Chattisgarh High Court
Arvind Kumar Verma vs State Of Chhattisgarh on 13 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 27/04/2022
Judgment Delivered on : 13/06/2022
CRA No. 1210 of 2014
Arvind Kumar Verma S/o Bharamhadutt Verma, aged
about 27 years, R/o Avenue D, Block No.2, Sector
No.6, P.S. Bhilai Nagar, District Durg (C.G.)
Appellant
Versus
State of Chhattisgarh Through : Station House
Officer, Bhilai Nagar, Bhilai, District Durg (C.G.)
Respondent
For Appellant : Mr. B.P. Singh, Advocate
For Respondent : Mr. Ashish Tiwari, G.A.
DB : Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Smt Justice Rajani Dubey
C.A.V. Judgment
Sanjay K. Agrawal, J
1. This criminal appeal preferred by the Appellant
herein under Section 374 (2) of Cr.P.C. is directed
against the impugned judgment of conviction and
order of sentence dated 19.11.2014 passed by the II
Additional Sessions Judge, Durg, District Durg
(C.G.), in S.T. No.213/2012 by which the Appellant
has been convicted for the offence punishable under
Section 302 of the Indian Penal Code and sentenced
to undergo imprisonment for life with fine of
Rs.5000/, and on failure to pay the fine amount,
additional sentence of R.I. for one year has been
imposed against the appellant herein.
2. The case of the prosecution, in brief, is that
on 23.09.2012 at around 22.45 hours, the appellant
herein attacked and caused injury to Vinay Kumar
Yadav by knife over his left ear, jaw, cheek and
eyebrow. Looking to the injuries sustained,
injured Vinay Kumar Yadav was taken by Ramesh
Chandra Beldar (PW/4) to the room of Raja Ram Dhurv
and information was given to the police control
room. During that time, injured Vinay Kumar Yadav,
with the help of nearby people, was taken to J.L.N.
Hospital & Research Center, Bhilai, where Dr.
Meenakshi Dave (PW/1) examined injured and gave her
report Ex.P/1 in which it has also been recorded
that injured Vinay Kumar Yadav was assaulted by
appellant herein namely Arvind Kumar Verma. M.L.C.
report of injured was also prepared vide Ex.P/2 in
which as many as five incised wounds on abdomen,
eyebrow, left side of face were noticed.
3. It is the case of the prosecution that deceased
Vinay Kumar Yadav had told complainant Ramesh
Chandra Beldar (PW/4) that appellant Arvind Kumar
Verma, with an intention to kill him attacked him by
knife and caused injury to him. Upon information of
complainant (PW/4), Head Constable Kamlesh Kumar
Sahu (PW/10) registered dehati nalishi (Ex.P/5) at
Sector9 Hospital and in order to determine whether
the injured Vinay Kumar Yadav, who was alive, was in
condition to give statement, wrote a letter
(Ex.P/18) to Assistant Surgeon of Sector - 9
Hospital, upon which, Kamlesh Kumar Sahu (PW/10) was
informed that Vinay Kumar Yadav is in a condition to
give statement and accordingly, the statement of
injured Vinay Kumar Yadav was recorded in presence
of two witnesses namely Shyamendra Kumar Yadav
(PW/9) and Deepak (not examined). Thereafter,
Shyamendra Kumar Yadav (PW/10) came to the police
station and lodged FIR under Section 307 of IPC,
however, due to the fatal injury, Vinay Kumar Yadav
died on 24.09.2012 at early in the morning, which
has been informed by the Sector - 9 Hospital vide
Ex.P/15 to police station Sector 6. Thereafter,
Merg intimation (Ex.P/16) was recorded, inquest was
conducted vide Ex.P/7 & dead body of Vinay Kumar
Yadav was subjected to postmortem examination, which
was conducted by Dr. R.K. Nayak (PW/3) who gave his
report Ex.P/4, according to which, Vinay Kumar Yadav
died of shock due to extensive visceral injuries and
hemorrhage. Thereafter, the Appellant was arrested
and his memorandum statement was recorded vide
Ex.P/20, pursuant to which, bloodstained clothes of
appellant and knife were recovered at his instance
vide Ex.P/21 and Ex.P/22 respectively.
