iga^|^^^^^^ V'SS9 S^^-i-MK-.saSSX siswiw^ HIGH COURTOFCHHATTi^GARH.BILASPUR APPELLANT: (InJail) RESPONDENT: CriminalAciDeal N0.1040 of 2003 Prem Bahadur alias Pandubbi alias Budhan S/o Lalsai, aged about 55 years, R/o Village Khadoli, Police Station Jhilmili, Distt. Surguja (CG). Versus State of Chhattisgarh, through Police Station Jhilmili,Distt. Surguja (CG). {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: ,; Mr. Rajnish Singh Baghel, counsel for the appellant. • Mr. Arun Sao, Govf. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'bleMr. R.L. 3hanwar,.]3 ORALJUDGMENT (28-8-2010) T.P. Sharma, 3: - 1. Challenge in this appeal isto the judgmftnt of convicuon & order of sentence dated 30-8-2003 passed by the 6th AdditiOnal Sessions Judge. Fast Track Court, Surajpur in Sessions Trial No.154/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Munna alias Shivcharan, convicted the appellantunder Section 302 of the I.P.C. and sentenced him to undergo imprisonmentfor life & pay fine of Rs.2,500/-, in default of payment of fine tofurther undergo R.I.for six months. , 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court hasconvicted & sentenced the appellanf and thereby committed illegality. 3. Case of the prosecution, in brief, is that on the fateful night of 21-1- 2003 at about 11 p.m. Munna alias Shivcharan (since deceased) was present near his house at Village Khadoli,the appellant who is nieghbour of Munna, shot arrow upon Munna and caused fatal injury over his chest, Munna fell down and shouted thattHe appellant has caused fatal injury to him by arrow shot'and also by axe. Witnesses, :^.ssaSfs t,.ia.^.W!SS^S ^ innmediately came to the spot before whom Munna n-iade oral dYing cteclaration, thereafter, he became unconscious and lastly succumbed to the Injuries sustained by him. Hirachand Pando (PW- 3)lodged FIR vide Ex.P-6. Mergwasrecorded videEx.P-25. •Arrow wasseized from the ^potvide Ex.P-17, Blood stained and plain soil were seized from the spot vide Ex.P-18. After summoning the withesses vide Ex.P-14y inquest over the dead body of Munha was prepared vide Ex.P-15. Dead body was sent for autopsy to Community Health Centre, Bhaiyathan vide Ex.P-16 and dead body was received by e doctor vide Ex.P-22. Dr. R. Kerketta (PW-9) conduGtedautopsy vide Ex.P-23and found followirig injuries on the body ofthe deceased: - 1. Lacerated woundof l'" x l"over right eye brow. 2. Lacerated wound of l" x Vi" over right temporal region, blood clot was present. 3. Incised penetrating woundof 3" x 1" over lower part of chest deep up to bone, blood clot was present, 4. Incised wound over right sideof liver. Cause of death was shock as a result of excessive haemorrhage. Deathwas homicidal in nature. 4. The appellant was taken into custody and he made discloser statement of bow & axevide Ex.p-l. Bow was recovered at the instanceof the appellant from his residence at Village Khadoli vide Ex.P-3 and axe was recovered atthe instance of the app&llant from Village PahadAmorni from the houseof Niranjan vide Ex.P-2. Spot map was prepared by the Patwari vide Ex.P-4. The Investigating Officer prepared spot map vjde Ex.P-7. Axe& bowwereexamined by the doctor vide Exs.P-24 & P-9A. Arrow was examined by the doctor vide Ex.P-lOA. Articles were sent for chemical examination vide Ex.P-11. 5. Statements of the witnesses were recorded under Section 161 ofthe Cr.P.C. After completion of investigatibn, chargesheet was fifed. before the Court of Judicial Magistrate First Class, Surajpur who committed the case to the Courtof Sessions, Ambikapur from where learned Additional Sessions Judge received the case on transfer for trial. !1 ;1 ^ "' • " ' : '• ' •: "'' : '. . • • 1 ': lt ^.:ffi^, -^ l^i '^: •s^....^::':f!":i^\ ji^i';;'ogE.^s»s8' •''¥; ^'^^?^^^^^^^^^'??^?^^^^^^^^^^^!^^^^^^^5^®1^^'^^^^^ S'S!l^i^i,BR^';?>;^..B-g'^^^ ;.:^.:.^;^^:,;. '<'^:^.^''^'''^ .mssi-^s-esS 6. In order to prove the guilt of the appellant, the prosecution has examihed as rodny as ten witnesses. The accused was examined under Seetion 313 of the Cr.P.C. in which he denied the clrcumstaHces appearing against hirrt, pleaded inriocence and false implication. At his request, he was examined by the doctor dyring the pendency of trial vide Ex.C-1 but no visible injury was foundover his body. 7. After affording opportunity of hearing to the parties, learned' Additional Sessions Judge convicted &sentenced the appellant as afGrennentioned. I/f- ' ' . ." ' . . '.'.• ' .. . ."•..