Chattisgarh High Court
Bharat Vijay Singh vs State Of Madhya Pradesh Now State Of ... on 4 January, 2012
Author: Sunil Kumar Sinha
Bench: Sunil Kumar Sinha
HIGH COURT OF CHATTISGARH BILASPUR
Criminal Appeal No 480 of 1993
Bharat Vijay Singh
...Petitioners
Versus
State of Madhya Pradesh Now State of Chhattisgarh
...Respondents
! Mr P K C Tiwari Sr Advocate with Mr Shashi Bhushan Advocate for the appellant
^ Mr Arvind Dubey Panel Lawyer for the State
CORAM: HONBLE MR SUNIL KUMAR SINHA J
Dated: 04/01/2012
: Judgement
JUDGMENT
(04.01.2012) (Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Sunil Kumar Sinha, J.
(1) This appeal is directed against the judgment dated 29th May, 1993 passed in Session Trial No. 126/92 by the Additional Session Judge, Khairagarh, Session's Division Rajnandgaon. By the impugned judgment, the appellant has been convicted u/ss 450 & 307 IPC and sentenced to undergo R.I. for 3 years and R.I. for 5 years respectively. The sentences shall run consecutively.
(2) The facts, briefly stated, are as under:-
On 15.7.1992, at about 10.00 p.m., injured Krishna Bai (PW-10) was sleeping in the inner verandah of her house. Her 6 year's son- Dinbandhu (PW-3) was also sleeping with her. The allegations are that the appellant entered into the house and gave multiple knife blows to Krishna Bai (PW-10). Krishna Bai, in injured condition, ran towards her badi, fell down and became unconscious. Hearing the cries of Krishna Bai (PW-10), Remun Bai and Dular Singh (PW-5) came there. Jaikaran (PW-4) also came there. They called husband of Krishna Bai, who had gone out in village in Ramayan. The injured, in unconscious condition, was taken to police station Khairagarh on a bullock-cart, where her husband, namely Nandkishore (PW-11), lodged the First Information Report (Ex.-P/18). Krishna Bai was examined by Dr. D.R. Jindani (PW-6) on 16.7.92 at about 1.00 a.m. He noticed following injuries on the person of the Krishna Bai (PW-10):-
1) Incised wound 2+ inch x + inch on the left side of the chest;
2) Incised wound + inch x + inch x , inch on the left side of chest;
3) Incised wound , inch x , inch x , inch below the clevical bone;
4) Incised wound 1/8 inch x 1/8 inch x , inch on the left side of the chest;
5) Incised wound , inch x 1/8 inch x 1/8 inch on the right side of the chest;
6) Incised wound + inch x , inch x 1/8 inch on the right forearm;
7) Incised wound , inch x , inch x 1/8 inch on the right forearm;
8) Incised wound _ inch x + inch x _ inch on the right side of the back;
9) Incised wound 1 + inch x , inch x 1 inch on the left side of the back;
10) Incised wound 1 , inch x , inch on the right side of the back;
11) Incised wound + inch x + inch x , inch on the right side of the back;
12) Incised wound 2 inch x + inch x , inch below the right scapula;
13) Pierced wound 3 inch x + inch on the right portion of the back piercing till the lung;
14) Pierced wound 1 inch x + inch at the right portion of the back below injury No. 13;
15) Pierced wound + inch x , inch x 1 1/8 inch on the left portion of the back;
16) Pierced would 1 inch x + inch below injury No.15 deep to the lung;
17) Incised wound 2 inch x + inch x + inch on the left portion of the back;
18) Incised wound 1 + inch x + inch x , inch on the left portion of the back below injury No.17;
19) Incised wound 1 inch x , inch x , inch on the left portion of the back &
20) Incised wound 1 , inch x , inch x , inch on the upper portion of the left arm.
