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2003 DIGILAW 76 (CHH)

Thanu v. State Of Chhattisgarh

2003-04-29

K.H.N.KURANGA, L.C.BHADOO

body2003
JUDGMENT L.C. Bhadoo, J. 1. Both the appeals are being decided by this common judgment as they arise out of the common judgment dated 28-2-2002 passed by the Fourth Additional Sessions Judge, Jagdalpur, Bastar in Sessions Trial No. 28 of 1989. 2. The accused/appellants have preferred these appeals under Section 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 28-2-2002 passed by the Fourth Additional Sessions Judge, Jagdalpur, Bastar in Sessions Trial No. 28 of 1989, by which learned Trial Court after holding the accused/appellants Thanu, Rajendra, Shankar Rao and Anish @ Gopu guilty of the offences punishable under Sections 147, 364 and 302 read with Section 149 of the Indian Penal Code convicted and sentenced each of them as follows :-- Under Section 147, IPC, 2 years R.I. and fine of Rs, 100/- in default of payment of fine amount to undergo one month's R.I. Under Section 364, IPC, imprisonment for life and fine of Rs. 300/-, in default of payment of fine amount to undergo 3 months' R.I. Under Section 302 read with Section 149, IPC, imprisonment for life and fine of Rs. 500/-, in default of payment of fine amount to undergo 6 months' R.I. All the sentences were directed to run concurrently. However, learned Additional Sessions Judge acquitted the accused persons for the offences punishable under Sections 148 and 307 of the IPC and Section 25 of the Indian Arms Act. 3. The relevant prosecution story for the disposal of these appeals are that on 18th June, 1988 deceased Mohan Tiwari along with his friends Balvinder Singh and Bhagwani had gone to watch a movie in Narendra Talkies in the night show starting from 9 p.m. When the movie was going on they came out of hall to urinate, at that time accused persons caught Mohan Tiwari and started inflicting injuries. When Balvinder Singh intervened/resisted, then the accused persons also gave beating to him. Thereafter they took Mohan Tiwari in a rickshaw towards city ground and again inflicted injuries and fled away from the site. The persons residing in the vicinity of city ground saw Mohan Tiwari in injured condition and took him to the Maharani Hospital and got him admitted in the said hospital. Thereafter they took Mohan Tiwari in a rickshaw towards city ground and again inflicted injuries and fled away from the site. The persons residing in the vicinity of city ground saw Mohan Tiwari in injured condition and took him to the Maharani Hospital and got him admitted in the said hospital. In the same night at about 12.30 a.m. - 1.00 a.m. on receiving a written intimation by Assistant Sub Inspector D.R. Singh from the hospital that Mohan Tiwari is admitted in the hospital, he sent an intimation to the Sub Divisional Magistrate for getting the dying declaration of Mohan Tiwari recorded, and he reached to the Hospital, when he saw Mohan Tiwari in conscious condition he recorded his dying declaration and gave a written request to the Assistant Surgeon for medical examination of Mohan Tiwari. Thereafter he came to the police station and based on the said dying declaration of Mohan Tiwari registered the First Information Report for the offence punishable under Section 307/34 of the Indian Penal Code. However, Mohan Tiwari succumbed to the injuries in the same night at 4.00 a.m. and after receiving this information of death of Mohan Tiwari the Assistant Sub Inspector D.R. Singh on 19-6-1988 again reached to the hospital and prepared a panchayatnama of the dead body in presence of the witnesses and requested for conducting post- mortem of the dead body. Thereafter, Sanjay Borker, S.H.O. Police Station took up the investigation and he reached to the Maharani Hospital, seized the clothes of the deceased, viz., underwear, gamcha, shirt and full pant. Thereafter he inspected the site of occurrence from where he took into possession the simple soil and blood contained soil. On 20-6-1988 he took into custody accused Rajendra, Ramkrishna @ Ram Gudda, Ramesh Kumar, and Thanu Yadav and interrogated them in presence of the witnesses and on the information given by them he seized sword, danda and batta (thick wooden piece) from a well situated near city ground. On 22-6-1988 he arrested accused Abdul Rashid, Devendra Soni and Mahesh Petia and on the information given by them he seized batta (thick wooden piece) from the bush standing near city ground. Thereafter he sent the seized weapons to Dr. Dewangan for his opinion whether the injuries found on the body of Mahesh Tiwari can be caused by these weapons and thereafter sent the seized articles and soil for chemical examination. 