SlngteBench IN THE HIGH COURT OF CHHATTISGARH AT BILASPSUR CRIMINAL APPEAL N0.^^- OF 2008 APPELLANT C^ J^D \^--"^ ^.•'••'lW^tl. (C.G.)Halmukam ^•' ..'^' 'C- ^•"."ut^1' .X-^ ^-^^'a-^''. . 'y^..^v Aniruddh @ Bantu S/o Bhajanram aged about 21 years, R/o Sakin ward No. 4 Badal Singh Mohalla Manendragarh, District Bilaspur Kotama,Islamganj Police Station Kotama, District Anuppur (M.P.) RESPONDENT : ..-.—liL.-.——. VERSUS State of Chhattisgarh, Through Police Station Jhagarakhand District Koria (C.G.) MEMO OF APPEAL UNDER SECTION 37<(2) OF THE CODE OF CRIMINAL PROCEDURE. 1973. M HIGHCQURT OF CHHATTISGARH. BILASPUR APPELLANT RESPONDENT Cr.A. No. 824 of 2008 Raju @ Shankar. State of Chhattisgarh. Versas Smt. Fouzia Miiza, counsel for the appellant. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State. APPELLANT RESPONDENT Cr.A. No. 872 of 2008 Aniruddh @ Bantu. State of Chhattisgarh. Versus Ku. Purnima Singh, counsel for the appellant. Shri Ajay Dwivedi, Dy. Govt. Advocate for the State. APPELLANT RESPONDENT Cr.A.No. 749 of 2009 Akhilendra. State ofChhattisgarh. Versu; Shri suryakant Misnra, counsel Tor the appellant. Shri Ajay Dwivedi, Dy. Govt. Advocats for the State. JUDGMENT (A 1/10/2011) Prashant Kumar Mishra. J. 1. By this common judgment criminal appeal No. 824 of 2008 filed by Raju @. Shankar, Criminal Appeal No. 872 of 2008 filed by Aniruddha @ Bantu and Criminal Appeal No, 749 of 2009 filed by Akhilendra is disposed of as all the three appeals are arising out of common judgment of conviction and sentence rendered by the trial Court. 2. The appellants have been convicted under Section 458 and 394 of I.P.C. and have been sentenced to undergo Rl for ten years and fine of Rs. 500/- and for offence under Section 397 of I.P.C. they have been .-^ sentenced to undergo Rl for seven years;appellant Akhilendra has also been convicted for offence under Section 25 (1-b)/3,4 of Ams Act and has been sentenced to undergo Rl for three yeare. All the sentences have been directed to run concurrently. 3. Case of the prosecution, in short, is that the appellants entered into the premises of Central School, Jhagarakhand at about 01.35 - 02.30 a.m. in the night of 21/12/2006, armed with country made revolver, iron rod and farsa and after entering the premises they restrained the Watchman Prabhunath, assaulted and criminally intimidated him after tying his hand and mouth by a muffler and looted two computer sets, key bogrd, mouse ete. At about 3.00 a.m. in the said night one Ramcharan, Security Guard of South Eastern Coalfield Limited came to the house of M. Vishwanathan, Principal of Jhagrakhsind Schoo! and informed him that there is disturbance in the School and the Security Guard of the School has been tied. Ramcharan and M. Vishwanathan went to the School and untied Prabhunath. He informed them that four persons have entered the School and after tying him they pointed one pistol on his mandible region (kanpati) and threatened to kill him by pistol, farsa and iron rod and thereafter entered into the computer room and office room and have looted computer set and peripherals. 4. On receiot of reoort the police came and prepared Dehafl Nalishi at about 05.30 a.m. and later on F.I.R. was registered at 0830 a.m. on 21/12/2006. The poiice immedigtely sterted bamcading for checking of the vehicles anc! during this checking Akhilendra was caught when he was trvina to flee. The constable who was chasing Akhilendra was assaulted causing him injuries of his right hand. The accused persons ^) had boarded Capital Bus Service along with the looted article to proceed to Kotma. During interrogation memorandum statement of Aniruddha and Raju were recorded and at their instance farsa was seized from Raju and iron rod was seized from Aniruddha Similarly two computer sets, key board and CPU were seized from Akhiiendra from Capital Service on his memorandum which was taken down at the place where they were caught in the Bus. One country made revolver and one live cartridge and two used cartridge removed from the chamber of the revolver was also seized. 5. In course of trial the prosecution examined PW-1 Prabhunath. PW-2 Ramcharan, PW-3 M. Vishwanathan, N/V- Brijlal Deshmukh, R/V-5 Janardan Yadav, PW-6 Pradeep Kumar. PW-7 Satish Kumar Dubey, R/V- 8 Rajjam Khan, PW-9 Amarjeet Tiwari, PW-10 Damodar Prasad, PW-11 Manoj Kumar Singh, PW-12 J.L.R. Painkara, PW-13 M.J. Firdousi and PW-14 Basant Kumar Ekka. 6. The prosecution has proved seizure memo Ex.P/1 and P/2, identification parade Ex.P/3, FIR Ex. P/14, Dehati Nalishi Ex.P/4, memorandum Ex.P/5 & P/6, seizure memo Ex.P/7,P/8 and P/9, memorandum Ex.P/10, seizure memo Ex.P/11, Ex.P/12 etc. to bring home the charges and after appreciation of evidence the learned trial Court convicted the appellants. 