:1: IN THEHIGH.COURT OF_JUDIC.2,TURE OF CHHATTISOARH AT BILASpUR. fe/ ~Z/-^-G=Li- "~T~—''_^{C^T/~C~~^, GRIMINAL APPEAL tJOI^\%S /zSog. ^?r./^ ^-15/67^ APPELAANTS (2n Jail} .-'" J3'.? </'^' .y </^'\^~ 6/^ ^ .^.••"^' ••' i /'^•' / $' " <t-- ^c • ^}.-' /<? ^.••^•'.. <^-- ^' ^•'•A.1 ..- <^.<^ :'•• •oA ; 1. oulab Khan s/o Mansoor Ahnad, Age about 22 yeacs, R/o Ameenpur, P.S. Kataril.Distt.Allahabad (U.PS. 2. VAnod Kumar S/o Anand Nsg, 'Ags about 21 years, R/o Sanj'ay Nagar» Bodhghat, Jagdalpur (C.G)» ~3. Shabbir @ Shabbu s/o Husain Beg , Age abojt 19 years, R/o Jawshar Nagar, Jagdalpur (C.G). 4. Miriaz Khan @ ouddu S/o NuruddJ.ng, Age about 23 years, R/o Near Masjld, Geedan, Dlstto Dantevada (C.O). VERSUS Rss.poNDarr : The State of chhattj.sgarh. MaiORANDUM.O£APP_E2iLUNpER._SECTiaN,374 OF THS CODE OP CRXMlNAL, PROCEDURE. XI-HC-78 *ii*icii arq 'SBl •^Wfvi^, (STflu'IS, RlMK-fy ^•^^••^5/-^200 341^1 yd* (i^I^^) an^T^Tf^IW (raTsn^T^iilt) gTaraRHfsa'sn^T Dmsion Bencn: Hr. L.C. 1 22-2-2007 •Vir. Y.C. 5hc"ma, coL'nsel fop;' AAr. Akhi! Atishra. Pans! Lswyeit Orai jud9ment dictoted on Oaf This sppes! is directed agoins^ of sentence dated 12-4-2002 passsc| Baloda Bazoar. in Ssssions Triai No.1 Ssssions Judge sfter holding eceus^ Shabbse" ®Shabboo & Minaz Khs offsncs una'er 5ections 397 & 302 sccused to undergo R.I. for savar, yeo and pay 2 fina of Rs.SOO/-, in defsu!t| R.I. for six months, res&ectiveiv. • Cass of the prosacution, in br r-ssideiit of Jagdolpu", a'cs ijforking "sqistrstion No.AW-£3/i5-5230of a'h. :he;-wsRi was the "egistered owner'. p.999 fro?r, jQgdQ'pur to Biiaspur and +l«fd4)-<Nl^d1'fr'fel<'1 <Rl^K ^)3ri^IT3I1^?T e appsllants. for the Stcte/resoondent. the Judgment of conviction and or-de" by the 2 Additionai Sessions Judge, (351/2001, whereby isamsd Additions! ^/cppallants Sulsb Khcn, Vinod Kumar, n @ Suddu guiity fo-r' commission of of ths I.P.C., santeneed each of the [s and to undsrgo iwprisonment for !ife of paymsnt of fine to further undergo , is that deceased Sssntosh Kashycp, csN driyer of Tata Sumo vshic'a bsarins i|ch PV»/-17Yusuf Sherwsnl's ralfe Jstun The scid vehicje 'sss hired on 25-5- i^ext dcy, the body of Santoah Kashysp P.T.O. u XI-HC-78 HIH^I ai*fra» ^sst -iii<ii<'iti, (iiTTlu'is, Rdiuy ^-^.^.•A'.^.^.l. W[ 200 341^1 4d«b(li?^'st^) sn^iwfeN; clW3I1^T5RIIRi ?Riw:(rf?a'3n^T wcs found nesr Stmfls on Scirors Siti siitimotion Ex.P-5 was given by &op SiiTi9s ^° -ne e'F'fs=t th0* l''i the 1^1 returnin9 from ths pond to hls hoij| Sanat Tnskur informed him thct onl dsad body is !ying, on which he ws'r|- )er'sor, Syfid about 25-30 yecrs. After "eceivirsg this mero Ir^- Poiice Stotion; Simqa, ieft for ths nctice Ex.P-6 to l-he Panchas, 'ne pr-e| unknown person. Under Ex.P'-S, he s< comb and 5 ha!f burnt bidi buds. Ha| of Royo! Club coiripcny, piain soii ond ssized pieces of hair which were in Ex.P-10. Cioth.es o-f the dsceased wh ws.re. seized under Ex.P-11. The body i'o MekQhcra Hospitsi, Rdpur, where iTior-tem on the body of the deceased wss eorna