Akhilesh Singh vs State Of Chhattisgarh 4 Wpc/1446/2018 ... on 18 May, 2018

[Cites 17, Cited by 4]

Chattisgarh High Court

Akhilesh Singh vs State Of Chhattisgarh 4 Wpc/1446/2018 ... on 18 May, 2018

1) As both the appeals arise out of common judgment dated 31- 10-2006 passed in Sessions Trial No. 254 of 2002, therefore, they were heard analogously and are being disposed of by this common judgment.

2) Challenge in both the appeals is to the judgment of conviction and order of sentence dated 31-10-2006 passed by the Additional Sessions Judge, Mungeli, Sessions Division Bilaspur (CG), in Sessions Trial No. 254 of 2002, wherein the trial court has convicted the appellant Akhilesh Singh in CRA No. 861 of 2006 under Section 302 of IPC, 1860 and sentenced him to undergo RI for life and fine of Rs.2000/- with default stipulation and again convicted him for offence under Section 27 (2) of the Arms Act, 1959 (for short, "the Act, 1959") and sentenced him to undergo RI for seven years and to pay fine of Rs.1,000/- with default stipulation for committing murder of one Somesh Soni on 9-3-2002 at Thakur complex Mungeli and for illegal possession and use of firearms.Appellant Anil Tamboli in CRA No. 803 of 2006 has been convicted under Section 25(1)(a) of the Arms Act 1959 and sentenced to undergo RI for five years and to pay fine of Rs.1,000/- with default stipulation for having possession of illegal firearms.

3) In the present case, name of the deceased is Somesh Soni. It is alleged that on 9-3-2002 one "Gauna" ceremony of appellant Akhilesh Singh was celebrated in Thakur Complex at Mungeli in which 3 deceased Somesh Soni was engaged for videography/photography. His vehicle was also hired for the bridegroom. It is further case of the prosecution that deceased Somesh Soni was demanding money from the appellant Akhilesh Singh to fill diesel in his vehicle. Appellant Akhilesh Singh refused to pay the amount on which deceased replied that his vehicle will not be sent unless money is paid. For this, altercation took place between appellant Akhilesh Singh and deceased Somesh Soni and in the said quarrel appellant Akhilesh Singh pointed gun on the forehead of Somesh Soni and pulled the trigger, which resulted his instantaneous death. Akhilesh Singh fled away after taking motor-cycle of Dharmesh. Thereafter, it turned into clash between two communities namely "Soni" and "Thakur" and shops of Thakur' complex were burnt by Soni's group. The matter was reported and investigated. During investigation the statements of the material witnesses were not recorded under Section 161 of the Code of Criminal Procedure, 1973 by the Investigating authority, therefore, one petition i.e., Writ Petition No. 1763 of 2002 was filed before this Court and upon direction of this Court, statements of some witnesses were recorded under Section 161 of the Cr.P.C., by the Sub Divisional Officer, Police. The appellants were charge-sheeted and convicted as mentioned above.

4) Learned counsels appearing for the accused/appellants would submit as under:

i) Prosecution has examined eye-witnesses PW/2 Balram Tamboli, PW/25 Nilesh @ Golu & PW/26 Yuvraj Swarnakar. PW/2 Balram Tamboli did not support the case of the prosecution and the statements of PW/25 Neelesh @ Golu and PW/26 Yuvraj Swarnakar were rejected as false by the trial Court.

ii) Dharmesh Soni who lodged report (Ex.P/21) died before recording of his evidence.

iii) It is not proved that one gun of 12 bore double barrel has been discovered as the licenced gun belonging to the father of the appellant Akhilesh Singh. It is also not proved that the said gun was seized from the occupation of the house of Akhilesh and his father and no witness has identified this weapon as having been used in the commission of murder.

iv) The expert's opinion is that the injury sustained by the deceased could be caused by a 12 bore double barrel gun, but there is no evidence that 5 except seized 12 bore double barrel gun, no other 12 bore gun could have caused the injury sustained by the deceased. Consequently, the discovery of gun does not in any way connect the appellant Akhilesh Singh with the commission of murder.

v) Dharmesh has not identified the appellant as the person who has snatched his motor-cycle, therefore, his evidence is also not connecting the appellant's' presence near the spot of occurrence.

vi) The evidence regarding seizure of gun is shaky in nature, therefore, no offence is made out against the appellant Akhilesh Singh.

vii) Independent witnesses PW/4 Prakash Kumar and PW/6 Dharmendra Kumar Soni have turned hostile regarding seizure of gun from appellant Anil Tamboli. Version of M.S. Katlam (PW/22) is uncorroborated and same is not dependable, therefore, the evidence is not sufficient to connect the appellant Anil Tambili with the crime in question.

