—J("fc.-.. \ '111 B ,''•'?' i.,i:B" A-P^ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. Criminal Appeal No.89 of 2003 Devendra Kumar - V^rgus - State of Chhattisgarh JUDGMENT FOR CONSlDERATION HON'BLE MR. JUSTICE R.L. JHANWAR Sd/- T.P. Sharina re -9-^ 1^-—- Sd/- R.L. Jhaiswar Judge Postfor pronouncementofiudflmenton 8 March, 2010 Y^ l-r Sharma Judge IflSlk, }, _,,..- -iSV . • .sSS ^:;?^'-' "'•^tl. '•t3'i SBS A^^ HIGH COURT OF CHHATTISGARH, BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.L. JHANWAR, JJ. APPELLANT: (In Jail) Criminal Appeal No.89 of 2003 Devendra Kumar S/o Jeevanlal Viskarma, Caste Lohar aged about 22 years R/o Vill. Doomardih P.S. Churia, Distt. Rajnandgaon. Versus State of Chhattisgarh Through P.S. Churia, Distt. Rajnandgaon RESPONDENT: {Criminal appeal under Section 374 (2) ofthe Code ofCriminal Procedure, 1973} Present: Mr. K.K. Singh, counsel forthe appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. JUDGMENT (8th March, 2010) The following judgment of the Court was passed bv T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 3-1-2003 passed by the Sessions Judge, Rajnandgaon, in Sessions Trial No.172/2001, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Malti Bai, convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life. 2. Conviction is impugned on the ground that without any clinching evidence relating to reliability of dying declaration, the Court below has convicted & sentenced the appellant as aforementioned and thereby committed illegality. . - •^'' ^ 3. Case of the prosecution, in brief, is that on the fateful day of 28-9-2001 at about 10 a.m. at Village Doomardih near pond, the appellant assaulted deceased Malti Bai with ^nife and caused serious injuries. Malti fell on the land and became unconscious. Husband of injured Malti namely, Madan Lal Sahu (PW-1) tobk her in the house and to the Police Station and lodged F.1.R. vide Ex'P-1. Malti was immediately sent for medical aid to Government Hospital, Churia and she was examined by Dr. S.K. Ahuja (PW-14) vide Ex.P-26 w^jo found following injuries: - (1) Incised injury 5 cms. x- 1.6\cms. x 1.5 cms. over right side of abdomen below the ribs, blood was coming out from the injury. (2) Incised injury 5 cms. x 1.5 cms. x 1.5 cms. near the first injury. (3) Incised injury 3 cms. x 1 cm. x 1 cm. over left elbowjoint. (4) Incised injury 3 cms. x 1 cm. x 0.75 cm. over left peptic area (abdomen). (5) Incised injury 3 cms. x 1 cm. x 0.75 cm. over backside of head. (6) Abrasion 4 cms. x 1 cm. over right side of nose. (7) Abrasion 4 cms. x 2 cms. over left cheek. (8) Abrasion 2 cms. x 1 cm. below the left eye. 4. Condition of Malti was serious, pulse was not feasible, BP was not recordable and she was not in a position to talk. She was referred to District Hospital, Rajnandgaon. Malti was treated by District Hospital, Rajnandgaon. Her bed head ticket was Ex.P-21. Finally she was referred to Medical College Hospital, Raipur. On 29-9-2001 at Medical College Hospital, Raipur, on the request of police, her dying declaration was recorded by H.C. Nag (PW-8), Additional Tahsildar vide Ex.P-11. The deceased made dying declaration that on account of previous dispute, while she was coming from pond, the appellant assaulted her with knife on which she fell down. During the course of treatment, Malti died on 3-12-2001. Death was intimated.by Medrcal College Hospital, Raipur vide Ex. P-24 to Police Station Moudhapara which recorded merg intimation vide Ex.P-22 and on the basis of*Ex.P-22, Churia Police recorded merg vide Ex.P-23. After summoning the witnesses vide Ex.P- 2, inquest over the dead body of Malti was prepared vide Ex.P-3. Dead body was sent for autqpsy to Medical College Hospital, Raipur and autopsy was conducted by Dr. Sanjay Kumar Dadu (PW-13) vide Ex.P- 25 who found following injuries: - (1) Old healed surgical stitohed wound operation scar mark present on abdomen. (2) Old healed surgical stitched wound scar marks present on abdomen. " J' (3) Old healed surgical stitched wound scar mark present on abdomen. (4) Old healed linear wound scar mark present on anterior aspect of left forearm in midline. (5) Old healed linear wound scar mark present on head posteriiorly on occipital region right side. (6) Multiple fracture pus discharging sinus present on anterior lateral aspect of both knee and ankle joint. (7) Soft swelling present on anterior aspect of right thigh. Cause of death was due to stab wounds and its complications. During the course of investigation, blood stained clothes of the deceased were seized vide Ex.P-4. Spot maps were prepared vide Exs.P-5 & P-6. The appellant was taken into custody on 29-9-2001, he made discloser statement of one weapon like knife vide Ex.P-8 and the same was recovered at the instance of the appellant along with his blood stained clothes vide Ex.P-9. Blood stained & plain soil, broken pieces of bangles and blood stained blouse were seized from the spot vide Ex.P-10. Articles were sent for examination to the doctor. Knife was also recovered from the accused vide Ex.P-17. Seized articles were sent for chemical analysis'vide Ex.P-18. Tissues of the deceased after autopsy were also seized vide Ex.P-31 and the same were sent for examination videEx.P-19. ,3i^ES ;#gii!"'""s ^ '•-^ K^" ~> 5. Statements of the witnesses were recorded under Section 161\of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magi^trate First Class, Rajnandgaon, who in turn, committed the case to the Court of Sessions, Rajnandgaon where the trial was conducted. 