IN THE HON'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR Cr.A.NO. •^15' /2009 ^f^.:fSs '?"l"S?~'.fS'ft] APPELLANT (In Jail) ^ -'•:^w ^•?^*< Dharmendra Gupta, S/o Brij Mohan Gupta, aged about 29 years, R/o Village Tadar, P.S. Torva, District- Rohlash, At Present R/o Village Shiv Nandanpur, P.S. Jainagar, District- Surguja (C.G.) VERSUS State of Chhattisgarh, Through - P.S. Jainagar, District - Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 f2V OF THE CRIMINALPRQCEDURE CODE cr< ^ RESPONDENT '? -'.^ '•s;:i S'' i'^;"' HIGH COURT OF CHHATTISOARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1^5/2009 APPELLANT RESPONDENT AsifAhmad alias Pappu Versus State of Chhattisgarh ' Criminal ARpeal No. 21 Q/2009 APPELLANTS Mohd. Samim and another RESPONDENT Versus State of Chhattisgarh Criminal Ap^eaLN^.215/2009 APPELLANT DharmendraGupta ReSfQN&EMT Versus State of Chhattfegarh s»it:i^t:~ ^?¥3f-, !|g;RiliB«; Criminal Appeal No. 317/2009 APPELLANT Sanj'ay Kumar RESPONDENT Versus State of Chhattisgarh ^ .y1 ,Mt ^] \-7 •>/• Post for pronouncement of thejudgment on ^- '?-2011 - °t— ---- 1| Sd/- Pritinker Diwaker Judge HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 185/2009 AsifAhmad alias Pappu RESPONDENT APPELLANTS RESPONDENT Vereus State of Chhattisgarh . Criminal Appeal No. 210/2009 Mohd. Samim and another Versus State of Chhattisgarh Criminal Appeal No. 215/2009 APPELLANT Dharmendra Gupta Versus RESPONDENT State of Chhattisgarh Criminal Appeal No. 317/2009 APPELLANT Sanjay Kumar RESPONDENT Vereus State of Chhattisgarh Shri Surendra Singh learned Sr. counsel with Shri Neeraj Mehta and Shri ArvindSingh counsel for the appellants. Shri Pravin Das Dy. GA for the State. CRIMINAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGIVIENT (/Z.0^,2011) Since all the aforesaid mentioned appeals arise out of judgment and order dated 20.2.2009 passed by the Additional Sessions Judge (FTC) Surajpur, District Sarguja in Sessions Trial No. 229/2001 convicting the accused/appellants under Section 395/397 IPC and sentencing each of them to further undergo rigorous imprisonment for 10 years and pay t 1 n 9 in ;r, ' ;^.»ftii;''.-.;^\, /'^. ^^s^ %, v '"vy e—'2-~'— fine of Rs. 200, in default of payment of fine to further undergo rigorous imprisonment for 10 days, they are disposed of by this common judgment. 2. Facts of the case in briefare that on 30.1.2001 at about 5.40 p.m. FIR Ex. P-10 was lodged by Raj Roop Jain (PW-11) to the effect that on that day at about 5.10 p.m. when he was returning to Ambikapur from Vishrampur on his scooter with Rs. 45,365 which was kept in the rear dickey and Rs. 70,000 kept in front dickey of the scooter and as soon as he reached near Kumda turning, two scooter-borne persons, one of them carrying pistol in his hand, overtook him and asked him to stop the scooter. It is alleged that sensing trouble, the complainant accelerated the scooter in order to save him but as he had lost control over the scooter, he fell down. It is further alleged that when he raised cries for help, four persons of the nearby locality came there, who, as discovered later, were none else but the accomplices of the persons who had overtaken the complainant and asked him to stop. Thereafter, it is alleged that the accused persons asked him to leave the scooter and get away. The accused persons are alleged to have been armed with sword, knife, club and pistol. Subsequently, it is alleged that all the accused persons fled away on two scooters including that of the complainant. The complainant has given description of the accused persons stating that they were quite young men in the age group of 25-26 years, one was wheatish complexioned, one darkish complexioned wearing jerkin. The complainant also claimed to recognize the culprits if he got an opportunity to see them. On the basis of this FIR, offence under Section 395 IPC was registered against the accused persons at police station Jai Nagar. It is furtheralleged that accused Sanjay, Dharmendra, AsifAhmad and Mohd. Samim were arrested on 10.2.2001 whereas accused Shilabh Raj was arrested on 19.2.2001. Based on memorandum Ex. P-15, seizure ofcash amounting to Rs. 7,600, Scooter No. MP 27 D/8316, knife, pant and shirt was made from accused Sanjay vide seizure memo Ex. P-20. Based on memorandum Ex. P-14 seizure of club, pant and shirt was made from accused Dharmendra vide seizure memo Ex. P-21 and cash amounting to Rs. 3000 was seized from him vide seizure memo Ex. P-22. Based on memorandum Ex. P-16 seizure of cash amounting to Rs. 5,700, revolver, @ —3- pant, shirt and muffler was made from accused Asif Ahmad vide seizure memo Ex. P-2. Based on memprandum Ex. P-17 seizure of TV, cash amounting to Rs. 4,000 and a club was made from accused Mohd. Samim vide seizure memo Ex. P-24, P-25 and P-26. Based on memorandum Ex. P-19 seizure ofcash amounting to Rs. 4,200, attache, pant, shirt, shawl and sweater was made from accused Shilabh Raj vide seizure memo Ex. P-29. Test Ideritification Parade was conducted on 5.4.2001 by R.B. Dewangan (PW-13). After completion of investigation, challan was filed by the police on 22.4.2001 for the offences under Sections 395, 397 IPC and 25/27 of the Arms Aet. As one of the accused namely Sarafraj was minor, his case was made over to the Juvenile Court. 