IN THE. HIGH coURT 9F cmATTxsGARH AT BILASQ§./ i § ‘ ‘ x CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF gRmggAL PROCEDURE. cr.A. No. 4:“? /2oo4 / APPELLANTS : )x Anil Kumar age Tigga 34 years, s/o Jaimasih r/o village g, (ET JAIL) Tigga, Lurghutta, P.S. Ramanujganj. ‘ Distt. Surguja, C.G. /2< Ajay Kumar Khes§ s/o Alexendar Khess, age 24 years, r/o village Sarangpur, P.S. Ramanujganj, Distt. wrguja, C.G. /§. Rustam Ansari s/o Bhagad Miya, v age 65 years, r/o village Sarangpur‘i. P.s. Ramanujganj, Distt. $1rguja, 11 c:.G. \‘ . Mahesh Singh s/o Sarju singh, 24 r/o village Dhanesh age years. pur,Lukti, P.S._ Ramanujganj, District Surguj‘a”; C. G. v E R s U § RESPONDENT firm state of chhattisgarhl, through P.S. Ramanujganj, Distt. surguja, C.G. APPELLANT x State of Chhattisgam Shri Mano} Mishra under the authority Qf $hri A, N. Pandéy, ccunse‘ far the appeHant Shri Pravin Das, Dy. G.A. for the State . Criminai Appeal NQ. 419 of 2004 Am! Kumar Tlgga and three athei’a APPELLANT$ V R$US RE$PGNDENT State of Chhattisgarh Shri Shakti Raj $inha, counsel for the appeilants‘ Shri Vivek Sharma, P.L. for the 5tate CRIMINALAPPEAL$ UNDER: SECTIGN 374 (2} OF THE CGBE OF CRIMINAB. PR6CE§URE JUDGMENT (04.04.2911) Sinte the afcrementioned two appeals arise out of the same judgment dated 24.04.2004 passed by Additicnai Sessions Judge (F.T‘C), Ramanujganj: District a Surguja in Sessions Trial Ne. 270/2000, both are being disposed of by this common judgment. 2! A3! the appeiiants have been convicted under Sections 395 and 397 of IPC and sentenced them to undergo rigorous imprisonment for seven years and pay fine of Rs. 5‘000 uis 395 and rigorous imprisonment for seven years uls 397 VERSU$ -2~ whereas the appellant Anil Khaikho has been convicted under Sections 25 (1-3) and 27 (1) of Arms Act in addition to the Sections 395 and 397 of IPC and sentenced him to undergo rigorous imprisonment for three years and pay fine of Rs.2000, plus default stipulations. All the sentences were directed to run concurrently. x 3. Facts of the case in brief are that on 14.05.2000 in between 8.30 to 9.30 p.m. one truck bearing registration No. BR 15G 0081 which was being driven by the complainant Shiv Singh (PW-13) was stopped near Anwarajhariya bridge by 6-7 unknown persons who had covered their faces and were carrying arms in their hands. It is alleged that when the accused persons were trying to rob the owner and the driver of the truck, a Police patrolling party reached'there on a motorwcle and on seeing them the accused persons fired at the police party and thereafter ran away in the forest. FIR Ex. P—21 was lodged on 15.05.2000 at about 12.30 a.m by Shiv Singh (PW-13). and based on this report, offence under Section 398 and 402 of IPC was registered against unknown persons. It is alleged that Anil Kumar Tigga, Philip Minj, Anii Khalkho and Ajay Kumar Khes were arrested on 23.05.2000 vide arrest memo Exs. P-15 to P-18 respectively whereas accused Rustam Ansari was arrested on 08.06.2000 vide arrest memo Ex. P-22. Mahesh Kherwar and Rohit Gupta were arrested on 19.05.2001 and 30.04.2001 respectively. On the basis of their memorandum, seizures were made and after investigation, Chailan was filed on 18.08.2000 for the offence under Sections 395, 397, 109 and 1208 of IPC and 25 & 27 of Arms Act against 7 persons including Rohit Kumar Gupta and Mahesh Kherwar who have been shown as absconder. However the Court below framed charge against the accusedlappellants Philip Minj, Rustam Ansari. Mahesh K-herwar and Rehit Gupta under Sections 395 and 397 of IPC " -3“ whereas against the accused/appeuants Ajay Kumar Khes, Anil' Tigga and Ann Khelkho under Sections 395 and 397 of IPC and 25 (1)(1-B) (a) and 27 (If Arms Act. 4. So as to hold the accused persons guilty: prosecution has examined 13 witnesses in support of its case. Statements Vof the accused persons were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges ieveiied against them and pieaded their innocence and false implication in the case, 5. After hearing the parties the trial Court has acquitted the accused/appellants Anil Tigga and Ajay Kumar Khes of the offence under Section 25 (1)(1—B) (a) and 