4. Thereafter he sent the seized weapons to Dr. Dewangan for his opinion whether the injuries found on the body of Mahesh Tiwari can be caused by these weapons and thereafter sent the seized articles and soil for chemical examination. 4. After completion of the investigation the S.H.O. filed a challan against the present accused/appellants Rajendra, Shankar Rao, Anish @ Gopu, Thanu and other accused persons Ramesh Vyas, Rashid @ Abdul, Devendra, Mahesh Petia and Purnima Tiwari for commission of the offences punishable under Sections 147, 148, 302, 149, 307 and 364 of the Indian Penal Code and Section 25 of the Indian Arms Act. Other accused persons Ram Gudda and Sanjay Mishra have died and Pradeep is still absconding. Based on the challan, learned Additional Sessions Judge framed the charges against the accused persons, who denied the charges and prayed for trial. After conclusion of the trial present accused/appellants were convicted and sentenced by the learned Additional Sessions Judge as mentioned in Paragraph 2 of this judgment, and remaining other accused persons were acquitted of all the charges. 5. In order to prove the charges against the accused persons the prosecution examined in all 12 witnesses. The statements of the accused persons were also recorded under Section 313 of the Cr.P.C. in which they denied the statements of the witnesses. The allegation against the accused persons are that on the fateful day they formed unlawful assembly with the common object to murder Mahesh Tiwari and in furtherance of the common object they went to the site armed with deadly weapons and after reaching the scene of occurrence they abducted deceased Mahesh Tiwari and inflicted the injuries on the body of Mahesh Tiwari and he succumbed to those injuries. 6. Learned Additional Sessions Judge after hearing the arguments of learned Counsel for the accused persons and learned Public Prosecutor convicted the accused persons and sentenced them as mentioned above. 7. We have heard learned Counsel for the parties, perused the evidence available on record as also the judgment of the Trial Court. As far as the question of nature of death of the deceased Mohan Tiwari is concerned learned Counsel for the appellants did not dispute the nature of death of Mahesh Tiwari as homicidal. However, Dr. 7. We have heard learned Counsel for the parties, perused the evidence available on record as also the judgment of the Trial Court. As far as the question of nature of death of the deceased Mohan Tiwari is concerned learned Counsel for the appellants did not dispute the nature of death of Mahesh Tiwari as homicidal. However, Dr. R.K. Dewangan (P.W. 9) has deposed in his statement that on 19th June, 1988 he was working as doctor in Maharani Hospital, Constable Jagdish of City Kotwali brought Mahesh Tiwari for examination, on medical examination he found in all 13 injuries on the body of the deceased which were in the nature of incised wounds, contusions and fractures on various parts of the body of Mohan Tiwari as mentioned in his report. He further stated that he had written that the general condition of the patient was very serious, he advised for X-ray, his report is Ex. P-36. He admitted Mahesh Tiwari and examined him medically; his bed-head ticket is Ex. P37. He further said that his report (Ex. P-39) is on the point that the injury on the body of the deceased can be caused by sword and other weapons which were produced before him. He further stated that on 19th June, 1988 Dr. R.P. Sharma conducted the post-mortem on the body of the deceased and Ex. P-47 post-mortem report was prepared by Dr. R.P. Sharma. In the post-mortem report (Ex. P-47), Dr. R.P. Sharma has written the cause of death due to coma because of head injury, therefore, in view of the post-mortem report and the statement of the doctor it is proved that the nature of the death of the deceased Mohan Tiwari was homicidal. 