Chattisgarh High Court
Mahesh Kumar Sharma vs State Of C.G on 19 September, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 247 of 2012
Mahesh Kumar Sharma, S/o Ganesh Prasad Sharma, Aged
about 45 years, R/o Tikripara, Takhatpur,
District , P.S. Takhatpur, Occupation shikshakarmi
Grade I, Govt. High School Semarsal, Distt.
Bilaspur, Chhattisgarh.
Appellant
Versus
State of Chhattisgarh, through the Police Station
Jarhagaon, Distt. Bilaspur, Chhattisgarh.
Respondent
For Appellant : Dr. N.K. Shukla, senior Advocate
with Mr. Vikram Dixit, Advocate
For State : Mr. Afroz Khan, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Sanjay S. Agrawal
Judgment on Board
19/09/2022
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant herein under Section 374(2) of CrPC is directed against the impugned judgment dated 28/02/2012 passed in Sessions Trial No. 55/2010 whereby learned Additional Sessions Judge, Mungeli, Distt. Bilaspur has convicted the appellant herein for offence punishable under Section 302 of IPC and 2 sentenced to undergo imprisonment for life and fine of Rs. 2000/ and in default of payment of fine further R.I. for 1 year.
2. Case of the prosecution, in brief, is that Gangaram (deceased), a student in the school where the appellant was serving as a Teacher, had seen the appellant in a compromising situation with P.W.11 and on that account, on 02/10/2010, in between 09:30 AM to 05:00 PM, the appellant, with the intention of causing death of Gangaram, assaulted him with knife and threw his body into a ditch, due to which the appellant sustained injuries on his face and body and ultimately, succumbed to death.
3. Further case of the prosecution is that on 02/10/2010, Sitaram (P.W.14), grandfather of deceased Gangaram, and his wife Kavribai found the body of Gangaram lying in the field of Babaji in an unconscious position. Thereafter, they firstly took deceased Gangaram to Jarhagaon Police Station. In between, on the way to Police Station, Kashiram (P.W.13), uncle of deceased Gangaram, also joined them and found that Gangaram was in an unconscious position and was unable to speak and he had suffered injuries on his face and body. After reaching the Police Station, Kashiram (P.W.13) lodged First Information Report at 05:45 PM vide 3 Ex. P/16 and thereafter, they took Gangaram to Community Health Center, Mungeli for treatment wherein Dr. Sudesh Ratre (P.W.9) examined him at 06:10 PM and he found that injuries were inflicted upon him with a hard and sharp object. In his statement before the Court, Dr. Sudesh Ratre (P.W.
9) has stated that when he examined Gangaram, he was in an unconscious position and he was unable to speak and since he had already lost a lot of blood, after primary treatment, he was referred to SIMS Hospital. However, it is the case of the prosecution that when the deceased was in Mungeli Hospital, he had given oral dying declaration to his father Tularam (P.W.2) and had stated that Sharma Sir (appellant) has assaulted him. Thereafter, while Gangaram was being escorted to SIMS Hospital, he succumbed to death on the way.
4. After the death of deceased Gangaram, merg intimation was registered on 03/10/2010 vide Ex. P/20 and after issuing summons to the witnesses under Section 175 of CrPC vide Ex. P/1, inquest was conducted vide Ex. P/2 and his dead body was subjected to postmortem, which was conducted by Dr. Manish Shrivastava (P.W.10) and the postmortem report has been filed as Ex. P/14 in which cause of death is said to be coma due to head injury and 4 nature of death is said to be homicidal. Pursuant to the memorandum statement of the appellant vide Ex. P/5, recovery of tshirt worn by the appellant as well as one nokia mobile was made vide Ex. P/6. Nazri Naksha was prepared vide Ex. P/11. The seized articles were sent for chemical examination and FSL report has been brought on record as Ex. P/26 in which blood was found on the tshirt worn by the appellant but the origin of blood or its blood group could not be ascertained due to disintegration of blood. After due investigation, the appellant was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for hearing and disposal in accordance with law. The appellant abjured his guilt and entered into defence.
