THANVI, J. - (1.) THIS Murder Reference for confirmation of death sentence awarded to accused Sohaniya for having committed the offence under Section 396 IPC has been submitted by the learned Special Judge, N. D. P. S. Cases, Pratapgarh in Special Sessions Case No. 50/2001 - State vs. Sohaniya & Others. Accused Sohaniya and six other accused appellants have also filed D. B. Criminal Appeal No. 651/2005, against their conviction & sentences for the various offences as under: 1. U/sec. 120b IPc Sentenced to 5 Years' R. I. & to pay a fine of Rs. 1000/- & in default, to further undergo one year's S. I. 2. U/sec. 148 IPc Sentenced to 3 years' R. I. & to pay a fine of Rs. 1000/- & in default, to further undergo one year's S. I. 3. U/sec. 395 IPC OR IN ALTERNATIVE SEC. 395/149 IPc Sentenced to imprisonment for life & to pay a fine of Rs. 5000/- & in default, to further undergo one year's S. I. 4. U/sec. 396 IPc (1) Accused Sohaniya: Sentenced to death and to pay a fine of Rs. 1000/-; (2) Accused Nahar Singh, Ratadiya @ Radhey Shyam, Sunder, Fateh Lal @ Fatta Lal, Kusaliya & Lal Chand: Sentenced to imprisonment for life & to pay a fine of Rs. 5000/- & in default, to further undergo one year's S. I. 5. U/sec. 397 or 397/149 IPc Sentenced to 7 years' R. I. & to pay a fine of Rs. 1500/- & in default, to further undergo six months' S. I. 6 U/sec. 458 or 458/149 IPc Sentenced to 10 years' R. I. & to pay a fine of Rs. 2000/- & in default, to further undergo one year's S. I. 7. U/sec. 459 or 459/149 IPc Sentenced to imprisonment for life & to pay a fine of Rs. 5000/- & in default, to further undergo one year's S. I. 8. U/sec. 460 or 460/149 IPc Sentenced to imprisonment for life & to pay a fine of Rs. 5000/- & in default, to further undergo one year's S. I. 9. U/sec. 380 or 380/149 IPc Sentenced to 7 years' R. I. & to pay a fine of Rs. 500/- & in default, to further undergo six months' S. I. 10. U/sec. 323 OR 323/149 IPc Sentenced to one year's R. I. & to pay a fine of Rs. 200/- & in default, to further undergo one month's S. I. 11. U/sec. 324 OR 324/149 IPc Sentenced to 3 years' R. I. & to pay a fine of Rs. 500/- & in default, to further undergo six months' S. I. 12.U/sec. 325 OR 325/149 IPc Sentenced to 5 years' R. I. & to pay a fine of Rs. 1000/- & in default, to further undergo one year's S. I. 13.U/sec. 326 OR 326/149 IPc Sentenced to 10 years' R. I. & to pay a fine of Rs. 2000/- & in default, to further undergo one years' S. I. 14.U/sec. 302 OR 302/149 IPc Sentenced to imprisonment for life & to pay a fine of Rs. 5000/- & in default, to further undergo one year's S. I. 15.U/sec. 8 READ WITH SECTION 18 OF N. D. P. S. ACt Sentenced to 10 years' R. I. & to pay a fine of Rs. 1,00,000/- & in default, to further undergo one year's S. I.
(2.) SINCE both the Murder Reference and the Criminal Appeal arise out of the same judgment of the learned Special Judge, therefore, they are being disposed-of by this common judgment. The brief facts are that on the night of 19. 3. 2001, Amar Singh, S. H. O. , Pratapgarh, (PW 58) received a telephonic message about firing at Village Dhanesree, Police Station Pratapgarh District Chittorgarh and on reaching the spot, obtained a written report at 4. 00 A. M. on 20. 3. 2001 from one Suresh Chandra S/o Chain Ram Bhambi that in the preceding night at 10. 30 PM when he was sleeping in his house alongwith his family members, he heard the noise in the adjoining house of his uncle Nanu Ram and saw from the roof that four notorious persons having axes in their hands, were breaking the door of his uncle's house. Two persons having rifles in their hands, were standing outside the house of his uncle and were continuously firing. His father and elder brother Shantilal also came on the roof of the house. Some of the notorious persons were firing in the village and were exhorting to plunder the property and to kill, on cry. When he started shouting from the roof of his