I-HC-22 ^^T ^liq|<rtq, ^Tll^J^Ko, f®|<ni^y SV^l 'V^K ^IHdl 5b^i<=h* "^ 200 'I^ST' sn^T^T R<vli<=t) 3TT^T 9h^ich ^f^a 37T^T ^H^H:'HftcT m&H COURT OF CtHHATTISGARH AT BILASPUR Cr.A.Nlo. 7:2&OF 200S APPELLANT (INJAIL) v4 RE8PONDENT Cr.A.No APPELLANTS (INJAIL) ^Hf^^ll TTTTT^Tf ^ f^st <p3l^l< '^3Frf^FT3^^r Adil Khan, S/ o. Shri Namdar Khan, Aged about 21 years, Occupation- Hotel Business, R/ o. Shitlapara, Kanker, District Kanker (C.G.) Sfate of Chhattisgarh, Through P.8, Korer, District Kanker (C.G.) 748 OF 2005 Sheikh Zaheer, S/o. Shri Safiullah, Aged about 2 1 years. Occupation- Meat Seller, Sheikh Zakir, S/o. Shri Safiullah, Aged about ^2 years, Occupation-Dynamo Mechanic, Mohd. Irfan alias Vikki, S/o. Mohd. Illiyas, Aged about 21 years, Student, AU R/o. Shitlapara, Kanker, Dist.Kanker (C.G.) Sheikh Arif, S/ o. Sheikh Masoor, Aged about 2 1 years, Student^ R/o. Mahadev Ward^ Kanker, Dist. Kanker (C.G.) [Tft^^fer^l '-22 37T^T^T f^tlich 371^T 5^^i<=h ^fia ~3~^r ^i^icri^, ^Til^i^Ko, [^cni^y 3TT^?r 1q^? HW^\[ ^^(^••—••——•—•—•••-^F^ 200 "^^8T" 3TT^T "^fT^H:'Hf^T ^ RESPONDENT Cr.A. iio. APPELLANT (IN JAIL) V|B. RESPONDENT Present: Mrs. Fouzia Mir^aL CrA.No. 725/05 Mr. D.R. Shaift Cr.A.No.921/05. Mrs. Madhunishal Stafe. Shadm oi Dhireadra Mishra, J Crim.iaal Appeal I|il Khaa, Grimiaal Appeal| Shdldi Zafaeer, Shdldi Arif and Crmiinal Appe^l C^Nf<n41"i 'HPTOf "^ Fs^) <f^i^i< ^ 3Tf^FT a^T^T State of Chhattisgarh^ Through P,S. Korer, District Kanker (C.G.) And 924 OF 200S Md. Irfan alias Vikkv aged about 19 Years, S/o Md. lUiyas R/o Shitalapara, Kanker P.0. & Distt. K&nker The State of Chhattisgarh, Through P.S. Kanker District Kanker (C.U.) learned counsel for fhe appeUaats ia a|adCrA.No.748/05. ulma. leanied Semor counsd ia Siiigh, learned Pand Lawyer for the tALJUDGMBNT 3thOctefoer20Q7) fo. 725/05 preferred by appeUaiit Adfl No. 748/05 preterred by appeUaats IZaldr, Mohd. Irfan aUas Vikki, SheiKh No. 924/05 Md. Irfan alias Vikky are^ [Tfr^ ^fo^l XI-HC-22 ^TT^T^T f<^i<=h 37li?T 5h^i<=h ^f^a h ^aE[ r^|^|^q^ ^Tll^^Ko, f®l<rtl^^< 3TT^?T T?5ra? ^l^<rtl ^^j^*-—•••—*•—•*•—••—-^F^ 200 'f^ST' 3TT^T ^<H^R ^Tf^T (^i<Li(<n141ri TffR^ff "^ f^st <p3i^i< "^ ^rf^W ^3?^^T being disposed of by tpiis common judgaient as all these appeals arise out of the sentence dated 3.9.200q leanied Additional Sessil seateace each offheoi to Suice ia Criiiiiaa] ViKkv is also one of 924/05 preferred at uniiecessary. judgment of convlctkffi and ordCT of passed in S.T.No. 09/2005 whereby 3ns Judge. Kaaker has convicted fhe appellants under Secti^n 397 of Indian Penal Code aad |undergo RIfor lOyears. Appeal No. 748^05 Mohd. Irfan @ [he appeUants, Criminal Appeal No. ^is iristaace is disposed of beb^ 2. Case of the pros^cution in brief is fhat on 7. 10.2004 around 12.00 noon co^iplainant Dharam Jadn, resident of Vitlage ChQhadiy was go] coniiag on 7-8 faotorcy bag with Ajju @ Ajay Upadhyaya (PW- 17) by motorcycle to Viflage Mode. rFhe motorcycle was bemg drivien by Ajay Upadhy^iya. Around 2.