c-> SingleBench IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) CRIMINAL APPEAL NO.'^b ^"OF 2009 (S.B.) APPELLANT (IN JAIL) ^2. t^' :^^ ^/^ ^s-.'c> .%^" • ^' ^' A^ Udal Yadav S/o Gopal Yadav, aged about 19 years, R/o Aamapara Bilha, Ward No.12, Police Station Bilha, presently residing at Near Kududand Water Tank, Police Station Civil Line, Bilaspur (C.G.). VERSUS State of Chhattisgarh, Through: The Police Station Hirri, Tahsil and District. Bilaspur (C.G.). :1.1- • • , ^"" ; i : MEMiO,3F APIi}EAL UNDER SECTION 374 (2) OF THE;CQDE OF CRIMINAL PROCEDURE, 1973 '^' RESPONDENT. HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.560 of 2009 APPELLANTS: (In custody) RESPONDENT: -Versus- AND Pappu alias Dileshwar Dhritlahare and another State of Chhattisgarh Criminat Appeal No.562 of 2009 APPELLANT: (In Jail) RESPONDENT: -Versus- Udal Yadav State of Chhattisgarh POST FOR JUDGMENT ON\^ SEPTEMBER, 2011 Sd/- prashant Kumar Mishra Judge /y^^ -—%, ^ HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.560 of 2009 APPELLANTS: (In custody) Pappu alias Dileshwar Dhritlahare and another -Versus- RESPONDENT: State of Chhattisgarh AND Criminal Appeal No.562 of 2009 APPELLANT: (InJail) RESPONDENT: -Versus- UdalYadav State of Chhattisgarh Present: Shri K.K. Singh, counsel for appellant No.1 in Cr.A. No.560/09. Shri Yogeshwar Shamra, counsel for appellant No.2 in Cr.A. No.560/09. Shri Malay Kumar Bhaduri, counsel for the appellant in Cr.A. No.562/09. Shri Pradeep Singh, Panel Lawyerforthe State/respondent. JUDGMENT (Delivered on 1^^ September, 2011) Prashant Kumar Mishra. J. 1. Each of the appellants in the aforesaid criminal appeals has been cpnvicted for committing offence under Section 394/397 of the IPC and sentenced to undergo R.l. for 7 years and to pay a fine of Rs.100/-, in default of payment of fine to further undergo Additional R.l. for 10 days. 2. Case of the prosecution, in brief, isthat on 11-8-2008 at about 10 pm complainant Shyam Kumar was returning from his duty at Sagar Rice Mill, Sirgitti on his motorcycle. Near a bridge at Rahangi turning, one person asked him to stop his motorcycle, but the complainant did not stop and it slowed down at the turning. 3 people armed with club (lathi) came there and assaulted him on his head. The said 3 persons took the "-.\ complainant to an open field and after assaulting him, looted his Motorola mobile along with Sim No.98935-50268, Rs.300/-cash and wrist watch and thereafter pasted his mouth with a fevicol and criminally intimidated/threatened him. The complainant, with great difficulty, came to the railway crossing. One stranger took him to the hospital and thereafter FIR was lodged. After completion of investigation, charge sheet was filed. 3. The prosecution examined 12 witnesses to bring home the charges. On the person of complainant (PW-1) Shyam Kumar Rajput, 8 injuries were found, which were lacerated wound, abrasions, swelling with pain etc. Ex.-P/14 is the medical report, which has been proved by PW-5 Dr. Devesh Pradhan. 4. F1R (Ex.-P/1) was lodged by complainant Shyam Kumar and Dehati Nalishi (Ex.-P/18) was taken down by PW-10 S.N. Mishra. PW-2 Nand Kishore Sharma is the person who met the complainant immediately after the incident and finding him with several injuries. He enquired from the complainant and on this enquiry, the complainant had informed him that he has been subjected to loot and assault. 5. Learned counsel for the appellants have mainly challenged the finding regarding identification and have argued that identification is not properly made or proved, therefore, it cannot be conclusively held that the appellants have committed the loot. 6. On the other hand, learned counsel for the State/respondent supported I the impugned judgment. ,^ :y:'^^ />'^ "<%. ffc-T,%. 'l %v'^y 7. This Court shall now discuss the evidence regarding identification. PW- 1 Shyam Kumar Rajput has stated that though he was not aware about the appellants but he had told the police that he can identify the accused persons on seeing them. He has proved the identification of looted articles vide Ex.-P/2 and identification of the appellants vide Ex.-P/3. He had also obtained wrist watch, mobile and motorcycle on Supurdginama, as these articles were seized from the accused persons. In his cross-examination, this witness has clearly stated that though there was no light exactly on the place of the incident, but there was sufficient light on the electric pole near railway crossing and he had seen the culprits with the help of this light. He had also denied the suggestion that the police had allowed him to see the arrested persons prior to the test identification parade. In Ex.-P/S, identification memo, it is stated that appellant Rakesh and Udal Yadav were identified by the complainant whereas appellant Dileshwar could not be identified. 8. PW-3 Vijay Kumar is the witness of seizure memo (Ex.