@ 9, IN THE HIGH COURT OF JUDICATURE AT BILASPUR . CHHATTISGARH riminal A eal NO. APPELLANT (IN JAIL! Since 23/05/2000 l Khalkho, aged 23 years, R/o. Village —‘ Sarangpur, Thana Ramanu VERSUS ,nu‘ / ‘ ‘ PPEAL UNDER SECTION 374 2 OF CRIMINAL PROCEDURE CODE CONVICTION R‘W ‘ hwm- ,A ,‘._...‘... SENTENCE J $ /2004 ANIL KHALKHO, S/o. Rigg jganj, Disfric‘r - Surguja STaTe of Chhah‘isgarh Through P.S. Ramanujganj Dis’rricf - Surguja (CG) IGH CGURT OF C§4HAmSGARH AT BILJ§$PUR W H (awn. Mr. Jusi:ice Pritinker Diwakar) Criminal Appga! No, 91$ of @004 APPELLANT Ani! Khalkh0 VERSUS \ state of Chhattisgarh RESPON DENT Shri Manoj Mishra under the authority of Shri A. N. Pandey, counsei far the appeHant . Shri~Pravin Das, Dy. G.A. and Shri ‘Niraj Mehta, counsel for the State Crminwm‘iw $3904 z Anil Tigg‘a and 3 Others £IPPELLANT$ VER§g§ . State of Chhattisgarh ~ RESPbNDEEI Shri Shakti Raj Sinha, counset for the appellants Shri Pravin Das, Dy. GA. and Shri Niraj Mehta, counsei for the State griminatwl No. g§g qf 2&05 Lagan @ Thuru . ‘RSVUS RESPQIggENT State of“ Chhattisgarh APPELLANT A Shri Ravi Bhagat, ccunsel for the appeuant Shri Pravin Das, Dy. G.A. and Shri Niraj Mehta, counse: for the State came—ML we £euh-DE,R,,$£Ca9~__3_?4_.L_— 12 OFTHE " e : ' toil-sf1c0oE§cEéeRgmmL‘/' pgoceooge, guogMgnx C3 X .$3;201;1) @ -2- Since the aforementioned three appeals arise out of the same judgment dated 24.04.2004 passed by Additional Sessions Judge (F.T.C), Ramanujganj, District — Surguja in Sessions Trial No. 268/2000, they are being disposed of by this common judgment. 2. AII the“ appeilants have been convicted under Sections 395 and 397 of IPC and sentenced to undergo rigorous imprisonment for eight years and pay fine of Rs. 5,000 u/s 395‘ and rigorous imprisonment for eight years u/s 3‘97 whereas the appeiiant Anil Khaikho has been convicted unaer Sections 25 (1) and 27 (1) of Arms Act in addition to the Sections 395 ‘and 397 of IPC and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.2000 on each. count, plus default Stipulations; All the sentences were directed to run concurrently. 3. Facts of the case in, brief are that on 16.05.2000 at about 11 p.m. one utility vehicle bearing registration No. MP 27B 5587 was stopped near Anwarajhariya bridge byz5‘7 unknown persons whose :faces were covered and were carrying arms in their hands. It is alieged that these persons robbed Rs.2,900 from complainant Ajay Kumar Gupta (PW— 12), Rs. 6,500 from Satya Narayan (PW—5). It is further alieged that the accused persons also 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 on this report, offence under Section 395 of IPC was registered against 6-7 unknown persons. It ls alleged that all the appellants were arrested on 23.05.2000 vide arrest memo Exs. P-9 to P-13. On the basis of their memoranda, seizures were made and after investigation, Che/Ian was med on 18.08.2000 for the offence under Section 395, 397, 109 and sza _3_ 1203 0f IPC read with Section 25 and 27 of Arms Act against 8 persons inciuding Rohit Kumar Gupta .and Mahesh Khewvar who have been shown as' absconder. However the Court beiow framed charge against the accused/appeilants namely Rustam Ansari, Daud Tlgga and Lagan @ Thuru under Sections 395~ and 397 of IPC whereas‘ against the accused/appenants namely Ajay Kumar Khes‘, Ann Trgga ano An“ Khelkho under Sections 395 and 397 of IPC read with a Section 25 (1—3) (a) and 27 of Arms Act. 4. So as to hold the accused persons guilty, prosecution has examined 14 witnesses in support of its case. statements of the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the chargesievelled against them and pleaded/their innocence and false implicationin the case. 5. . After hearing the parties the trial Court has convicted all the accused/appellants for the offence under Sections 395 and 397 of IPC whereas accused/appellant Anil Khelkho has also been convicted under Sections 25 (1) and 27 (1) of Arme Act. 6. Leamed counsel for the appellants have argued that as per' the-'case’of the prosecution itself while committing the offence; all thefaccused‘ persons had covered their faces. FIR was lodged against unknown persons. In test identification parade (Ex. P-14) conducted on 18.07.2000 by R. L. Dewangan (PW-2), none of the appellants have been identified by the complainant Ajay Kumar Gupta (PW~12) and Satya Narayan (PW-5). They submit that once the appellants have not been identified, the question of their conviction under Sections 395 and 39'7 does not arise. It has been further argued that Ex. P-6 is the memorandum on which -q- ‘;‘:“‘.",.'