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Section 27 of the Evidence Act will be applicable when recovery of an incriminating article is done from a visible place: Chhattisgarh High Court

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

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