1 2025:CGHC:7948-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2008 of 2019 {Arising out of judgment dated 03.12.2019 passed in Sessions Trial No.H-24/ 2017 by the learned Additional Sessions Judge Bhatapara, District Baloda Bazar-Bhatapara} Arun Yadav @ Vicky Yadav, S/o. Santosh Yadav, Aged About 21 Years, R/o. Rikshaw Colony, Housing Board, Shahid Veernarayan Singh Ward, Bhatapara, Police Station- Bhatapara (Shahar), District- Balodabazar Bhatapara Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through- S.H.O. Police Station Bhatapara (Shahar), District- Balodabazar Bhatapara, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Anil Singh Rajput, Advocate For Respondent : Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.02.18 16:19:46 +0530 2 Judgment on Board (14.02.2025) Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant (A-2) under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 03.12.2019 passed by learned Additional Sessions Judge, Bhatapara, District Balodabazar- Bhatapara in Sessions Trial No.H-24/2017, by which, while acquitting the other co-accused Kumesh Yadav @ Nanki Yadav (A-1) for the offence under Section 201 of I.P.C., the appellant has been convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine amount, additional rigorous imprisonment for 3 months. 2. Case of the prosecution, in short, is that on 15.09.2017 at 8:30 P.M. at Rikshaw Colony, Police Station- Bhatapara (Shahar), the appellant herein along-with acquitted co- accused Kumesh Yadav @ Nanki Yadav and one juvenile co-accused Durgesh Sahu assaulted Ravi Vishwakarma (now deceased) by knife, by which he suffered grievous injuries and died and in order to screen themselves from the offence, threw the knife into the tank and thereby committed the offence. Preetam Dahariya (PW-2) reported 3 the matter to the police, pursuant to which, Merg Intimation was registered vide Ex.P-1, FIR was registered vide Ex.P-2, Inquest was conducted vide Ex.P-8 and dead body of deceased Ravi Vishwakarma was subjected to post- mortem, which was conducted by Dr. Rajendra Maheshwari (PW-20), who proved the post-mortem report vide Ex.P-27, according to which, cause of death was stated to be shock due to injury to right ventricle (right side of heart) and excessive hemorrhage and death was homicidal in nature. Pursuant to memorandum statement of the appellant Ex.P-14, weapon of offence i.e. knife has been seized from acquitted co-accused Kumesh Yadav @ Nanki Yadav vide Ex.P-13, which was sent for chemical examination to FSL along-with other seized articles and as per the FSL report (Ex.P-C1), no blood was found on the seized knife, however, human blood of 'O' blood group was found on the clothes of appellant and deceased. After due investigation, the appellant was charge-sheeted for the aforesaid offence to the jurisdictional criminal court and the case was ultimately committed to the Court of Sessions for hearing and disposal in accordance with law, in which, the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 4 3. In order to bring home the offence, prosecution examined as many as 21 witnesses and exhibited 28 documents along- with FSL report (Ex.P/C1) and the appellant-accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to Dx.D-4. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offence under Section 302 of I.P.C. and sentenced him to undergo life imprisonment, against which the present appeal has been preferred. 5. Mr. Anil Singh Rajput, learned counsel for the appellant, would submit that at the best the statement of Manisha Vishwakarma (PW-4) be taken as oral dying declaration but it is contradictory with the statement of Madhuri Vishwakarma (PW-3) who has only named the acquitted co- accused Kumesh Yadav and juvenile accused Durgesh Sahu and did not name the appellant herein. Furthermore, the deceased was not in a fit physical and mental state of mind to give the oral dying declaration as per the statement of Pitambar (PW-5), R.K.Sahu (PW-18) and Dr. Rajrendra Maheshwari (PW-20). As such, there is no evidence that the deceased was in a fit mental and physical state of mind to give the oral dying declaration and furthermore in similar 5 set of fact, Kumesh Yadav (A-1) who has been charged for the offence under Section 201 of I.P.C. has already been acquitted. Therefore, the appellant is entitled for acquittal on the ground of benefit of doubt and the appeal deserves to be allowed. 6. Mr. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt. He further submits that Manisha Vishwakarma (PW-4), sister of the deceased, reached immediately to the spot after the incident to whom deceased had given the oral dying declaration implicating the appellant herein and, as such, the trial Court has rightly convicted the appellant for the aforesaid offence and therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question for consideration as to whether the death of deceased Ravi Vishwarkarma was homicidal in nature, has been answered by the trial Court in affirmative relying upon the post-mortem report Ex.P-27, proved by Dr. Rajendra Maheshwari (PW-20), according to which, cause 6 of death was stated to be shock due to injury to right ventricle (right side of heart) and excessive hemorrhage and death was homicidal in nature, which in our considered opinion is a correct finding of fact based on evidence available on record, it is neither perverse nor contrary to the record and accordingly, we hereby affirm the said finding. 9. The case of the prosecution is not based on direct evidence, it is based on oral dying declaration given to Manisha Vishwakarma (PW-4) who along-with Madhuri Vishwa- karma (PW-3) [both mother & sister of deceased] reached immediately to the spot to whom deceased had given oral dying declaration, which has been relied upon by the prosecution and accepted by the trial Court to base the conviction. Furthermore, on the clothes of appellant and deceased, human blood of 'O' blood group was found though in Article-G, which was seized pursuant to memorandum statement of the appellant from the acquitted co-accused Kumesh Yadav, blood was not found. 10. Before proceeding further with this matter, it would be appropriate to notice the relevant decisions rendered by Their Lordships of the Supreme Court with regard to oral dying declaration. 