Tihar Say @ Guddu vs State Of Chhattisgarh
2022 Latest Caselaw 6522 Chatt

                                                                          Cr.A.No.1556/2015

                                          Page 1 of 24

                                                                                              AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                         Criminal Appeal No.1556 of 2015

       {Arising out of judgment dated 29-9-2015 in Sessions Trial
     No.338/2013 of the 3rd Additional Sessions Judge, Ambikapur}

                         Judgment reserved on: 12-10-2022

                         Judgment delivered on: 2-11-2022

Tihar Say @ Guddu, S/o Kalapnath, aged about 35 years, R/o Village
Hansdand, Thana Lakhanpur, Distt. Sarguja (C.G.)
                                                           (In Jail)
                                                     ---- Appellant

                                             Versus

State of Chhattisgarh, Through Police Station Lakhanpur, Distt. Sarguja
(C.G.)
                                                       ---- Respondent

----------------------------------------------------------------------------------------------------
For Appellant:                  Mr. Samir Singh, Advocate.
For Respondent/State: Mr. Animesh Tiwari, Deputy Advocate General
                                and Mr. Sudeep Verma, Deputy Govt. Advocate.
Amicus Curiae:                  Ms. Aditi Singhvi, Advocate.
----------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                       Hon'ble Shri Deepak Kumar Tiwari, JJ.

C.A.V. Judgment

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC preferred

by the appellant is directed against the impugned judgment dated

29-9-2015, by which the appellant has been convicted under

Sections 302 & 307 of the IPC and sentenced to undergo Cr.A.No.1556/2015

imprisonment for life & pay a fine of ₹ 500/-, in default of

payment of fine to further undergo simple imprisonment for one

year and to undergo rigorous imprisonment for five years & pay a

fine of ₹ 500/-, in default of payment of fine to further undergo

simple imprisonment for one month, respectively.

2. Case of the prosecution, in brief, is that on 22-8-2013, at about

10-11 p.m., at Village Hansdand, Khutenpara, under Police

Station Lakhanpur, District Surguja, the appellant entered into the

house of Budhram (since deceased) and firstly assaulted Jhunni Bai,

wife of Budhram, by iron axe by which she suffered injuries which

were sufficient to cause death and thereafter, caused the murder of

Budhram and thereby committed the offence. Further case of the

prosecution, in brief, is that on the fateful day, the deceased and

his wife were lying in front of their house as their two sons had not

returned home from work and therefore they did not close their

doors and were waiting for them to come and meanwhile, at 10 O'

clock in the night, the appellant came by pushing the door and

asked for liquor / tobacco from Jhunni Bai (PW-2) to which she

said that she did not have the same then the appellant chased her

and assaulted her in the courtyard by which she became

unconscious and thereafter, the appellant came back and assaulted

her husband Budhram on his head, neck and back portion of the

body by which he suffered injuries and he was hospitalized where Cr.A.No.1556/2015

he died on 30-8-2013. It is also the case of the prosecution that

on hearing the cries of Budhram and his wife Jhunni Bai, Patango

(PW-3) reached to the spot, as she is the neighbour, and on

bearing asked, Budhram informed her that Tihar Sai has assaulted

him and his wife, which she informed to Uddesh Ram (PW-1) and

then Uddesh Ram (PW-1) reached to the spot and thereafter, on

the report of Uddesh Ram (PW-1), morgue was registered vide

Ex.P-6 on 30-8-2013. Injured Jhunni Bai (PW-2) was sent to

Community Health Centre, Lakhanpur where she was medically

examined vide Ex.P-12, which has been proved by Dr. Om Prakash

Prasad (PW-5). Naksha Panchayatnama was prepared vide Ex.P-

16. Dead body of deceased Budhram was sent for postmortem

examination and postmortem was conducted by Dr. Binod Kumar.

On the memorandum statement of the appellant vide Ex.P-8,

bloodstained iron axe was seized vide Ex.P-10 and other articles

were also seized. Statements of the witnesses were recorded under

Section 161 of the CrPC..