8. In this case eye-witnesses namely Balvinder Singh (P.W. 1) has turned hostile and he said that he knows Mohan Tiwari, on 18th June, 1988 he along with Mohan Tiwari went to Narendra Talkies to watch movie and in between they came out to urinate, when he was in urinary his face was on the side of Basant Saw Mill and at that moment some thing was put on his legs, he could not see due to dark and fell down after some time he slowly-slowly went by the side of nala and at one stage he saw in the light that blood was oozing from his legs. He does not know what happened to Mohan Tiwari. The police got him medically examined after two days, thus he has not supported the prosecution case. Similarly the other eye-witness Hari Singh (P.W. 5) has also turned hostile and said that 2-3 years back at about 10-11 in the night he went towards the city ground to attend the call of nature and he heard scream of someone who was asking for water, he went near that person, he was not knowing him and had not seen prior to that day. Thereafter he along with his son-in-law Jagmohan and another person took Mohan Tiwari to the Maharani Hospital in a rickshaw. He said that the injured person was not talking and he did not enquire about his name, thus he has also not supported the prosecution case and said that he had not given the police statement (Ex. P-1 1). Therefore, there is no eye-witness in this case and the whole case rests on the following two points:-- (i) Dying declaration of the deceased mode before the police officer. (ii) Recovery of the weapons at the instance of accused persons. 9. As far as the question of making dying declaration (Ex. P-12) by the deceased before D.R. Singh (P.W. 8), he has stated in his statement that he recorded the statement on 18th June at about 1.15 a.m. in the night at Maharani Hospital which is Ex. P-12. On the questions whether the prosecution has been able to prove the dying declaration made by the deceased before this witness and whether this dying declaration is worthy of reliance, believable and inspire the confidence of the Court, Hari Singh (P.W. 5) whose thumb impression is affixed on the dying declaration has said that no dying declaration was recorded in his presence. In Para 10 of his statement he stated that the doctor recorded Ex. P-12 statement of the deceased/injured person but the injured had not taken the name of any person whereas in Para 9 he said that doctor did not enquire from the deceased/injured person, and in Para 12 he said that Ex. P-12 was not read over to him but he was simply asked to sign that document and he put his signature, his signature was not obtained on the plain paper. Apart from above witness, signature of Dharam Nath was also obtained on Ex. P-12 was not read over to him but he was simply asked to sign that document and he put his signature, his signature was not obtained on the plain paper. Apart from above witness, signature of Dharam Nath was also obtained on Ex. P-12 as a witness but he has not been examined in this case. If we look at the statement of Dr. R.K. Dewangan (P.W. 9) he has said that the deceased was not in the condition to give statement. In Para 6 he has stated that on 19th June, 1988 Police Station Kotwali asked about recording of dying declaration then he informed vide Ex. P-46 that the condition of the deceased was serious and he was not in a position to give statement. Therefore, except D.R. Singh nobody has stated about recording of dying declaration of the deceased. He has said in the cross-examination that he requested the Sub Divisional Magistrate and Tehsildar for recording the dying declaration but such written request is not on record, further he has not said that why the S.D.M. or Tehsildar did not come to record the statement and under what circumstances he was compelled to record the statement of Mohan Tiwari and this witness has not said that as to why he did not record the statement of the deceased in the presence of doctor and why he did not obtain a certificate from the doctor to the effect as to, whether deceased Mohan Tiwari was fit to give statement but on the contrary doctor said that the patient was not in the condition to give the statement. This witness has simply stated that he recorded the dying declaration (Ex. P-12). His version has not been supported by any other witness, even Hari Singh (P.W. 5) has said that no dying declaration was recorded in his presence. In view of this the version of recording the dying declaration (Ex. P-12) by D.R. Singh does not inspire confidence and this dying declaration is not trust worthy but appears to be an attempt to cover up the latches of the investigation. More particularly in view of the statement of the doctor that the deceased was not in the condition to give the statement, therefore the prosecution has utterly failed to establish that the deceased Mahesh Tiwari gave dying declaration (Ex. P-12). 