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2011 Supreme(Chh) 56
2011 (3) C.G.L.J. 437 (DB)
HIGH COURT OF CHHATTISGARH, BILASPUR
T.P. Sharma & Shri R.L. Jhanwar, JJ.
DHANSINGH - Appellant
Vs.
STATE OF C.G. - Respondent.
Criminal Appeal No. 115 of 2006,
Decided on : 18-2-2011.
Mr. Ranbir Singh Marhas, Advocate, for the Appellant.
Ms. Madhu Nisha Singh, P.L., for the State/respondent.
The importance of corroboration for a dying declaration and the potential impact of mistaken identity on the reliability of such declarations in criminal cases.
Headnote:
Conviction - Culpable Homicide - Indian Penal Code - Section 302
Fact of the Case:
The appellant was convicted for the commission of culpable homicide amounting to murder under Section 302 of the Indian Penal Code for shooting an arrow at the deceased, Kishnu, resulting in his death. The appellant challenged the conviction on the grounds of insufficient evidence and the reliability of the dying declaration made by the deceased.
Finding of the Court:
The court found that the evidence of the witnesses, who testified to the dying declaration made by the deceased, was not sufficient to establish the guilt of the appellant beyond reasonable doubt. The court also noted the lack of corroboration for the dying declaration and the possibility of mistaken identity, ultimately leading to the conclusion that the conviction and sentence imposed on the appellant were not sustainable under the law.
Issues: The issues revolved around the sufficiency and reliability of the dying declaration made by the deceased, the lack of corroboration for the dying declaration, and the possibility of mistaken identity in identifying the assailant.
Ratio Decidendi: The court emphasized the importance of corroboration for a dying declaration, especially in cases where there is a possibility of mistaken identity. It held that in the absence of sufficient corroboration, an uncorroborated dying declaration may not be safe to rely 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 was ordered to be set at liberty at once and released forthwith, if not required in any other case.
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-1. 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 PW] 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 possi
