Dismissed

Sanjay Dewangan @ Mudwa v. State of Chhattisgarh

Chhattisgarh HC2 Jul 2024CRA/334/2023

Case brief

AI extract

What is this about?

Conviction under Section 302 IPC affirmed on the strength of an oral dying declaration made by the deceased to his sister at hospital naming the appellant as his assailant. The deceased was in a fit state of mind, a fact admitted by defence suggestion, and the statement was admissible under Section 32(1) of the Indian Evidence Act, 1872. Presence of the appellant at the scene was proved by witnesses and blood on his clothes and the recovered knife went unexplained. Appeal dismissed; appellant to undergo remaining sentence.

What did the court decide?

None granted to appellant; conviction and life sentence with fine upheld, remaining sentence to be undergone.

Sanjay Dewangan @ Mudwa Vs State of… — Murder and Culpable Homicide | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 334 of 2023

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Sanjay Dewangan @ Mudwa S/o Kailash Dewangan Aged About 19 Years R/o Civil Line Simga, P.S. Simga, District Baloda Bazar-Bhatapara, Chhattisgarh. ---- Appellant

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Versus

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State Of Chhattisgarh Through Station House Officer, Police Station Simga, District Baloda Bazar-Bhatapara, Chhattisgarh. ---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant : Shri VVS Advocate For Respondent/State : Shri Nitansh K Jaiswal, Panel Lawyer

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Hon'ble Shri Justice Ramesh Sinha, Chief Justice & Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board

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Per Ravindra Kumar Agrawal, J. 03.07.2024

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Challenge in this appeal is to the judgment of conviction and sentence dated 09.01.2023 passed by the learned Additional Sessions Judge, Bhatapara, District-Baloda Bazar-Bhatapara, Chhattisgarh in Sessions Trial No.H-20 of 2021, whereby the appellant has been convicted for commission of offence punishable under Section 302 of the IPC, and Sentenced RI for life with fine of Rs.500/- with default stipulation.

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Brief facts of the case are that the Complainant- Lali Bhonsale (PW10) has made a written complaint (Ex.P1) to the Police on 16.11.2020, alleging therein that on the date at about 1 am, Vikrant Mishra and Yash Sharma (PW4) came to her house and informed that her brother Gaurav Bhonsale (since deceased) was being assaulted by a knife near Mini stadium and he was lying there and was admitted to the

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Vinayak Hospital. She, along with Yash Sharma went to the hospital and asked her brother about the incident, then he disclosed that he was assaulted by one Sanjay Dewangan @ Mudwa (present appellant) by knife. On being asked as to the reason for assault, it has been disclosed that all of sudden altercation took place and therefore, the appellant assaulted the deceased by knife. By the knife injury, his intestine came out from the body and therefore, she came to lodge the report. Based on her written report, FIR (Ex.P2) was registered against the appellant for the offence punishable under Section 307 of the IPC. Looking to the injuries, he was referred to the higher centre for further treatment. During treatment, he died on 18.11.2020 at about 12.50 pm, at Sankalp hospital, Raipur. Merg intimation was given to the Police vide Ex.P15, body was sent for its post-mortem to the BR Ambedkar Hospital, Raipur, where Dr Snighdha Jain Bansal, Assistant Professor & HOD, Dept of Forensic Medicine, Raipur conducted the post-mortem of the dead-body, and gave report vide Ex.P18. While conducting post-mortem of the deadbody, doctor has found the following injuries on the body of the deceased:

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External Injury-

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1. Surgical stitched would on mid abdomen 20cm long, vertically present from public symphysis to upwards with sutures in situ

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1. Another stitched would with suturte in situ on left side of abdomen in irregular manner 23 cm long, surrounding skin us peeled off & hyper pigmented.

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1. Colostomy would with drain in situ on right side of abdomen at hypogastric area.

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1. Healed parallel incised would vertically placed on inner part of left forearm near cubital fossa approximately 6-7 cm long suggestive of tentative cuts.

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1. Below external injury 2 there in another spindle shaped incised would 2 cm long, 0.5cm wide and depth as mentioned in dissection with stitch in situ at one corner and other end is relatively blunt.

