HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Apgeal No.995 of 1993 APPELLANTS/: ‘ 1. Sohanram son of Thakurram Gond (Accused) aged about 24 years Re51dent of (In Jail) Rajpun Pohce Station Sltapur (Surguja). ' 2. Alak Sal son of Jugruram Kujoor by} caste Uraon aged about 25 years R/o Blsunpur Police Sta’uon Sitapur (Surguja). Versus State of Madhya Pradesh (now State of Chhatttsgarh) through Station House Officer Pohce Station Kansabel, Distt. Raigarh. {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} RESPONDENT: Present: Miss Sharmila Slnghai, counsel for the appellants. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Single Bench: Hon’ble Mr. T.P. Sharma, J RAL JUDGMENT (30-7-2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 30-9-1993 passed by the Additional Sessions Judge, Jashpurnagar in Sessions Trial No.65/91, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence under Sections 394 read with Section 397 & 307 of the l.P.C., sentenced each of them to undergo R.l. for seven years on both counts. . Convrctlon Is Impugned on the ground that without any iota of evidence relatlng to use of deadly weapons for commrssron of dacorty and absence of evrdence of Identrflcatron of the appellants the trial Court has convrcted & sentenced the appellants and thereby commrtted Illegallty . Case of the prosecutron in brief Is that on 23 f2 90 at about 4 p m when Phulkunwar (PW 1) was present In her house srtuate at Village Ghoghar Police Station Kansabel the appellants came to her house and they introduced themselves as resrdents of vrllages Rajpun & Blsunpur a. O (d/bri). One person assaulted her with stick. She shouted for"ihelp oh‘ which Manprasad (PW-17) — her refative residing besides her house, came whom one accused shot fire with pistol and caused injury over his iegs. The miscreants committed robbery of box containing saris, currency notes land other articles. They left one black colour bag, one chappal and one country made pistol. Neighbours had also seen the miscreants. Phulkunwar (PW—1) went to the Police Station and lodged F.l.R. vide EXP-1. Country made pistol, black bag, one chappal, one heavy wooden plank were seized from the spot vide EXP—2. Plain soil Sohan was taken into custody, he made discloser statement of box & other articles vide Ex.P-7 and on the basis of his statement, one box, containing some currency notes, some grains of rice and udaz‘ were sized from the forest vide EXP-8. Spot map was prepared vide Ex.P-9. Phulkunwar (PW—1) was examined by the doctor vide EXP-10 who found three injuries on her person. Manprasad (PW-17) was also examined by the doctor vide Exs.P-11 & P-12 who found gun shot injury on his person. identification parade was conducted and both the accused were identified along with other accused persons by Phulkunwar (PW-1), Kunwar Ram, Shyam Bihari, Lachhan & Dhan Singh vide EXP-15. Articles were sent for chemical examination. in order to prove the guilt of the appellants, the prosecution has examined as many as seventeen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the /\I,r , w 3 circumstances appearing gainst them and pleaded innocence & false ilication. . After aording opportunity of hearing to the rties, Iearned Additional Sessions Judge convicted ‘& sentenced e appellants as aforementioned. . l he heard learned counsel for the parties, perused th judgment and rerd of the trial Court. . Miss Sharmila Sinhai, learned counsel for the appellants, vehemently argued tha evidence of prosecution witnesses are self-contradictory, on the one han, the witnesses had deposed that ppellant Sohan was familiar to. Phulunwar (PW-1) but she has not named the name of Sohan while lodging the F.l.R, and on the other hand, the witnesses depoe that th appellants were unknown to the complainant and other witneses. At the time of identification, police personnel were present which vitiates the evidence of test identification and in absenc of othe evidence relating to identification of the appellants/miscreants, conviction & sentences of the pellants are t sustainable under the law. Miss Sharmila Singha plced reliance in the matter of Pashora Singh nd another v. Stte of Punjab (AIR 1993 SC 56) in whh the Apex Court has held that in ase of injury not sufficient for causing death in ordinary course of nare, conviction of the accused under Section 307 ofthe l.P.C. is not sustainable and would be alerted to Section 326 othe l.P.C. Miss Sharmila Singhai further placed reliance in the matter of Latel v. State of Madhya Pradesh (AIR 1994 SC 763) in which he Apex Court has hed that in absence of any evience of partication in dacoity, the accused is entitled for acquittal. Miss Sharmila Singhai also placed reliance in the matter of Dilawar Singh v. State of Delhi {(2007) 12 SCC 641} in which the Apex Court has held that in order to convict a person under Section 307 of the l.P.C., only the person using and holding deadly weapon is liable to be convicted under Section 307 of the l.P.C. . n the other hand, Mr. Sushil Dubey, learned G,ovt. Advocate appearing on behalf of the State/respondent, vehemently opposed the appeal and submitted that in the present case, the prosecution witnesses had identified the appellants in dock identification which is substantial I. evidence and the evidence adduced on behalf of the prosecution is _\ ‘\. \ \\ \\ \ I. a mp ff pa th av e co g t the d a k s e s e r/ ap no i a a a 12 ic tu c f t l d ip O \ 4 sufficient for drawing inference that the appeiiants were the persons who had committed robbery by using deadly weapons. One appellant was having heavy wooden stick and second one was having country made pistol who has shot fire from the pistol upon Manpras’ad and caused grievous injury. The trial Court has rightly convicted & sentenced the appellants. 