He opined that injuries were caused by sharp edged object and injury Nos. 13 & 16 were grievous injuries and were endangerous to life. Her MLC report is Ex.-P/5. Krishna Bai (PW-10) was then referred to Government Hospital, Rajnandgaon, from where, she was taken to Sector-9 Hospital, Bhilai. There she was examined by Dr. P.R. Pathakpatra (PW-7). He sent her for X-ray examination in which it was found that Krishna Bai (PW-10) had sustained fractures on her left clevical bone, left 10th rib and on right 7th, 8th, 9th and 10th ribs. X-ray reports and bed-head- ticket have been proved as Ex.-P/8, P/9, P/10, P/11, P/12, P/13, P/14 & P/15. Dr. Pathakpatra (PW-7) also opined that the injuries sustained by the victim were endangerous to life. Krishna Bai was discharged from the hospital on 11.8.92. On 16.7.92 her dying declaration was recorded. In the said dying declaration, she disclosed the name of the appellant as her assailant. Later on, when she survived, her 161 Cr.P.C. statement was also recorded on 21.8.92 and the charge-sheet was filed. The learned Session Judge, relying on the testimony of Krishna Bai (PW-10), held that it was the appellant who entered into the house of Krishna Bai and assaulted her in the above manner, therefore, he was liable for punishment u/ss 450 & 307 IPC.
(3) Mr. P.K.C. Tiwari, learned Sr. Counsel appearing on behalf of the appellant, argued that testimony of Krishna Bai (PW-10) was not reliable; it was not possible for Krishna Bai to identify the assailant in dark-night; son of Krishna Bai namely Dinbandhu (PW-3) admitted in the cross- examination that he could not identify the assailant on account of darkness and he is telling name of the appellant on tutoring by his father, therefore, the identification of the appellant by Krishna Bai (PW-10) appears to be doubtful and the appellant should be given benefit of doubt. He further argued that dying declaration was also recorded but the same was not produced with the charge-sheet and conduct of the prosecution was suspicious.
(4) On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the session court.
(5) I have heard learned counsel for the parties at length and have also perused the records of the session's case. (6) Krishna Bai (PW-10) deposed that on the fateful day, at about 10.00 p.m., when she was sleeping in the verandah of her house, the appellant came there and attacked over her by a knife. He inflicted 20-25 knife blows. 18 blows hit over her body. She cried and ran towards her badi and became unconscious. Thereafter she regained consciousness in Rajnandgaon hospital, where some officer recorded her statement. Thereafter she was shifted to Bhilai, where she was admitted in the hospital. It was a clear moon-light night and she had identified the appellant. He was wearing a chaddi & baniyan.
(7) Mr. Tiwari has argued that though the dying declaration of Krishna Bai (PW-10) was allegedly recorded on 16.7.92 i.e. on the next day of the incident, but the same was not filed with the charge-sheet and it was produced before the Session Court along with an application on 27.1.93, which was rejected. This makes the conduct of the prosecution suspicious.
(8) It is trite law that for a statement to be admissible in evidence as a dying declaration, the person making the statement should no longer be alive. If the person eventually does not die after making the statement, then the same cannot be treated as a dying declaration. Section 32 (1) of the Evidence Act, 1872 states that a dying declaration is a relevant fact and therefore admissible in evidence. Section 32 (1) categorically states that a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death is a relevant fact and admissible in evidence in cases in which the cause of that person's death comes into question. It further mentions that such a statement will be admissible in evidence when the person making it is dead or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense. When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. (9) In the instant case, it appears, that when Krishna Bai (PW-10) survived, her dying declaration recorded by the Executive Magistrate on 16.7.92 at 10.30 p.m. was not filed along with the charge-sheet. It was later on filed by the Public Prosecutor, but the same was not taken on record and it remained as unproved document in Part `B' of the record. The value of said document would not be more than that of a previous statement. It is not a case that in the alleged dying declaration, Krishna Bai (PW-10) did not disclose the name of the assailant or she disclosed the name of some other person as her assailant. Therefore, its non- production was not fatal to the prosecution amounting to suppression of material document. In any manner it has not prejudiced the defence of the appellant. Thus, not filing the alleged dying declaration or not proving the same by maker of it would make no difference in this case. (10) Dinbandhu (PW-3) is a child witness. He is son of victim-Krishna Bai (PW-10). He was sleeping along with the victim. In his examination-in-chief, he deposed that he identified the appellant who assaulted his mother. But in the cross-examination, he admitted that it was a dark- night, therefore, he could not see as to who assaulted his mother and he took the name of the appellant on tutoring by his father. The Session Judge has not relied on the testimony of Dinbandhu (PW-3). Mr. Tiwari has argued that when Dinbandhu (PW-3) could not identify the assailant, how the assailant was identified by Krishna Bai (PW-10). It is not necessary that if out of 2 eye-witnesses, one could not identify the assailant, the other shall also not be able to identify him. In the instant case, Krishna Bai (PW-10 - victim) received as many as 20 incised wounds inflicted from a very short distance by a knife, therefore, she was having full opportunity to identify the assailant. If she was able to identify him and she disclosed his name at the earliest opportunity, there is no reason to disbelieve her testimony on the ground that Dinbandhu (PW-3), another eye- witness, could not identify him.
