BASANT KUMAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This criminal appeal has been preferred by the appellant under Sec. 374(2) of the Code of Criminal Procedure, 1973 against impugned judgment dtd. 21/5/2013 passed by the 2nd Upper Sessions Judge, Rajnandgaon (CG) in Sessions Case No. 50/2012, whereby the appellant has been convicted and sentenced as under :-

(2.) Case of the prosecution in brief is that, in the night at 00.30 am of 1/6/2012, Sahdev Dhruve (P.W. 1) lodged first information report against appellant alleging therein that at 4 pm of 31/5/2012, his daughter had gone to old house to bring paddy, then the appellant assaulted her, hence she came weeping and told about the incident to him, therefore, to convene meeting in the village, he sent his wife Manbai to call village people and he himself went to call village Kotwar. At about 7.15 pm, when he returned to his house, then his daughter Sandhya was weeping and told him that appellant has assaulted her mother Manbai and brother Lokesh. Due to injuries sustained by Manbai, she had died and Lokesh had also sustained various injuries and blood was oozing from them. On being asked, Lokesh told him that appellant has assaulted him and his mother by means of knife and axe and fled away. Sandhya (P.W. 4) also told him this fact. Lokesh was taken to hospital at Ambagarh Chowki in Ambulance. Complainant Sahdev (P.W. 1) further stated that due to property dispute and doubt of playing witchcraft by Manbai, appellant has killed them.

(3.) Learned counsel for the appellant would submit that as per case of the prosecution, Sandhya (P.W. 4) is said to be an eye-witness of the instant case, but her statement is full of contradiction and improbabilities. The incident is alleged to have taken place at about 7.00 pm in night and there was no light, as per the eye-witness (P.W. 4), she had seen the incident from a distance, which as per Patwari Naksha Ex. P-16, is more than 49 fts. from the place of occurrence, hence to recognize a person in night from such a distance is not possible. More over, she has stated in cross-examination that height of bushes behind which she was standing and alleged to have seen the incident, was more than her height. It is further submitted that the so called eye-witness Sandhya (P.W. 4) is daughter and sister of deceased Manbai and Lokesh respectively, but she neither made any attempt to save them nor called villagers to save them. Her this conduct is very much unnatural. In this regard, she relied on judgment of Hon'ble Supreme Court in the case of Amar Singh - v- State (NCT of Delhi) [(2020) 19 SCC 165]. It is further submitted that learned trial Court has also relied on dying declaration Ex. P-8 of deceased Lokesh, who as per medical report, had sustained various injuries even on vital parts also and after 4 hours he was taken to Community Health Centre, Ambagarh Chowki, his condition was very much serious, which has also been admitted by the witnesses including the doctor and he succumbed to the injuries within 15 minutes while medical examination. She submits that there are contradictions in the evidence of witnesses as to what statement he made in his dying declaration, the dying declaration was neither recorded by any magistrate nor doctor, it is neither in question-answer form nor signed by the deceased, despite all these discrepancies, learned trial Court has relied on dying declaration Ex. P-8, which is against the settled preposition of law laid down by Hon'ble Supreme Court. Learned counsel further submits that alleged weapon axe and knife have also not been seized at the behest of appellant, the doctor has also not stated in his query report as to which injuries of both the deceased were caused by which weapon. Evidence of witnesses are full of contradictions and omissions. It is evident from the statement of complainant (P.W.1) and his daughter Sandhya (P.W. 4) that they have enmity with the appellant over the property dispute. Plea of alibi taken by the appellant has also been proved by the defence witnesses that at the time of alleged incident, the appellant had gone to village Khadkhadi for getting treatment of his daughter which was disbelieved by learned trial Court only because they did not say this fact to the police, whereas in the case of State of Haryana - v- Ram Singh [(2002) 2 SCC 426], Hon'ble Supreme Court has held that the issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of prosecution, because evidence of prosecution witnesses and defence witnesses stand on equal footing and no premium is to be given to prosecution witnesses. Therefore, if the evidence of defence witnesses is truthful and reliable, then reliance should be placed on the same. Further, in the case of Dudh Nath Pandey - v- State of UP [1981 (2) SCC 166], Hon'ble Supreme Court has observed that defence witnesses are entitled for equal treatment with those of the prosecution.