IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C G) CRMNAL APPEAL No Q5 1/200? APPELLANT : (1N JAIL) Lagan aliasThuru , S/0.Tejuram aged about 24 years Occupation — Agriculturist R/o VillageRajbandha *P.S. Ramanujganj Dist. Sarguja (C.G.) VERSUS State of Chhattisgarh SPONDENT CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE "i‘7T~ p M ”A; v. v @@ Qmw P Lanai? HIGH COURT OF CHHATTI$GARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) APPELgNT Anil KhaIkhO VER U RESPouDguT ”State of Chhattisgarh EEu-i Manoj Mishra under the authority of Shri A. N. Shri Pravin Das, Dy. GA. and Shri Niraj Mehta, counsei fm‘ the State Pandey, c’ounse{ for the appeiiant griminal Appeal No_,_416 of 2004 AEPELLANTS Anil Tigga and 3 others V§R§us $tate of Chhattisgarh RE$PONQENT Shri Shakti Raj $§nha. counsel for the appenants Shri Pravin Das, Dy. GA. anci Shri Niraj Mehta, caunsei~ for the State APPELLMT Lagan (Q) Thuru vensug RESPONDENT State of Chhattisgarh Shri Ravi Bhagat, couneel far the appellant 0 Shri Pravin aas, Dy. GA. and Shri Niraj Mehta, caunsei for the State CRIMINAL. APPEAL§ UNDER $ECT£ON 374 (2) 9F THE : CGBE OF CRIMINAL PROCEgURE. JHUGM§NT (31.63.2(311) C i‘lA I -2— Since the aforementicned three appeais arise out of the same judgment dated 24.04.2004 passed by Additionai Sessions Judge (F.T.C), Ramanujganj, District — Surguja in Sessions Triai N0, 268/2000, they are being disposed of by this cammon judgment. 2. All the appeiiants have been convicted under Sections 395 and 397 of IPC and ‘sentenced to undergo rigorous imprisonment for eight years and pay fineof Rs. 5,000 uls 395Vend‘ rigorous imprisonment for eight years u/s 397 whereas the appeiiant Anii Khaikho has been convicted under I Sectiohs 25 (1~) and 27 (1) of Arms Act in addition to the Sections 395 ‘énd 39? of IPC: and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.2000 on each. count, pius defauit stipulations; Aii the. sentences were directed to run concurrently. 3. Facts of the case in, brief are that on 16.05.2000 at“ y about 11 p‘m. one utility vehicie bearing registration No. MP 27B 5587 was stopped near Anwarajhariya bridge by 6-7 unknown persons whose faces were covered and were. carrying arms in their hands. It is aiieged that these persons» robbed Rs.2,900 from complainant Ajay Kumar Gupta (PW—y 12), Rs. 6,500 from $atya Narayan (PW—5). It is further alleged that the accused persons aiso robbed 50—60 other persons who were traveling in different vehicles and also detained them. FIR Ex. P—20 was lodged by Ajay Kumar Gupta (PW-12) on 17.05.2000 at about 1‘15 a.m. and based .yon this report, offence under Section 395 of IPC was registered against 6-7 unknown persons. It is alleged that all the appellants were arrested on 23.05.2000 vide arrest memo Exs. P-9 to P-‘13. 0n the basis of their memoranda, seizures were made and after investigation, Cnailan was filed on 18.08.2000 for the offence under Section 395, 397, 109 and _3- 12GB of IPC read with Seco and 27 of Arms Act against 8 persons including Rohit Kumar Gupt d Mahh Kherwar who have been shown as absconder. However the Court below framed charge against e accused/appeilants naeiy Rustam Aari, Daud Tigga and Lagan @ Tu der Sectns 395 nd 397 f IPC wheres against the accusedjappeliants namely {\jay umar Khes, Anil Tigga and Anil Kheho under $ections 39E and 397 of IPC read with Sewpn 25 (1—3) (a) nd 27 or“ Arms Act. 4. S as o ho he accused persons guilty, prosecuti has eamined 4 witnesses in support of its case, $tatements' of t accused persons were also recorded under section 313 of the Code of Crimin Procedure in which the deie the charges levelled againt them and pleaded their incence and false imlication in the cas 5 After heing the pties th trial Court has convicted a the accused/appellants for the offence under $ections 35 and 397 of IPC wherea accused/appelnt An Kheikho has also been conicted under $ections 2§ (1) nd 27 (1) of Arms Act. 6. Learned counsei for the appellants have arued that as per the case o the proscuon itsel while committin the offece, the accuse ersons had covr the facs. FIR was lodge against knwn ersns. In test entification parae (Ex. P—14) conducted on 18.07.2000 b R. L. Dewangan (PW-2), none of the ppiants have been' identified by the complainant Ajay Kumar Gupta (PW-12) and $atya Narayan (PW—5). They submit that once the appellants have not been identified, the question of their conviction under Sections 395 and 397 does not arise. It has been further argued that Ex. P-6 is the memorandum on which tin 25 a an es th m ns hur un io a o a K lk a o t ld t on i 1 he al y nd s no p e. . ar ar e ll 9 s la il v a g f eti f g n all d p eed ir e d uno po id d y ael @ basis knife has been seized from Daud Tigga vide seizure memo Ex. P-l, Ex. P:7 is the memcrandum on which basis Rs. 920 and one bamboo stick have been seized from Lagan Ram @ Thuru vide seizure memo Ex. P-2, Ex. P-8 is the memorandum on which basis Rs.200 has been seized from ; Rustam Ansari vide seizure memo Ex. P-4, Ex. P-11 is the ‘ memorandum on which basis Rs. 3,850, Rs.2,000 and two watches have been seized from Anil Kumar Tigga vide seizure meme TEX. P-12, Ex. P—13 is the memorandum on which basis Rs. 1‘90Q, one dagger, one