3. Upon due investigation, charge-sheet was filed against the appellant

for offence under Sections 302 & 307 of the IPC before the

jurisdictional criminal court which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The trial Court has framed charges under Sections 302 & 307 of

the IPC against the appellant and proceeded on trial. The Cr.A.No.1556/2015

accused / appellant abjured guilt and entered into trial. The

prosecution in order to bring home the offence examined as many

as 10 witnesses and exhibited 19 documents Exhibits P-1 to P-19.

One document Exhibit D-1 i.e. the statement of injured Jhunni Bai

recorded under Section 161 of the CrPC has been exhibited on

behalf of the defence. Statement of the appellant was recorded

under Section 313 of the CrPC in which he abjured guilt and

pleaded innocence.

5. Dr. Binod Kumar who conducted postmortem could not be

examined as he was present before the Court on 16-2-2015, but

on that day, the Presiding Officer was on leave and thereafter, on

17-8-2015, counsel for the accused made no objection to the

postmortem report and on that basis, the court held the death to

be homicidal in nature.

6. The trial Court after completion of trial and after appreciating oral

and documentary evidence on record, convicted the appellant

under Sections 302 & 307 of the IPC and sentenced him to

undergo imprisonment for life and other sentences as noticed in the

opening paragraph of this judgment against which this appeal under

Section 374(2) of the CrPC has been preferred by him.

7. Mr. Samir Singh, learned counsel appearing for the appellant,

would submit as under: -

1. Death of the deceased has not been proved to be homicidal Cr.A.No.1556/2015

in nature in view of the fact that Dr. Binod Kumar who

conducted postmortem has not been examined before the

court and on the basis of the alleged no objection made on

behalf of the accused on 17-8-2015 to the postmortem

report, it cannot be held that the prosecution is relieved of its

responsibility to prove the postmortem report by calling the

doctor and examining him before the court. As such, death

of the deceased has not been proved to be homicidal in

nature.

2. The appellant has only been convicted on the basis of the

statements of Uddesh Ram (PW-1), injured Jhunni Bai (PW-

2) & Patango (PW-3), whereas Jhunni Bai (PW-2) was firstly

alleged to have been assaulted by the appellant and

thereafter, she became unconscious, therefore, her statement

cannot be relied upon to hold that the appellant is the author

of the crime and furthermore, Patango (PW-3) to whom

deceased Budhram had given oral dying declaration is not

reliable piece of evidence, as the deceased remained in

hospital from 22-8-2013 to 30-8-2013 till his death, but,

investigating officer A. Toppo (PW-8) has clearly stated that

though Budhram remained hospitalized for nine days, but he

was not in a position to record his dying declaration,

therefore, the alleged oral dying declaration given to Patango Cr.A.No.1556/2015

(PW-3) is not reliable and does not inspire confidence and is

not worthy of credence and as such, it is liable to be rejected.

3. Both the witnesses of memorandum statement Ex.P-8 namely

Umresh Tirkey (PW-9) & Nahar Singh (PW-4), pursuant to

which recovery of the weapon of offence iron axe has been

made vide Ex.P-10, have not supported the case of the

prosecution, as such, memorandum and seizure have also not

been proved beyond reasonable doubt and the FSL report is

not available on record to connect the appellant with the

offence in question, therefore, conviction of the appellant is

unsustainable and bad in law.

8. Mr. Animesh Tiwari, learned State counsel, would support the

impugned judgment and submit that since the counsel appearing for

the appellant in the trial Court admitted the postmortem report

duly recorded in the order sheet dated 17-8-2015, therefore, by

virtue of Section 294(3) of the CrPC, postmortem report has to

be read as evidence in trial and no dispute can be raised at the

appellate stage by counsel for the appellant. He would further

submit that the evidence of Uddesh Ram (PW-1), injured Jhunni

Bai (PW-2) & Patango (PW-3) inspires confidence, particularly

Patango (PW-3) to whom the deceased has made oral dying

declaration that it is the appellant who has caused injury to him and

to his wife Jhunni Bai and even Jhunni Bai (PW-2) has maintained Cr.A.No.1556/2015

her version before the trial Court despite lengthy cross-examination

and as such, the appeal deserves to be dismissed.

