HIGH COURT OF CHHATTISGARH AT BILASPUR Sinaie Bench : Hon'bie Shri Diiip Raosaheb Deshmukh, J, Criminat Appeal No.697 of 2004 Baijnathdas & others versus State of Chhattisgarh Post for 2<, -03-2009 Sd/- Dilip Raosaheb Deshmukh Judge «liea:» ^ HIGH COURT OF CHHATTISGARH AT BSLASPUR Sinale Bench : Hon'bie Shri Diiip Raosaheb Deshmukh. J. Criminal Appeal No.697 of 2004 Appeilants 1. Baijnathdas^S/o Jagmohan, aged about23years, 2. Anil Kumar Das, S/o Vidyasagar Biharilal @ Lalbahadur, aged 18 years 3. Ganeshram, S/o Birsai, aged 20 years, 4. Kannilatdas, S/o Karmu Panika, aged 30 years, R/o Village-Kamari, P.S. Shankargarh, District Surguja versus Respondent Criminal appeal under Section 374 (21 of Cr.P.C. State of Chhattisgarh, Through D.M., Surguja (CG) Present: Shri Vineet K. Pandey, counsel for the appeliants. Shri Sushil Dubey, Govt. Advocate for the State/respondent. JUDGMEMT (Passed on '^»+t' day of March,2009) This criminai appeal is directed against the judgment dated 24-07-2004 in sessions case No.421/2003 by the 4th Additional Sessions Judge (FTC) Ambikapur (CG), whereby the appeilants were convicted under Section 395 of the iPC and sentenced to R.i. for 7 years and aiso to a fine of Rs.500/- each and in default to undergo additional R.l. for 3 months each. (2) Briefly stated the prosecution case is that on 10.07.2003 at 1.00 A.m, the appellants while armed with 'Katta' entered the house of Ramniwas PW-4 and Pushpadevi PW-5 and committed dacoity by looting his walkman, toreh, 2 watches, cash Rs.15,000/-one gold earring and some eatables. The dacoits had covered their faces with cloth. Oniy Anil Kumar could be seen by Ramnivas as the ctoth got removed from his face at the time of committing dacoity. 'Katta' was not recovered from any of the appellants. Prosecution under Section 395, 397 of IPC and under Section 25 (1-B) (a) and (b) read with Section 3 and 4 of the Arms Act was launched only against the four appeilants even though Ramnivas PW-4 identified eight persons during test identification Ex.P-10 on 08.08.2003. (3) Learned trial Judge convicted the appellants only under Section 395 IPC and acquitted them from the remaining charges. (4) Shri Vineet Kumar Pandey, iearned counsel for the appeliants has, at the very outset, submitted that so far as the conviction of the appeilant No.2 Anil Kumar Das under Section 395 IPC is concerned, he would not assail it on merit, but would argue the appeal only on the question of sentence awarded to the appetlant No.2 Anii Kumar Das. Prayer is not opposed. (5) Submissions of learned counsel for the appeliants and iearned Panel Lawyer for State were heard. Record is perused (6) Ram Niwas PW-4, the complainant had, categorically admitted in para-2 of his testimony that the appellants No. 2 to 4 did not enter his house. In para-4, he also admitled that appeilant No.1 Baijnathdas and No.3 Ganeshram were not present at the time of dacoity. He also admitted that appeilant No.4 Kannilatdas was also not present at that time. His wife, Pushpadevi PW-5 had also ~*3-.* admitted in para-2 that ail the three appellants i.e. appellants No.1 Baijnathdas, No.3 Ganeshram and No.4 Kannilaldas were not present at the time of commission of dacoity. Ramniwas PW-4 had also admitted in para-6 that test identification Ex.P-9 of his watch, walkman and torch was conducted by the Police. It is also pertinent to note that test identification Ex.P-10 of the appeilants was not done from Pushpadevi PW-5. in view of the above, conviction of the appel!ants No.1 Baijnathdas, No.3 Ganeshram and No.4 Kannilaldas is bad in law and is liable to be set aside. (7) So far as the conviction of the appellant No.2 Anil Kumar Das is concerned, learned counsel for the appeltants was heard on the question of sentence. Appetlant No.2 Anil Kumar Das is shown to be aged 18 years on the date of occurrence. No criminai antecedents have been proved by the prosecution against him. He has already undergone incarceration from the date of his arrest i.e. 06.08.2003 tiil date i.e. for a period of over 5 years and 7 months. Considering the facts and circumstances of the case and the nature of evidence adduced by prosecution, i am uf the considered opinion that ends of justice woulc! be met if the sentence awarded to the appeliant No.2 Anil Kumar Das is reduced to the sentence already undergone by him. (8) Accordingly, the appeal is allowed. Conviction of the appeliants No.1 Baijnathdas, No.3 Ganeshram and No.4 Kannilaldas under Section 395 of !PC and the sentence awarded thereunder by the 4th Additional Sessions Judge (FTC) Ambikapur (CG) in sessions case No.421/2003 is set aside and these appellants are acquitted and shall be set at liberty forthwith if not ^ 'ai-nnr required in any other case. As regards the appellant No.2 Anii Kumar Das, his conviction under Section 395 of IPC is affirmed. However, the sentence awarded to him by the learned trial Judge is reduced to the sentence already undergone by him. Appellant No.2 Anil Kumardas shall also be released forthVS'ith, if not required in any other case. Sd/- Dilip Raosaheb Deshmukh Judge Priva