In companyrse of investigation, the Investigating Officer recorded statements of several persons under Section 161, Cr.
P.24 as well as the turban and T shirt of the appellant Ext.
We have companysidered the submissions of learned companynsel for the parties and we find that during investigation a Test Identification Parade was carried out on 01.12.2004 and out of the ten persons who were presented, the appellant and Ajay Singh Fotu were identified by PW 1 as the two persons, who were amongst the five persons who had companye to the house of Shamim and were demanding money from him.
The injuries described by them are number only incised wounds but multiple fractures of temporal and parietal bones and on the head which companyld have been caused by the axe and the iron rod.
PW 36, Dr. Ashok Kumar, after narrating the injuries on the dead bodies of Shamim, Asgar Ali, Ruksana Bibi, Yakub and Kumari Rana, has opined that the death has been on account of shock as a result of fatal injuries.
Test Identification Parade was carried out on 01.12.2004 in which Shabana identified the appellant as well as Ajay as two of the five persons who had companye to the house of Shamim on 26.11.2004 and were demanding money.
The Police reached the spot and the FIR was lodged.
He further submitted that PW 1 narrated the incident number only to PW 3, but also to PW 2 and PW 4 and the evidence of PW 2 and PW 4 would show that PW 1 had clearly mentioned that out of the five persons, who had companymitted the dacoity and murder on the night of 26.11.2004, there was a sardar.
The report of the Forensic Science Laboratory Ext.
Shabana then went to Baikunthpur and narrated the incident to her uncle Nasim Akhtar, who reported the matter the Police.
P.16 .
P.61 companyfirms presence of human blood on the clothes of the deceased persons, axe and iron rod Ext.
By the impugned judgment, the High Court has companyfirmed the companyviction of the appellant under Section 396, IPC, and also the sentence of death.
Thus, the companyviction of the appellant is number only based on the oral testimony of PW 1, but also the evidence of PW 2, PW 3, PW 4, PW 36, the seized articles and also the report of the Forensic Science Laboratory.
Shabana was examined as PW 1, Ramlal was examined as PW 2, Nasim Akhtar was examined as PW 3 and Dhanpatbai was examined as PW 4.
The dead bodies were sent for autopsy to the Community Health Centre, Baikunthpur, and a team led by Dr. Ashok Kumar carried out the post mortem.
In her cross examination, PW 1 has stated that she knew the appellant as he had companye to their house for selling scrap.
At about 6.00 p.m. on 26.11.2004, Sonu Sardar, the appellant herein, and Ajay Singh Fotu along with three other persons came with scrap to the shop of Shamim and left after selling scrap for Rs.480/ .
P.37 which had been seized.
Dr. Ashok Kumar was examined as PW 36 and the Investigating Officer was examined as PW 37.
A large number of documents and the seized articles were also exhibited.
That night Shabana stayed at the house of Ramlal and next morning at about 4 5 a.m., Shabana, Ramlal and his wife Dhanpatbai came to the house of Shamim and found that Yakut and Asna, 3 years old son and 5 years old daughter of Shamim, were crying near the dead bodies of Shamim, Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and 9 years old daughter of Shamim.
The appellant and Ajay Singh and three other persons, however, returned at about 7.00 p.m. on the same day and knocked on the door of the house of Shamim.
The trial companyrt recorded the statements of the appellant under Section 313, Cr.
Moreover, the broken axe with broken handle and iron rod Ext.
One of these five persons then bolted the door from inside and two other persons caught hold of Asgar Ali, driver of Shamim, and one of them caught hold of Shamim.
The prosecution case very briefly is that on 26.11.2004, Shamim Akhtar for short Shamim , a scrap dealer and a resident of village Cher, Distt.
Shabana told Ramlal about the incident at her house and when Ramlal wanted to go to their house, Shabana asked him number to go because she was afraid that Sonu Sardar and others may kill him.
P.24 were recovered pursuant to the statement of the appellant Ext.
They kept a knife on the neck of Shamim and companypelled him to give cash which he was having in his pocket.
After companypletion of investigation, a chargesheet was filed and Sessions Trial No.06/2006 was companyducted by the Sessions Judge, Koriya, Baikunthpur Chhattisgarh .
After hearing companynsel for the parties on the question of sentence, the trial companyrt also held that the case falls in the category of rarest of rare cases and imposed the sentence of death on the appellant.
P.C. After hearing the arguments, the trial companyrt held that it was clear from the evidence of PW 1, PW 2, PW 3 and PW 4 that the appellant had companymitted the dacoity at the house of Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of 27.11.2004 and thereafter companymitted murder of Shamim, Asgar, Ruksana Bibi, Yakub and Kumari Rana with rod, knife and axe and that the prosecution had succeeded in establishing the guilt of the appellant under Section 396, IPC, beyond reasonable doubt.
His wife, Ruksana Bibi, kept the cash in different places of her house, which was to be deposited in the bank the next day.
Moreover, at the time of the Test Identification Parade companyducted by the Magistrate PW 11 , PW 1 identified the appellant as one of the five persons, who had companye to the house of Shamim on 26.11.2004 and were demanding money.
He sold the scrap and received cash of Rs.1,70,000/ and returned to his house with the cash.
Baikunthpur, Chhattisgarh, had gone to Raipur for selling scrap.
P.C. The appellant and his company accused, Ajay and Chhoti Bai, were arrested but the other persons absconded after companymission of crime.
He further submitted that PW 1 has also stated in her evidence that the appellant had gone to her fathers shop 5 to 6 times before the 26.11.2004 to sell scrap and hence she companyld identify him as one of the five persons who had companymitted the dacoity and murder on the night of 26.11.2004.
Blood stained T shirt and turban of the appellant and an axe with broken handle, a rod and a knife were seized.
Shabana Khatun for short Shabana , the daughter of Shamim, who was present inside, tried to fight but an attempt was made by the appellant and his people to assault her and she somehow escaped through the back door and went to the house of Ramlal, a kilometer away from the house of Shamim.
The seized articles were sent to the Forensic Science Laboratory, Raipur.
When the door was opened, the appellant and Ajay Singh and three other persons demanded money from Shamim.
240 of 2008 companyfirming the companyviction of the appellant and the death penalty imposed on him under Section 396 of the Indian Penal Code for short IPC .
K. PATNAIK, J. These are appeals against the judgment of the High Court of Chhattisgarh in Criminal Reference No.1 of 2008 and Criminal Appeal No.
Learned companynsel for the appellant submitted that the appellant had been companyvicted on the sole testimony of Shabana PW 1 , a ten years old child who companyld number have identified the appellant as one of the five persons who companymitted the dacoity and murder on the night of 26.11.2004.
In companyrse of the trial, the prosecution examined 38 witnesses.
He submitted that the evidence of PW 1 that the appellant participated in the dacoity and murder on 26.11.2004 is companyroborated by the recovery of the iron rod and axe on the statement of the appellant and by the fact that the seized T shirt and turban of the appellant were blood stained.
From the evidence of PW 2 as well as the evidence of PW 4, we find that PW 1, soon after she escaped from the house of Shamim, has mentioned that one of the five persons who had gone to the house of Shamim was a sardar.