-J' basis knife has been seized ‘from Daud Tigga vide seizur memo Ex. P-l, Ex. P-7 is‘the memorandum on which basis Rs. 920 and one bamboo stick have been seized from Lagan Ram @ Thuru ivide seizure memo Ex. P—Z, Ex. P48 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 Anii Kumar Tigga vide seizure memo Ex. P—12, Ex. P—13 is the memorandum on which basis Rs. 1,900, one dagger, one Titan watch and two country made plstoi have been seized from Anii Kheikho vide seizure memo Ex. P-14 and Ex. P-15 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 .me‘mo Ex. P-16. According to the‘iearned counsel, the seizure witness namely Bajrangiai Agrawal (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 vthe 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 hasbeen argued by Shri Das, learned counsel for the State 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 e iii«( s ,gr not dispute that in the test identification parade, the accused persons were not identified by the compiainant Ajay Kumar ' Gupta (PW-12) and Satya Narayan (PW-5) nor the seized articles were put for identification. He further submits that the conviction of the accused/appeiiant Anii Khaikho under Sections 25 (1) and 27 (1) of Arms Act is in accordance with iaw in View of the seizure Ex. P-14 which’xhas been duly supported by Bajrangla! Agrawai (PW-7). 8. Jagdish Rai (PW—1) is a witness of memorandum Exs, P~ 6, P—8, P-9, P-11, P~13 & P-15 and seizure Exs. P-1, P—2, P-4; P—12, P-14 & P—16 has not supported the prosecution case whereas Bajrangiai Agrawai (PW-7) who is another witness to the above mentioned memoranda and seizures has supported the prosecution case. R. L. Dewangan (PW-2%)‘i‘is the Tahsildar who had conducted the test identification parade (Ex. P-14) on 18.07.2000 has stated that the accused persons were not identified by any' one. Gopai Prasad Soni (PW-3) is the 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 25 and 27 of Arms Act and supported the prosecution case. Satya Narayan (PW-5) was a passenger of the utiiity bus along with Ajay Kumar Gupta (PW-12) failed to identify anyone. Vimal Kumar Agrawal (PW- 6) anci‘Shakir Khan (PW-8), the driver of the utility vehicie have not supported the prosecution case and tumed hostiie. Theodar Lakra (PW—9) is the Head Constable and armorer who submitted his report Ex.P.18 has stated that the seized weapons were in workable condition. Sukhdeo Kerketta (PW- 10) is a witness to Absconsion Memo Ex. P419. Md. Aaiam (PW-11) is a witness to the incident has not stated anything against any of the accused pensons. Ajay Kumar Gupta (PW- 12)— the complainant and iodger of the FIR has described the -6- 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 the accused persons has not stated anything against the accused/appellants. The' Investigating Officer M. K. Tlwari‘ (PW-14) has supported the prosecution case. ,e/ 9. Minute examination of the evidence makes it clear th/at the accused/appellants have not been identified in the identification parade (Ex.P-14) held on 18.07.2000 by the complainant Ajay 'Kumar Gupta (PW-12) and Satya Narayan (PW-5). FIR was lodged against unknown. persons stating therein that the accused persons had covered their faces. 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 significance so far as it relates to sections 395 and 397 of IF’f: 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 accused/appellant Anil Khaikho under section 25 (1) and 27 (1) is concemed, the memorandum Ex.P-13 and seizure Ex.P—14 have been duly supported by Bajrangial Agrawal (PW-7) and therefore his conviction under the provisions of Arms Act is just and proper and the same is being maintained. It has been informed by the learned counsel representing the appellants and the State that appellant Anil Khalkho has already remained in jail‘for more than 6 years and undergone the entire sentence ?”a ‘ mg. v -7- imposed on him under Sections 25 (1) and 27 (1) of Arms Act. In view of this, he is not required to be sent back to jail. As all the appellants are already on ball, their bail bonds stand discharged. Sd/— l *Pritinker DiWaker l Judge 11. Appeal thus partly succeeds.