IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CG; 8 é /2005 CRHVIINAL APPEAL NO. APPELLANTS (1N JAIL) C? RESPONDENT CRIMINAL APPEAL UNDER SECTION - 37%?2) OF THE CODE ; ‘ OE CRMNAL PROCEDURE 1 gmgw W ¢ 1 Tahir Ansari 5/0. Rustam Ansari, aged about 33 Years 2 Alwad @ Abduua S/o WWW Ansan aged about 24 years ‘3 Rustam Ansan WB££ aged about 62 Years All Occu - Farmer R/O Sarangpur, Thana- Ramanujganj, Sarguja(C.G.) \3 4. Lagan@ Thuru Bhuiya,S/O Late Teju Ram Bhuiya, aged about 24 Years, Occu.— Farmer, R/o Vill.-Rajbandha, Thana e Ramanujganj, Dist- Sarguja (C.G.) % 5. Manoranjan@ Mantu, S/o Mahanad Ram, aged about 34 Years, Occu.- Farmer, R/O Vi11.- Damoderpur, Tana- RamanujganjDist— Sarguja(C.G.) E 6. Anil Kumar Tigga. S/o Jay mashih Tigga aged about 34 Years Occu— Farmer R/o V111 - Lurghutta Thana —Ramanujgan3, Dlst— Sargu]a(C G) S/o Bhangad Vill.— Dist— VERSUS State of Chhattisgarh HEGH C9UR‘F (73F CniHATTIS$ARH AT $ILA$§9UR {Ham Mn Just§m Pritmker Diwaker) Criminag Apyeai No! 8§ 9f 3&35 AQPPELLANT$ “rahir Aasari an€§ 5A3thers VER$US é; RESPONDENT ' $taté:‘ 0f Chhattisgarh Criminai Appeai N05 1&5 cf 2QQ§ & APPE LLANT$ o N§yam§5t Ansari .. gESPONDENT Chnr $tcate of attisgah APPELLAN? Anii Khegikho State @f Chhamsga rh Post for pronouement o the judgment an Q/.D4.011K nc f 2 Sdl- ” Pritinker Diwaker Judge 30.6420. 3 yERSUS érimina! Appaal N9. 24? 0f 2035 VER$9J$ RESP¢NDENT IGH COURT 13F (EHHATTISGARH AT BILASPU {Hqnu Mruaustice E’a‘itinker Ewaker‘) firiminai Aggeai No. $6 of 20(35 Tahir Ansaari arm 5 whats APPELLANTS VERSU$ State of Chhamsgarh RESEON§ENT Shri Ravi Bhagat, counse! for the appeiQants Shri Pravin Gas, Dy. GA. for the State criminai Augeai Na. 145 of gg" €35 1 Niya mat Amati APPELLANTS VER$§J§ 3mm of (ihhattisgarh g§§PGNDENT Shri Ravi Bhagat, counsel for the appei‘lant Shri Wavin Gas, Dy. GA. for the State E47 of 2695 Grimawm Anii Khaiki’m gAPPELL£NT VER§U§ State cf Chhattisgarh RESPON DENT $hri Manoj Mishra under the authcrity of $hri A. N. Dy. GA. and Shri Niraj Mehta. c0unse§ for the State caunsei for the appeSiam Shri Pravin Das, Pandey, $ UNDER SECTEON 374 2 OF THE G§E OF CREMEN.L $RGCE§3§JRE. B; MINAL A?P MW JUDGMENT (2l .Mimm R ~2— ‘ Since the afcrementioned three appeais arise out of the me judgment dated 24.01.2005 passed by Additional Sessions Judge (F.T.C), Ramanujganj, District. — Surguja in $essions Triai No. 271/20DO, they are being disposed 0f by this commnn judgment. 2. The accusedlappeila‘nts Tahir Ansari, Aiwad, Lagan @Thuru and Rustam Anséri have been convicted under $ecticns 395 and 397 of IPC and sentenced to undergo rigorous‘impi'isonment for ten years and pay fine of Rs. 5,000 uls §95 and rigorous imprisonment for ten years u/s 397’ whereas the appeiiants Manoranjan @ Montu, Anii Khaikho and Anil Tigga have been convicted under Sections 395,. 397 of IPC and 25 (1) and 27 of Arms Act and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.3000 u/s 25 (1) and rigorous imprisonment for three years and pay fine of Rs. 2000 u/s 27. The accusediappeiiant Niyamat Ansari has been convicted only under Sections 25 (1) and 27 of Arms Act and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.3000 ug‘s 25 (1) and rigorous imprisonment for three years and pay fine of Rs. 2000 u/s 27, pius default stipuiations. Ail the sentences were directed to run concurrently. 3. Facts of the case in brief are that on 11.05.2000 at about 8 p.m. one passenger bus bearing registration No. GJ 52 8817 was stopped in between villages Ramanujganj and Aaragahi by 7-8 unknown persons carrying an’ns in their hands. It is alleged that the accused persons first switched off the head light of the bus, asked the passengers to get down from the bus one by one and thereafter robbed watches, money and other valuable articles. FIR Ex. P—37 was lodged by Rajendra Prasad Gupta (PW-7) on 12.05.2000 at about 12.30 a.m. at police $tation Balrampur which was sa transferred to Police Station Ramanujganj under whose territory the affence ‘had taken place and it was registered vide Ex. P-47. Based on this report, offence under $ection 395 of IPC was registered against 7-8 unknown persons. Accused/appellants Tahir Ansari, Alwad, Lagan, Anii Tigga, Manoranjan, Anii Khaikho and Niyamat Ansari were arrested on 23,05,2000 vide arrest memo Exs. P-27 to P-33 whereas Rustam Ansari was arrestedron 08.06.2000 vide arrest memo Ex‘; 3-39. Likewise the acquittedaccused Mahesh Kherwar and Rohit GUpta were arrested on 20.02.2001 and 24.4.2001 respectively.