(X) O'clock when fhey reached bdiweea ViUagje Mode and Tdawat, some persons ^les froni Village Telawat side, two of theni were identified 4S zalar a31d Zaheer, stopped thdr motorcycle by placing tpieb: motorcycle before and thereafter Zakur, who was holdiag| stick, started assaiiltia^ iroja rod and Zafair, who was holding Ajay. Otherpersons, who were 18-20 m number. were also arkned wifh rod/stick and chaia, started assaulting. Ajay sust^iaed iajuries on his heady left eye, thumb of the rijght han^ aad stomach. After tfaeiricideat Ajay [^ f^. 311^^1 ^w ^i3;^i 5n*ii<=n ^Ra To^ ^I^IH^I, ^Til^Ko, fc«ni^ll< 3^?T tRT^ NI*1C(11 ^b^licb ""*"*'" ':(F^ 200 f^F^T' ^I^?T '^nw ^rf^ injur^d adaiittbd disch^rge discovered that those bag contamirig Rs.5,000j Report was lodged by 2*30 p.m- ia PoUce Dharaoi Jam was seat ] Health Ceater, Korar 01 Ex.P/21 whereas examiiiation on 7.10.20( lajured Ajay was the date of incideat. Ho^ for treatoieat vide was admitted in B.S.P. on 16.10.2004 vide ExJ Netfaralava and the tr^ iavestigation SheUdi Arif, Mohd. Javed, Moh4 on 10.10.2004. On th^ accused Sheikh Zalifcr Rs.200/- were selzed irou rod and cash of Ex<P/6. Siaiilarly, cash) sdzed from accused M<i Mohd. Afeal, AdU xuieaiorandum.s of Ex.P/| respectivdy. AppeUant^ peysons DMiaraxii Statilon cr»l^f<yl<i1r1^TOf ^ ftT3t iFai^K ^N^W^T had looted gold necklaee and a - ia denomiaation of 20, 50 aad 100. Jaia on the saxne dav at about Korar vide Ex.P/23. Complainaat for inedical examination to Priiiiarv 8.10.2004 aad his iajury report is Ajay was also seat for niedical C^4 and his iajury rq?ort is Ex.P/24-A. in the District Hospital, KarAer on rever. he was referred to higher ceater ticket of Ex.P/37. Thereafter, he qospital and was discharged froni thdbr ^/35. He was also treat^i at Sankara ^atraeat paper is Ex.P/38. Dunng aftilr, ZakiruUah, Mohd. Irfan. Shdldi Afeal Khan, AdU. Khan were arrested basis of iHemoraaduxii statement of ibotorcvcle, hockey stick and cash of hiai vide Ex.P/4 and T.V.S. Suzuki, L2QO/- were seized from Zakfcr wde laad weapon of offence have also beea ^hd. Irfan, Shdkh Arif, Mohd. Javed, Khaa, Laxmmarayaa vide sd^ure j8, P/ 10, P/ 12, P/ 14, P/ 16 and P/ 18 Mohd. Irfaii, Adil Khaa, Mohd. Javed, ZsSasz firotai flEs. [^^ 3:IT^T15RI W^ 3TgST 5b*ii<=h ^Ra '3~5? ^I^IH^I. ^Tl1<1^<5. f®|<ni<1^< 3^?T XRT^ ® ^W^i 5b^ic»> ' ' '"""""""""^F^ 200 "fe^sr" ^T^T'^HW^f^T s~ Mohd. Arif and Mohd. 11.11.2004 by Executiv where Dharam Jaia (PW Adil Khan and Shdkh Arij A^al were put for test ideatification on ^ Magistrate D.R. Thakur (PW-13) 181 correctly ideatified Mohd. Irfan, |as fhe persons iavolved m thie crmie. an& 3. After ioxiiplethig i against the appellants Mohd. Afeal, Adil Khan, Court of Judicial Maglsl charge sheet against two filed before fhe Juvenile was less fhaa 18 vears 4. During trial fhe pi all. Thereafter, statemekits recorded ia which thev agaiast them in. the and false impUcation. for ffae respective parties) appetlants as meotione4 However, ofher four charges by exteadiag fhei|a 5. Learned counsel conviction of the appd|lants ideiiti&cation conducte|d CM^?