••'....-.. 8. We have heard learned dounsel for the parties, perused the jydgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that the appellant was aged about 55 years and he is an old person, his eyesight was weak, his hands were paralyzed, therefore, even he was not in a position to use bow& arrow. The alleged incident took plaeeat 11 p.m. at night. It was not possible for the appellant to' ' cause injury by arrowshot from any distance to the deceased. The appellant has been falsely implicated in the crime in question. Evidence of the alleged witnesses Hirachand Pando (PW-3),' Rupan Bargah (PW-4), Smt. Sukhmania (PW-5) & Rameshar (PW-6) is not natural, their evidence does not inspire confidence and is not trustworthy, they have given parrot like statements. Although the evidence of these witnesses is sufficient for creating doubt that the accused may have committed the offence, but it js not sufficient to prove that the accused has committed the offence. Therefore, convietion of the appellant on surmises & conjectures isnot' ' sustainable under the law. 10.0n the other hand, learned State counsel opposed the appeal and submitted that evidence ofthe aforesaid witnesses before whom the deceased has immediately made oral dying declaration is sufficient for conviction of the appellant. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted& sentenced theappellant. ll.In order to appreciate the arguments advancey on. betialf of the parties,we have examined the material availableon record. . ^^^•^•s nwj ISi1 ^>. ^3® 12.In the present case, fatal Injuries over the body of the deceased and honnicidal death of the deceased haye not been substantially disputed on behalf of the appellant, other'wise also established .by the' evidence of Dr. R. Kerketta (PW-9) and autopsy report Ex.P-23 which reveal that fatal incised penetrating injury was found over chest of the deceased insertingup to peritoneum & liverand death washomicidal in nature. — l3.As regards complicity 6f the appellant in the crlme in question, conviction of the appellant is substantially based on theoral dying declaration made by the deceased and recovery of weapons at the instance of the appellant. Hfrachand Pando (PW-3), Rupan Bargah (PW-4), Smt. Sukhmania (PW-S') & Rameshar (PW-6) -heighbours ofthe deceased, have categorically deposed thaton the fateful night at about 11 p.m.,they were present in their houses and they were sleeping, they heard thesound of Munna, he was shouting "run run Pandubbi @ Prem Bahadur is assaulting him" on which they innmeciiately went to the spot, Munna was lyingon ground, he requested them tosave him and told that Pandubbi i.e. theappellant herein has assaulted him. Munna complained of cold. They took Munna to the verandahof Ramesh. Munna took out the arrow inserted in his chest andbecame unconscious. After some time, he died. Hirachand Pando (PW-3) immediat.ely lodged report vide Ex.P- 6. He has admitted in his cross-examination that the appellant is resident of Village Bagda. Defence has cross-examined these witnesses at length and they havespecifically stated that Munna has made oral dying declaration before them by calling persons 'daudo daudo' the appellant is assaulting him and when they reaehed near Munna, he again told that the appellant has assaulted him. They have also admitted that as a result of pain & injury sound of Munna was not clear, but they have notsaid anything to show that they were not unable to explain whatMunna has told to them. l4.The appellant was examined at his iristance vide Ex.C-1.. The' appellant has filed an application before the trial Court that on account of paralysis of his right hand, even he was not in a position to use bow & aFrow. Ex.C-1, medical report of the doctor,'reveals that no visual injury was found on the body of tjie appellantand the doctor has not observed any paralysis of the hand ofthe appellant. His age was only 55 years. ^r^'v^.f;"^;r:''^'^ l5;Th^ Spgitlarat Ras taken defenee fhat he is not resident^^ ^ Khadoli and he is resident of village Bagda. This fact has been admftted by Hirachand Pando (PW-3) in para 3 6f his cross- examination. In his exammation under Section 313 of the Cr.P.C., the appellant himself has infQrmed his address as Village Khadoli and not Village Bagda. The appellant has not stated anywhere that he is not resident of village Khadoliand he i.s resident of village Bagda ohly. He has madediscloser statement of bow & axe. He has made discloser of two