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2013 Supreme(All) 144
[2013(2) ADJ 60 (DB)]
ALLAHABAD HIGH COURT
BEFORE : RAKESH TIWARI AND ANIL KUMAR SHARMA, JJ.
SANJAY HARIJAN AND ANOTHER .....Appellants (In Jail)
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal Nos. 6402 and 5265 of 2007, decided on 11th January, 2013)
Counsel :
Surya Narayan, D.K. Srivastava and Vinod Kumar for the Appellants; A.G.A., S.A. Murtaza and R.Y. Pandey for the Respondent.
Headnote:(Indian) Penal Code, 1860—Sections 411, 460, 392, 395 and 302—Stolen property—Recovery of—Dacoity—Double murder—Conviction—Sustainability of—Circumstantial evidence—None of accused named in FIR—However, sole eye-witness of incident at that time was only 7 years old—In fact no other eye-witness of incident—Case solely based on circumstantial evidence—Inference of guilt can be justified only when all incriminating facts and circumstances are found to be incompatible with innocence of accused—Or guilt of any other person—P.W. 4 a got up witness—Inordinate delay in interrogation of said witness also creates doubt about veracity of his testimony—He stated that he had seen accused persons coming out of house of complainant in night of incident—By itself would not be sufficient to convict accused—Contradictory statements are difficult to reconcile—Once accused confessed their participation in incident—But, accused not made bapardah for purpose of identification by sole eye-witness of incident—No public witness of recovery—No identification of recovery jewellery—Non-mention of full particulars of jewellery—No evidence that accused received/retained jewellery items believing them to be stolen—Offence under Section 411 not made out—Conviction sustainable. [Paras 13, 14, 15, 16, 17 and 19]
Hon’ble Anil Kumar Sharma, J.—Challenge in this appeal is to the judgment and order dated 7.8.2007, passed by Additional Sessions Judge Fast Track Court No. 4, Varanasi in S.T. No. 96 of 2004, whereby appellant Ghan Shyam Seth has been found guilty for the offence punishable under Section 411 IPC and had been sentenced to undergo rigorous imprisonment of one and half years with fine of Rs. 3,000/- with default stipulation. Appellants Sanjay Harijan and Mohd. Sartaz have been convicted under Section 302 and 392 IPC and each has been sentenced to undergo imprisonment for life and fine of Rs. 8,000/- and and seven years R.I. with fine of Rs. 5,000/- respectively with default stipulation. Since both the appeals emanate from common judgment of the learned trial Court, therefore, they have been heard together and are being decided by this judgment.
2. Succinctly stated the facts of the case are that on 29.8.2002 at 8.45 a.m. Salah-uddin son of Akbar Ali r/o Chandupura, P.S. Adampur, District Varanasi submitted his written report in P.S. Adampur, wherein he stated that in the night of 28/29.8.2002, his mother Batulan Bibi aged 80 years, niece Salika Bibi aged 12 years and Saina Bibi aged 7 years were sleeping in the front room of ground floor of the house. They did not come out from the room till 6.00 a.m. on 29.8.2002, so his sister-in-law Vashil Bano went in their room to wake them up, but there was no response, so she informed the complainant and his wife. When the complainant went to the aforesaid room, he found his mother and niece Salika Bibi dead. On search it was found that the jewellery of the mother worn by her and kept in the box was missing. On enquiry his niece Saina Bibi told him that an unknown person having mustaches came in the night and slept by her side. He threatened her to kill, if she spoke and said that they have killed two persons. The complainant suspected that some unknown persons have killed her mother and niece by throttling their neck.
3. On the basis of this report case at crime No. 170 of 2002 under Section 460 IPC was registered in P.S. Adampur, investigation whereof was taken up by S.O. Shiv Ganesh Gautam. He immediately rushed to the spot, where the complainant gave the list of stolen jewellery and thereafter he interrogated the complainant and Saina Bano. At the instance of the complainant he prepared site plan and also inspected the three iron boxes and attachie found in the room. The Kundi of the boxes was broken. Inquest of the cadaver of the deceased was conducted at 11.00 a.m. onwards and they were sent for autopsy in a sealed cover alongwith the usual papers.
4. Dr. R.A. Singh conducted the post mortem examination of both the deceased on 29.8.2002 from 3.45 p. m. onwards and has noted in his autopsy notes as under :
Post Mortem Examination of deceased Km. Salika Bibi
12-years old dead body of young female child of average size and shape. Rigor mortis present all over the body. Eyes, mouth closed, nails cynosed, and conjunctiva congested.
Ante-mortem injuries:
1. Multiple abraded contusion with multiple nail marks measuring 9 cm x 6 cm on full front of both sides neck.
2. Multiple nail marks over the back of forearm (7 cm x 3 cm area).
In the internal examination the doctor found that the brain, pleura, both lungs, pericardium and peritoneum were congested. Heart was full and stomach contained 40 grams mucous. In the opinion of the doctor the deceased suffered death to asphyxia as a result of throttling pressed at neck about half day before.
Post-Mortem Examination of deceased Batoolan
75-years old thin average body of a lady. Rigor mortis present all over the body, eyes and mouth closed and cynosed.
Ante mortem injuries :
1. Multiple abraded contusions with multiple nails marks 14 cm x 10 cm over face, nose, both lips, cheek and left side neck. Total 12 number marks.
2. Contusion 2 cm x 2 cm on the back of right wrist.
3. Multiple contusion 10 cm x 6 cm on the back of left wrist and ha