9. Ms. Aditi Singhvi, learned amicus curiae, has submitted that the

postmortem report itself is not a substantive piece of evidence and

examination of doctor before the court is necessary to prove the

postmortem report. She further submits that mere marking of

document would not dispense with the proof of document. She

would rely upon the decision of the Supreme Court in the matter

of Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and

others1 and also upon the Full Bench decision of the Karnataka

High Court in the matter of Boraiah @ Shekar v. State By

Ramanagaram Police2 to buttress her submission.

10. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

11. Now, the following three questions would arise for consideration: -

1. Whether the death of the deceased is homicidal in nature and

that has duly been established by the prosecution?

2. Whether the appellant is the author of the crime in question

for offence under Section 302 of the IPC?

3. Whether conviction of the appellant for offence under

Section 307 of the IPC is justified?

1 2022 SCC OnLine SC 913 2 2002 SCC OnLine Kar 689 Cr.A.No.1556/2015

Homicidal nature of death of the deceased: -

12. It is well settled law that in order to convict an accused under

Section 302 of the IPC, the first and foremost aspect to be proved

by the prosecution is the homicidal death and if the evidence on

record produced by the prosecution falls short of the proof of

homicidal death, the accused cannot be convicted under Section

302 of the IPC. {See Madho Singh v. State of Rajasthan3 and

Chandrapal v. State of Chhattisgarh4 (paragraph 19).}

13. The appellant is said to have assaulted deceased Budhram on 22-8-

2013 in between 10 p.m. and 11 p.m. and he was hospitalized for

nine days and ultimately, he died on 30-8-2013, whereas wife of

the deceased injured Jhunni Bai (PW-2) remained hospitalized for

two months. Postmortem of deceased Budhram was conducted by

Dr. Binod Kumar on 30-8-2013 and according to Dr. Binod

Kumar, Medical Officer, Community Health Centre, Lakhanpur,

mode of death was coma, cause of death was head injury and

nature of death was homicidal. In order to prove the postmortem

report, from time to time, summons were issued to Dr. Binod

Kumar, who conducted postmortem on the dead body of deceased

Budhram, but ultimately, warrant of arrest was issued to him and

ultimately, he appeared before the trial Court on 16-2-2015 for

his examination, but unfortunately, on that day, the learned trial

3 (2010) 15 SCC 588 4 2022 SCC OnLine SC 705 Cr.A.No.1556/2015

Judge was on leave, therefore, he could not be examined, but

thereafter, on 17-8-2015, summons issued to him returned un-

served and the trial Court recorded the following order in the

order sheet: -

17/08/15 राज्य दारा श् राजीेश ततिवार्, अततररक्त लोकि अभभियोजीकि ।

आरोप् अभभिररा से पेश । बचािव अतधिवक्ता श्रत् रानो शरार्मा उपससस्थित ।

प्रकिरण अभभियोजीन साक्ष्य हेतु ननयत है्र ।

अभभियोजीन सार् अनुपससस्थित । सातरयि किो जीार् सरंस तानरल, अदर तानरल बाद िवापस प्राप नही । बचािव अतधिवक्ता किे दारा डॉक्र किा प् एर ररपो्र्मा सिव्किायर्मा नकिया गकया । अभभियोजीन किे दारा अपना साक्ष्य सराप घोनषत नकिया गकया । अतप प्रकिरण अभभियुक्त किस्थिन हेतु ननयत नकिया जीाता है्र

प्रकिरण िवासते अभभियुक्त किस्थिन ।

नदनाँकि-24/08/15

14. A careful perusal of the order sheet would show that counsel for

the accused has admitted the postmortem report and in that view

of the matter, the prosecution has declared the evidence of the

doctor, who conducted postmortem, closed and proceeded with

the matter and after hearing, ultimately, the trial Court has

convicted the appellant holding the death of the deceased to be

homicidal in nature.

