single Bec IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CG) VI? /2005 CRIMINAL APPEAL NO . APPELLANT Niyamat Ansari S/o Nizam Aari ns, aged 8 ears Occu Farmer R/o 11 -Sarangpur Thana— Ramanujganj, Dlst- Sarguja(C G) ‘ VERSUS ESPONDENT State of Chhattisgarh C E RIMINAL APPEAL UNDER SECTION 37 (2) OF THE COD OF CRIMINAL PROCEDURE nh 2 y V1 R ~2— Since the aforementioned three appeals arise out of the same judgment dated 24.01.2005 passed by Additional Sessions Judge (F.T.C), Ramanujganj, District‘ - Surguja in sessions Triai No. 271/2000, they are being disposed of by this common judgment. 2. 'The accused/appellants Tahir Ansari, Alwad, Lagan @Thuru ..and Rustam Ansari have been convicted undeis Sections 395 and 397 of IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 5,000 u/s 395 and rigorous imprisonment for ten years u/s 397 whereas the a‘ppeilants Manoranjan @ Montu, Anii Khaikho and Anii 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 accused/appeli 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 u/s 25 (1) and rigorous imprisonment for three years and pay fine of Rs. 2000 u/s 27, plus defauit stipulations. 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 SZ 8817 was stopped in between villages Ramanujganj and Aaragahi by 7-8 unknown persons carwing arms 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 Station Balrampur which was / ‘ c ‘3' transferred tn Police Statiun Ramanujganj under whose territory the offence had taken place and it was registered vide Ex. P-47. Based on this report, offence under Section 395 of IPC was registered against 7-8 unknown persons. Accused/appeiiants Tahir Ansari, Aiwad, Lagan, Anii Trgga, 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 arrested on 08.06.2000 vide arrest memo Ex. P-39. Likewise the acquittedaccused Mahesn 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 riled on 16.08.2000 for the offence under Sections 395, 397, 109, 1203 of IPC and 25 and 27 of Arms Act against 10 persons including Rohit Kumar Gupta and Manesh Kherwar who have been shown as absconders. However the Court below framed charge against the accused/appellants Rustam Ansari, Lagan @ Thuru, Alwad, Tahir Ansari, MaheSh Kherwar and Rohit _ Gupta under Sections 395 and 397 of IPC whereas against the accused/appellants, Anii Toga, Manoranjan, Niyamat Ansari and Anii Kheikho under Sections 395 397 of IPC and 25 (1 B) (a) and 27 of Arms Act 4. So as to holdthe accused persons guilty, prosecution has examined 27 witnesses in support of its case. Statemen$ of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. After hearing the parties the trial Court has acquitted the accused/appellants Rohit Kurnar Gupta and Mahesh Kherwar of the offence under Sections 395 and 397 of IPC but w as convicted and sentenced the other accused/appenants 4 mentioned in paragraph No.2 of this judgment. . ‘ n Leamed counses for the appeliants have argued that as itself the FIR was lodged ‘ ‘ _{ the case of the prosecution test identification parade t y- against unknown persons, in the R. L. Dewangan (PW- t ’7‘ P—35) conducted on 23.05.2000 by Khaikho and Manoranjan C 7’5 ‘L’ only accused/appeiiants Anil Rajenora i Montu have been identified, by the complainant of conviction of _ t Prasad Gupta (PW-7) and therefore question Aiwad, Rustam Ansari, accused/appellants Tahir Ansari, V 395 and 397 does not i Lagan and Anii Tigga under Sections accused Manoranjan and Anii arise. In respect of identified accused the examination in chief F: Khaikho, it has been argued that in Rajendra Prasad Gupta (PW-7) has stated kt r compiainant the accused/appeiiants vi that on the date of incident he knew FIR he has not disciog H Manranjan and Anii Tigga but in the iodged against unknown r?” their names and the same was identification of appeiiants persons and therefore the very doubtful. They further A? Manoranjan and Anii Khaikho becomes of his cross-examination this if submit that in paragraph-3 he could not see any of witness has categorically deposed that dark night and in ’ the accused persons because it was the accused persons had ‘ paragraph—5 he has stated thatall the identification of the covered their faces and therefore becomes doubtful appellants Mano'ranjan and Anil Khalkho It has been " and that being so the same is of no significance. memorandum on which ‘ further argued that Ex. P-8 is the from Rustam Ansari vide ‘ basis Rs. 200 has been seized the memorandum on seizure memo Ex. P-9, Ex. P-10 is has been seized from which basis front muzzle loading gun memo P-17, Ex. P-11 is Anil Kumar Tigga vide seizure Ex. Rs.1900, one dagger, one