- On the basis of their memorandum, seizures were made and after investigation, Chailan was filed on ‘ 16.08.2000 for the offence under $ections 395, 397, 109, 120B of IPC and .25 and 27 of Arms Act against 10 persons including Rohit Kumar Gupta and Mahesh Kherwar who have been shown as absconders. However the Court beiow framed charge against the accusedlappeiiants Rustam Ansari, Lagan‘ @ Thuru, Alwad, Tahir Ansari, Mahesh Kherwar and Rohit Gupta under Sections 395 and 397 of IPC whereas against the accused/appeilants, Anii Tigga, Manoranjan, Niyamat Ansari and Anii Kheikho under $ections 395, 3Q? of IPC and 2S (1-3) (a) and 27 of Arms Act. __ 3.; £ 4. so as to hoid the accused persons guiity, prosecution has examined 27 witnesses in support of its case. Statements of the accused persons were aiso recorded under section 313 of the Code of Criminal Procedure in which they denied the charges ieveiied against them and pieaded their innocence and false implication in the case. 5. . After hearing the parties the trial Court has acquitted the accused/appellants Rohit Kumar Gupta and Mahesh Kherwar of the offence under $ections 395 and 3§7 of IPC but . ‘—L‘— convicted and sentenced the other accused/appeliants as " mentioned in paragraph No.2 of this judgment. 6. Learned coun$el for the appeiiants have argued that as per the case of the prosecution itself the FIR was lodged against unknown persons, in the test identification parade (Ex. P-35) conducted on 2315.2000 by R. L. Dewangan (PW— 6), only accusedjappellants Anii Khaikho and Manoranjan @ Morgtp have been identified by the complainant Rajendra Prasad Gupta (PW—7) and therefore question of conviction of the accusedlappeliants Tahir Ansari, Alwad, Rustam Ansari, 4 Lagan and Ani‘l‘Tigga under Sections 395 and 397 does not arise. In respect of identified accused Manoranjan and Anii Khalkho, it has been argued that in the examination in chief' the complainant Rajendra Prasad Gupta (PW—‘7) has stated that on the date of incident he knew the accused/appellants Manranjan and Anil Tigga but in the FIR he has not disclosed their names a'nd the same was lodged against unknown persons and therefore the very identification of appellants Manoranjan and Anil Khalkho becomes doubtful. They further submit that in paragraph—3 of his cross‘examination this witness has categorically deposed that he could not see any o’f the accused persons because it was dark night and in paragraph-S he has stated that all the accused persons had covered their faces and therefore the identification of the appellants Manoranjan and Anil Khalkho becomes doubtful and that being so the same is of no significance. It has been r further argued that ax. P—8 is the memorandum on which basis Rs. 200 has been seized from Rustam Ansari vide Seizure memo Ex. P-9, Ex. P-1O is the memorandum on which basis front muzzle loading gun has been seized from Anil Kumar Tigga vide seizure memo Ex. P~17, Ex. P-11 is the memorandum on which oasis Rs.1900, one dagger, one revolver, one country made pistol and one watch have been a» w @ seized from Anil Khalkho vide‘ seizure memo Ex. P-18', , Ex. P-12 is the memorandum 0n which'basis one country made pistol, 315 bore iive cartridges and one knife have been seized from Manoranjan vide seizure memo Ex. P—19, Ex. P— 13 is the memorandum on which basis six round pistol has' been seized from Niyamat Ansari vide seizure memo Ex. P—20, ' Ex. P-14 is the memorandum on which basis Rs. 2000, one watch, one towei have been seized from Tahir Ansari vicie seizure memo Ex. P-21, Ex. P-15 is the memorandum on which basis slippers, Rs. 