Bloodstained bed sheet, on which the deceased was
lying, was seized from the house of Rajaram Dhruv
and clothes of injured/deceased Vinay Kumar Yadav
were also seized vide Ex.P/8. The seized articles
were sent for chemical examination to F.S.L.,
Raipur, vide Ex.P/29, and as per FSL report
(Ex.P/32), human blood was found on the articles
seized from the Appellant, however, blood group
could not be ascertained.
4. After completion of usual investigation, charge
sheet for commission of offence under Sections 307
and 302 of IPC was filed before the Court of
Judicial Magistrate First Class, Durg, who in turn,
committed the case to the Court of Sessions for
hearing and disposal in accordance with law. After
filing of the charge sheet, the trial Judge framed
the charge against the accused/appellant for offence
under Section 302 IPC.
5. In order to prove the guilt of the
accused/appellant, the prosecution examined as many
as 14 witnesses and exhibited 32 documents from
Exs.P/1 to Ex.P/32. Statement of the
accused/appellant was also recorded under Section
313 of Cr.P.C. The Appellant abjured his guilt,
pleaded innocence and false implication & entered
into defence stating that he has not committed the
offence.
6. The trial Court, after hearing learned counsel
for the respective parties and considering the oral
and documentary evidence on record, has convicted
the Appellant herein holding that the deceased Vinay
Kumar Yadav had given dying declaration (Ex.P/17)
voluntarily and sentenced him for period as
mentioned in para 1 of the judgment against which
the instant appeal has been preferred.
7. Mr. B.P. Singh, learned counsel for the
appellant would submit as under:
(i) That, though the dying declaration was
recorded in the hospital and it was the duty of
the prosecution to get the dying declaration
recorded in presence of Doctor after valid
certification by him that the declarant is in a
fit state of mind to give the dying declaration
but in the instant case, there is no
justification from the police officer who
recorded the statement particularly when the
Doctor was available in the hospital and
deceased, Vinay Kumar Yadav was also in the
hospital for not recording the statement by
doctor. To buttress his submission, he would
rely upon the decisions of Supreme Court in the
matters of Maniram V. State of Madhya Pradesh1 &
State Delhi Administration V. Laxman Kumar and
Others and Indian Federation of Woman Lawyers
and Others V. Shakuntala (Smt.) And Others2.
(ii) That, the dying declaration in question
Ex.P/17 has neither been signed by the deceased
nor contained the date and time of recording the
dying declaration, as such, the same is not
reliable and trustworthy. He would rely upon
the decision of Supreme Court in the matter of
Panchdev Singh V. State of Bihar3 & State of U.P.
Vs. Shishupal Singh4.
(iii) That, in the instant case, dying
declaration (Ex.P/17) has been recorded by the
Investigating Officer, which has not been
1 AIR 1994 (2) SC 840
2 1985 SCC (4) 476
3 AIR 2002 SC 526
4 1994 CRI.L.J. 617
endorsed by the Doctor present there in the
hospital, therefore, the same is suspicious and
creates doubt. To buttress his submission, he
would rely upon the decision of Supreme Court in
the matter of Brundaban Moharana and Another Vs.
State of Orissa5.
(iv) That, dying declaration (Ex.P/17) in
question was recorded in violation of Regulation
742 (c) (4) of the Chhattisgarh Police
Regulations. In support of his submission, he
would rely upon the decision of High Court of
Madhya Pradesh in the matter of Kadwa and
Another Vs. State of Madhya Pradesh6.
(v) Learned counsel would submit that blood was
found on the seized articles but the same could
not be classified whether it was human blood or
not, therefore, on this basis, the Appellant
cannot be convicted. To buttress his
submission, he would rely upon the decisions of
Supreme Court in the matter of Debapriya Pal Vs.
State of West Bengal7 & Sonvir alias Somvir V.
State of NCT of Delhi8.
(vi) Learned counsel would lastly submit that
5 2010 (13) SCC 381
6 2018 (2) CDHC 718 (MP)
7 AIR 2017 SC 1246
8 AIR 2018 SC 3131
conviction cannot be awarded solely on the
evidence of suspicious dying declaration
(Ex.P/17). He would rely upon the decision of
this Court in the matter of Shankar Bareth Vs.
State of C.G.9. As such, the instant appeal be
allowed by setting aside the impugned judgment
of conviction and order of sentence and the
appellant be acquitted of the charge under
Section 302 of the I.P.C.