due to hasd injury snd th prspsr-ed post-mortem , rsport cx.P-2[ bccurrsnce was orepored bv the Pati,- ^iven by Sct/endra Pandey, Station scssd on t'hst, first informction nvsst'iqction, hairs ofacciised persi <*)i'iit<-iifi-< 4it<<-iTffrs'<fl <R]»|< ^i3ri^IT3n^T inkra PVi/& rosd nesr a culvei't. ti'':sr'g las pW-3), Kotwa", in Police Station; icrning at c'ooiit 8 a.m. when he wcs ss after tsking bath, vi!ic9e Scrpanch SQrora Ssnkra rocd near s cuivert. s to '•'•he plaza snd ssw the body of a Itimation, the Station HOUS£ Office", icene of occi4rTencs and after giving >sred inquest Ex.P-7 on the body of sn ized one snipty match box, one pocket a!so seized one belt, one pair of shoes llood stainsd soii undar Ex.P-9. He also t>oth the fists of ths decessed 'jndsr' lich wiers qiven by AAekdiarc HosDitcl was aent for post-mortsm excminction Sr. Arvind Neraiwar condueted post- and he opinsd that the cause of death te death was hornlcidai in nsturs. He '^. Sits pian Ex.P-25 of the pisce of Issri HaikG. Dehati Nolishi Ex.P-35 wcs House Officzr, PoSiee Station; Simge, j^ort Ex.P-36 WIQS registered. Quring >hs Shsbbir Beq, 6ulsb, Minaz lChcrn & P.T.O. reitiort tl^ XI-HC-78 *11+<MI 9)HT^h 'SSf '^{•tfM'lf, SiTn+1'16, fsldiwy ^.&..A....^^:/. ^ 200^- Sll^i 4acn (yiIa'iq.'T) sn^r^Tf^fNi (IWail^lsh^W ?TdTW:gf?(T3n^r cn4fi Vinod Kuwar wei*e seized under Exdi eustody, cccused Shabbir Beg govs r^, thct, Rs.l,280A and one fuii shirt Ex.P-17. Accussd Vinod Kurnar gavsl sf that, Rs.2,000/- wsre ssizsd Une memorandurn Ex.P-14 and in pursucn^i voiuing Rs.l,5CK}/- were ssized und^ memorcndum Ex.P-14*A and in pur"suai|! one fu!i shirt were seized under ExJ Ex.P-23. Accussd Rcj Narayan gavej of that, Rs.7CX3/- were seized undet unde,- Ex.P-22. Seized ctethes ifd; Forensic Science Lciboratory, Scgar, wcs recsived. udi Aftsr compietion cf invastigi accused per'sons in ~ha Coui't of Ji turn committed the case to ths Ses^i 2 ,4dditionai Seselons Jucge, Bolod^i for triai. Howevsr, accused Rsj NS!^ sn bail and thev iuffloed the bai'. pr'eser!+ four acsussd/sppellants. In order to sstAiish pr'osecution exQfflinad 18 witnesses. »hi'iifn<fl-i>iiH(-iTtftecA<Riwi< ^isri^iTsn^r [.P-l to P-4, respectiveiy. During poiice r^emorandum Ex.P-12 snd in pursuance of Istsinsd with btood lA'ars seized undar rneniorancium Ex.P-13 and in aursuance fer &<.P-18. Accused Minoz Khan oave i fhat, °s.lO,QOO/- snd one goiden ring Ex.P-19. Accussd Suisb Khan gsve :e of thst, cn amount of Rs.10,500/- A :P-20, cnd ons Katscr wos seizsd under memorondum Ex.P-15 and in pursuonce Ex.P-21 and one air bog wsre seizad ;re sent for chemicai excminction to vom where the r-eport dated 10-9-1999 crfion chiyge shest was filed agcinst the ^iciai AAagistrate, Baloda Bazsar", who in jionfi Judge, ftajpur, from where learned Bszao", rsceived the ease on transfer jayan & Chunnu @ Mobin wsrs rsieosed Therefore. tris! Droceedad agdnst tha char^e agsinst ths accused psrsons, the Statsmsnts of the accused persons P.T.O. IC9 XI-HC-78 *llHWI Sh^lch 3^ '^WM^, W^\W\6, Rldl'My .