25 have been seized from Alwad vide seizuige memoAEx. P—22, Ex. P-16 is the memorandum on I which basis Rs: 920 and one bamboo have been seized from Lagan vide seizure memo Ex. P-23, Ex. P-10 is the memorandum on-which basis Rs. 3850 and Rs. 2,000, two watches, have been seized from Anii Kumer Tigga vide seizure memo Ex. P-24. According to the learned counsel, the seizure witness namely Bajranglal Agrawal (PW-4) has though supported the prosecution case but Jagdish Rai (PW-22) has not supported the prosecution case and turned hostiie. It has been further argued that as the seized articles have not been put to identification but for one watch, the entire seizure loses its value and on this count also the accused/appeilants cannot be convicted under sections 395 and 397 of IPC. In respect of conviction of accused/appellants Manoranjan, Anil Tigga, Niyamat Ansari and Anil Khaikho under section 25 (1) and 27 of the Arms Act, it has been argued that as one seizure witness namely Jagdish (PW-22) has not supported the prosecution case, the entire seizure becomes doubtful and therefore benefit of doubt must go in their favour. Lastly it has been argued that the appellant Manoranjan has already served jail sentenced for about 6 years 9 months, Anil Kumar Tigga for about 7 years 8 months, Anil Kumar Khalkho for about 6 years 8 months and Niyamat Ansari for about 7 i ”6/ months 16 days, therefore it is dear that appellants Manoranjan, Anil Kumar Khaikho and Anil Kumar Ttgga have aiready served entire jai! sentence uf 3 years in respect of Arms Act and it has been pleaded that the jaii sentence of‘ ’ Niyamat Ansari may be reduced to the period already under gone by him. 7. 0n the other hand subpcrting the impugned judgment it he‘sfbeen argued by Shri Das and $mt. Ghai, learned counsel for the State that despite some short-comings on the side of prosecution, the act of the accusedlappellants are as such 'where no leniency can be shown to them. It has been argued that the manner in which they looted all the passengers of the bus shows the gravity of the offence. Learned $tate counselm however do not dispute that in the test identification parade but for Anil Khalkho and Manoranjan , the other accused/appellants were not identified. They further submit that the conviction of the accused/appeilants Manoranjan, Anii Tigga, Niyamat Ansari and Anil Khalkho under Sections 25(1) and 27 of Arms Act is in accordance with lawr in view of the memorandum and seizure which have been duly proved by Bajranglal Agrawal (PW—4). It has been further argued that the weapons seized from Manoranjan, Anil Tigga, Niyamat Ansari and Anil Khalkho were examined by armourer Theodar Lakra (PW-14) and he found all the weapons in Working I condition vide Ex. P—14. 8t Dr. B. Rt Ratre (PW-1) who was examined twice by the prosecution as PW—1 and Pw—ZO had medically examined all the accused/appellants vide Exs. P—l to 'P—7. Munni Mahto (PW—2) was a passenger of the said bus has stated that after stopping {the bus the accused persons caused all the passengers to get down. He has stated that the accused persons robbed silver anklets of his wife but he cannot tell as l @ to it was the accused persons who are present in the Court ’ had robbed. Vima! Kumar Agrawal (PW-3) is a witness of memorandum and seizure Exs. P-8 and P—9 has not supported the prosecution case and turned hostile. Bajrangial Agrawai (PW—4) is a witness of memorandum Exs.‘ P-lO to P-16, seizure Exs. P-17 to P—24 and arrest memo Exs. P-29 to P-33 has supported the prosecution case. $ripati (PW-5) was a passenger traveling in the‘rbus has not supported the prosecution case and turned hostile. R. L, Dewangan (PW-6) is the Tahsildar who had conducted the test identification parade (Ex P 3‘5) and prepared identification memo Ex P-36 has stated that the complainant Raiendra Gupta had identified the appellants ManoranJan and Anil Khaikho and also identified his watch vide article Ex.P-36. Rajendra Gupta (PW-7), the complainant has stated that on the date of incident while he was traveling