8. On the other hand, Mr. Ashish Tiwari, learned
G.A. for the State would submit that in the dying
declaration (Ex.P/17), deceased Vinay Kumar yadav
had voluntarily and truthfully stated that due to
previous enmity with Appellant, he was attacked. He
would further submit that Jagriti Thakur (PW/2) had
proved the motive of the accused/appellant to cause
death of deceased Vinay Kumar Yadav. Learned counsel
would also submit that Dr. Meenakshi Dave (PW/1) has
also supported the case of the prosecution who had
treated the deceased when he was brought to the
hospital on 23.09.2012, and even in Doctor
Consultation Slip (Ex.P/1), it has been recorded by
her that deceased Vinay Kumar Yadav was assaulted by
the accused/appellant by knife and she has
9 2013 (3) CG.L.J. 109
maintained her statement before the trial Court.
Learned counsel would further submit that Shyamendra
Kumar Yadav (PW/9), being independent witness, has
stated that deceased Vinay Kumar Yadav has informed
to him directly in conscious state of mind that the
accused/appellant caused injury to him by knife, and
knife has been seized pursuant to the memorandum
statement (Ex.P/20) and in FSL report (Ex.P/32),
blood was found, as such, the prosecution has fully
proved the offence against the accused/appellant and
the learned trial Court has rightly convicted him
for the offence under Section 302 of IPC. To
buttress his submission, he would rely upon the
decisions of Supreme Court in the matters of Hiraman
V. State of Maharashtra10, Ashabai & Anr. V. State of
Maharashtra11 & Paras yadav and Others V. State of
Bihar12.
9. We have heard learned counsel for the parties,
considered their rival submissions made herein above
and went through the record with utmost
circumspection.
10. The learned trial Court has relied upon the
dying declaration (Ex.P/17) to base the conviction
of the appellant herein, which has seriously been
10 2013 (12) SCC 586
11 2013 (2) SCC 224
12 (1999) 2 SCC 126
questioned on behalf of the appellant.
11. The first question would be whether the dying
declaration (Ex.P/17) is voluntary and truthful
statement made by deceased Vinay Kumar Yadav, which
states as under :
"eS mijksDr irs ij jgrk gwW lsDVj 6 daV ªksy :e esa vkj{kd nwjlapkj ds
in ij dk;Zjr gWw A fnukad [email protected]@2012 dks esjh 22%00 cts V.H.F.
:yj iqfyl daVªksy :e esa M;wVh Fkh rks esa M;qVh 22%00 cts vkus ds ckn
[kkuk ogh [kk;k Fkk blfy;s lquhy ekdZ.Ms dh eksVj lkbZfdy dks ysdj
jes'k pan ds ?kj ls 6/AVD/2/N fHkykbZ esa jkf= 22%45 cts igqapk
ogkW ij jes'k pan Fkk tks Qksu ij lquhy ekdZ.Ms ls ckr dj [kkuk [kkus
ds fy;s cqyk;s rc eSa jes'k pan dks cksyk fd eSa lquhy ekdZ.Ms dh eksVj
lkbZdy dks ysdj vk;k gWw] mls eSa ysdj vkrk gw] dgdj lh<h ls uhps
mrjk rks ogk ij vjfoan oekZ vdsys [kMk Fkk ftlls esjh iqjkuh jaft'k
py jgh Fkh rks og ,dk ,d esjs ikl vk;k vkSj pkdw ls gR;k djus dh
uh;r ls cka;s dku] xky] tcMk] eLrd ,oa isV esa yxkrkj okj dj pksV
igqpkus yxk rks eSa uhps ls gh jes'k pan ,oa fot; dks tYnh uhps vkvksa
eq>ls >xMk dj pkdw ls vjfoan oekZ ekj jgk gS cksydj lhf<;ksa ls mij
tkus yxk ,oa jes'k pan] fot; uhps vk jgk gw dgdj uhps vkus yxs rks
vjfoan oekZ Fkkuk x;k rks eS mij nwljh eafty ij x;k rks eq>s jes'k
pan o fot; feys tks eq>s jktk jke /kz`o ds dejk ys tkdj fyVk;s fQj
ek:fr oSu ls lsDVj 9 B.S.P. vLirky esa ykdj HkrhZ fd;s gS A eq>s
vjfoan oekZ iqjkuh jaft'k ds dkj.k pkdw ls gR;k djus dh uh;r ls
izk.k?kkrd geyk dj pksV igqWpk;k gS A"
12. Admittedly, the aforesaid dying declaration
(Ex.P/17) was recorded in the hospital but it has
not been recorded by the Doctor and it has also been
not recorded in the question answer form & there is
no certificate attached with the said dying
declaration (Ex.P/17) that the deceased/declarant
was in a fit state of mind at the time of its
recording and was able to make correct statement of
the events which had taken place on the date of
incident.