7 11. 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. 12. 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. 13. 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 be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence. 1 1995 Supp (4) SCC 126 2 (2008) 11 SCC 232 3 (2011) 13 SCC 125 8 14. 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. 15. 15. Coming to the facts of the present case, it is the case of the prosecution that immediately after the incident, mother of the deceased Madhuri Vishwakarma (PW-3) along-with her daughter Manisha Vishwakarma (PW-4) reached to the spot and they had seen the deceased lying with pool of blood having knife injury on the neck and at that time, deceased Ravi Vishwakarma was unconscious and on being enquired, he had given the oral dying declaration. However, mother of the deceased (PW-3) and sister of the deceased (PW-4) both reached to the spot together and given two kinds of oral dying declaration. Madhuri Vishwakarma (PW-3), mother of the deceased, has stated that when she 9 reached to the spot and enquired from her son Ravi, then he informed that juvenile co-accused Durgesh Sahu caught hold of him and acquitted co-accused Kumesh Yadav assaulted him by knife and his son was crying for the life. Thereafter, Chhedu Sahu and Veeru Dhruv taken the deceased to the hospital wherein he succumbed to the injuries. In para 7, she stated that the police statement under Section 161 Cr.P.C. i.e. Ex.D-1 was taken after 10 days of the incident and she did not report the matter to the police. As such, Madhuri Vishwakarma (PW-3), mother of the deceased, has not given any oral dying declaration implicating the appellant herein and she implicated Kumesh Yadav who has already been acquitted by the trial Court and her statement has been taken after 10 days of the incident and she did not report the matter to the police. 16. Now, coming to the statement of Manisha Vishwakarma (PW-4), sister of the deceased, who immediately reached to the spot along-with her mother Madhuri Vishwakarma (PW-3), she stated that deceased had given oral dying declaration that Durgesh Sahu (juvenile co-accused), Nanki Yadav (acquitted co-accused) and Vicky Yadav have assaulted him by knife. However, this witness has implicated the appellant herein Arun Yadav that he had assaulted the deceased by knife and she has also stated 10 that she is not the witness to the incident, she reached immediately after the incident and found that her brother (deceased) was lying with pool of blood. She further stated that her statement was taken by the police after 10 days of incident and admittedly she has not lodged the report. However, Manisha Vishwakarma (PW-4) has stated in para 6 that on account of hole in the neck of his brother (deceased), they have not administered water to him when he asked for water. 17. As per the decision of the Supreme Court in Darshana Devi (supra), Arun Bhanudas Pawar (supra) & Walkhom Yaima Singh (supra), the oral dying declaration is a weak kind of evidence and further the maker thereof must be in a fit medical condition to make the dying declaration. In this regard, the statement of Pitambar (PW-5) can be noticed in which in paragraph 5, it has clearly been stated that the deceased at the time of incident was not able to drink water as water consumed was coming out from the neck where he had suffered the injury and deceased was not able to speak properly. Similarly, Sushila Dhruv (PW-8) has stated that she has administered water to the deceased after taking from nearby shop and she stated that deceased was not able to drink water on account of injury on the neck. Similarly, R.K.Sahu (PW-18) has stated that on 11 account of injury in the neck, deceased was not able to speak. Similarly, Dr. Rajendra Maheshwari (PW-20) in the cross-examination has stated that the deceased has suffered serious injuries in his neck, on account of which, he was not able to speak. As such, apart from the oral dying declaration, which is week piece of evidence and which is even contradictory, as the mother of deceased Madhuri Vishwakarma (PW-4) did not say that the appellant has assaulted the deceased, she stated that the acquitted co-accused Kumesh Yadav has made an assault and furthermore, there is no evidence that the deceased was in a fit medical condition to make the oral dying declaration. Whereas, it is clear from the statement of Pitambar (PW-5), Sushila Dhruv (PW-8), R.K.Sahu (PW-18) & Dr. Rajendra Maheshwari (PW-20) that deceased was not able to drink water and he was not in a position to speak. As such, in view of the aforesaid facts, it would be risky to accept the oral dying declaration as basis for conviction of offence under Section 302 of I.P.C. 18. Furthermore, the recovery of weapon of offence i.e. knife was seized on the memorandum statement of the appellant from the acquitted co-accused Kumesh Yadav. However, the memorandum witness Rajesh @ Billu Dhruv (PW-16) and Manish Verma (PW-21) both have turned hostile and 12 they have not supported the case of the prosecution. Even otherwise, the knife has been seized from the acquitted co- accused Kumesh Yadav, it was not seized from the possession of the appellant and furthermore, though human blood of 'O' blood group was found on the clothes of the appellant and deceased, but it could not be proved that the appellant was also having the same blood group. In that view of the matter, simply because the human blood of 'O' blood group was found on the clothes of the appellant and deceased, the appellant cannot be held guilty and convicted for the offence under Section 302 of I.P.C. As such, the appellant is entitled for acquittal on the basis of benefit of doubt. 19. Accordingly, the impugned judgment of conviction and order of sentence dated 03.12.2019 is set aside. The appellant stands acquitted giving him benefit of doubt from the charge framed against him for the offence punishable under Section 302 of Indian Penal Code. The appellant is in jail since 16.09.2017, therefore, we direct that he be released from jail forthwith, if not required in any other offence. 20. In the result, the appeal is allowed. 13 21. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ashok