lliltffiitTIIUUTO'^iBJ]fgl UU<inii!M.ii»a<i5B^Sifc^<£!£&-auiSi^^ -af,s a^'£S S'^^a^^ftB!fct!i*^t.,u-;[si®iS^JA S.B, IN THE HIGH COUR'I1 OF JUDICATURE AT JABALPUR VGS3 Cr.A.No. /2003 LPPELLANTS IN JAIL) y^^'- v^s^ a-v^' " : 1. Rekh Chand @ Puchi, S/ o. Bhujbal Yadav , Aged 2 1 years, 2. ? Shankar, S/o. Kamlu Yadav ' Aged 22 years, Both R/o. Saraswati Nagar Durg (C.G.) VERSUS The State of Chhattisgarh Through P.S. Pulgaon Distt. Durg (C.G.) CRIMINAL APPEAL U/S. 374 (2) OF CODE OF CRIMINAL PROCEDURE '(-. RESPONDENT r(l SjWt. '^ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Aoperi 110.1060/2003 Rajkumar Vs. :1. State of Chhattis^garh Q-.ABpeal No. 1033/2003 Rekhchaad & others Vs. State of Chhatdsgarh PRESENT: - Shri Abhay Tiwari wifh Shri R.K. Jam, leamed counsd for fhe accused-appeUaats. Shri U.K.S.Chaudel, Pauel Lawyer for the State. JUDGMENT IDelivered onj2.-01-2006) Per MUc Raosaheb Desbnnnhh, .1- 1 . This order shall govem Cr, Appeal No. 1060/2003 preferred by Rajkumar and Cr. Appeal No. 1033/2003 preferred by Rekh Chand & Shaakar. All fhe fhree appeUants nauied abovc were convicted by Shri A.K.Sainaatray, Ist Additional Sessions Judge, Duig in Sessions Case No. 268/ 2002 vide judginent dated 26-08-20)3 whereby fhe appeUant Rajkumar was ^ ^7 ' 9^ 2. convicted for ofFeaces punishable uader Sectioa-392 read wifh Sectipn-397 of fhc I. P.C. and was sentenced to r^orous imprisoiunent for 7 ycars aad fine of Rs.500/- ia default of payment of fiae to •ff. ,,; undeigo furfher rigorous imprisonment for 1 month aad the appeUants Rekhchand & Shaakar were convrcted for fhe ofFences puiiishable under Section- 392 read with Sectiou-34 of fhe I.P.C. and were sentenced to r^orous inaprisoninent for 6 years aad fiae of Rs.500/- in default of payment of fiue to undergo farther rigorous imprisoninent for one month. Briefly stated fhe prosecution story is that on the mtewemag mght of 25ih & 26*h March, 2002 at ViUage-B^hera, P.S. Pulgaon Sheshnaiayan PW-2 and his wife Janak DulaiiFW-3 werc steeping inside their house. The lantem was dimlv Ut. Due to suuuner season, fhe main door of fhe house was open. At about 12.30 A.M., they woke up on hearing noisc and saw fhree persons iuside their house whoin they later ideutified to be the appcUaats. The appellant Rajkumar had a sword like weapon which he put on the fhroat of Sheshnarayan aad deiuanded xnoney. Jaaak Dulan PW-3 also woke up and haaded over the y •^ 7''^ :"."°» keys of fhe Ahnirah to the appeUants. The appeUaats opened the ataurali aad looted Rs. 10,000/- there fium. They also removed the Maagal Sutra aud Goldea Tops wom by Janak Dulari atong wifh soine •ff. ,,; silver ardcles, 1 Transistpr and wrist wateh. The hands of Sheshnarayau were tied wifh a cloth by fhe appeUants who rau away. 3. At about 1.30 A.M., Shcshnarayan PW-2 todged F.I.R. Ex. P-2 in Police Stetion-Pulgaon. During iavesti^tion vide Ex. P-7 one wrist watch aad knife wcre seized fi-om fhe appellaat Rajkumar on 04-04-2002. Prior to tfaat on 31-03-2002 vide Ex.P-15 Rs. 941/- were seized fi?oin fhe appeBant Rekhchaad and on the saiae day one Trausistor and Rubber SUppers were seized froui the appeUaat Shaiikar vule Ex. P-17, AppeBants Rekhchaad & Stiaakar were arrested on 31-03-2002 whfle the appeBant Rajkumar was arrestcd on 04-04- 2002. The test identification parade of the appeUaut Rajkumar was conducted inside the District Jail, Durg by Nayab Tahsildar G.R. N^esh P.W.