house, 5-6 assailants came on the roof from the front and rear side of his house. Upon this, he and his brother ran away but the assailants caught hold of his father and inflicted lathi and axe blows. On return, he found his father unconscious and noticed an injury on his head. His wife, sister- in-law Sangeeta and mother Parvati told that the assailants had taken opium, gold and silver ornaments alongwith Cash by threatening them. Upon enquiry, it was also revealed that the assailants had entered into the house of Nirbhay Ram and took away the opium and gold and silver ornaments from his house. By this act of the assailants, Nirbhay Ram, Mangilal, Chain Ram, Shiv Ram, Jagdish, Mahesh and Prakash received more injuries and were sent to Pratapgarh Hospital, where Nirbhay Ram died. He also received firearm injury on the right side of his back. Assailants, between the age group of 20-30 years speaking in strict language, were 15-20 in number having rifles, lathis, swords etc. with them and were wearing pants, bushirts, `dhoti' and `kameej'. The empty cartridges were lying outside his & his uncle's house. On the basis of this report, which was sent at the police station, Pratapgarh with constable, a regular F. I. R. (Ex. P. 47) was registered and investigation was commenced. During the course of investigation, site map was prepared and injured were medically examined. Injured Nirbhay Ram died in the hospital at Pratapgarh itself and two more injured viz; Chain Ram and Prakash were sent for treatment at Udaipur Hospital, where they also died. Empty cartridges were seized from the spot alongwith one Shawl. The footprints were also lifted and moulds were got prepared. While the investigation was in progress, a secret information was received regarding whereabouts of assailants, who were said to be "kanjar" by caste of village Tokda in district Jhalawar and accordingly the investigating team headed by G. L. Meena, Addl. S. P. Reached there and arrested accused Sohaniya, Nahar Singh, Ratadiya, Sunder, Fatehlal, Kushaliya and Lal Chand on 1. 5. 2001 from the bushes of Kshipra river at village Tokda, where they were sitting with weapons. While the accused were under arrest, they furnished information on the same day regarding weapons they used during the commission of crime at village Dhanesree and in pursuance to the information, recoveries were effected from the huts of accused appellants at Village Tokda of district Jhalawar. These seven accused appellants were also put to identification parade before the learned A. C. J. M. , Pratapgarh on 4. 5. 2001 before ten witnesses viz; Dinesh (PW 12), Suresh (PW 13), Mahesh (PW 16), Shantilal (PW 18), Chandmal (PW 20), Sav Ram (PW 3), Hiralal (PW 4), Devilal (PW 27), Nanu Ram (PW 29) and Bhagwati Lal (PW 26 ). Similarly, while they were under arrest, they also furnished information on 8. 5. 2001 and in pursuance to these informations, the recovery of opium and ornaments were also made from their Village Tokda on 9. 5. 2001. Thereafter, all the seven accused appellants also furnished further informations and in pursuance to it, investigating Officer Kalyan Singh (PW 55) proceeded to identify the spot and consequently the spot was identified on 12. 5. 2001 and site inspection memos Ex. P. 102 and Ex. P. 103 were prepared. These accused also furnished information about the spot, where they kept tractor trolley on 14. 5. 