in the bus, the said bus was stopped by 8-10 armed persons and committed the robbery. In test identification parade he had identified the appellants Manoranjan and Anii Khalkho and also identified his watch when the same was put for identification vide Ex. P—36. However, in paragraph—7 of his moss-examination this witness ‘ ‘has stated that he had not identified any of the accused persons nor he had disclosed their names at the time of lodging the FIR. Rajah Ram (PW—8) was traveling in the other vehicle when the passengers of the bus in‘ question were robbed has stated that 8-10 persons were committing the robbery but he-has not identified any of the accused persons According to this Witness no robbery whatsoever was l committed from him emu Ram (PW 9) has made almost Similar statement as made tiy Ramon Ram (PW~8) Umesh Kumar (PW-10) was also traveling in another vehicle when the bus in question was robbed has stated that his vehicle was also stopped .by the accused persons; RsdéQCJ were e7— ‘ taken from him and he was also siapped by them. He however has not stated anything against the accused/appeilants. M. K. Tiwari (PW-11), the Station Hose Officer, Ramanujgan‘j had done part of investigation. Dikeswar $ingh (PW-12) is the Patwari who had prepared spot map Ex.P-43. Kameswar Prasad Mehta (PW-13) was a passenger in the said bus has stated that after stopping the bus Rs.90 were iooted from him but he has not stated apgthing against the accused/appellants. Theodor Lakra (PW- 14) is the armourer who had examined the weapons seized from the accused/appellants has stated that the weaoons were in working condition Vide Ex.P~4O Persuram (PW-15), Ashok Jaiswal (PW 16), Bigu Das (PW 17) and Lalohand (PW- 18) are the witnesses to memorandum Ex,P—44, P—45B 8i P- 46A, P-4SB and P-14 respectively have not supported the prosecution case and have been declared hostile. P. :3, Mahilane (PW-19) who recorded the memorandum of Mahesh has supported the prosecution case Dr B R Ratre (PW 10) was examined to prove the medical report in respect of the inJured Surendra Kumar and Subodh Kumar whose medical reports were submitted by Dr. Rajiv Kumar vide Exs. P-45 and P—46 had confirmed the signature of the said Dr. Rajiv Kumar. Brijnath Sai (PW-21), the Head Constable had recorded the FIR Ex. P—37. Jagdish Rai (PW—22) has not supported the prosecution case and turned hostiie. M. S. Rathiya (PW-23),. the Assistant Sub Inspector is a witness of seizure of sword Ex.P-44A and stick Ex. P-45A form the spot has supported the prosecution case. Bamkesh Kumar Singh (PW-24), the bus driver has supported the incident but has not stated anything against the accused/appeiiants The Head Constable Krishn Kumar Kosle (PW—25) had done part of investigation O P$ingh (PW 26), AsSistant Grade III has proved the sanction to prosecute the accused/appellants under the ‘ _q / provisions of Arms Act vide Exs. P—48 and P—49 has supported the prosecution case, Eurendra Upadhyay (PW-27), helper of the bus has supported the occurrence of the incident but has not stated anything against the appellants. He is also a seizure witness of Exs. P-44A and P-4SB. 9. Minute examination of the evidence makes it clear that out of 6 accused/appellants only Anil Khalkho and Manoranjan havglaeen identified by the complainant Rajendra Gupta (PW- 7) in the _identification parade vide Ex.P-3S held on 23.05.2000. In respect of accused/appellants Niyamat Ansari and $Rustam ‘iensari, no test identification parade was conducted. It is said that Rajendra Gupta (PW-7) had identified accused Anil Khalkho and Manoranjan in test identification parade however in cross-examination, this witness has categorically deposed that the incident had taken place in dark night, that the accused persons had covered their faces, therefore he could not identify any of them. In view of this statement nothing remains in the identification parade and it can be easily held that none of the accused/appellants has been identified by Rajendra Gupta (PW—7). Further the only identified article