<rt<fll 'RTR^Jf "^ f^T^l' ^'^K '^^rf^w^n^r u|iyestigation charge sheet was ffled four ofher accused persons naiiiely La?a3iiaarayan and Ramesh in. the rate Pirst Class, Kariker. Howewr. laccused Zafar AU and Faiz Khaa was ^ustice Board, Jagdalpur as theb: age onlfhe date ofiacideat. losecution exaniiaed 22 witaesses in of the accused persons were jdenied the circuiastances appeariag ^ecution case and pleaded innoceace Court after hearing counsel 1 convicted and senteaiced the preseat ia paragraph 1 of fhis judgDieat. persons were acquitted of fhe beae&t of doubt. pro^ecution Le^med trial ac<|used for the appdlaats argued that is xaainlv based on the test by Executive Magistrate on [^ :C-22 ^^^- 3TI^T'^T ^Jcb ^?Tt?l 5^*ii<ft ^f^a !-h ^o? 1r^i<4i<n^. '^ftwts, f^<ni^y ^^ STS^[ ^^K Tffq^rr^pq^*---—•••••-•••—•-^^ 200 IN^i' ^^{ ^RTIW ^rf^TT 11.11.2004, ia which the c SheOdi Arif were alreadv ideati&cation parade was c] fhere is no explaaation for there is evideace availabl proceediags fhe appellaats <=hl^fd^1r1 +iH<rff'^f^t if^i^K '^^Tf^mCT^T ^mplaiaant Dharam Jaia ideatified ffcte appeUants. However, ap^dlarits Mohd. Irfanp Adil Khan and arrested on 10.10.2004 and the onducted onlv on 11.11.2004 ajad is inordiaate delav of one month ia conducting test identific4tion parade. It is also ^rgued fhat ^ on record fhat during reaiand ^ere produccd before the Courf by w^^ coveriag thdr faces, Dharax<i Jaui (FW-IS) visited police station to eaquire whefher the acci^sed persons have been arrested or not and therefore, fherc w^s possibiUty fhat fhe complaiaaat had an opportiinity to see persons were produced ia that Dharam has denied the appdlants eifher ia tJhie poUce station or during remaa4 proceediaags when. fhe accused die Gourt. It is fiirther conteaded ia his Court stateraetit havm.g ideati&ed accused Adll Kh^n fhough in the test identification memo of Ex.P/22 it is me^itioned fh.at he correctiy ideatified AdU Khan. Thus. the whc&e identification bv Dharam ia T.I. parade becosxies doubttul. had opportumlty to see assaulted by aU fhe accu^ Injured Ajay Upadhyaya (PW-17) 3ie acciised persons as he was •ed as aUeged by the prosecution, however. Ajay did not pa^ticipate ia the test identification parade and fhere is no expjlanation as to why fhe prosecution did not conduct test identifi^ation parade before him. Referring to fhe statements of PW-1 [3 D.R. Thakur, it was vehemeatiy [^ STT^T'^l ^Jcb ^lt^T 5»»*iicb<yRa 'S^ ^INH<4. ^xil^Ko, ^Kriwy sni^r 'ira^ ^ *ll^<yll gp^^-——*•—••———.———••^^ ^^ •f^ST' ^TI^T ^RITW^rftcT -7Z argued fhat the persons m|xed wifh fhe accused pa-sons were not of simUar appearance^ about autheaticitv of the cM^t<rt<i11i +ii^<riT ^ f^^ ipai^K '^>3^R3^T^r fhe proforiaa for test ideEitfc&cation parade was preparai weU 1^1 advaace axid there is discrepanGy in the entries and all thes^ irregularities create serious doubt r.1. parade. Explanation giwen by PW-15 Roop Singh Sahu i4 paragraph 27 of his deposition for delay ia conductiag T.I. pa^ade is falsified froaoa fhe statement of Dharam.; who has adxni4t€d ia his deposition that after the iacident he used to go to p|olice station to enquire whether fhe accused persons have beei|i arrested or not and thus^ he was very much present aad av^ilable to fhe poUce for participathig ia fhe test identification paj|ade< 