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Internal Injury-

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1. External injury No.2 continues deep till peritoneal cavity and also till surgically stitched wound at jejunum and stitched mesentry. Stitched mesentry is contused throughout, around a gap of approximately 5-6 cm and adjacent wall of jejunum is also stitched form outer aspect.

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1. External injury no.5 in continuous with peritoneal cavity. Surgical colostomy at ileo jejunal area. This wound is stitched to abdominal wall with drain pipe as mentioned in external injury no.3.

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Doctor opined that death was due to abdominal injuries and their complications, and duration of death is 24 hours within the postmortem examination.

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Blood stained and plain soil was seized from the spot vide seizure memo (Ex.P6). Clothes of the deceased have been seized vide seizure memo Ex.P7. On 16.11.2020 when the deceased was admitted to the Vinayak hospital at Simga, a query was made by the Police about the nature of injuries and the possibility of death by the said injuries. In reply to the query , it is replied that the victim was provided primary treatment and after the CT Scan report, at 1.18 pm, finding referred to the higher center for further treatment. Query report is Ex.P14. Blood stained clothes of the deceased were seized vide Ex.P17, Spot Map Ex.P20 was prepared by the Police, and Ex.P31 was prepared by the Patwari. The appellant was taken into custody on 16.11.2020 and his memorandum

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statement Ex.P4 was recorded. Based on his memorandum statement, a knife has been seized from him vide seizure memo Ex.P5. The said knife was sent for its query report as to whether the injuries found on the body of the deceased can be caused by the said knife, or not. In reply to the query, the doctor has given his report vide Ex.P15, that there is possibility of having death with the sharp object.

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Blood stained and plain soil; clothes of the appellant, as well as the deceased, knife was seized by the appellant, cotton pieces allegedly stained with blood and the deceased and also finger nails’ scratch were sent for their examination to the Forensic Science Laboratory, Raipur. Vide Ex.P31, report was received. As per the FSL report, blood was found on the blood stained soil, clothes of the deceased, as well as the appellant, knife seized from the appellant and one piece of cotton stained with blood and the deceased and human blood was found on the clothes of the deceased, and the appellant, cotton pieces and in finger nails’ scratch.

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Statements of the witnesses have been recorded under Section 161 of the CrPC and after completion of usual investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Simga, for the offence under Section 307, 302 of the IPC and Section 25 and 27 of lthe Arms Act. The case was committed to the Court of learned Sessions Judge, from where it was transferred to the learned trial court for its trial.

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Learned trial Court has framed charge against the appellant for the offence punishable under Section 302 of the IPC. Appellant abjured his guilt and claimed trial.

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In order to establish the charge against the appellant, prosecution has examined as many as 20 witnesses. Statement of the appellant under Section 313 of the CrPC has also been recorded, in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence.

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After appreciation of oral as well as documentary evidence led by the prosecution, learned trial Court has convicted the appellant and sentenced him as mentioned in the opening paragraphs of this judgment. Hence this appeal.

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Learned counsel for the appellant would submit that appellant is innocent and has been falsely implicated in the offence, no offence is made out against the appellant as alleged. There are material omissions and contradictions in the evidence of prosecution witnesses, and the prosecution has failed to prove its case beyond any reasonable doubt. He would further submit that there is no eyewitness to the incident. The circumstances have not been proved by the prosecution and the chain of circumstances is not completed. There is no evidence on record that the appellant has inflected the knife blow on the body of the deceased. The witnesses upon whom learned trial Court has relied upon for holding conviction of the appellant, are the close relatives of the deceased and

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interested witnesses. Merely on the basis of recovery of knife on the memorandum statement of the appellant, and blood has been found on the clothes, he has been convicted for the capital offence. In view of the evidence led by the prosecution, appellant cannot be convicted for want of sufficient, cogent and legally admissible evidence, and therefore, he is entitled for his acquittal.