3. So as to hold the accused persons guilty, prosecution has examined 21 witnesses in support of its case. Statements 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. Thisapart, one Laxmi Narayan Giri (DW-1) has also been examined by the defence in support of its case. 4. After hearing the parties, the trial Court has acquitted the accused/appellants of the offences u/s 25/27 of the Arms Act but convicted and sentenced them as mentioned above in paragraph No.1 of this judgment. 5. Contention of Shri Surendra Singh, leaned senior counsel for the appellants is that as per the statement of complainant namely Raj Roop Jain (PW-11) the accused persons had not covered their faces whereas according to Loknath Dadsena (PW-18) and Satish Mishra (PW-20) the accused persons had covered their faces. According to learned Sr. counsel there is no substantive piece of evidence in respect of identification of the accused persons though there was ample opportunity for the complainant to see the accused persons before the test identification parade was conducted. He submits that the test identification parade vide Ex. P-1 1 was conducted on 05.04.2001 i.e. 46 days after the arrest and in between four judicialremands were taken by f-^- •^ "'' 'l ''"'' ! .>)i'A '<•^^ '^^s.s&S^ -/-V -^- the prosecution. According to him, accused Sanjay, Dharmendra and Mohd. Samim were arrested on 10.02.2001 whereas accused Shilabh Raj was arrested on 19.02.2001. He submits that in respect of accused Sanjay, Dharmendra and Mohd. Samim, first judicial remand was taken on 11.02.2001 whereas in respect of accused Shilabh Raj first judicial remand was taken on 19.02.2001 and subsequently on 23.02.2001, 09.03.2001 and 23.03.2001 also judicial remand in respect of the accused persons were taken. It has been argued that in none of the order sheets of the Court it has been recorded that the accused persons were produced in the Court Baparda. Learned counsel for the accused/appellants relied upon the decision of Supreme Court in the matter of Hasib v. State of Bihar reported in AIR 1972 SC 283 and AIR 1979 SC 1831. It has been further argued by the counsel for the accused/appellants that at the time of test identificationparade vide EX.P- 11, the Police Officer C. S. Mishra was present which is evident from Paragraph-4 of the deposition of R.B. Dewangan (PW-13). He further invited the attention of this Court to paragraph No.3 of the evidence of Rama Shankar Singh (PW-16) and Paragraph No. 19 of the evidence of the complainant (PW-11). Lastly it has been argued that the offence under Section 397 is not made out against the accused/appellants because in his evidence the complainant has not stated as to who among the accused/appellants had used deadly weapon while committing the offence. Learned counsel has relied upon the decision of the Supreme Court in the matterof Ashfaq v. State (Govt. of NCT of Delhi) AIR 2004 SC 1253. He further submits that Lathi is not deadly weapon and in support of this submission he relied upon the decision of the Supreme Court in the matter of Dhanai Mahto and another v. State of Bihar reported in AIR 2000 SC 3602. He further submits that the prosecution witnesses namely Loknath Dadsena (PW-18) and Satish Mishra (PW-20) have in fact deposed in favour of the accused/appellants and therefore their statements become binding on the prosecution. In support of this submission he placed reliance on the decision of the Supreme Court in the matter of Javed Masood and another v. State of Rajsthan reported in AIR 2010 S.C. 979. He further submits that in a case where number of .,.jiia.is.-.,,^ ^•f '"'^:: :.-'LS' ^l '""''^' S& \.