5. In order to bring home the offence, prosecution examined as many as 25 witnesses and exhibited 26 documents. The statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt and examined 2 witnesses and exhibited 2 documents in his defence.
6. Learned trial Court, after appreciation of oral and documentary evidence on record, finding the death of deceased Gangaram to be homicidal in nature and further finding the appellant to be the perpetrator 5 of the crime on the basis of oral dying declaration given by the accused to Tularam (P.W.2), Bholaram (P.W.12), Kashiram (P.W.13) and Sitaram (P.W.
14), has convicted the appellant for offence punishable under Section 302 of IPC and sentenced as aforesaid.
7. Dr. N.K. Shukla, learned Senior counsel, would make the following submissions :
(i) that, the oral dying declaration allegedly given by the deceased Gangaram to his father Tularam (P.W.2), Bholaram (P.W.12), Kashiram (P.W.13) and Sitaram (P.W.14) does not inspire confidence and it is not trustworthy and reliable and therefore, it is liable to be discarded.
(ii) that, the tshirt worn by the appellant which was seized vide Ex. P/6 pursuant to his memorandum statement (Ex. P/5) would not be covered by Section 27 of the Evidence Act.
(iii) that, even though the said tshirt which was seized from the appellant was sent for chemical examination and blood has been found on it vide FSL report (Ex. P/26) but origin of blood and its blood group has not been ascertained and as such, conviction of the appellant for offence under Section 302 of IPC cannot rest on recovery of tshirt in view of the decision rendered by the 6 Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh1 and as such, the appeal be allowed by setting aside the impugned judgment.
8. Per contra, Mr. Afroz Khan, learned State counsel, would submit that learned trial Court is absolutely justified in convicting the appellant for offence punishable under Section 302 of IPC as the prosecution has been able to bring home the offence beyond reasonable doubt, as such, the instant appel deserves to be dismissed.
9. We have heard learned counsel for the parties, considered their rival submissions made herein above and went through the records with utmost circumspection.
10.The first question that requires consideration is whether the trial Court is justified in recording the finding that the death of deceased was homicidal in nature ?
11.After evaluation of the entire evidence available on record, learned trial Court has recorded an affirmative finding that death of deceased Gangaram was indeed homicidal in nature based on the medial evidence of Dr. Manish Shrivastava (P.W.10) as well as postmortem report (Ex. P/14) in which cause of death is said to be coma due to head injury and 1 (2019) 7 SCC 781 7 the nature of death is said to be homicidal. After hearing learned counsel for the parties and after considering the evidence available on record, we are of the considered opinion that learned trial Court has rightly recorded the finding that death of deceased Gangaram was homicidal in nature and we hereby affirm the said finding, particularly when the said finding has also not been seriously disputed by learned counsel for the appellant.
12.Learned trial Court has clearly held that there is no direct evidence available on record and has convicted the appellant/accused for offence punishable under Section 302 of IPC on the basis of two incriminating circumstances. The first one being the oral dying declaration made by the deceased on 02/10/2010 which has been proved by Tularam (P.W.2), Bholaram (P.W.12), Kashiram (P.W.13) and Sitaram (P.W.14) and the second one being the seizure of tshirt worn by the appellant vide Ex. P/6 pursuant to his memorandum statement (Ex. P/5) in which blood has been found vide FSL report (Ex. P/26). We shall consider both of these incriminating circumstances one by one. Oral dying declaration
13. The oral dying declaration allegedly made by the deceased Gangaram before Tularam (P.W.2), Bholaram 8 (P.W.12), Kashiram (P.W.13) and Sitaram (P.W.14) has been found proved by the trial Court. It is pertinent to notice that the motive of offence attributed by the prosecution on behalf of the appellant is that deceased Gangaram, who was a student at the school where the appellant was working as a Teacher, had seen the appellant in a compromising position with P.W.11 and out of fear that he will disclose the said information, he assaulted the deceased and left him in a ditch in an unconscious condition to die. P.W.11 has been examined before the Court and she has turned hostile and has not supported the case of the prosecution. She has denied the fact of being in a love affair with the appellant. As such, prosecution has not been able to prove the motive of offence in question by bringing ample evidence on record.
