C—78 ^n^i^i^h? ^^'STr^T^R^ 3^T ^j<L||^, ^Tf1^^<5, isl^l^y HWvi\ ^NJ<*" "^ 200 3^?T ^S1[^ ( ^i^^) '^HW^fe^^T^T HIGH COURT OF C^IHATTISGARH AT BILASPUR CRIMINAL irrr^iT i— NO. 1113 OF 2003 APPELLANTS (In Jail) 1. 2. 3. Ghanshyam alias Kotwal, son of Jaharsingh Parthi aged 24 years, R/o village Siltara, P.8. Dharsiva, Distt. Raipur (C.G.) Santarulal son of Jaharsingh aged 30 years, R/o village Siltara, P.S. Dharsiva Distt. Raipur(C.G.) Ram Banwas son of Mayalal Parthi aged 52 years, R/o village Khisora, P.S. Deokar District Durg (C.G.) VERSUS RESPONDENT Prosecution Present: Shri Yogeshwar Sharm^ Shri Sushil Dubey, G.A Dhirendra Mishra.J (l^ This appeal under Sec^ Procedure Code is directed ag^ order of sentence dated 23.81, 203/2002 whereby the Baloda Bazar after holding aijpellant '^Rfepft^l T?P^ff '^,'fe^ <fa^K ^^RR^T^I State of Chhattisgarh, through P.S. Simga, Distt. Raipur (C.G.) |, counsel for the appellants. for the State/respondent. ORALIJUDGMENT .08.2007) \ion 374(2) of the Code of Criminal ^inst the judgment of conviction and 3|.2003 passed in Sessions Trial No. I Additional Sessions Judge, Fjpellants Ghanshyam, Santrulal and leailned XI-HC—78 3^T ^i<41^, ^Tn'(-ljl<o, isi^l'yy T51T?^fT *NI«b •W^ 200 3ni?r'sysr^ (^1^<^) -ST^T^I'^ri^ ^^T 3??^T ^RW '^iTW^fi^ ^ii^T Ram Banbas guilty of the o| sentenced each of them to uilider; of Rs.1,000/-, in default of p^ of one year. ejbNid41wi WR^f ^'fe^ 'ri^R?R ^3tRm3?I^T ffence under Section 395 of the IPC, idergo R.I. of ten years and pay a fine ^.yment of fme to further undergo R.I. 2. Case of the prosecutio^ Singh (PW-2) was residing v| Rameshwardas Agrawal on night of 15/16th October 20^ Singh, Krishnabai (PW-13) 1 in brief is that complainant Kumar l^ith his family in the farm house of |:he guard duty. In the intervening >1 at about 1.00 a.m. wife of Kumar traised an alarm that thieves ^have entered in the home, on whicjh the complainant woke up and saw l-i lathi were standing near his cot. room where other labourers were |of the room. Thereafter, they broke |with the help of crowbar and stone (sh amount from a box. They also |ughter-in-law of the complaint. The ^er. After the incident the dacoits (thers in a room and Hed from there. that 5-6 persons armed wit| They pushed him inside th^ sleeping and made a search open door of the other room| and took out jewelry and ca| looted jewelry and cash of da| dacoits were 10-12 in numll locked the complainanf and (^ At the time of incident they h{ad covered their faces. On the next morning, a report was lodgecj Simga against the unknown d| the accused persons were apij confessed commission of two committed by them along v^| station and second pertainin] by Kumar Singh at Police Station acoits vide Ex.P/22. On 24.10.2001 >rehended and on interrogation they |offences, first pertaining to robbery |ith others near Hathband railway ^ to the house of Rameshwar and XI-HC—78 3^- ^|^||<44, ^Tn^KS, R)01<-(^< ^((NdS Sh^icn ^ 200 3??^T ?RT'f^l^ ^i ^iT^i'^n^' 3^T T(?5W (^f^<8T) I^TW^f^T3?R^l ^5 Kumar Sai. On thc basis-of totlal Ghanshyam (Ex.P/1), a bro| Similarly, on the basis of m^i (Ex.P/ 3), silver ornaments j Ex.P/12 and on the memo^ necklace two in number, silv^: (jhumka) two in number, vide Ex.P/6. The seized artic| 13) vide Ex.P/24 in a test 4 Magistrate A.S. Paikra (PW-^ were identified by Krishnabaij parade of appellant Executive Magistrate A.S. witnesses Kuntibai (PW-3), (PW-11) correctly identified Ghans|iyam 3. Learned counsel for thel Ex.P/22 it is mentioned that at the time of incident and witnesses to recognize aj identification parade or in th( justified in basing convictiofi identification during trial. Hj appellant Santrulal and Ramj looted articles, however, the} allegedly seized from these ch^i<rt^1^ HW^S ^fe^ '(fW?R ^'^fiR^IT^T iiieiiiuiaiidum stciLfcmtint of^p^llant m jerkin was seized under Ex.P/2. morandum of appellant Ram Banbas were taken into possession vide ^andum of appellant Santrulal silver r^r lachcha two in number and ear ring valuing at Rs.1300/-, were seized |es were