6. Placing reUaace on |fhe judgmente ia the niatters of Nirmal Pasi and anot&er Vs. State of Bihar, 2002 Judemente Online 1229, of Maharashtra. AIR 20DO 8C 160. Puttan allas Kamal matter of Anwar and anot: Raieah Oovind Jaaesha V». State Prasad Vs. State of U.P.I, AER 1992 8C 1032 and in the aer Vs. State. AIR 1961 Allahabad 50 it is argued fhat fhat|statcment of Ajay Upadhyaya was recorded on 26.11.2004 i.b. about ittore fhan one m.0rith 20 days aftcr fhe iticideat t|iou^i he was available m poUce station pn fhe date of iacJLdeat itsdf. It is also argued that there is no evideace that f|ie accused persons looted ornaoieat and cash as the complaitia^it PW-18 Dharam ia paragraph 2 of 3?n^T^T ^ick 3^^I $b*iicb ^I^a ^Fa? ^11<4H^I, ^Tl1<1<l<o, f®|<ni^^< 3TT^T '^T3R 9^ ^w^i ^^^^—--"•••••••••••••-•••••••-^F^ ^QQ '^^ST' ^n^r ^RTTWHf^ ^ his deposition has stated hospital. he told him. that are m.issiag and he suspe|3 takea fhe sanie. Referru^c is conterided fhat this ideatifies oxilv Mohd. IrfaA not recognize rest of learned trial Court on also convicted accused adniissible evideace overwritiiig in. the Flrsj admitted bv Maaohar deposition. 7. On fhe ofher State/respondent Court. learAed 8. I have heard perused the xo.aterial irapugned judgment. 9. Conviction of fhe of coxiiplainant Dharam. The Court below has ol witaesses are dulv corro cni^f<n<i1^ *ii^i<nf ^ k'<\ <P»t^i< '^'3^TH3?n^T [that whea he took the iajured Ajay to cash of Rs.5000/- and gold necldace fhat accused persons mi^it have c|g to the statemeat of Dharam Jain it has categoricaUy statcd that he i, Artf aad Javed by faces and he does accus^i persons. However. fhe oftest ideatificatlon parade has fltohd. Adil Khan though thcre is no him. There is manipulation aad Information Report as has beea (PW-12) in paragraph 11 of his >uspe|sted witness ttt.e thelbasis agaljaist Kd-ketta Ihand, learned counsel for the suppofted iaipugned judgiiieat of fhe trial counsel for both the pard^ and available on record iacludmg the ^tppellaiits is based on the statements Tam, injured witoaess Ajay UpadBiyaya. )served that fhe stataaieate of these borated from fhe statetneats of Shyam 1—^ 1 [^^ 3?I^T^T R;ii<»»^t1^1 sn*ii<ft tit^a 'Ta^ ^INH^I, ^nl^Ko, i®i^i<iy 3^?T tR^ *ll^<yll 9b*li<^ **"**<****%^ 200 l^sr" ^n^r ^<nw 'nftn Shukla (PW-16), Shiva statement of Dr. Divya P41 report (Ex.P/24-A) ofAjayj conducting test identi&ca^ <=bl^f<n<i1l 'RTR^f ^ 'feTst <f^^l< '^>3?rf^TH3TT^T Shukla (PW-191 as also from the (PW-22), who ha? prov^i fhc injury Upadhyaya. 10. hi the matter ofMylma! ftosi (supra) the HonT^le Supreme Court considering the ^elay of xaore fhan one xaonth ia ion parade after arrest ofthe accused persons, which was r(ot satisfactorily explaiaed by fhe prosecution, held the sajiie to be one of the reasons for npt relyuig upon the evidencej of identification. 11. Iti fhe m.atter of J?^yesh Gownd Jage^ia (supra) also ffae identi&cation parade wajs hdd wifh an mordinate dday of about five weeks froic consideriag fhe explanati same untnistworthy, tih doubt. 