- (1.) The present appeal is directed against the judgment of the High Court of Judicature at Chattisgarh at Bilaspur dated 15th November, 2006 wherein the High Court maintained the judgment of conviction and order of sentence passed by the learned Fourth Additional Sessions Judge, Durg, Chattisgarh, convicting the appellants for an offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and awarding life sentence to them. Though there were three accused before the trial court, the present appeal has been preferred only by appellant/accused No.1, Bable @ Gurdeep Singh. While impugning the judgment under appeal, the learned counsel appearing for the appellant has, inter alia, but primarily raised the following arguments: 1. The injuries found on the person of the accused have not been explained by the prosecution. The deceased having suffered serious injuries that are stated to have been inflicted by the accused, could not have been in a condition to inflict any injuries upon the person of the accused. This leads to the conclusion that the accused had been assaulted by the deceased before the deceased himself suffered the injury. The injuries were admittedly found on the person of the accused. The prosecution has failed to explain such injuries. This failure on the part of the prosecution renders the story of the prosecution not only improbable but unbelievable as well. 2. Assuming, though not admitting, that the incident has been proved, the accused was entitled to the right to private defence as he was attacked and he caused the injuries in the process of protecting himself. Thus, the contention is that the accused/appellant cannot be convicted under Section 302 IPC and his conviction under Section 302/34 IPC cannot stand the scrutiny of law. 3. Further the appellant states that the informant Tariq Shakil, PW1, had turned hostile. The FIR not being a substantive piece of evidence, would discredit the entire case of the prosecution. The Courts, in the judgments under appeal, have failed to appreciate the evidence in its proper perspective and hence the judgments are liable to be set aside. 4. Lastly, the dying declaration is not corroborated by other prosecution witnesses and no details have been furnished therein. As such the Courts could not have relied upon the said dying declaration.
(2.) Before we proceed to deliberate upon the legal and factual aspects of the case with reference to the arguments advanced, it would be necessary to refer to the case of the prosecution in brief.
(3.) On 14th May, 1999 at about 10.15 p.m., when Tariq Shakil, PW1, was sitting in his S.T.D.-P.C.O. shop situated at New Kursipur, Gurunanak Chowk, one Guddu @ Jiten Soni, PW12, came there and informed PW1 that the accused Sardar Bable is quarrelling with Ishwari Verma in front of his shop. Upon hearing this, PW1 closed his shop and went along with PW12 to the place of occurrence. The accused Bable was carrying a sword in his hand and was running towards them. Being frightened, both of them went towards a street. After sometime, there was a noise that the accused Bable had caused injuries to Ishwari Verma and the said victim was lying in injured condition. He was removed to BSP Hospital, Sector 9, by his uncle Balwant Verma, PW14, where he was admitted. Dr. A.D. Banerjee, PW2, had examined him and declared him brought dead. A written report in this regard was prepared being Ex.P5. The matter was reported to Bhilai City Police Station. Even a telephonic message was sent. Sub-Inspector, Suresh Bhagat, PW10, posted at that Police Station registered the case under Section 174 Cr.P.C., Ex.P-22. On the same day at about 12.15 a.m. in the night, PW1 got the First Information Report (FIR), Ext.P-1, of the incident registered at Police Station Kursipur and a case under Section 302 IPC was registered. The Investigating Officer, Sub-Inspector P.N. Singh, PW13 took up the investigation and went to the site. He prepared the site plan, Ex.P14, seized blood-stained earth, plain earth and a piece of chain of the watch and for that he prepared a seizure memo Ex.P-20. He also prepared the inquest report vide Ex.P4, in presence of the Panchas. The post mortem examination of the body of the deceased was performed by Dr. S.R. Surendra, PW5 at 11.30 a.m. on 15th May, 1999. The post mortem report was submitted vide Ext.P-8 which noticed the following injuries on the body of the deceased: - "1. Incised wound 5 c.m. x 1/2 c.m. upto bone deep red colour longitudinal on anterior its and middle of scalp. 2. Incised wound 8 c.m. x 1 c.m. up to bone deep red colour. Margin everted oblique anterior and right side of scalp. 3. Incised wound 3 c.m. x 1/4 c.m. 1/4 c.m. above left ear. 4. An abrasion 9 c.m. x 1/2 c.m. long below left ear. 5. An abrasion 6 c.m. x 1/2 c.m. neck colored below the first wound. 6. Incised wound 5 c.m. x 1/2 c.m. x 1/2 c.m. on left shoulder laterally. 7. Incised wound 1 c.m. x 1/2 c.m. x 1/2 c.m. on left shoulder anteriority. 8. Amputation middle finger from terminal phalages. 9. Ring finger also cut from terminal phalages from palmer aspect only. 10. Incised wound 8 c.m. x 1/2 c.m. x 1/2 c.m. red coloured on upper part and lateral surface of right arm. 11. Abrasion 2 c.m. x 2 c.m. red coloured on lower part and lateral surface of right upper arm. 12. Incised wound 7 c.m. x 1/2 c.m. x 1/2 c.m. lateral surface of elbow. 13. Incised wound 15 c.m. x 4 c.m. x 3 c.m. deed exposed tendon and blood vessel visible through wound. On lower part and medial surface of right fore arm. 14. Incised wound of 4 c.m. x 4 c.m. between right hand thumb and index finger. Bone of index finger visible through the wounds. 15. Perforated wound directed from behind, anteno laterally, 4 c.m. above the left knee joint. Wound entry cut of post medially size 4 c.m. x 3 c.m. oblique. On dissection popliteal artery is found cut." ;