$ing§a gent}? m THE HIGH COURT OF JUDICATURE A; BILASPUR (C.G.) L CRIMINAL ArPEAL No.39 ?’ mos. PPEAL UNDER SECTION 3746;)F‘CRIMINAL PROCEDURE CODE r/HL A APPELLANT '. Siraj @ Sirajuddin S/o. Seikh Tej Mohammad, Q3211 Jaw )V Aged about—42 years, R/o. Village-Gumka, ' ‘ P.S. Prem Nagar, District— Surguja (C.G.) L VERSUS RESPONDENT : State of Chhattisgarh, Through : Police Station House Ofiicer, P.S. 2 Kansabel, District.- Jashpur (C.G.) §\ g) HGH COLRT OF a-HA'ITISGAH-t' Elm Q’im'nal Agpaal m. 397 of 2005 Sraj @ §rajud&n Vs Respondent :- $ae oi Gmamsgarh Appeilant by Shri J.K.Shastri, Advocate. State by Shri D.K.Gwalre, Pane! Lawyer. JuneEMENT (Delivered on oé mamas) Wrgndra Misha. J Appellant namely Siraj @ Sirajuddin, Rlo village~Gumka, Poliee Station- Frem Nagar, Distt-Surguja, has preferred this appeal against the judgment dated 28.04.1999 passed by the Ieamed Additional Sessions Judge. Jashpur (C.G.) in, Sessions Trial No. 18(99 and by which the appetiant has been'convicted under Section 394134 of the IPC and sentenced to undergo Rl for 10 years and to pay a hue of Rs. 40,000/- and under Section 397/34 of the IPC, RI for 10 years and fine of Rs.2D,000I—, in default of payment of hne, further Rl for 2 V2 years has been awarded to the appellant and all the sentencesare directed to run concurrently. 2. The incident took place on 14‘“ December 1997 at about 8.00 pm. at Tirang Nala near Bataikela when the businessman Preetamchand Agrawal (P.W.1), resident of Patthalgaon was returing from Bageecha by jeep and was proceeding towards Patthalgaon. At the time of incident, Preetamchand was carrying Rs.60.000/- recovered by him from his clients, one Pradeep Agrawal (P.W.3) who was carrying Rs. 21,500i~ and a bag having 13~14 new saris, was also traveling in the said jeep. ‘The jeep was being driven by Kamal Chouhan and in the said jeep Lalli Maharaj, Gokul Agrawal and two ladies were also sitting and the complainant Harish Pandey (P.W.2) joined them on the way. Just 7-8 kilometers ahead of Bataikela, near Tirang Nala, they saw that three persons had stationed their red coloured new Hero Honda (Splender) motorcycle without number plate across the bridge of the Nala and had also placed big stones on way. All the accused persons were aged between 20 and 26-27 years. When the jeep was stopped by the driver, the miscreants came near the jeep and abused Preatamohand and demanded money. When Preetamchand resisted, they dragged Preetamchand and Kama! Chouhan from the jeep and tired by oountry- made pistol on the right amn of Preetamohand. The accused atso assaulted Kama! Chouhan and Lalli Maharaj by tists and threatened them t to blow the jeep with bomb and in the process, looted two bags from Preetamchand and Pradeep containing money. They also took away the bags containing saris and the bags of the ladies. However, they returned the papers of Preetamchand and thereaner tied from the scene of occurrence. Harish Pandey (P.W.2) lodged the FIR of Ex.PI2 at about 9.00 p.m. on the same day against three unknown persons. However, he stated that he would recognize them on coming face to face. Assistant Sub-Inspector G.R.Bhagat (P.W.10) recorded the FIR and prepared spot map of Ex.Pl14. The injured Preetamchand was treated by Dr.Y.K.Toppo (P.W.4) on 14.12.1997 and in his report he has stated that he found an injury from which blood was oozing, on the right arm which may be caused by bullet shot. The report of the doctor is Ex.P/4. The doctor had also examined Pradeep Agrawal on 16.12.1997, but however, no injuries were found on his person by him. though Pradeep Agrawal complained of having sustained injuries on 14.12.1997 on his person in the said incident. The diary of the crime was entrusted to Subdnspector B.B.S. Rajput (P.W.8) r on 31.12.1997 and during investigation he leamt that three persons had gone to the house of one Kalim on a motorcycle. On enquiry from Kalim, he learnt that the appellant is his brother-in-law and the appellant was accompanied by Javed @ Roshan, resident of viilage-kete, P.8.