Dauwa alias Prakash Rathore vs State of Chhattisgarh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Chh) 386

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
SANJAY K. AGRAWAL, N.K. CHANDRAVANSHI, JJ.
Dauwa alias Prakash Rathore - Appellant
Versus
State of Chhattisgarh - Respondent
Criminal Appeal No. 1074, 1075 of 2012
Decided on : 28-11-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Shashi Bhushan Tiwari, Advocate
For the Respondents: Mr. Ashish Tiwari, G.A.

Headnote:
Indian Penal Code,1860 – Section 302/149 and 148 – Criminal Procedure Code, 1973 - Section 437A - Evidence Act - Section 30 – Offence of Murder – Unlawful assembly – Charged - Case of prosecution, in brief, is that in intervening night at about 12:30 AM in the premises of Hariyali Heritage Bar and Restaurant, Janjgir within ambit of Police Station Janjgir, all 7 accused persons constituted an unlawful assembly and in furtherance of their common object, they assaulted (P.W.-16) and injured them and thereafter, Dauwa (A-7) inflicted a gunshot upon Abhishek Singh alias Monu and murdered him with an illegally possessed country-made pistol and thereby, committed the aforesaid offences - Applicant (P.W.-15), manager of Big Palace Hotel and his brother-in-law (deceased) used to stay together - At about 3 PM, he received a phone call from (P.W.-6) who informed him that (deceased) and (P.W.-16) had gone to Hotel Hariyali Heritage and since they did not have money to pay bill, they are not allowing to leave and then (P.W.-6) further informed him to go to Hotel Hariyali Heritage alongwith money to pay the bill - Whether recovery of country made pistol and cartridge from the possession of appellant/accused Dauwa (A-7) vide Ex. P/27 pursuant to his memorandum statement (Ex. P/26) has been proved in accordance with law ?– Held, , it is quite vivid that test identification parade conducted by prosecution vide Ex. P/1 to P/3 with aid and assistance of, (P.W.-1) and (P.W.-10) has not been found duly proved in accordance with law as identifying prosecution witnesses namely (P.W.- 6), (P.W.-16) and (P.W.-17) have turned hostile and have not supported the case of the prosecution and from testimony (P.W.-1) and (P.W.-10), it could not be proved that they have only conducted proceeding, test identification parade, even if it is a weak piece of evidence, has not been proved in accordance with law by the prosecution - Since, they are already on bail, they need not surrender, however, their bail bonds shall remain in force for a period of six months in view of provision contained under Section 437A of CrPC - Moreover, conviction and sentence of the appellant/accused (A-7) for offence punishable under Section 148 and 149 of IPC are hereby set aside, however, his conviction for offence punishable under Section 302 of IPC and Sections 25(1-B) r/w S. 3 of Arms Act is hereby maintained. Since he is on bail, we hereby direct appellant/accused (A-7) to surrender forthwith, failing which he will be apprehended.- Criminal Appeal No. 1074/2012 is allowed in part whereas Criminal Appeal No. 1075/2012 is allowed in toto.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Since both of these criminal appeals have been filed by the appellants assailing the legality, validity and correctness of impugned judgment dated 21/11/2012 passed by learned Additional Sessions Judge, Janjgir in Sessions Trial No. 3/2012, therefore, these appeals have been clubbed together, heard together and are being decided by this common judgment.

2. Criminal Appeal No. 1074/2012 has been preferred by the sole appellant/accused namely Dauwa alias Prakash Rathore (A-7) against the impugned judgment whereby he has been convicted and sentenced as follows :-

Conviction	Sentence
U/s 302/149 of IPC	Life imprisonment with fine of Rs. 1000/-, in default of payment of fine, R.I. for 6 months
U/s 148 of IPC	R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine, S.I. for 3 months
U/s 25(1-B) r/w S. 3 of Arms Act, 1959	R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine, R.I. for 3 months

3. Criminal Appeal No. 1075/2012 has been preferred by the appellants/accused persons namely Ganpat Chauhan (A-1), Sujay Bairagi (A-2), Anand Prasad (A-3), Raj Kumar (A-4), Suraj Khunte (A-5) and Rajendra Kumar (A-6) against the impugned judgment whereby they have been convicted and sentenced as follows :-

Conviction	Sentence
U/s 302/149 of IPC	Life imprisonment with fine of Rs. 1000/-, in default of payment of fine, R.I. for 6 months
U/s 148 of IPC	R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine, S.I. for 3 months

4. Case of the prosecution, in brief, is that in the intervening night of 9-10/10/2011 at about 12:30 AM in the premises of Hariyali Heritage Bar and Restaurant, Janjgir within the ambit of Police Station Janjgir, all the 7 accused persons constituted an unlawful assembly and in furtherance of their common object, they assaulted Abhishek Singh alias Monu and Laxmi Yadav (P.W.-16) and injured them and thereafter, Dauwa (A-7) inflicted a gunshot upon Abhishek Singh alias Monu and murdered him with an illegally possessed country-made pistol and thereby, committed the aforesaid offences.

5. Further case of the prosecution is that applicant Sanjay Kumar Singh (P.W.-15), manager of Big Palace Hotel and his brother-in-law Abhishek Singh Chandel (deceased) used to stay together. On 09/10/2011, at about 3 PM, he received a phone call from Prem Singh (P.W.-6) who informed him that Abhishek Singh (deceased) and Laxmi Yadav (P.W.-16) had gone to Hotel Hariyali Heritage and since they did not have the money to pay bill, they are not allowing Abhishek Singh to leave and then Prem Singh (P.W.-6) further informed him to go to Hotel Hariyali Heritage alongwith money to pay the bill. Thereafter, Sanjay Kumar Singh (P.W.-15) reached Hotel Hariyali Heritage and when he was paying the bill after taking it from the Manager, he saw that accused Dauwa (A-7) along with two to three other persons standing in the counter were abusing his brother-in-law Abhishek Singh (deceased) very badly and were assaulting him and thereafter, Dauwa (A-7) made an assault on the head of the deceased with a sharp edged weapon due to which blood started oozing out of the head of the deceased. After seeing this, Sanjay Kumar Singh (P.W.- 15) gave information of the incident to Janjgir Police Station. When police reached the spot, they found that Abhishek Singh was lying on the floor in an injured condition and immediately thereafter, he was taken to District Hospital, Janjgir for treatment wherein MLC was conducted by Dr. Ramayan Singh (P.W.-11), who found that he was in an unconscious state and was in a serious condition. He further found that there was a state wound on the head of the deceased admeasuring about 1 inch x 1 inch and it was skull deep.

6. Sanjay Kumar Singh (P.W.-15) lodged first information report (Ex. P/54) against t