Allowed

Mahavir Das v. State

Chhattisgarh HC5 Dec 2016CRA/1154/1999

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal allowed the criminal appeal against conviction under Sections 307 and 34 IPC. The bench held that the statement relied upon was not a valid dying declaration because the injured victim died five years after the incident, and no evidence established the death resulted from those injuries.

What did the court decide?

Conviction and sentence under Sections 307 and 34 IPC set aside. Appellant reported on bail and set at liberty forthwith.

Mahavir Das Vs State — Murder and Culpable Homicide | Chhattisgarh HC (2016)

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AFR

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HIGH COURT OF CHHATTISGARH BILASPUR CRA No 1154 of 1999

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Mahawr Das S/o Lodhu Das age 28 years Occupation Labour R/o Village/Town Amblkapur Mohalla^— Bathupara PS Amblkapur Dlstt^— Surgwa M P 1 ---- Appellant 1 1 Ve rs us 1. iThe^{StateofMP.throughPS—AmbikapurDistrict—Sarguja,MP.} r‘ ——-- Respondent v ‘ r ForAppellant^—- Ms Laxmln Tondey Advocate For Respondent^~ Ms Shobha Kashyap Deputy Govt Advocate , a^* r r Hon'Ble Shri Justice Chandra Bhushan Bajpai Judgment on Board 5. . 05/1 2/201 6

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——-- Respondent

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Challenge in this appeal is'to the judgment of conviction and order of sentence dated 13—04—1999 passedby the First Additional Sessions Judge, Ambikapur, District Surguja in‘iSessions Trial No.156/94 whereby and whereunder after holding the. appellant guilty for sharing common intention so x as to attempt to take life of Sarjuram convicted him under Section 307 read 'the with Section 34 of the Indian Penal Code, 1860 (in short IPC') and sentenced him rigorous imprisonment for 7 years with a direction to set off the period^{ofdetentionduringtrial.} .2. Conviction is impugned on the ground that without there being any iota of evidence, court below convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 07-12-1991 at about 4.30 p.m. when complainant Mikhel (PW—5), Anil (PW—7) and other members of ward Darripara were returning back, Banaribai (PW-8) and other women were taking firewood , the present accused/appellant along with Bhandul @ Sanjay Kumar, Vinod 33m^{andPradeepstartedabusingwomenandwhencomplainantMikhel} (PW-

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and Sarjuram (injured) and other intervened and asked to not do, the accused/appellant Bhandul @ Sanjay Kumar assaulted by knife over body of Mikhel (PW—5) and he received injuries. When Sarjuram, another injured, came to save him, the present accused/appellant caught hold him and thereafter Bhandul @ Sanjay Kumarralso assaulted Sarjuram. The incident was noticed by Bhagwatram (PW—9), Dhiran and other witnesses The injured were taken to hospital. Mikhel (PW—5) lodged the FIR (Ex.—P/13). Ambikapur police registered the crime as Crime No.981/91 against‘the four accused persons under Section 307 34 of the IPC and sent the injured for medical examination Doctor Azad Bhagat (PW 1) and Doctor Narendra Prasad Sharma (PW 2 attended both the Injured treated them and operated Sarju Panlka as he received stab injury A Doctor Narendra Prasad Sharma (PW 2) also recorded dying declaration of Sariu Vide Ex P/5 Police during investigation collected bed head ticket EX— P/8A Vide seizure memo Ex P/8 Sariu Prasad was admitted and treated in the hospital from 07—12—1991 to 21424991. Police seized knife Vide seizure memo Ex.—P/12 at the instance of discloser statement Ex.—P/11, recorded the statements of witnesses under Section 161 of th e Code of Criminal Procedure, 1973 (in short the Code’).

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After completion of the investigation, charge sheet was filed before Judicial Magistrate First Class, Ambikapur who registered the matter as Criminal Case No.147/93 and committed the same^{totheCourtofSessions.} Learned First Additional Sessions Judge, Ambikapur received the case on transfer and conducted the^trial.

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'5. Accused Bhandul was charged under Section 307 of the IPC in two counts, other co-accused Vinod, Pradeep^and present^{appellantwerecharged} under Section 307 read with Section^{34oftheIPCforoffenceattempttotake} life of Sarjuram and Mikhel (PW—5).

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in order to prove the guilt of the appellant and co—accused, the

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.3.

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prosecution^{examined9witnesses,} in all. The statements of the accused were recor‘ded under Section 313 of the Code wherein they denied the circumstances appearing against them, pleaded innocence and false implication in crime in question.

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7r After providing opportunity of hearing to the parties, the learned First Additional Sessions Judge acquitted accused Vinod Ram and Pradeep from l the charges under Section 307 read with Section 34 of the IPC and convicted Bhantiul @ Sanjay Kumar for the offence under Section 307 of the IPC for attempting to take life of Sarjuram and also convicted the present appellant undertSection 307 read with Section 34 of the IPC for-attempting to take life of Sarjutam and senten‘ced/both the accused to serve rigorous imprisonment for . seven years.

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‘ The State had not preferred any appeal against the acquittal of co— accused Vinod Ram and Pradeep. Hecne, the judgment of acquittal passed for co—accused Vinod Ram and Pradeep attained finality.

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The present appellant and appellant Bhandul @ Sanjay Kumar (A—1) preferred^{theinstantcriminalappeal.} 10. During hearing of this appeal, vide order dated 15—12—2009 as appellant Bhandul @ Sanjay Kumar (A—t) died, this Court directed that after death of Bhandul @ Sanjay Kumar, the appeal filed by him stands abated, further directed that this appeal will continue for appellant Mahavir Das (A-2), the , present^appellant.