— Premnagar and Kayamuddin, resident of Rampur Basti, Korba. Thereafter, when the house of Kayamuddin was raided, the appellant was caught and other two accused persons could not be arrested as they had lett for Banda ( U.P.) and did not return. During investigation, on the basis of memorandum of Sirajuddin-the appeliant, the motorcycle used in the above crime was recovered from Aretara forest. vide recovery memo of Ex.Pi8. The memorandum of the appellant is EXP/6 and on the basis of /, the said memorandum, cash amount of Rs.985 and other wearing apparels vide document of Ex.P/7 were aiso seized. On 02.011998, the house of Kayamuddin was also raided, but however, Kayamuddin was not in the house and a lady namely Radha Bai infon‘ned that Kayamuddin has just run away from the house, leaving a suitcase which was seized by the police vide document of Ex.Pl10. The suitcase contains saris and cash of‘Rs. 15,750. On search of house of absconding co-accused Javed on 25.03.1998, saris and other clothings were recovered vjde document of Ex.P/1 1. Alter investigation, the police tiled a charge sheet against the appellant and other two accused persons namely Kayamu @ Kayamuddin @ Firoz Khan @ Rais Khan and Javed @ Roshan, showing the other two accused persons absconding. Test identification parade was conducted by Nayab Tehsildar on 04.01.1998 vide document of Ex.Pl1. ldentihcation of the articles seized from the appellant on his memorandum, was also conducted on 31.03.1998 vide document of EXP/3. The appellant was correctly identihed by Preetamchand, Pradeep and Kamal Chouhan whereas the seized articles were also correctly identified by Pradeep Kumar Agrawal. The prosecution examined in all 10 witnesses in support of its case. After committal, the appellant faced trial for the offence under aforesaid sections before the Additional Sessions Judge who framed charges under Sections 394/34 and 397134 of the IPC. The appellant abjured his guilt. The defence of the appellant is that he is innocent and he has been falsely implicated in the above crime. Regarding identification by Preetamchand, the appellant. has stated that he was arrested from his house and was taken to Patthalgaon which is 13 k.m. away from his house and Preetamchand had already seen him. He further stated that the witnesses had already seen him in the police station. The appellant denied seizure of any article alleged from him as per seizure memos. However, no defence witness has been examined. v Learned trial Court has relied upon the statements of P.W. 1 Preetamchand, P.W. 2 Harish Pandey and P.W. 3 Pradeep Agrawal and held that the appellant is guilty of the above offences and charges leveled against him are proved on the grounds that the appellant was con'ectiy identified in the test identification by. P.W. 1, P.W. 3 and that on the 69. memorandum of the appellant, looted articles were seized and accordingly. convicted him as above. Learned counsel for the appellant has mainly challenged the linding of the trial Court on the ground that as per FIR of Ex.P12, all the miscreants had covered their faces through towel and therefore, it was not possible for the witnesses to recognize them and further that the officer who has conducted test identihcation parade, has not been examined, therefore, the Court below ought not to have relied upon the test identification. He further submits that in the absence of proper identification of the appellant, beneht of doubt ought to have been accorded to the appellant. lt is argued that the articles allegedly seized on the memorandum of the appellant, were put to test identification by one Ajay Kumar Goyal (P.W.6), but however, it is not clear as to under what authority said Aiay Kumar Goyal conducted test identification of the seized articles as document in question does not mention that he was entrusted this job by the investigating Officer and thus seizure of the looted articles on the memorandum of the appellant, looses its signi‘hcance in the absence of proper identification of the same. He further submits that none of the articles which were seized during investigation, was produced during trial and as such, the appellant‘couid not be held guilty by relying upon the seizure of aforesaid articles. He also submits that the memorandum of the appellant was recorded on 03.01.1998 whereas the appellant was arrested only on 04.01 .1998, therefore the memorandum was recordedby the police when the appellant was not in custody and any recovery on the basis of such memorandum has no legal value. In support of his contention learned counsel for the appellant places his reliance in the judgments of the Hon’ble Apex Court reported in AIR 19$ SC, 2811 delivered in the matter of Manonnlan §ngh \(s. wk of Delhi and AIR 1986 S.C. 1438 delivered in the matter of Abdul Samar Vs. Union Territory, Chandigarh. 10. On the other hand, learned counsel for the State supporting the impugned judgment of conviction submits that the appellant was taken into custody on 03.01.1998 itself which is evident from para-8 of the statement of investigating Officer (P.W.8), however, the appellant was formally arrested on 04.01.1998 after recovery and thus the appellant was in custody when his memorandum was recorded. He further submits that so far as the i!