\ HIGH COURT OF CHHATTISGARH AT- §ILASPUR DIVISION BENCH APPELLANT {IN JAIIQ Versus RESP01§DENT “n C Q RIMINAL APPEAL No. 1 140[ 1991 APPELLANTs .1. Versus RESPONDENT Coram: Hon’ble Shri T.P.Sharma 8a Hon’ble Shri R.L. Jhanwar, JJ. x CRIMINAL APPEAL No. 1003 OF 1991 Sukhlal alias Motu son of Tejram Aghariya aged 42 years, Agriculturist, R/o Pakargaon, RS, Lelunga District: Raigarh (M.P.) The State of Madhya Pradesh. AND Suresh Kumar, son of Murlidhar, aged 28 years, resident of Pakargaon, Police, Station Lailunga, District Raigarh (MP). Tuniram, son of Budhiwar, aged 33 years, resident of Pakargaon, Police Station Lailunga, District Raigarh (MP). The State of Madhya Pradesh. CRIMINAL APPEAL UNDER SECTION 3742 OF THE CODE 0 CRIMINAL PROCEDURE, 197 . l I F Presentz— Shri H.S. Patel, Advocate for the appellants. Shri Sandeep Yadav, Dy. G.A. for the State/respondent. .4 0 ORAL-JUDGEMENT (Passed on 30/03/2010) The following iudgment of the Court was nassed bV T.P. Sharma, J:- d;a {Criminal Appeal No, 1003/1991 r1 Motu 8a Criminal Appeal No.1 140/1991 f1 led by appellant— Sukhlal alias led by appellants— Suresh ' Kumar 85 Tuniram against the common judgment dated 29/ 10/91 are being disposed of by this common judgment. Challenge in these appeals is to the judgment of conviction and order of sentence dated 29/10/91 passed by First‘Additional Sessions Judge, Raigarh in Sessions Trial No. 151 /9O whereby and Where under after holding the appellants guilty for the commission of culpable homicide amounting to murder of deceased Kanhaiyalal Jaiswal in sharing common intention convicted the appellants l under Section 302/34 pf the Indian Penal Code and sentenced V ‘ imprisonment for life. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. Brief case of the prosecution is, on fateful day of 5/8/90 at about 5— 5.30 A.M. Kanhaiyalal Jaiswal had gone to field for ease where appellants were hiding themselves near the field and waiting for Kanhaiyalal Jaiswal (since deceased), during course of his ease appellants assaulted him by stick while he rushed towards Village. Accused Sukhlal assaulted him over his head by spade. He fell down 5 and cried for help. After hearing the sound of Kanhaiyalal Jaiswal his son PW20 Manoj Kumar along with PW14 Karman 85 PW17 Vedsay Sidar came there; they took him to the hospital. PW2 Manoj Kumar lodged First Information Report vide EX. P—32. Deceased Kanhaiyalal Jaiswal was examined by PW3 Dr. R.S. Upadhyay vide EX. P—4 and found 26 injuries over the body of deceased Kanhaiyalal Jaiswal. He was admitted in the hospital for treatment, during course of his treatment at the request of Police vide Ex. P—33, his ix z dying declaration was r€corded by PWS Dr. R.S. U£>édhyay vide Ex. P—7. Kanhaiyalal Jaiswal died during course of treatment, final opinion was recorded Vide Ex. P—S. During course of treatment X- Ray report was taken, he was treated Vide bed head gticket and documents Vide ExfP—8 & P-21. Investigating Officer left for scene of occurrence and after summoning the witnesses Vide EX. P—13, inquest over the dead body of the deceased was preparedvide‘EX. P-l. Dead body was sent for autopsy to Primary Health Center, Portha Vide EX. P—22 and found 4 injuries as per Ex. P—22A. Cause of death was shock as a result of injuries. One daily newspaper was seized Vide EX. P—2. Documents were seized Vide Ex. P—24. Spot map was prepared Vide Ex. P—48; matter was investigated. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘Code’). After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Gharghoda who in turn committed the case to the Court of Sessions, Raigarh from where the learned First Additional Sessions Judge, Raigarh received the case on transfer for trial. a In order to prove the guilt of the accused/appellants, the prosecution examined as many as 25 witnesses? Statements of the €‘ accused/appellants were recorded under Section 313 of the Code Where they denied the circumstances appearing against them and pleaded innocence and false implication. They have also examined defence Witness DWI Hariram who has deposed in his evidence that at the time of incident: he had gone for ease where Kanhaiyalal Jaiswal was lying near the shrub then he came back to his house. i i . / x : 7. After affording an oppo'rtunity of hearing to the parties, learned First Additional Sessions Judge, Raigarh has convicted and sentenced the accused/appellants as aforementioned. 