HIGH COURT OF CHH,aTiiSGARH, BILASPUR APPELLANT: (InJail) RESPQNDENT; APPELLANT: (InJail) RESPO_NDENT: Criminal Appeal No.565of 2006 •! Munr^a Gupta, S/o Hari Prasad Gupta, a'ged 35 years, R/o.Village Dimlg, Police StationSadar, Jeypore, Distt.1 Koraput (Orissa) Veihsus State| of Chhattisgarh, Through Polic^ Station Nagarnar, Tahsil Jagdalpur, Distt. Bastar. AMD Criminal ADpeal! No.431 of 2007 Ramp'ravesh Chaudhury, S/o Faguni Chaudhury, aged about 40 years, R/o 3eevan Beegha, PS Jamhor, Distt.iAurangabad (Bihar) Verisus State| of Chhattisgarh, Through Policei Station Nagarnar, Tahsil Jagad&lpur, Distt. Bastar (C.G.) {Criminal appeals under Sectionl 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. M.K. Baeg, counsel for the appellant in Cr.A.No.565/2006. Mr. S.C. Verma, counsel forthe appellantin Cr.A.No.431/2007. Mr. Akhil Mishra, Dy. Govt. Advocate forfhe State/respondent. @ Sinale Bench: Hon'ble Mr. T.P. Sharma. J 3UDGMENT (Delivered on 3rd August, 2009) 1. Cr.A.No.565/2006 (jail appeal) filed by Munna Gupta and Cr.A. No.431/2007 filed by Rampravesh Chaudhury have been preferred against the common judgment dated 12-7-2006 passed by the 4th Additional Sessions Judge (F.T.iC.), Jagdalpur, in Sessions Trial No.202/2005, therefore, they are| being disposed of by this common judgment. 1 2. By the aforesaid judgment of con 1/iction & order of sentence, learned Additional Sessions Judge after h jlding the accused/appellants guilty for commission of offence underiSertions 395 & 397 of the I.P.C., sentenced each of them to undergo ,-igorous imprisonment for ten ^^L^ c(^a»i. 1 "K:"re<yrt. fc •aSs^'::w -fe years & pay fine of Rs.300/-, in default of payment of fine to further undergo rigorous imprisonment for three months & to undergp rigorous irnprisonment for seven years,respective]y. 3. Judgment of conviction & order of sentence is challenged on the ground that without any iota oflevidence, learned Court below has convicted & sentenced the appellants in the aforesaid manner. 4. I have heard learned counsel ifor the parties and perused the impugned judgment as also the record ofthe trial Court. 5. Case of the prosecution, in brief, is that on 28-1-2004 one A. Krishna Rao (PW-2) was coming from Jeypore, Orissa to Raipur by the bus of Manish Bus Travels (Payal Bus) NO.CG-07/E-0727 along with other passengers, at about 10.30 p.m.1 when the bus was crossing near Dhanpunji barrier, one person sitting inside the bus reached near the bus driver and on the point of pistol, he compelled the bus driver to stop the bus, two persons were stano'ing near the gate, three other persons were holding Kukri & corntry made pistol, they threatened the passengers and assaulted t,:iem. Theaccused persons also assaulted the conductor and causedserious injur/over his head and snatched the money which the cpnductor was having. They also assaulted A. Krishna Rao (PW-2) by country made pistol and snatched P.s.3,000/-, one gold ringof Rs.1,500/-, and also snatched' one mobile phone, Rs.7,000/- & :one ring from his nephew. The accused persons also snatched moihey & articles from the passengers sitting in the bus. Some accusedi persons fled away from the bus, they were speaking Hindi language in Bihari tone. Finally the accused persons fled away from the spot. A. Krishna Rao (PW-2) immediately went to Jagdalpur in the same bus and lodged the report vide Ex.P-8. Spot map was prepared vide Ex.P-10. Injured Dinesh Prasad & Krishna Rao were examined by the doctor vide Exs.P-11 & P-12, respectively. Police party proceeded for search of the accused persons to Jeypore, I Orissa & Bihar after recording Roznamcha Exs.P-28 & P-30. Accused Munna Gupta was found in Village Dimla, State of Orissa. He vyas taken into custody. He made discloser statement of Rs.4,600/-, ifevoiver & one watch vide Ex.P-1 and the same were recovered froml him vide Ex.P-2. Accused Ram Pravesh was found in Distt. Auranga'bad, State of Bihar. He was also taken into custody. He made disclosure statement of Rs.8,500/- & '''<. L\...'v So Y country made pistol vide Ex.P-18, money was recovered from him vide Ex.P-19 and country made piscol was recovered vide Ex.P-4. Suit case containing clothes & Rs.1,800/- was recovered ne'ar the spot vide Ex.P-3. Arms were sent for examination. Clothes & suit case were identified vide Ex.P-6. Identification parade was conducted inside the jail and the accused/appellants were identified by A. Krishna Rao, K. Sudhakar Rao &Suresh Nairvide Ex.P-9. One register was recovered from HotelSantoshi, Main Road, Nabarangpur (Orissa) vide Ex.P-13, copy of the entries is Ex.P-14 in which name of J.K. Singh was mentioned as customer. Statements of the witnesses were recorded underSection 161 ofthe Cr.P.C. 6. After completion of investigation, charge sheet was filed against ten accused persons before the Court of Judicial Magistrate, First Class, Jagdalpur who in turn committed the case to the Court of Sessions, Jagdalpur, from where learned 4th Additional Sessions Judge (F.T.C.), Jagdalpur received the case on transfer for trial. Out of the ten accused persons two were in custody and rest were absconding. 7. In order to prove the guilt of fhe appellants, the prosecution has examined as many as nineteen witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they have denied the circumstances appearing against them and pleaded innocence and false implication. 8. After affording opportunity of ; hearing to the parties, learned Additional Sessions Judge convi;;ted & sentenced the appellants as aforementioned. 9. In this case, learned counsel for the appellants have not disputed the conviction of the appellants and only argued on the question of sentence. They submit that the sentences awarded to the accused/ appellants are excessive and disproportionate to the gravity cf offence. 10.0n the other hand,learned counsel appearing on behalf of the State/ respondent supported the impugn'ed judgment. ll.In order to appreciate the contentions of the parties, I have examined the evidence available on record. Commission of dacoity by the present two appellants is not disputed by counsel for the appellants, otherwise established by the evidence of Hafiz Ahmed E\ ^S.Sb-yj .-rf^' Jf Soma (PW-1), A. Krishna Rao (PW-2), K. Sudhakar (PW-3), Mantosh Kumar Sardar (PW-4), Dr. S. PandeyKpW-5), Pankaj Pandey (PW-6), Pawan KumarJain (PW-7), PraveenaSethia (Jain) (PW-10), K.L. Sori (PW-12), Jankoos Toppo (PW-13), M.B. Patel (PW-14), Surendra Nair (PW-15), Lekhan Baghel (PW-18), Chabilal Sahu (PW-19), F.I.R. Ex.P-8, discloser statements & recovery of articles from the accused persbns and identification memo Ex.P-9 which shows that these two persons are the accused who had committed dacoity on the point of country made pistol along with otheraccused persons. l2.Conviction of these two appellants fQr.cpmmission of dacoity by using deadly weapons is based onidinching &credible evidence sustainable under the law. ! Evideriee adduced on behalf of the prosecution is sufficlent for drawing inference that these two appellants along with other 'accused pRrsons had committed the offence of dacoity and at th:e time of cQmmission of dacoity the present appellants were armed with deadly weapons.and by use of deadly weapons they hav^ commltted the dacoity. Offence punishable under Sectipn 397 loftheI,P.C.:3s notsubstantiveoffence, but is an exaggerative form;of dacoity ^which; provides minimum sentence of seven years. Learned;AdditionalSessions Judge has convicted & sentenced the appellants separately under Sections 395 & 397 of the I.P.C. Such conviction & sentences are not sustainable under the law. 13.As regards the question of sentence, taking into consideration the fact of bus dacoity and injury to different passengers, the appellants do not deserve any sympathy. l4.For the foregoing reasons, on the grouna of technicality, the appeal is partly allowed. The appellants a e convicted under Section 395 read with Section 397 of the I;P.C., instead of independent conviction under Sections 395 & 397 of the I.P.C., and sentenced to undergo R.I. for ten years & pay fine of Rs.300/- each, in default of payment of fine to further undergo R.I.for three months. Separate sentence of R.I. for seven years imposed upon the appellants under Section 397 of the I.P.C. is herebv set aside. ,.-.. , .-' 'l ^ Sd/- T.P.SHARMA JUDGE ^•'I'SI1' S81