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'11, l have heard learned counsel for the parties and perused the j udgment impugned and record ofthe trial Court. 12. Learned counsel for appellant Mahavir Das vehemently argued that for one count of Section 307 read with Section 34 of the IPC the present appellant was acquitted for sharing common intention to attempt to take life of Mikhel \ ,

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(PW—5) as the injured and complainant Mikhel (PW-5) turned hostile not said anything against the present appellant, also as Anil (PW—7), Bajaribai (PW—8), Bhapwat Ram (PW-9) alleged eye—witness turned hostile and not said anything agailnst the present appellant for the offence to attempt-to take life of Sarjuram, the Court^{belowconvicted} the accused/appellant only on the basis of dying declaration Ex.—P/5 recorded by Doctor Narendra Prasad Sharma (PW—2) l l whetein said injured Sarju Panika had deposed before the doctor regarding l dying declaration that present acdused/appellant hold him, also inflicted ’Panika Bharltdul blow and Handul assaulted by knife and two, three more l V^* perspns^were present, he does not know their name but know them by face. Learhed for the appellant would supplement that as per order sheet founsel a dated 10—04—1997, summons issued to said Sarjuram returned unserved as he had died, hence the statement of said Sarjuram was not recorded during the trial and after his death the trial Court accepted Ex.—P/5 as his dying declaration. Learned counsel would further submit that as the prosecution failed to prove that Sarjuram has died on account of injuries received by him in the incident, the incident is of 07—12—1991 and Saraju Panika died in the\year 1997 almost about more than 5 years and as the death of Sarju Panika during trial was not on account of death for the injuries assaulted by any of the accused, Section 32 of the lndian Evidence Act, 1872 is not applicable and as there is no any other evidence, Ex:P/5 cannot be treated as dying declatation unless the said statement proved to be made by person as to cause of his death and as said Sarjuram died after more than 5 years, not proved as he died on account of said incident, hence, EX.—P/5 is not dying declaration admissible under Section 32 of the lndian Evidence Act, i872. Except this, as there is no any evidence against the present accused/appellant and also Mikhel (PW—5) injured and other eye—witness turned hostile not said anything regarding the incident, hence, prosecution failed to prove the offence charged against the accused/appellant. Therefore, the accused/appellant may be

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i M

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:gs‘

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acq u‘itted from the charges

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Per contra, learned counsel for the Stateirespondent opposed the ‘ argurnent advanced on behalf of the present appellant and supported the impu;gned judgment passed by the trial Court and would submit that the trial Court rightly convicted the accused/appellant on the basis of Ex.—P/5 whish is l dying‘ declaration. i l

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In order to appreciate the arguments advanced on behalf ofthe parties, l i ( haveiperused Section 32 Sub-section 1 of the Indian Evidence Act, 1872 which reads asi‘under}

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i gu Section 32 : Cases in which statement of relevant fact by person A who is dead or: cannot be found, etc., is relevant^— xxxxx XXXXXX XXXXXX

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(1) when it relates to cause of death.^— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. \

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Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding^{inwhichthecauseofhisdeathcomesinto} question.” 15. From perusal of the evidence, it is surfaced that including the injured eye witness Mikhel (PW—5) and other eye—witnesses, no one has said anything against the accused/appellant for any of the offence The accused/appellant was convicted solely on the basis of Ex.—P/5 alleged dying declaration. The date of incident is 0742—1991. As per bed head ticket, said Sarju Panika remained in the hospital from 07—12—1991 till 21—12—1991 as per seizure memo Ex.—P-8 and bed head ticket Ex.~P/8A. With this, said injured was discharged «wk e- .., i

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from the hospital on 21-12—1991, thereafter, during trial he succumbed in the year^1997, it goes to show that^{afterhisdischarge‘hedied} after more than 5 yearis.^There is no evidence to demonstrate^thathehas died on account of thos1e injuries received during the incident. It goes to show that he died for other reasons.

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On perusal of Section 32 of the indian Evidence^Act, 1872, it appears 1 t thatiuniess the satement^somadebyany person is for the cause^ofhisdeath or a1s to any ofthe^{circumstancesofthetransactionwhichresulted} in his death in cases invVhich^Ethe cause of that person‘s comes into question, such not a statement so statement are relevant. ln the present^{matterEx.-P/.$5"was} as to lead him for his death as^occured in year 1997.^With the above guided principles of law, E3<.~P/5 cannot be held as dying declaration. The matter would have been different when the Saraju Prasad had died on account of those injuries received^during the^{incident,thentheapplicationofSection32(1)} of the Indian Evidence Act, 1872 was attracted and then^the Ex.~P/5 may be considered as statement^ofa person-regarding^{factoftheincidenttotakehim'} for his death. x

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ln the considered^{viewofthisCourt,asEx.-P/5isnotdyingdeclaration,} conviction of the^{accused/appellantsolelyonthebasisofEX.»P/5} is not proper, hence, requires^{interference.}

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Consequently, the appeal filed by the accused/appellant is allowed. Conviction of the^{accused/appellantunderSection307readwithSection34of} the IPC is hereby set aside.^{Theappellantisreportedtobeon} bail. He be set at liberty forthwith. His bail bond shall continue for a further period of six ”months^{asrequiredunderSection437—AoftheCode.}

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Appeal allowed.‘ r ‘ SdlChandra Bhushan Bajpaii Judge

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Aadll

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:5\

Mahavir Das v. State

Case brief

What is this about?

What did the court decide?

Mahavir Das v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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