7. Learned counsel for the appellants have argued that neither the identification nor seizure of the articles have been proved in accordance with law, therefore, there is absolutely no evidence to sustain the conviction and the appeal deserves to be allowed on this ground. On the 'other hand learned State counsel has supported the impugned judgment. 8. This Court has heard learned counsel for the parties at tength and perused the record. PW-1 Prabhunath, RW-2 Ramcharan and PW-3 M. Vishwanathan have proved the happening of the incident and lodging of F!R. It was PW-2 Ramcharan, who was on patrolling as Security Guard in South Eastern Coalfield Limited and witnessed some disturbance in the School and when he went inside the school he found that Prabhunath's hand and mouth were tied. He immediately informed PW-3 M. Vishwanathan the Principal of the School, both of them went to Prabhunath and after freeing him report was lodged. In thejr statements they have reiterated the same incident as they have mentioned in the FIR and Dehati Nalishi. The leamed trial Court has concluded that though the identification parade and consequent ident'rfication is not proved, however, since when the Capital Bus was intercepted and checked accused Akhilendra started fleeing and was caught after chasing him, his involvement is proved. From accused Akhilendra seizure oftwo Computer sets, CPU, key board ete. were made vide Ex.P/9 and P/11 and one sixer revolver and cartridges were seized vide seizure memo vjde Ex.P/12 after recording his memorandum vide Ex.P/10. Similariy memorandum statement of Aniruddha was recorded vide Ex.P/5 and farsa was seized vide Ex.P/7 and from Raiu his memorandum was recorded vide Ex.P/6 and iron rod was seized from him vide Ex.P/8. PW-5 Janardan Yadav, PW-4 Brijlal Deshmukh are the witnesses to the memorandum and seizure as mentioned above. Statement of Investigating Officer, PW-13 M.J. Firdousi finds corroboration from the statement of PW-4 Brijlal Deshmukh and PW-5 Janardan Yadav as they have admitted their signatures in the seizure memo. Though, there is some difference in the mentionina of time yet the fact remains that the seizure has been proved -^ ^? c^ by them as it was made in their presence. In addition to this PW-6 Pradeep Kumar has clearly stated after pointing towards appellant Akhilendra that computer, CPU and UPS etc. was seized from this accused. PW-14 Basant Kumar Ekka is the Constable who was checking the Bus and when four persons tried to flee, he chased them and when Akhilendra was nabbed, he was assautted causing injury on his right hand. Similarly R/V-9 Amarjeet Tiwari, who is the Khalasi of the Bus, has proved that the police intercepted their Bus and computers were seized and some persons were arrested. PW-5 Janardan Yadav has also made statement to the effect that appellant Akhilendra was caught by the police when he was trying to flee. Thus, he proves that Akhilendra was caught at the time when he was trying to escape from the Bus. 9. Learned counsel for the appellant has attacked the finding of conviction on the ground that since identification has not been proved the appellants cannot be convicted. Learned counsel have relied upon judgment in the matter of Bharat vs. State of M.P. reported in 2003 (3) SCC 106, in the matter of State of Goa vs. Sanjay Thakran and another, reported in 2007(3) SCC 755, in the matter of Suryamoorthi and another vs. Govindaswamy and others, reported in AIR 1989 SC 1410, in the matter of Mahmood and others vs. State of Bihar, reported in 2000 Cr.LJ. 1442 and in the matter of State of U.P. vs. Tek Chand and another reported in 2000 Cr.L.J. 3821. 