27 of Arms'Act but 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—8) and 27 (’1) of Arms Act. 6. Learned counsel for the appellants have argued that as per the prosecution case itself while committing the offence, all the accused persons had covered their faces and the FIR was lodged against unknown persons. In test identification parade vide Exs. P-3 & P-4 conducted on 23.05.2000 and 18.07.2000 respectively by R. L. Dewangan (PW‘7), none of the appellants have been identified by Sunil singh (PW-3) as per the requirement of law. They submit that once the appellants have not been identified, the question of their conviction under Sections 395 and 397 does not arise. It has been further argued that Ex. P—S is the memorandum on the basis of which Rs.200 has been seized from Rustam Ansari vide seizure memo Ex. P-6, Ex. P—7 is the memorandum on ”the basis of which Rs. 570, one slut) and one towel have been Ex. P—9 seized from Philip Minj vide seizure memo Ex. P—8, ,u— is the memorandum on the basis of which Rs.2182, one lair gun and certain articles have been seized frcm Ajay Kumar Khes vide seizure memo Ex. P-lO, Ex. P~11 is the ' memorandum on the basis of“ which some cash and wrist watches have been seized from Anii Kumar Tigga’ vide seizure memo Ex. P-12, Ex, P-13 is the memorandum on the basis of which two revolvers, Rs.1900, wrist watches and one dagger have been seized from Anii Khaikho vide seizure memo Ex. P—14. According to the learned counsel, one seizure witness namely Bajranglal Agrawal (PW-6) has though supported the prosecution case but the other seizure witness namely Vimal Agrawal (PW—5) has not supported the prosecution case and has been declared hostile. It has been further argued that as the seized articles have not been put to identification, Jagdish. who is one of the seizure and memorandum Witnesses has not been examined by the prosecution and Vimal who is a witness of EXP-5 has not supported the prosecution case and turned hostile, the entire seizure loses its value and on this count also the 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-B) and 27 (1) of the Arms Act, it has been argued that as one of the seizure witnesses namely‘Vimal (PW-5) has not supported the prosecution case, the entire seizure becomes doubtfui and therefore benefit of doubt must go in his favour. 7. On the other hand supporting the impugned judgment t has been argued by $hri Des and $hri Sharma, leamed counsel for the $tate that the dare-devil act of the accused/appellants in looting the victims speaks volumes about the gravity of the offence alleged against them. Learned State counsel submit that in the test identification parade conducted on 23.05.2000 vide Ex. P-3, the r i ,3- accused/appeiiant Philip Minj was identified by Sunii Kumar (PW-3) whereas in the test identification parade canducted on 18.07.2000 vide Ex.P-4, accused/appeiiants- Anii Tigga and Phiiip Minj were identified by him, They further submit that the conviction of the accused/appeiiant ‘Anii Khaikho under Sections_25 (l—B) and 27 (1) af Arms Act is in accordance with'iaw in View of the seizure Ex. P—14 which is duiy supported by Bajrangiai Agrawai (PW-6), 8. Sanjay Mehta (PW-1), the Arms cierk of the CoHector Office, Ambikapur has proved the sanction EXP-1 for prosecuting the accusedjappeliants under the provisions of Arms Act. Theodor Lakra (PW-2) is armourer who had examined the weapons seized from the accused/appeiiants. Sunii Singh (PW-3) is another victim from Whom Rs. 200 was robbed by the appeiiants has identified the appeiiant Philip Minj but this witness has stated in his Court statement that he had not' identified any of the accused persons in the identification parade vide Exs.