6. In order to prove the guilt of the appellant, the prosecution has examined as many as seventeen witnesses. The accused was examined under •/.L Section 313 of the Cr.P.C. ,ih which he denied the circumstances appearing against him, pleaded innobence and false implication. 7. After affording opportunity of hearing to the parties, learned Sessions Judge convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and recordofthe trial Court. 9. Learned counsel for the appellant vehemently argued that conviction is based on the dying declaration of the deceased which is full of contradictions & omissions. The dying declaration Ex.P-11 is suspicious. H.C. Nag (PW-8), Additional Tahsildar who has recorded the dying declaration, was not in a position to say where and when he has recorded the dying declaration. The doctor has not certified that the deceased was in a position to answer the questions and was in fit state of mind. Oral & written dying declarations suffer from infirmity and are not sufficient to base conviction of the appellant. The offence took place on 28-9-2001 and the deceased died on 3-12-2001 after more than two months of the inc.ident that too as a result of septicemia and bedsore Which shows that the deceased has not died as a direct result of the injuries sustained by her, therefore, even conviction of the appellant under Section 302 of the I.P.C. is not sustainable under the law. 9^ I '^ w' 'V!ft!i\le ^H' Learned counsel placed reliance in the matter of Mohar Singh and othersetc. v. State of Punjab (AIR 1981 SC 1578) in which the Apex Court has held that dying declaration giving detailed account of occurrence though made ~in serious condition, even not attested by deceased's wife or doctor present there, smacks of concoction and cannot be relied on. Learned counsel further placed reliance in the matter of Ram Kumar Pande v. The State of hfladhya Pradesh (AIR 1975 SC 1026) in whichthe Apex Court has held that F.I.R. although is a previous statement which" cari, strictly speaking, be only used to corroborate or contradict the maker of it, but omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the case is based on oral & written dying declarations of the deceased which inspire confidence, trustworthy and sufficient for placing reliance. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalfofthe prosecufion. 12.1n the present case, homicidal death of the deceased as a result of ante- mortem fatal injuries has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. S.K. Ahuja (PW-14), Block Medical Officer, Community Health Centre, Churia; his medical report Ex.P-26; the evidence of Dr. Sanjay Kumar Dadu (PW- 13); and hisautopsy report Ex.P-25 which reveal that five injuries were found over abdomen & head of the deceased with internal secretion of blood and death was homicidal in nature. Dr. Sanjay Kumar Dadu (PW- 6 - , 13) has also admitted that the wounds were infected and septicemia was also present. 13.As regards complicity ofthe appellant in the crime in question, conviction is based on the evidenceof eye witness Parvati Bai (PW-2), oral dying declaration &written dying'declaration Ex.P-11. Parvati Bai (PW-2) has deposed in her evidence-that the appellant assaulted deceased Malti twice with knife, she ^this witness) went inside the room and after some time, she shouted that the appfillant has assaulted Malti. This witness has further deposed in para 3 of'tier evidence that injured Malti (since deceased) was not in a position to talk and there was only movement of her head when she provided water to Malti. She has also stated in para 9 that the appellant has killed Malti, but this fact does not find place in Ex.D-1, her previous statement recorded under Section 161 of the Cr.P.C. 14.Vijay Kumar (PW-3), son ofthe deceased, has deposed in his evidence that he heard from the mouth of Parvati Bai that Devendra has assaulted his mother, then he went towards his mother Malti, she was agonizing and he saw injury over abdomen, neck and other parts of body of his mother. 