& f\ • 4-75-/ ^ 200 Sli^l tisitti (li?li^^tT) 3Tl^r?iTf?^i ci^T'^11^1 sb^it ??(ITW:?rf?(T3{]^T k'are recorded under Ssction 313 of <*>l-i|fcf4lHWRft''fffWt': ^sil^irsn^r the CrP.C. in u»h!ch They denieo' rhe matsriGi appearino against them in t|!s prosecution evidence, they pleaded innocenca cand submitted thst thev hci'e been implicated in a foise ccse. Learned Additionai Sesaions [Tud9e aftsr hsaring counsel for the :'arties convicted and sentenced tlne <jscused/appei!ants as aforamentioned. ^, We hsve hecrd M". Y.C. Shaijma, learned counsel for the accused/ appeiiants and Mr. Akhii. Mishrs, !s^rned Psne! Lawyer on behcif of ihe S+ate/resoor.dent. At the outsst. M". V.C. Sharmla has not disouted the hon'icidat deeth of Santosh Kashyap. Moreover, &r. "is evidsnce thst on 27-5-1999 when Forensic Scisncs Department of ^Ae^ Arvind Nersiwar (PW-12) has ststed in he t'.'as workina ss &emonst"Qtor in the ical Colle9£,Raipu", he conducted post- mortem on the body of an unknown j^erson and there wos a lacerated wound ;n ieft eor and on Seft sids of the f deap; contusion & sbrasion on ri9'nt s 'iia'nt side of ths fcce in ths slze of scs in ths size of 5 cms. x. 3 cms. bons de of the facs in the size of S cms. x 3 cms. cr-sc; fr'scture of iow jaiv; abrejsion & contusion on right side of chest and on "iqht shoulder in the size of 1P c.TiS. x 4 cms.; abrasion Acontusion on 3 cms. x 2 cms.; marks of nyfon "ope on ths thyToid csrtiia9e in the size of 0.75 cms. to 1.25 cms. in width, the ?nar'ks ware connected 'i*h corhers parieta! bcne snd there ®cshaeworil cause of death wcss :oma ss a resl lof each one. the ma"ks a'ere hor-izontai cnd ths marks we"s post-mortsm in (isture. There was frseture of temporQ' hags \r, ths tamporo! pcrieta! area. Tne jit of head iniun/. Ths in.iuries were P.T.O. hf L( •T-—~—-.. ^»r E XI-HC-78 +ii^wi aiw^i 3ST ^iqidAl, yTfl'M'16, (s|CIIW^< ^-^.&..fi...'^7.^ ^T 200 3ii^i Mach (^cii.^ct^.gr) 3:n^?r'iiT)^iRi (T8IT3iraTsbtl|ch S^ITW^fttTSn^T sufficisnt in the ordinarv coupse of di hoi'iicida! in naturs. Ther'efore. i) horaicidci in nctiire. 1 As far QS invol'/emant of tli -questlon is concerned, t'ner'e is no rssts on the cir-cumstantia! evidenci cowictlon based on tha eircums+sn'l Apex Court in the matte" of &han^ reported in (1994) 2 SCC 220: "In a cass based o>( eifeumstanees from vi'Hi be drawn hsvs not oniv1 that ali the ci>'cumstan^ cc'nclusivs nsture'1 hypothesis of the cjrcumstances shouid nfc by any other hypothesi; and the chein of the not to iesve cny rsafc consistent with ths ii no i'en'indsr' thct legali| not mer'elv indianatian of conyiction snd ths| grestsr should bs +h4 svidance les' suspieion TTia prosecution has tried to :rims in question on ths foliowin9 dr'^um 1. that. deceassd Santosh informed his ownsr Yusuf 31 tt>i<ifd41-i 4i^dTil''tetit'tRi+t;i< ^isiRrq'sn^T ature to csuse decth and the death wcs is estabiiahsd thct the decth wss s accused/apoeilants 'vn the crime in t!. rpect evidencs in this case. The case •As'per the settied IGW fsr resting •is! evidencs as hcs been hald by the circumstantia! evidence. ths vi'Hich tha eonclusion of (iuiit is to to be fu!iy estabiishad but a!so :ss so estabiished should be of s ary consistent on'y with the luilt of ths sccussd. ~~^s n^t be capabie of bein9 sxp'i,.