identified by Krishnabai (PW- lentification conducted by Executive Similarly, other silver ornaments vide Ex.P/25. The test identification was also conducted by the F|aikra (PW-9) on 24.10.2001 where [Ubarandas (PW-12) and Hargovind a^pellant Ghanshyam. [appellants submits that in the FIR of yi the dacoits had covered their faces jfchus there was no occasion for the Ipellant Ghanshyam in the test Court and the Court below was not of appellant Ghanshyam on the further argued that conviction of Banbas is based on the recovery of t-e is no evidence that the articles Jappellants were in fact the looted XI-HC—78 75ST ^q|<q|^>'q, ^TQ'y^KS, f®t<^W^< Timc?sr sbNich ^ 200 3T?^[ ?T[ F^rii<r< ^T 'SIT^T'^??N> 3ni?r T^^ (^t^^) '^T^R ^?ii?T 3?jt^T 'aTfl'cles as rhe test iclentitic^l without mbcing proper numl^( articles, as such the identifi^ conviction of the appell^nts identification. He further ar^ued as to under what circumstant and on the identical evidenct Radhelal, Rajkumar, Chan^ acquitted. 4. Reliance is placed on (SCt 345 in the matter of Sta others. 5. On the other hand, le^ the impugned judgment of th< t|ie judgment reported in 2007(1) ANJ be ofRaiasthan Versus Netrapaland 6. I have heard learned perused the material availab judgment. 7. Conviction of the appe Kumar Singh (PW-2), Kuntil who are eyewitnesses of tl complainant who has reiteral has already been reproduced described the looted articles 4»S^i<y11'4i4^TR^f ^fe^t <Rn^i< ^ 3JRTH W^l tion ot these articles was conducted ers of similar articles with the seized ation of these articles is vitiated and cannot be based on such that there is no evidence to show ;es the accused persons were arrested k, other four accused persons namely Ira Prakash and Raju have been ^rned counsel for the State supports trial Court. c|3unsel for the respective parties and |e on record including the impugned llants is based on the statements of 1{)ai (PW-3) and Krishnabai (PW-13), t|ie incident. Kumar Singh is the ^d his version given in the FIR, which [in the foregoing paragraph. He has |n paragraph 2 of his deposition and XI-HC—78 •s^f ^|<L||^, ^Tn'MJi<o, fsi^i-yy ^^ iTTO^rr *Ni4» -^ 200 ^[^ ^f (qilT< ^^T -sn^T '^nN' 3H^?T ^^3R ( 4^F^<^] '^HWHfe^^H^T has proved the FIR of Ex.P^ statement on oath that she little daughter had passed door that 5-6 unknown pers{ husband, on which she raisje The unknown persons claii4 however, they had covered by neck and brought him| standing. After hearing the woke up, the dacoits confinj her ear ring, clip, lachcha of daughter-in-law and they accused persons were holdii other persons were standingj stated that the person the same person who had incident and was standing bottle. However, she has sta^ accused persons as all of th] further stated that she rel identification vide Exs.P/23, identified accused Ghanshy conducted by the Executivc Ex.P/23. Litrine presetit Ghl^i^i^l^ W7^?? ^_fecst <fa^s< ^^IRrH^^F f22. PW-3 Kuntibai has stated in her woke up at the time of incident as her ', at that time she saw through the >ns were standing beside the cot of her ^d an alarm and her husband got up. [ed themselves to be police personnel, Jheir faces. They caught her husband in the same room where she was toise, labourers in the other room also ^d them in another room, they looted |ier daughter, anklet 85 necklace of her jalso looted cash amount. All the ig lathi and broken bottles and three |with axe on the gate. She has further in the Court namely Ghanshyam is |not covered his face at the time of front of the light holding a broken (ed that she could not recognize other i^m had covered their faces. She has :ognized her looted articles during |24, 85 25. This witness has correctly ^m in the test identification parade Magistrate A.S. Paikra (PW-9) vide XI-HC—78 3:E5T ^)|A||(V')A(, ^•y<t^, fci^l^y TW^ST sbN(* ^ 200 ^IT^I^I^lN WT3?H^T'^RNT 31Tt?T xl^^ (^4^<^T) ^^1(^R ^rf^ 3??