Janmajay @ Dhodo vs State Of Chhattisgarh
2023 Latest Caselaw 757 Chatt

                                     1
                                                           CRA No. 589 of 2018

                                                                        NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                         CRA No. 589 of 2018

                 Judgment Reserved on     :       27.01.2023

                Judgment Pronounced on     :      07.02.2023

    Janmajay @ Dhodo S/o Bhuneshwar Bhuiya, aged about 26 years,
     R/o Matiheja, Police Station Farsabahar, District Jashpur (C.G.)

                                                                 ---- Appellant

                                 Versus

    State of Chhattisgarh, through the Station House Officer, Police
     Station Farsabhar, District Jashpur (C.G.)

                                                               ---- Respondent

For Appellant :- Ms. Nirupama Bajpai, Advocate.

     For Respondent         :- Mr. Afroz Khan, Panel Lawyer


                             Division Bench

               Hon'ble Shri Justice Sanjay K. Agrawal &
               Hon'ble Shri Justice Radhakishan Agrawal

                             C.A.V. Judgment


Sanjay K. Agrawal, J

1. This criminal appeal under Section 374(2) of CrPC has been

preferred by the appellant against the impugned judgment dated

28.02.2012 passed by the Additional Sessions Judge, Jashpur at

Kunkuri, District Jashpur, in Sessions Trial No.57/2010 whereby

appellant has been convicted for offence punishable under Sections

459 and 302 of the IPC and sentenced to undergo R.I. for 10 years

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and pay fine of Rs.200, in default of payment of fine additional S.I. for

3 years and imprisonment for life and fine of Rs.300, in default of

payment of fine additional R.I. for 3 years, respectively.

2. Case of the prosecution, in short, is that on 30.03.2010 at about 12:00

pm at night, the appellant trespassed the house of the deceased -

Ranjan and assaulted him by stone and caused his murder and

thereby committed the aforesaid offences.

3. Further case of the prosecution is that Saimon Ram (PW-1) uncle of

the deceased-Ranjan lodged a report on 31.03.2010 in Police Station

Farsabahar that on 30.03.2010 at about 12:00 pm at night unidentified

person has murdered his nephew-Ranjan (brother's son) pursuant to

which Assistant Sub Inspector, Ramesh Rai (PW-14) registered,

Merg Intimation (Ex.P/1), FIR (Ex.P/2) and inquest was conducted

and dead body was sent for postmortem to the Community Health

Center, Farsabahar, where Dr. Ajit Kumar Minj (PW-15) conducted

postmortem and prepared the postmortem report (Ex.P/15). According

to the postmortem report, the cause of death was shock and mode of

death was brain hemorrhage due to head injury and it was homicidal

in nature. Thereafter, spot map was prepared vide Ex.P/12, and

Nazari Naksha was also prepared vide Ex.P/7. Blood stained soil and

simple soil were seized vide Ex.P/3 and from the possession of the

appellant full shirt and full pant were seized vide Ex.P/4 and stone

was also seized vide Ex.P/6 (property seizure memo) as per the

memorandum statement of the appellant vide Ex.P/5. Query report

CRA No. 589 of 2018

was also invited from Dr. Ajit Kumar Minj (PW-15). According to him

injury could have been caused by the stone seized as indicated by the

appellant herein and weapon of offence was sent for FSL and as per

the FSL report (not exhibited) dated 30.06.2010 on full pant, full shirt

and on stone blood was found. After due investigation the appellant

was charge-sheeted for the aforesaid offences and it was committed

to the Court of Sessions for trail in accordance with law in which

appellant abjured his guilt and entered into defence stating that he

has not committed the offence.

4. In order to bring home the offence, prosecution examined as many as

15 witnesses and brought on record 16 documents and defence in

support of his case examined none and exhibited one document i.e.

Ex.D/1.

5. The trial Court, after appreciating oral and documentary evidence on

record, convicted the appellant herein for the aforesaid offence,

against which this appeal has been preferred calling in question the

impugned judgment of conviction and order of sentence.

6. Ms. Nirupama Bajpai, learned counsel for the appellant, would submit

that appellant has been convicted on the basis of oral dying

declaration of deceased-Ranjan to Filmon (PW-2), father of the

deceased, and Balam Bai (PW-9), mother of the deceased.

