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2011 DIGILAW 365 (CHH)

MUKESH DEWANGAN @ DEVRAJ v. STATE OF C. G.

2011-11-21

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT As per Hon 'ble Shri Rangnath Chandrakar, J.:- 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 28-4-2007 passed in Sessions Trial No.02/2006 whereby learned 1st Additional Sessions Judge, Durg, after holding the appellants guilty for committing murder of Akhilesh Singh, convicted them under Sections 302 & 302/34 of the IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs.100/- each, in default of payment of fine to further undergo SI for one month. 2. The prosecution story, in brief, is that on 26-9-2005, Akhilesh Singh (deceased) went to the house of his friend namely Dhermendra (Bablu) at Resalibhata and after having his lunch when he was returning, he saw that some women were breaking the iron piece (Beet). At the same time, appellant No.1 Mukesh Dewangan came there and forbade the women to break the iron piece. On this, Akhilesh Singh asked him as to why he was forbidding them from breaking the iron piece, then the appellant No.1 Mukesh Dewangan started abusing Akhilesh Singh and assaulted him with knife. The incident was intervened by Dharmendra (PW/3) and Meghnath (PW/4). 3. Injured Akhilesh Singh was taken to Police Station, Newai, who lodged First Information Report vide Ex.P/20. He was sent to District Hospital, Durg where he was examined by Dr. A.K. Mishra (PW/6) vide Ex.P/10 who found incised wounds below the right chest in the size of 3x1xl cms with swelling and hemorrhage. Thereafter, looking to the serious condition of the injured Akhilesh Singh, he was admitted in Sector 9 Hospital, Bhilai where he died on 28-9-2005 during the course of treatment and intimation thereof was sent to concerned Police Station by hospital authorities vide Ex.P/16 by issuing death certificate vide EX.P/17. Merg was recorded at Police Station Newai, Dist. Durg vide Ex.P/19. The case was taken up for investigation. After summoning the witnesses vide Ex.P/3, inquest over the body of the deceased was prepared vide Ex.P/4, dead body of deceased was sent for autopsy to Dist. Hospital Durg vide Ex.P/25 where Dr. Merg was recorded at Police Station Newai, Dist. Durg vide Ex.P/19. The case was taken up for investigation. After summoning the witnesses vide Ex.P/3, inquest over the body of the deceased was prepared vide Ex.P/4, dead body of deceased was sent for autopsy to Dist. Hospital Durg vide Ex.P/25 where Dr. V.S. Baghel (PW/12) conducted autopsy vide Ex.P/18 and found following injuries: (i) Penetrating incised wound 2 ½ cm x 1 cm transverse in mid auxiliary line over right side having two stitches; (ii) One stitched wound 2cm long and two stitches placed longitudinally over right and lower part of chest; (iii) One penetrating incised wound 2½ cm x 1 cm over right hypochondriac having two stitches; (iv) Stitched wound 24cm long present over right para-median area in abdomen; (v) One lacerated wound 4cm x 2cm over right renal area (colostomy wound); (vi) Colostomy wound and drain present on left side of abdomen; bluish black discolouration of skin present on right side of abdomen upto inguinal area, blood mixed liquod present at anal area, abrasion 1x ¼ cm on dorsum of 2nd MCP joint at left, contusion of blakish colour 3 x 2½ cm on anterior aspect of left arm upper 3rd. On exploration wound No.1 opens in plural cavity and wound No.2 and 3 connect to peritoneal cavity. Ninth and tenth ribs at right side were transversely cut. The doctor opined that mode of death was due to multiple visceral injuries and hemorrhagic shock. 4. During course of investigation appellant No.1 Mukesh Dewangan was taken into custody, his memorandum was recorded vide EX.P/8 on the basis of which knife was seized vide Ex.P/9 at his instance. He was arrested vide EX.P/31 and appellant No.2 Manoj Dewangan was arrested vide Ex.P/32. Blood stained earth and plain earth were seized from the spot vide Ex.P/l, wearing apparels of the deceased were seized vide Ex.P/2, spot map was prepared by Investigating officer vide Ex.P/13 as also by Patwari vide EX.P/6. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/27 and a report thereof was received vide Ex.P/29 whereby presence of blood over all the seized articles excluding the plain earth was confirmed. 5. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/27 and a report thereof was received vide Ex.P/29 whereby presence of blood over all the seized articles excluding the plain earth was confirmed. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.c., and after completing the investigation, charge-sheet was filed against the appellants under Sections 302, 294/34 of the IPC in the Court of Judicial Magistrate First Class, Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned First Additional Sessions Judge, received the case on transfer for trial, who framed charge under Section 302/34 of the Indian Penal Code against the appellants who abjured the guilt. 6. In order to prove the charge against the appellants the prosecution examined as many as 16 witnesses. Statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the circumstances appearing against them, innocence and false implication in crime in question is claimed. 