13. In the matter of Maniram (supra), the dying
declaration was recorded by the SubInspector and no
attestation by the Doctor was taken certifying that
the patient was conscious or not and even the
signature or thumb impression of the declarant was
not obtained. It has been held by their Lordships of
the Supreme Court that the dying declaration was
highly doubtful in nature. Similarly, in the matter
of Laxman (supra), their Lordships of the Supreme
Court relying upon the judgment of Dilip Singh V.
State of Punjab13, have held that though a dying
declaration recorded by the Police Officer during
the course of investigation is admissible under
Section 32 of the Indian Evidence Act, in view of
the exception provided in sub section (2) of Section
162 Cr.P.C., it is better to leave such dying
declaration out of consideration until and unless
the prosecution satisfies the Court as to why it was
not recorded by the Magistrate or by the Doctor. In
the matter of Mannu Raja V. State of M.P.14, it has
been held by the Supreme Court that the practice of
Investigating Officer himself recording the dying
declaration during the course of investigation ought
not to be encouraged.
14. In the matter of Shishupal Singh (supra),
13 (1979) 4 SCC 332
14 (1976) 3 SCC 104
Supreme Court has taken note of the fact that the
dying declaration doesn't contain signature of the
deceased/declarant therein and no explanation has
been offered by the prosecution that the declarant
was not in a position to put his signature & date
and time was also not mentioned in the dying
declaration. Their Lordships of the Supreme Court
held that the dying declaration suffers from
suspicious circumstances and creates a doubt in the
mind of the Court about its genuineness.
15. In the matter of Brundaban (supra), dying
declaration made by the declarant to the
Investigating Officer was supported by PW3 and PW7
therein. Their Lordships of Supreme Court finding
the statement of PW3 and PW7 who allegedly
supported the dying declaration was doubtful and did
not approve the judgment of the High Court, as such
is not in any way helpful to the appellant herein.
The decision relied upon by learned counsel for the
appellant in Panchdeo (supra) & Shankar Bareth
(supra) is not helpful to the appellant herein in
view of finding recorded herein above and
distinguishable to the facts of the present case.
16. Reverting to the facts of the instant case in
the light of aforesaid legal position, it is quite
vivid that the dying declaration (Ex.P/17) was
recorded by Kamlesh Kumar Sahu (PW/10) - Head
Constable, though as per clause 742 (c) (4) of the
Chhattisgarh Police Regulations, the dying
declaration was required to be recorded by
Investigating Officer and it has to be in question
answer form and it is also not recorded in question
answer form, but the date has been mentioned by
Kamlesh Kumar Sahu (PW/10), Head Constable, who
recorded the dying declaration and time has been
mentioned by the witness to dying declaration
(Ex.P/17) namely Shyamendra Kumar Yadav (PW/9) while
signing the dying declaration as witness. In the
considered opinion of this Court, though there is
some infirmity in the dying declaration that his
statement was not recorded by the Doctor & it has
also not been countersigned by the
deceased/declarant though he was in conscious
condition and it has not been recorded in question
answer form, but that will not make the dying
declaration suspicious in view of the fact that one
witness to the dying declaration namely Shyamendra
Kumar Yadav (PW/9) has been examined by the
prosecution, who has stated in para 1 of his
examinationinchief that the deceased had informed
him that it is the appellant who gave knife blow to
him (deceased) and his statement remained
uncontroverted in his crossexamination. As such,
there is minor infirmity in the dying declaration
(Ex.P/17), but considering the urgency involved, the
statement of deceased Vinay Kumar Yadav was recorded
and deceased thereafter died on 24.09.2012 at 7.00
AM. As such, on the basis of infirmity pointed out
by the learned counsel for the appellant, it cannot
be held that the dying declaration is a suspicious
document and it cannot be relied upon to rest the
conviction of the appellant herein. Apart from the
said fact, after occurrence of the incident which
took place on 23.09.2012, deceased Vinay Kumar
Yadav, at 11.30, was firstly taken to the Jawaharlal
Nehru Hospital, Sector - 9 Hospital, Bhilai, where
he was examined by Dr. Meenakshi Dave (PW/1) and in
doctor consultation slip (Ex.P/1), it has been
specifically mentioned by Dr. Meenakshi Dave (PW/1)
that stab injury was caused to deceased Vinay Kumar
Yadav by appellant Arvind Kumar Verma. It is
pertinent to mention here that in consultation slip
(Ex.P/1), the time and place of incident, as
narrated by deceased Vinay Kumar Yadav, has also
been mentioned by Dr. Meenakshi Dave (PW/1), who in
her statement before the Court categorically stated
that injured Vinay Kumar Yadav had told her about
the incident that appellant Arvind Kumar Verma
assaulted him at 11.00 pm. and she (PW/1) has
recorded the said fact in MLC/doctor consultation
slip (Ex.P/1). As such, from the statement of Dr.