the memorandum on which basis and one watch have been revolver, one country made pistoi @ -S— seized from Anil Khalkho vide seizure memo Ex. P-18', Ex. P-lz is the memorandum 0n which-basis one country made pistoL 315 bore ’tive 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-ZO, Ex. P-14 is the memorandum on which basis Rs. 2000, one watch, one towel have been seized from Tahir Ansari vide seizure memo Ex. P—Zl, Ex. P—15 is the memorandum on which basis siippers, Rs. 25 have been seized from Alwad vide seizure memo Ex. P-22, Ex. P—l6 is the memorandum on 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 Kumar 'i’igga vide seizure memo Ex. P-24. According to the ieamed counsel, the seizure witness namely Bajrangial 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/appellants cannot be convicted under sections 395 and 397 of IPC. In respect of conviction of accused/appeliants Manoranjan, Anil ‘l‘igga, Niyamat Ansari and Anil Khalkho 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 ,6, months 16 days, therefore it is clear that appellants Manoranjan, Anll Kumar Khalkho.and Anll Kumar Tlgga have already served entire jail sentence of 3 years ln respect of Arms Act and it has been pleaded that the jail sentence of Niyamat Ansari may be reduced to the period already under gone by him. 7. On the other hand supporting the Impugned ludgment l has been arduecl by Shrl Das and Smt Ghal, leamecl counsel I g for the State that despite some short—comings on the srde or ; prosecution, the act of the accused/appellants are as such p t ’where no leniency can be shown to them It has been argued l that the manner m which they looted all the passengers or the bus shows the graVity of the offence. Learned State counsel" - F m" C ni ‘ however do not dispute that in the test identification parade i but for Anil Khalkho and Manoranjan the other r accusediappeilants were not identified They iurther sub that the conviction of the accused/appellants Manoraman, Al Tgga, Niyamat Ansari and Anil Khalkho under Sections 25 (1) and 27 of Arms Act is in accordance With law in View of the memorandum and seizure which have been duly proved bv ii Bajranglal Agrawal (PW—4). It has been further argued th i the weapons seized from Manoranjan, Anil Tigga, Niyamat wet? Ansari and Anil Khalkho were examined by armourer Theodar Lakra (PW-14) and he found ali the weapons in working condition vide Ex. P-14. 8. Dr. B. R. Ratre (PW-1) who was examined twice by the l prosecution as PW 1 and Pw-20 had medical'ly examined ail lg: the accused/appellants yide Exs P-l to P—? Munn'i 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 aoldets of his wits but he cannot tell as -7' to it was the accused persons who are present in the Court had robbed. Vimal 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. Bajrangiai Agrawai (PW—4) is a witness of memorandum Exs. P~10 to P-16, seizure Exs. P-17 to P—24 and arrest memo Exs. P-29 to P-33 has supported the prosecution case. Sripati (PW—5) was/a passenger traveling in the bus has not supported the prosecution case and turned hostiie. R. L. Dewangan (PW-6) is the Tahsiidar who had conducted the test identification parade (Ex. P-35) and prepared identification memo Ex. P—36 has stated that the complainant Rajendra Gupta had identified the‘ appellants Manoranjan and Anil Khalkho and also identified his watch vide article EXP-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 Anil Khalkho and also identified his watch when the same was put for identification vide Ex. Pn36. However, in paragraph-7 of his cross-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. Rajan 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 ’ committed from him. Birju Ram (PW-9) has made almost similar statement as made by Ranjan 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; Rstzca were -g/ taken fram him and he was aiso slapped by them He however has not stated anythmg against the accused/apneliants M K Tlwan (PW-11), the Statmn Hose Officer, RamanuJganJ had done part of investigatmn. D!keswar Singh (PW—12) is the Patwari who had prepared spot map Ex 9-43 Kameswar Prasad Mehta (PW-13) was a passenger in the said bus has stated that after stopping the bus Rs 90 were Iooted from mm but he has not stat anything 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 weapons were in working condition vide Ex.P—40. Persuram (PW-15), Ashok Jaiswal (PW.16), Bigu Das (PW-17) and Lalchand (PW- 18) are the witnesses to memorandum EXP-44, P—45B & P— 46A, P-4SB and P—14 respectively have not supported the prosecution case and have been deciared hostile. P. S. Mahllane (PW~19) who recorded the memorandum of has supported the prosecution case. Dr. B. R. Ratre (PW~20) was examined to prove the medical report in respect of the injured Surendra Kumar and $ubodh Ku’mar whose medical reports were submitted by Dr. Rajiv Kumar vide Exs. P—4EE and P-46 had confirmed the signature of the said Dr. Rajiv Kumar. Brijnath Sal. (PW-21), the Head Constable had recorded the FIR Ex. P—37. Jagdish Rai (PW—22) has not supported the prosecution case and tumed hostile. 