10. More particularly in view of the statement of the doctor that the deceased was not in the condition to give the statement, therefore the prosecution has utterly failed to establish that the deceased Mahesh Tiwari gave dying declaration (Ex. P-12). 10. Learned Additional Sessions Judge after going through the notings/observations made in the bed-head tickets of the deceased has written in his judgment that a request was made to the Sub Divisional Magistrate for recording dying declaration and at 12.50 it has been written on bed-head ticket that the injured was conscious and at 1.00 a.m. also the same condition has been written on the bed-head tickets. Since the dying declaration was recorded at 1.15 a.m. as the Magistrate did not turn up therefore the police officer recorded the statement of the deceased. The Magistrate came about 1.50 a.m. and by that time the patient become drowsy and he was not in a position to give the statement. But the prosecution has not proved all these facts by producing the doctor who recorded these notings/observations on the bedhead tickets and on the contrary Dr. Dewangan has stated that he gave information (Ex. P-46) to the police that the patient was not in the condition to give dying declaration therefore, no dying declaration was recorded. D.R. Singh has not said in his statement that no doctor was available at the time when he recorded the statement in order to obtain the opinion/certificate of the doctor about fitness of the deceased/injured. He has also not stated that since nobody was coming forward and condition of the injured/deceased had become serious therefore, under the circumstance he was compelled to record the statements in absence of those persons. Merely on the notings on the bed-head tickets which have not been proved by any witness or doctor, no inference can be drawn that the deceased was in a fit condition to give statement or no doctor or other witness were available for recording the dying declaration of the deceased. More over Hari Singh (P.W. 5) has turned hostile and even the other witness of Ex. P-12 Dharmnathna has not been produced in witness box, therefore, in the given circumstances Ex. P-12 can not be believed and is not trustworthy. More over Hari Singh (P.W. 5) has turned hostile and even the other witness of Ex. P-12 Dharmnathna has not been produced in witness box, therefore, in the given circumstances Ex. P-12 can not be believed and is not trustworthy. The whole prosecution case is based on the dying declaration and as discussed above the dying declaration is not trust worthy therefore, the finding of the learned Trial Court on this count is not sustainable for the reasons aforementioned. 11. Now coming to the recovery of sword on the memorandum (Ex. P-50) given by Rajendra which was recovered by Ex. P-7 from the well and one wooden batta was recovered at the instance of accused Thanu on the memorandum (Ex. P-53) and the same was recovered vide Ex. P-20 from the bush. The seizure witness Bhawani (P.W. 10) has turned hostile and stated that no recovery was effected in his presence and Devnath has not been produced. Vidhan Rai (P.W. 12) has denied about the seizure, he has also turned hostile. In Para 26 of his judgment learned Additional Sessions Judge has not believed the recovery of batta at the instance of the accused Thanu. As far as recovery of sword at the instance of Rajendra he has believed but has observed that since deceased has not said in his statement (Ex. P-12) that Rajendra had inflicted the injury by sword therefore, recovery of sword is of no help. More over there is no evidence on record that these weapons contained human blood. Thus, these recoveries can not connect the accused persons with the murder of the deceased Mohan Tiwari. 12. In view of the above, the finding of the learned Additional Sessions Judge convicting and sentencing the accused appellants can not be sustained because the prosecution has utterly failed to establish that the deceased had given dying declaration therefore, finding of the Trial Court based on above dying declaration can not be sustained. 13. In the result, the appeal of the appellants Thanu, Rajendra, Shankar Rao, Anish @ Gopu succeeds they are acquitted of the charges under Sections 147, 364, 302 read with Section 149 of the Indian Penal Code. They be released forthwith if not required in any other case.