^ C£L.A,No,.,,. Appea-Iaiits:- .(Iti jai!) ^ .4-^: ^ )Z4y ^ ^/ A 'w ^ ^ft ^y> ^ ^ ^ ^ilf/im. [S...B;]. VERSUS !:-JalieerKhan @ Jabed Akhatar @ Jalieer Aiisai 38 yrs.S/o Vsmm Kiian @ ismail Ansari R/o Viiiage -Chama At present RA. MaliiiaGhodo. ^behiiid Bukbiika Masajid P..S. Kha.Ia.ri distt- Ra.nehi (Jharkfaai'd). • 2:- Ravindraw Siagh @ Dharmendra ^ p Smgh 8^ .fi.a!adeo8mgh @ Ram -bracfthaRajpoot aged -23 yrs. R^ Bsjoo padaP.S. Ma?*der distt- 'Rwchi ( Jliaiiii aiicl )at preseiii R/o Chaliyo P.S. Chatsho dastt-Raciihi. (Jhajirfehmda.) Ktspoiida.iu;- StaieofC.G.. -374, oi Criiralaa|_^,_Proeeittiiie_< ._tleat, t. i^ ^..,^h.,-^1 <p.. ^ KXGH COURT OF CHHATTISGARH AT BILASPUR Siagle Bench: HonTale Shri DILIP RAOSAHBB DB8HMUKH, J. Criminal Apoeal Number-784/2002 Jah-eer Khaa & Raviadra Siagh Vs. State of Chhattisgarh Crimiual Aoneal Number-814/2002 Ajay Tirkey Vs. State of Chhattisgarh Post for Judgment: f6 S~ -o C Sd/- Dilip Raosaheb Deshmukh Judge ^ ;;^3^^^:^.'y^^;^;^'^^^c.^: HIGH COURT OF CHHATTI8GARH AT BILASPUR Single Bench: Hon^le Shri DILIP RA08AHBB DB8HMUKH. J. Crimlnal Apoeal Number-784/2002 Jaheer Khaii & Ravmdra Siagh Vs. State of Chhatdsgarh Ciriminal Aopeal Number-814/2002 Ajay Tirkey Vs. State of Chhattisgarh PRB8ENT: - Snit Savita Tiwari, leanied counsel for the appellaats. Shri Arun Sao, G.A./Addl. Public Prosecutor for the State. JUDGMENT (DeUvered on i^ -05-2006) Both fhe aboveiaentioned appeals are directed against fhe judgment dated 24-04-2002 delivered by Shri A.K.Patel, Additional Sessions Judge, Baikunthpur, Distdct-Korea io. Sessions Case No.62/2002 whereby the appellants were convicted under Section- 395 read witihi Section-397 of IPC and were sentenced to rigorous iDiprisoninent for 10 years, The appellaiits were also convicted under Section-25(l) (B) (a) read with Section-27(l) ofthe Arms Act and were sentenced to rigorous miprisonm.ent for 3 years each. AU the sentences were ordered to nui concurrcnfly, 2. Brief facts are that the 3 appellaiits along with 2 other persons with mtention to commit dacoity went to the Central Baak of India, Baikunthpur on 11-10-2001 at about 12.15 P.M. The °^?^ /-^.' yiifisssisss^^wssssst^^^u appeUaats were armed wifh Deshi Katta, Khukri an^d Deshi Revolver. After entermg into the Baak, the appeUants & two others, at fhe poiat of Deshi Katta assaulted fhe bank officials aad customers aad closed them ia a room. Thereafter, the appellants breafcing the cash counter looted the amount of Rs.3,68,552,64, Upon resistance by the Braiich Maaager, Ashok Kuinar Barua PW- 6, one offhe appeUaats assaulted hiin by a Deshi Katta on tlie head ao^d thereaffcer tiie appeUaats escaped in a Marshal Vehicle bearing Registration Number-M.P.-27-B-5701. Prompt F.I.R. was lodged vide Ex. P-9 by Shri Ashok Kuraar Barua PW-6 at PoUce Station-Pataa, District-Korea. Durmg mvestigation, the abovementioned Marshal Vehicle was seized on 11-10-2001 at 2 P.M. by Sub Inspector Shri R. P.Siagh PW-23 from fhe forest where it had been concealed. A Uve cartridge poiat 0.315 bore and a haadwritten letter Ex,P-29 were also seized from the vehicle, 3. During mvestigation on 14-10-2001, Station House Officer, R.P.Smgh PW-23 seized one Deshi Kattawith cartddge, one weapon Khukri aad Rs,l,95,245/- kept iaside a black bag firom appeUaat Jaheer Khaa vide Ex. P-4, one Deshi Revolver with 6 cartddges of 0.38 bore aiid Rs.l Lakh cash froia appeUaat Ajay Tirkey vide Ex. P-7 and one Deshi Katta, a weapon Khukri aad Rs. 71,300/- kept iaside the black bag froni appeUaat Ravuidra Sia.gh vide v Ex, P-6. AU fhe present appellants were arrested on 15-10-2001. 4. The appeUaiits were subjected to test identification by Executive Magistarate S,L,Markani PW-21 at the Sub JaU, Baikunth.pur on 19-11-2001. Ashok Kumar Barua PW-6 identified the appellants at 4.35 P,M, vide Ex.P-11. Maa Siagh, Cashier ofthe Baak PW-9 identt&ed the appellaats at 4.45 P.M. vide Ex.P-16. Mohd. Hazarat Khaa PW-19 j&'oin whose possession the appeUaat had looted the abovementioned vehicle a day before the occurrence •^.'