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/appellants. The Head Constable Krishn Kumar Kosle (PW-25) had done part of investigation, O.P.Singh (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. Surendra Upadhyay (Pw~27), helper of the' bus has supported the occurrence of the incident but has not stated anything against the appeiiants. He is aiso a seizure witness of Exs. P—44A and P-4SB. 9. Minute examinatiOn Of the evidence makes it Clear that out of 6 accused/appeiiénts oniy Anii Khaikho‘ and Manoranjan have been identified by the compiainant Rajendra Gupta (PW- 7) in the identification parade vide EXP-35 held on 23.05.2000. In respect of accused/appellants Niyamat Ansari and Rustam Ansari, no test identification parade was conducted. It is said that Rajendra Gupta (PW—7) had identified accused Anii Khaikho and Manoranjan in test identification. parade however in cross-examination, this witness has categoricaiiy deposed that the incident had taken piace 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 accusediappeiiants has been identified by Rajendra Gupta (PW-7). Further the only identified article is the Titan watch seized from accused Anii Khaikho 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 iodged 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 sua.far it relates to conviction ofithe accused/appellants under Sections 395 and 397 of -IPC and accordingly, conviction of all the AO’ accused/appellants under sections 395 and 397 of IPC is unsustainabie and hereby set aside. So far as ccnviction of the accused/eppeiiants Manoranjan, Anil Tigga, Anii Khaikho' and Niyamat Ansari under section 25 (1) and 27 of Arms Act is concemed the memorandum Exs P-12 P 10 P—11 & P—13 and seizure Exs P- 19 P 17, P-18 8:. P-ZO have been duly proved by BaJrang' Agrawal (PW-4), O P Singh (PW 26) has proved the grant of ' g Vi sanction Vide Ex. P-48 and the armourer Theodor Lakra (PW— 14) has stated that the seized Weapons were in workings condition vide EXP—40 and therefore their conviction under the provisions of Arms Act is fuiiy justified. 10 I find no force in'the argument of the leamed counsel for the appellants that as the weapons have been seized from open place which are acceSSible to a common man, the s has got no value because the fact reveals that based on memorandum Ex P-12 one countiy made pistol 315 bore live artridges and one knife have been seized at the instanCc of appellant Manorangan @ Montu from the loft of his house yide seizure memo EXP-19 based on the memorandum Ex P 10 one front muzzle loading gun has been seized at the instance of appellant Anil Tigga beside the box of his house vide seizure memo EXP-17 based on the memorandum Ex. P—11 one dagger, one revolver, one country made pistol have been seized at the instance of appellant Anil Khalkho from the outer '/ boundary wall f his house Vide seizure memo Ex P—18 and ' based on the memorandum Ex. P-13 six round pistol has been seized at the instance of appellant Niyamat Ansari from pit of his kitchen garden vide seizure memo Ex P-20. In view of the above eVidence this Court is of the opinion that the conviction of accused/appellants Manoranjan, Anil Tigga, Anii Khalkho and Niyamat Ansari under section 25 (1) and 27 72:5. r. r. V x q qule ,j r I a ..‘I/ Of Arms ACt is in aCCOrdanCe With law and GOES f10t warrant any interference by this Court. It has been informed by the respective counsel appearing for the State and the appellants that Manoranjan @ Montu, Anii Tigga and Ann Khaikho have already remained in jail far more than 6 years and thus they have undergone the entire sentence imposed on them under sections 25 (1) and 27 of Arms Act. In view or this, these three accused/appellants are not required to be sent back to jaii. The appellants Tahir Ansari, Mnoranjan @ Montu, Anil Tigga, Alwad, Rustam Ansari and Anil Khalkho are already on bail and therefore their bail bonds stand dischargeda 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 Niya‘mat 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 oi“ the jail sentence. 12. Appeal thus partly succeeds. Sd/- Pritinker Diwakcr ' Judge.