^y's.. ^' '^^-^" '"^ yy-- •-£"— witnesses are there and even if one witness gives a statement on the basis of which the accused is exonerated, benefit of doubt should be extended to the accused. In support of this argument reliance is placed on the decision of the Supreme Court in the matter of Shanta v. State of Haryana AIR 1981 SC 650. He submits that during the dock identification the complainant has not identified any specific accused while attributing his role in the incident. He submits that the complainant has not identified any of the accused persdns by touching them or by pointing out a finger towards him, In support ofthis submission.he relied upon the decision ofthe Supreme Cburt in the matter of Simon and others v. State of Karnataka, AIR 2004 SC 2775. He submits that the appellants are in jail from the date of arrest itself and therefore a lenient view may be taken in the matter. 6. On the other hand, counspl for the respondent/State supports the judgment impugned and submits that a very prompt report was lodged by the complainant within half an hour of the incident. He submits that in the FIR the complainant has given the description of the accused persons regarding their age, complexion and facial appearance and that the accused persons have been duly identified by the complainant in the test identification parade vide Ex. P-11 which was conducted by R.B. Dewangan (PW-13) - the Executive Magistrate. He submits that based on the memorandum of the accused persons part of robbed cash has been seized at the instance of the accused persons. In respect of submission ofthe counsel for the appellants that Loknath Dadsena (PW- 18) and Satish Mishra (PW-20) have stated in the evidence that the accused persons had covered their faces, it has been argued by the State counsel that Loknath Dadsena (PW-18) and Satish Mishra (PW-20) had not seen the actual occurrence but they simple saw the accused persons fleeing from the spot after commission of the offence and if at that stage they had seen the accused persons, covering their faces, it cannot be said that at the time of commission of offence also, they had covered their faces and therefore there is no discrepancy in the evidence of complainant Raj Roop Jain (PW-11), Loknath Dadsena (PW-18) and Satish Mishra (PW-20). In respect of dock identification of the accused persons, courtsel for the respondenVState submits that in the opening paragraph of his evidence the complainant has stated that he recognized ^' fh.,..Ai&3y' i ' '<SS;iSi" .. ."' \ the accused persons in the Court and further in paragraph No.6 he went to state that on 5.4.2001 at 1 p.m. he identified the accused persons vide Ex. P-11 by specifying their names before the Court. He submits that in paragraph 9 of his evidence, the complainant has further stated that the accused persons present in the Court were not known to them previously nor did he know their names. He submits that there is no reason to disbelieve and discard the evidence of the complainant (PW-11) and even if there is some discrepancy in the evidence of the complainant (PW-11), Loknath Dadsena (PW-18) and Satish Mishra (PW-20), same has to be ignored as there is sufficient evidence against the accused persons for convicting them under Sections 395 and 397 IPC. He further submits that there is no evidence available on record to show that before taking the judicial remand of the accused persons before the test identification parade on 5.4.2001 they were not produced Baparda. According to him, there is no evidence on record to establish that on these dates of remand the complainant was present in the Court or he had any opportunity to see the accused persons. In respect of 46 days delay in conducting the test identification parade, it is submitted by the State counsel that the police authorities had immediately preferred an application before the executive magistrate for conducting the test identification parade but the same could not be done at the earliest point of time because of certain administrative difficulties. He submits that there is no evidence on record to show as to what prejudice has been caused to the accused/appellants even if the test identification parade was conducted 46 days after the incident. In respect of presence of C.S. Sharma, the police officer, at the time oftest identification parade, it has been argued by the State counsel that there is no such evidence on record to establish that he was present at the time of test identification parade. He submits that mere presence of police officer in the cabin of sub jailor would not vitiate the entire test identification parade which was conducted in a separate place i.e. the verandah of the sub jail. State counsel further argued that there is no evidence on record to show that when the complainant had in fact identified the accused persons, any police officer was present there. He submits that there is no evidence on record to show that the accused persons were shown to the complainant —7— prior to holding of test identification parade. He submits that the act attributed to the accused persons is of very heinous nature and therefore they cannot be entitled for any lenient consideration. 