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On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submitted that there is sufficient evidence on record for holding the appellant guilty for the offence in question. Appellant was with the deceased at the time of incident, which has been proved by the witnesses. The deceased made oral dying declaration before his sister, PW1, who lodged the written report to the Police land in the said report also, the fact of oral dying declaration has been mentioned and she supported the same in her evidence. On the knife recovery from the appellant, blood has been found as also the human blood was found on his clothes, which have not been explained in his 313 CrPC statement. Looking to the number of injuries found on the body of the deceased, and also evidence available on record that the appellant inflicted the knife injury on the deceased, the learned trial Court has absolutely justified in convicting him for the alleged offence, and the appeal of the appellant is liable to be dismissed.

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We have heard learned counsel for the parties and perused the record.

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The first and foremost question for its determination would be, whether death of the deceased is homicidal or not.

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The MLC report and the post-mortem report of the deceased have been admitted by the appellant on 22.11.2022, which reflects from the order sheet dated 22.11.2022 of learned trial court, and he has not disputed the injuries found on the body of the diseased, as well as the post-mortem report. Further, PW10 Dr Parmanand Jaiswal stated in his deposition that he is Medicine Director at Vinayak Hospital, Simga. The injured admitted in the hospital at about 1 am on 15.11.2023 (night), having injuries on his abdomen. After CT Scan report, it was found that the disclosed was found that the deceased received grievous injuries and therefore, he was referred to the higher centre for further treatment and his MLC report is Ex.P12. He further stated that the clothes of the deceased were also given to the Police for their FSL examination, and he gave the query report Ex.P14 also with respect to referring the victim to the higher centre. He further replied to the query report vide Ex.P15 with respect to the probability of death of the deceased due to the injuries.

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From the above said evidence, and undisputed fact of post-mortem report of the deceased, learned trial Court has held that death of the deceased was homicidal in nature , which in the opinion of this Court, cannot be said to be perverse, or contrary to the record.

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So far as involvement of the appellant in the offence in question is concerned, the incident was informed by the Vikrant Mishra and Yash

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Sharma to Lali Bhonsale (PW1), who is sister of the deceased. Though Vicky Manikpuri (PW3) is witness to the incident, and in his statement recorded under Section 161 of the CrPC, he stated about the incident, but in his deposition, he has not supported the same and stated that at the time of incident, when he came to the spot, persons were running here and there, and the deceased was lying there pooled with blood. They have taken him to the Vinayak Hospital and informed his sister, PW1 about the incident. Likewise, PW4, who is the witness of memorandum and seizure, has stated that when he reached on the spot, persons were running here and there, and the deceased was lying there in injured condition. They have taken him to the Vinayak Hospital and thereafter, informed the incident to his sister, PW1.

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Lali Bhonsale, PW1, who is sister of the deceased, and complainant in the case has stated in her deposition that on 16.11.2020 at about 1 am, Vikrant Mishra and Yash Sharma(PW4) came to her house and informed that her brother-Gaurav Bhonsale was murdered and he was being taken to the hospital. She went along with Yash Sharma to the Vinayak Hospital, where she asked her brother about the incident, then he disclosed that present appellant- Sanjay Dewangan @ Mudwa had assaulted him by knife. When she again asked him about the reason for the assault, he said that due to mutual dispute, he was assaulted by the appellant by knife. By the injuries, his intestines came out from the body and thereafter, she went to the Police Station to lodge report. She further stated that while she was lodging the report, the appellant himself

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came to the Police Station, and admitted his guilt. She lodged written report Ex.P1, on the basis of which FIR-400 of 2020 has been registered at the Police Station-Simga. She further stated in her evidence that her brother was referred to the Sankalp Hospital from Vinayak Hospital for further treatment, where he died during the treatment.

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In her cross-examination, she remained firm in saying that she went to the hospital, and asked about the incident from her brother, and then, her brother disclosed that the appellant assaulted him by knife. In para-5 of her cross-examination, on being given the suggestion by the defence that in the hospital, deceased was in good condition, having his consciousness, it has been admitted by her, but for omission and minor contradiction, PW1 stuck to her written report, as well as her 161 CrPC statement, and proved that when she met her brother in the hospital, he disclosed the name of present appellant, who assaulted him by knife. From perusal of written complaint (Ex.P1), same version has been mentioned that on the date of incident, at about 1 am, Vikrant Mishra and Yash Sharma informed her that her brother was being assaulted by knife and he was lying pooled with blood, and he was being taken to the hospital. When she went to the hospital along with Yash Sharma, she asked her brother about the incident, then he disclosed that present appellant had assaulted him by knife.