Furthermore, the motive has been found proved and further on the

clothes of the appellant and on the stone, blood has been found in

FSL report (not exhibited) dated 30.06.2010 but no human blood has

CRA No. 589 of 2018

been found. She would further submit that oral dying declaration is not

reliable and motive is a weak piece of evidence and as such, the

impugned judgment deserves to be set aside.

7. Per contra, Mr. Afroz Khan, learned State counsel, would support the

impugned judgment and submit that trial Court has rightly convicted

the appellant finding the offences under Sections 459 & 302 of the

IPC proved beyond reasonable doubt, as such, the present appeal

deserves to be dismissed.

8. We have heard learned counsel for the parties, considered their rival

submissions made herein-above and went through the records with

utmost circumspection.

9. The first question, as to death of deceased-Ranjan was homicidal in

nature has been answered by the trial Court in affirmative relying

upon the statement of Dr. Ajit Kumar Minj (PW-15) who has proved

the postmortem report (Ex.P/15) which in our considered opinion is a

correct finding of fact based on evidence available on the record, it is

neither perverse nor contrary to the records and we hereby affirm the

finding that the death of deceased-Ranjan was homicidal in nature.

10. Now, the next question would be whether the trial Court is justified in

convicting the appellant for offence under Sections 302 and 459 of the

IPC ?

11.The trial Court has mainly relied upon the motive of the appellant to

commit the offence and the oral dying declaration allegedly given by

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the deceased to his father Filmon (PW-2) and mother Balam Bai (PW-

9) and thirdly, the circumstance that the blood was found on the

clothes (full pant and full shirt) of the appellant and on stone which is

the weapon of the offence. We will consider all the three incriminating

circumstances one by one:-

Oral dying declaration

12. It is well-settled law that oral dying declaration is a weak kind of

evidence. In the matter of Darshana Devi v. State of Punjab 1, 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.

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

Maharashtra 2, 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.

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

Singh v. State of Manipur 3, 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 1 1995 Supp (4) SCC 126

2 (2008) 11 SCC 232

3 (2011) 13 SCC 125

CRA No. 589 of 2018

be in a fit medical condition to make it. It has also been held that oral

dying declaration is a weak kind of evidence.

15. 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.

16. Reverting to the facts of the present case, in the light of the aforesaid

principles of law laid down by their Lordships of the Supreme Court in

the above stated judgments (supra) with regard to the evidentiary

value of oral dying declaration as the basis for conviction, it is quite

vivid that in the instant case, the deceased is said to have given oral

dying declaration to his father-Filmon (PW-2). Filmon (PW-2) in his

statement before the Court has stated that on the date of incident

deceased-son, aged about 16 years, was preparing for the exams

and he was studying in the separate room and in late night, he heard

the cry of his son "Aahh.. Aahh..." , then he visited the room of the

deceased where he saw that blood was oozing out near eyes and

ears of the deceased and on being inquired from his son, who has

CRA No. 589 of 2018

assaulted him, then his son-deceased named appellant (Janmajay)

and then his wife also came on the spot and then he was taken to the

hospital but he died. He also stated that 15 days prior to the date of

offence the appellant had assaulted his son by wooden log. Similar

statement has been made by Balam Bai (PW-9), mother of the

deceased, but in her police statement under Section 161 of the CrPC

(Ex.D/1), she has omitted to state that any such dying declaration was

made by the deceased to her. Thus, only the oral dying declaration

which the deceased has allegedly made to Filmon (PW-2) is

admissible under Section 32(1) of the Indian Evidence Act, 1872. It is

appropriate to notice hear that Filmon (PW-2) in his statement before

the Court has only stated that his son named appellant herein as

"Janmajay". Complete name, father's name and complete address of

the person charged with the offence - appellant has not been stated

in the dying declaration.