8 . We have heard Shri H.S. Patel, counsel for the appellantgs and Shri ndeep Yadav, Dy. G.A. for the State/respondent and perused jdgment impugned as also record of the trial Court. u 9. arned counsel for the appellants vehemently argued that in the Le resent case deceased Kanhaiyalal Jaiswal was having enmity with s ma persons, offence has been committed in secrecy Where no I peo un rsn was present, nobody had seen the incident but on accot of enmity present appellants have bn falsely implicated in crime in uesfion. Evidence of PW13 Poornachadra clearly reveals that some unknown pers have assaulted the deceased Kanhaiyalal Jaiswal and PW14 Karman, PW2O Manoj Kumar 85 PW22 Durga Prasad were not present at the time of incident; they have not seen te incident, they came after the incident. Kanhaiyalal Jaiswal s h wa not in position to make dying declaration. This is a case of blind urder in which appellants have been falsely implicated on account of previous enmity. lO. arned counsel for the appellants further argued that even Le otherwe‘if the case of the prosecution is accepted then the act of E‘ the appellants does not traveled beyond the scope of Section 325 of the Indian Penal Code. 11. Learned counsel for the appellants placed relian’ce in the matter of Sardul Singh v. State of Haryana with Jagtar Singh v. State e of Haryana1 in which Apex Court has held that in case of incident occurring during night time in some blows on vital part even in 1 2002 AIR SCW 4048 Q Sa g o ny ee q n on m is absence of daliberate intention to kill the person and the fact that injuries were not sufficient for causing death in ordinary course Of nature then the common intention was for merely committing assault and not for causing death. 12. Learned counsel for the appellants further placed reliance in the matter of Shanmugam alias Kulandaivelu v. State of Tamil Nadu2’ in which Apex Court has held that dying declaration i G s a reCorded l by the Magistrate after obtaining certificate from the doctor relating to his fit state of mind ‘is admissible in evidence and in absence of opinion relating to the sufficiency of injury for causing death in ordinary course of nature, the accused may liable to be convicted under Section 304 Part-I of the Indian Penal Code. l3. Learned counsel for the appellants also placed reliance in the matter of Prabhu v. State at Madhya Pradesh3 in which Apex Court has held that in case of injuries by Lathi conviction under Section 326 of the Indian Penal Code would be proper. 1 Learned counsel for the appellants also placed reliance in the matter State of Raiasthan v. Jora Ram" in which Apex Court has held that in case of simple injury cause of death as a result of injury but as a result of clotting of blood in trachea leading to asphyxia which $ was not attributed to accused then convictionvwould be for the offence of culpable homicide not amounting to murder. l5. On the other hand, learned counsel for the State/respondent vehemently opposed the appeals and submits that case is based on the evidence of eyewitnesses PW14 Karman, PW20 Manoj Kumar 85 PW22 Durga Prasad who had seen the incidentl Their presence have V5 2 2002 AIR scw 4653 J 3 2008 AIR scw 7968 4 2005 AIR scw 2393 4. ‘ een admitted in their statement recorded under Section 161 of the eode and are well corroborated by the dying declaration of deceased Kanhaiyalal Jaiswal recorded by the Executive Magistrate vide Ex. 13—7. The conviction of the appellants is based on legal, qredible and clinching evidence sustainable under the law, courts below has rightly convinced and sentenced the appellants as aforementioned. 16. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 17. Iwtlie present case homicidal death of the deceased as a result of ante—mortem fatal injury has not been substantially disputed by the appellants, on‘the other hand, alsotestablished by the evidence of PW?) Dr. R.S. Upadhyay and injury report vide Ex. P-4, final injury report vide EX. P—S, PW8 Dr. M.D. Joshi and X-Ray report vide Exs. P-17, P-l8, P—19, P—2O 85 P-21, autopsy report vide Exs. P—22 8a P— 22A. Death was homicidal in nature. As regard the complicity of the appellants in crime in question, the conviction is substantially based on the evidence of eye witnesses PW14 Karman, PW20 Manoj Kumar 85 PW22 Durga Prasad and dying declaration vide Ex. P-7 made by Kanhaiyalal Jaiswal (since deceased) to PW3 Dr. RS. Upadhyay in presencae of PW9 Dr. S.N. U" Upadhyay. PW14 Karman has deposed in his evidence that at the time of incident at about 5.30 A.M. he was present in his house. He heard the sound for help “ElEl-HlEl, Wall-W311” then he rushed towards the place of incident near the garden of Natthu where he saw that appellants ’I‘unirarn, Suresh Kumar 8r Sukhlal were assaulting Kanhaiyalal Jaiswal by stick and spade, Kanhaiyalal Jaiswal fell I l8. ‘i:\ b ; down. Manoj and» Durga came there and Ved also came there, they took Kanhaiyalal Jaiswal to the hospital. In his cross—examination, he has denied that he is servant of Kanhaiyalal Jaiswal although this fact has been mentioned in his Police statement Ex. D—2. In his Q detail cross—examination he has specifically stated that he reached to the spot after hearing the sound for help and has seen the incident, appellants had assaulted Kanhaiyalal Jaiswal before him. lie l has also admitted the presence of Manoj Kumar 85 Durga Prasad. PW20 l Manoj Kumar is son of the deceased Kanhaiyalal Jaiswal has corroborated the evidence of PW14 Karman and has deposed that Poornachandra came to his house and told that appellants were assaulting his father then he rushed towards the place and saw the incident. Appellants Suresh Kumar and ’I‘uniram were assaulting his father by stick and Sukhlal was assaulting his father by spade, he saw the injuries even he requested for excuse but Sukhlalirushed towards him for causing injuries and chased him. Karman and Durga Prasad also came to the spot. He went to the Police Station for lodging the First Information Report and took his father to the hospital. PW22 Durga Prasad has substantially corroborated the evidence of PW2O Manoj Kumar. Defence has cross—examined this witness in detail; he has explained the distance and geography of the place. He has denied the suggestion that he has not seen the incident. Defence has also cross—examined PW20 Manoj Kumar at length but he has struck to his version that all the appellants assaulted his father and he has se’e‘n~the incident, Karman and Durga Prasad have also seen the incident. Their evidence are supported by promptly lodged First Information Report vide Ex. P—32. As per case @ of the prosecution, PW13 Poornachandra has also seen the incident. He was present since beginning of the incident. He has admitted that he is present at the time of incident but he has not supported :the case of the persecution relating to identity of the accused persons. Prosecution has declared him hostile. His evidence reveals that he was an eyewitness but has not supported the case of the i prosecution on the point of identity of the accused persons. 21. 1 Prosecution has examined PW3 Dr. R.S. Upadhyay who has deposed in his evidence that at the request of Police Lelunga, he has recorded the dying declaration of Kanhaiyalal Jaiswal‘ (since deceased) vide Ex. P—7. At the time of dying declaration, he was in fit state of mincf and was able to talk and answer the question. In his cross-examination, defence has not asked any question to him relating to the credibility and truthfulness of the dying declaration. His evidence is corroborated by the evidence of PW9 Dr. S.N. Upadhyay who has certified that deceased Kanhaiyalal Jaiswal Was fit state of mind although 26 injuries were found over the body of ‘ Kanhaiyalal Jaiswal but only injury No. 26 lacerated wound was . found over the occipital region it appears from the injury report that he was suffering from pain but he was not unconscious and was able to give dying declaration. Ex. P—7 dyirifg declaration reveals. that 'I‘uniram and Suresh Kurnar had assaulted Kanhaiyalal Jaiswal in mercilessly while he was helpless. He fell down then Sukhlal came towards village and assaulted him by spade over his head. Although dying declaration is a weak type of evidence. The principle of dying declarationis based on legal maxim “nemo moriturus proesumitur mentiri”- a man will not meet his maker with a lie in his mouth. Lord Chief Justice Baron Eyre {See. R. v. Woodcock, ’(1789) l 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 law as creating an obligation, equal to that which is imposed by a positive oath in a court ofjustice...” 