-l. Sheshnarayaa PW-2 and Janak Dulan PW-3 identified fhe appeUant Rajkumar vule identificatton niemo Ex.P-1. The test ideatification ofRekhchaad & <4- •^^ Sliankar was condiicted by Corporator Likhsm. Saliu Vide Ex.P-5 on Ql-'04-2002. SheslTnaravaa PW-2 & Jmialc Dulari • PW-3 identified botli fhe aboveinentioned appeUants. Dunag itivestiganon vide seizure mem.0 Ex. P-11 SUver Omanients, Oiie M.an.gal Sutra & One pair of Goldeu T'ops wei-e recovered fi-om. Gyaiichaiid Jain of Chandaiiinal Bothra JeweUers, Sadar Baxai, Durg. The receipt Ex, P-11 A (a) & Ex.P- 11 B (b) were also seized showing fhat one Mehatru had pledged these omaments witli Gyanchaiicl. On 01-04-2002 one Maiigal Siitra, one pair ofgoldeii tops and the sflver omaments were subjected to test identification by L.ikhaa Sahu PW-5. Sheshnara^'aii PW-2 & Jaiiak Dulan PW-3 identi&ed the omaments. After completion of iavestigation, the appeUants were proseciited for the oSences punishable under Sectioii- 392 read with Sectioa-397 ffo Section-34 of the I.P.C. The accused-appeUaiits abjured fhe guitt, pleaded false impUcation aad exaniiued 3 witoesses iri. defence. The prosecution exam.uied as inany as 10 witaesses. Relj'ing uponfie evidence'led by ttie proseciition, the trial Court convicted & sentence.d fhe appellants as shown is. parai-1 (Supra). Shri Abhay Tiwari, leamed counsel appearing on behalf of fhe accused-appeUaiits Rekhchaiid SB Shankar aad SKri R.K. Jam, leam.ed counsel appeariiig for the appeUsjit Rajkumar have conteiided fhat the prosecution <,tias failed to establish the charges iiiider Section-392'.icad wifh Section-397 and Section-34 of the I.P.C. agam.st the appellants. The evidence of Jajaak Dulari PW-3 sliowed fhat at fhe tmie of occuneiice th.ere was darkness inside the house siace the Lantem was ve'ry dimly Ut. Thus, it is extrem.ety doubtful that Sheshaaiayaii aud. Janak Dulnj-i could have identified fhe appeUants. It was next contended tliat it has not been proved that. ti.ie appeUants or an3rone of theni had pledged the omaments with Gvanchaiid PW-6. The F.I.R. Ex,P-2 showed wifh one Rs. 10,000'-, one Mangal Sutra ajid a pair of goMen tops had been looted. Noiie of fhese ai-ticles were recovered from. tfa.e appeUants. So far as fhe identification of appeUant Rsgkuniar Vide Ex.P-1 and appeUants Rekhchaiid & ShanJkar vide Ex, P-5 is concemed, fhe e\7idence clearly shows that Slie PoUce was present dumig test identification which ;oiitpletely vitiates tlie test identiflcation. So fai' as ideiitification of the omainents are cop-cenied, fhe ^- testiniony of Sheshnaraya^i PW-2. & Janak Dulari PW- 3 clearlv showed fhdt n.o ofher onianients were inixed at the tiine of test.identification, th.us rendering the test identification futile. It was also contended fhat an'est memo Ex. P-10 showed fhat aDDcIlai.it ^f. :1. Rekhchand was ajTested OQ 31-03-2002 aiid whereas aiiofher ane.st inemo was on record to saow tha.t fhe appeBnjit Rekbchaiid. had been ajresl 01-04-2002. So far as th.e wrist watch seized from. tlie appeUaiit Rajkiim.ar and Transistor seized froni tiie appeUant Shankar is concemed, these ai'ticles were uot subjected to any test identificatioii. !t was argued tliat fhe evidence led by the prosecution does not establish tbe guflt of ftie appeUants beyond doubt. Ou the other hand, Shri U.K.S.Chandel, Panel La<V5-er appeaiirig ' on behalf of fhe State supported fhe judginent of tlie trial Coiirt. Havuig cousidered the rival subinissions, I have gone through fhe record. of Sessions Case No. 268/2002. The P.LR. lodged by Sheshnarayan PW-2 who is aa Advocate, clearly mentions' that only Rs, 10,000/-, MaiigpJ Sutra and a pair of goldea tops wom by his wife Jaiiak Di.ilari PW-3 had been looted, No silver omam.e'nts or Tiansistor were shown to ha.ve ^ ^--- »^,fc:s:-i-^i3h, been looted at the tiiae of lodging fhe F.I.R. So far as the recovery of omaraents fi-oni JeweUers Gyanchaiid PW-6 is concera.ed'; tliis witaess is ia para-6 clearly stated tliat one Mehataru had pledged fhese oniaments wifh liim. an.