14.Deceased Gangaram was found by his grandfather Sitaram (P.W.14) and grandmother Kavribai (not examined) in an unconscious position lying in the field of Babaji. In his statement before the Court, Sitaram (P.W.14) has stated that on the date of incident, i.e. 02/10/2010, deceased Gangaram had taken Rs. 500/ from his father Tularam (P.W.2) and had gone to school for depositing fees, etc and 9 thereafter, had not returned home. When Sitaram (P.W.14) was working in the field of Babaji, he was informed by the children of the village that Gangaram's body is lying in the field and after finding him in an unconscious position, Sitaram (P.W.14) and his wife Kavribai took the deceased in a jeep, firstly to Mungeli Police Station and thereafter, to Mungeli Hospital for treatment. Sitaram (P.W.14) has further stated that when the deceased was undergoing treatment at Mungeli Hospital, when Tularam (P.W.2) asked him as to who has assaulted him, Gangaram replied saying that Sharma Sir has assaulted him and when Tularam (P.W.2) further asked if it was the same Sharma Sir who teaches him, deceased Gangaram replied in affirmative.
15.Kashiram (P.W.13), uncle of deceased, has stated in his statement before the Court that while Gangaram was being taken to Bilaspur for treatment, he admitted that Sharma Sir has assaulted him near Sakri. He has further stated that he was informed about this fact by Gangaram's father Tularam (P.W.
2). He has then stated that when the deceased was making his dying declaration, he was also present therein. Kashiram (P.W.13) has also lodged FIR at Police Station Jarhagaon on 02/10/2010 at 05:45 PM 10 vide Ex. P/16 wherein he has stated that on the date of the incident, deceased had taken his cycle and gone to school at about 09:30 AM and at about 01:00 PM, Kashiram (P.W.13) had gone to the market to buy rice. When he was returning back to the village at about 05:00 PM, his father Sitaram (P.W.14) and mother Kavribai saw him and stopped the vehicle and told him that someone assaulted Gangaram and threw him in a field and he was in an unconscious condition and was not able to speak. Thereafter, he also joined them and brought deceased Gangaram firstly to the Police Station, Jarhagaon and then to Mungeli Hospital.
16.When deceased was firstly taken to Mungeli Hospital, he was examined by Dr. Sudesh Ratre (P.W.9) at 06:10 PM, who had noticed five incised wounds over the body of the deceased vide MLC report (Ex. P/13). In his statement before the Court, he has stated that when he had examined the deceased, he had already lost a lot of blood and he was in a semiconscious state and after primary treatment, he had referred the deceased to SIMS Hospital. In paragraph 3 of his statement, he has again stated that deceased was in a semiconscious condition but was not in a condition to give a statement.
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17.Tularam (P.W.2), father of deceased, is a star witness to whom the deceased had allegedly made his oral dying declaration. In his statement before the Court, he has stated that after being informed about his son, he reached Mungeli Hospital at about 06:00 PM and at that time, his son Gangaram was alive. Thereafter, he has stated that Gangaram asked his brother Bholaram (P.W.12) to give him water and when Tularam (P.W.2) asked him as to who had assaulted him, he had replied stating that Sharma Sir had assaulted him. When Tularam (P.W.2) again asked whether it was the same Sharma Sir who taught at his school, deceased replied in affirmative. He has also stated that at that time, Bharosa, Keshlal, Chainu, Anil and Dulari were present there but for the reasons best knows to the prosecution, none of them have been examined before the Court. He has also stated that his father Sitaram (P.W.14) was also present there.
18.Bholaram (P.W.12), brother of deceased, has also made a similar statement that at Mungeli Hospital, deceased had made dying declaration to their father Tularam (P.W.2) stating that Sharma Sir had assaulted him.
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19.In the matter of Darshana Devi v. State of Punjab2, with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence.
20.Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra3, it has been held by their Lordships of the Supreme Court that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any crossexamination.
21.Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur 4, has held that there can be no dispute that the dying declaration can be the sole basis for conviction, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence.
