Ot ^,, HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma.J.I APPELLANT Criminal AoDeal No. 679 of 2005 Jitendra Vaishnav RESPONDENT VERSUS State of Chhattisaarh Criminal Aopeal No. 462 of 2007 APPELLANT Ram Kumar Ratre RESPONDENT VERSUS State of Chhattisgarh Post for oronouncement of the judgment onf7-11-2008 Sd/- T.P, Sharma Judge ^y^ -7 ' -./ 3-.<£T- HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble Mr.T.P.Sharma,J.] APPELLANT RESPONDENT Criminal Appeal No. 679 of 2005 VERSUS Jitendra Vaishnav S/o Shri Narmada Prasad Vaishnav, aged about 19 years, resident of Shyam Nagar, Lingiyadih, Thana Sarkanda, District Bilaspur, CG. State of Chhattisgarh Through Station House Officer, Police Station Sarkanda, Tahsil and District Bilaspur (Chhattisgarh). APPELLANT Criminal Appeal No. 462 of 2007 VERSUS RESPONDENT Ram Kumar Ratre, S/o Shri Gendram Ratre, aged about 20 years, R/o Village Lingiadih, Police Station Sarkanda, Tahsil and District Bilaspur (Chhattisgarh) State of Chhattisgarh Through Station House Officer, Police Station Sarkanda, Tahsil and District Bilaspur (Chhattisgarh). Mr. Ashok Dixit and Mr. Sandeep Shrivastava counsel for the accused/appellants. Mr. Ravindra Agrawal PLfor the respondent/State. CR1MINAL APPEALS UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. J U D G M E N T (Delivered on)7 .11.2008) Since both the aforesaid criminal appeals arise out of a common judgment dated 3.5.2005 passed by 5th Additional Sessions Judge, Bilaspur in Session Trial No. 81/2005, convicting the accused/appellants for the offences ^- Ei. a i ITSIJ '^-y'/ - z. punishable under sections 394 and 397 IPC and sentencing each of them to rigorous imprisonment for seven years and fine of Rs. 500.00 with default stipulation, on each count, they are disposed of by this common judgment. 2. The judgment is assailed on the ground that without there being any evidence available on record with regard to commission of robbery, the trial Court has committed an illegality in convicting and sentencing the accused/appellants as mentioned above. 3. Prosecution case in brief is that on 14.1.2004 at about 8.45 p.m. when complainant Raghunath Mishrawas going home after closing the shop on his Luna Moped, two persons stopped him near a canal bridge and asked him to hand over the money on which he gave them Rs. 100.00 which he was having. Thereafter, they assaulfed him wjth sharp edged weapon on head, nose and neck and also snatched his Luna moped. As a result of assault, the complainant fell down and became unconscious. Thereafter, brothers of the complainant namely Vishwanath and Ramkishore came there and took him to police station Sarkanda where he lodged First Information Report Ex. P-2 stating therein that he would identify the persons who committed the offence. Complainant was then sent for medical examination vide Ex. P-3. Dr. D.K. Vaishnav (PW-9) examined him and noticed the following injuries on his body vide report Ex. P-11 :- (i) One incised wound on the wrist of left hand 3x1 c.m. (ii) One incised wound on the right hand between the little finger and middle finger; (iii) One incised wound on the neck 4 c.m. muscle deep; (iv) One incised wound on the right parital 4x2 c.m. (v) One incised wound onthe teft cheek 5 x % c.m. with swelling. On radioldgioal examination conducted by Dr. R. Jitpure (PW-1) has opined vide report Ex. P-1 that there was fracture of left parital bone of head, fracture of right elbow, fracture of ring finger of rjght hand and fracture of left radius. 3 4. Accused/appellants were taken into custody on 18.5.2004. They made disclosure statements regarding the seven crimes. Accused Ram Kumar made disclosure statement vide Ex. P-5 relating to sword which was recovered at his instance vide Ex. P-7. Dissembled Luna moped was recovered from accused llhali Baksh vide Ex. P-8 at the instance of accused Ram Kumar. Accused Jitendra also made disclosure statement vide Ex. P-6 but nothing has been recovered at the instance of accused Jitendra. They were arrested on 20.5.2004 vide Ex. P-12. 5. After recording the statements of the witnesses under section 161 of the Code of Criminal Procedure, 1973 and completing the investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Bilaspur, who in tum committed the case to the Court of Session, Bilaspur from where Additional Sessions Judge, Bilaspur, received the same on transfer for trial. • 6. In order to prove the guilt of the accused/appellants the prosecution has examined as many as 1 1 witnesses. Statements of the accused/appellants were recorded under Section 313 ofthe Code of Criminal Procedure, 1973 in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. 7. Heard counsel for the parties and perused the material available on record including the judgment under challenge. 