(11) Mr. Tiwari has argued that since there was no light and it was a dark-night, therefore, it was not possible for Krishna Bai (PW-10) to identify the appellant. This argument cannot be accepted on the fact of evidence of Krishna Bai (PW-10). The Session Judge has observed, in Para-19 of the judgment, that though the lights were off at the time of the incident, but there was sufficient moon- light in the verandah and the courtyard. The courtyard is adjacent to verandah where Krishna Bai (PW-10) was sleeping. 15.7.92 was the first day of krishnapaksha, therefore, 14.7.92 i.e. date of incident, was the day of gurupurnima on which moon-light is available and as claimed by Krishna Bai, she had identified the appellant in the moon-light. After going through the entire evidence of Krishna Bai (PW-10) and the findings recorded by the Session Judge, in Para-19, I am of the view that the learned Session Judge has rightly held that there was sufficient moon-light for identification of the assailant by the victim and the evidence of victim- Krishna Bai (PW-
10), on this account, cannot be disbelieved. (12) Mr. Tiwari has also argued that name of the assailant was not mentioned in the F.I.R. (Ex.-P/18). The F.I.R. (Ex.- P/18) was promptly lodged by Nandkishore (PW-11). He is husband of Krishna Bai (PW-10). He has not mentioned the name of the appellant in the F.I.R. The case of the prosecution is that Nandkishore (PW-11) was not present in his house at the time of incident. He was called by other witnesses after the incident. When he reached to his house, he found Krishna Bai (PW-10) in unconscious condition. She was immediately taken to the police station and the report was lodged. Then she was sent to the hospital, where she was examined by Dr. D.R. Jindani (PW-6). It nowhere comes in the cross-examination of Nandkishore (PW-11) that he had talked with Krishna Bai (PW-10) before lodging the F.I.R. (Ex.-P/18). Even it was not asked from him in the cross- examination as to whether he had a talk with Dinbandhu (PW-
3) regarding the incident or assailant. Therefore, the name of the assailant was not known to Nandkishore (PW-11) prior to lodging of the F.I.R. and in such situation if the name of the assailant is not mentioned in the F.I.R., it will hardly make any difference.
(13) The name of the assailant, for the first time, was disclosed to the Executive Magistrate on 16.7.92 at 10.30 p.m. when her dying declaration was recorded in Government Hospital, Rajnandgaon. Therefore, prior to that, nobody was knowing the name of the assailant and his name is not coming in the documents of the prosecution which were prepared prior to 16.7.92. On close scrutiny of the evidence of Krishna Bai (PW-10), I do not find any reason to disbelieve her evidence in which she clearly mentioned that she was assaulted by the appellant by knife in the above manner. I am of the view that the learned Session Judge was right in holding that on the independent testimony of victim-Krishna Bai (PW-10), it was established that the appellant entered into her house and assaulted her by knife who sustained as many as 20 incised wounds and 6 fractures as above.
(14) In Hari Kishan & State of Haryana -Vs- Sukhbir Singh and others, AIR 1988 SC 2127, the Supreme Court held that "Under S. 307, IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention." (15) In the instant case, the nature of weapon used, the manner of assault given by the appellant, nature and number of injuries caused, severity of the blows and the above parts of the body chosen, clearly communicate the intention of the appellant which was none else than attempt to life of the victim. Therefore, the learned Session Judge has rightly held him guilty of the offence punishable u/ss 307 & 450 IPC.
(16) Mr. Tiwari has lastly argued that during the pendency of the appeal, the appellant and the victim have compromised and both have filed application for permission to compound the offences and for accepting the compromise, therefore, a lenient view may be taken and the sentences awarded to the appellant may be reduced.
(17) I have considered the above argument. Looking to the number and nature of injuries caused to the victim, the weapon used by the appellant to cause those injuries and the manner of assault in which the above injuries were caused, does not call for taking a lenient view and reducing the period of substantive sentences awarded to the appellant under each count. However, looking to the long period elapsed after the incident and that the parties have compromised in the meantime, I feel it appropriate to modify the sentences to run concurrently instead of running consecutively. It is thus directed that the sentences awarded to the appellant shall run concurrently. (18) With the above modification in the sentences awarded to the appellant, the appeal stands dismissed.
JUDGE