Services High Court
Case Details
1 CRA No. 1970 of 2019 HIGH COURT OF CHHATTISGARH AT BILASPUR ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.02.25 17:40:35 +0530 CRA No. 1970 of 2019 2025:CGHC:9194-DB NAFR sing out of judgment dated 15.11.2019 passed in st Additional Sessions (Ari Sessions Trial No.39/2017 by the 1 ) Judge, Mahasamund, Chhattisgarh. Magan Patel S/o Arjun Patel, aged about 38 years, R/o Baniyatora, Chowki, Tuhlu, Police Station Komakhan, District Mahasamund, Chhattisgarh. versus ... Appellant State of Chhattisgarh through the Station House Officer, District Mahasamund Police Station Komakhan, Chhattisgarh. For Appellant ... Respondent :- Ms. Sareena Khan, Advocate/Panel Lawyer appointed by Chhattisgarh Services High Court Committee. Legal For State-Respondent :- Mr. Afroz Khan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (21.02.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant is to the 2 CRA No. 1970 of 2019 legality, validity and correctness of the judgment dated 15.11.2019 passed by the 1st Additional Sessions Judge, Mahasamund, Chhattisgarh, in Sessions Trial No. 39/2017 by which the appellant herein has been convicted for offence under Section 302 of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 10,000/-; in default of payment of fine amount to undergo additional rigorous imprisonment for six months. Prosecution story:- 2. On 27.02.2016, at about 7:00 pm at village Baniyatora, Chowki, Tuhlu, Police Station Komakhan, District Mahasamund, Chhattisgarh, near the bank of Jonk river the appellant assaulted Jagdish Patel by hand and fist and also caused the neck/cervical injury by which he suffered grievous injuries and on the next day i.e. 28.02.2016 he died. The said incident was reported by Sheela Bai (PW-2), wife of the deceased, pursuant to which zero merg and zero
Facts
FIR were registered vide Exs. P/14 & P/15, respectively. Numbered merg intimation and numbered FIR were registered vide Exs.P/10 & P/11, respectively. Spot map and crime details form were prepared vide Exs.P/7 & P/17, respectively. Inquest proceedings (Ex.P/5) were conducted 3 CRA No. 1970 of 2019 and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/22) proved by Dr. Nagesh Patel (PW-16) cause of death was due to cervical injury and head injury and homicidal in nature. 3. After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 16 witnesses and exhibited 22 documents, whereas, the appellant in defence has examined 1 witness and exhibited 6 documents. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has 4 CRA No. 1970 of 2019 been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:-
Legal Reasoning
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in State of Shivaji Maharashtra2 where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. In order to base the conviction of the appellant, three incriminating circumstances have been found proved by the trial Court. First:- oral dying declaration made by the deceased to his wife Sheela Bai (PW-2) and sister Ashbati 2 (1973) 2 SCC 793 8 CRA No. 1970 of 2019 (PW-4). Second:- extra judicial confession made by the appellant before Yadavram (PW-5) and Devnarayan Patel (PW-7) in the panchayat meeting and third:- motive of offence, as per the prosecution case the deceased had tried for commission of offeence of murder of appellant’s father, therefore, the appellant herein assaulted the deceased by which he suffered grievous injuries and died. 13. Now, we will discuss the each of the incriminating circumstances one by one. Oral dying declaration:- 14. As per the case of the prosecution, the deceased had given the oral dying declaration to his wife Sheela Bai (PW-2) and his sister Ashbati (PW-4) on which the trial Court has placed reliance to base the conviction of the appellant. However, at this stage, the relevant decisions with regard to oral dying declaration deserves to be noticed. 15. In the matter of Darshana Devi v. State of Punjab3, 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 3 1995 Supp (4) SCC 126 9 CRA No. 1970 of 2019 declaration has to be trustworthy and free from every blemish and inspire confidence. 16. Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra4, 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. 17. Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur5, 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. 18. Recently, in the matter of Irfan @ Naka v. State of Uttar Pradesh 6 the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on 4 5 6 (2008) 11 SCC 232 (2011) 13 SCC 125 2023 SCC OnLine SC 1060 10 CRA No. 1970 of 2019 provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under: “63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.” 19. 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. 11 CRA No. 1970 of 2019 20. Now, the question for consideration would be whether the trial Court has rightly relied upon the oral dying declaration which is said to have been made by the deceased to his wife Sheela Bai (PW-2) & sister Ashbati (PW-4) to base the conviction of the appellant ? 