-1 d except the guilt of the accti^d e^idence must bs so contDlete as rea^onable ground for the beiief innbcence of the cccused. It-neads \f established cir'cumstcnces and bf the csurt con form the bssis more serious the cr-ime, the cars taken to scrutinize ths [•akes the piacs of pr'oof." connect the cccused persons with the istancss;- whiSe takina Tatc Sumo Jeep herwani (PW-17) thet ths vehicle is P.T.O. y !( '. XI-HC-78 HI*1WI Sh*1ich 3^ '^NKI'M, ®Tfl<1'16,(sl<-liy^< .&..9::.^Z5:/. ^IT 200^. 311^1 4^1*] (lclid's)'l.(T) "an^r ^r R-fi'* ^TT3T^TaTirR; ?t<nw af?tT sn^r »bi<]lfi41-itiii<'tTfftei^l'<Ri«i< ^3Tl^OT3:I1^T requlred by his friend V'nod officsr's famiiy to Bilaspur; 2. thct, sccused Vinod Kuniar w^\ Ex.P-13 cnd in pijrsacnce o- t!^ the vehicle wer'e seizad undsr.l 3. that, accused Sulab Khan wh| Ex.P-14A snd in pursucncs of| the soie monsy sf the vshic!e Pstta in the shape of Kstaar t^ 4. that. accused Shabbeer whill Ex.P-12 "sgcrding the cmoiin vehicle and in pursuanse of the vehicle and one shirt'.stail 17; and 5. thGt. sccussd Minaz Khan wh| Ex.P-14 regcrding the cimoun- vehicla ond in pursuonce of purchcsed from the sa!s mo Ex.P-3.9. Kuwar 'or the purpose of taking his ^iie in po!ice custody gavs msmorsndum t!-|at, Rs.SpOO/- out of the sale monsy of fe.P-13; !e tp poiice custody 9cve memoraridum that, an omount of Rs.10,500/- out of >vas seized under Ex.P-20 and one iron «ii|aaseized under Ex.P-23; l^ in polics custody ga'e msmorandum :|- of Rs.4,000/- of scle nnoney o" the Rs.1,280/- out of the scle money of tied ivith blood wers seizad under Ex-P- tHst le in police custody gcve memorandum of Rs.l5,000/-—fsale rnoney of the |!-hat, Rs.10,000/-'" :'d one golden ring hev of the vehicie wers seizsd under Cofflin9 to the first circums^ -.vhiie •'i'skina the vehicis' informed vshicle. thot tha vshic!e is "equired ths purpose of tsking the familyof l^ bsen exsmined es PW-17. In his 1-ance that dececssd Santosh Ksshyap ^usuf Sherwani (PW-17), owner of ths |by his frisnd accused Vinod K.umar for |is boss to Bi'asBur, Yusuf Sherwani has his evidence he has stcted that on ths dcte of P.T.O. XI-HC-78 (TTtTCTT Sh«TT^i 3^T •^l'illd-M, »Tn*f'16,Rlfliuy .fe;A-..fc?.^ ^ 200 311^1 ^^ti (yit'lc"\iEr) sn^r.wf^ri^; tWSn^Tshlliqi ^tiTW^fsa'an^T memWrs incident, in the eyening, he was ot hi^ came to him and said thct he hss a f| Sovarnment vehicle. as the vehicls thsrefors, vehicle \s required for on tfhich ha perrnitted Scntosh <Kashj him. Santosh Kcshysp took the vehi^l days, nor hs recsived any informa^ wherssbouts f"om his fsmitv known. Hs went to Polics Statii Tliereaftsr. he saw ths ohoto of his brother who csma to Police Thsreaftsr, brothsr of 'Santosh