The prosecution failed to prove the guilt of the appellants due to unreliable evidence and lack of authenticated electronic data.

JUDGMENT

These two criminal appeals arise out of a common judgment delivered on 29.8.2023 in Sessions Trial No.107/2019 passed by Sessions Judge, Balaghat, holding both the appellants guilty of offence of Sections 460 and 394 IPC and sentencing each of them to 10 years and 7 years rigorous imprisonment and fine of Rs.5,000/- and Rs.3,000/- respectively with default stipulations.

2. Prosecution case is that Sunil Kankariya, who had a shop “Dharam Jewellers” situated on main road Balaghat, was found dead on 20.11.2017 at around 10:45 p.m. at the staircase of his house; his mouth was gagged by inserting a piece of cloth and there was an injury on his head; prior to the discovery of body, his nephew Mehul Kankariya became alert when he heard some activity on the staircase and a conversation in a very low voice; he looked out of his window and found that two persons were leaving the house in haste; he informed other family members and friends through phone calls and they all found Sunil Kankariya lying injured and dead on the staircase; police was informed and Marg case was registered; the CCTV footage available in the houses of Sunil Kankariya and Anil Kankariya were examined; the CCTV footage from nearby areas were also recovered; it was revealed that suspects had fled away in a silver colour Indica car, which was later found to have a fake number plate. On 21.11.2017 in Police Station, Kotwali, district Balaghat, Crime No.590/2017 was registered against unknown persons for the offence of Sections 302, 201 and 456 IPC .

3. In the course of investigation, it was revealed that Rakesh Jain alias Jaini (who has been acquitted by the trial Court) hatched a conspiracy with present appellants for commission of this crime; appellant Amar Mehto, who was interrogated, revealed the name of his companions; at his behest, a silver colour Indica car bearing registration no. BR-16-M-0029 and its keys were recovered; the fake number plate used in that vehicle was seized at the behest of Rakesh Jain; appellant Nirmal Seraphin gave information regarding firearm and also the glove used for commission of crime and they both were recovered; there were blood stains on these articles; both the appellants and Rakesh Jain were arrested and TIP was held for identification of appellants; the seizure of Digital Video Recorders (DVRs) regarding CCTV footage was made and recovered data was sent to Cyber Forensic Laboratory, Bhopal, and other articles along with the firearm were sent to FSL.

4. Other persons, allegedly involved in the crime, whose names were disclosed by the appellants were charge sheeted at later stages, therefore, successive charge- sheets were filed in the case. Trial was held conjointly against all these persons and four of them, namely Rakesh Jain alias Jaini, Amit Kumar Singare, Abhishek Singh and Raju Prasad, were acquitted of all the charges while the appellants were convicted and sentenced as aforesaid.

5. These two appeals have been argued on the grounds that the dehati nalishi was lodged against unknown persons and only on the basis of doubt the appellants were arrested and interrogated; their individual acts were not proved by any reliable evidence; it was a case of single injury and although it is claimed that the appellant Nirmal Seraphin was carrying a firearm, no gun shot injury was caused to the deceased; if contention of the prosecution regarding use of butt of pistol is accepted, then obviously no intention to commit murder can be imputed in the case; it is claimed that the eyewitnesses were the chance witnesses and one of them was not even examined by the prosecution. It is further argued that the appellants were subjected to test identification parade (TIP) with a substantial delay and Mehul Kankariya, who allegedly saw two persons leaving the house of the deceased in haste just after the incident, was never asked to join the TIP proceeding.

6. The prosecution has placed reliance on CCTV footage but no visuals show presence of