Meenakshi Dave (PW/1), which is supported by doctor
consultation slip (Ex.P/1), it is clearly
established that it is the appellant who had caused
stab injury to deceased Vinay Kumar Yadav.
17. Next contention of learned counsel for the
appellant is that blood was found on the seized
articles but the same could not be classified
whether it was human blood or not, therefore, in
view of the decisions rendered in the matters of
Debapriya and Sonvir alias Somvir (supra), the
appellant is entitled for acquittal.
18. Learned counsel for the appellant had relied
upon para 7 of the judgment in the matter of
Debpriya (supra), which states as under :
"7. As far a recovery of blood stained
clothes is concerned, two public witnesses
are examined who, purportedly, were the
witnesses to the seizure list of wearing
apparels of the appellant. These are PW12
and PW13. According to their deposition,
they saw the policemen along with the accused
person going to the house of the appellant
and they also joined the police party. It is
how they became the witness and were
associated with the recovery. For the sake
of argument, we are presuming that they were
present at the time when the appellant
brought blood stained clothes from his house
and gave the same to the police. What is
material is the reliance on these blood
stained clothes for the culpability of the
appellant herein. As per the prosecution, the
blood group on these blood stained clothes
matched with the blood on the bed sheet on
which the body of one of the deceased person
is found. The record reveals that though
blood of both the deceased persons was drawn
and sent for examination, it is not known as
to what was the report thereupon and what was
the blood group of the deceased persons. No
such blood report has been produced. So much
so, blood group of the accused persons was
also not ascertained. Even if we presume
that the blood on the bed sheet was that of
the deceased, the possibility cannot be ruled
out that the same blood group as of the
accused appellant thereof. Therefore, mere
matching of the blood group on the blood
stained clothes, which was even on the bed
sheet, would not lead to the conclusion that
it is the appellant who had committed the
crime. Same reasoning goes with the recovery
of laptop as well. Merely because laptop
belonging to the sister of the deceased
Anusha Sarkar is not indicative that the
appellant is responsible for the commission
of the crime. Under Section 27 of the
Evidence Act only so much of recovery, as a
result of the disclosure statement, which
directly pertains to the commission of crime
is relevant. Otherwise, such an evidence is
barred under Section 25 of the Evidence Act.
Recovery of laptop does not have any bearing.
It is neither the weapon of crime nor it has
any cause of connection with the commission
of crime. The law on this aspect is
succinctly said in the case 'Jaffar Hussain
Dastagir v. State of Maharashtra (1969) 2 SCC
872 : (AIR 1970 SC 1934) in the following
manner:
"5. Under Section 25 of the Evidence Act no
confession made by an accused to a police
officer can be admitted in evidence against
him. An exception to this is however
provided by Section 26 which makes a
confessional statement made before a
Magistrate admissible in evidence against an
accused notwithstanding the fact that he was
in the custody of the police when he made the
incriminating statement. Section 27 is a
proviso to Section 26 and makes admissible so
much of the statement of the accused which
leads to the discovery of a fact deposed to
by him and connected with the crime,
irrespective of the question whether it is
confessional or otherwise. The essential
ingredient of the section is that the
information given by the accused must lead to
the discovery of the fact which is the direct
outcome of such information, Secondly, only
such portion of the information given as is
distinctly connected with the said recovery
is admissible against the accused. Thirdly,
the discovery of the fact must relate to the
commission of some offence."
19. In Sonvir alias Somvir (supra), it has been
held by the Supreme Court relying upon its two
earlier judgments in Prakash v. State of Karnataka15
and Debapriya (supra) that while deciding cases
based on circumstantial evidence, mere matching of
the blood group cannot lead to the conclusion of
culpability of accused in absence of detailed
serologist comparison; since millions of people
would have the same blood group.