Kos body was of his brother. The Tstc S far. In cross-exsffliriotion, this w'r "hat ot the tsms of giving potice stot^ name of Vinod. Santosh Kashycp his c"iver friend of Jagdalpur for the Biiospur. Hs further stctsd thct he ta^ing cln Now, the qusstion remains as th.is witness PW-17) the prosecu+ accused VSnod Kumsr was the person taking t'ne farnily of his boas. ^OTfwft^ WRff ff tecfl-tf^TRR ^aiRriTsn^r shop, at sbout 7 p.rs. Scntosh Ksshysp 'iend ncmed Vinod N<g who is drivsr of of Vinod Nag hss gone out of order, king the fsmily of his boss to Bilaspur, /ap to tske ths vehicie afte" [movmr.g le, but he did not rsturn evsn aftar 3-4 ion, therefors, he enquired about his but his whereabouts couid not be ]: Bodhghat ond iodged the "eport. Kashycp and he took that photo to Station: Simgs to take the body. coms cnd informed him thst the umo vshicle hcs not been trsced out so Yusuf Sherwani (PW-17) hos stated .rnent, hs fflight not have menTioned the him thst the vehicte is requirec' by ; purpose of takin9 family of his boss to wss not knowinq the nsme of Vinod tiii Scntl'osh Ko^hyap tn^ss l-o whsther from the above evideRce of lon has bsen d3ie to establish thct ^vho took the vehicie for the purpose of P.T.O. ~T~——-. .-_,_ XI-HC-78 HTl^ll Sb+licb ^ST '-4i-i|i<'i<4, aifl^'is, (s|<-iiy^< ^.<h.A.^/...^,oo^ 3ll^l ^•»<t>(yit'i°«^ST) 3rf^T?;rR-fi»h gw-Miwawro 5TaT8iKHf?(r3n^T YLiSuf Sherwani pVV-1-7) has he was not knowina the name of Virisd him. In order to prove that accus^d vehicle, tha best piscs of evidence report 'odged by Yusuf Sherwani,.{Py/- Santos'h KsshysD did not csturn forl taken ths vshicla and decessed Scn1 (PW-17) about the same, then thst f|: reoort wouid haye bsen the best o| whether Ssntosh Ksshysp befors Shei'iA'ani pW-17) that his friend Vin|od vehicte for ths purpose of taking th^ is why he is taking the vehicle. The are bast known to the prosscution. Virtod Other circLimstance by which the occussd persons with the cr'ime is that after committing tha 'murder' was tsksn aww and sold somewher'^ Rs.50,000/-, out of thst amount cs p| Viriod, Rs.4,000/- cams to his shar| smount of Rs.4,000/-, Rs.2,000/- Ex.P-18. Independent witnesses to wars Scnct Kumcr (PW-5) snd J'agan!^ =hi-!it<-i4l-) ^i*<rfr'Trfei^)"<(ai^i<. ^stf^q'sn^r (^<3tegorical!y stcted in his svidence that Nsg, but he had an occasion to see ;4d Vinod was the person who took the ^ivailobls with the prosecution wcs the '-17) in Poiics Ststion; Bodhghct when 3-4 days. If ct sii accused Vinod hcd tosh Kashycp informed Yusuf Sherwani b=t must have mentionsd thareir!. That lecs of evidencs in ordsr to estab!ish Isaving "°'' Bilcspur informed Yusuf !, the accused/cppellant herein, needs fsmi!y of his boss to Biliispur and thst ^•easons for suppression of that report the orosecution has tried to connect n question ss per 'rhs prosecuticn csss, of Santosh KashyQp, Tats Sumo vehicie else in Uttar Prtadesh st ths cost of k" +he mamor'cndum Ex.P-13 sf accused b. It is stoted that out of tha said w^re recoversd from the accused under (he ffleir.orandum snd the seizure memo 1adh Ycdu. P.T.O. XI-HC-78 *TI«TCTT Sht<|ch 'SSt ^ww^, (S'Tfltf'16, (s<<?fl<iy •Cv...i}..