12. Similar is fhe view^l Kamcd Pmsad (supra) the arrest of fhe accused and [on offered by the prosecution for fhe e accused was extend^l beaefit of expressed m fhe case of Puttan alias where fhe Hon'ble Supreme Court considering the mordinatje delay of six months, which could not be explabied, held fhat l{he Court below erred m relyiag upon such evideace ofidentificl on. 13. Ia the matter of Afiwar and another (supra) it has beea ^.^^—^^ [^^ W^T^T R;lich 3Tli^l si»*iicb«Ra 'T^T r<||q|(nq. ^Tll^^Ko, f®|<rtl<1^< 3TI^?T 'q^ra? ^iW^ll 9b^|cb "—^^ ^^ fcl-b^T' ^T^?T '^<TTW ^Tf^T lo the Court is satisfied t3 opportunity of seeing th^ held wifhin a reasonaby cnnt<n<fl1i *ii^<riT ^ fa^ <R»i^|< '^^rf^R^n^T lat the witaess had at least a fair dacoits- the ideatification parade was time of tixe incideat and conduct of the witness was rdia^le and the witness did not get opportunity of seeing the^accused after the arrest. 14. In. fhe lieht of abcjve prmiciples of law laid down by fhe Hon'ble Supreme Court| scrutmized, it would be 18-20 others. However if the facts of the preseat case are le^dent that ia fhe FIR accused Zakir aad Zahir have beea m|eationed with namie along with other no description has beea given about aav other associate nor |it has beeii nieationed fhat if thev are presented before the oo^aplam.anty he shaU be ia a position to ideattfv tbem. Ftoxa thd evideace avsulable on record. it is also observed that he recogrlizes accused Zakir and Zahir as they |Howewer, all the accused persons. who are resident of Kanker. were put to trial, arj co33iplauiaiit does not the resideats of Kanker but fhe mention this fact that they were residents of Kaaker. (h the test ideatijlcation parade he ideatified appdlaat Mol^d. Irfan, AdU Khan. aad Shdldi Arif but he claiaied to have identi&ed accused png ideatified convictcd aceused Adil gcvea by the mvestigatiag offiicer (PW- ^tuag test ideatification parade that fhe .1. parade was sent to fhe Tehsildar, is in his Court statemeal Javed and denied ha\ Khan. The explanatior| 15] for delay in condu<| memo for conductmg T| k 3=n^T^T R'lJcb 3^? sh*ii®biiRa 'S'a^ ^11<4H^I, ^nl^Ko, i^^wy 3V^[ 'Cpra? /3Z WR^TT^qj^ "-"-""""•••••-—••••••••^^ 200 'fg^ST' 3?n^?T'^RHW^Tf^ // pros^cuUon statdl regililarlY not estabUshed froni th^ who has stated that conductii]^ test ideati&c^ explanation by fhe not avaflable on 10.10.2Q Dharami, who has afker the incideot he whether anv arresf has Ajay Upadhyaya, who opportunity to see thej Dharaiii;' ^kSr'iiot partic}i} iavestigating officer in. accused persons were proceedings by coveriag| not reflect the same complauiant that he vls^ enquire about arrest of| appdlants that fhe fheai before T.I. para4< reniaad proceediags, m.ajy 15. On the basis of af4)i considered opinion fhat |the ia convicting appdlaat identification parade. cr»i^f<n<fli +iH<nl* ^ f^^ <F3i^i< '^^ti^m^n^T ^ stateaiait of D.R. Thakur (PW-13). be received the conixiiunicadon for Ition only on 11.11.2004. The further fhat coixiplainaat Dharam was t04 is also belled from the statetaent of ia his cross-exaniiaation fhat even ijilarly weat to poUce station to eaquire ken xuiade thereafter or not. Moreover. ^ot injured ia fhe incident and had oflFenders for a longer period