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Judgment
These two appeals (CRA No.533/2010 and CRA No.631/2010) have been filed against common judgment dated 19.01.2010 passed in Sessions Trial No.60/2005. Hence, both the appeals are heard together and are decided by this common judgment.
The trial Court held the appellant Bittu @ Aditya Kumar Jaat guilty for commission offence punishable under Sections 302 and 394 / 394 of IPC and awarded sentence for life imprisonment
each. The trial Court also held him guilty for commission of offence punishable under Section 25 (1-A) and 27(1) of Arms Act and awarded rigorous imprisonment for five years each.
The trial Court held appellant Dhiraj @ Sourabh Jaat guilty for commission of offence punishable under Sections 302 / 34 and 394 / 397 of IPC and awarded sentence of life imprisonment each. The trial Court ordered that the sentence awarded to the appellants shall run concurrently.
Prosecution story in brief is that on 29.11.2004 at around 9 O'clock in the morning, three persons namely Krishna Kumar Jain, Rakesh Soni and Nikhilesh Soni proceeded to Sagar from Narsinghpur in a Santro Car. Krishna Kumar Jain was driving the car, Rakesh Soni was sitting on the front seat and Nikhilesh Soni was sitting on the back seat. When they were passing through Jhiraghati, a black colour Indigo Car had crossed their car and the car was stopped in front of their
car. The Santro Car was also stopped. Accused persons entered into the Santro Car on the point of pistol. Krishna Kumar Jain offered some resistance and he was shot by a revolver and he died. Rakesh Soni also received injuries. After traveling two kilometers, the car was stopped and the accused persons threw the dead body of the deceased in a trench in a valley. After traveling further five minutes, Rakesh Soni and Nikhilesh Soni were also forced to leave the car.
Accused persons had taken the Santro Car alongwith the property i.e. cash of Rs.1,05,000/-, 51 kgs silver and other silver. Report was lodged at the Police Station Suatal. Thereafter, near Shyam Talkies, Ripta Kandeli, accused Aditya @ Bittu was caught hold by the police with Santro Car, silver and cash, which were seized from his possession. Indigo Car was seized by the police.
Subsequently, other accused persons were arrested. Police filed the charge-sheet. Accused persons abjured their guilt. The trial Court prosecuted seven persons. Some persons were absconding. The trial Court convicted the appellants Bittu @ Aditya Kumar Jaat and Dhiraj @ Sourabh Jaat. Some persons were acquitted.
Learned counsel appearing on behalf of appellants have contended that there is no evidence against the appellant. The prosecution has failed to prove the offence beyond reasonable doubt against the appellants. Hence, the trial Court has committed an error in convicting the appellants.
Learned Panel Lawyer appearing on behalf of the respondent/State has contented that the prosecution has established the guilt of the appellants beyond reasonable doubt. The trial Court has rightly convicted the appellants and awarded proper sentence in view of the gravity of the offence.
The trial Court passed a detailed judgment. PW-1 Rakesh Soni deposed that on 29.11.2004, he alongwith his nephew Nikhilesh Soni and deceased K.K. Jain were going to Sagar in a Santro Car from Narsinghpur. They proceeded for Narsinghpur at around 9:15 O'clock in the morning. When they reached near Jhiraghati, one black colour Indica Car overtook their car and it was stopped in front of their vehicle, due to which they had to stop their car. Three gangsters alighted from the car. They had revolver in their hands and they captured the car. Two robbers entered into the Santro Car and the third robber was driving Indigo car. They were forced to sit in the Santro Car. They had taken their documents and belongings. K.K. Jain offered some resistance, hence, one person had opened fire at
him. Thereafter, the vehicle was stopped after some distance and body of Mr. K.K. Jain was thrown in a trench. Rakesh Soni received injury on his right eye. After some distance, they were also forced to leave the car. Thereafter, they had taken lift in a truck upto some distance and they reached Suatal Police Station on a moped.