2001, in which they reached at the place of crime and used motor cycles. During investigation, accused Balwant Singh and Phunda Singh were also arrested, who were the owner of the tractor trolley in which the accused persons reached at the spot. Likewise, accused Laxman was also arrested. Motor cycle was also recovered which was used during the commission of crime. During investigation, it was also revealed that accused Sohaniya, Lal Chand and Phunda Singh came to village Dhanesree 2-3 days prior to the incident and crime was committed by the gang of these seven accused-appellants alongwith accused Balwant Singh, Phunda Singh, Laxman, Goliya, Gajrala, Sajaniya, Mithu, Ramprasad, Ramsingh, Lachhiya, Bhuriya, Kela, Jharmariya, Raja Babu, Gumaniya, Jaswantiya and Elam Singh. The recovered articles and footprints moulds were sent for chemical examination. After usual investigation, all the seven accused appellants alongwith Balwant Singh were chargesheeted for the offence u/ss. 395, 396, 397, 458, 459, 460, 380, 326 and 120b IPC and Section 8/18-29 of the N. D. P. S. Act, 1985, hereinafter referred-to at "the Act of 1985" and against rest of the accused, challan was filed under Section 299 Crpc. After hearing the arguments on charges, accused Sohaniya, Nahar Singh, Ratadiya, Sunder, Lal Chand, Fatehlal, Kushaliya and Balwant singh were charged under sections 120b, 148, 395 or in alternate 395/149, 396, 397 or in alternate 397/149, 458 or 458 read with 149, 459 or 459/149, 460 or 460/149, 380 or 380/149, 323, 324, 325, 326 read with 149, 302 or 302/149 IPC and 8/18 of the Act of 1985 and accused Balwant singh under Section 8/29 also of the Act of 1985. On arrest of accused Phunda Singh on 18. 12. 2001, supplementary chargesheet was filed on 18. 12. 2001 and like Balwant Singh, he was also charged for the above offences of the I. P. C. and the Act of 1985. Likewise, on arrest of accused Laxman, Lachhiya alias Laxmi Narain and Elam Singh, supplementary chargesheet was filed on 1. 8. 2002 and they were chargesheeted under the above offences of the I. P. C. and Section 8/18 of the Act of 1985. Accordingly the charges were explained to the above twelve accused, to which they pleaded not guilty. The prosecution examined 58 witnesses viz; Kanhaiyalal (PW 1), Ramprasad (PW 2), Sav Ram (PW 3), Hiralal (PW 4), Smt. Madhu (PW 5), Amar Singh (PW 6), Raghu Singh (PW 7), Kamal Singh (PW 8), Shantilal (PW 9), Khemraj (PW 10), Mangilal (PW 11), Dinesh (PW 12), Suresh (PW 13), Tara Chand (PW 14), Amrit Ram (PW 15), Mahesh (PW 16), Munnalal (PW 17), Shantilal (PW 18), Khemraj s/o Hari Ram (PW 19), Chand Mal (PW 20), Nand Ram (PW 21), Ram Chandra (PW 22), Smt. Nirmala (PW 23), Smt. Saddam Bai (PW 24), Smt. Parvati (PW 25), Bhagwati Lal (PW 26), Devilal (PW 27), Hiralal (PW 28), Nanu Ram (PW 29), Mangilal (PW 30), Jagdish (PW 31), Shantilal (PW 32), Basantilal (PW 33), Hiralal (PW 34), Narendra Kumar (PW 35), Daulat Singh (PW 36), Ajay Kumar Sharma (PW 37), Jagdish (PW 38), Harak Chandra (PW 39), Shambhu Singh (PW 40), Dr. Vimal Chandra Gandhi (PW 41), Samrath Lal (PW 42), Smt. Ganga Bai (PW 43), Lal singh (PW 44), Bhanwar Singh (PW 45), Bharat Singh (PW 46), Devilal (PW 47), Vimal Kumar (PW 48), Rishabh Kumar (PW 49), Smt. Sangeeta (PW 50), Smt. Munni Bai alias Dev Bai (PW 51), Shankerlal (PW 52), Jamna Lal (PW 53), Sohanlal (PW 54), Kalyan Singh (PW 55), Dr. Rahul Jain (PW 56), Govardhanlal (PW 57) and Amar Singh (PW 58 ). The statements of accused were recorded under Section 313 Crpc. They produced Badri Singh (DW 1) and Jhujhar Singh (DW 2) in their defence. After hearing arguments, learned trial Judge convicted and sentenced all the seven accused appellants in the manner as aforesaid but acquitted accused Balwant Singh and Laxmi Narain alias Lachhiya of all the charges framed against them but convicted accused Phunda singh and Laxman under Section 411 IPC and sentenced to punishment, which they have already undergone. For rest of the charged offences, they were acquitted. During trial, accused Elam Singh was declared absconded vide ordersheet of the trial court dt. 28. 4. 04.