2 1995 Supp (4) SCC 126 3 (2008) 11 SCC 232 4 (2011) 13 SCC 125 13
22. The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration.
23.Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court with regard to evidentiary value of oral dying declaration as a basis for conviction, it is quite evident that in the present case, Kashiram (P.W.13), uncle of the deceased, who had lodged the FIR (Ex. P/16) at Police Station Jarhagaon at 05:45 PM, has clearly stated in his statement before the Court that deceased was in an unconscious condition while he was being taken to the Police Station and thereafter to the Hospital and he was unable to 14 speak at that time. He has also stated that when the deceased was being taken for treatment to Bilaspur Hospital, he had told near Sakri that Sharma Sir had assaulted him and Tularam (P.W.2) had informed about the same to him. Thereafter, at 06:10 PM, deceased was examined firstly by Dr. Sudesh Ratre (P.W.9) who has stated in his testimony that deceased was in a semiconscious state and though he could nod his head and had told his name, but he was not in a condition to give statement. Sitaram (P.W.14), grandfather of deceased, who found him lying in the field of Babaji having been assaulted and having suffered injuries and who took him firstly to the Police Station and thereafter to Mungeli Hospital, has stated before the Court that when he was taken to Mungeli Hospital for primary treatment, upon being asked by his father Tularam (P.W.2), deceased had informed that Sharma Sir had assaulted him. Thereafter, Sitaram (P.W.14) has also stated that while undergoing treatment in Mungeli Hospital, the deceased had vomitted 12 kgs of blood. Moreover, Tularam (P.W.2), father of deceased, has stated in his testimony before the Court that in Mungeli Hospital, deceased had informed him that Sharma Sir had assaulted him and at that time, Bharosa, 15 Keshlal, Chainu, Anil and Dulari were also present there, but none of them have been examined by prosecution. Moreover, on one hand, prosecution witnesses have said that deceased made his oral dying declaration at Mungeli Hospital while he was undergoing MLC at about 06:10 PM, but before that time, at about 05:45 PM, when the FIR was lodged at Police Station Jarhagaon, prosecution witnesses themselves have stated that deceased was in an unconscious condition and he was not able to speak. Moreover, Dr. Sudesh Ratre (P.W.9), at the time of medical examination i.e. at 06:10 PM, has also stated in his report that deceased was in semiconscious state and he was not in a condition to give statement and further considering the number of injuries suffered by the deceased duly noticed in the postmortem report (Ex. P/14), it is held that deceased was unable to make oral dying declaration (see: Mohar Singh v. State of Rajasthan5).
24.In view of the abovestated analysis, we are of the considered opinion that deceased Gangaram was not in a fit state of mind to make an oral dying declaration, which is sine qua non for making a valid oral dying declaration and even otherwise, the statement of Tularam (P.W.2) does not inspire 5 (1998) 9 SCC 654 16 confidence as he has stated that deceased only informed him that Sharma Sir has assaulted him and in our considered opinion, it could very well be a case of mistaken identity as the name of the appellant has not been specified and even though Tularam (P.W.2) has stated that Bharosa, Keshlal, Chainu, Anil and Dulari were present when the deceased gave his oral dying declaration, but for the reasons best known to the prosecution, none of them have been examined before the Court.
25.As a conclusion thereof, we are of the opinion that prosecution has failed to prove the oral dying declaration allegedly made by the deceased to be reliable and trustworthy and the trial Court has legally erred in convicting the appellant after relying upon the said dying declaration. We hereby reject the said oral dying declaration. Seizure of tshirt worn by the appellant
26.Learned trial Court has relied upon the seizure of tshirt worn by the appellant vide Ex. P/6 which was made pursuant to his memorandum statement (Ex. P/5) and which has been found proved by FSL report (Ex. P/26) in which blood has been found on the said tshirt.