21. Sheela Bai (PW-2), wife of the deceased, has stated before the Court that on the date of offence, when her husband Jagdish Patel (deceased) had gone to the market to bring vegetables, Patiram (PW-1) and Tularam (PW-3), villagers came to her house and informed her that the appellant and her husband were quarrelling near the bank of Jonk river, then she along with Aseen (not examined), sister of the deceased, Parmatma Patel (PW-10), nephew of the deceased, Madhulal Patel (PW-12) and Patiram Patel (PW-1) went on the spot and saw her husband lying unconscious in the river in injured condition. Thereafter, they brought Jagdish Patel to the house where she (PW-2) massaged with oil and after sometime he gained consciousness. On being asked, Jagdish Patel informed her (PW-2) that the appellant assaulted him and at that time Kunwar Bai (not examined), mother of the deceased, Ashbati (PW-4), sister of the deceased, Aseen (not examined), sister of the deceased were 12 CRA No. 1970 of 2019 present. She has also stated that blood was oozing out from the mouth and injuries of the deceased and he was suffering from pain over night. She further stated on the next day, in the morning, village meeting was held in which she along with her husband (deceased) were present and immediately after the meeting her husband died. 22. Similarly, Ashbati (PW-4), sister of the deceased, has made statement before the Court that when her brother (deceased) was brought to the house, he was unconscious and not speaking and blood was oozing out from the injuries and after sometime on being given some home treatment he gained consciousness and informed that the appellant had assaulted him and thereafter, he became unconscious. She has also stated that at the time of oral dying declaration, Sheela Bai (PW-2) and Ratni Patel (PW- 13) were also present. In paragraph No.4 of her statement, she has stated that in the village meeting her brother (deceased) was unconscious and after completion of that meeting her brother died. 23. Further, Parmatma Patel (PW-10) in his statement before the Court has stated that when he reached to the spot/bank of Jonk river, along with Sheela Bai (PW-2) and 13 CRA No. 1970 of 2019 Ratni Bai (PW-13), he had seen the deceased was lying unconscious. Similarly, Ratni Bai (PW-13), sister of the deceased, in her statement before the Court has stated that when she reached to the spot she found her brother unconscious and has not stated with regard to oral dying declaration which is said to have been given by the deceased. As such, from the aforesaid statements, it is quite vivid that when the deceased was noticed on the spot he was completely unconscious and he was not able to speak. Though, as per the statements of Sheela Bai (PW-2) Ashbati (PW-4) that after some home treatment he gained consciousness and made oral dying declaration to them that it is the appellant herein who assaulted him by which he suffered grievous injuries, but there is no evidence on record that the deceased was taken to the hospital to get the better treatment and he was only given the home treatment. As such, there is also no evidence on record that the deceased was in a fit state of mind at the time of making oral dying declaration which must be established by the prosecution that the deceased was in a fit state of mind at the time of making oral dying declaration to prove the offence against the appellant. Even otherwise, the oral dying declaration is a weak kind of evidence and it can only 14 CRA No. 1970 of 2019 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. 24. More particularly, Sheela Bai (PW-2), wife of the deceased and Ashbati (PW-4), sister of the deceased, both are the family members of the deceased, and as per the prosecution case there is a previous enmity between the appellant and the deceased, as the deceased was tried for commission of offence of murder of appellant’s father which has also been found established by the trial Court. Therefore, in absence of medical certificate that the deceased was in fit state of mind while making oral dying declaration and also due to previous enmity it would be unsafe to rely upon the statements of Sheela Bai (PW-2), wife of the deceased and Ashbati (PW-4), sister of the deceased, to base the conviction of the appellant that too 15 CRA No. 1970 of 2019 for offence under Section 302 of the IPC. As such, we hereby reject the finding of the trial Court with regard to oral dying declaration. Extra Judicial Confession:- 25. The trial Court has also relied upon the extra judicial confession to base the conviction of the appellant which is said to have been made by the appellant before Yadavram (PW-5) and Devnarayan Patel (PW-7). However, Yadavram (PW-5) in his statement before the Court has stated that he was present in the village meeting and the wife of the appellant’s informed in the meeting that the appellant assaulted her husband (deceased) then the villagers told the appellant that you should get the deceased to be treated to which he agreed and at that time, the deceased was unconscious and immediately after the meeting he died. In paragraph No.9, he has stated that the appellant had only admitted that he would provide the treatment to the deceased. Similarly, Devnarayan Patel (PW-7) in his