7. Complainant Raj RoopJain (PW-11) hasstated in hisevidencethat he recognized the accused persons but he could not tell as to where they resided. According to this witness, for his business he used to visit Surajpur - Vishrampur frequently and on the date of incident also at about 5 p.m. when after collecting an amount of Rs. 45,000 he was going to Ambikapur from Vishrampur on his scooter, he saw two scooter-borne boys coming from behind who had asked him to stop but as he had not followed the indication being given by the those two boys, he did not bother to stop and after some time the pillion rider of the said scooter again asked him to stop showing a revolver to him. On this, according to this witness, he accelerated the scooter as a result of which he lost his control over the same and fell down near a place known as Kumda turning. Immediately after he fell down, those two boys also stopped their scooter and hurling abuses at him asked him to get away by leaving his scooter there itself to which he had made protest. Thereafter, on being called out by him, some people already standing near Kumda turning came to him who were armed with club, sword and knife. According to this witness, the said persons eventually turned out to be the accomplices of two boys who were chasing him on scooter. This witness has further stated that when those persons started brandishing sword and club, he moved aside and thereafter they left the spot with his scooter. At the same time, according to this witness, one jeep passed thereby but it did not stop in spite of his request thereforand in the meanwhile anotherjeep carrying passengers happened to pass by in which one police officer was also traveling. After he came to know that the said police officer was the Station House Officer of police station Surajpur, he narrated the incident to him who immediately informed the same all around on wireless and took him in the said jeep towards Kumda in the quest of the accused persons. According to him, after goingone and a half k.m. away he found his scooter lying in abandoned condition, its front dickey was open whereas rear one was closed, and that nobody was present on the spot. He has stated that after the dickey was broken open by the police officer -^^^asss, •:.-^'~'~te, ifjh^ '•s^';'%, r / '•'•fea=«E!Sy' -g present there, the bag kept therein was safe. According to him, when the accused persons could not be traced even after extensive search, he went to the police station Jai Nagar and lodged the FIR Ex. P-10. On 5.4.2001 at about 1 p.m. accused Shilabhraj, Dharmendra Gupta, Samim, Sanjay, Sarafraj, Asif Ahmed were identified in the presence ofwitness Laxmi Narayan and Dharmpal and said identification parade was conducted by the Executive Magistrate but he was not aware of his name. In paragraph 09 of his evidence, this witness has stated that previously the accused persons were not known to him nor did he know their names. In paragraph 1 9 of his evidence, this witness has denied the fact that in the context of test identification parade he was called by the Sub Inspector namely C.S. Sharma and stated that he had received the notice for that. He has further denied the fact that at the time of identification parade in the jail premises, Inspector Sharma, Narendra Jain and Shankar Agrawal were also with him. He has further denied that all these persons were sitting in the office of the jailor whereas he was made to stand outside. He has denied that at the time of incident, accused persons had covered their faces and therefore he could not identify them. He has stated that only one accused had covered his face but his mask too had fallen off in the course of incident. This witness has clarified that proper mixing of the persons was done during the test identification parade. Loknath Dadsena (PW-18) and Satish Mishra (PW-20) are the witnesses who had seen the accused persons running from the spot. According to Loknath Dadsena (PW-18), on the date of incident he along with Satish Mishra (PW-20) and other persons had gone to play the cricket match at Vishrampur but a? there arose some dispute, entire match could not be played. According to him, when he and his companions were returning to Ambikapur through Kumdatuming, they saw three persons in a scooter covering their facewith cloth, out ofwhom one was sitting in center was carrying sword in his hand. According to this witness, there was one more scooter being ridden by three other persons and as on account of fear he had accelerated his motorcycle, he could not identify them properly. Satish Mishra (PW-20) has made almost the same statement as has been made by Loknath Dadsena (PW-18). He ..s'^sf&^, ^.