27.In this regard, it has been contended by learned Senior counsel appearing on behalf of the appellant 17 that as per Ex. P/5, memorandum has been taken from the appellant in Police Station Jarhagaon on 10/10/2010 at about 10 AM whereas the appellant had stated therein that he had been brought by the Police for enquiry on 03/10/2010 and at that time, he was wearing white tshirt which he had been wearing continuously for a week and thereafter, the appellant had voluntarily brought the said tshirt to Jarhagaon Police Station from his house which is apparent from seizure memo (Ex. P/6). As such, the manner in which recovery of said tshirt worn by the appellant has been made vide Ex. P/6, it could not have been made a basis for conviction of the appellant herein.
28.At this stage, it would be appropriate to notice Section 27 of the Indian Evidence Act, 1872, which states as under : "27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
29.It appears thus that Section 27 of the Evidence Act is applicable only if the confessional statement relates distinctly to the fact thereby discovered. 18
30.The Supreme Court in the matter of Asar Mohammad and others v. State of U.P.6, with reference to the word "fact" employed in Section 27 of the Evidence Act, has held that the facts need not be self probatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". It has been further held that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge of the mental awareness of the informant as to its existence at a particular place and it includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. Their Lordships relying upon the decision of the Privy Council in the matter of Pulukuri Kotayya v. King Emperor7 observed as under : "13. It is a settled legal position that the facts need not be selfprobatory and the word "fact" as contemplated in Section 27 of the Evidence Act is not limited to "actual physical material object". The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. It includes a discovery of an object, the place from which it is produced and the knowledge of the accused as to its existence. It will be useful to advert to the exposition in the case of Vasanta Sampat Dupare v. State of 6 AIR 2018 SC 5264 7 AIR 1947 PC 67 19 Maharashtra8, in particular, paragraphs 23 to 29 thereof. The same read thus :
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor (supra) has held thus : (IA p. 77) "... it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
31.In view of the aforesaid legal position, it is quite vivid that in the instant case, memorandum statement has allegedly been made by the appellant in Police Station Jarhagaon on 10/10/2010 vide Ex. P/5, pursuant to which tshirt worn by him was seized vide Ex. P/6, whereas the appellant himself has admitted that he was wearing the said tshirt from 03/10/2010 i.e. the day next to the date of 8 (2015) 1 SCC 253 20 the incident and as per memorandum statement (Ex. P/5) as well as seizure memo (Ex. P/6), the appellant himself had gone to his home and brought the tshirt to Police Station. Therefore, in light of the decision rendered by the Supreme Court in Asar Mohammad (supra), recovery of said tshirt vide Ex. P/6 has not been made in accordance with Section 27 of the Evidence Act. Even otherwise, discovery is a weak kind of evidence and cannot be made sole basis for conviction of an offence punishable under Section 302 of IPC.
32.So far as FSL report (Ex. P/26) is concerned, in which blood has been found on the tshirt seized form the appellant, that too, cannot be relied upon entirely to form the basis of conviction as the origin of blood as to whether it was human blood or not or the blood group of the said blood found on the tshirt could not be ascertained due to disintegration of blood.
33.In the matter of Balwan Singh v. State of Chhattisgarh9, a threeJudge Bench of the Supreme Court has held that if the recovery of blood stained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient 9 (2019) 7 SCC 781 21 if the prosecution shows that the blood found on the articles is of human origin through, even though the blood group is not proved because of disintegration of blood. It has been observed by their Lordships as under : "13. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match."
34.Thus, the evidence of recovery vide Ex. P/6, which has been found proved by the trial Court on the basis of FSL report (Ex. P/26) is also not reliable and cannot be made a basis for conviction of the appellant.
35.As a fallout and discussion of the aforesaid legal analysis, it is quite vivid that prosecution has miserably failed to prove both the circumstantial evidences of oral dying declaration as well as recovery of tshirt against the appellant and in that view of the matter, we hereby set aside the impugned judgment convicting the appellant herein for offence punishable under Section 302 of IPC and 22 the sentenced so awarded. The appellant is acquitted of the charge levelled against him and since he is already on bail, he need not surrender, however, his bail bonds would shall remain in force for a period of six months in view of Section 437A of CrPC.
36.Accordingly, this criminal appeal stands allowed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
Harneet