23. Qs‘has been held by the Apex Court in the matter of State o U.P. v. g Ram Sagar Yadav (AIR 1985 SC 416), if the court is satisfied that the; dying deglaration is true and voluntary it‘can base conviction on it, without corroboration. 24. Once it is proved that dying declaration was recorded only fit state of mind and has given rational answer then conviction is based on the evidence of alone dying declaration. There is some contradiction and omission in the evidence of PW14 Karman, PW20 Manoj Kurnar 8L PW22 Durga Prasad but they are trifle in nature, substantially they have corroborated the evidence of each other. Their evidence are corroborated by the promptly lodged First Information Report vide Ex. P—32 and dying declaration vide EX. P—7. k 25. After appreciating the evidence available orr‘ record learned First Additional Sessions Judge, Raigarh has arrived at a finding that all the appellants have assaulted Kanhaiyalal Jaiswal by stick and spade. Finding is based on credible, clinching and reliable evidence sustainable under the law. As regard the question of motive for commission of offence and offence proved is concerned, the motive is only aid in criminality and loses its importance. In case of direct evidence even, otherwise motive can be inferred on the basis of the nature of injury, part of the body Where injury was caused, Weapon used and other like circumstances. In the present case, While deceased Kanhaiyalal Jaiswal was present in? the field away from the village at morning time Where the presence of other persons for help was not possible, appellants were hiding themselves near the place of incident. They were holding stick and spade and they taking the benefit of loneliness and his helplessness, appellants have assaulted and caused as many as 26 t. ‘ injuries to the deceased Kanhaiyalal Jaiswal. This is not a case where on account of some altercation or provocation suddenly accused persons assaulted the injured and caused some injuries. In the ‘present case, doctor has opined that no single injury was sufficient for causing the death of deceased Kanhaiyalal Jaiswal and deceased Kanhaiyalal Jaiswal has died on 19/8/90 after 14 days of the incident by shock as a result of injuries. As held in case of State of Raiasthan v. Jora Ram (Supra) deceased has not died as a result of injury not attributed to accused but has died as a result of cumulative effect of the huge number :of injuries. The case of State of Rajasthan v. Jora Ram is distinguishable on the ground of facts. As held in case of Prabhu v. State of Madhya Pradesh (Supra) grievous injury caused by stick is punishable under Section 326 of the Indian Penal Code but in the present case deceased had received as many as 26 injuries by spade and stick. The case of Prabhu v. .\ State ofMadhya Pradesh is also distinguishable on the grounds ‘of facts. .4 0 As held in cases of Shanmugam alias Kulandaivelu v. State of Tamil Nadu and Sardul Singh v. State of Haryana with Jagtar Sinqh \ v. State of Haryana (Supra) injuries were not sufflcient for causing death in ordinary course of nature but in the present case death has been (iaused on account of cumulative effect of 26 injuries. Present appellants have caused as many as 26 injuries over all parts of body of deceased Kanhaiyalal Jaiswal, aged about 52 l years and as a result of cumulative effect of such injuries Kanhaiyalal Jaiswal die’d. Present case is not a case of one or two injuries. The aforesaid cases are also distinguishable on the ground of facts. 26 injuries show the manner in which appellants have caused injuries to the deceased who was present at lonely place in helplessness situation. After appreciating the evidence available on record, Court below has convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced life imprisonment. Court below has rightly, convicted the appellants under Section 302/34 of the Indian Penal Code. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. Criminal appeals are devoid of a merits. Consequently, criminal appeal Nos. 1003/ 1991 8t 1140/1991 are liable to be dismissed and are hereby dismissed. Appellants are in bail, they shall surrender themselves immediately before the First Additional Sessions Judge, Raigarh in Sessions Trial No. 151 /90 for serving remaining sentence. .'. K _."——/ j .__ v ,rl—_.. Sd/— ' T. P. Sharma Judge h