8. Learned counsel for the accused/appellant Jitendra submits that the accused/appellants are not known to the complainant. According to the counsel for the appellants the complainant has not even given their description in the First Information Report as to on what basis he would be in a position to identify them. No property has been recovered from them. The complainant has only stated that out of two one assaulted over his head, cheek and nose ^ ^, B :^ i?" c/ as a result of which he fell down, but he has not stated that out of two who assaulted him and with which weapon. According to the counsel for the appellants, the statement of the complainant and identification of the accused/appellant Ram Kumar by him being un- trustworthy does not inspire confidence. 9. Counsel for accused/appellant Ram Kumar submits that the complainant has not stated as to on what basis he claims to have identified this accused/appellant. According to him, the incident took place in night hours and there was no source of light without which it was not possible for the complainant to see the accused properly. The only word that 'if he sees the persons committing robbery, he would identify him' is not sufficient for identification. He submits that P.C, Kori, Naib Tahsildar (PW-11) has stated in paragraph 8 of his evidence that complainant identified the accused persons by putting his hand on their head, but the complainant Ragunath Mishra (PW-3) has stated in his evidence that he identified the accused by touching them. It is submitted that that in the identification memo Ex. P-4 first the date; of identification has been shown as 9.6.2004 and then by interpolation it hcis been mentioned as 11.8.2004 and no explanation for such interpolation has come forward. It is further argued that there is undue delay in conducting the identification parade which cannot be safely relied for conviction of an accused. Reliance is placed on the decision of Madhya Pradesh High Court in the matter of Mukesh and others v. State of Madhva Pradesh in which it has been held that in the absence of deadly weapon at the time of commission of robbery, conviction under Section 397 is not sustainable and the act of the accused squarely falls within the ambit of section 394 and 332/34 IPC. Further reliance is placed on the decision of Madras High Court in the matter of 2008Cri.L.J. 1340 /'£ '^ .f? ^SSv,; ^.iJ../ ?£.•.—-:',-•:• Thavasi and another 2 in which it has been held that in the absence of use of deadly weapon for committingTobbery, conviction under section 397 IPC is not sustainable. Further reliance is placed on the decision of Delhi High Court in the matter of Adesh Kumar and etc. v. The State 3 in which it has been held that in the absence of evidence relating to fact that the knife used in the crime was a deadly weapon, conviction under section 397 IPC is not sustainable. 10. On the other hand the counsel for the respondenVState supported the judgment impugned and submitted that the accused/appellants have committed robbery of Rs. 100.00 and also caused grievous hurt to the complainant. He submitted that the amount robbed of was not recovered as they had used it. After arrest of the accused/appellants, the complainant identified them to be the persons who committed the offence as he had seen them at the time of commission of offence in the light of Luna moped. As regards correction of dates in the identification memo Ex. P-4, he submits that it is simply a clerical error and that there is an initial of the person correcting the same. He further submits that mere correction of date that too by putting the initial, does not render the identification untrustworthy or concocted and inadmissible in evidence. He further submits that the identification in this case is by the complainant himself and not by any person other than the complainant. Reliance is placedon the decision of the Supreme Court in the matter of Harish Chandra v._State of U.P. in which it has been held that the hurt caused while taking away the property squarely falls within the ambit of robbery as defined under Section 390 IPC. Further reliance is placed on the decision of the Supreme Court in the matter of Phool Kumar v. Delhi Administration 5 in which it has been held that if an accused carries in his hand a knife to frighten or terronize the victim, section 397 IPC is attracted. ;1972Cri.L.J.445 3 1986 Cri.L.J. 233 4 AIR 1976 SC 1430 5A1R1975SC905 -fc- Further reliance is placed on the decision of the Supreme Court in the matter of Mahabir v. State of Delhi 6 in which it has been held that the test identification is not a substantive evidence but it can only be used as corroborative of statement in Court. It is further held that the failure to hold the identification would not make the evidence of identification in Court inadmissible. Purpose of test identification is to test and strengthen trustworthiness of the evidence and is a safe rule of prudence and not rule of law. 11. In order to prove the complicity of the accused in the crime