The Chhattisgarh High Court held that Section 27 of the Evidence Act will be applicable when recovery of an incriminating article is done from a visible place through the Bench of Justice Sanjay K. Agrawal and Justice Sanjay S. Agrawal in the case of Ramvriksh v. State of Chhattisgarh (Criminal Appeal No.376 of 2014 )
FACTS OF THE CASE:
Julan (wife) of the deceased (Sohna) allegedly eloped with the appellant/accused and began to live in the mountains. Dhani Ram (PW3) informed the deceased that his wife was with the accused in the nearby forest mountains. Following that, both the deceased and Dhaniram went to the location where they were both present and staying. The deceased requested that his wife accompany him, but the accused / appellant stated that he would take her and drive her to the village.
Following that, all four returned to their village. Dhaniram (PW3) stayed on the way to answer the call of nature, and the deceased continued to his village, where Dhaniram heard the noise of a gunshot injury. When he arrived, he discovered the deceased dead on the floor and stated that the gunshot injury was caused by the appellant herein. The Trial Court convicted him under Section 302 of the IPC and Sections 25(1B) and 27 of the Arms Act and sentenced him to life imprisonment, against which the appellant filed this appeal.
The trial Court upon appreciation of oral and documentary evidence available on record, acquitted the appellant of the charge under Section 3(2)(5) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, however, convicted him under Section 302 of the IPC and Sections 25(1B) and 27 of the Arms Act and sentenced him as aforementioned, against which, the appeal was preferred.
JUDGEMENT:
The Court observed that , a statement under Section 161 CrPC and supplementary statement under Section 161 CrPC and statement under Section 164 CrPC cannot be relied upon by the defence and by the Court also as Dhaniram has not been contradicted by and on behalf of the appellant / defence and the defence has not complied the mandate of Section 145 of the Evidence Act which was mandatory in view of decision of the Supreme Court in V.K.Misha and another v. State of Uttarakhand and another.
The Court noted that there was a delay in lodging the FIR that had not been explained satisfactorily by the prosecution and thereby, it was held that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of the IPC The Court also noted that during his (PW3) examination before the Court, the appellant did not confront or contradict Dhaniram’s statement under Section 161 CrPC. The Court noted that the incident occurred on September 25, 2008, whereas the pistol was recovered on August 19, 2009 (11 months after the incident), and that too from the dense forest and accessible to all, and it was not clear whether it was visible to all, but it remained in dense forest for more than 11 months. The appellant had also been convicted for offence under Sections 25(1B) and 27 of the Arms Act and sentenced accordingly. The Court also recorded the finding that the prosecution could not establish that it is the appellant who used countrymade pistol in shooting deceased Sohna.
In light of the foregoing, the conviction awarded for offence under Section 27 of the Arms Act was set aside , however, the conviction and sentence of the appellant for offence under Section 25(1B) of the Arms Act was upheld.
Thus, the criminal appeal was partly allowed.
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JUDGEMENT REVIEWED BY REETI SHETTY
