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2014 Supreme(Chh) 350
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NAVIN SINHA AND INDER SINGH UBOWEJA, JJ.
Mohammad Hasan and Ors. - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal Nos. 338, 357, 400, 404, 405, 413, 447 and 606 of 2011
Decided On : 10.10.2014
For Appellant/Petitioner/Plaintiff:P.K.C. Tiwari, Sr. Advocate, Shashi Bhushan, V.C. Ottalwar, Maneesh Sharma, Sunil Otwani, Y.C. Sharma, Dinesh Tiwari and Kiran Jain, Advocates
For Respondents/Defendant:Chitranjay Patel, Government Advocate
Headnote:
Evidence Act - Section 27 - Arms Act - Section 25(1)(a) – Indian Penal Code - Section 302/149 – Criminal Procedure Code - Section 293 – Offence of murder - Life imprisonment – Appeal against conviction - Deceased was fatally assaulted and PW 18 Singh injured in a common assault Both were taken to Hospital for treatment - Exhibit P2 was given by PW 2 at hospital stating that while he was talking to deceased accompanied by others came and assaulted the deceased due to previous enmity with knife rod legs & fists causing injuries on head chest left rib leading to death - First Information Report was given by PW 2 same day at Hospital - Witness stated that were mouthing abuses - Deceased slapped twice leading to an altercation - Witness was talking to deceased PW 18 and two others when accompanied with their friends came armed with and rod - Assaulted deceased assaulted PW 18 on head with a rod and the latter fell down - Someone amongst them assaulted deceased with a knife - Tariq dragged deceased by his collar towards Sunny mobile shop - They all then assaulted deceased legs and fists and seeing he was bleeding all went away – Held, Court shall now take up for consideration such of appellants who though named in Exhibit P2 P3 and F.I.R. find no reference whatsoever during deposition in Court of PW 2 and PW 18 - Both witnesses talked of named appellants being accompanied by three to four masked persons who also assaulted - If their faces were covered identification was not possible - Such of appellants have to be given the benefit of doubt - Confession under Section 27 of the Evidence Act is not substantive evidence but only corroborative evidence - In absence of proper evidence it will be impermissible and unsafe to convict on basis of alleged confession and recovery only - It was observed - It is true that simply on recovery of stolen articles no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery - But culpability for the aforesaid offences will depend on facts and circumstances of case and nature of evidence adduced - It has been indicated by this Court that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances - It has also been indicated that where only evidence against accused is recovery of stolen properties then although the circumstances may indicate that the theft and murder might have been committed at the same time it is not safe to draw an inference that the person in possession of the stolen property had committed the murder - A note of caution has been given by this Court by indicating that suspicion should not take place of proof - Appeal Partly Allowed
Navin Sinha, J.
1. The appellants stand convicted on 15.4.2011 by the 7th Addl. Sessions Judge, Raipur, in Sessions Trial No. 110 of 2010 under Section 148 IPC to three years rigorous imprisonment with fine of Rs. 1,000/- each; to life imprisonment under Section 302/149 IPC with fine of Rs. 5,000/- each; to three years of rigorous imprisonment under Section 323/149 IPC with fine of Rs. 1,000/- each; to three years of rigorous imprisonment under Section 25(1)(a) Arms Act with fine of Rs. 1,000/- each and to three years rigorous imprisonment under Section 27 of the Arms with fine of Rs. 1,000/- each. The sentences have been directed to run concurrently and the fine to be deposited by each in lump sum. For each default in deposit of fine they will have to undergo further rigorous imprisonment of three months each (total fifteen months). From the fine deposited, Rs. 50,000/- has been directed to be paid as compensation to PW 1, father of the deceased Kailash Gangwani. Accused Badri was declared a juvenile and his trial separated to the Juvenile Board. Accused Tariq Khan was absconding and was tried separately. He has been acquitted by judgment dated 30.9.2013.
2. On 6.1.2010 deceased Kailash Gangwani was fatally assaulted and PW 18, Jatin Aakash Singh, injured in a common assault at 9.45 p.m. Both were taken to the Vardan Hospital for treatment. Merg intimation. Exhibit P2, was given at 22.30 hours by PW 2, Rakesh Mandal at the hospital stating that while he was talking to the deceased, Tariq Musalman, Sandeep Channa, Rajan @ Machi, Hasan Musalman, Shailendra Rajput, Badri, Babu, Kapil Sindhi and Dhiraj accompanied by others came and assaulted the deceased due to previous enmity with knife, danda, rod, legs & fists causing injuries on the head, chest, left rib leading to death. The Dehati First Information Report was given by PW 2 the same day at 22.45 hours at the Vardan Hospital. The witness stated that Badri and Shailendra Rajput were mouthing abuses. The deceased slapped Shailendra Rajput twice leading to an altercation. The witness was talking to the deceased, PW 18 and two others when about 9:45 pm, Tariq, Sandeep Channa, Shailendra Rajput, Badri, Kapil Sindhi, Babu @ Sarveshwar, Dhiraj accompanied with their friends came armed with lathi and rod. Tariq, Badri, Hasan and others assaulted the deceased. Hasan assaulted PW 18 on the head with a rod and the latter fell down. Someone amongst them assaulted the deceased with a knife. Tariq dragged the deceased by his collar towards Sunny mobile shop. They all then assaulted the deceased with lathi, danda, legs and fists and seeing he was bleeding all went away. The witness further wrote that he had read the report which was correctly recorded as per his statement and then signed the same.
3. F.I.R. No. 11/2010 was lodged by PW 2 on 7.1.2010, Exhibit P60, reiterating the statements in Exhibit P3. PW 2 was an eye witness and PW 18 was an injured witness.
4. The postmortem of the deceased, Exhibit P33, was conducted on 7.1.2010 by PW 11, Dr. Ullhas Gonade who noticed the following injuries on the person of the deceased:--
(a) Transverse cut injury in middle of the head, 4 cm x 8 cm x bone deep;
(b) Scratch on the middle of the right side of the head, 1 cm x 2 cm;
(c) Scratch 3/1 cm in the middle line on the right side of the head;
(d) On the outer left side of the head scratch measuring .5 cm x 1 cm;
(e) Scratch measuring 0.6 cm x 1 cm below the right eyebrow;
(f) Transverse scratch on the external area on the right side of the head, 5 cm x 2 cm;
(g) Scratch on the nose 1 cm x .3 cm;
(i) On the front side of the chest near the middle, there was a piercing injury measuring 3 cm x 1.8 cm zigzag. It had slashed the 3rd vertebrae and entered the right lung pericardium heart, 4 cm in length. One injury to the heart was round and other pointed of through heart; &
(j) On the external area of the left side of the chest pointed injury measuring 3.5 cm x 1.5 cm which had cut across the 3rd vertebra
