HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 1041 of 1994 f' Ghusu alias Santosh Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT HON'BLE SHRI JUSTICE RAJEEV GUPTA For consideration Sd/- Sunil Kumar Sinha Judge 3. ^y^ J^- Sd/- Chief Justice PostforJudgment : <g /04/2011 Sd/- Sunil Kumar Sinha Judge ^-s»^, ^Q^y^ • --^. ^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. APPELLANT CRIMINAL APPEAL N0.1041/1994 Ghusu alias Santosh S/o Beniram Verma Kurmi, Aged 22 years, R/o Atari, Thana Patan, District Durg RESPONDENT Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through Police Station Patan District Durg CRIMINAL APPEAL UNDER SECTION 374(21 OF THE CODE OF CRIMINAL PROCEDURE Appearance: Mr. Abhay Tiwari and Mrs. Savita Tiwari, Counsel for the appellant. Mr. Kishore Bhaduri, Additional Advocate General for the State. JUDGMENT (08.04.2011) Following judgment of Sunil Kumar Sinha. J. the Court was delivered by (1) This appeal is directed against the judgment dated 20.01.1994 passed in S.T. No.49/93 by the First Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life. (2) The facts, briefly stated, are as under: On 19.10.1991 at about 8 - 9:00 p.m., deceased -Laxminath had gone to the village tank. The allegations are that he was assaulted by a Tangia by the appellant. This was witnessed by Sukalu Ram (PW-2) and Santosh Kumar Dhimar (PW-4). The incident was reported to Bisambhar Verma (PW-1 - father of the deceased). He immediately rushed to the place of occurrence. He saw injury on the head of the deceased. The deceased was conscious at that time. He made oral dying declaration that he was assaulted by the appellant by Tangia on his head. Pratap Singh .^^•^.:, f,r % ^,J/ "%.„. t"^.^ •.^Ktjti^" CRIMINAL APPEAL N0.1041/1994 (^ (PW-3) was also a witness of oral dying declaration. The First Information Report (Ex.P/1) was lodged in Police Station-Patan by Bisambhar Verma.(PW-l). The deceased was admitted in the hospital and was examined by Dr.R.S. Thakur (PW-9), who found that there was an incised wound of 4 x2 x 2 inch on the back portion of the skull. Blood was coming out from the wound. His blood pressure and pulse were normal. His condition was gradually deteriorating. The Injury Report is Ex.P/22. The deceased died in the hospital during the course of his treatment. After the information, the Investigating Officer reached to the hospital, gave notice (Ex.P/2) to the Panchas; and prepared inquest (Ex.P/3) on the body of the deceased. The dead body of the deceased was sent for postmortem. The postmortem examination was conducted by Dr. M.C. Mehnot (PW-10). He also noticed an incised wound on the back portion of the skull of the deceased. On internal examination, he found that there were fractures on occipital and temporal bones. The Autopsy Surgeon opined that the cause of death was shock and haemorrhage on account of the injury of the skull and it was homicidal in nature. The postmortem report is Ex.P/29. During the course of investigation, the Tangia was seized vide seizure memo-Ex.P/4; blood stained soil and plain soil were seized from the place of occurrence vide seizure memo-Ex.P/7. A pair of plastic chappals was seized vide seizure memo-Ex.P/8. Site plan was also prepared. After completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the concerned Sessions Court, from where.it was received on transfer by the First Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as aforementioned. (3) The conviction of the appellant is based on the eyewitness account of Sukalu Ram (PW-2) and Santosh Kumar Dhimar (PW-4). It is further based on the oral dying declaration made by the deceased before his father - Bisambhar Verma (PW-1) and Pratap Singh (PW-3). ^^%.:. v ^^ ^ ^!:'"'-"':^ .-^^^. ^ CRIMINAL APPEAL N0.1041/1994 (4) Mr. Abhay Tiwari and Mrs. Savita Tiwari, learned counsel appearing on behalf of the appellant, argued that the two eyewitnesses are not reliable; the evidence of oral dying declaration is also shaky; therefore, the conviction ofthe appellant cannot besustained. (5) On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. (7) Sukalu Ram (PW-2) was a student of B.A. Part - I. The appellant was well known to him. On the fateful day, at about 8-9:00 p.m., he had gone to village tank with his brother Dukalu, Santosh Kumar Dhimar (PW- 4) and Harishankar. They had gone for teeth wash. Deceased- Laxminath also came to the bank. As soon as they sat for mouthwash, Laxminath also sat near them. He was not washing his teeth. When he heard some noise, he saw that Laxminath was lying on the ground and the appellant was standing near him with Tangia in his hands. The appellant said that he will also kill the father of Laxminath. He caught the Tangia of the appellant. Thereafter, all ofthem cried.Some scuffle took place between his younger brother and the appellant. Many persons including Pratap Singh (PW-3) also came there. Seeing all this, the appellant ran away from the place of occurrence. Laxminath was taken to the road near his house. Santosh Kumar Dhimar (PW-4) also deposed in similar fashion. He clearly deposed that "the appellant had given a Tangia blow to the deceased; the deceased had fell down and the appellant was standing (' N- ^. ( 4 CRIMINALAPPEALNO.J041/1994 near him having Tangia in his hands. They had caught the Tangia from the hands of the appellant." Though these witnesses have been cross- examined at length by the defence, but the defence has not been ableto elicit any such circumstance, on which, either their testimonies may be discarded or it may be said that they are falsely implicating the appellant in crime in question. (8) Bisambhar Verma (PW-1) is the witness of oral dying declaration. He deposed that when he reached to his son and asked as to who assaulted him, his son replied that the appellant has assaulted him by Tangia. Bisambhar Verma (PW-1) has lodged the FIR (Ex.P/1). The incident had taken place in between 8-9:00 p.m. and the FIR was lodged at about 9:30 p.m. In the FIR, Bisambhar Verma (PW-1) has mentioned that his son made oral dying declaration before him that he was assaulted by the appellant. The evidence of Bisambhar Verma (PW-1) is corroborated by the contents of FIR. The other witness of oral dying declaration is Pratap Singh (PW-3). He deposed that when he heard the cries, he also went to the place, where, the deceased was kept by the villagers. The deceased was in injured condition. Father of the deceased Bisambhar Verma (PW-1) came there and asked the deceased as to who assaulted him, on which, the deceased replied that he was assaulted by Santosh who is also called as Ghusu. There is no infirmity in the evidence of these two witnesses also. They have corroborated the evidence of each other and it was established on their evidence that the deceased made oral dying declaration before his father Bisambar Verma (PW-1) and Pratap Singh (PW-3), in presence of other villagers. (9) Learned counsel for the appellant had argued that looking to the injury received by the deceased, it cannot be said that he was in •^-.> <• CRIMINAL APPEAL N0.1041/1994 conscious condition and was able to give the dying declaration. We cannot accept such argument of learned counsel for the appellant. It comes in the evidence of Dr.R.S. Thakur (PW-9) that when he examined the deceased, blood pressure and pulse of the deceased were normal, though his condition was critical. Certainly, it was the time after the oral dying declaration was made. When the deceased was in such condition at the time of his examination by Dr.R.S. Thakur (PW-9), it cannot be held that he was not conscious at the time of giving oral dying declaration before the villagers including his father-Bisambhar Verma (PW-1) and Pratap Singh (PW-3) (10) For the foregoing reasons, we do not find any infirmity in the judgment and findings recorded by the Sessions Court. The appeal filed by the appellant, therefore, is liable to be dismissed and is hereby dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge shyna