In support of their arguments, they placed reliance on the decisions of Hon'ble the Supreme Court and this High Court in the matter of Jackaran Singh vs. State of Punjab 1, Harpal Singh @ Chhota vs. State of Punjab 2, Prabhu vs. State of UP3, Harkirat Singh vs. State of Punjab4, Javed Masood and another vs. State of Rajasthan5 and Shri Bhagatram vs. State of MP (Now CG) 6

5) As against the aforesaid submissions, learned State counsel, supporting the impugned judgment, would submit that the impugned judgment is strictly in accordance with law and there is no illegality or infirmity warranting any interference by this Court.

6) We have heard counsel for the parties and perused the material on record.

7) In order to prove the complicity of the accused/appellants in commission of crime in question, the prosecution has examined 28 witnesses before the trial Court. To nullify the charge, defence side has examined two defence witnesses.

8) Firstly we will consider the nature of death of the deceased.

9) Dr P.C. Jogi (PW/16) conducted post-mortem of deceased Sumesh Soni with a team of Dr. S.K. Baghel, Dr. Suresh Ratre and 1 (1995) AIR (SC) 22345 2 (2016) AIR (SC) 5389 3 (1963) AIR (SC) 1113 4 AIR 1997 SC 3231 5 AIR 2010 SC 979 6 2013(3) CGLJ 98 7 Dr. Ganesh Suryavanshi. As per version of the expert, after examination he noticed the following injuries.

i) Entrance wound- Lacerated wound in the size of 2 c m x 2 cm near left eye ball. Shape of would was oval.

ii) Exist wound- Lacerated wound in the size of 8 cm x 7 cm over left mastoid area. Loss of skin, brain matter was seen from outside having profuse bleeding.

iii) Track was found between entrance to exist wound bright pink colour having multiple pieces of upper and lower jaw of left side. "Wad" found mid-way between the entrance to exist wound

- diameter of wad was 2 cm x 1 ½ cm. In the same track multiple (3) pieces of metallic small ball found.

iv) Right mortis present on both upper and lower limbs.

       v)     Peeling of skin present.


       vi)    Two lacerated wounds in the size of 6 cm x 4
              cm over left knee


       vii) Three lacerated wounds of 10 cm x 7 cm on
              left thigh.

viii) Four lacerated wounds in the size of 5 cm x 4 8 cm on left shoulder.

He opined that death of the deceased is caused due to shock of gun shot injury. Version of this witness is unshaken during cross examination and there is no other expert opinion contrary to the opinion of the said expert, therefore, it is established that the deceased died of gunshot injury.

10) As per version of Inspector K.S. Thakur (PW/20), discovery statement was made by appellant Akhilesh Singh that he concealed firearm 'bandook' and 'kartoos' in the house situated at village Kodukapa, Mungeli. PW/22 M.S. Katlam, Inspector, deposed (para 7) that in presence of Bhanu Soni and Dharmendra Soni one 12 bore double barrel gun in which 15952-95 Indian Ordinance Factory Tested Tawi Arms were written, was seized as per Ex.P/9. Version of this witness is supported by the version of Dharmendra Soni (PW/6) who deposed that he put his signature in part B to B of Ex.P/9, the gun was handed over to Police by the appellant Akhilesh Singh from his house at village Kodukapa. All these witnesses have been subjected to incisive cross examination, but the fact remained unshaken. From the evidence of these witnesses, it is established that 'gun' and 'kartoos' as mentioned in Ex.P/9 were seized from the appellant Akhilesh Singh.

11) PW/17 Shankar Prasad Sharma, Asst. Sub Inspector posted as an Armourer in Reserve Centre, Bilaspur, examined the seized gun and kartoos. As per version of this witness, he received two sealed packets of12 bore gun and kartoos as per description of seizure from the appellant Akhilesh Singh and after examination he opined that gun and all the seized kartoos are fit to fire and carbon was present in barrel. He further deposed that one empty kartoos was found in the chamber of gun and it is fired from the gun. Carbon of burnt ammunition was found in barrel. Version of this witness is also unshaken during cross examination. From the statement of this witness, it is established that gun seized from the appellant Akhilesh Singh is fit to fire and kartoos was fired from the gun. PW/18 Shatrughan Singh is a licence clerk in the office of District Magistrate, Bilaspur and he proved sanction under Section 39 of the Arms Act by the District Magistrate for prosecution of the appellants.