17. The Supreme Court in the matter of Gopal Singh another v. The

State of Madhya Pradesh and another 4 has clearly held with

reference to Section 32 of the Indian Evidence Act, 1872 that a dying

declaration which does not contain complete names and addresses of

the persons charged with the offence, even though may help to

establish their identity, is not of such a nature on which conviction can

be based and it cannot be accepted without corroboration and

observed in Para-08 as under:

"8. But even if we resume that the High Court was right in concluding

4 AIR 1972 SC 1557

CRA No. 589 of 2018

that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See: Kushal Rao v. The State of Bombay5. In this case, it must be first remembered that though the names of the appellants' fathers were known to Mod- Singh and others who accompanied him to the Police Station, their fathers' names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against........"

18. The Supreme Court in the matter of Sharad Birdhichand Sarda v.

State of Maharashtra 6 has clearly held that Section 32 of the Indian

Evidence Act, 1872 is an exception to the rule of hearsay and makes

admissible, the statement of a person who dies, whether the death is

homicide or a suicide, provided the statement relates to the cause of

death or deals with circumstances leading to the death.

19. Following the principle of law laid down in the matters of Gopal

Singh (supra) and Sharad Birdhichand Sarda (supra), it is quite

vivid that the deceased only said to have named appellant herein as

"Janmajay", no father's name and no address have been stated in his

oral dying declaration given to Filmon (PW-2). Even though the dying

declaration is said to have established the identity of the assailant as

appellant herein but it is not of the character it would be acted upon to

base conviction only on the oral dying declaration of the deceased

particularly Balam Bai (PW-9) to whom also dying declaration was

given, in her statement under Section 161 of the CrPC has not made

5 AIR 1958 SC 22 6 (1984) 4 SCC 116

CRA No. 589 of 2018

any such statement that oral dying declaration was given to her also.

Particularly, the fact of the oral dying declaration has not been stated

in the Merg Intimation (Ex.P/1) and in the FIR (Ex.P/2) that the

deceased had made any such declaration to Filmon (PW-2) and

Balam Bai (PW-9). In that view of the matter, it would be unsafe to

rely upon the oral dying declaration of deceased-Ranjan to Filmon

(PW-2) to base conviction that too for offence under Section 302 of

the IPC.

20. The next piece of evidence is that on full shirt, full pant and on the

stone blood has been found in the FSL report (not exhibited) dated

30.06.2010. The Supreme Court in the matter of Balwan Singh vs.

State of Chhattisgarh and Another 7, has held that if the recovery of

the bloodstained articles is proved beyond reasonable doubt by the

prosecution, and if investigation was not found to be tainted, then it

may be sufficient if the prosecution shows that the blood found on the

articles of human origin though, even though the blood group is not

proved because of the disintegration of the blood and held as under in

para 24:-

"24.In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of Pws 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons

7 (2019) 7 SCC 781

CRA No. 589 of 2018

and tabbal, as such recovery does not help the case of the prosecution."

21. In view of the aforesaid legal position, merely because the shirt and

pant of the appellant was found to be stained with blood and stone,

weapon of the offence, is also found to be stained with blood,

recovery of the aforesaid clothes and stone would not help the

prosecution case and recovery is of no use.

22. Finally, the motive has been found proved by the trial Court stating

that prior to 15 days from the dated of incident the appellant had

assaulted the deceased by wooden log, as stated by Roji (PW-7),

Pushpa Bai (PW-8) and Manju Tete (PW-10), in their presence the

appellant said to have assaulted the deceased and also threatened to

kill him and on account of that enmity, appellant has assaulted and

killed him. It is well settled law that the previous enmity is a ground for

false implication as well as for correct implication and even otherwise

the motive is a weak piece of evidence and merely on establishing the

motive for offence, an accused cannot be convicted that too for the

offence under Section 302 of the IPC.

23. In view of the aforesaid analysis, the trial Court is absolutely

unjustified in convicting the appellant for offence under Sections 302

and 459 of the IPC. We hereby set aside the impugned judgment

dated 28.02.2012 passed by the Additional Sessions Judge Jashpur,

at Kunkuri, District Jashpur in Sessions Trial No.57/2010 whereby

appellant has been convicted for offences punishable under Sections

302 and 459 of the IPC and sentenced as aforesaid. The appellant is

CRA No. 589 of 2018

in jail. We direct that the appellant be released from jail forthwith, if

not required in any other case.

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

                Sd/-                                         Sd/-
        (Sanjay K. Agrawal)                         (Radhakishan Agrawal)
              Judge                                         Judge

Ankit