s^9'-9 Bench IN THE HI6H COURT OF JUbICATURE AT BILASPUR CRIMINAL APPEAL N0. t-iUC) /2009 APPELLANT: jn Jw^ _ ^. :,,....-^ ^ L^':^y' . about 32 ^ ^•^^r"...- \^^~ Chaarbhata, "l',^ :"^A0^'".-.^ District: ^-'"..., ^.A°^'" ,^"/ ^y:.-^^' ^''A ..•••''" ""Oy^ Jainarayan ©Munna, son of Shri bayaldas Satnami, a§ed about 32 years, residence of P.S:Bemetara, District: burg, (C.G) ^- RESPONbENT: VERSUS State of Chhattisgarh, through the Police Station Berla, bistrict Durg. &-|aa» CQNVICTION SENTENCE Under Section /Ml-- of IPC, and Under Rs.100'/-, section 27'" of the Arms Act & ^ R.f. for 7 years /eS^ payment of fine of in default of payment of fine to further undergo R.I<:'for 1 months, and 5 years under Arms Act. ^H. ^- APPEAL UNDER SECTION 37^0F THE^CODE OF CRIMINALPROCEDURE. 1973. <^- -H HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.449 of2009 APPELLANT: (In Jail) RESPONDENT: -Versus- Jainarayan @ Munna State of Chhattisgarh AND Criminal Appeal No.450 of 2009 APPELLANT: (In Jail) RESPONDENT: -Versus- Dharamveer State of Chhattisgarh POST FOR JUDGMENT QN l^ OCTOBER, 2011 Sd/- Prashant KumarMishra Judge /rw' "^ .? & ^^ a \ 1 ••^^ HIGH COURT OF CHHATTISGARH: BILASPUR Criminal Appeal No.449 of 2009 APPELLANT: (In Jail) RESPONDENT: -Versus- Jainarayan @ Munna State of Chhattisgarh AND Criminal Appeal No.450 of 2009 APPELLANT: (In Jail) RESPONDENT: -Versus- Dharamveer State of Chhattisgarh Present: Shri Devershi Thakur, counsel for the appellants. Shri Pradeep Singh, Panel Lawyer for the State/respondent. JUDGIVIENT (Delivered on l^ October, 201 1) Prashant Kumar Mishra, J. 1. The appellants have challenged the judgment of conviction and sentence passed by the trial Court convicting them for offence under Sections 397 and 341 IPC. They have been sentenced to undergo R.l. for 7 years for offence under Section 397.cf the IPC and fine of Rs.100/- each under Section 341 of the IPC, in default of payment of fine to further undergo R.l. for one month. In addition, appellant Jainarayan @ Munna has also been convicted under Sections 25 & 27 of the Arms Act and sentenced to undergo R.l. for 5 years for the said offence. 2. Case of the prosecution, in short, is that on 30 March, 2008 at about 7.30 pm informant Om Prakash Soni and his cousin Ramesh Soni were ^returning back to their house along with gold and silver ornaments in two '^^ '<.,,:-^:^ bags after closing their jewellary shop at Berla. As soon as they stopped their motorcycle in front ofthe house, 3 boys, who were chasing them in a motorcycle, overtook them and stopped just in front of their motorcycle. Accused Jainarayan, Dharamveer and Anil Jath stopped them and Jainarayan pointed one country made revolver and tried to snatch the bags, however, informant Om Prakash Soni and Ramesh Soni tried to resist and because of scuffle, the accused persons could not rob them of the bags. Accused Anil Jath made 2 fires from the pistol and tried to commit murder. On account of raising alarm and commotion, accused Jainarayan and Dharamveer escaped in unnumbered black coloured motorcycle and accused Anil Jath escaped on foot. Two other friends of the accused namely, Devnarayan @ Devanand and Narayan @ Gappu werestanding in front of informant's jewellary shop Bhawani Jewellers at bus stand to guard other accused. 3. FIR was lodged at Police Station Berla at 8 pm vide Ex.-P/13. In course of investigation, memorandumof Jainarayan was recorded vide Ex.-P/9 and that of accused Narayan @ Gappu vide Ex.-P/10. From accused Narayan @ Gappu one Herp Honda CBZ motorcycle was recovered vide Ex.-P/11 and from accused Jainarayan @ Munna one country made revolver & black coloured unnumbered motorcycle Bajaj XCD 125 was recovered. 4. From informant Om Prakash Soni one blank cartridge with number mentioned as 9 mm 2Z q2 KF and one bullet inserted in the motorcycle's silencer pipe was recovered. One yellow coloured towel, one printed lungi and one black coloured goggle was also seized from Om Prakash. Accused Jainarayan and Narayanwere arrested on 10-4- •J- ,^' -<>/ 2008 whereas accused Dharamveer was arrested on 20-6-2008. After conducting test identification parade and obtaining report of ballistic expert, charge sheet was filed. 5. Accused Narayan @ Gappu was also tried for the offences under Sections 307/34 IPC and Sections 25 & 27 ofthe Arms Act, however, he has been acquitted of all the charges. 6. The prosecution in order to establish the charges against the accused persons examined 12 witnesses. At the end of trial, the triat Court has convicted the appellants for the offences mentioned in paragraph-1 of this judgment. 7. Learned counsel for the appellants argued that the only evidence on which the appellants have been convicted is identification, however, evidence regarding identification is absolutely shaky and in fact, they have not at all been identified by the informant or his brother. He would submit that identification parade was conducted after a considerable period which by itself is sufficient to hold that identification is not proper. He would also submit that neither the seizure of articles has been proved nor any injury has been caused to any person nor any article has been looted. The appellants are in jail since 10 April, 2008 and 20 June, 2008 respectively. 8. On the other hand, learned counsel for the State supported the impugned judgment. 