7. After affording opportunity of hearing to the parties, learned 1st Additional Sessions Judge convicted and sentenced the appellants as aforesaid mentioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 9. Mr. D.R. Sharma, learned Sr. counsel with Mr. B.D. Badagayan, counsel for the appellants vehemently argued that conviction of the appellants is based on the evidence of alleged eye-witnesses Dharmendra (PW/3) & Meghnath (PW/4) and the evidence of G.R. Markam (PW/15) who recorded the dying declaration of the deceased. The evidence of the aforesaid witnesses do not inspire confidence and trustworthy. The alleged eye-witness Meghnath (PW-4) was declared hostile in the case. There are omissions and contradictions in their statements and their evidence are not safe to rely for convicting the appellants. Learned counsel further submits that deceased Akhilesh Singh himself lodged first information report (Ex.P/20) in which he has categorically stated that appellant No.1 Mukesh stabbed with knife on the right side of his abdomen and there are no allegations against appellant No.2 Manoj Dewangan. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellants have caused homicidal death of deceased. 10. Per contra, Mr. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellants have caused homicidal death of deceased. 10. Per contra, Mr. J.A. Lohani, learned Panel Lawyer appearing on behalf of the State supporting the impugned judgment submits that conviction is based on the evidence of Dharmendra (PW/3) & Meghnath (PW/4) and the evidence of G.R. Markam (PW/15) before whom deceased Akhilesh Singh made a dying declaration that the appellants have caused injuries to him. The evidence of the aforesaid witnesses inspire confidence and trustworthy and deceased himself lodged first information report and the evidence adduced on behalf of the prosecution is sufficient for drawing inference that present appellants have caused homicidal death of deceased Akhilesh Singh with intent to cause his death. After appreciating the evidence available on record, the court has rightly convicted and sentenced the appellants. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of the deceased as a result of fatal injuries found over the vital part of body of deceased Akhilesh Singh has not been disputed on behalf of the appellants. Even otherwise, it is further established by the evidence of Dr. A.K. Mishra (PW/6), Dr. V.S. Baghel (PW-12) and autopsy report Ex.P/18 that death of deceased Akhilesh Sigh was homicidal in nature. 13. As regards complicity of the appellants in crime in question, conviction of the appellants is based on evidence of eye-witnesses Dharmendra (PW/3) & Meghnath (PW/4) and the evidence of G.R. Markam (PW/15) before whom the deceased made a dying declaration that the appellants have caused injuries to him. 14. As per evidence of eye-witness Dharmendra (PW/3), at the time of incident he along with Meghnath (PW/4) was at Tea stall of Punam Thakur (PW/5) situated near his house. At that time, he heard the noise coming from the place of incident which is at a distance of about 35 - 40 steps from the Tea stall. Hearing the noise they went to the spot and saw that there was scuffling amongst appellants and deceased. The appellant No.1 Mukesh Dewangan assaulted the deceased with a knife over his abdomen at the right side near his waist. Hearing the noise they went to the spot and saw that there was scuffling amongst appellants and deceased. The appellant No.1 Mukesh Dewangan assaulted the deceased with a knife over his abdomen at the right side near his waist. Thereafter, both the appellants fled away from the spot and the deceased sat there holding his abdomen. He made outcry for help hearing which other persons of the vicinity also rushed to the spot, thereafter he was taken to police station by this witness along with Meghnath where deceased lodged first information report vide Ex.P/20. At that time, the appellants also came to the Police Station and lodged report against the deceased including this witness and Meghnath (PW/4). After lodging the FIR deceased was sent to District Hospital, Durg for treatment. He stayed with the deceased at Hospital in the night where Police came and recorded the statement of deceased. On the next day, the witness went to his house. Thereafter, on the next day he again went to District Hospital, Durg to ascertain the health condition of the deceased but deceased was shifted to Sector 9 Hospital, Bhilai and when he went to the house of deceased, he came to know about the death of deceased. This witness was cross-examined at length and confronted to his diary statement (Ex.D/1) wherein he denied to give the statement from part "A to A" to Police. In his cross-examination he categorically stated to see the appellant No.1 Mukesh Dewangan assaulting the deceased with knife. Further, though he denied the suggestion that he along with Meghnath and deceased assaulted the appellant No.1 Mukesh Dewangan, admitted the fact to be true that the appellant No.1 Mukesh Dewangran lodged report against deceased including this witness and Meghnath which is pending. Thus, the testimony of this witness appears to be reliable and trustworthy despite there being some contradictions and omissions. 