examination in chief before has stated that in the village meeting the appellant had admitted that quarrel took place between the appellant and the deceased and he (appellant) agreed to provide treatment to the deceased, however, 16 CRA No. 1970 of 2019 in the cross-examination at paragraph No. 7 of his statement he admitted that though he was present in the meeting, but he could not hear what appellant replied and he only came to know the aforesaid fact from the the other villagers. As such, the extra judicial confessin which is said to have been made by the appellant to Yadavram (PW-5) and Devnarayan Patel (PW-7) is not true and voluntary. Even otherwise, the evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. Normally, a person would not make a confession to someone who is totally a stranger to him and in the present case as per the prosecution case the appellant had made extra judicial confession in the village meeting before the villagers. Furthermore, it is the settled principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra judicial 17 CRA No. 1970 of 2019 confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration. [See : Sahadevan and another v. State of Tamil Nadu 7 ]. 26. In the matter of Sahadevan (supra), their Lordships of the Supreme Court further considered the earlier decisions including Balwinder Singh v. State of Punjab8 and pertinently laid down the principle in paragraphs 15.1, 15.8 and 16 as under :- “15.1. In Balwinder Singh (supra) this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, 7 8 (2012) 6 SCC 403 1995 Supp (4) SCC 259 18 CRA No. 1970 of 2019 unambigous and should clearly convey that the accused is the perpetrator of the crime. The extra- judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. (Ref. Sk. Yusuf v. State of W.B.9 and Pancho v. State of Haryana10.) The principles 16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These percepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused: (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv)An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from 9 10
Arguments
6. Ms. Sareena Khan, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the offence in question. She would also submit that the extra judicial confession made by the appellant before Yadavram (PW-5) and Devnarayan Patel (PW-7) in the Panchayat meeting is not true and voluntary and also the oral dying declaration made by the deceased before his wife Sheela Bai (PW-2) and sister Ashbati (PW-4) is not reliable. She would further submits that though the motive of the offence has been found established by the trial Court as the deceased was tried for commission of offence of murder of appellant’s father, but merely on the basis of motive of offence and in absence of other incriminating piece of evidence, appellant could not be convicted that too for offence under Section 302 of the IPC. As such, the instant appeal deserves to be allowed and the appellant is entitled for acquittal on the basis of principles of benefit of doubt. 5 CRA No. 1970 of 2019 7. On the other hand, Afroz Khan, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doub. He would also submit that in the merg intimation and FIR lodged instantaneously after the incident, the name of the appellant has been involved. He would futher submit that the trial Court has rightly relied upon the oral dying declaration made by the deceased before his wife (PW-2) and sister (PW-4) and also on the extra judicial confession made by the appellant before the independent witnesses Yadavram (PW-5) and Devnarayan (PW-7) to base the conviction of the appellant. Even otherwise, a strong motive has also come in the evidence that the deceased was tried for commission of offence of murder of appellant’s father, and, therefore, the appellant has strong motive to commit the offence in question and, as such, the trial Court has rightly convicted the appellants for the aforesaid offence. Thus, the instant appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. 6 CRA No. 1970 of 2019 Discussion & Analysis :- 9. The first question, as to whether the death of the deceased was homicidal in nature, has been answered by the trial Court in affirmative relying upon the postmortem report (Ex.P/22) proved by Dr. Nagesh Patel (PW-16), which, in our considered opinion, is a correct finding of fact based on evidence available on record and which is neither perverse nor contrary to the record. Accordingly, we hereby affirm the finding of the trial Court holding that the death of the deceased was homicidal in nature. 10. Now, the question for consideration would be whether the appellants have assaulted the deceased? 11. The case of the prosecution is based on the circumstantial evidence and the trial Court has found incriminating circumstances established. The five golden principles which constitute panchsheel of the proof of a case based on circumstantial evidence have been laid down by their Lordships of the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 in paragraph 153 which state as under:- 1 (1984) 4 SCC 116 7 CRA No. 1970 of 2019 “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : Sahabrao Bobade v.