9. Appellant Jainarayan @ Munna was sent for Tl parade on 10-4-2008. The proceeding of Tl parade has been filed as Ex.-P/S. Both the 'y persons namely, Om Prakash Soni and his brother Ramesh Soni correctly identified Jainarayan @ Munna. Two independent witnesses namely, PW-2 Pooranlal and PW-3 Mahavir were present at the time of identification. Identification of accused Dharamveer was conducted on 20-6-2008. Both the victims identified them correctly and identification memo Ex.-P/4 bears the signatures of the independent witnesses namely, PW-2 Pooranlal and PW-3 Mahavir. 10. Independent witnesses of both identification memo namely, PW-2 Pooranlal and PW-3 Mahavir have turned hostile, however, they have admitted their signatures on Ex.-P/S & Ex.-P/4. PW-2 Pooranlal before turning hostile says that process of identification was carried in the office of Tehsildar, Berla, which appears to be correct on perusal of Ex.-P/3 & Ex.-PM. PW-7 Om Prakash Soni and PW-9 Ramesh Soni have proved Ex.-P/S & Ex.-P/4 by admitting their signatures and by saying that they were present and have identified the two appellants. These witnesses have been extensively cross-examined on the point of identification, however, they stood by their statements and have narrated in detail as to how process of identification took place in the premises of Tehsil Office, Berla. Apart from Tl parade, they have also identified both the appellants at the time of recording of their evidence. However, PW-9 Ramesh Soni in para-9 of his cross-examination has stated that all the three accused persons, who came on motorcycle, had muffled their faces by towel and were also wearing goggles. PW-7 Om Prakash Soni had lodged FIR and in FIR also, it has been stated that the accused were muffled, however, it has further been stated in FIR that during scuffle, they were successful in snatching towel and these accused ^persons were made unmuffled in scuffle. Thus, according to PW-9 ..- .^"^. .-' / v^/ i^^^ss Ramesh Soni and the contents of FIR, they had an occasion and sufficient time to identify the assailants. ll.Though the victim namely, PW-7 Om Prakash Soni and PW-9 Ramesh Soni have proved identification memo and the same has also been proved by PW-8 H.C. Nag, Executive Magistrate/Tehsildar, however, to decide upon the legality and credibility of the process of identification, this Court is required to examine as to whether the said identification was conducted immediately after the arrest of the appellants to find out whether witnesses had any chance of seeihg them prior to the identificafion or to find out whether identification procedure is suspicious. Appellant Jainarayan was arrested on 10-4-2008 vide arrest memo Ex.- P/18 and his identification was conducted on the same day. Similarly, appellant Dharamveer was arrested on 20-6-2008 vide arrest memo Ex.-P/20 and was put to identification on the same day. Thus, there is no delay in conducting Tl parade and the identification is not found to be suspicious on that count. l2.An allegation has been made that the accused persons fired gun shot and from appellant Jainarayan one country made revolver has been recovered vide Ex.-P/12, however, PW-10 J.P. Sahu, who is Ballistic Expert and had examined the seized country made revolver, has stated that 9 mm cartridge which was found on the spot cannot be fired from the country made revolver seized from Jainarayan. He also says that 9 mm cartridge is available only in the Government Armory and is not jivailable in the market. Thus, the country made revolver seized from Jainarayan was not weapon from which gun shot was fired. •:/^5k ''%;• tl ^ii^ I ^ ^.-..v...-',.^'. 13.PW-11 Pukhraj has proved seizure of country made revolver from accused Jainarayan. Thus,seizure of country made revolver is proved, however, it is not proved thatthe same country made revolver was used for fire, but material witnesses namely, Om Prakash Soni and Ramesh Soni have clearly stated in their examination that gun shot was actually fired. There is no allegation that both the appellants have used deadly weapon. Allegation of firing is attributed to only one accused and seizure of country made revolver has been proved from accused Jaiarayan. Therefore, conviction imposed on accused Jainarayan @ Munna under Section 397 of the IPC and Sections 25 & 27 of the Arms Act and sentences awarded under those sections are hereby maintained. 14. In the matter of Shri Phool Kumar Vs. Delhi Administration {(1975) 1 Supreme Court Cases 797}, it has been held that carrying or user of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for imposition of minimum punishment on another offender who had not possessed of or used any deadly weapon. Therefore, conviction imposed upon appellant Dharamveer under Section 397 ofthe IPCcannot be sustained. 15. In the result:- > Criminal Appeal No.449/2009 preferred by appellant Jainarayan @ Munna fails and is hereby dismissed. > Criminal Appeal No.450/2009 preferred by appellant Dharamveer is partly allowed. Conviction and sentence imposed upon him under Section ; 397 IPC are set aside and he is acquitted of the said charge, instead ^; thereof, he is convicted under Section 394 of the IPC. He is in jail since 20-6-2008 i.e. for more than 3 years and 4 months. His sentence is thus reduced to the period already undergone by him. hle be released forthwith unless required to be detained in any other case. __ _L Barve Sd/- Prashant KumarMishra Judge