10. In order to appreciate the arguments advanced on behalf of the parties, i have examined the evidence adduced on behalf ofthe prosecution. .As regards the injury caused to Manprasad (PW-17) and its nature, as per the evidence of Phulkunwar (PW—1) & Manprasad (PW-17) after hearing they’cries for help of Phulkunwar (PW-1), Manprasad (PW-17) — relative of Phulkunwar residing adjoining to her house, went to her house for help and while he was reaching near Phulkunwar, he sustained injury by fire arm over both legs and he became unconscious. As per the evidence of Y.K. Toppo (PW-7), he has examined Manprasad (PW-17) on 24-12-90 vide Ex.P-11 and found lacerated wound with burnt piece of / carbon over 4" circular area of right leg and lacerated wound over 3 cm. circular area with carbon particle over left leg. Admittedly, the injuries were caused by fire arm while he was reaching to the house of Phulkunwar to save her. instantaneously causing such injuries by dangerous weapon i.e. fire arm shows the intention of the person who has caused injury. Although the injuries were on leg and were not fatal, but the surrounding circumstances and injury by fire arm instantaneously, are sufficient for drawing inference that attempt to commit murder of Manprasad has been committed at the time of incident. ln case of conviction under Section 307 of the l.P.C. even the injury is not necessary. 12.As regards complicity of the appellants in the crime in question, as per the evidence of Phulkunwar (PW—1) & Manprasad (PW-17), two persons were inside the house of Phulkunwar, both the persons had caught hold of Phulkunwar, one was pressing her neck and another was pressing her neck with heavy wooden plank (geda), they committed robbery of the property of Phulkunwar including clothes, currency notes & food articles and they took the same along with box. Defence has not cross- examined these witnesses on the point of use of geda by one person and pistol by another person at th‘e time of commission of robbery in the house of Phulkunwar (PW-1). Even otherwise, the aforesaid evidence is sufficient for drawing inference that two persons had committed robbery by using deadly weapons geda and country made pistol. 13.As per the defence of the appellants, they have not committed any robbery or have not caused any injury to Manprasad and they have been subjected to test identification, but before the test identification the witnesses have seen them while they were in police custody in presence of police and, therefore, any evidence of such test identification is of no use. In absence of identification of the appellants, conviction of the appellants for the aforesaid offence is not sustainable under the law. 14.Test identification has been conducted by the Executive Magistrate vide Ex.P-15 at Tahsil premises Bagicha and in the test identification Ex.P-15, witnesses Phulkunwar (PW-1), Kunwar Ram (PW-14), Shyam Bihari (PW-13), Lachhan (PW—12) & Dhan Singh (PW-9) had identified these persons. 15.Phulkunwar (PW-1) has deposed in para 3 of her evidence that she had identified the appellants on the basis that she had seen both the accused at the_time of commission of offence. in para 6 of her cross-examination she has specifically deposed that the police has cailedher in the Police Station and shown the accused persons who were in custody then she identified both the accused persons in the Police Station. ln para 7 she has further deposed that at the time of identification police personnel were present. ln these circumstances, evidence of test identification loses its importance relating to Phulkunwar (PW-1). 16.Lachhan (PW—12) has also identified the accused persons. As per his evidence, on the date of incident during day time, he along with Kunwar & Ram Bihari were sitting in the shop of Anil Sharma then he saw that both the appellants were present in village Ghoghar, appellant Sohan used to visit the house of Phulkunwar, and second day he came to know that robbery has been committed in the house of Phulkunwar. He has identified both the accused, but in his cross-examination he has admitted )' that before such identification the accused were shown to him by the police. 17. Kunwar Ram (PW-14), who has also identified the accused persons, has ‘ a also deposed that on the fateful day before such incident, at about 4 p.m. l he had seen both the appellants whii’e they were passing in front of the s 6 ‘ house of Anil Sharma, at that time he was sitting with Lachhan & Shyam. In his cross-examination he has admitted that police ofhcials were present at the time of identification. 18.Evidence of these witnesses relating to identification of accused in test identifications shows that either the accused were shown to them by the police or at the time of identification, police personnel were present which loses the evidentiary value of test identification. identification of persons in the Court i.e. dock identification is a substantive piece of evidence. if the prosecution succeeds in proving dock identification then only on account of failure of test identification or any irregularity or illegality in the test identification, the evidentiary value of dock identification would not be affect. 