r ^ HJGH COURT OF CHHATTISGARH AT BJLASPUR Criminai Appeal No.92S of 2005 APPELLANT: (!n Jail) RESPONDENT: Shanti @ Rambati. aged about 22 years, W/o Punem Sukhanna @ Bairam, R/o Viilage Basaguda, P.S. Basaguda, Distt. Dantewada (C.G.) Versus The State of Chhattlsgarh, Through P.S. Basaguda, Distt. Dantewada (C.G.) {Criminal appeai under Section 374 (2) ofthe Code ofCrimina! Procedure, 1973} Present: ivliss Shipra Biswas, counsel for the appeiiant. IVIr. Pankaj Shnvastava, Panel Lawyer for the State/respondent. Singje Bench: Hon'bie^Mr^T^P, Shamia^J, (ORADJUTOiMINT (Delivered on 12{hAu9Ust, 2008) 1. This appeal is dlrected against the judgment of conviction and order of sentence dated 5 October, 2005 passed by the Additiona! Sessions Judge, Dantewada in Sessions Triat No.18/2003 whereby & whereunder learned Additional Sessions Judge after hoiding the accused/appellant guilty for commission of offence under Section 392 of the i.P.C., sentenced her to undergo R.l. for seven years. 2. The Impugned judgment is chalienged on the ground that without any factum of IdentJfication, learned trial Court has convicted and sentenced the appeliant as aforementioned. 3. Co-accused Pandu Ram has fiied Criminal Appeal No.896/2005 which has been dismlssed as not pressed vide order dated 15-11-2007 on ms. m $S) the ground that he has already been released from jail after undergoing the sentence imposed upon him. 4. Case of the prosecution, in brief, is that on 13-9-2002 at about 12 mid night, four persons Inciuding the present appeilant knocked the door of complainant Rajauram, when he opened the door, they asked him that why he did not follow their directions and he did not met them. They demanded Rs.10,000/- from him, but he was not able to give Rs.10,000/- and he gave Rs.1,000/- to them. Thereafter, they went towards the vliiage, convened a meeting in the viilage and demanded money illegally from the Sarpanch, Secretary and other persons. The complainant has not reported the matter on account of fear and when the Poilce came to his viltage after 2-3 days, he narrated the incident to the Police. The appellant and other co-accused persons have been identlfied bythe complainantvide identification memo Ex.P-1. 5. After compJetlon of investigation, charge sheet was filed before the Chief Judiclai Magistrate, Dantewada, who in tum committed the case to the SessJons Jud.ge, Dantewada, from where learned Additjonai Sessions Judge. Dantewada, received the case on transfer for trial. 6. The prosecution in order to prove the guilt of the accused persons has examined as many as four witnesses. Statements of the accused persons have been recorded under Section 313 ofthe Cr.P.C. In which they have denied the circumstances appearing against them In the prosecution evidence, pleaded innocence and false impiication. 7, I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. ^ •^Jy/ '^^K^' '< r ,^ 8. it is argued on behalf of the appeiiant that the prosecution has not proved its case beyond reasonable doubt and there is nothing to connect the appeiiant with the crime in question, especially in the absence of Jdentification. The complainant has seen the appellant for the flrst time when she was in poiice custody. 9. On the other hand, the impugned judgment is supported on behalf of the State/respondent. It is argued on behalf of the State/respondent that although the compiainant has seen the appellant in the police custody, but the appellant was got jdentified by the independent witness who is Sarpanch, which itself is sufficient on the questlon of identification. 10.1n the case of robbery the prosecution is required to establish that the appellant had committed theft or extortion by votuntarily causing or attempting to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restrajnt. 11.in order to appreciate the contention of the parties. i have examined the statements of the prosecution witnesses. Rajauram (PW-1), who is the complajnant, has stated in his evidence that on the fateful day at about 12 mid night when he was sleeping in his house, some persons came to his house and knocked the door, when he opened the door, he saw that four persons in Naxalite dresses were standing there out of which one was woman, they were armed with guns. They asked him that they had sent message to him, but why he did not meet them. They have also said that he is having vehicle, therefore he shouid give Rs.10,000/- to them on which he has shown his inability and lastiy, he gave Rs.1,000/- to them. Thereafter, those persons went in the viilage, R" T5-^) convened a meeting and demanded Rs.50,000/- each from Sarpanch & Secretary, and also directed the viilagers to deposit Rs.45/- per head by the evening of the same day. Thereafter, he identified the appeliant who has committed robbery along with other co-accused persons, vide identification memo Ex.P-1. 12.Dayaiuram (PW-3). Sarpanch, has supported the statement of the' complainant (PW-1) and stated in his evidence that the Naxalites convened meeting and demanded Rs.50,000/- from him, the present appeliant was also present amongst the four accused persons. He has identified the appellant in identification memo Ex.P-1. 13.The identification parade was conducted by G.R. Kuihada (PW-4) who has stated in his evidence that he has conducted Identification parade and the appeilant was identified by the witnesses vide Ex.P-1 . Nothing has been elicited by the defence in the testimony of PW-4 that he has not conducted identification in accordance with the procedure prescribed. 14.Rajauram (PW-1) has admitted in his cross-examination that prior to the identification parade he has seen the appellant while she was in poiice custody. Guman Singh Thakur (PW-2) has not supported the case of the prosecution, but in his examination-in-chief, he has stated that there was a meeting in the village convened by the Naxaiites. Dayaluram (PW-3) has aiso admitted in para 5 of his evidence that he has identified the appeilant when they came along with the Poiice. 15-Rajauram (PW-1) & Dayaluram (PW-3) are the persons to whom the appellant atong with other co-accused has demanded money and on that basis these two witnesses had the opportunity of identifying the appellant that she was one of the Naxalite members who was .^y^. ^'lg»;l ^J..^ v:'^ ^r".^ L^ demanding money. There is some discrepancy reiating to test identification that probabiy prior to the test identification parade these witnesses have the opportunity to see the appellant. but both the witnesses had identified the appellant in the dock identification conducted after lapse of one year of the incident. The dock identification is a substantive piece of evidence in which these witnesses have stated that the appellant along with other accused persons has convened the meeting and demanded money. 16.Taking into consideration the dock identification it may be presumed that the appellant is one of the persons who has committed robbery on complainant Rajauram on the fateful day at 12 mid night, After appreciating the evidence avaiiable on record, iearned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 17.The appellant is resident of Village Basaguda, Distt. Dantewada which is a Naxalite affected area. Some robbery has been committed on the fateful day at 12 mid night after knocking the door of the complainant by some Naxaiites. Looking to the facts and cjrcumstances of the case, the appellant does not deserve any sympathy. The trlal Court has rightiy convicted and sentenced the appeilant. as such, no interference is caJled for in this appeal and the criminal appeal is liable to be dismissed, it is accordingly, dismissed. Soma Sd/- T.P. Sharma Judge