^ ^: identified the appeUants at 3.45 P.M. vide Ex. P-18, Anaad Taairakar PW-12 who worked at fhe Anaad Hotel, Vishraoipur aad where fhe appeUants had stayed, identified fhe appellaat Jaheer Khaa & Ajay Tirkey vide Ex. P-19 on 22-11-2001 at 2.45 P.M. 5. Two Deshi Katta aad one Couiitry made Revplver seized firom the appellaats as shown above along with cartridges were exaaxmed by Maiiual Kerkatta, Armorer PW-3 who opmed vide Ex.P-5 aad 6 fhat the cartridges were Uve cartridges aad could be fired froni fhe Deshi Kattas an.d Country made Revolver. After completion of mvestigation, the appeUaats were prosecuted for oflFences under Section-395 read with Section-397 of IPC aiid uiider Section-27 (l)(B)(a) ofthe Anns Act. The prosecution examLiaed as laaay as 23 witnesses. Relyiag upon fhe evidence of Station House OflBcer R.P.Siagh PW-23 aiid the evidence relatirig to test identification of the appellaats by Ashok Kumar Barua PW-6, Maii Siagh PW-9, Baijnath, PW-7 and Anand Tamrakar PW-12 aad also the factum of seizure as aforesaid vide Ex. P-4, P-7 an.d P-8, fhe learaed trial Judge convicted aad sentenced the appellaiits as aforesaid in para- 1. (Supra) 6; Smt. Savita Tiwari, leamed counsel appearmg for the appeUaats has assailed the conviction of fhe appeUants as aforesaid on the sole ground fhat identity of the appeUaats in. coiaHutting fhe dacoity at the Central Baiik of India, Baikunfhpur was iiot estabUshed by the prosecution aiid delay in conducting the test identification on 19-11-2001 and 22-11-2001 renders it unworthy of crcdit, The possibility that the appellaats were shown to the witaesses before the test identfc&cation duruxg the penod of poUce reuiaad or judicial reiEiaiid could not be ruled out. It was also pointed out that alfhough vide seizure memo Ex. P-4, P-7 aad P-8 cash was aUeged to have been recovered firoxa each appeUaat froin ""?- @ one black coloured bag, the bags werc not produced by the prosecution which renders the factum of seiznrc doubtful, On the oftier haad, Shri Arun Sao, Govt. Advocate argued ia support of fhe impugned judgnient. 7. Havuxg considered the rival subniissions, I have perused the record ofSessious Trial Nuraber 62/2002 niiautely, ^ 8. The testunony of Shri Ashok Kiunar Barua PW-6 establishes fh.at a dacoity was committed by the appeUaats and two others m flie baak on 11-10-2001 who were arnied with Deshi Katta aad Revolver aad had looted aa aaiouiit of Rs.3,68,552.64 from the baolc after assaulting Tiim with a Deshi Katta and thereafter the appeUaats had escaped ia a Marshal Vehicle bearing Registration Number-M. P. -27-B-5701. 9. The unrebutted testimony of Mohd. Hazrat Khan PW-19 clearly shows that the appellaat had hired fhe MarshaU Vehicle beariag Registration Niiinber-M.P.-27-B-5701 and he had taken the appellaats to Anaad Hotel, Vishrampur frora where the appellaats asked him to take the vehicle towards river and at the poiat of a Deshi Katta, iajected him aad tied him wifh a rope aad gagged his uiouth, This witaess has inade a positive assertion fhat he had identified aU the 3 appellaats ia the Sub Jail of Baikunthpur vide Ex. P-18. The testimony of Station House Officer R.P.Singh PW-23 also estabUshes fhe factum. of seizure of Deshi Katta/ Cartridges, a weapon Khukri and Rs.1,95,245/- kept ia a bag from the appeUaat Jaheer Khaii vide Ex. P-4 on 14-10-2001 aiid the seizure of one countory made Revolver of6 cartridges aad Rs, 1 Lakh cash kept in a bag froin the appellaat Ajay Tirkey vide Ex. P-7 aad seizure ofone Deshi Katta, a weapon Khukri aad Rs. 71,300/- fix>m the appeUant Raviadra Singh videEx.P-8 on14-10-2001. The miere non production ofthe bags JBroni which cash was recovered froin fhe appellaats does r^. not render the testimony of Station House OlB&cer R.P.Singh PW-23 unreUable ia any inaiiner. The testiimony of Manual Kerketta, Amiorer PW-3 also proves that the cartridges sent for exaoiiaation, were Kve cartddges which could be fired through Deshi Katta aad Countiy made Revolver. Sanction for prosecution of the appellants under Section-25 & 27 of the Anns Act has also been proved by the prosecution. 