:6>r?) 'i & 0' HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon^ble Shri Sunil Kumar Sinha fic Hon^ble Shri Radhe Shvam Sharma, J J APPELLANT RESPONDENT APPELLANTS RESPONDENT Criminal Appeal Np. 869 of 1994 Naresh Kumar, aged about 23 years, son of Shri Janardan Ramteke Mahar, resident of Bhimnagar, P.S. Purani Basti, Raipur, Tahsil and District Raipur, M.P. (Now Chhattisgarh) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) And Criminal Appeal No. 1052 of 1994 1 Heerendra Kumar Sahu, aged abQUt 30 years, S/o Mahadev Sahu 2 Balli alias Pramod Kumar Sahu, aged 21 years Both residents of Village Bhimnagar, P.S. Purani Basti, Tahsil and District Raipur, M.P. (Now Chhattisgarh) Versus The State ofMadhya Pradesh (Now State of Chhattisgarh) /^r^^r^s. /^v^..^s^. ^s-^ (Criminal Aopeals under Section 374 12} of The Code of Criminal Procedure, 1973) Appearance: Mrs. Renu Kochar, Advocate for the appellant in Cr.A. No. 869/94. Mr. Pawan Kesharwani, Advocate for the appellants in Cr.A. No.1052/94. Mr. Ajay Dwivedi, Dy. Govt. Advocate for the State in both the appeals. Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 JUDGMENT ( 2 .12.2011) Following judgment of the Court was delivered by Sunil Kum.ar Sinha, J. (1) This appeal is directed against the judgraent dated 1.8.1994 passed in Session Trial No.262/92 by the Fourth Additional Sessions Judge, Raipur. By the impugned judgment, appellants- Heerendra Kumar Sahu and Balli @ Pramod Kumar Sahu have beenconvicted u/s 302 IPC and appellant- Naresh Kumar has been convicted u/s 302/34 IPC and they have been sentenced to undergo iniprisonment for life. (2) The facts, brieHy stated, are as under:- On 7.11.91 at about 20.30 hours, deceased- Raju @ Rajkumar was going towards Bhimnagar talab (tank). He was accompanied by Shankar Sahu (PW-8). The allegations are that the appellants came there and assaulted ,the deceased by knifes. The incident was witnessed by Shankar Sahu (PW-8). Somebody told about the incident to the mother of the deceased namely Girja Bai (PW-1). She went towards the place of occurrence and met her son (deceased) in front of the house of Roop Singh (PW-9). The deceased was badly injured. The deceased raade oral dying declaration that he was assaulted by the above 3 appellants (accused persons). Girja Bai (PW-1), on the basis of oral dying declaration, lodged dehatinalishi (Ex.-P/l) on the same day at about 21.30 hours. Dehatinalishi (Ex.-P/l) contains the names of all the appellants. The deceased was admitted to the hospital in unconscious condition, where he died during the course of treatment on 8.11.91. Information was sent to the police station and inquest (Ex.-P/7) was prepared on the Cr.A,No, 869 of 1994 & Cr.A, No. 1052 of 1994 ^. < \^ •• :;''iy/-..^':/., //^ ^.^ L ''?> ^:; ^. ~' ^•:^^{iW v^«i?l^y dead body of the deceased after giving notice to the Panchas (Ex.-P/6). The dead body was sent for post-mortem. The post-mortera exainination was conducted by Dr. D.C. Jain (PW-10) who found as many as 13 incised wounds on different parts of the body of the deceased. All the injuries were ante-mortem. On internal examination, he found that there was cut injury on right lung. In fact, the sac of right lung was cut. There were injuries on intestine and nieinbrane of the intestine. There -was also injury on the liver. Marks of stitches were there. The post-mortem report is Ex.-P/13. When the deceased was alive, he was examined by Dr. Sanjay Pandey (PW-11). He had also noticed external injuries which were found in the post-mortem examination. His Medico Lego report is Ex.-P/24. In further investigation, the memorandum statements of Heerendra Kumar 8& Balli @ Pramod Kumar (Ex.-P/lS 85 P/19) were recorded u/s 27 of the Evidence Act and knifes were seized from their possession vide Ex.-P/20 8& P/23. Regular F.I.R. was recorded vide Ex.-P/25 and site plan was prepared under Ex.-P/26. The seized articles were sent for their chemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide Ex.