15. The trial Court in its judgment, paragraph 8, held the death of the

deceased to be homicidal in nature relying upon the postmortem

report and further held that since the postmortem report Ex.P-18

has been admitted by counsel for the accused before the trial Cr.A.No.1556/2015

Court, therefore, the postmortem report Ex.P-18 holding the

death to be homicidal is proved and it has been accepted by the

trial Court.

16. Now, the question is, whether the procedure followed by the trial

Court in which counsel for the accused has admitted the

postmortem report which has been relied upon by the trial Court

to hold that death of the deceased was homicidal in nature, is

correct?

17. At this stage, it would be appropriate to notice

Section 294 of the CrPC to decide the issue raised before the

court. Section 294 of the CrPC states as under: -

"294. No formal proof of certain documents.--(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

(2) The list of documents shall be in such form as may be prescribed by the State Government.

(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:

Provided that the Court may, in its discretion, require such signature to be proved.

18. The object in enacting this provision (Section 294 of the CrPC) is Cr.A.No.1556/2015

to shorten the proceedings. It provides the mode or manner in

which the documents relied upon by the prosecution and defence

can be proved without any formal proof thereof. The proviso,

however, gives discretion to the court to call for the proof of the

signature on the documents.

19. By virtue of sub-section (1) of Section 294 of the CrPC, before a

document can be read in evidence under Section 294, the pleader

for the prosecution / accused shall be called upon to admit or deny

the genuineness of each such document. Where such requirement

is not complied with and counsel is not called upon to admit or

deny the genuineness of such document, the document cannot be

held to be proved and admissible in evidence. Where the

genuineness of the document, by virtue of sub-section (3) of

Section 294 of the CrPC, filed by one party is admitted by the

other party, the document can be read as substantive evidence by

the Court.

20. In the instant case, the question is about the postmortem report

which is an extremely relevant and most important document in a

trial for murder both for the prosecution and the defence. In our

considered opinion, such a document should not be admitted in

evidence mechanically only for the sake of empty formality, but if

taken in evidence it should be meaningful and purposeful. In case

of postmortem reports, the right person for substituting in place of Cr.A.No.1556/2015

the doctor author would be a doctor competent to reply the

questions to be put on behalf of both the prosecution and the

accused, or a witness having technical knowledge only can be said

to be the competent person to even say about the writings of the

doctor who had written out such report for admitting it in

evidence.

21. In the matter of Akhtar and others v. State of Uttaranchal 5, the

Supreme Court has held that if the genuineness of any document

filed by a party is not disputed by the opposite party it can be read

as substantive evidence under sub-section (3) of Section 294 of

the CrPC. It was further held that the postmortem report, if its

genuineness is not disputed by the opposite party, the said

postmortem report can be read as substantive evidence to prove

the correctness of its contents without the doctor concerned being

examined.

22. In the matter of Shamsher Singh Verma v. State of Haryana 6, it has

been held by the Supreme Court that the object of Section 294 of

the CrPC is to accelerate pace of trial by avoiding the time being

wasted by the parties in recording the unnecessary evidence and

observed in paragraph 14 regarding the procedure to be followed

under Section 294(1) of the CrPC as under: -

"14. In view of the definition of "document" in the

5 (2009) 13 SCC 722 6 (2016) 15 SCC 485 Cr.A.No.1556/2015

Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly on a document filed by the defence, endorsement of admission or denial by the Public Prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence."

23. In the matter of Vijender v. State of Delhi7, the Supreme Court has

held that in view of Section 60 of the Evidence Act, 1872, the

prosecution is bound to lead the best evidence available to prove a

certain fact, that too to prove the fact of homicidal death, and

observed as under: -

"19. It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post-mortem examination. ..."

24. Similarly, in the matter of Munshi Prasad and others v. State of

7 (1997) 6 SCC 171 Cr.A.No.1556/2015

Bihar8, their Lordships of the Supreme Court have clearly held that

postmortem report is not a substantive evidence but it is the

doctor's statement in court, which has the credibility of a

substantive evidence, and it was observed pertinently as under: -

"6. ... Post-mortem report is prepared by the doctor who held the post-mortem examination on the body of the deceased Indrasan Prasad and his findings have been recorded therein. The document by itself is not a substantive evidence but it is the doctor's statement in court, which has the credibility of a substantive evidence and not the report, which in normal circumstances ought to be used only for refreshing the memory of the doctor witness or to contradict whatever he might say from the witness box. ..."