Titan watch and two country made pistol have been seized from Anil Khelkho Vide seizure memo Ex P 14 and Ex P-1b Is the memorandum on which baSis Rs. 2182, one air gun, one yeilow coioured napkin and some bus tickets have been seized from Ajay Khesh vide seizure memo Ex. P-16. According to the'learned counsel, the seizure witness nameiy Bajrangiai Agrawai (PW-7) has though supported the prosecution case but Jagdish Rai (PW— 1) has not supported the prosecution case and has been declared hostile, It has been further argued that as the seized articles were not put for identification, the entire ‘ seizure loses its value and on this account also the accused/appellants cannot be convicted under sections 395 ‘ ‘ and 397 of IPC. In respect of conviction of accused/appellant Anil Khalkho under section 25 (1) and 27 (1) of the Arms Act, it has been argued that as one seizure witness namely Jagdish (PW-1) has not supported the prosecution case, the entire seizure becomes doubtful and therefore benefit of doubt must go in his favour. 7. On the other hand supporting the impugned judgment it z, hasibeen argued by Shri Das, learned counsel for the $tate that the'dare-devil act of the accused/appellants in looting more than 50-60 persons speaks volumes about the gravity of the offence alleged against them. Learned State counsel does ._ S’r not dispute that in the test identificatian parade, the accused persons were not identified by the complainant Ajay Kumar” Gupta (PW-12) and satya Narayan (PW-S) nor the seized articles were put for identification. He further submits that the conviction of the accusedIappeHant Anii Khaikho under Sections 25 (1) and 27 (1) of Arms Act is in accordance with law in view of the seizure gx. P—14 which has been duly supported by Bajranglal Agrawal (PW-7). "ei‘ 8. Jagdish Rai (PW-1) is a witness of memorandum Exs. P~ 6, P-8,£ P-9, P-111, P-13 & P—15 and seizure Exs. P-l, P-2, P-4; P-12, P—14 & P-.16 has not supported the prosecution case whereas Bajranglal 'Agrawal (PW-7) who is another witness to the above mentioned memoranda and seizures has supported the prosecution case. R. L. Dewangan (PW-2) is the Tahsildar" who had conducted the test identification parade (Ex. P—14) i on 18.07.2000 has stated. that the accused persons were not identified by any‘ one. Gopal Prasad Soni (PW-3) is thei Patwari who had prepared the spot map Ex. P—15. Sanjay Mehta (PW—4), the arms clerk has proved the sanction of prosecution under sections 2‘5 and 27 of Arms Act and supported the prosecution case. $atya Narayan (PW-5) was a l passenger of the utility bus along with Ajay Kumar Gupta (PW-12) failed to identify anyone. Vimal Kumar Agrawal (PW- 6) and Shakir Khan (PW—8), the driver of the utility Vehicle have not supported the prosecution case and turned hostile. Theodar Lakra (PW-9) is the Head Constable and armorer who . submitted his report EXP—18 has stated that the seized weapons were in workable condition. $ukhdeo Kerketta (PW- 10) is a witness to Absconsion Memo Ex. P-19. Md. Aaiam (PW-11) is a witness to the incident has not stated anything against any of the accused persons. Ajay Kumar Gupta (PW‘ 12)- the complainant and ledger of the FIR. has described the @ _ e i incident but has not stated anything against the accused persons and has failed to identify any of the accused persons. Later on, this witness has been declared hostile. Ikramuddin (PW—13), the driver of another vehicle which was stopped by a the accused persons has not stated anything against the accused/appellants. The Investigating Officer M. K. Tiwari (PW—14) has supported the prosecution case. ‘éu f 9. Minute examination of the evidence makes it clear that the accusedjappeilants have not been identified in the identification parade (EXP 14) held on 18 07 2000 by the complainant AJay Kumar Gupta (PW-12) and batya Narayan {PW-S). FIR was lodged against unknown persons stating therein that the accused persons had covered their faces. t The robbed articles which were seized from the possession of the accused/appellants were not put for identification and therefore the memorandum and the seizure lose their , ‘ < i ’ w i significance so far as it relates to sections 395 and 397 of IPC and on this basis alone the appellants cannot be convicted for. the alleged commission of crime. Accordingly, conviction of ‘ ’ the accused/appellants under section 395 and 397 is unsustainable and is hereby set aside. 10. So far as conviction of the accusedjappellant t-‘Anii Khalkho under section 25 (1) and 27 (1) is concerned, the memorandum Ex P 13 and seizure Ex P-14 have been duly supported by BaJranglal Agrawal (PW 7) and therefore his conVIction under the provmions of Arms Act is iust and proper ' and the same is being maintained. It has been informed by the iearned counsel representing the appellants and the State y that appellant Anil Khalkho has already remained in jail for more than 6syears and undergone the entire sentence ‘ i‘ ‘ @ -7- imposed on him under Sections 25 (1) and 27 (1) of Arms Act, In view of this, helis not required to be $ent back to jaii. As aii the appeilants are already on bail, their baii bonds stand discharged. 11. Appeal thus partly succeeds. Sdl- l Prltlnker DiWaker Judge