Criminal Appeal No. 1762 of 2017 · Nafr High Court
Case Details
Page No.1 of 36 IN CRA-1762-2017 SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.03.12 14:16:58 +0530 2025:CGHC:11924-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPELLATE JURISDICTION [Judgment reserved on: 24.02.2025] [Judgment delivered on: 11.03.2025] In CRIMINAL APPEAL NO. 1762 OF 2017 (Arising out of Judgment dated 22.12.2016 passed by First Additional Sessions Judge, Balodabazar, District Balodabazar in S.T. No. 12 of 2015) Imran Khan, S/o Dara Khan, aged about 23 years, R/o Premnagar, Rajgamar, Chowki Rajgamar, Police Station Balconagar, Korba, District Korba (C.G.) ... Appellant(s) Versus State of Chhattisgarh, through: Station House Officer, Police Station Gidhouri, District Balodabazar-Bhatapra (C.G.) ... Respondent(s) For Appellant ------------------------------------------------------------------------------------ :- Ms. Fouzia Mirza, Senior Advocate, with Mr. Sanjeev Ku. Agrawal and Mr. Naveen Shukla, Advocates. For Respondent :- Mr. Ashish Shukla, Addl. Advocate General and Mr. H.A.P.S. Bhatia, PL ----------------------------------------------------------------------------------- Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal C A V Judgment Page No.2 of 36 IN CRA-1762-2017 Sanjay K. Agrawal, J. 1. Assail in the present Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC) is to the Judgment dated 22.12.2016 passed by learned First Additional Sessions Judge, Balodabazar (Trial Court) in Sessions Case No.12/2015. 2. By impugned judgment, the Trial Court has convicted and sentenced the sole appellant herein for offence under Section 302 of the Indian Penal Code, 1860 (IPC) to three counts for committing murder of Vinay Kannouje (D-1), Sameer Khan (D-2) and Shravan Chouhan (D-3) and for offence under Section 307 for committing attempt to murder of PW-3 Rajesh Kumar Sahu and also for offence under Section 460 of IPC for committing lurking house-trespass or house-breaking by night, in the manner as shown in chart given below:- Conviction Sentence 1. Under Section 302 of IPC [for committing murder of D-1 Vinay Kannouje] 2. Under Section 302 of IPC [for committing murder of D-2 Sameer Khan] 1. Life Imprisonment. 2. Fine of Rs.5000/-. 3. Simple Imprisonment for 6 months, in default of payment of fine. 1. Life Imprisonment. 2. Fine of Rs.5000/-. 3. Simple Imprisonment for 6 months, in default Page No.3 of 36 IN CRA-1762-2017 3. Under Section 302 of IPC [for committing murder of D-3 Shrawan Chouhan] of payment of fine. 1. Life Imprisonment. 2. Fine of Rs.5000/-. 3. Simple Imprisonment for 6 months, in default of payment of fine. 4. Under Section 307 of IPC 1. Rigorous Imprisonment for 10 years. 2. Fine of Rs.3000/-. 3. Simple Imprisonment for 3 months, in default of payment of fine. 5. Under Section 460 of IPC 1. Rigorous Imprisonment for 10 years. 2. Fine of Rs.3000/-. 3. Simple Imprisonment for 3 months, in default of payment of fine. All sentences have been directed to run concurrently. Prosecution’s case, in brief:- 3. On 27.11.2014, the appellant committed lurking house- trespass or house-breaking by night and assaulted D-1 Vinay Kannouje, D-2 Sameer Khan and D-3 Shrawan Chouhan with iron-pipe on account of which they suffered grievous injuries and died and he also with the intention to kill the injured eye-witness, PW-3 Rajesh Kumar Sahu, assaulted him with the said iron-pipe causing serious injuries to him. 4. On 28.11.2014, PW-1 Raju Yadav, the Manager of Indian Broiler Farm, Gidhouri, lodged Merg Intimations Page No.4 of 36 IN CRA-1762-2017 (Exbts. P-1, P-2 & P-3) followed by F.I.R. (Ex. P-4) stating that in the morning around 8:30 a.m., PW-4 Nikhlesh kumar Sahu, a worker of the said Farm, informed him on phone that the Farm is not open, on which he came to Gidhouri and along with PW-3 Nikhlesh Kumar Sahu and one Hemant Patel he went inside the Farm where he saw that D-1 Vinay Kannouje, D-2 Sameer Khan and D-3 Shrawan Chouhan were lying dead and Rajesh Kumar Sahu was writhing in pain and injuries suffered on his head, who was then taken to Government Hospital, Barpali for his treatment. 5. On the basis of the said report, wheels of investigation started running during which Crime Details Form (Ex. P-5) was prepared by the Investigating Officer, PW-30 K.R. Kosle. Inquest reports (Exbts. P-8, P-11 & P-13) in respect of D-1 Vinay Kannouje, D-3 Shrawan Chouhan and D-2 Sameer Khan were prepared respectively in presence of panch-witnesses and their dead-bodies were subjected to post-mortem. PW-26 Dr. Lokesh Sahu conducted the post-mortem of D-1, D-2 & D-3 vide Exbts. P-31, P-32 & P-33, though he reserved his opinion on the cause and nature of their death to be Page No.5 of 36 IN CRA-1762-2017 given after the FSL report is received. By property seizure memos (Exbts. P-14, P-15 & P-16), seizure of bloodstained and control soil was made from the spot where dead-bodies of D-1, D-2 & D-3 were found. Similarly, a threatening note vide Ex. P-17, mobiles phones vide Ex. P-18 and one Almirah and three empty bottles of liquor vide Ex. P-29 were seized from the spot. MLC of the injured eye-witness, PW-3 