15. PW/4 Meghnath deposed that at the time of incident he along with Bablu @ Dharmendra (PW/3) was at the tea stall where they heard the outcry to save coming from the Tanki side. Hearing the outcry, when they went to the spot the deceased had sustained stab injury and appellants fled from the spot. At that time deceased was sitting holding his abdomen and people of the locality also gathered there. Hearing the outcry, when they went to the spot the deceased had sustained stab injury and appellants fled from the spot. At that time deceased was sitting holding his abdomen and people of the locality also gathered there. On the advice of the persons of locality he and Bablu @ Dharmendra (PW/3) took the deceased to police station on a bicycle. The deceased lodged the report, at the same time appellant No.1 Mukesh also came there and lodged the report against them. At that time condition of deceased was so serious that he was not able to speak. The witness denied to give any statement to police and preparation of map by Patwari in his presence. This witness was declared hostile and put to leading questions wherein he denied to see appellant No.1 Mukesh Dewangan assaulting the deceased. He himself stated that he saw appellant No.1 Mukesh Dewangan removing the knife from the abdomen of the deceased. He was confronted to his diary statement (Ex.P/7) which he denied. Thus, this witness did not corroborate the version of Dharmendra (PW/3) on the point to see appellant No.1 assaulting the deceased with knife but admitted to see the appellant No.1 removing knife from the abdomen of the deceased. 16. On reappraisal of the testimonies of the aforesaid witnesses, it. is found that PW/3 Dharmendra has supported the case of prosecution to the extent that the deceased was assaulted by appellant No.1 Mukesh Dewangan with knife whereas PW/4 Meghnath turned hostile and denied to see the assault made by the appellant No.1 and in place he stated to see the appellant No.1 removing the knife from the abdomen of the deceased. Thus, presence of appellant No.1 Mukesh Dewangan with knife on the spot is established and the version of PW/3 Dharmendra regarding the assault is further corroborated by the FIR (Ex.P/20) which was lodged by deceased himself which has also been corroborated by PW/4 Meghnath, the hostile witness. 17. So far as dying declaration is concerned, it was recorded by PWI/15 G.R. Markam, Tahsildar who categorically corroborated the dying declaration (Ex.P/34). He deposed that the deceased was in injured condition and was able to speak. He denied the suggestion of the defence that the deceased was not in a fit condition to give statement. He further corroborated the certificate of fitness of the deceased given by Dr. He deposed that the deceased was in injured condition and was able to speak. He denied the suggestion of the defence that the deceased was not in a fit condition to give statement. He further corroborated the certificate of fitness of the deceased given by Dr. V.R. Meshram (PW/16) on the back side of EX.P/33. Dr. V.R. Meshram (PW /16) also deposed that at the time of recording of dying declaration, the deceased was in a fit condition to give the statement. Thus, the dying declaration is categorically corroborated by G.R. Markam, Tahsildar (PW/15) and Dr. V.R. Meshram (PW/16) wherein the names of the appellants were mentioned by the deceased and there is no reason to discard the dying declaration. Thus, after minute scrutiny of the entire evidence on record, it is found that there is ample evidence against the appellant No.1 Mukesh Dewangan. 18. So far as the role played by appellant No.2 Manoj Dewangan in the incident is concerned, a bare perusal of the dying declaration (Ex.P/34) goes to show that his name was mentioned for the first time in the dying declaration of the deceased stating that he helped the appellant No.1 and abusing dealt him with hands and fists, thereafter, appellant No.1 assaulted him with knife over his abdomen. That apart, on perusal of the FIR (Ex.P/20) lodged by the deceased himself, it is clear that the name of appellant No.2 Manoj Dewangan does not find place. The eye-witnesses Dharmendra (PW/3) and Meghnath (PW/4) have also not stated anything about the role played by appellant No.2 Manoj Dewangan. The only evidence against the appellant No.2 is dying declaration wherein it was stated that he simply assaulted the deceased by hands and fists. It is no-where stated that the appellant No.2 facilitated the appellant No.1 in assaulting the deceased with knife. Thus, the appellant No.2 cannot be convicted under Section 302/34 of the IPC. Considering all the facts and circumstances of the case and on close scrutiny of the evidence, we are of the considered opinion that the act attributed to the appellant No.2 Manoj Dewangan, if any, does not travel beyond the ambit of Section 323 of the IPC. The court below while convicting and sentencing the appellant No.2 Manoj Dewangan under Section 302/34 of the IPC has not considered the aforesaid circumstances and thereby committed illegality. 19. The court below while convicting and sentencing the appellant No.2 Manoj Dewangan under Section 302/34 of the IPC has not considered the aforesaid circumstances and thereby committed illegality. 19. For the foregoing reasons, the appeal is partly allowed. Conviction and sentence of the appellant No.1 under Section 302 of the IPC is hereby maintained. Conviction and sentence of the appellant No.2 Manoj Dewangan under Section 302/34 of the IPC is altered into Section 323 of the IPC. He has already served the sentence more than the maximum prescribed under Section 323 of the IPC. He is on bail; his bail bonds shall stand discharged. Appeal Partly Allowed.