15.As regards the oral dying declaration, Madan (PW-1), husband of the deceased, has deposed that Malti was lying on the way stained with blood, he asked Malti on which she told that Devendra has assaulted her and she became unconscious. He saw injuries over the bpdy of the injured. In his detailed cross-examination, he has admitted that he has not mentioned the fact that three persons met him on the way. He has also admitted that he has not informed the police wh.ile lodging the F.I.R. that Malti has narrated the incident, but the F.1.R. reveals that he came to '^ i t ; •.;is..'i8i!Sa B ^igli^'"^ j ^^ "N, know about the incident from the wife of Bishat Sahu i.e. Parvati Bai (PW-2). Detailed cross-examination of this witness reveals that his wife Malti has not made dying declaration to him and he came to know about the incident from Parvati 6ai (PW-2). 16.The prosecution has examioed another set of evidence i.e. written dying declaration. H.C. Nag (PW-8) has deposed in his evidence that he has recorded the dying declaration of Malti vide Ex.P-11 in which Malti Bai has made dying declaration that the appellant assaulted her with knife in front of the house of Laxmi Bai, Defence has cross-examined this witness at length and in para 3 of his cross-examination he has deposed that he has not mentioned the place where he recorded the statement and also the time. He has further stated that he has not mentioned the ward in which Malti was admitted and he has also not mentioned the memo number. But in his detailed cross-examination, he has stated that he has recorded the statement of Malti, Malti was conscious and she was able to answer the questions. •l7.Ex.P-11, the alleged written dying declaration, reveals the place of recording the statement of Malti as Government Hospital and date as 29- 9-2001. It is recorded on back part of the dying declaration that the Churia Police has requested for dying declaration. 18. Dr. M.K. Diwaker (PW-10) who has examined Malti Bai has deposed in para 5 of his evidence that till her discharge from the hospital she was semi-conscious and was not in a position to talk normally. He has deposed in para 1 that Malti was talking in semi-conscious state (s ^ait). •19.Although the prosecution has not proved the statement of Malti recorded under Section 161 ofthe Cr.P.C., but Head Constable Chain Singh Uike ^ (PW-12) has specifically deposed in para 2 of his evidence that he has recorded the statement of Malti on 2-10-2001. In para 6 of his cross- examination, he has deposed that he has recorded the statement of Malti in emergency ward of the hospital and he has denied the suggestion in para 5 that he has not recorded the statement of Malti. ZO.Evidence of Head Constable-Chain Singh Uike (PW-12) and evidence of Dr. M.K. Diwaker (PW-10) reveal that injured Malti was not fully conscious, but also not comp,letely unconscious, she was semi- ..(. conscious till her discharge from DistNRt Hospital, Rajnandgaon. 21.H.C. Nag (PW-8), Additional Tahsildar, has recorded the statement of Malti on 29-9-2001 vide Ex.P-11. Ex.P-11 reveals that the injured has given brief statement, the injured was serious, she was not in a position to give detailed statement and her statement has been recorded by this witness in brief. The evidence of H.C. Nag (PW-8) reveals that he has interrogated Malti and has recorded her statement and she was in a position to answer the questions. As held by the Apex Court in the matter of Mohar (supra), this witness has not recorded the detailed statement. Therefore, the case of Mohar (supra) is distinguishable on facts to that of the present case. 22.The evidence of H.C. Nag (PW-8) reveals that he has recorded brief dying declaration only on the point that on the ground of previous enmity the appellant assaulted the deceased. The written dying declaration inspires confidence, it is trustworthy and safe to rely on. The evidence of H.C. Nag (PW-8) finds support from the evidence of Parvati Bai (PW-2), the eyewitness who has seen the incident. In her statement recorded under Section 161 ofthe Cr.P.C. also Parvati Bai (PW-2.) has stated that the aecused has assaulted injured Malti. The evidence of eyewitness r ,. "SVf :'aEilM&toi Parvati Bai (PW-2) and the evidence of H.C. Nag (PW-8) are sufficient for drawing inference that the appellant has caused injuries to the deceased over her abdomen & head while she was alone. 23.As regards the question of motive, the evidence of Ramprasad (PW-6) reveals that prior to the incident on the ground of dispute the appellant was punished by the Panchayat and he was having grudge against the deceased and on the ground of such animosity while Malti was alone, he caused fatal & repeated injuries over her abdomen & head and the ,,(. deceased died as a result of such Tnjuries and their complications. This shows the grave intention of the appellant of causing death of the deceased. 24.After appreciating the evidence available on record, the Sessions Judge, Rajnandgaon has convicted the appellant under Section 302 ofthe I.P.C. and sentenced him to undergo imprisonment for life. On close scrutiny of evidence, we do not find any illegality or infirmity in conviction & sentence of the appellant. 25.The appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. '— — — " Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge A Homa