10.It is true that learned trial Judge has impliedly held in the opening part of the para 15 of the judgment that witnesses have not identified the / accused persons, however, at the same time it is also to be kept in mind that the incident took place at about 01.30-02.30 a.m. in the night. The ^' •'l... ••<s, Dehati Nalishi Ex.P/4 was taken down within three hours i.e. at about 05.35 a.m. in the early morning. The looted article like computer monitor, CPU ete. was seized from the Bus at about 07.40 a.m. after recording memorandum of appellant Akhilendra at 07.10 a.m. on the spot when the accused persons had boarded Capital Bus Service and were trying to escape and Akhilendra was caught in the process. Thus, Akhilendra was caught within 4-5 hours of the incident. P.W-4 Brijlal Deshmukh and PW-5 Janardan Yadav has proved this fect that Akhitendra was caught when he was trying to flee and on his memorandum artides were seized. Similarly PW-6 Pradeep Kumar cateaorically says and even identified Akhilendra that articles were seized from this accused. PW-8 Rajjan Khan is the Conductor of the Capita! Bus Serivice which was intercepted by the police and computers were seized. Similariy PW-9 Amarjeet Tiwari the Khalasi of the Bus has proved that the Bus was intercepted by the Police and some persons were caught and computers were seized. 11 .Admittedly, jdentification has not been estab'ished, the case law relied by the learned counsels for the appellant are regarding the validity of the conviction when identification is not established, however, in the case in hand there is one important feature to the effect that appellant Akhilendra was immediately arrested within four hours from the commissici of offence. Similarly appellant Raju @ Shankar Gond and Aniruddha @ Bantu were arrested on 24/12/2006. !n the matter of State of Rajsthan Vs. Sukhpal Singh and others reported in 1983 (1) SCC 393 the Hon'ble Supreme Court while dealing with a case when the dacoits were chased and caught immediately, has he!d thus in paragraph 10 of the ^ reDort:- '•A. 'io»ss:*,g 3 ^,^/~ "^'v'' -fs' '"^.aa.^ /'' /' o u y "10. On the first question, that is to say the question of identification, the High Court gave an exaggerated importance to the infirmities attachina to the ability of the witnesses to identify the respondents. It was overlooked, and when an argument in that behalf was made it was rejected that the respondents were arrested red-handed and in a manner of speaking, on the spot. There was no dispute that the incident of the kind alleged by the prosecution had taken place in the premises of the Bank. And it requires no strong persuasion to hold that after the Bank was looted, the offenders, whosoever they may be, would try to escape. The lodging of the first information report within half an hour of the incident, the prompt flashing of the wireless message to the police stations and police outposts in the vicinity, the postingof police guards on the road to stop the car bearing a particular description if it was detected, the accident which the car met with, the emergence from the car of six or seven persons, the pursuit which the police and the public gave them. the shots fired by those persons, the beating given by members of the public to them and the fact that they were ultimately overpowered, caught and arrested, are all matters which are proved by the most clear and cogent evidence. Respondents are the persons who got down from the car after it met with an accident and they are the very persons who bear tell-tale marks of the rather severe drubbing given by the public. We are unable to understand how, in these circumstances, the High Court could have held that since the accused were not arrested on the spot, the evidence regarding their identity must assume importance. The incident which took place in the Bank. the attempt made by the offenders to escape and their pursuit by the police and the public, are but links in the same chain of causation. They are parts of one and the same transaction. This, therefore, is a case in which the offenders were caught red-handed near the ptace of offence while they were trying to escape. They fired while fleeing and caused injuries to those who were bravely trying to surround them but eventually, the police and the public got the better of them. No ^•8a. S.hslji''^'S '••-, -'^•^^w.s^ S ^--^- 8 ^ further question survives but, since the High Court has oiven great importance to some other aspeds of the case, we must advert to them." 12.Thus, the law is well settled that when FIR wa.s promptly lodged and accused persons were arrested red handed near the place of dacoity while escaping, evidence regarding identification of the accused assumes . little importance and failure of the witnesses to correctly identify the accused woutd not be fatal to the prosecution case. 13.1n view of the above, this Court is of the opinion that the conviction and sentence imposed by the Court below is bssed on evidence available on record and no interference in the said judgment is called for. 14.AII the appeals deserve to be and are accordingly dismissed. Sdll- prashaat Kumar Mishra Judge t—