(3.) WE have heard learned counsel for the appellant and the learned Public Prosecutor at length and carefully scrutinized the oral and documentary evidence on record. While assailing the judgment of the learned trial Court on the conviction of accused appellants, Mr. Joshi, learned counsel, has mainly stressed to falsify the recoveries made by the police and the manner in which test identification parade was conducted by the learned magistrate of the seven accused appellants. According to him, there was no light on the night of 19. 3. 2001 and the accused were belonging to different district, which is far away from the place of occurrence and there was no special mark of identification on the body of accused and ornaments. The identification parade has been conducted about one and half months after the date of incident and the accused were shown to the witnesses prior to the incident as is evident from the testimony of S. H. O. Amar Singh (PW 58) himself. According to him, the recoveries of weapons of offence, ornaments and opium are also most suspicious, accused were already having arms with them when they were arrested and the recoveries made from the huts of the accused by digging soil but there was no mark of soil etc. on the recovered articles. According to him, the incident is of March, 2001 and the recoveries have been made in the month of May, 2001 and, as such, these recoveries were not soon after the incident. He has further stressed that the opium which is said to have been recovered from the possession of the accused was not the same, because the requisite morphine was not found in the samples and there was non-compliance of the mandatory provisions of Sections 42, 50, 55 & 57 of the Act of 1985. He has also argued that there was news in the local Newspaper of Mansaur District that certain plunderers took opium from the village Dhanesree and when this opium was not recovered, the police to save its own skin, implicated the accused appellants falsely. While drawing attention of the court on the evidence of eye witnesses, learned counsel argued that many of the witnesses have turned hostile and some of them have wrongly identified the accused persons, while some witnesses, who have identified the accused at the test identification parade or in the court dock, have given contradictory and un-corroborative versions. The footprints of the accused taken on the spot were not obtained with the orders of the magistrate and the witnesses of the locality were not associated-with at the time of recovery. The theory of prosecution that the accused came to village Dhanesree two to three days prior to the incident on tractor and motorcycle, has been disbelieved by the trial court. While drawing attention of the court on oral and documentary evidence led by the prosecution, learned counsel has strongly submitted that the entire investigation is fabricated and does not inspire confidence, which reveals that the investigating agency has not collected the evidence but created it to falsely implicate the accused appellants. He has further argued that the case of the accused appellant Sohaniya is not distinct from the other six accused, who have been sentenced to life imprisonment but even then the trial Court has awarded the death sentence to the accused appellant Sohaniya merely on the ground that he has already been previously convicted in the murder case, the appeal against which is pending in this court at Jaipur bench. In support of his contentions, learned counsel for the accused appellants has placed reliance on the cases viz; (i) Dhonkal Singh vs. The State reported in 1954 R. L. W. p. 154; (ii) Gul Singh vs. State of M. P. reported in 1974 Mh. L. J. p. 16; (iii) Moti vs. State of U. P. reported in 2003 SCC (Cri) 1821; (iv) Gabsingh vs. State of M. P. reported in 2004 (2) EFR 514; (v) Nachhettar Singh vs. State of Punjab reported in AIR 1976 SC 951; (vi) Bharat vs. State of M. P. reported in AIR 2003 SC 1433; (vii) Harjit Singh vs. State of Punjab reported in 2002 SCC (Cri) 1518; (viii) Salim Akhtar alias Mota vs. State of Uttar Pradesh reported in AIR 2003 SC 4076; (ix) Prem Prakash Mundra vs. State of Rajasthan reported in 1998 Cr. L. R. (SC) 135; and (x) Bhugdomal vs. State of Gujarat reported in AIR 1983 SC 906. ;