10. It is also true that Ashok Kiimar Barua PW-6, Goondu Rain PW-20 witaesses of seizure froin the appeUaat Jaheer Khaix, Indrapal Siagh PW-17, Ram Kumar PW-4, witoaesses ofseizure from the appeUaiit Ajay Tirkey and Maagal Sai PW-5, witaess of seizure froin the appellaat Raviadra Siagh tumed hostile. However, fhis by itsetf is not sufficient to discard the testmiony of Station House Ofiicer R.P,Siagh PW-23, which ia iny considered opiaion, is reUable, iaspires confidence aiid is worth credence. So far as the test identification of the appellants at Sub Jail, Baikunfhpur is concemed, Executive Magistarate S.L,Markaai PW-21 has given a detailed description ofttie test identification parade in which he had taken care to see fh.at only the face of the persons standing ia fhe identification parade was visible aad tiie reinamiag part of fhe body was covered under blaaket. He also took precaution to ensure that fhe witaesses did not siiniiltaiieously identlfy the appellants. Each witaess was called at a different tiine. Ashok Kuniar Barua PW-6 identt&ed fhe appeUants at 4.35 P.M. vide Ex.P-11, Maa Singh PW- 9, Cashier of the Baak identified the appeUaixts at 4.45 P.M. vide Ex. P-16 aad Mohd. Hazarat Khaii PW-19 identified the appellaats at 3.45 P.M. on 19-11-2001 aad siuularly Anand Tamrakar PW-12, Hotel Clerk identi&ed the appellaa.t Jaheer Khan axid Ajay Tirkey on 22-11-2001 at 02.45 P.M. Shri S.L.Markam PW-21, Executive Magistrate has categorically denied the defence asserdon that the appellaats were shown to the witnesses before the test identification parade. There is notihiag ia his testimony which would vitiate the test identification parade. 11. Station House Officer R.P.Siagh PW-23 has in para-22 ofhis testiniony clearly stated that duriag the entire period of poUce remand and Judicial rcmand, face of ftie appeUants was always covered tiU the appellaats were adinitted ia fhe jsdl, In para-52 ofhis testimony he made a positive asserdon that the appeUants were always brought to fhe Court for Judicial rexaand ia a closed van with their faces covered. There is nothing in the testiinony of Station House Officer R.P.Siagh PW-23 which woiald go to show that fhe appeUaats were shown to the witaesses at aay tixne beforc the test identification parade. 12, Lastly, ftie contention of fhe defence counsel that delay ia conductuig the test ideutification parade destroys its value is required to be stated only to be rejected. It is true that after the arrest of the appeUants on 15-10-2001, the test identUBication parade was held on 19-11-2001 aad 22-11-2001 at Sub Jafl, BaikunthLpur by Executive Magistrate S.L.Markain PW-21. In the absence ofaay evidence to show that ftiere was aiiy possibitlty fhat the appeUan^ts were shown to fhe witoaesses before fhey were subjected to test ideutification, the evideiice of Executive Magistrate S.L.Markam PW-21 cannot be discarded nierely on the grouiid of delay ia conductiiig the test identt&cation parade, Ashok Kuiaar Barua PW-6, Maii Singh PW-9,Cashier of the Baak, Mohd. Hazarat Khao. PW-19 and Anand Tainrakar PW-12 have categorically ascertamed that all the appeUaats at the Sub JaU, Baikunfhpur, In this view of the matter, tihiis plaak of fhe arguments of the leamed defence counsel also fails. 13, Haviag thus considered fhe evidence led by the prosecution in its entirety, I am of the considercd opinion that the prosecutiou has established beyond fhe shadow of aaY doiibt that on 11-10-2001 fhe appeUaats along wifh two other persons had entered tlie Central Baak of India, Baikunthpiir whUe beiag anned wifh deadly weapons Deshi Katta, Deshi Revolver with Cartridges aad Khnkri aad had after assaulting Braiich Maaager Ashok Kuinar Barua PW-6 by a Deshi Katta robbed fhe bank of cash Rs.3,68,552.64. 14, In the result, conviction of the appeUaats uuder Section-395 read with Section-397 of IPC and under Section-25 (1) (B) (a) read wifh Section-27(l) of the Arms Act and ftie sentences awarded tliereunder is well founded aad does not caU for any iaterference. Both the appeals beiag devoid of nient are disraissed. | Sd/- Dilip Raosaheb Deshmukh Judge