is the Titan watch seized from accused Anii Khalkho which is said to have been identified by Rajendra Gupta vide Ex. P-36 but the same is not very conclusive as proper mixing of watches were not done and in the FIR lodged by the complainant proper description of the articles was not given. That apart, one more Titan watch alleged to have been seized from the appellant Tahir Ansari which was not put for identification. In view of the evidence adduced by the prosecution, memoranda and seizures lose their significance so far it relates to 7 conviction Vof the accused/appellants 'under Sections 395 and 397 of IPC and accordingly, conviction of all the ,mr accused/appellants under sections 395 and 397 of IPC is h d unsustainabie and ereby set asie. So far as convicti a the accused/appeints Manoranjan, An Tga, Anii Khaikho and Niyamat Ansari uner section 25 (1) and 27 of Arms Act is conerne the memorandum Exs.P—12, -10, P—11 & P-13 and seizure Ex.P— 1 1 P48 & P—ZZO have'bn duiy proved by ajrangiai Agcgwai (P ), C) ngh P 26) has proved the grant of sancon de E 8 and the armourer Theodor Lra (PW- 14) has stated that the sed weons were wor condon E P—4O and therefore thr concon nder the proons of Arms Act s fully used fin guen of ts t b ed m b rid e f J e f hi o Vi eiur x 9 d x z e lodi eiz inse id on one dagger, one revolver, one cotry made pistol have been seize at th instance of appellant Anil Khalkho from the outer boundary wall his house vide seizure memo Ex.P-18 and based on the memorandum Ex. P-13 six round pisto has been seized at the instance of appellant Niyat Ansari from a pit of his kitcn gaden vide seizure memo Ex,P-20, n view ofrth above evidence this Court is of the opinion that the conviction of accusedfappellants Manoranjan, Anil Tigga, Anil Khalkho and Niyamat Ansari under section 2.5 (1.) and 2.7 10. I d no force in the armt the learned counsel for the appellan that as he weapons have een seiz fro open place which are accessile to a common man, the same ha he s got no value because the fact reveals that based on t memorandum Ex. P-12 one country made pistol, 315 bore live cartges and one knife hav been seized at the instance o appellant Manoranan @ Montu from th loft o s huse de sze memo E P-1 base on the memorandum E P-1U one front muz ang gun has been sed at the tanc of appellant Anil Tigga beside the box of his house ve seizure memo EXP-17, based the memorandum Ex. P«11 on f la ii ig d cd, P s 9 P 7 ee B W 4 P $i (W ti Vi x P 4 ak eiz ao in kmo iti Vide x ei Viti u wsi i ltifi un d e of l am he r I e‘ @ of Arms Act is in accardance with iaw and dues not warrant any interference by this Court. It has been informed by the respective counsel appearing for the State and the appellants that Manoranjan @ Montu, Anil Tigga and Anii Khaikho have already remained in jail for more than 6 years and thus they have underQOne the entire sentence imposed on them under sections 25 (1) and 27 of Arms Act. In view of this, these three accused/appellants are' not required to be sent back to jaili‘fThe appellants Tahir Ansari, Mnoranjan @ Montu, Anil Tigga, Alwad, Rustam Ansarl and Anil Khalkho are already on bail and therefore their bail bonds stand. discharged, It is reported that the appellant Lagan @ Thuru is still in jail and therefore he is directed to be set free forthwith if not required in any other case, 11. The sentence imposed on the appellant Niyamat Ansari to undergo rigorous imprisonment for three years under Sections 25 (1.) and 27 of Arms Act is maintained. It has been informed by Shri Bhagat, learned counsel for the appellants that the appellant Niyamat Ansari has remained in jail only for 7 months and 16 days and therefore the period already spent by him in jail shall be adjusted from the total sentence of three years. As the appellant Niyamat Ansari is on bail, his bail bonds stand cancelled and he is directed to be sent back to jail forthwith to serve out the remaining part of the‘jail sentence. 12. Appeal thus Partly Succeeds. /(V/ Sdl. Diwaker . ‘ prltlnker V Jgg/ee/e/s/e/ WWW /.