2022 Supreme(Chh) 419

IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Goutam Bhaduri, N.K. Chandravanshi, JJ.
Sanni Tharwani S/o Raj Kumar Tharwani and ors. - Appellants
Versus
State Of Chhattisgarh Through The Police Station – Respondent
CRA No. 458, 167, 494, 641 of 2020
Decided On : 12-12-2022

Headnote:

Indian Penal Code,1860 - Section 149 and 302 – Criminal Procedure Code,1973 - Section 161 and 162 - Offence of Unlawful assembly – Murder - Charged - As per prosecution case, at about 10.30 pm (PW-9) received a phone call from one (since deceased) that he is standing near Sindhi Colony and he called him - When he reached there, he saw deceased was standing at his motorcycle near (A/1), (A/3) , (A/4), (A/5) and (A/6) were sitting - When (PW-9) was talking to deceased at that time (A/1) went out saying that he will come back within five minutes and thereafter, came with (A/2). Subsequent to it, behind (A/1) came with a sword and said to deceased that he talks too much; abused him by filthy language saying that I will kill you and started assaulting deceased by way of sword - At that time, (A/2) took out a gupti and started assaulting deceased and along with him (A/3), (A/4), (A/5) and (A/6) in furtherance to carry out object also started assaulting deceased by way of sword and desi katta (pistol) - On basis of information given (P.W.9), (Ex.P/2) was registered wherein entire incident was narrated and thereafter FIR was registered - On memorandum of accused, weapon of offence i.e. sword, knife and air-pistol were seized - Whether it is against general tenor of evidence given by witnesses and whether earlier evaluation of the evidence is shaken, as to render it unworthy of belief – Held, Court must note observations of learned trial Judge which were to effect that statements of prosecution witnesses under Section 162 CrPC were conspicuously silent on this part, thereby implying that investigating officer did not care to inquire about it during investigation - Light of position of law examined above vis-à-vis effect of lapses in investigation, Court are not prepared to dispense with accusation merely on this point especially when trial court concluded that there was no material contradiction in statements of PW 1 and PW 5 - Plea of alibi postulates physical impossibility of presence of accused at scene of offence by reason of his presence at another place - Plea can, therefore, succeed only if it is shown that accused was so far away at relevant time that he could not be present at place where crime was committed - Witnesses P.W.9 and P.W.17 on other hand stated presence of accused Vishal and Sagar in scene of crime - Photographs of CCTV footage though were produced, admissibility of same becomes a question with regard to their presence - For foregoing discussion, Court are of opinion that prosecution has established guilt of appellants beyond reasonable doubt and their conviction under various sections of IPC and Arms Act as mentioned above are uphel all appeals preferred by all appellants stand dismissed.