19.ln the present case, Phulkunwar (PW-1) has specifically stated in her evidence that she has identified the accused persons on the basis that she had seen both the accused at the time of commission of offence, She has specifically stated in para 1 of her evidence that on the fateful day during day time four persons came to her house, they demanded water and asked about her son to whom she told that her son will come _on the day of poornima, Thereafter, at night two persons were found inside her house. She has specifically deposed that both the two appellants were present in her house and have committed robbery by using deadly weapons. 20.Dhan Singh (PW-9) has deposed in his evidence that just some hours before the incident he has seen both the accused, they were going towards village Ghoghar. Shankarram (PW-1 1) — son of Phulkunwar has deposed that he knew accused Sohan who’ is resident of Rajpuri where his sister had got married. Lachhan (PW-12) has also deposed that before the incident at about 4 p.m. he has seen both the accused persons in village Ghoghar. Shyam Bihari Chouhan»(PW—13) has specifically deposed that at about 4 p.m. on the date of incident he along ‘ with other‘persons has seen both the appellants in village Ghoghar. gtDefiniteiy three witnesses namely Phulkunwar (PW-t), LaEhhan (PW—12) & Kunwar Ram (PW-14) had seen the appellants in the police custody before test identification but the fact remains that the aforesaid witnesses. had seen both the appellants before the commission of incident. Manprasad (PW-17) has specihcaliy deposed that the two appellants (T“R ‘ ed 7 were present in the house of Phulkunwar at the time of incident and out oftwo one has shot fire upon him. As per the evidence of Lachhan (PW- 12), accused Sohan used to come to the house of Phulkunwar. Shankarram (PW—11) — son of Phulkunwar has specificaily deposed in para 1 of his evidence that earlier, once accused Sohan had come to his house. This shows that Sohanwho is resident of Rajpuri where‘the sister of Shankarram got married, had visited the house of Phulkunwar but he has not visited the house of Shankarram/Phulkunwar frequently. in these circumstances, it was not possible for Phulkunwar to tell the name of Sohan at he time of lodging the F.l.R. Evidence of Phuwar (PW-1) clearly shows that prior to commission of offence the accused had come to her huse for ensuring the psence of any other person and thereafter they committed obery at night. 22.Evidence of the aoresaid witnsses is sufficient for drawng inference that on the date of incident just bore few hours bot the accused perns who ere not residents of Ghoghar and residen f Rajpuri & z Bi s ha as sunpur were preent in village Ghogr. Manprad (PW—17) & Shyam Bihari Chouha (PW-13) who had not seen the accused in police custodhave clearly stated presence of the appellants on the date of incident and at the time of incident which also finds corroboration from th evidence o other witneses and the same is sufficient fér drawing inference that both the appellants were the persons ho had committed the offence of robbery by using deadly weapons. 3.ln the matterof ashora ngh (supra), the Ap Court has held that gravity of offence can be inferred on the basis of injury and in absence of injury fatal to life, conviction can be altered to Section 326 of the l.P.C.. But in the present case, the surrounding circumstances in which the appellants had shot fire upon Manprasad show the grave intention to commit murder. The case of Pashora Singh (supra) is distinguishable on facts to that of the present case. 24.As held by the Apex Court in the matters of Latel and Dilawar Singh (supra), the prosecution is required to prove that the accused were not merely holding deadly weapons, but have done something more in order to commit robbery. In the present case, one appellant was having heavy wooden plank and second was holding pistol, they were not merely holding deadly weapons, but they have used the same for causing injury t \ t ulkn o re , rb f e i ef h so w ts o n yg e f s w 2 P Si ex 8 Manprasad. The cases of Latel and Dilawar Singh (supra) are distinguishable on facts to that of the present case‘ 25.After appreciating the evidence‘avaiiabie on record, learned Additionai Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. Conviction of the appellants is based on legal‘ clinching and credible evidence sustainable under the law. esent case, after ensuring the fact that at the time of commission of offence no male member would be present, the appellants herein have to Phulkunwar & 26.1n the pr committed robbery by using deadly weapons causing serious injury asad. The trial Court has awarded minimum sentences prescribed under the law. On close y illegality in conviction & sentences including attempt to commit murder of Manpr scrutiny of evidence, l do not find an of the appellants. 27. Consequently, the appeal is devoid of merit, same is liable to be dismissed and it is hereby dismissed. The appellants are on bail, they shall surrender immediately before the Court of Additional Sessions Jashpurnagar/its successor-in—office for serving remaining sentences imposed upon them in Sessions Trial No.65/91. Judge, 4/ l Sdl- f1 ‘ 1 (n3§39 si . ’U