-P/6) by which Rs.120/- was seized from appellant Rakesh on his memorandum recorded vide Ex.-P/S. According to this witness, nothing was seized from Dileshwar or Udal. Similarly, PW-4 Parasram is the witness before whom complainant Shyam Kumar has identified his mobile and wrist watch. PW-6 Shobhit Kumar is the Kotwar before whom 2 handkerchiefs, one fevicol wrapper, spectacle, raincoat, cap etc. were seized from the place of occurrence vide Ex.-P/4. Ex.-P/S is the memorandum statement of Dileshwar @ Pappu. By this memorandum and consequent seizure vide Ex.-P/10, looted Motorola mobile and Romax wrist watch was seized from Dileshwar. 9. From the above evidence, it clearly emerges that appellants Rakesh and Udal were identified during test identification parade. From appellant Rakesh Gahire cash amountof Rs.120/- was seized vide Ex.-P/6 and from appellant Udal Yadav, motorcycle and one knife was seized vide Ex.-P/9. From appellant Dileshwar @ Pappu, looted Motorola Mobile and Romax wrist watch was seized vide Ex.-P/10 from his house in pursuance of his memorandum Ex.-P/S. Thus, appellant Rakesh and Udal were duly identified and from them seizure of looted articles have also been made. Though Dileshwar @ Pappu was not identified, but looted Motorola Mobile and wrist watch was seized from him. Therefore, to examine the correctness of conviction and sentence imposed upon appellant Dileshwear, this Court is required to scrutinize the evidence regarding identification of the looted article with great caution. Ex.-P/2 is the identification memo of the wrist watch and Motorola mobile. Appellant Dileshwar @ Pappu was arrested on 17-8- 2008 and the mobile and wrist watch were seized on the same date. This identification of the articles was conducted exactly after one month from the date of seizure. Thus, as against appellant Dileshwar @ Pappu, case ofthe prosecution appears to be weak inasmuch as neither he has been identified nor articles seized from him were put to identification immediately after recovery. His conviction, therefore, deserves to be set aside. lO.This Court is required to examine one more aspect of the case i.e. whether conviction under Section 394/397 of the IPC to all the appellants is permissible in taw on a finding that one of the culprits has used knife, stated to be a deadly weapon by the prosecution, without hliiiiimini f\ specifically attributing the allegation of use of deadly weapon while committing dacoity to any particular accused person. 11.1n the matter of Paramjeet Singh Vs. State of Rajasthan {2001 CRI.L.J. 757 (SC)}, it has been held that conviction under Section 397 of the IPC cannot be applied constructively with the aid of Section 34 or 149 of the IPC and that the said offence relates only to the offender who actually uses weapon himself. 12. In the matter of Shri Phool Kumar Vs. Delhi Administration {(1975) 1 SCC 797}, it has been held that liability to enhance punishment is limited to the offender who actually uses weapon himself and causing grievous hurt and not to others who in combination with such person have committed robbery or dacoity. 13. In the present case, Dehati Nalishi (Ex.-P/18) and the FIR (Ex.-P/1) refer that the accused persons were armed with lathi and have assaulted the injured by lathi. There is no allegation, though knife has been seized, that the injury was caused by knife. 14. In the matter of Desraj s/o Ramgopal Vs. State of Madhya Pradesh {1996 M.P.L.J. 1079}, it has been held that where the accused was only armed with a lathi, but the same had no iron covering over it to make it a deadly weapon and besides that, size of lathi was also not established, case of the prosecution would not be covered under Section 397 of the IPC. 15. Thus, in view of the clear allegation that only club/lathi was used and no other weapon or deadly weapon was either possessed by the accused For the same has been used, in the opinion of this Court, conviction -(i) Barve under Section 394/397 of the IPC against the appellants cannot be sustained. Instead, the appellants namely, Rakesh and Udal deserve to be convicted under Section 394 ofthe IPC simplicitor. 16. In the result- > Criminal Appeal No.560/2009 in respect ofappellant Nq.1 Pappu alias Dileshwar Dhritlahare is allowed. Conviction and sentence imposed upon him under Section 394/397 of the IPC are set aside and he is acquitted of the said charge. He be released forthwith unless required to be detained in any other case. > Criminal Appeal No.560/2009 in respect of appellant No.2 Rakesh Kumar Gahire and Criminal Appeal No.562/2009 preferred by appellant Udal Yadav are allowed in part. Conviction imposed upon them under Section 394/397 ofthe IPC is set aside and instead, they are convicted under Section 394 of the IPC. The sentence imposed upon them shall remain unaltered. Sd/- Prashant Kumar Mishra Judge