12) Prosecution has examined PW/25 Nilesh @ Golu and PW/26 Yuvraj Swarnkar as eye-witnesses. Both the witnesses have deposed on oath before the trial Court that on the date of incident "Gauna" ceremony of appellant Akhlesh Singh was being celebrated and deceased Somesh Soni was present on the spot as videographer/photographer and it is the appellant Akhilesh Singh who fired gun-shot injury on deceased. From the evidence of PW/24 Sonalal Soni (para 5), it is established that body of the deceased was 10 lying near the gate of the Thakur complex and as per version of Constable Yashwant Singh (PW/15) soil with blood was seized from Thakur complex.

13) The trial Court rejected the version of Nilesh @ Golu (PW/25) and Yuvraj Swarnkar (PW/26) on the ground that after the incident they did not try to see as to whether the deceased is surviving or not and they have not tried to take him to hospital for treatment and they did not lodge the report in Police Station. The trial Court further opined that on autopsy digested food was found in the stomach of the deceased while mother of the deceased sent Yuvraj Swarnkar (PW/26) for calling the deceased for meals which is not acceptable.

14) Now the point for our consideration is whether the ground of rejection is legal. In the matter of Rammi alias Rameshwar vs. State of MP7, Hon'ble the Supreme Court has held as under:

"Post-event conduct of a witness varies from person to person. It cannot be a cast-iron reaction to be followed as a model by everyone witnessing such event. Different persons would react differently on seeing any violence and their behaviour and conduct would therefore, be different."

7

(1999) 8 SCC 649 11

15) In the matter of State of UP vs. Devendra Singh8, Hon'ble the Supreme Court has held as under:

"Human behavior varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Some may remain tight-lipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances"

16) In the matter of State of Maharashtra vs. Manglya Dhavu Kongil9, Hon'ble the Supreme Court has held as under: 8

(2004) 10 SCC 616 9 (1972) 3 SCC 46 12 "When courts purport to disbelieve an eye witness by reference to his subsequent conduct they have to be careful not to substitute their own norms of behavior in a given situation for the norms of behavior of that witness. Secondly, people react to situations not always in a uniform way. A city dweller, a villager or an Adivasi will react differently according to the degree of their sophistication.

Moreover, even in the case of individuals of the same class the reaction would very with the physical courage, mental equipment and social awareness of the individual. What is to be seen is whether the subsequent conduct to the witness is so incongruous with his evidence that it is impossible to believe that what he says is true. Therefore, subsequent conduct cannot be the sole test of the reliability of a witness".

17) As per settled position of law, version of the witness cannot be rejected on the basis of his post-conduct after the incident, therefore, we record our dis-approval on the finding recorded by the trial Court regarding their post conduct of the incident. Again, version of the witnesses cannot be rejected merely on the ground that undigested food was found in the stomach while mother of the deceased sent Yuvraj Swarnkar (PW/26) for calling the deceased for meals. Even if the deceased took some meals in the morning hours, the same is not sufficient for the day as a whole, therefore, calling him by mother for 13 taking meals is not abnormal and version of Yuvraj Swarnkar cannot be rejected on the said ground.

18). It is contended on behalf of the appellant Akhilesh Singh that seizure of gun is from the occupation of the house in which so many persons are residing, therefore, it is not a seizure from the appellant Akhilesh Singh and it cannot be treated to be in exclusive possession of the appellant Akhilesh Singh. After going through the record, we are of the view that the seizure is made on the basis of discovery statement made by the appellant Akhilesh Singh under Section 27 of the Indian Evidence Act, 1872 and it is within the exclusive knowledge of the appellant as to where the gun is concealed. On presentation of gun, the same is seized from the said appellant and it is not a case where search of the house was made. True, it is that Nilesh @ Golu (PW/25) is cousin of the deceased and Yuvraj Swarnkar (PW/26) is brother-in-law of the deceased, but the relation itself is not sufficient to discard their evidence. They cannot be termed as partisan or interested witnesses and are willing to rope the appellant Akhilesh Singh in a false charge.

19) True it is that the statements of both these witnesses were recorded belatedly under Section 161 of the Cr.P.C., after direction by this Court, but the statement under Section 161 of the Cr.P.C., is not substantive piece of evidence. It can be used for corroboration or for 14 contradiction. The substantive evidence is before the Court in which the other side had ample opportunity to cross examine the witness.