^7.: / 3ii^i Macti (>lcli4°f<!iT) ^T 200-s^ sn^T^rf^TR? t[SIT3n^Tstlt|iqi .* ??ciTW;a1?(T3:n^r wh^the tha maitis i()SS In the first instsnce,-Investl recorded the sald mefflor'andum ancf exami'ned by the prosscution in spi prosscution, only A.S. Khan (PW-16),] has sirnpiy stated thst the^seizurs signature of Satyendrc Pcndey. svidence befor-a the Court that ntemorandum Ex.P-13-to the effsct out of the sc!e money of tha vehicle the ssme recovered, has not been before whom the disciosure was Pandsy wos not alive or it-wce not ptj^ serviant. Moreover, in this.memor'dr whsre he kept Rs.4,000/-. Even the to have bssn thr-own in Chiiifi 6hsti| indepsndent witnesses namely, Ssnat^ Kumar hos been sxamined ss PW-5. effect thct the poiiee psopte hcd Ql| aecussd per'so",, no statement of th^ him and meniorandLiffl Ex.P-13 besrsl being asked by Police Officer sayin^ crime, ther'efore, you sign hers", stcted thet only Rs.l,S3Q/- were sei: "owhere stated thct frorn which pl gating Officer Sstyendra Pandey who recovered the amount has not besn ip-e of ampie oppartunity gi'/en to ths the Inspector, has bsen e^smined who memo and the memorandum bear the |Tnersfore, virtusily the prosecution 4+her this accused (Vinod Kumcr) gsve ^at Rs.4,000/- which ccme to his share was ratained with him and he could get droved bv examinlnc Sch'sndrs Pandsy memor'dndum Qtte +l'i|['rl'frTi41^flTifte^t'<Rl+<;l< ^iSlRpTan^T is not the case that 5a+yend"s sible to produce him who vjos a pub!ic it has not been mentioned that ^riving iicense and purse which ars said were also not recovered. Out of tha Kumor cnd Jagannadh Yadu only Sanst IThe evidsnce of Ssnst Kumar is to the •ecdv rscorded ths stotements of the i accused person wcs rasordsd before his aignoture, he put his signature on that "the sccused has admitted the is why h'e signed. Hs has fur'ther' :ed from accused Vinod Kumsr. He heas it WQS seized. Moreovsr, •rhe ssizur's tHat P.T.O. "r"—~- - - 111 XI-HC-78 *1I»T(<TT aifl 3ST "111-41(rl-il, ®Ti1tfi|(B,fs|dlti^< ^.fe..ft..^.?4- ^R; 200^- Sll^l Wh (^\^^S[) afi^rwf^iFf? gw3iici<istiii°b s^iTW Hf?cr sn^r +i^Fd''fl-< ^it<<vi1'^'tei^l'<Riwi< ^ari^R'an^T memo mentions that Rs.2.000/- welre seized. wheress, thia witnsss hcs stated that oniy Rs.1,000/- were size|d. For the foregoing ressons, estsblish that mennorsndum EX.P- pursuance of thct the mor.ey was the currency notes to the tune of| circumstsnces, it is difficu't to question based on ths unprovsd adduce evidence to ths effsct thatl tha sccused. The Investi9Qting Of'j given ought to have come and regarding the informstion about l^ accused. Neithar tha Officsr bs( subsequent sei2ure made by him witness hss supported the prosecuti| evidsnce adduced by the prosecui'io^ the crima in question, cs such, ws prosecution has not been abie to ss\ the accused Vinod Kumar with the cr|r \hs