fhan ^ipated in fhe T.L parade. Though fhe |his deposition has claimed that thc produced ia the Court in remaad |thdr faces, but fhe remand papers do land ia view of adtnission of fhe |.ted poUce station after fhe iricideat to |the accused persons. defence of fhe had an opportunity to see dther ia poUce statlon or duriag be probablized. coi|aLplaiaarxt iresaid discussions. this Court is ofthe Court below was not justi&ed fiirstiy Adil Khaa solelv on the basis of test particularly when the complainant 3:n^T'^r ^Jcb ^Tlt¥F ^RW^TI ~3"5?'^rra^R. '^ftwTS, ^i^y sn^r t(=ra? Nl^dl ^qjch-------------^^ 200 •^s^vs" 37T^?T'^nw^rf^T /z hiaiself has admitted in hit never identi&ed him andl Sheikh Arif and Mohd. Irf^n bv PW-17 Ajay Upadhyayaj Dlr 16. 8o far as convictionl Sheikh Zakur is concernedl lodg^ F.I.R., wfaich was| mcident at about 2.30 p| Dharaia and Ajay. have persons duriag trial. exammed iajured Ajay on| that on exaxaiaation of thd left eve, he was adm.itted stitched, there was loss of| found that lens of the eve blood. So far as argum.eat| appdlants on their behatf | fh.e surroundiag bones aa^ complete privation of s^ht| mjur\r was sustained by conccrned, the same cann<| statemeat ofirijured Ajay^hi with rod and stick, as a chl^fd^l'l 1RTIMf ^ fe^ <Fai^l< '^3Tf^m3?n^T deposition before the Court that he secondly, ia convicting appellants on the basis of their identi&cation and PW-18 Dharam Jain. of the appellant Sheikh Zahir aad their naaie figures in fhe promptiy lodged only 30 minutes after fhe Im.. aad bofh fhe evewitnesses i.e. identt&ed the above t ro accused r. A.B. Deshpaadey fPW-21), who 8.10.2004 has cat^orically stated injured he found perforation ia his m fhe hospital, his left eye was ^ight in left eye; on C.T, Scan it was ^as displaced and the eye was fuU of [advaaced bv leamed counsel for the |that there was no fracture iajury in report of Ex.P/37 does riot xueation ia fhe left eye^ as such no grievous as claiiaed by the prosecution. is ^t be accepted particularly ia viewr of v^ho has stated that hc was assaulted of wbich he sustained iajury on hjm rdsult i- XI-HC-22 ^a^ t<ii^i<n^i . ^Tl1^1<d. ^Kiy snif^r 'V^K •"ss^si^ <41^Cfll 'gjTq^"——""———"•"""•——^^ 200 •ISI^T' 3?I^T^T h^ 3?l§^l $b*ii<=b ^I^a f^/ sn^T^Rnw^f^r /3 <=M^t<rt<ilri ^H<^T^ f^^ <f^i^K '^3rf^m3?TI^T his left eye and further ^tated that after assaulting him. fhe gold necklace aad auiount ofl Rs.5,000/- were sxiatched. 17. Ia the result: 1. Cr.A.No. 725/05| Khaa under Secl thereon. are setl charge. He is lis attowed. Conviction of appdlant Adil lon 397 of IPC and seatence imposed aside. He is acquitted of fhe above ?n bail, fherefore, his bafl bonds are discharges and hje need not surrender. 2. CrA. No. 748/0(5 is partiy allowed. Conviction of the appeUants Moh^ Irfan aad Sheikh Arif under Section 397 of DPC and s|enteiice ioiposed thereon are set aside. Thev are acauitt at Uberty forfhwp^th if not requtr^i m any otiier case. HOWGVCT, fhe apjpeal of appeUants Sheikh Zaheer and Shdkh Zaldr b dismissed. ^d of the above charge aad fhey be set ^ing devoid of substance is hereby Sd/- Dhirendra Mishra Judge [Tft^ <Ps(a^f