Rojan Nai vs State
2015 Latest Caselaw 2968 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 36                                                               A.F.R.
 

 
Case :- JAIL APPEAL No. - 5624 of 2007
 

 
Appellant :- Rojan Nai
 
Respondent :- State
 
Counsel for Appellant :-	From Jail, Smt. Shubhra Singh
 
Counsel for Respondent :- Smt. Usha Kiran A.G.A.
 
Connected with
 
Case :- JAIL APPEAL No. - 7875 of 2007
 

 
Appellant :- 	Shiv Shanker @ Pappu Chauhan
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- 	From Jail, P.K. Singh
 
Counsel for Respondent :- Smt. Usha Kiran A.G.A.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. Both the appeals have been preferred against the judgment of conviction and punishment dated 24.8.2002 passed by the Additional Sessions Judge/Fast Tract Court, Court No. 4, Varanasi in S.T. No. 438 of 1997, State v. Shiv Shanker @ Pappu Chauhan and others, case crime no. 8/1996, sections 302, 394 and 411 I.P.C., p.s. Chetganj, Varanasi, by which out of four charged accused persons only two namely, Shiv Shanker @ Pappu Chauhan and Rojan Nai had been convicted for the charges u/ss 302/34, 394 and 411 I.P.C. The trial court had awarded sentence to each accused for the charge u/s 302/34 I.P.C. with imprisonment for life and fine of Rs.10,000/- (in default of payment one year's additional imprisonment), for the charge u/s 394 I.P.C. the imprisonment for 10 years and fine of Rs. 5,000/- (in default of payment, six month's additional imprisonment); and to accused Shiv Shanker @ Pappu Chauhan was sentenced with imprisonment of one year for the charge u/s 411 I.P.C. The trial court had also directed that all the sentences would run concurrently.

2. Prosecution case in brief was that Shiv Badan Singh Yadav was employed in the Army. During his period of leave, he came to Varanasi, when accused Shiv Shanker @ Pappu Chauhan, Rojan Nai, Manoj Harijan, and Bablu @ Vinod Gaud are alleged to have looted his briefcase and money on 10.01.1996 at about 5:15 a.m. at a place near Sanjay Apartment Colony, Mohalla Chaukaghat, p.s. Chetganj, Varanasi. During robbery, on showing resistance by Shiv Badan Singh Yadav these accused had inflicted knife injuries with the intention to cause death, due to which he died. Upon knowledge of this incident, case crime no. 8/1996 was registered. During investigation police recovered the looted articles of the victim Shiv Badan Singh Yadav from the possession of accused Shiv Shanker @ Pappu Chauhan, and the murder weapon knife was recovered from the possession of accused Rojan Nai. After completion of investigation, charge-sheet was submitted against the said four accused for offences u/ss 302, 394, 411 I.P.C., on the basis of which S.T. No. 438 of 1997 was registered, in which all the accused were charged with offences punishable u/ss 394, 302/34 and 412 I.P.C. All the accused denied the charges and claimed to be tried.

3. In support of the charges, prosecution examined PW-1 Sachhidanand Prasad (informant), PW-2 S.I. Raj Bahadur Dwivedi, PW-3 Bhaiya Lal, PW-4 Bharat Lal, PW-5 Dr. Jagdish Singh, PW-6 A.S.I. Rama Shanker Singh, PW-7 Constable Devi Lal, PW-8 Inspector Anil Kumar Mishra, PW-9 Inspector Gurdeep Singh Sarna and PW-10 retired Inspector Shyamdev Ram. These witnesses had also proved documentary evidence of prosecution as Ex. Ka-1 to Ex. Ka-19 and material evidence as Ex.-1 to Ex.-5.

4. After closure of prosecution evidence, the statement of accused persons were recorded, in which they have denied the evidence of prosecution and stated that they have no concern with the charged incident and they were falsely implicated. Defence had not examined any defence witness.

5. After affording opportunity of hearing and considering evidence and arguments of both sides, learned Additional Sessions Judge passed judgment dated 24.8.2002, whereby two of the co-accused Manoj Harijan and Bablu @ Vinod Gaud were acquitted for all the charges but the accused Shiv Shanker @ Pappu Chauhan and Rojan Nai were convicted for the charges u/ss 302/34 and 394 I.P.C. Apart from it, accused Shiv Shanker @ Pappu Chauhan was separately convicted for the charge u/s 411 I.P.C. After conviction, trial court had afforded opportunity of hearing to the convicted accused persons (present appellants) and thereafter passed sentences as above. Aggrieved by this judgment of conviction, present appeals have been preferred by the convicted accused persons separately as above. But since both the appeals relate to the same judgment and relate to the same incident and charge, therefore, they are being decided together.

6. Sri Pravin Kumar Singh, Advocate appeared on behalf of appellant Shiv Shanker @ Pappu Chauhan and Smt. Subhra Singh, Advocate appeared for appellant Rojan Nai as Amicus Curiae. Smt. Usha Kiran, learned A.G.A. appeared on behalf of State-respondent.