prosecution has not been sbie to •Ip iiias given by the accused and in rdcovered from the sccused. Moreover, Rs.2,000/- wera recoversd. In the colnnect the accused with the crime in recdverii'. The orosscution was requirsd to what kind of infor'mation vsas givsn by licer before whom the information was dedosed in actua! words of the accused l^e rscovery at the instance of the fore ivhom the msmorandum and the h^s been examinsd, nor the indeper.dsn* i|on cose. Therefore, there is no other in order to connect the accused with itre of tne considered ooinion that the tab!ish the circumstancss in connsctinf |me in question. hds 'ersdns Now, coming to accused pers< AAinoz Khan @ $uddu, against whom 6ulab Khon gave memoronduin Ex.P-3 Rs.10.500/- <& one iron Patta in the ©uiabIGian, Shobbeer @ Shobboo <S the on!y cir'cumstance is that accused 1^4A, 'in pursuiincs of thst cn amount of form of KstscB" u'ere reeovered under P.T.O. XI-HC-78 *11*1WI sbNlch 'S^! ^WWt, W^WW, (sldl'My .&..ft..<^75:/ ^ 200 -2_ 3ii^i Mach (<icl(3siq'iT) 3ii^r?iTR^i<() (RT 311^1 Shtli* ?¥tfTWHf?tT3T^T °hi<<T<n41-f >iiH<~iTfr'tet3'<[a]<^i< ^Sff^ITSn^T Ex.P-20 & Ex.P-23, respeo+ively. memorandum Ex.P-12, in pursuance o recovered under Ex.P-17. Accused Ex.P-14 "egarding fts.15,000/-, out i ring were seized under Ex.P-19. ,, Accused Shdsbeer @ Shabboo gave that Rs.1,280/- end one ful! shirt wer'e \hmoz Khan @ ©uddugsvs memorandum f that only Rs.10,000/- snd ons goiden The prosecution has foiied racoveries on the same q"ound whil sccused Vinod Kumar for the reasdn bsfore SGtyendrs Pandey and recov^ not been sxQfflined and there is no] ordsr" to prove mernorandum, recov^ cccused regarding the rsemor'ondum the two independent witn^sses befpre were msde, one witnsss Ssnct Kurr,J3r been mentioned earlier', he has stotsjd had sSready recorded the statenliants stctements ware not recorded befoife his sianQture which he out on beind stoted thct the seizure niemos bedi that at the instance of the accuseil recovsred. Virtucily thare is no lega order to prove memot'andum and r^( persons. Moreove;-, mereiy on th^ difficult to connect the accusad per' |to estabiish these memoranduws and bh has been mentioned in the case of that these wefflorandums were given ^ries were elso effscted by him, hs has levidence sdducsd before ths Court in |ery and the actua! words said by the given by t'ne accused persons. Out of lore whom wernorandum and racoveries (PW-5) 'nas been sxaminad. As hss that bsfore he could reach, the Poiice of the accused osrsons. thsir him. Exs.P-12, P-13, P-14 & P-15 bear asked by ths Police Office". He clso Ir his sianature. but he hcs not stated per-sons the cmdunt a;'id ar'ticles we"e evidence adduced by the prosecution in lcovsry at the instance of ths aecused basis of the amount recovered it is sons with the crime in question, beccuse P.T.O. iniitii1"*"**""-' XI-HC-78 19 HW^fTSh+llch 3^T "i<i*iirt'i<, a-rfl'M'is, fsfiniyy ^-.(S>:a....^2;""^•••-^ 200 aii^i ^sicti (icit3°«^'ir) 3i^r^irfs:ricR tPIT3nWsh*llf ?