-P/27, but F.S.L. report could not be filed. The case of the prosecution was based on oral dying declaration before Girja Bai (PW-1) and Roop Singh (PW-9) as also eye- witness account of Shankar Sahu (PW-8). The Sessions Judge relied on the testimonies of these witnesses and held that the appellants caused multiple injuries to the deceased by knifes, therefore, they were liable for punishment u/ss 302 & 302/34IPC. (3) Mrs. Renu Kochar & Mr. Pawan Keshanvani, learned •^•-.,, counsel appearing on behalf of the respective appellants, argued that the testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) ^ Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 were not reliable. Shankar Sahu (PW-8) was also not reliable, therefQi:e, the conviction based on their testimonies cannot be sustained. (4) On the other hand, Mr. Ajay Dwivedi, leamed Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) We have heard leamed counsel for the parties at length and have also perused the records ofthe sessions case. (6) Girja Bai (PW-1) deposed that in the fateful night, she was present in her house. Her son, deceased- Raju, had gone towards the tank. He was accompanied by Shankar Sahu (PW-8). When her son did not retum for a long time, she went to call him. On the way one Tiju @ Munna and Sahdev met her. Near Shiv Temple a boy namely Raju met her and told that Rajkumar (deceased) was assaulted by knife by Heerendra, Naresh and Balli (the 3 appellants). She went towards the place of occurrence and found her son in injured condition. Her son made oral dying declaration taking the names of the 3 appellants that they had assaulted hini by knifes. Thereafter her son was taken to Sundernagar police tlt '^'£\ichowki. Her son told the names of the appellants to the police ^y officer who met them in Sundemagar police chowki. The police persons of police chowki, Sundemagar told her that the incident had taken place in Arainpara area, therefore, she should go to the •^... •^/-^\^ ';^,f:..^ "V. '••^^ /' / Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 concemed police station. Thereafter they went to Aminpara police station, where they met S.I. Ambika Prasad Pathak (PW-15). They narrated the story to S.I. Pathak. They had told the names of the accused persons to Mr. Pathak who told them to take the boy to the hospital. Thereafter the boy (deceased) was taken to the hospital, where he died during the course of ti-eatment. (7) Roop Singh (PW-9) deposed that in the fateful night, the deceased caine before his house in injured condition and sat on a chabutra. The deceased told him that he was assaulted by Naresh and Heerendra by knifes. Mother of the deceased also came there. Thereafter the deceased was taken to Sundemagar police chowki, where the report was lodged. The deceased had told the names of Naresh and Heerendra as his assailants in police chowki Sundemagar. He further deposed that later on the deceased told the naines of all the 3 accused persons as his assailants. He had stated their naraes to his mother before him. M M^fMK ^.^^ M?^^1' (8) On appreciation of evidence of these two witnesses of oral dying declaration, we find their evidence to be shakey. No records have been produced relating to the facts that the deceased was taken to Sundernagar chowki and he made oral dying declaration before the police officer sitting in chowki who directed them to go to police station Aminpara. Even there is no record to show that the deceased was taken to police station Aininpara, where a report was inade to S.I. Pathak (PW-15) and then he was taken to the hospital. According to S.I. Ambika Prasad Pathak (PW-15), the Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 deceased was not at all brought to the police station and no report, as stated by the above witnesses, was lodged prior to the dehatinalishi (Ex.-P/l) which appears to be lodged in D.K. Hospital where the deceased was admitted for treatment. Roop Singh (PW-9) had initially deposed that the deceased had told the names of 2 accused persons i.e. Naresh Kumar and Heerendra Kumar Sahu as his assailants and he later on added the narae of accused Balli. In cross-examination, in Para-4, Roop Singh (PW-9) has admitted that during the course of investigation, he was given notice for raaking him an accused, but later on he was exonerated. If the deceased, in fact, was taken to the police station first and the oral dying declaration was made before S.I. Ambika Prasad Pathak (PW-15), there is no reason that Ambika Prasad would conceal these facts and not depose all this and would also not support the evidence of Girja Bai (PW-1) and Roop Singh (PW- 9) that the deceased was brought to the police station in injured condition where he made oral dying declaration, and then he was taken to the hospital. Even in dehatinalishi (Ex.