7. Learned counsel for the appellants contended that there is no evidence in this case to connect the involvement of the appellants with the charged incident. The police had allegedly received some information from an unknown informant (Mukhbir) and allegedly nabbed all four accused persons at the time of their alleged planning for commission of an offence. It is said that thereafter the accused had confessed their guilt and on their pointing out the looted articles of deceased as well as the murder weapon was allegedly recovered. They contended that in this matter, there is no evidence to connect the case property with the charged incident or with the deceased-victim. They also contended that there is no evidence in this case against appellants except their alleged confessional statement during police custody, which is not admissible in evidence. Therefore, their conviction is erroneous and both the appeals should be allowed. Learned counsel for the appellant and Amicus Curiae also contended that the appellants have undergone incarceration for more than 19 years and they should be acquitted.

8. Learned A.G.A. had refuted the argument of appellants' side and contended that the victim/deceased was an army man, whose military shoes and uniform alongwith other articles were recovered from the appellant Shiv Shanker @ Pappu Chauhan and accused had no explanation of recovery of the looted articles of the deceased. She also contended that the murder weapon had also been recovered from the possession of the appellant Rojan Nai, which connects him and other appellant with the charged incident. She also contended that during the trial appellant Shiv Shanker @ Pappu Chauhan had absconded from the custody of this case and had been taken into custody after a lot of effort, which also indicates his criminal nature. Conviction of appellants is based on correct finding of facts, therefore, these appeals should be dismissed.

9. We have heard rival contentions and perused the original records and available evidence.

10. Out of 10 prosecution witnesses, first was PW-1 Sachhinand Prasad, who had stated that deceased Shiv Badan Singh Yadav, Hawaldar in Army, was elder brother of his son-in-law, who used to visit him during holidays. On 10.01.1996, he heard some voice near his house and found that it was Shiv Badan Singh Yadav, whose clothes were soaked in blood, but was alive; and his attachi (suitcase) or bag was not with him, which he generally used to carry. He had taken Shiv Badan Singh Yadav to the hospital with help of other persons but immediately after reaching there he died. Then he prepared a written report (Ex. Ka-1) and gave it at the police station whereupon the police conducted proceedings of inquest in the hospital. PW-1 had also stated that after some time on 23.01.1996, police had called him and informed him about the robbed articles of Shiv Badan Singh Yadav; and then he went with the police to the house of Shiv Shanker @ Pappu Chauhan, where the suitcase was recovered alongwith shirt, shoes and P.T. Shoes. PW-1 had also stated that one knife was recovered in the house of Rojan Nai on his pointing out in his presence. PW-2 had also stated that in the presence of police personnel and two appellants and PW-1 Sachhinand Prasad shirts, cloths, socks and P.T. shoes were recovered from the house of Shiv Shanker @ Pappu Chauhan and the knife from the house of Rojan Nai. PW-4 Bharatlal is also witness of recovery of knife from the house of Rojan Nai and preparation of its recovery memo. These articles, recovered from Shiv Shaker @ Pappu Chauhan were robbed from victim Shiv Badan Singh Yadav and were recovered on the information received from both the appellants, namely, Shiv Shanker @ Pappu Chauhan and Rojan Nai. Although, looted articles were recovered from the house of Shiv Shanker @ Pappu Chauhan but the joint arrest of both the accused persons, their joint information regarding recovery and thereafter actually recovery of the robbed articles is proof of the fact that both the appellants were involved in the offence of robbery, committed against the victim Shiv Badan Singh Yadav. From the evidence, it is apparent that this offence has been committed by use of force, therefore, it is proved from available evidence that the two appellants had committed the offence punishable u/s 394 I.P.C. Thus, the trial court had committed no error when it convicted the two appellants for charges u/s 394 I.P.C. and the appellant Shiv Shanker @ Pappu Chauhan for the charge u/s 412 I.P.C.

11. From the evidence of PW-1 and other formal witnesses, it is proved that anti-mortem injuries of incised wounds found on the body of Shiv Badan Singh Yadav was the cause of his death but it is not proved as to who was the culprit who had actually inflicted those injuries. There is no eye witness of the incident of murder or inflicting of said anti-mortem injuries. There is no proof of blood stains on the alleged knife recovered from Rojan Nai as there is no scientific evidence in that regard. There is no evidence that may connect the said knife used for inflicting injuries on the body of victim. There is no evidence that may connect the appellants with incident of inflicting of anti-mortem injuries on the deceased. In these circumstances, they are entitled to get the benefit of doubt on the charge u/s 302/34 I.P.C.

12. In the light of discussion as above, we are of the considered opinion that this appeal should be partly allowed for conviction under 302/34 I.P.C. for both the appellants but conviction for the other offences should sustain.

13. Accordingly, these appeals are partially allowed and conviction of appellants for charge under section 302/34 I.P.C. is set aside. With this modification, both the appeals are disposed of.

14. Let a copy of this order be sent to Sessions Judge, Varanasi for ensuring compliance.

Order Date :- 7.10.2015

SR