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2011 Supreme(Chh) 58
IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
T.P. Sharma and R.L. Jhanwar, JJ.
Dhansingh
Vs.
State of C.G.
Criminal Appeal No. 115 of 2006
Decided On: 18.02.2011
The central legal point established in the judgment is the requirement for reliability and corroboration in dying declarations, especially in cases where mistaken identity is a possibility.
Headnote:
Conviction - Culpable Homicide - Indian Penal Code - Section 302
Fact of the Case:
The case involved the conviction of the Appellant for the commission of culpable homicide amounting to murder under Section 302 of the Indian Penal Code. The prosecution's case was based on the dying declaration made by the deceased Kishnu to witnesses PW1 Chaitibai and PW2 Sukhdai, alleging that the Appellant shot an arrow at him, causing a fatal injury.
Finding of the Court:
The court found that the evidence of the dying declaration made by the deceased was not sufficiently reliable to convict the Appellant for the offense of murder under Section 302 of the Indian Penal Code. The court noted the lack of corroboration and the possibility of mistaken identity, ultimately leading to the conclusion that the conviction and sentence imposed upon the Appellant were not sustainable under the law.
Issues: The key issues revolved around the reliability of the dying declaration made by the deceased, the lack of corroboration, and the possibility of mistaken identity in identifying the assailant.
Ratio Decidendi: The court emphasized the importance of corroboration and the need for reliability in dying declarations. It cited a previous case to support its decision, highlighting the principle that uncorroborated dying declarations in certain circumstances may not be reliable and should not be solely relied upon for conviction.
Final Decision: The criminal appeal was allowed, and the conviction and sentence of the Appellant under Section 302 of the Indian Penal Code were set aside. The Appellant, Dhansingh, was ordered to be set at liberty and released forthwith.
T.P. Sharma, J.
1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 20/1/2006 passed by Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 438/2005 whereby and where under after holding the Appellant guilty for the commission of offence of culpable homicide amounting to murder of Kishnu convicted the Appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life.
2. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of the Appellant, Court below has convicted and sentenced the Appellant as aforementioned and thereby committed an illegality.
3. As per case of the prosecution, on fateful evening of 3/9/2005 at about 7:00 P.M. Kishnu (since deceased) was standing near his house, Appellant who was hiding himself behind the tree standing on the field of Manglu shot arrow upon Kishnu and caused fatal injury, Kishnu walked up to the house of PW2 Sukhdai whom he made dying declaration. He also shouted to his mother that Appellant has shot arrow thereafter he died. On second day marg intimation was recorded vide Ex. P-l. First Information Report was lodged by PW1 Chaitibai vide Ex. P-2. Spot map was prepared vide Ex. P-3. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P-5, Inquest over the dead body of Kishnu was prepared vide Ex. P-4. Blood stained and plain soil were recovered from the spot vide Ex. P-8. Arrow removed from the body of deceased Kishnu was seized vide Ex. P-9. Dead body of Kishnu was sent for autopsy to Primary Health Center, Chhotedongar vide Ex. P-13 where PW6 Dr. Prabhakar Dhote conducted autopsy vide Ex. P-16 and found one stab wound over chest near nipple of 3 x 0.5 cm. with considerable depth and penetrated injury was found over stomach. Mode of death was shock and death was homicidal in nature. During course of investigation, accused/Appellant was taken into custody, he made discloser statement of bow vide Ex. P-6., same was recovered at his instance vide Ex. P-7. Sealed cloths of deceased Kishnu was seized vide Ex. P-10.
4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Jagdalpur who in turn committed the case to the Court of Sessions, Jagdalpur.
5. In order to prove the guilt of the Appellant/accused prosecution examined as many as 6 witnesses. Accused/Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed.
6. After affording an opportunity of hearing to the parties learned Sessions Judge, Bastar at Jagdalpur has convicted and sentenced the Appellant as aforementioned.
7. Mr. Ranbir Singh Marhas, learned Counsel for the Appellant and Ms. Madhu Nisha Singh, P.L. for the State/Respondent are heard. Judgment impugned and record of Court below perused.
8. Learned Counsel for the Appellant vehemently argued that considering the fact that PW1 Chaitibai & PW2 Sukhdai, witnesses of alleged dying declaration are rustic villagers and resident of remote area i.e. forest area, he is not disputing truthfulness of their evidence and submitted that they have deposed before the Court what was stated by injured Kishnu (since deceased) to them it can be safely presumed the dying declaration made by deceased Kishnu.
9. Learned Counsel for the Appellant further argued that as per evidence of both the witnesses, incident took place at night. After taking his night meal when deceased Kishnu came out from his house then incident took place. Prosecution has prepared spot map Ex. P-3 which reveal that Appellant was in hidden position behind the tree having considerable distance from the deceased Kishnu. In these circumstances, in absence of any source of light it was not possible f