in question, 1 have examined the evidence adduced by the prosecution. Raghunath Misra (PW-3) has stated in his evidence that on 14.1.2004 at about 8 p.m. when he was going his home after clo&ing the shop, in between village Bahtarai and village Bijaur near Mopka canal, two persons stopped him and asked for the money. On this, he gave them Rs. 100.00 and started pushing away his Luna Moped. Meanwhile, one of the two persons assaulted on his head, left cheeK, right hand and on various ;parts of his body. Thereafter, he became unconscious. Thereafter he was taken to police station by his brother Vishwanath Mishra where report Ex. P-2 was lodged by him. He remained admitted in Dharam Hospitat for 14-15 days. He identified the accused persons among 10-12 persons. J.N. Shrivas (PW-2) Assistant Sub Inspector has stated that complainant lodged the report Ex. P-2 and thereafter he was sent for medical examination vi'Je Ex. P-3. 12. Complainant was examined by Dr. D.K. Vaishnav (PW-9) who vide report Ex. P-11 noticed the injuries as described in paragraph No.3 of this judgment. He also opined that the injuries sustained by the complainant could be caused by sword. R. Jeetpure (PW-1) conducted the radiological <. 2008 Cri.L.J. 3036 •7- examination who vide report Ex. P-1 opined that there was fracture of left parital bone of head, fracture of right elbow, fracture of ring finger of right hand and fracture of left radius. P.C. Kori (PW-11) Naib Tahsildar has stated that on 11.6.2004 he conducted the identification parade inside the jail where complainant Raghunath Misftra identified the two accused persons vide identification memo Ex. P-4. He has admitted the date being corrected. He also admitted that the complainant identified the accused persons by putting his hand on their head. hlowever, complainant has stated in his evidence that he identified the accused persons by touching them. There is no substantial difference between the words 'putting hand on head and by touching'. According to the arrest memo the accused/appellants were arrested oh 20.5.2004 and they were identified on 11.6.2004 i.e. after about tn/enty days of their arrest. Complainant has not stated anything nor has any suggestion been put by the defence that before identification the complainant had an opportunity to see them. Complainant has not given the description of the accused persons in the FIR Ex.^P-2. He has simply stated that if he sees the accused persons he would identify them. In statement recorded under section 161 of the Code of Criminal Procedure this witness has stated the persons who committed the offence were in the age group of 25 to 30 and were wearing pant and shirt. Except this no further description has been given. It is not disputed that at the time of lodging of FIR and recording of statement the complainant was in an injured condition. Taking into consideration the condition of the complainant at the time of lodging of FIR or recording the statement it is not expected of him to give details of crime instead of getting medical aid. Complainant has correctly identified the accused persons in the identification parade. Had the complainant any doubt about the identity of the accused, he would have identified. some third person also. As has been held by this Court in the matter of Jaadish Prasad and another v. State_of & Chhattisaarh (Criminal Aopeal No. 202/20081 even if no test identification parade was held, it does not render the evidence of identification in the Court inadmissibte. Complainant hao identified the accused on the basis of having seen them for sufficient time. Three accused were put to test identification along with 12 other persons but the complainant identified only two out of three as the persons committing robbery on him. This shows that the complainant had not only put the signature on identification memo Ex. P-4 but he in fact identified the miscreants. Only Rs. 100.00 were robbed by the accused/appellants which they had already spent. Evidence of complainant (PW-3) is supported by the evidence of P.C. Kori (PW-11) who conducted the identification parade, and the same being trustworthy inspires confidence. 13. As regards use of deadly weapon at the time of commission of robbery; it is submitted by the counsel for the appellants that the prosecution has not adduced any evidence to the effect that which accused used which deatf deadly weapon and in the absence of such evidence conviction under Section' 397 of the Indian Penal Code is .iot sustainable in the eye of law. 14. Complainant Raghunath Prasad Mishra (PW-3) has stated in paragraph No.1 of his evidence that accused persons robbed him of only Rs. 100.00. He has not stated about the use of any weapon while committing, robbery. However, he has stated that while he was pushing his Luna moped, ^ out of two, one has caused injury' on his head by some weapon as a result of which he fell down and