^iTW:gf?a'sn^r h^9e curr|ency this is a very weak type of eviden) Uniess the awount recovered is so explsin the possession looking to specific ma"kin9 o" number of fhoiTi, or in whose presence^ tha,' sstablish thst the accussd per.son^ presencs and money was given to th< wr'itten document is plsced on recoq wili not be possible to connect question. tHe |:e to connect the accused with cr'ime. for which the accused is not ab's to |lis financial position or there is any notes are given or the person to Ivehicle wos sold, comss forward and spld the vehicle to them or in their accused persons in lieu thereof or any p r'e9crdln9 tha sale of iooted vehicle, it accused per-sons with ths crims in prpve There 'ie no FSL report to blood, that too of the blood group shirt of the sccused persons, <in or|Jer' question. For the forsgoing reasons, f| sentenciRg the accussd persons for 397 &. 302 of the I.P.C. cannot be su< eircumstantial evidence connacting aues+ion. At this stiags, w6 would like Sessions Judqe has framsd shcrd Section 397 of the I.P.C. and convicli of the l.P.C. Seetion 397 of the q)i<iFci<fl'f *ii*itiT?''tecfl'<Ri<^i< ^3Tf^IT3IT^r the fect that thera was any human 'f the dececsed on the Kotaar snd ful to connect them ivith the crime in nding of the tricl Court convictin9 and commission of offsnce under Sections itained, ess there is r^> !ega! snd clinchina i-he cccused persons with the crims in 'o mention hsre that iearned Additiona! s sgainst the cceused persons under ed &. sentenced them under Section 397 ;.P.C. [s not a substantive offence. It P.T.O. ffi XI-HC-78 HWW[ **41ch 3ST "LIMI.r.1^, ^Tny'lto, (elC'IKH^ ^.9?...ft.^-2^.. 3<1^1 4d* (yi(^q^) 13 WT 200 a^r^rR^icb (T8Tr3I1^Tsb*1l<ti ?T(tTW:Hf5?3TI^T t)i<<Fi-i4)-< Hi*«-iTfftec^'<Ri«i< ^;3rf^lT3IT^r prasc"ib?s minimum sentsncs when dacoity, ths offende" usss any deadl^ psrsor,, or attempts to csuse dest| irnDrisonment with which Such offedder than seven year's". Thsrefora, ?ubs1 Section 395 or 392 of the I.P.C. L*< to have chorged the accused psr^ons Section 395 ,-ead with Section 397 df 'at the time of committing robbery or waapon, or causes grievous hurt to any or grievous hurt to cny person, •rhe shall be ounished shall not be Ssss antive chcrging offence must be either ;arned Additiona! Ssssions Judge ought for commission of offence under the I.P.C. In ths result, the appeal succ snd sentences imposed upon accus^ Shabbeer @ Shabboo <S Minoz Khsn the I.P.C. ars set asida. Thev are ac( appalionts Suiab Khan, Shobbeer @^ keds and the sawe is ailowed. Conyiction d/appeilants Sulisb Khan, Vinod Kumar, |@ ©udduunder Sections 397 & 302 cf iuitted of the cbove chsrass. Accused/ Shabboo <& Minaz Khan @ Suddu sre air'eady on bsil, thair bai! bonds are jJischar'ged and they need not surrender' befors the Court. Accused/appellan')' Vinod Kumar is in detention since 15-6- 1999, he be set on liberty forthwithj if not requirsd in any other casa. ' - .v~. Sd/- L.C. Bhadoo Judge Sd/- DfflRENDRA MISHRA Judge