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2013 DIGILAW 18 (CHH)

Kunjbihari Alias Kunju v. State of C. G.

2013-01-07

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 13-08-2004 passed by 10th Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No.35/2004. By the impugned judgment, accused/appellant Kunjbihari alias Kunju has been convicted under Sections 342 and 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1 year and 7 years, respectively and to pay fine of 1,000/-, in default of payment of fine, to further undergo simple imprisonment for 4 months. The jail sentences are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: On 26-9-2003, deceased Joidha had gone to his field at Village Binauri along with his Advocate Shivanand Shende (PW 13). When they reached near the village at about 3 P.M. and were going to the field, the appellant abused the deceased and assaulted him with Danda, hand and fist and dragged him to his house. Shivanand Shende (PW 13) went to Police Outpost Pachpedi and informed the police about the incident. Constable Santdeen (PW 11) went to Village Binauri along with Constable Kunjram Jagat and took deceased Joidha to Police Outpost Pachpedi where Joidha lodged First Information Report (Ex.P-9). Deceased Joidha was sent to Primary Health Centre, Masturi for medical examination from where he was referred to District Hospital, Bilaspur. On the way, the deceased died. Intimation of his death was sent to Police Station Kotwali vide Ex.P-4 where Merg Intimation (Ex.P-8) was recorded. The Investigating Officer reached CIMS, Bilaspur, gave notice (Ex.P-11) to Panchas and prepared inquest (Ex.P-12) on the dead body of the deceased. The dead body of the deceased was sent for post mortem examination vide Ex.P-13. Dr. A.K. Shukla (PW 1) conducted post mortem examination and gave his report (Ex.P-1), in which, he found : (i) irregular abrasion on' both the elbows and forearms, (ii) irregular abrasion on left ankle joint (Takhana), (iii) irregular abrasion on calf of the right leg (Pindali). He opined that cause of death was shock due to excessive haemorrhage. Thereafter, regular FIR (Ex.P-5) was recorded in Police Station Masturi. In further investigation, spot-map (Ex.P-6) was prepared by Patwari Teturam Jangde (PW 4). Another spot-map (Ex.P-15) was prepared by the Investigating Officer. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-16 and at his instance, Danda was seized vide Ex.P-17. Thereafter, regular FIR (Ex.P-5) was recorded in Police Station Masturi. In further investigation, spot-map (Ex.P-6) was prepared by Patwari Teturam Jangde (PW 4). Another spot-map (Ex.P-15) was prepared by the Investigating Officer. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.P-16 and at his instance, Danda was seized vide Ex.P-17. Stamp-Paper, sale-deed and other documents were seized from Amardas (PW 10) vide Ex.P-18. Stamp-Paper and agreement-deed were seized from Bharat Bhushan vide Ex.P-19. The appellant was arrested vide Ex.P-20. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Additional Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session, Bilaspur, from where it was received on transfer by 10th Additional Sessions Judge (FTC), Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri B.M.K. Bajpai, learned counsel for the appellant argued that the trial Court erred in recording the conviction of the appellant as there is no any iota of legal and admissible evidence against the appellant for establishing the charges against him. The conviction of the appellant is based on the evidence of Shivanand Shende (PW 13) and Santdeen (PW 11). Their evidence is not cogent and credible, therefore, the conviction of the appellant cannot be based on their testimonies. The conviction and sentence recorded against the appellant are not sustainable. 4. On the other hand, Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.35/2004. 6. The conviction and sentence under Sections 342 and 304 Part II IPC awarded to the appellant are based on the testimonies of Shivanand Shende (PW 13), Amardas (PW 10) and Santdeen (PW 11). Shivanand Shende (PW 13) did not support the case of the prosecution, but the prosecution did not choose to declare him hostile. 7. In the instant case, Ex.P-9 is the FIR. According to the prosecution, Ex.P-9 was lodged by deceased Joidha. Therefore, Ex.P-9 is treated as dying declaration of the deceased. Learned counsel for the appellant submitted that Ex.P-9 was not lodged by the deceased and Ex.P-9 is suspicious, therefore, it cannot be treated as dying declaration. 7. In the instant case, Ex.P-9 is the FIR. According to the prosecution, Ex.P-9 was lodged by deceased Joidha. Therefore, Ex.P-9 is treated as dying declaration of the deceased. Learned counsel for the appellant submitted that Ex.P-9 was not lodged by the deceased and Ex.P-9 is suspicious, therefore, it cannot be treated as dying declaration. 8. If after making statement before the police the victim succumbed to his injuries, his statement can be treated as dying declaration and is admissible under Section 32(1) of the Evidence Act. 9. Now, I shall examine whether the prosecution has been able to prove that Ex.P-9 was lodged by the deceased himself? 10. Shivanand Shende (PW 13) deposed that on the date of incident, deceased Joidha came to him at Bilaspur and requested him to go to see the field at Village Binauri. Then he went to Village Binauri along with the deceased on a motor cycle. The deceased was sitting behind him and he was driving the motor cycle. When they crossed Village Malar, 4-5 persons met them and surrounded them. He stopped the motor cycle. They dragged the deceased from the motor cycle and assaulted him with hand and leg. He did not recognise the assailants of the deceased. He further deposed that the appellant was not present along with the assailants of the deceased. Thereafter, he took the deceased to his house. 11. Shivanand Shende (PW 13) deposed that after taking the deceased to his house, he went to Police Station Masturi and informed the police regarding the incident. Thereafter, he went to Police Outpost Pachpedi and gave information there regarding the incident and he stayed there. On the request of police officials, he again went to Village Binauri along with a Constable. The deceased was taken to Police Outpost Pachpedi on a motor cycle. Thereafter, they went to Masturi Hospital. The hospital was closed. Then, the deceased was taken to Government Hospital, Bilaspur. When they reached the Government Hospital, Bilaspur, after examining deceased Joidha, the doctor declared him dead. He further deposed that the deceased was not able to speak. 