25. Very recently, the Supreme Court speaking through J.B. Pardiwala,

J. in Ghulam Hassan Beigh (supra) held that the postmortem

report of the doctor is his previous statement based on his

examination of the dead body, it is not substantive evidence, the

doctor's statement in court is alone the substantive evidence and

the postmortem report can be used only to corroborate his

statement under Section 157, or to refresh his memory under

Section 159, or to contradict his statement in the witness-box

under Section 145 of the Evidence Act and observed as under: -

"31. ... The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory 8 (2002) 1 SCC 351 Cr.A.No.1556/2015

under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. ..."

26. In the matter of Jagdeo Singh and others v. State9, Division Bench

of the Allahabad High Court has held that Section 294 of the

CrPC does not refer to a document which, even if exhibited,

cannot be read in evidence as a substantive piece, and observed as

under: -

"11. Section 294 is a new provision contained in the Cr.P.C. of (1974). It provides for the admission in evidence of certain documents without formal proof. It requires each party to produce a list of documents and requires the opposite party to admit or deny the genuineness of all or any of those documents. Where the genuineness of any document is not disputed, such document can be read in evidence without proof of the signature of the person by whom it purports to be signed. The Court can, however, in its discretion, require such signature to be proved. A bare reading of the aforesaid section would reveal that it contemplates reading in evidence, upon admission about genuineness by the opposite party, only such documents which, when formally proved, speak for themselves. It does not refer to a document which, even if exhibited, cannot be read in evidence as a substantive piece."

It was further held by their Lordships of the Division Bench that

postmortem report by itself proves nothing as it is not a substantive

piece of evidence and observed as under: -

9 1979 Cri.L.J. 236 Cr.A.No.1556/2015

"12. The notes of post-mortem examination, popularly known as post-mortem examination report, are nothing but a contemporaneous record prepared by a Medical Officer, while performing the post-mortem examination of a dead body. It summarises the salient features observed by the medical man in the course of autopsy on which features he bases his own opinion as to the cause of death. Post-mortem report by itself proves nothing as it is not a substantive piece of evidence. It is only a previous statement of the doctor based on his examination of the dead body. It is the statement of the doctor made in Court which alone is the substantive evidence. The post-mortem report can be used to corroborate the statement of the doctor concerned under S. 157 of the Evidence Act. ..."

Their Lordships relying upon the earlier decisions in the matters of

Bechan Prasad v. Jhuri10, Rangappa Goundan v. Emperor11, Teja

Singh v. State12, Loku Basappa Pujari v. State13 and Hadi Kirsani v.

State14 have held that a postmortem report by itself is not a

substantive piece of evidence and before it can be used to

corroborate the doctor concerned, there must be deposition of the

doctor in the witness-box, and observed in paragraph 18 as under:-

"18. In the face of this legal position exhibiting of post- mortem report under Section 294 CrPC (new) is not permissible and even if such an exhibiting has been done the report itself cannot be used as a substantive piece of evidence until and unless the doctor concerned has been examined in Court."

27. Reverting to the facts of the case in light of the aforesaid principles

10 AIR 1936 All 363 11 AIR 1936 Mad 426 12 AIR 1951 Pepsu 1 13 AIR 1960 Bom 461 14 AIR 1966 Ori 21 Cr.A.No.1556/2015

laid down by their Lordships of the Supreme Court in Ghulam

Hassan Beigh (supra), Vijender (supra) and Munshi Prasad (supra),

it is quite vivid that the postmortem report of doctor is only his

previous statement based on his minute examination of the dead

body of the deceased and it is not a substantive evidence unless the

doctor who conducted postmortem is examined before the court to

prove the facts mentioned in the postmortem report and

postmortem report should be in corroboration with the evidence of

eyewitnesses and cannot be an evidence sufficient to reach the

conclusion for convicting the appellant (see Balaji Gunthu Dhule v.

