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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
THOTTATHIL B. RADHAKRISHNAN, RAJENDRA CHANDRA SINGH SAMANT, JJ.
Chotelal Nishad, S/o Samaru Nishad - Appellant
Versus
State of Chhattisgarh, Through D.M. Raipur - Respondent
Criminal Appeal No. 19, 30, 43, 46, 186 of 2002 & Acquittal Appeal No. 447 of 2010
Decided On : 13-07-2017
Arms Act – Sections 25, 27 – Code of Criminal Procedure, 1973 – Section 313 – Penal Code, 1860 – Sections 212, 109, 302, 120, 34 – Order of Acquittal – By this judgment, five appeals being Criminal Appeals and Acquittal Appeal and Criminal Revision are being disposed of since they arise out of one incident and one judgment of the trial court passed by the 3rd Additional Sessions Judge, Raipur in Sessions Trial – Held, Conviction of appellants under Section 302/34, 302, 201/302 and 302/34 of IPC is not sustainable. – The conviction of appellants Chhotelal Nishad, Danesh and Ratan Khattri under Section 25 of the Arms Act needs no interference. Conviction of appellant Danesh under Section 27 of Arms Act is without basis, as there is no ocular or substantial evidence against the appellant Danesh that he used the revolver seized from him for commission of offence, hence, his conviction under Section 27 of Arms Act, is also not sustainable. – Such conviction and sentence for offence punishable under Section 25 of Arms Act as imposed by trial Court are confirmed. – His conviction and sentence for other offences are vacated and he is acquitted of the charges on those counts. – Court is of the considered view that this appeal should be allowed in part. Criminal Appeal of Chhotelal Nishad, Criminal Appeal of Danesh and Criminal Appeal of Ratan Khattri is allowed in part. Conviction under Section 302/34, 302 and 302/34 of IPC recorded against these appellants and the sentence awarded, are set aside. – The conviction of appellants Chhotelal Nishad and Ratan Khattri under Section 25 of the Arms Act and the order of sentence in the impugned judgment, is upheld. – The conviction of appellant Danesh under Section 27 of the Arms Act, is set aside but, his conviction under Section 25 of the Arms Act, is upheld. – The sentence awarded to him RI for a period of 5 years for combined the offences under Section 25 and 27 of Arms Act, is set aside and instead appellant- Danesh is awarded sentence of R.I. for a period of 3 years along with fine of Rs.100/-, in default of payment of fine he shall be required to further undergo R.I. for a period of 15 days. Criminal Appeal No. 43 of 2002 of Pankaj Das @ Pinku is allowed vacating the conviction and sentence imposed on him and appellant is acquitted of all the charges. – Ordered Accordigly
RAJENDRA CHANDRA SINGH SAMANT, J.
1. By this judgment, five appeals being Criminal Appeals No. 19 of 2002, 30 of 2002, 43 of 2002, 46 of 2002 and Acquittal Appeal No. 447 of 2010 and Criminal Revision No. 186 of 2002 are being disposed of since they arise out of one incident and one judgment of the trial court dated 29.11.2001 passed by the 3rd Additional Sessions Judge, Raipur in Sessions Trial No. 113 of 1998.
2. Chhotelal Nishad-Appellant in Criminal Appeal No. 19 of 2002, Appellan- Danesh in Criminal Appeal No. 30 of 2002, Appellant-Pankaj Das @ Pinku in Criminal Appeal No. 43 of 2002 and Appellant-Ratan Khattri in Criminal Appeal No. 46 of 2002, have been convicted and sentenced as under:
| Appellant | Conviction Under Section | Sentence |
| Chhotelal Nishad | 302 read with Section 34 IPC 25 of the Arms Act | Life imprisonment with fine of Rs. 1000/-. In default of payment of fine, 2 months R.I. Imprisonment for 3 years with fine of Rs. 100/-. In default of payment of fine, 15 days imprisonment. |
| Danesh | 302 IPC 25 and 27 of the Arms Act | Life imprisonment with fine of Rs. 1000/-. In default of payment of fine, 2 months R.I. Rigorous imprisonment for 5 years with fine of Rs. 500/-. In default of payment of fine, 1 month rigorus imprisonment. |
| Pankaj Das @ Pinku | 201 read with Section 302 IPC | Rigorus imprisonment for 3 years and fine of Rs. 1000/-. In default of payment of fine, rigorous imprisonment for two months. |
| Ratan Khattri | 302 read with Section 34 IPC 25 of the Arms Act | Life imprisonment with fine of Rs. 1000/-. In default of payment of fine, 2 months R.I. Imprisonment for 3 years with fine of Rs. 100/-. In default of payment of fine, 15 days imprisonment. |
3. The case of the prosecution is that deceased Devendra Singh Khalsa had enmity with acquitted accused Gurucharan Singh Hora and Pappu @ Harmindar Singh Hora and there had been history of criminal incidents. Acquitted accused Gurucharan Singh Hora and Pappu @ Harmindar Singh Hora had first conspired with Rajju @ Hanif (PW-5), Panchu (PW-6), Rafiz Ahmad (PW-7), Nabbu and Satish for committing murder of deceased Devendra Singh Khalsa by providing them with vehicle, money and weapons, which could not be executed by these persons. Later on, acquitted accused Gurucharan Singh Hora and Pappu @ Harmindar Singh Hora conspired with Pankaj Das @ Pinku, Danesh, Ratan Khattri and Chotelal Nishad for committing murder of Devendra Singh Khalsa. For this purpose, weapon and money were made available to these persons and they were also assured of other benefits by them. On the date of incident i.e. 20.11.1997, deceased Devendra Singh Khalsa had been to Shastri Market for buying a pair of shoes with his relative Bittu @ Jagjit Singh (PW-50). Bittu (PW-50) remained sitting in the vehicle while deceased Devendra Singh Khalsa alone went towards the shop of the uncle of Mohd. Asgar (PW-2). Thereafter, both of them went to another shop at Bans Tal and after purchase of the shoes, while both were returning back towards Shastri Chowk, Appellants-Accused Pankaj Das @ Pinku, Danesh, Ratan Khattri and Chotelal Nishad arrived at the place of incident on a motor-cycle Hero Honda, bearing registration No. MP 23-A/6525 and on a Scooter bearing registration No. MP 26-B/2174. On a signal being given by the Appellant-Pankaj Das, the other Appellants-accused Danesh and Chotelal Nishad who were armed with revolver and Appellant-Ratan Khatri, who was armed with a knife, with an intention to commit murder, assaulted deceased Devendra Singh Khalsa. Appellant-Danesh fired a shot after which deceased Devendra Singh Khalsa fell down. Thereafter, all of them fled from the spot. This incident was witnessed by Mohd. Asgar (PW-2), Sewaram (PW-8), Gurunarayan Tiwari (PW-9), Satish (PW-10),
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