Rakesh Soni lodged the FIR. One of robber told his name as Aditya and he was wearing black shirt and another person told his name as Dhiraj.
Rakesh Soni identified both the persons in the
Court. The third person, who was driving the car, was Somveer. The witness admitted that he lodged the FIR Ex.P/1 and signed the same. He further deposed that there was cash of Rs.1,05,000/- and near about 38.5 kgs silver in the car belonging to him. There was property of
Mr. K.K. Jain i.e. Rs.8-8.5 lakh cash and 50 kgs silver. He further deposed that after the incident, Tehsildar conducted identification parade and he identified accused Aditya, who had fired gun
shot. Identification memo is Ex.P/2 and he signed the same. He also identified accused Dhiraj in the office of Tehsildar Kareli and signed the identification memo Ex.P/3. He further deposed that article A is looted brief case (attaichi) and article D is property of Mr. Jain. He identified cash, property and a bag.
PW-2 Smt. Smita Jain is the wife of deceased K.K.
Jain. She deposed that her husband had gone to
Sagar in a Santro Car bearing registration No. MP-15-A-3421 and she had a talk with her husband on mobile. Last time she had talked with him at around 10:30-11:00 O'clock in the night and in the afternoon she came to know that her husband had been killed.
PW-3 Arvind Singh deposed that he was posted as Tehsildar and at around 3 O'clock in the
afternoon he had conducted identification.
Accused Aditya @ Bittu was produced. He was covered. Other six persons were also mixed with
him. Rakesh Soni identified accused person. He prepared identification memo and signed the
same. Nikhilesh Soni also identified the accused.
Rakesh Soni and Nikhilesh Soni also signed the identification memo. Naib Tehsildar Swati Fauzdar was also present during identification.
She prepared the identification memo Ex.P/2 and also signed the same.
PW-4 Dr. S.K. Nema deposed that he was posted
on 29.11.2004 Medical Officer at Primary Health Center, Warman and on the aforesaid date he had performed postmortem on the body of deceased Krishna Kumar Jain. He noticed following injuries on the person of the deceased :
Entry wound of fire arm 03x03x10 CM on forehead.
Exit wound 03x03 CM.
One abrasion 2x1/2 CM &
One blister on right thigh.
There was fracture of frontal and parietal region of head. The deceased died due to gun shot injury suffered by him on his head. He further deposed that on the aforesaid date, he also examined Rakesh Soni son of Ramgopal Soni and noticed one lacerated wound ? inch x 1/8 inch x 1/8 inch at the forehead, which was caused by hard and blunt object.
PW-5 Rajkumar deposed that accused Kedar was
working in his shop. He had taken leave. He had informed him that he was going to Jabalpur. He further deposed that police told him that Kedar was arrested because he had murdered a person and committed robbery.
PW-6 Narayan deposed that at around 10:30 in
the night, two person met with him and they told him that robbers had killed one person. He had gone at the police station alongwith those two persons on his motorbike.
PW-7 Pankaj Nema deposed that before him, Indigo Car and Santro Car were seized. Some properties were also seized. Article A attaichi was seized from the car. Similarly, article B, C, D, were also seized. Currency of Rs.1,05,000/- was seized. Silver articles, sillies (pieces) of silver and cash were seized. He admitted his signatures on the seizure memos. The police catch hold one robber and before him, police also catch hold another robber. Police had taken those persons to the police station. The revolver was seized before him and he signed the same.
He alongwith other persons remained at the police station for near about 6-7 hours. He further deposed that he signed the seizure memo Ex.P/11, vide which revolver was seized from the possession of accused Bittu.
PW-8 Pramod Kumar Chaturvedi deposed that he was posted as Naib Tehsildar, Kareli and on 09.12.2004, he had conducted identification parade of accused Satish Sharma and Kedar. The witnesses had identified the accused persons.
Identification memo is Ex.P/12, he signed the
same. He deposed that Naib Tehsildar Manoj Chourasiya also signed the same.