-P/l) such facts have not been mentioned and it is simply mentioned that the deceased had niade oral dying declaration before his raother that he was assaulted by the above 3 appellants. (9) Shankar Sahu (PW-8) is an eye-witness. He deposed that on the fateful night, he was accompanying the deceased. They were cleaning their teeth by gadaku near Bhimnagar tank. All of a sudden accused- Balli caine there. Nobody was accompanying ^) Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 him. Balli asked the deceased as to where his brother is ? The deceased replied in negative. Balli started abusing the deceased. The deceased objected to it. On this Balli slapped the deceased. Thereafter Balli took out a knife and assaulted the deceased by knife. Accused- Heerendra and Naresh also caine there. Shankar Sahu (PW-8) did not depose that appellants- Heerendra and Naresh also participated in assaulting the deceased by knife. According to his evidence they came later on, therefore, there is no question of sharing corainon intention also. In fact no overtact has been attributed to appellants- Heerendra and Naresh. Though Shankar Sahu (PW-8) has been declared hostile by the prosecution, but his evidence to the effect that he saw appellant- Balli assaulting the deceased by knife is intact. Presence of Shankar Sahu (PW-8) at the place of occurrence cannot be doubted because Girja Bai (PW-1 - raother of the deceased) has deposed that the deceased was acconipanied by Shankar Sahu (PW-8) and both had gone to tank for cleaning their teeth by gadaku. On due consideration of evidence of Shankar Sahu (PW- / 8), we flnd that his evidence to the effect that deceased- Rajkumar was assaulted by appellant- Balli cannot be disbelieved. In light of the above evidence of Shankar Sahu (PW-8), testimonies of Girja '®<^;:<3^ Bai (PW-1) and Roop Singh (PW-9) relating to oral dying ^ ^A <%., /.l^ declaration made by the deceased involving all the 3 appellants ^^&S^ becomes suspicious. '^ Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 (10) There is yet another reason to disbelieve the evidence of oral dying declaration. According to medical evidence the deceased had sustained 13 incised wounds on different parts of the body. There was cut injury on the lung-sac and there were also deep injuries on intestine and liver. Dr. D.C. Jain (PW-10), who perfonned the autopsy, has admitted that after receiving such injuries if a patient goes in coma and becomes unconscious, ordinarily he would not regain consciousness without any medical aiJ. Dr. Sanjay Pandey (PW-11), who did Medico Lego exainination of the deceased, has also admitted that the deceased was brought to the hospital in badly injured condition. His condition was critical. The condition of the deceased was so critical that he did not make mention of general obseryation in the relevant document. According to him the deceased was full unconscious. Looking to the injury report as also post-mortem report of the deceased and considering the evidence of the 2 Doctors, it appears to be reasonable to accept the arguments of leamed counsel for the appellants that after sustaining the injuries the deceased was not in a position to raake oral dying declaration to his mother Girja Bai (PW-1) and Roop Singh (PW-9). Therefore while relying on the testimony of Shankar Sahu (PW-8) to the extent he saw that the deceased was assaulted by appellant- Balli, we do not rely on the testimonies of Girja Bai (PW-1) and Roop Singh (PW-9) to the effect that the deceased made oral dying declaration before them involving all the 3 appellants. '^T Cr.A. No. 869 of 1994 & Cr.A. No. 1052 of 1994 (11) For the foregoing reasons, the conviction awarded to appellants- Naresh Kumar and Heerendra Kumar Sahu cannot be sustained and the sarae deserves to the set-aside. ^5t¥ IA^V Sr. }M ^IK"^^ x^y^^^ (12) Accordingly, Criminal Appeal No. 869 of 1994 is allowed in full and Criminal Appeal No. 1052 of 1994 is allowed in part. The conviction and sentences awarded to appellants- Naresh Kumar and Heerendra Kumar Sahu are set-aside. They are acquitted of the charges framed against them. However, the conviction and sentence awarded to appellant- Balli @ Pramod Kumar Sahu is maintained and the appeal filed on behalf of appellant- Balli @ Pramod Kumar Sahu is dismissed. Sd/- SuniIKuinarSinha Judge Sd/- R.S. Sharma Judge