Rajesh Kumar Sahu, was conducted by PW-29 Dr. B.P. Baghel vide Ex. P-38, who referred the injured (PW-3) to higher center for CT Scan looking to the serious nature of injuries caused to him. 6. During investigation, the appellant was interrogated who confessed his crime of committing murder of D-1, D-2 & D-3 and causing serious injuries to PW-3 Rajesh Kumar Sahu, on the basis of which his memorandum statement (Ex. P-26) was recorded pursuant to which, 24 pages hand-writing notes vide Ex. P-19; an iron-pipe vide Ex. P-20; a plastic bag, a full-pant, two woolen gloves, one set of shoes and one regzine purse containing driving licence of PW-3 Rajesh Kumar Sahu and his Voter ID vide Ex. P-21; one single line copy and Page No.6 of 36 IN CRA-1762-2017 one blue diary vide Ex. P-22, three iron keys vide Ex. P- 23; one Yamaha motorcycle No.CG12-AE/5559 vide Ex. P-24 and one Rs.50/- stamp paper vide Ex. P-25 were seized at the instant of the appellant. Seizure of Rs.90,000/- from PW-8 Naeem Khan vide Ex. P-8 and Rs.9500/- from PW-10 Ramkumari vide Ex. P-9 was also made. Seizure of sale-deed was made vide Ex. P-7 and stamps purchased in this regard were seized vide Ex. P-25 at the instance of DW-1 Dara Khan. By Ex. P-28, a stamp sale register was seized from PW-23 Monika Modi. Nazri Naksha (Ex. P-6) was also got prepared by the concerned Patwari. The seized iron-pipe was examined by PW-26 Dr. Lokesh Sahu, who vide his MLC report (Ex. P-36), opined that the injuries inflicted on the bodies of D-1, D-2 & D-3 can be caused by the said iron-pipe. PW-29 Dr. Baghel, vide his query report (Ex. P-39) also opined that the serious suffered by PW-3 Rajesh Kumar Sahu can be caused by the seized object. Ex. P-64 is the report of the hand writing expert. In FSL report (Ex. P-59), no chemical poison was found in the viscera of three deceased persons (D-1, D-2 & D-3). Page No.7 of 36 IN CRA-1762-2017 7. On completion of the investigation, the appellant was charge-sheeted before the concerned Magistrate, who took cognizance on the charge-sheet and the case being
Legal Reasoning
exclusively triable by the Sessions Court, was committed to the Sessions Court for trial. After committal, the appellant appeared before learned Trial Court where charges were framed against him for offences under Sections 302 (three-counts), 307 and 460 of IPC, to which he denied and entreated for trial. 8. During the course of trial, in order to prove its case, the prosecution examined as many as 30 witnesses as PW-1 to PW-30 and produced on record documents vide Exhibits P-1 to P-65. After closure of the prosecution evidence, statement of the accused/appellant was recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the evidence produced by the prosecution, pleaded innocence and false implication. In defence, three witnesses have been examined as DW-1, DW-2 & DW-3. 9. On conclusion of the trial, learned Trial Court finally by impugned judgment dated 22.12.2016, after appreciating the oral and documentary evidences Page No.8 of 36 IN CRA-1762-2017 available on record, found the appellants guilty of committing the offences under Sections 302 (three- counts), 307 and 460 of IPC and accordingly convicted and sentenced him as mentioned above in the chart shown at second paragraph of this judgment, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by the Trial Court. Submissions of the parties:
Legal Reasoning
10. Ms. Fauzia Mirza, learned Senior Counsel appearing for the appellant would submit that the testimony of solitary injured eye-witness, namely, Rajesh Sahu (PW- 03) is not of sterling quality having the ring of truth for considering him to be trustworthy, as for the first time he has stated before the Court that he is the eye-witness of the incident and have seen the appellant committing the crime and causing injuries to him. However, in his statement recorded under Section 161 of CrPC, he did not state that the appellant has caused injuries to him or committed the crime in question. As such, there is major contradiction and omission in the court statement qua statement recorded under Section 161 of CrPC of Page No.9 of 36 IN CRA-1762-2017 the so called injured eye-witness, namely, Rajesh Sahu (PW-03), therefore, his testimony is unworthy of reliance. Learned Senior Counsel further submits that admittedly, in the present case, the incident took place on 28.11.2014 and injured eye-witness- Rajesh Sahu (PW-03) was discharged from the hospital on 18.12.2014, whereas his statement under Section 161 of CrPC was recorded on 09.3.2015 i.e. after an inordinate delay of 2 ½ months, which also makes his statement untrustworthy and unreliable. Therefore, the testimony of injured eye-witness, namely, Rajesh Sahu (PW-03) is liable to be discarded. Learned Senior Counsel would rely upon the decisions: (i) Josheph v. State of Kerala 1 ; (ii) State of Karnataka v. Venkatesh and others 2 ; (iii) Lahu Kamalakar Patil v. State of Maharashtra 3 ; (iv) Sahid Khan v. State of Rajasthan 4 ; (v) Amrik Singh v. State of Punjab 5 ; (vi) Harbir Singh v. Shishpal & other 6 ; (vii) Darshan Singh v. State of Punjab 7 to buttress her submissions.