PW-13 S.Y. Khan deposed that he was posted as Assistant Sub Inspector on 29.11.2004 at Police Station Suatal. Rakesh Soni lodged a report at the police station, which is Ex.P1 and he signed the same. Rakesh Soni was sent for medical examination. He further deposed that he prepared spot map Ex.P/24 on 29.11.2004 and signed the same. Seizure memo is Ex.P/20 and he signed the same. Some articles were also seized.
He further deposed that he recorded statements of Rakesh Soni on 29.11.2004. He also recorded statements of Nikhilesh Soni, Narayan Tiwari, Ms. Nisha Thakre, Rajkumar Gupta, Dharmendra Yadav, Laxman, Mukesh, Moolcahnd Saini, Babulal and Captain Suresh Singh. Accused Yashveer @ Fauzi was arrested on 17.03.2004 vide arrest memo Ex.P/31. Omveer son of Banwari Lal Sharma was arrested on 21.03.2005 vide arrest memo Ex.P/32.
PW-14 D.K. Swami deposed that he was posted, at the relevant time, in the office of the Collector and the Collector had granted permission to prosecute the accused Aditya Kumar @ Bittu for the offence punishable under Section 25 / 27 of Arms Act.
PW-18 Rajesh Tiwari deposed that he was posted from 06.01.2004 to 30.06.2005 at Police Station Suatal. He catch hold accused Aditya @ Bittu after the incident when he was running and thereafter, another accused Satish Sharma was arrested. He further deposed that he recorded statements of witnesses namely Sachin Jain, Smita Jain, Kaluram Jain, Abhishesh Jain, Naresh Kumar Shukla, Sohanlal Sunil, Rajesh Gupta, Sanjay Kumar, Sanju Nema, Sanjay Baghel, Janargan Girdhoniya. A car was also seized.
PW-19 Naresh Sharma deposed that he received information on wireless. Thereafter, near Shyam Talkies accused Aditya @ Bittu was nabbed and from his possession a revolver with four cartridges was seized vide seizure memo Ex.P/11 and he signed the same. He identified the revolver and the cartridges. Thereafter, accused persons were arrested and from the Santro Car, various articles were also seized.
PW-1 Rakesh Soni is the eye witness and was present in the car specifically deposed that both the accused persons had participated in the incident. They came there in an Indica Car and after over taking the Santro Car, they alighted from the car and thereafter, they had entered in the Santro Car. He further deposed that he had heard the names of the accused persons- appellants Aditya and Dhiraj. Appellant Aditya was identified in the identification parade by PW-1 Rakesh Soni. He signed the punchnama Ex.P2. The Tehsildar Mr. Arvind Singh (PW-3), who conducted the identification, verified the fact of conducting identification parade. Aditya had caused the gun shot injury to the deceased and the deceased was died due to the aforesaid gun shot injury. This fact has been proved from the evidence of PW-4 Dr. S.K. Nema, who performed postmortem of the deceased. A revolver was seized from the possession of the appellant. From the aforesaid evidence, in our opinion, the trial Court has rightly held appellant-Bittu @ Aditya Kumar Jaat guilty for commission of offence.
Appellant Dhiraj @ Sourabh Jaat was also identified in the identification parade by PW-1 Rakesh Soni. Identification memo is Ex.P3.
Identification parade was conducted by PW-8 Naib Tehsildar Mr. Pramod Kumar Choubey. Accused Dhiraj was arrested soon after the incident alongwith the Santro Car. This fact has been proved from the evidence of PW-19. The looted property was seized and it was identified by the owners. From the aforesaid evidence, in our opinion, the trial Court has rightly held appellant-Dhiraj @ Sourabh Jaat guilty for commission of offences.
Looking to the gravity of the offence, we do not find any merit in these appeals. Both the appeals (CRA-533-2010 and CRA-631-2010) are hereby dismissed.