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PW5, Harsh Tamboli stated in his deposition that on the date of incident, some persons were playing cards near Mini stadium. Deceased

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was also one among them and he started playing cards. Some altercation took place between the persons who were playing cards and the deceased and appellant started quarreling. The deceased assaulted the appellant by Pistol lighter, by which appellant received injury on his head and then, the persons started to run here and there. He too left the place and went to his house. In the morning, he came to know that Gaurav Bhonsale received knife injury and died. Though this witness admitted only his signature on memorandum statement of Ex.P4, and seizure memo Ex.P5, Ex.P6, Ex.P7 and declared hostile when the leading question was asked to him, he admitted that he came to know that the appellant has assaulted the deceased by knife on his abdomen, who was admitted in the hospital. From the evidence of this witness, it is quite vivid that the appellant and the deceased were present near Mini Stadium at the time of alleged incident, and both of them were quarreling.

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PW6 Narad Sahu is also the witness to the fact that at the time of incident, there was quarrell between the deceased and appellant. .

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PW8, Lucky @ Anurag Manikpuri has also proved the presence of appellant at the place of incident at the relevant point of time.

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The Investigation Officer, PW16 NK Chauhan stated in his deposition that on 07.02.2021 clothes of the appellant as well as the deceased were sent for its query to the doctor, vide Ex.P22, and Ex.P13 A respectively. Further, the knife seized from the appellant was also sent to the hospital for its query, vide Ex.P15A. PW10 Dr Parmanand Jaiswal

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gave the query report. The seized articles were sent for their FSL examination vide Ex.P36. Blood was found in blood stained soil (ArticleA), T-shirt of the deceased (Article C), T-shirt of the appellant (Article D), Jean Pant (Article E), and also Knife (Article F), Cotton pieces and finger nails of the deceased (Article G and I), and human blood was found on the Articles-C, D, E, G and I.

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From the aforesaid evidence available on record, it proves that on the date of incident, appellant and deceased were playing cards near Mini Stadium, some altercation took place between the appellant and deceased, in which the appellant gave multiple knife blows on the abdomen of the deceased, by which he received grievous injuries and succumbed to the injuries on 18.11.2020, during the treatment. When the incident was informed to his sister Lali Bhonsale, PW1, she met with the deceased in the hospital, and then, he disclosed about the incident and named the appellant, who assaulted him by knife, then, she lodged the named report against the appellant. The statement made by the deceased to his sister, PW1, relates to the incident and cause of death and at the time of giving statement to PW1, the deceased was in his fit state of mind, which the defence itself admitted while giving suggestion in Para-5 of the evidence of PW1.

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The statement of the deceased made to his sister is an admissible piece of evidence under Section 32(1) of the Indian Evidence Act, 1872. As oral dying declaration made by the deceased to his sister, which the

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appellant failed to rebut the same and failed to bring any material on the record to disbelieve that part of the evidence.

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Hon’ble Supreme Court in the matter of Parbin Ali Vs State of Assam , reported in (2013) 2 SCC 81 has held that:

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“15. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana[7] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.

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Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman (supra) by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two- Judge Bench decision in Prakash and another v. State of Madhya Pradesh[8] wherein it has been held as follows: -

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“In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the

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deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with.”

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For the reasons mentioned herein above, we find that learned trial Court is justified in holding the conviction of the appellant and sentencing the present appellant for the offence punishable under Section 302 of the IPC, for commission of murder of the deceased-Gaurav Bhonsale.

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In the result, the appeal fails and is hereby dismissed .

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27. The appellant shall undergo the remaining part of his sentence .

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Let a certified copy of this judgment along with the original record be sent to the trial Court concerned forthwith for necessary information and action, if any.

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Sd/Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha ) Judge Chief Justice

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padma

Sanjay Dewangan @ Mudwa v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Sanjay Dewangan @ Mudwa v. State of Chhattisgarh

Case brief

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