20. However, in the matter of Balwan Singh V. State
of C.G.16, the Supreme Court has considered the issue
of failure to establish the origin of blood as human
blood and/or its blood group and laid down the
principle of law in this regard, as under :
"14. It is also important to note the
following observations made by a
Constitution Bench of this Court in Raghav
15 (2014) 12 SCC 133
16 (2019) 7 SCC 781
Prapanna Tripathi V. State of U.P.17 (AIR p.
78, para 21)
"21. In this connection, reference may
also be made to Circumstances 9 and 10,
relating to the recovery of the
bloodstained earth from the house. The
bloodstained earth has not been proved to
be stained with human blood. Again, we are
of opinion that it would be farfetched to
conclude from the mere presence of
bloodstained earth that earth was stained
with human blood and that the human blood
was of Kamla and Madhusudhan. These
circumstances have, therefore, no
evidentiary value." (emphasis supplied)
Therefore, the fiveJudge Bench had
ruled that in that case the prosecution
needed to prove that the bloodstains found
on the earth or the weapons were of a human
origin and were of the same blood group as
that of the deceased."
22. The cases discussed above highlight the
burden that the prosecution would
ordinarily have to discharge, depending on
the other facts and circumstances of the
case, for the evidence relating to recovery
to be considered against the accused. At
the same time, as mentioned above, we are
conscious of the fact that it may not
always be possible to inextricably link the
bloodstains on the items seized in recovery
to the blood of the deceased, due to the
17 AIR 1963 SC 74
possibility of disintegration of
bloodstains on account of the time lapse in
carrying out the recovery. For this
reason, in Prabhu Dayal V. State of
Rajasthan18, where one of us (Mohan M.
Shantanagoudar, J.) had the occasion to
author the judgment, this Court, relying on
Teja Ram19, had held that the failure to
determine the blood group of the
bloodstains collected from the scene of
offence would not prove fatal to the case
of the prosecution. In Prabhu Dayal Case,
although the FSL report could not determine
the blood group of the bloodstains on
account of disintegration, the report
clearly disclosed that the bloodstains were
of human origin, and the chain of
circumstantial evidence was completed by
the testimonies of the other witnesses as
well as the reports submitted by the
ballistic expert and the forensic science
laboratory regarding the weapon used to
commit murder."
23. 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,
18 (2018) 8 SCC 127 : (2018) 3 SCC (Cri) 517
19 (1999) 3 SCC 507 : 1999 SCC (Cri) 436
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."
21. Coming to the facts of the case in the light of
principles of law laid down by their Lordships of
the Supreme Court in the matter of Balwan Singh
(supra), it is quite vivid that bloodstained knife
was recovered from the possession of the appellant
herein pursuant to memorandum statement of accused
(Ex.P/20) and in FSL report (Ex.P/32) blood was
found in knife, merely because blood group could not
be ascertained, FSL report (Ex.P/32) cannot be
ignored.
22. In view of the aforesaid discussion and finding
arrived at herein, we are of the considered opinion
that merely on the basis of some infirmity in the
dying declaration (Ex.P/17) that it does not contain
signature of declarant and it is not recorded by the
Doctor or Magistrate, dying declaration (Ex.P/17)
cannot be solely discarded particularly when the
date and time has duly been recorded in the dying
declaration & one of the witnesses namely Shyamendra
Kumar Yadav (PW/9) to the dying declaration has been
examined to prove the dying declaration. All that
apart, Dr. Meenakshi Dave (PW/1) who has firstly
examined the deceased on 23.09.2012 at 11.30 pm, has
duly recorded the fact in consultation slip (Ex.P/1)
that deceased Vinay Kumar Yadav had informed that he
was assaulted by the appellant herein, which finds
corroborated by the evidence of Dr. Meenakshi Dave
(PW/1) before the Court.
23. In view of the aforesaid discussion, we are of
the considered opinion that the trial Court, relying
upon the dying declaration (Ex.P/17), is absolutely
justified in holding that it is only and only the
appellant who has caused the death of the deceased
and further justified in holding him guilty &
sentencing him for the offence punishable under
Section 302 IPC.
24. We do not find any merit in the appeal and the
same deserves to be and is, accordingly, dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
JUDGE JUDGE
pkd