12. Santdeen (PW 11) deposed that on 26-9-2003, he was posted as a Constable at Police Outpost Pachpedi. On that date, N.L. Dhritlahare (PW 9) was posted as officer in charge of Police Outpost Pachpedi. He further deposed that N.L.Dhrithalare (PW 9) asked him to go to Village Binauri. He further deposed that the deceased was not able to speak. 12. Santdeen (PW 11) deposed that on 26-9-2003, he was posted as a Constable at Police Outpost Pachpedi. On that date, N.L. Dhritlahare (PW 9) was posted as officer in charge of Police Outpost Pachpedi. He further deposed that N.L.Dhrithalare (PW 9) asked him to go to Village Binauri. He went to Village Binauri, reached the house of the appellant and knocked the door of his house. The appellant opened the door of his house. Deceased Joidha was sitting on a cot in the house. He asked deceased Joidha about his problem. The deceased replied that he was unable to walk. Then the deceased was taken to Police Outpost Pachpedi on a motor cycle. He further deposed that the Police Outpost had immediately ordered for taking the deceased to hospital. He took deceased Joidha to Primary Health Centre, Masturi, but the PHC was closed. Thereafter, they took the deceased to District Hospital, Bilaspur. The doctor, after examining the deceased, declared him dead. 13. Looking to the evidence of Shivanand Shende (PW 13) and Constable Santdeen (PW 11), it appears that deceased Joidha was taken to Police Outpost Pachpedi, N.L.Dhritiahare (PW 9) had immediately sent him to PHC, Masturi for medical examination and PHC, Masturi was closed, therefore, the deceased was taken to District Hospital, Bilaspur, Santdeen (PW 11) was a Constable. He did not speak anything regarding lodging of the FIR by the deceased. Had the deceased lodged FIR at Police Outpost Pachpedi, Santdeen (PW 11) would have stated about the same. Even Shivanand Shende (PW 13), who took the deceased to the police outpost, did not state about lodging of the FIR. 14. N.L.Dhritiahare (PW 9) deposed that he recorded the FIR (Ex.P-9) and he obtained thumb impression of the deceased thereon, but his statement is not corroborated by Santdeen (PW 11). 15. Amardas (PW 10) also did not state anything regarding lodging of the FIR. Therefore, the FIR (Ex.P-9) is suspicious and cannot be used as dying declaration of deceased Joidha. 16. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the Court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it without corroboration. 16. Though there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the Court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it without corroboration. It is the duty of the Court to scrutinize the dying declaration and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration, the evidence with regard to it is rejected. 17. In the instant case also, Shivanand Shende (PW 13) specifically deposed that the deceased was unable to speak and Santdeen (PW 11) deposed that the deceased was unable to walk and when they reached the police outpost, N.L.Dhritiahare (PW 9) sent the deceased to PHC, Masturi for medical examination and thereafter they took the deceased to Government Hospital, Bilaspur. It appears that the deceased had no time to lodge FIR at Police Outpost Pachpedi, therefore, Ex.P-9 is suspicious and cannot be acted upon as dying declaration and cannot be based for conviction of the appellant. Had the appellant assaulted the deceased when Santdeen (PW 11) reached the house of the appellant and enquired the deceased about his problem, the deceased would have told him about the incident. Shivanand Shende (PW 13) is an eye-witness but he did not state about the incident and he specifically deposed that the appellant was not present along with the assailants of the deceased. 18. Amardas (PW 10) is son of the deceased. He deposed that Advocate Shivanand Shende (PW 13) had gone to see the field along with his father. At that time, he was not present. Shivanand Shende (PW 13) told him that his father was murdered. He further deposed that the appellant murdered his father. He further deposed that which Kunjbihari murdered his father was not known to him. He did not know how many Kunjbihari were residing in his village. He was not aware which Kunjbihari killed his father. 19. According to Amardas (PW 10), Shivamind Shende (PW 13) told him regarding the incident. But, Shivanand Shende (PW 13) did not state that the appellant assaulted the deceased. Therefore, the evidence of Amardas (PW 10) is inadmissible in evidence. He was not aware which Kunjbihari killed his father. 19. According to Amardas (PW 10), Shivamind Shende (PW 13) told him regarding the incident. But, Shivanand Shende (PW 13) did not state that the appellant assaulted the deceased. Therefore, the evidence of Amardas (PW 10) is inadmissible in evidence. Amardas (PW 10) is not an eyewitness and he was not sure about which Kunjbihari killed the deceased. Therefore, his evidence is not reliable. 20. Shivanand Shende (PW 13) is an eyewitness, but he did not support the case of the prosecution. But, the prosecution did not declare him hostile, therefore, his evidence is admissible and is used against the prosecution. Shivanand Shende (PW-13) specifically deposed that when they crossed Village Malar, 4-5 persons met them and surrounded them. He stopped the motor cycle. They dragged the deceased from the motor cycle and assaulted him with hand and leg. He did not recognise the assailants of the deceased. He further deposed that the appellant was not present along with the assailants of the deceased. Thereafter, he took the deceased to his house. He further deposed that it is true that when Constable Santdeen (PW 11) took deceased Joidha to Police Outpost Pachpedi, the deceased was not in a condition to speak. 21. From the facts and circumstances of the instant case and the above discussion, I find that the prosecution failed to prove the charges framed against the appellant and for the reasons aforementioned, the impugned judgment cannot be sustained. 22. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 342 and 304 Part II IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.