things first is bow & arrow and second is residential house at village Khadoli which is a part of the house of Rameshar. This fact is not related to the commission of offence, and therefore, <i ~~ . ' '^ ~ ^ ~ ~"~ ^ "^"' ^. this part ofstatement giveri'by the appellant in Ex.P-1 is admissible in evidence which clarifies tliecontroversy that the appellant is not only the resident of village Bagda, but he is also theresident of yillage Khadoli and he was reslding in the room of Ramesharwhich is adjoining to the house of deceased Munna and his presence near his houseatVillageKhadoliwasnatural. . l6.As second set of evidence, the prosecution has examined Surendra Kumar Jaiswal (PW-1) & Sakulu Rambhagat (PW-8). Sakulu Rambhagat (PW-8) has deposed in para7of his evidence that after taking the appellarit ihto custody he interrogated the appellant and recorded memorandum Ex.P-1, and at the instance ofthe appellant, he has recovered one axe vide Ex.P-2 and one bow from the house ofthe appellantvide Ex.P-3. Defence has notsuggested anything to this witness relating to residence of the appellant, defence has only asked to this witness in para 7 of hiscrQSS-examination that he has seized axe at the instance of the appellant who tookout thesame from the house of Niranjan at Village Pahad Amorni. Surendra Kumar Jaiswal (PW-1) has supported Exs.P-1, P-2 & P-3 and has deposed that axe was recoyered from Village Katinda from the house of Bhagat Kanwar. In para 4 of his cross-examination he has admitted that he was standing out of the house of Bhagat. l7.Evidence of the aforesaid two witnesses shows that Bhagat & Niranjan are one and the same person and villageKatinda& village Pahad Amorni are also one and the same village. They have specifically admitted the fact that theappeltant bimself has took out the weapons from the hbuse. Evidence of these witnesses is partof memorandum Ex.P-lwhich clearly reveals that the appellant was f-- lii:lil^..-.y I" resident of Village KhadQli also and was residing In ttte restet of Rameshar, and that bow & axe were reccivered at the instanceof tfte, appellant. Although the prosecutlon has not filed any document to show that the appellant has used axe & bow, even otherwise, it was not possihle for the pros^Gution to establish these facts that. at the time of incident, the appellant has used bow & axe seized at his instance. . is.Evidence of Hirachand Pando (PW-3),Rupan Bargah (PW-4), Smt. Sukhmania (PW-5) & Rameshar (PW-6) relating to oral dying declaratiori made by the deceased inspires confidence and is trustworthy, and issufficientfon drawing inference that the deceased has made oral dying declaration immediately aftersustaining injuries and without few hours he succumbed to the injuriessustained by him. Oral dying declaration once proved issufficient for drawing positive inference. 19.The principle of dylng declaration is based on legal maxim "nemo moriturus proesumftur mentiri"—aman will not meet his maker with a lie in his mouth. 2Q.Lord Chief Justice 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 ofthis world is gone; when every motive to falsehood issilenced,and the mind is induced by the most powerful considerations to speak the tryth;- asituation sp solemn and so awful is considered by the law as creating an obligation, equal to thatwhich is imposed by a positiveoath in a courtofjustice..." 2l.While dealing with the question of dying declaration, the Apex Court in the matter of StateofU.P. v. Ram SagarYadav (AIR 1985 SC 416) has held that ifthecourt issatisfied thatthe dying declaration is trye and voluntary it can base conviction on it, without corrQboration. . 22-After appreciating the evidence available on record, learned AdditiohalSessions Judge convicted theappellant under Section 302 of the I.P.C. for commission 6f culpable homicide amounting tp murderofMunna. 23.As regards motive of the appellant, the appellant has shot arrow upon the chestbfthe deceased which shows definite intention ofthe ^^^^•;,,^^.;^^ •';:^^%T-.^.~7 •;.<^' ".?. s. ..'.' ,r i Soma appellant for commisston bf murder of the deceased. Conviction of tlie appellant is based bh cogent and legal evidence systainable uriderthelaw. , ' /. 24.0n closescrutiny of evjdence, we do not find any illegality in conviction & seotence of the appellant. Consequently, the appeal being devoid of merit is liabte to be dismissed and it is hereby^ dlsmissed. i •^', Sd./- T.P. Sharma Judge Sd/" R.L. Jhanwar Judge !.I. ' . ,-^sf »:-,