^ he could not identifv fhe said :1. )erson, !n Para-12 he vhas also' admitted that Rekhchand & Shankar had not pledged the said onianients wifh him. So far as the test identification of tlie omaments recovered from Gvanchaiid PW-6 is concemed, Sheshnars.'.'Mi PW-2 is in para-9 and Janak Dulari PW-3 is in para-9 bave clearly admitted that no omsmients were niixecl at fb.e time of identificatioa and only her omamen.ts were shown to theui. This renders the test identiiication worthless. Both tliese witaesses also adm.it tha_t Police was present at the timp of test identification of omaiiients, They also adiiiit fb.at fhe police was present at the tim.e of identification of appeBailts. Thus, the presence of poUce during test identification conipletely vitiates fhe test identificatioii of flie appeUants as weU as ofthe bmameiits. Jajialr Di-Jari PW-3 ha.cl also aduiitted in pai-a-10 that during night the lanteni .was veiy dimly tit, Suice, -r -^•KSa& ShesrLQEu-aYaii SE JaD.aJs: Dulaj-i did not kaow fhe aDpellants urior to' the occun-ence, it seenis high.lv doubtfrj th.at thev eould identifr the a-DoeUaiits ia dim. light of the laiitern. Thus, the evidence led .bv tlie prosecution reveals the •ff. ^ .'••{ . foHowin's °.~ \ (A) 't is plausible that fne appellants could not ha.ve been identified by SheshiiaTayan PW- 2 &, Janak Dulaii PW-3 in tlie dimly Ut laatem at night, at t]ie time ofoccun-ence. (B)There is no evidence to show tliat fhe omaments seized from fhe JeweUers G'.-anchaad PW-6 were pledged by ffae appeUants or any one ofthem, (QThe evidence relating to test identification of ftie appeUants is vitiated due to fhe adinitted presence ofpolice. (D)The test identification offhe ej-ticles is also vitiated not only on accoiuit of fhe presence of police but also on account of the fact fhat no ofher smiilar articles were mixed. E) None of tiie looted article mentk'ned ia the F.I.R. were recovered from the aDDeUaiits. Having thus considered fhe evidence led by fhe proseciition in its e.ntirety, I am of llie considered opuiiou that the prosecution has failed to estabUsh fhe charge under Section-392 read with Section-397 •i-a'S&S^i agsdsst the appellant R^jkuinar and the chai^e uader Section-392 read wifh Sccti.on-34 ofthe I.P.C. against the appeUaats Reldichand & ShfltLkar beyond shadow of doubt. 9. In the result, Cr. Appeal No. 1060/2003 & Cr. Appeal No. 1033/2003 aic aUowed. The conviction of thc appellaat Rajkumar under Section-392 read wifh Sectk>n-397 aud fhe sentence awarded thereunder aad conviction of the appeUants Rekhchand & ShatLkar under Sectk)n-392 read with Sectton-34 of the I.P.C. and th.e sentences awarded thereuader are set aside. The appeUaat Rajkumar is acquitted of the charge uuder Section-392 read wifh Section-397 of the I.P.C. and the appeUaats Rckhchaud & Shankar are acquitted of the chai^e under Section-392 read with Section-34 of the I.P.C. Fine, if paid, shafl be refunded to fhe appeBants. The appcUaats shatl be set at liberty forthwifh, ifnot required ia any ofher case. -/ Judge Tui&aas