<^' '<• .^' .-y^ ^' l':. ^•'"'•:^y'^il\ '^ ^ ' ^^^•'/"' ^ ?; /'• ..s' 3- has stated that the persons riding two scooters had covered their faces and were running towards Kumda turning. R.B. Dewangan (PW-13) - Naib Tehsildar is thewitness who had conducted the test identification parade on 5.4.2001 vide Ex. P-11. He has stated thatthe test identification parade was conducted in sub jail Surajpur. In paragraph No.4 he has stated that identification was done in jail premises just opposite the office of sub jailor in the verandah. He hasstated that when he reached the jail for the said identification parade, in the office of jailor, Narendra Jain, Shankar Agrawal and Station House Officer C.S. Sharma were already present there and at that time R.S. Singh was posted there as sub jailor. He has stated that in the first round of test identification parade, the complainant (PW-11) could not identify the two persons and the parade was conducted in the presence of Laxmi Narayan, Dharampal in addition to R.S. Singh - sub jailor (PW-16). In paragraph No.6 of his deposition, this witness has stated that as soon as the request was made by the investigating officer for conducting the test identification parade, he conducted the same immediately and he has not violated any of the orders in that respect. He has further admitted the fact that before test identification parade, the news regarding arrest of the accused persons was published in all local news papers, which was read by him also. He has also admitted that Narendra Jain is a renowned journalist and was the chief correspondent of Dainik Bhaskar. He has further categorically stated that at the time of test identification parade, none of the police people was present. Rama Shankar Singh (PW-16) who was present at the time of test identification parade has sated in his evidence that on 5.4.2001 test identification parade was conducted at sub jail Surajpur and he was one of the witnesses to the same. In paragraph 3 of his evidence he has stated that Station House Officer of Vishrampur namely C.S. Sharma had brought the complainant along with for the test identification parade which was conducted in the verandah situated opposite his office. Parvati (PW-1) has not supported the case of the prosecution and has been declared hostile. Jagdish Kumar Singhal (PW-2), Narayan Das Goyal (PW-3) and Deendayal (PW-4) are the witnesses from whom the complainant had collected some money on the date of incident. Prem Shankar Yadav (PW-5), Chandan Chourasiya (PW-6), Jamuna Prasad —10. V-. (PW-7) and Gupteshwar Prasad Gupta (PW-8) have not supported the case of the prosecution and have been declared hostile. William Toppo - Sub Inspector (PW-9) is the witness who had done part of the investigation. Sanjay Singh (PW-10) is the witness to the seizure of scooter and money vide Ex. P-8 and P-9. Jamil Khan (PW-12) is the witness to seizure of the articles made under Ex. P-12 but he has not supported the case of the prosecution and has been declared hostile. He has however admitted his signature of the seizure memo. Ganesh Prasad (PW-14) -the motor mechanic has not stated anything specific. Ashok Kumar Singh (PW-15) has not supported the case ofthe prosecution and has been declared hostile. Narendra Jain (PW-17) is the witness to seizure and memorandum has supported the case of the prosecution. Theodor Lakada (PW-19) is the armourer who had examined the country made pistol and given his report Ex. P-37 stating that the said weapon was in working condition. Pramod Kumar Singh Gautam (PW-21) is the investigating officer who has duly supported the case of the prosecution. Defence withess namely Laxmi Narayan Giri (DW-1) has stated that from 27.5.1999 for about two and a half months he was an under trial prisoner and is a witness to test identification parade Ex. P-11. He has stated that test identification parade was not conducted in proper manner as on the instructions of Station House Officer he had made to stand the accused persons after mixing them with some other prisoners in the verandah opposite the office of the jailor. Thereafter, according to this witness, the jailor came there and the accused persons were made to stand in the interval of two persons and that entire body of those persons was covered with blanket but their faces were kept open but the person supposed to identify could not do that even in the third round. Thereafter, the blanket was slid down up to the waist to which this witness has objected in the presence of the Tehsildar. Thereafter, according to this witness, when all the people got into the office ofjailor, he also went there and