Harish Sahu vs State Of Chhattisgarh
2022 Latest Caselaw 1024 Chatt

                 HIGH COURT OF CHHATTISGARH, BILASPUR
                              CRA No. 352 of 2021
 Jaypal @ Palu Kaushik, S/o Late Dhanush Ram Kaushik, Aged About 36 Years, R/o
  Pendrikhurd, P.S. Sahaspur Lohara District Kabirdham (Chhattisgarh), District :
  Kawardha (Kabirdham), Chhattisgarh
                                                                         ---- Appellant
                                     Versus
 State Of Chhattisgarh Through: Police Station P.S. Thankhamariya, District Bemetara
  Chhattisgarh, District : Bemetara, Chhattisgarh
                                                                       ---- Respondent

CRA No. 429 of 2021  Vijay Gandharv S/o Rohit Gandharv, Aged About 24 Years, R/o. Ward No.01, Ram Nagar, Kawardha, Police Station - Kawardha, District- Kabirdham, Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh

---- Appellant Versus  State of Chhattisgarh Through : Police Station- Thankhamhariya, District- Bemetara, Chhattisgarh., District : Bemetara, Chhattisgarh

---- Respondent CRA No. 464 of 2021

1. Harish Sahu S/o Koduram Sahu, Aged About 25 Years, R/o Village- Dargaon, Police Station- Sahaspur Lohara, District- Kabirdham (C.G.)

2. Vikas Sahu S/o Jageshwar Sahu, Aged About 21 Years, R/o Village - Okhar, Police Station Pachpedi, District Bilaspur (C.G.)

---- Appellants Versus  State Of Chhattisgarh, Through - Station House Officer, Police Station- Thankhamhariya, District- Bemetara (C.G.)

---- Respondent CRA No. 562 of 2021  Siyaram Saiyyam S/o Late Rajaram Saiyyam, Aged About 38 Years, R/o Village Baijalpur, P.S. Bodla, District Kabirdham Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh, Through Police Station- Thankhamhariya, District Bemetara Chhattisgarh., District : Bemetara, Chhattisgarh

---- Respondent CRA No. 620 of 2021  Pawan Nirmalkar S/o Kapil Nirmalkar, Aged About 20 Years, R/o Village - Palansari, Thana - Pandatarai, District - Kabeerdham Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh

---- Appellant Versus  State Of Chhattisgarh, through Police Station - Thankhamhariya, District - Bemetara Chhattisgarh., District : Bemetara, Chhattisgarh

---- Respondent

24/02/2022 Shri Uttam Pandey, Advocate for the appellant in CRA No.429 of 2021.

Shri Rahil Arun Kochar, Advocate for the appellant in CRA No.352 of 2021.

Shri Abhishek Pandey, Advocate for the appellant in CRA No.562 of 2021.

Shri Samir Singh, Advocate for the appellant in CRA No.620 of 2021. Shri Dharmesh Srivastava, Advocate for the appellants in CRA No.464 of 2021.

Shri Sudeep Verma, Deputy Govt. Advocate for the State/respondent.

All these appeals have been preferred against the same judgment of conviction and sentence.

Heard on I.A.No.1, the applications for suspension of sentence and grant of bail to the appellants filed in these appeals.

The appellants have been convicted and sentenced by the impugned judgment of conviction and order of sentence dated 05-02-2021, passed in S.T. No.19/2019 by the Additional Sessions Judge Bemetara, District Bemetara (C.G.) in the following manner with a direction to run all the jail sentences concurrently :-

Sl. No. Conviction                         Sentence
1.       U/s 364 read with Section 34      R.I. for 3 years with fine of Rs.500/-,
         of the IPC                        in default of payment of fine
                                           additional S.I. for 2 months,
2.       U/s 120 B of the IPC              R.I. for 5 years with fine of Rs.500/-,
                                           in default of payment of fine
                                           additional S.I. for 2 months,
3.       U/s 201 of the IPC                R.I. for 2 years with fine of Rs.500/-,
                                           in default of payment of fine
                                           additional S.I. for 2 months,
4.       U/s 302 read with Section 34      Life imprisonment with fine of
         of the IPC                        Rs.500/-, in default of payment of
                                           fine additional S.I. for 2 months.

By the impugned judgment in addition to above conviction and sentence appellant Vikas Sahu has also been convicted under Section 170 of the IPC and sentenced with R.I. for 1 year and fine of Rs.500/-, in default of payment of fine additional S.I. for 2 months.

It is submitted by learned counsel for all the appellants that conviction against the appellants is totally erroneous and bad in law. The witnesses of prosecution have not been reliable and trustworthy.

Learned counsel for the appellant in CRA No.429 of 2021 submits that according to the prosecution case, three unidentified persons, two of them wearing police uniform, had taken the deceased from his house on 03-02-2019 whose dead body was found on 04-02-2019 by a person named Saraju, which is reflected from the morgue intimation that one Saraju Sahu had informed about finding the dead body. The appellant has been identified in the test identification parade. The witness examined, Heeralal Yadav (PW-1) had clearly admitted about seeing the appellant in the police station before the test identification parade was conducted. Statement of other witnesses regarding the identification and also the Tahsildar Uma Raj (PW-2) raises serious doubts on the identification parade conducted. Hence, the conviction of this appellant which is based only on the identification is not sustainable. Hence, this appellant may be enlarged on bail.

Learned counsel for appellant in CRA No.352 of 2021 submits that according to the statement of Heeralal Yadav (PW-1), there were only three persons who had taken the deceased with them and the FIR lodged also mentions about three persons only. It is submitted that serious doubts are present on the test identification parade conducted for the examination of the appellant and discovery of the dead body had not been made at the instance of any of the appellants, clearly the dead body was found by Sarajuram (PW-11) who has lodged the morgue intimation. Hence, the appellant in this appeal is entitled for grant of bail. Therefore, his application may be allowed.

Learned counsel for appellants in CRA No.464 of 2021 submits that evidence of prosecution witnesses cannot be regarded as reliable and trustworthy, therefore, conviction against these appellants is bad in law. The appellants in this appeal are entitled for grant of bail. Hence, their application may be allowed.

Learned counsel for appellant in CRA No.562 of 2021 adopts the arguments advanced by other counsel and submits that there was no motive present for causing death of the deceased in this case. It is submitted that the appellant in this appeal has not been identified and that the chain of circumstances has not been proved. Hence, the application of this appellant may be allowed.

Learned counsel for appellant in CRA No.620 of 2021 adopts the arguments advanced by learned counsel for appellant in CRA No.429 of 2021 and submits that the appellant in this appeal may also be granted bail.

Learned counsel for the State/respondent opposes the applications and the submissions made and submits that conviction against the appellants is based on the evidence of prosecution which has been brought beyond reasonable doubts. According to the testimony of the witnesses there had been motive present to cause death of the deceased. Seizure of the articles were made from the possession of the appellants on the basis of their memorandum statements. The FSL report of the seized articles is also positive, it is evidence of circumstances proved by the prosecution. As it is a case of murder by conspiracy, therefore, none of the appellants are entitled for grant of bail.

Heard learned counsel for the parties and perused the record of the trial Court.

Considered on the submissions. Perused the record of the case. Considering the manner in which the offence has been committed in this case as a result of a conspiracy, we do not feel inclined to allow the applications for suspension of sentence and grant of bail filed in these appeals.

Accordingly, I.A.No.1, applications for suspension of sentence and grant of bail filed in all these appeals, are rejected.

                       Sd/-                                       Sd/-
               (R.C.S. Samant)                       (Arvind Singh Chandel)
                  Judge                                       Judge




Aadil