JAVED KHAN Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) As these four criminal appeals arise out of the same judgment of conviction and order of sentence dated 18.01.2011 passed by 1st Additional Sessions Judge, Bilaspur (C.G.), in S.T. No.09/10 convicting accused/appellant Ajay Sen in Cr.A. No.177/2011, appellant Saleem Beg in Cr.A. No.456/2011, appellant Videshi Dhruv in Cr.A. No.318/2011 under Sections 147, 148, 120-B, 302 Penal Code and sentencing each of them to undergo R.I. for six months, R.I. for one year, imprisonment for life & imprisonment for life with fine of Rs.1000.00, plus default stipulations respectively, and appellant Javed Khan in Cr.A. No.127/2011 under Sections 147 and 120- B of Penal Code & sentencing him to undergo R.I. for six months and imprisonment for life respectively, they are being disposed of by this common judgment.

(2.) In the present case, name of the deceased is Sunny Pandey, young boy aged 23 years. It is alleged that on account of previous enmity between the deceased and accused persons, on 31.07.2009 at about 11.00 pm, when the deceased was going on his motorcycle, near Tayyaba square he was stopped by the accused persons, who were waiting for him with hockey stick, baseball bat and club. It is said that the accused persons severely beaten the deceased. The incident was witnessed by Anil Pandey (PW/10). The Police was called, the injured was first taken to police station from where he was shifted to Chhattisgarh Institute of Medical Science (CIMS), Bilaspur, and during treatment in between 2- 2.30 am of 01.08.2009, the deceased made oral dying declaration before Gaya Prasad Pandey (PW/1), Sunil Prajapati (PW/6) and Bablu Pandey (PW/7) informing them that he was beaten by accused/appellant Ajay Sen in Cr.A.No.177/2011 and Videshi Dhruv in Cr.A.No.318/2011. However, dying declaration of the deceased could not be recorded by the Executive Magistrate as immediately after making oral dying declaration, deceased died at about 3.15 am on 01.08.2009.

(3.) Memorandum of accused/appellant Saleem Beg in Cr.A.No.456/2011 was recorded on 09.08.2009 vide Ex.P/19, based on which, one club was seized vide Ex.P/20. Memorandum of accused/appellant Ajay Sen in Cr.A.No.177/2011 was recorded on 18.08.2009 vide Ex.P/15, based on which, one hockey stick was seized vide Ex.P/14. Memorandum of accused/appellant Videshi Dhruv in Cr.A.No.318/2011 was recorded on 18.08.2009 vide Ex.P/16, based on which, one baseball bat was seized vide Ex.P/13. Seized articles were sent for its chemical examination and as per FSL report (Ex.P/30), blood was found on hockey stick and baseball bat, however, there is no serological report confirming its origin. After investigation, charge sheet was filed against the accused/appellants and two other persons namely Santosh Dubey @ Sonu Dubey and Sheikh Naseem Sharif @ Golu @ Mawadih showing them to be absconder. During pendency of the present appeal, Sheikh Naseem Sharif @ Golu @ Mawadih was arrested, tried separately and vide judgment and order dated 23.09.2017, he has been acquitted by the trial Judge. So far as present appellants are concerned, they were charged under Sections 147, 148, 149, 302 and 120-B of IPC.