the appellant at the time of incident, only on the ground that the appellant is husband of deceased Amro Bai, no inference can be legally possible that the appellant has caused aforesaid injuries resulting in her death. Even otherwise, initially the case has been registered for the offence punishable under Sections 451, 506B & 323 of the IPC, at that time, no serious and grievous injury was noticed on the person of the deceased and it appears that the deceased died as a result of subsequent injuries caused to her may be by falling or otherwise. Therefore, the appellant is not liable for commission ofculpable homicide amounting to murder ofAmro Bai. 9. On the other hand, learned State counsel opposes the appeal and submits that the .appellant was present at the time of incident and the deceased has made dying declaration which is totally corroborated by the prosecution witnesses. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that only the appellant has caused aforesaid injuries resulting in death of the deceased. After appreciating the evidence adduced on behalf of the prosecution, the trial Court has rightly convicted & sentenced the appellant. ^^K--.^ (S 10.1n order to appreciate the arguments advanced on behalf of the parties, We have examined the evidence adduced on behalfofthe parties. 11.1n the present case, homicidal death of deceased Amro Bai as a result of fatal injuries found over her person has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Prakash Patil (PW-16), medical examination report Ex. P-27 and autopsy report Ex.P-31 thatdeathofAmro Bai was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, the appellant has examined defence witness Bhanjan Singh (DW-1) relating to the defence of alibi. Bhanjan Singh (DW-1) has deposed that he is maternal nephew of the appellant and the appellant is his mama, since 25-9-2004 the appellant was with him up to 27-9-2004, during the alleged incident, on account of marriage of his sister Alotin. In para 10 of his cross-examination, he has deposed that he do not know the name of his maternal aunt i.e. the alleged deceased Amro Bai. He has admitted the fact that for marriage of maternal niece i.e. bhanji, presence of matemal uncle & maternal aunt (mama & mami) is necessary, but maternal aunt deceased Amro Bai has refused to come to the marriage. Contradictory evidence of this defence witness reveals that he does not anything about the inddent and he has deposed only with a view to defend and support the appellant. His evidence does not inspire confidence, it is not trustworthy, the trial Court has rightly rejected his evidence and the evidence of the defence of alibi. 13.Conviction of the appellant is substantially based on evidence of dying declaration made by the deceased to Jagdish (PW-1) - her son, Sonbati (PW-2), Bisahin Bai (PW-3), Jaibati (PW-4) - her daughter, Rajbati (PW- 5) & Karim (PW-6) who have clearly deposed that after theincident Amro Bai was in conscious stage and she made dying declaration that her husband has assaulted her by stick. As per evidence of Devantin Bai (PW-7) - wife of Jagdish (PW-1), she was called by Jagdish from one bhajan function, her mother-in-law Amro Bai was inside the room, the room was closed from outside, then she opened the door and went inside where the appellant was not present, but Amro Bai was present with injuries and they shifted her to the hospital for treatment. Defence has cross-examined these witnesses in detail, but it has not been able to elicit anything in their cross-examination to discredit their testimony, especially relating to the fact that the appetlant was not present up to 10 p.m. in the house of the deceased, deceased Amro Bai has not made dying declaration before them and the room was not closed from outside. 14.The principle of dying declaration is based on legal maxim "nemo mohturus proesumitur mentirF— a man will not meet his maker with a lie in his mouth. 15.Lord ChiefJustice 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 gone; when 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 taw as creating an obligation, equal to that which is imposed by a positive oath in a court ofjustice..." 16-While dealing with the question of dying declaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav (AIR 1985 SC 416) has held that if the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. 17.1n the present case, dying declaration made by the deceased before aforesaid witnesses inspires confidence, it is trustworthy and same can be safely relied upon. Aforesaid evidence is -sufficient to establish the fact that the appellant was present at the time of incident, he has caused fatal injuries to his wife and as a result of such injuries, his wife died. 18.After appreciating the evidence available on record, learned Additional Sessions Judge convicted & sentenced, the appellant. On close scrutiny of evidence, we do not find any illegality or infirmity in the judgment. 19.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. Som£ Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge M. ItJ^ 1 111-