‘ P-3 & P—4 and this witness has , been declared hostiie. The Sub—Inspector P. S. Mahiiane (PW~ 4) was a member of police patrolling party along with Satyendra Singh (PW-12) has not stated anything specific against the accused/appellants. Vimal Kumar Agrawal (PW-5) is a witness of memorandum Ex. P—5 and seizure Ex. P—6 has not supported the prosecution case and turned hostile. Bajrang Agrawal (PW—6) is a witness of memorandum Exs. P- 7, P—s, P-11, and iii-13 and seizure Exs. P—a, P-10, P-12 and / P-14 has supported the prosecution case. R. L. Dewangan (PW—7) is the Tahsildar who had conducted the test identification parade on 23.05.2000 vide Exs. P-3 has stated that only the accused/appellant Philip Minj was identified by Sunil Kumar (PW-3) whereas .the test identification parade conducted on 18.012000 vide Ex.P-4, accused/appellants Anil Tigga and Philip Minj were identified by Sunil Kumar (PW-3). ‘ l ' ¢ ,er Sarif (PW-8) is one of the victims who was taking his wife for treatment on a bicycle was stapped near the place ' of " occurrence by the accused persons and Rs.150 was robbed from him, has not supported the prosecution case and turned hostiie. Sunii Kurnar Singh (PW-9) has been examined twice by the prosecution as PW-3 and PW-9 has not supported the prosecution case and turned hostile. The Investigating Officer M. K. Tiwari (PW-10) has supported the prosecution case: " Suresh Kumar Mishra (PW-11) is the Patwari who had prepared the spot map Ex. P—35. The Head Constable Satyendra Singh (PW-12) who was a member of the patrolling party has stated that he knows the accused/appellant Philip Minj and Mahesh Kherwar by their face and name but does not know the remaining appellants. He has further stated that on the date of incident the taccusedjappellants Philip'Minz ‘ and Mahesh Kherwar were committing‘robbery along with ; other accused persons and on being challenged by’the police H party they fired at them; _ Shiv' Singh (PW-13), the ‘ complainant has stated that on the date of incident he was stopped by the accused persons and robbed Rs.4,000 from i him but has not stated any thing about the involvement of the l accused/appellants nor regarding their identification. 9. Minute examination of the evidence makes it clear that the ad‘cused/appellants Anil Khalkho and Ajay Khes have not been identified by Sunil Kumar (PW~3) in'the identification ‘_ parade vide Exs.P-3 8: P4 held on 23.05.200 and 18.07.2000. /. In respect of accused/appellants Mahesh Kherwar and Rustam / Ansari, no test identification parade was conducted for their 1 identification. Though Anil Tigga and Philip Minj are alleged to have been identified by $unil Sing (PW-3) vide Exs. P-3 & P-4 but Sunil Kumar Singh (PW-3) has denied any such identification by him and has been declared hostile whereas Tahsildar R. L. Dewangan (PW-7) has stated that only Philip .7. Minj was identified vide Ex,P-4, Cansidaring the discrepancy i in the _test identification parade it is difficult to believe the dutcome of the same. ’ The robbed articies which were seized at the instance of the accused/appellants were nut put td identification and therefore the memdrandum and seizure idse their significance se far as it relates t0 offence under secticns 395 and 397 of IPC and on’ the basis of theeexseizures and memoranda the appellants cannot be cenvicted for the aiieged commission of crime, Accordingly, conviction of ali the accusedlappeilants under sections 395 and 397 is unsustainable and is hereby set aside. 10. So far as conviction of the accusedjappeiiant Anii Khaikho under section 25 (1—3) and 27 (i) of Arms Act is concerned,’the_. memorandum Ex,P-13 and seizure Ex.P—14 have been duly supported by Bajrangial Agrawai (PW-d), Sanjay Mehta (PW-1) has proved the grant of sanction vide Ex. P-l and the armourer Theodor Lakra (PW-2) has stated that the seized weapons were in working condition and therefore his conviction under the provisions of Arms Act is justified, It has been informed by the learned counsel representing for the appeiiants and the State that appeiiant Anil Khalkho has already remained in jaii for more than 6 years, thus he has undergone the entire sentence imposed on ‘ him unde? Sections 25 (1-3) and 27 (i) of Arms Act, In view of this he is not required to be sent back to jail. Appeliants Anil Khalkho, Anii Tigga, Ajay Kumar Khesh, Rustam Ansari and Mahesh Khenrvar are already on bail and therefore their bail bonds stand discharged, However, the appeilant Philip Minj is reported to be in jail and'therefore he is directed to be set free forthwith if not required in any other case, / 11. Appeal thus partly succeeds. ”