^T 6 -§- PW-12 Ubarandas ha^ had not covered his face andl incident. In the test idel Ghanshyam to be the persor| above two witnesses have h^owever, the defence could evidence of these two witnes^ also stated that accused Ghanshyam he was wearing ajacket at the time of itification parade he had identified who was involved in the dacoity. The >een cross-examined by the defence, not elicit anything which makes the es untrustworthy or unreliable. 9. Thus, from the statem (PW-3) and Krishnabai (PW-] Ghanshyam in the crime in mts of Kumar Singh (PW-2), Kuntibai |3), participation of accused/appellant qluestion is established. 10. So far as conviction Rambanbas is concerned, tl looted articles on the basis Exs.P/6 8s P/12, respectiv€ accused persons have been as also PW-13 Krishnabai w looted articles were put for identified by them. The loo1 during trial. The identific^ identification of accused Executive Magistrate A.S. documents and stated thrc Ghanshyam were correctly idc of these witnesses remainedl examination of these witnesseis cbi^id^ft'? ^H3H<yif ^f_f^^l <fa^8< ^^Rm^^ of the appellants Santrulal and [e same is based on the recovery of |of their memorandum statements of |ly. The articles seized from these ^orrectly identified by PW-3 Kuntibai fio have categorically stated that the ({lentification and the same were duly ted articles have also been exhibited ^tion of these articles as also the !|hanshaym was conducted by the ^aikra (PW-9), who has proved fhe it all these articles and accused ntified by the witnesses. The version unchallenged as there is no cross- by the defence side. XI-HC—78 'S^ -qi-qi^^, ^•Cny41<S, ?S)01'y^< ^M^ ^sW^ 200 5T1^T ^'f^ITO ^r'STT^T'^)T?W 3?T^?T V ( ^cjf^^ll) '^nw^ftn 3i?^r 11. Thus, from the staterrj( recovery and identity of th^ accused/appellant Santrula^ therefore, in the considered <|) Judge has not committed the appellants for the ayiy aforesajid 12. In the cited judgment others (supra), the Hon'ble appeals preferred by the Sta| of acquittal by the High confirmed the judgment of a| in the matters of identifical articles at their instance, id^ as in the facts of that case the absence of light identific< at the time of incident. identification of the same wei the accused persons were a] but their arrest was shown were detained in the police the present case is distingui; the appellants were arrested day test identification of the seized articles were the witnesses. identificfction Simi^arly 4)j^id^1^ ^W^S^^S <Fai^B< i!r^p?3?n^r snts of Kuntibai and Krishnabai, the looted articles from the custody of and Ram Banbas, is duly proved, pinion of this Court learned Sessions illegality or infirmity in convicting offence. f State of Rajasthan Ys. Netrapal and jSupreme Court while considering the |te of Rajasthan against the judgment ^ourt, has rejected the appeals and ^quittal by extending benefit of doubt ^ion of accused persons, recovery of ^ntification of articles and ornaments ]t was held by the High Court that in of the accused was not possible ^arly, seizure of the looted articles and [{e disbelieved with an observation that [•rested after 7-8 days of the incident [much later and the accused persons >tation in the meanwhile. However, ^hable on facts as in the instant case [only on 24.10.2001 and on the same Ghanshyam and identification of and they were duly identified by accijised conditicted XI-HC—78 3^^ ^W^, ^Wd, ^W^ ^I^T^Tf^W ^s^f ^H^T^RW •V t^ TWRW sh^ilcb •^ 200 3?i^rxra% (4d?^<^) •^T^R^f^T^^T € 13. However, taking into persons who were 24, 30 and <^Nfd4^ 'WS^f ^lt^ '^I'^R '^^f?m'2?n^? consideration age of the accused 52 years old at the time of ineident and also considering the fact t:hat they have been convicted for the first time in this offence aijid they do not have any criminal antecedent, which is not dispijited by learned counsel for the State, the appeal is partly allowed. |Conviction of the accused/appellant under Section 395 of the IPO is maintained and sentence of ten years' R.I. awarded under th| sentenced to undergo seven y^ and in default thereof, to furth^r undergo R.I. of one year. is section is modified and they are ars' R.I. and pay a fme of Rs.1000/- Sd/- Dhirendra Mishra Judge