20) On over-all assessment of the evidence following circumstances have been established by the prosecution.

(i) On the date of incident, "Gauna" ceremony of the appellant Akhlesh Singh was celebrated and he was in possession of 12 bore double barrel gun and kartoos which were seized from him as per discovery statement.

(ii) As per report of Ballistic expert, gun was used in firing. The appellant Akhilesh Singh has not explained as to when the gun was fired. He has not explained regarding fire by the gun and his statement under Section 313 of Cr.P.C., is mere denial which is merit-less.

(iii) Function took place at Thakur Complex where the deceased was present for videography / photography.

(iv) Dead body of the deceased was found in the gate of Thakurs complex.

21) Incriminating circumstances are sufficient to bring home the guilt against the appellant Akhilesh Singh and in addition to that there is eye-witness account to the incident and their version cannot be 15 rejected on the ground as mentioned above. It is established from the evidence that the appellant Akhilesh Singh was illegally in possession of firearms and there is no legal document to establish the possession to be valid. It is also established that the appellant Akhilesh Singh used firearm for commission of murder of the deceased. Commission of murder is an offence punishable under Section 302 of IPC and possession and use of illegal firearms and ammunition is an offence punishable under Section 27(2) of the Arms Act, 1959 for which the trial Court convicted him and the same is hereby affirmed. The trial Court awarded minimum sentence to appellant Akhilesh Singh (in Criminal Appeal No. 861 of 2006 ) for commission of offence under section 302 of IPC (RI for life and fine of Rs.2000) and Section 27(2) of the Arms Act, 1959 (RI for seven years and fine of Rs.1000) and less than minimum cannot be awarded, therefore, sentence part is also affirmed.

22) So far as appellant Anil Tamboli ( Criminal Appeal No. 803 of 2006), is concerned, as per version of PW/22 M.S. Katlam, Inspector, he seized one gun of 12 bore with double barrel in which made in Spain was written and in bottom of barrel "35761 & 1454 G -18.4 was written. Five kartoos were seized and in the back side of kartoos "K.F. 12-95" were written. Version of this witness is unshaken during cross examination and there is nothing to discard the testimony of the witnesses regarding seizure from the appellant Anil Tamboli. PW/17 Shankar Prasad Sharma is an Armourer and Ballistic expert. As per 16 version of this witness, he examined 12 bore gun of the above mentioned description and opined that gun is fit to fire, kartoos seized from the appellant as mentioned abovehave also been examined by the expert and he opined that all the kartoos are fit to fire. Version of this witness is also unshaken during cross examination. PW/18 Shatrudhan Singh (PW/18) is a licence clerk posted ion the office of District Magistrate, Bilaspur who deposed that sanction under Section 39 of the Arms Act, 1959 was granted by District Magistrate to prosecute the appellant for commission of offence under Sections 25 & 27 of the Arms Act.

23) Appellant Anil Tamboli has not filed any valid document regarding possession of fire arm and his statement under Section 313 of Cr.P.C., is bald denial which is meritless. It is established that the appellant was in possession of illegal firearm in contravention of Section 3(1) of the Act, 1959 which is an offence punishable under Section 25(1)(b) of the Act, 1959.

24) We have gone through the case laws cited by learned counsel for the appellants and on due consideration we are of the view that the case laws are distinguishable from the facts and circumstances of the present case.

25) Conviction of the appellant Anil Tamboli is converted to Section 25 (1)(b) instead of Section 25(1)(a) of the Arms Act, 1959 and he be sentenced to undergo RI for three years and fine amount shall remain intact as imposed by the trial Court. As this appellant was in jail from 11-3-2002 to 26-7-2005 i.e., for more than three years, his detention period is set off and as he has suffered full term jail sentence, no further order for his arrest etc is required.

26) Accordingly, CRA No. 861 of 2006 preferred by the appellant Akhilesh Singh is liable to be and is hereby dismissed and CRA No. 803 of 2006 preferred by appellant Anil Tamboli is partly allowed to the extent indicated above.

27) The appellant Akhilesh Singh is reported to be on bail. Now the trial Court will prepare supersession warrant and issue warrant of arrest against him for his arrest and after his arrest he be sent to concerned jail to serve out the remaining part of the jail sentence. Compliance of this order be submitted before this court on or before 20-8-2018.

                    Sd/-                                    Sd/-

                    Judge                                   Judge
             (Prashant Kumar Mishra)               (Ram Prasanna Sharma)


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Chattisgarh High Court