## , identification of the appellant is concemed. though the incident took place at about 8.00 p.m. in the night, but witnesses had ample opponunity to see the faces of the miscreants through headlight and light in the cabin of the said jeep and the witnesses have categorically stated in their statements that the headlight was on. P.W. 1 as also P.W. 3 have denied the suggestion of the prosecution that the miscreants had covered'their faces at the time of incident and PW. 1 has also denied the suggestion that he could recognize the appellant as he had seen him in the police station or in the Nayab Tehsildar ofhce. He further argued that on the memorandum of the appellant. four saris and one lungi have been seized vide Ex.P/7 and motorcycle was seized vide Ex.Pl8 and the said memorandum as also the seizure; have been duly proved by the statement of Lakhanlai (P.W. 5). Apart from seizure, on the memorandum of the appellant, other articies of loot were also seized from the house of Javed and Kayamuddin and thus in totality, the evidence available on record go to show that the prosecution has proved its case beyond all reasonable doubts. 11. l have heard leamed counsel for the parties. 12. So far as the incident is concemed, it is undisputed that it took place as alleged by the prosecution. lt is not disputed that Preetamchand was looted of Rs.60.0001- and he also sustained bullet injury and P.W. 3 Pradeep Agrawal was also looted of Rs. 21 ,500l-and other clothings. The only question to be decided is as to whether the identitication of the appellant by the witnesses is worth reliance or not. 13. As for the identity of the appellant, the statements of witnesses in the Court are the only substantive piece of evidence to establish the identity of the appellant and the test identification parade conducted during investigation is the only corroborative piece of evidence, which corroborates the statements of the witnesSes. ln the present case, P.W. 2 Harish Pandey has stated in his report of Ex.PI2 that he shall recognize the accused persons, if they come face to face. Similarly, PW. 1 and P.W. 3 have stated in their court statements that they saw the faces of all the three miscreants in the headlight of the jeep. P.W. 1 has described the injury over the faces of. the absconding accused and he has categorically denied the suggestion of the defence that the accused persons had covered their faces by clothes. He has further stated that a f’l ,. " t the time of test identification, he could recollect the face of one of the miscreants-the appellant, because the face of the appellant was familiar to him as he had seen him selling eggs in Bataikela, however, he was not in a position to recognize the pellant imediately after the incident as the appellant. when he saw him about one year prior to the date of incident, was bearing ‘beard, but when he saw the appellant during test identihcation, he stated fo certainty that the appellant was ne of the miscreants. Th version oPreetam is duly corroborated by the statement of Pradeep Agrawal, who has also correctly identihed the appellant in the test identification parade. 'Te above evidence is further corroborated from the recovery of the motorcycle on the memorandum o the appellant, which was used for the commssion of the offence by the accused persons and also the saris and other wearing apparels, which have been seized from the ustody of the appellant on his memorandum. Thus, on the basis of the aforesaid analysis, l am of the opinion that the prosecution has proved the charges beyond all reasonable doubt nd the impugned judgment of conviction does not call for interference. Taking into consideration that the Court below after convicting the appellant under Stions 394/34 a 397134, has sentenced him to undergo Rl for 10 years on each count and to pay a hne o Rs. 40,000/- and 20,000f- respectively and that the appellat has already undergone jail sentence of seven years nd nine months s he is in jail sin - 04.01 .1998 am of the oinion tha the ends ofjustice will be served if the above sentence imposed upon the appellant is modihd and reduced to the period already undergone by him. Accordingly, looking to the age of the appellant an further considering the fact that he has already undergone major part of t jail ntence imposed pon h, the sentence imposed upon him is reduced to he period already undergone by him and it is directed that hehall be released forthwit, if he is otherwis not required to be detained in connection with some oth f e er ofence. \ i /_ r Sd/-' . WK; , Dhil‘:3§;: Mishra I 3 ap m r o e f‘ ' h f i c a ec nd f n a a ce , l p t e d a he se u im t rs h l