State of Maharashtra15).

28. In Boraiah @ Shekar (supra), Full Bench of the Karnataka High

Court has emphasized the need for following the procedure under

Section 294(1) of the CrPC. It has been held that the party

seeking to avail the benefit of Section 294 of the CrPC should file

a list containing the particulars of every such document and shall

call upon the other side to admit or deny the genuineness of each

such document. Only where the genuineness of any document is

not disputed, such document may be read in evidence in any

enquiry or trial without the proof of the signature of the person to

whom it purports to be signed. It was further held that there must

be something on record to show that either the prosecution or the

defence was called upon to admit or deny the genuineness of

15 (2012) 11 SCC 685 Cr.A.No.1556/2015

certain document and it is only where the genuineness of the

document is not disputed, such document may be read in evidence

without the proof of the signature of the person to whom it

purports to be signed. It was also held that Section 294 of the

CrPC dispense with only the proof of the signature of the person to

whom it purports to be signed and that being so, there must be

enough indication in the record to show that the party against

whom a document is sought to be put was called upon to admit or

deny the genuineness of such document. However, the following

word of caution was issued by their Lordships in paragraph 11 of

the report: -

"11. ... We may however add a word of caution that the medical evidence in a criminal case is of utmost importance as the correctness of both ocular and circumstantial evidence produced by the prosecution is tested on the touchstone of the medical evidence. Therefore even if the genuineness of the Post Mortem report is not disputed by the accused and the report is read as substantive evidence in the case, it may still be necessary to examine the doctor concerned to clarify his opinion mentioned in the PM report or to obtain his opinion on questions of medical nature if the Court feels it absolutely necessary to clarify the questions of a medical nature which may be involved in the case by calling the doctor who has issued the PM report in order to arrive at a correct decision in the case. This may be done by the trial Court by examining him under Section 311 Cr. PC."

29. Reverting to the facts of the case finally in light of the aforesaid

parameters, it is quite vivid that in the instant case, the trial Court Cr.A.No.1556/2015

has made an endeavour to secure the presence of Dr. Binod

Kumar, who conducted postmortem, and also succeeded in

securing his presence as he appeared pursuant to the warrant of

arrest issued against him, on 16-2-2015, but unfortunately, on

that day, the learned Presiding Judge was on leave and when the

matter was posted on 17-8-2015, again the said medical witness

did not appear for the reasons recorded in the order sheet and all

of a sudden, learned counsel for the accused admitted the

postmortem report and taking that admission on record, the

postmortem report was exhibited as Ex.P-18 and accepting the

nature of death as homicidal, the trial Court held that the death of

deceased Budhram was homicidal in nature.

30. In view of legal analysis, we are unable to persuade ourselves to

accept the procedure followed by the trial Court while recording

the admission of the accused to the postmortem report. No such

procedure as envisaged under Section 294 of the CrPC was

followed at the appropriate stage and Dr. Binod Kumar, whose

presence was competently secured and he appeared before the

Court on 16-2-2015, could not be examined for the absence of

the Presiding Judge and he was again subjected to presence on 17-

8-2015, but on that day, he could not appear on account of non-

service of summons, on 16-2-2015 the Judge In-charge did not

take pain to give the next date for examination of such an Cr.A.No.1556/2015

important medical witness, which we do not approve and in future,

we expect the Judge in-charge to give a next date, particularly to a

doctor witness, to examine him to avoid this sort of difficulty faced

herein. However, anyhow, counsel for the accused admitted the

postmortem report and the Court proceeded further and on the

basis of that admission, death of the deceased was proved to be

homicidal in nature. Whereas, the procedure envisaged in Section

294(1) of the CrPC ought to have been followed by the trial

Court, if any, and once the trial Court has not followed the

procedure envisaged under Section 294(1) of the CrPC, at the

verge of conclusion of trial, it could not have resorted to that

procedure to the detriment of the accused and could not have

dispensed with the examination of doctor only on the basis of

alleged admission on the part of the accused to the postmortem

report Ex.P-18.

