Chattisgarh High Court
Kaushal @ Deepak Nirmalkar vs State Of Chhattisgarh on 5 December, 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1063 of 2021
Kaushal @ Deepak Nirmalkar S/o Biharilal Nirmalkar, Aged About 22 Years, Resident
of Village Salhetola, Police Station Charama, District North Bastar Kanker
Chhattisgarh., District : Kanker, Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh through the Station House Officer, Police Station
Bhanupratappur, District North Bastar Kanker Chhattisgarh., District : Kanker,
Chhattisgarh
---- Respondent
CRA No. 1066 of 2021
Lokesh Shori @ Loku S/o Motiram Shori, Aged About 18 Years, R/o Village Salhetola,
Thana Charama, District Uttar Baster Kanker Chhattisgarh., District : Kanker,
Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh through Police Station Bhanupratappur, District U.B. Kanker
Chhattisgarh., District : Kanker, Chhattisgarh
---- Respondent
Division Bench:-
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Rakesh Mohan Pandey
05/12/2022 Mr. D.N. Prajapati, Advocate for the appellant in CRA No.1063/2021.
Mr. Parag Kotecha, Advocate for the appellant in CRA No.1066/2021.
Mr. Avinash Singh, P.L. for the State/respondent.
Heard on I.A.No.1/2021, applications for suspension of sentence and grant
of bail to the appellants in both the appeals.
The appellants have been convicted and sentenced by the judgment of
conviction and order of sentence dated 07-09-2021 passed in S.T. No.30/2019 by
the learned Additional Sessions Judge, Bhanupratappur, District Uttar Bastar
Kanker (C.G.) in the following manner with a direction to run both the jail
sentences concurrently:-
Sl. No. Conviction Sentence
1. U/s 302/34 of the IPC Rigorous imprisonment for life and fine of
Rs.2000/-, in default of payment of fine
additional R.I. for one year
2. U/s 201 of the IPC R.I. for 1 year and fine of Rs.500/-, in
default of payment of fine additional R.I.
for 15 days
The case of prosecution is that, the present appellants alongwith one
juvenile in furtherance of common intention in intervening night of 25-06-2019 and
26-06-2019 committed murder of Paleshwar by using wooden club, nylon rope and
stone. The dead body was recovered on 26-06-2019 and merg intimation (Ex.-P/1)
was given by one Piritram (PW-1). Consequently, the FIR was registered against
unknown person vide Ex.-P/2. During investigation police arrested the present
appellants and on the basis of memorandum statements several articles were
seized.
Learned counsel for respective appellants submit that there are
contradictions and omissions in the evidence of prosecution witnesses, no
human blood was found in the seized articles and chain of evidence is not
complete. They would further submit that the appellants have been convicted
only on the basis of memorandum and seizure which are a weak kind of evidence
and thus, they would pray for suspension of sentence and grant of bail to the
appellants.
On the other hand, Mr. Avinash Singh, learned counsel for the State would
oppose the contentions made by learned counsel for the appellants and he would
submit that the prosecution has proved the chain of circumstances against the
present appellants. There are recovery on the instance of the present appellants
and as per FSL report (Ex.-P/41) in some of the articles human blood was found
and therefore, the applications moved by the appellants for suspension of
sentence and grant of bail are liable to be rejected.
We have heard learned counsel for the parties and perused the record.
From the record, it appears that on the basis of memorandum of the
appellants (Ex.-P/9 and Ex.-P/10), blood stained T shirt of appellant Kaushal @
Deepak Nirmalkar, two motorcycles used in commission of the offence, one blood
stained stone and one wooden club were seized, whereas, on instance of
appellant Lokesh Sori @ Loku blood stained white and black shirt was seized.
Further, on instance of appellants blood stained soil and nylon rope were seized.
The police has also seized a green colour scarf from the place of incident on the
basis of memorandum of the appellants. The recovery part is admissible under
Section 27 of the Evidence Act and in the FSL report in some articles human blood
is found. The police have also seized motorcycles used by the present appellants
in commission of the offence. With regard to motive, the learned trial Court has
clearly held that the deceased was drunkard and used to abuse his brother
Kaushal @ Deepak Nirmalkar and mother too, therefore, he has been killed by the
present appellants. Considering the above material available on record and
reasons assigned by the learned trial Court we are not inclined to allow the
applications filed in both these appeals for suspension of sentence and grant of
bail to the appellants.
Consequently, I.A.No.1/2021 filed in both these appeals by the appellants
for suspension of sentence and grant of bail are hereby rejected.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Aadil