became unconscious. In paragraph 9 of his cross examination he has stated that the accused persons asked him to leave Luna moped to them and when he refused to do so, they assaulted him. He was radiologically examined by Dr. R. Jeetpure (PW-1) who vide report Ex. P-1 opined the fracture of left parital bone, ring finger, left radius etc. Likewise, Dr. D.K. Vaishnav (PW-9) who medically examined the complainant has also -^- noticed various injuries vide report Ex. P-11 as described in the foregoing paragraph. Though the complainant has stated that who in fact caused injury and with which weapon yet he has stated that out of two accused one has caused injury by some weapons while committing the offence. It is the duty of the prosecution to prove a's to who caused which injury and with which weapon to the complainant which it has utterly failed to prove. Only on the basis of seizure of one sword from one accused, liability of using the said weapon for committing robbery and thereby causing grave injury cannot be fastened on the person from whom it has been allegedly recovered, without there being any specific evidence in this regard. 15. After appreciating the evidence available on record the trial Court has convicted the accused/appella.nts under sections 394 and 397 IPC. 16. Section 397 does not create any substantive offence but merely regulates the punishment already provided for robbery and dacoity. It provides for the minimum punishment for committing or attempting to commit robbery by using deadly weapon. In order to convict the accused under section 397 IPC prosecution is required to adduce evidence that the accused has used the deadly weapon or caused or attempted to cause grievous hurt to the complainant but it does not create any vicarious or constructive liability as engrafted in section 34 of the Indian Penal Code. If more than one accused have committed the offence, then only the person who has used the deadly weapon or caused or attempted to cause grievous hurt during the commission of robbery or dacoity would be held liable for the offence punishable under Section 397 IPC. In the instant case the prosecution has adduced the evidence that out of two persons one has caused grievous hurt to the complainant but the prosecution has not adduced the evidence to the effect. that actually who caused grievous hurt to the complainant. In the absence of -lo such evidence no liability for the offence punishable under section 397 IPC can be fastened against any of the accused. Therefore, conviction under section 397 IPC against the appellants is not sustainabte. 17. The accused appeilants have also been convicted under section 394 IPC. Section 394 reads as under: S.394. Volunfarily eausing hurtin committing robbery. If any --,: person, in committing or in aftempting to commif robbery, voluntahly causes hurt, such person, and any other person '"'• jointly concerned in committing or attempfing to commit such robbery, shall be punished with [ imprisonment for life], or with hgorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." Plain reading of section 394 IPC reveals that if at the time of commission of robbery any person committing or attempting to commit robbery voluntarily causes hurt, such person shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and also with fine. The other person jointly committing or attempting to commit robbery, shall also be liable for punishment under section 394 IPC. If any of the per ->n jointly concerned caused hurt in committing robbery, all persons are liable under section 394 IPC. 18. Thus on the basis of evidence adduced by the prosecution which is sufficient for drawing an inference that at the time of commission of robbery only the aforesaid two accused were present and out of those two one has caused grievous hurt to the complainant. Therefore, both the accused/appellants are liable for punishment for the commission of robbery under section 394 IPC. 19. As regards sentence, during the commission of robbery, grievo.us Jnjuries resulting into fracture of left parital bone, right elbow, right ring finger and left radius, were inflicted to the complainant which shows that at the time of commission of robbery the complainant was beaten mercilessly by the accused appellants. I 20. Taking into consideration the jnjuries inflicted to the complainant, appellants do not deserve any sympathy relating to the sentence jmposed on them. Sentence of rigorous imprisonment for seven years and fine of Rs. 500.00 imposed on each ofthe appellants, is neither unjust nor excessive. 21. Consequently, the appeals are partly allowed. Conviction and sentence imposed on the appellants under section 397 IPC are set aside. Conviction and sentence imposed on ;them under section 394 IPC are hereby maintained. Fjne if any deposited by the appellants for the offence under section 397 IPC, be refunded to them. T.P. Sharma Judge ssatsa /