31. As held by the Supreme Court in Ghulam Hassan Beigh (supra),

Vijender (supra) and Munshi Prasad (supra), the postmortem

report of the doctor is his previous statement based on his

examination of the dead body, it is not substantive evidence and

the doctor's statement in court is alone the substantive evidence.

32. In that view of the matter and further, the procedure envisaged in

Section 294 of the CrPC having not been followed and the alleged

admission of the accused to the postmortem report is not in Cr.A.No.1556/2015

accordance with law, the trial Court ought to have examined the

doctor to prove the postmortem report Ex.P-18 and in absence of

examination of doctor witness who held the postmortem over the

body of deceased Budhram, there is no medico legal evidence that

deceased Budhram died to the injuries which the appellant was

allegedly shown to have inflicted upon his person. Therefore,

relying upon the postmortem report and further on that basis

holding the death to be homicidal in nature, the trial Court went

wrong in holding the death of the deceased to be homicidal in

nature.

33. Furthermore, the appellant has been convicted on the basis of the

oral dying declaration given by deceased Budhram to Patango (PW-

3), as she has informed to the Court that on cry of the deceased,

she went inside the house of the deceased where deceased

Budhram was lying injured and he informed her that it is Tihar Sai

- the appellant herein, who has caused injury to him, and

thereafter, the deceased has informed the incident to Uddesh Ram

(PW-1) and Uddesh Ram (PW-1) was also informed by Patango

(PW-3), but immediately, thereafter, the deceased was taken to

hospital and he remained hospitalised up to 30-8-2013, but till

then he was not in a position to give oral dying declaration as

stated by investigating officer A. Toppo (PW-8), as he was

unconscious.

Cr.A.No.1556/2015

34. In the matter of Darshana Devi v. State of Punjab16, 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.

35. Similarly, in the matter of Arun Bhanudas Pawar v. State of

Maharashtra17, 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 cross-examination.

36. Furthermore, the Supreme Court, in the matter of Walkhom Yaima

Singh v. State of Manipur18, 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.

37. Following the principles of law laid down in Darshana Devi (supra),

Arun Bhanudas Pawar (supra) and Walkhom Yaima Singh (supra),

we find that the oral dying declaration is not trustworthy and free

from blemish and does not inspire confidence as, as per the

statement of A. Toppo (PW-8), though the deceased remained 16 1995 Supp (4) SCC 126 17 (2008) 11 SCC 232 18 (2011) 13 SCC 125 Cr.A.No.1556/2015

hospitalized for eight days, but he was not able to make any dying

declaration as his health condition was not good. In that view of

evidence, we reject the evidence of oral dying declaration based on

the evidence of Patango (PW-3).

38. In that view of the matter, particularly, the witnesses of

memorandum & seizure namely Nahar Singh (PW-4) & Umresh

Tirkey (PW-9) have not supported memorandum & seizure and

more particularly the weapon of offence axe by which the injury is

said to have been caused has not been sent for forensic

examination to prove that the said axe was used as the weapon of

offence and human blood has not been found to be proved on the

same and in view of the fact that death of the deceased has not

been proved to be homicidal in nature, we are of the opinion that

it would be unsafe to convict the appellant under Section 302 of

the IPC. Accordingly, conviction of the appellant under Section

302 of the IPC deserves to be and is hereby set aside. However,

in view of the statement of injured Jhunni Bai (PW-2) and that she

remained hospitalized for two months, we find that the appellant's

conviction under Section 307 of the IPC is well merited.

39. Consequently, conviction and sentences imposed upon the

appellant under Section 302 of the IPC are set aside and he is

acquitted of the said charge. However, his conviction under

Section 307 of the IPC is maintained. He is in jail. He be released Cr.A.No.1556/2015

if his detention is not required in any other offence.

40. The appeal is partly allowed to the extent indicated herein-above.

                  Sd/-                                           Sd/-
           (Sanjay K. Agrawal)                        (Deepak Kumar Tiwari)
                 Judge                                          Judge
Soma