3T1^T,5FT fc;ilcf) WT3TI^T 5b^ll4< 3^c[ ^l^l^, ^Tn<rl41<o, i^^S^y ^ll^di sb*licft •^ 200 3?I^T 'qira? (^4^<^f) 'i^TW Tifi^f 3:n^¥T HIGH CQURT QF CHHAf CRI. A. N0 Appellant (In jail 19.01.01) since ResppndeM Vs Stal Thrl Disl And CM. A. N0 Appellant (Injail) ResiiQndent Vs Sta1 Thr Dis1 Mr. Yogeshwar Sharma, Cr.A.No. 227/04. Mr. R.K. Jain, coun Cr.A.No.258/04. Mr. G.S. Ahluwalia, coi Cr.A.No258/04. Mr. Neeraj Mehta, P.L. fo chl^(d4)"} 'W^f ^t '^St if^^K ^^TRFr^Ti^T TISGARHATBILASPUR 227 OF 2004 /[ilandas, S/o Sonaudas Mahant, Lged about 22 years, Driver R/o ^hampa, Thana Champa Distt. ^anjgir-Champa (C.G.) of Chhattisgarh )ugh Police Station Champa, t Janjgir-Champa (C.G.) 258 OF 2004 ^mit Kuraar @ Anil Singh !/o Surendra Singh Aged about 22 ^ears, R/o Village Bara, Post-Katiya Capri P.S. Khijar sarai Distt Gaya 3ihar. of Chhattisgarh >ugh-P. S. Janjgir, :. Janjgir-Champa (C.G.) ,1lt counsel for the appellant in jsel for the appellant in [nsel for the complainant in the State/respondent. GRPRJ— FS/246—2/2007— 50,000. ^^ ^-T3-CJ ^1<410^, ^Tfi^^Kg, fs|(r'>|^^< ^H^T^ R^lch ^r^T^TT^T ^RT^T NWdl ^TTN? •T^ 200 3^TTt;W (l^'i°<<IT) ^TTW^rf^rw^r ^ ^rafel^T •qm^f-cfTS^ ^TRR ^ 3TRFT ^SH^T ORAL J^DGMBNT [10.0^.2007) (10.0^.2007) Dhirendra Mishra^^J Since both these app^ judgment of conviction and February 2004 in Sessionsj learned II Additional Sessj ^als are directed against the order of sentence dated 28th TrialNo. 166/2001 whereby ons Judge (F.T.C.),Janjgir, Bilaspur (C.G.) has conv|icted the appellants under Section 395 of the IPC an undergo R.I. for ten years, also imposed a fine of Rs.2| d sentenced each of them to with no remission clause and OO/-, they are being disposed of by this common judgmei^t. 2. Case of the proseculjion in brief is that Virendra Kumar (PW-1) lodged a rej Janjgir at about 3.30 a.| therein that a sum ofl ^ort (Ex.P/1) in Police Station m. on 18.1.2001 mentioning Rs.4,03,000/-, a cordless telephone valued at Rs.5,^00/- have been robbed from the office of excise contr^ctor Bhatia Company on the gun point. According to jthe FIR the complainant and other employees of the C^ompany were sleeping inside the office, at that time or woke him up at about 3.0 he said that he is comin^ GRPRJ— FS/246—2/2007— 50,000.- LG unknown person called and O in the night and on enquiry, from Bilaspur, whereupon he opened the door. Howejver, two others followed hirn^ ^M ^^ ^qi'qi^^l, ^TH^'KS, fcf^K-iy '^ ^Wvi\ tbNlcb' ^ 200 3ff^T ^^K (^f^^) ^IT^T,5FT R^ioh ^T3?T??T ^^ll<=h ^TTW^rf^T^l^T [nside the room. He provi( Idemand. At the same time |:ook out country made pi^ [temple and asked for key of| bn his demand. In the mea] jnumber, two out of them wer|< |woke up the employees who jand compelled them to go |they went in his room, too! jkept in the Almirah along |kept it in a bag. Before fle|< janother room, however, as t] |latched from outside, thej jimmediately and raised alj |accused persons were stand| |a distance of some 15-20 ft.l [lovely STD/PCO and the| Itherefore, all the four dacoi |the nearby lane. On hearing Isome constables also reachl jnear the jeep and [helper Vinod Kumar. Both |sent along with police consp |to police station and the 4 lascertain the amounf of dacj uiider v^ith appreh^nded GM4lf^1<4lr1 ^1^<^T "^ FS^I iFsl^K ^r ^srRrtT 3T^r led them clothing on their >ne of them all of a sudden tol (Katta), put it on his the Almirah. He gave key iwhile, they became four in holding Katta and they all were sleeping on the divan the divan. Thereafter, out the bundles of notes cordless telephone and eing they confined them in LC door of the room was not came out of the room Lrm. They saw that the ng near a jeep stationed at away from their office near jeep was not startlng, ts started running towards the shouts of the employees kd there and they all went driver Milandas and driver and the helper were :ables and other employees omplainant went inside to )ity. He further stated that GRPRJ— FS/246—2/2007— 50,000. 7^ ^WW^, y-rfl'M'l^, fsf<y))|'H^< ^INdl *t<Jcb' •^ 200 ^?r xi^^ (4C<^<^) 3Rf1^T,5FT R'ltcb '<T8TT3T?^T ^RNr i^fTw^n^Ti^r s (the person who had put Ks [person of wheatish compl< IThe another dacoit who w< labout 5'8" tall and the thin Ifourth one was about 5?6W. / [age group of 22-25 years. loffence under Section 395 ol [Act was registered. On th Iwas arrested from Nailaroa< complainant and other wit] One jeep, a packet conta: stickers of ASB on each containlng wearing appare other things, Dr. S.A. Ans^ 1.1.2000 in which name of a.patient and also four tick^ seized from the appellan] Accused Dharmendra wa^ Identification parade was Executive Magistrate P.K. Virendra Kumar (PW-1) cj Dharmendra Singh vide id^ However, accused Dharmen) thereafter, he did not appe^ ^l^^l'-t 'RFRTf ^F 'fe^ if^ZR ^-sfRpT arr^r LJtta against him was a thin ^ion of about 597" height. .s also holding Katta, was dacoit was of 5?2?? and the 111 of them were between the ^n the basis of above report the IPC and25 of the Arms |e same day appellant Amit who was identified by the LCSS Satyanarayan (PW-15). (ning Rs.2,56,475/- having bundles, one school bag ls, another bag containing Lri's prescription slip dated .m.it Kumar is mentioned as kts of Delux Coach Bus were Milandas vide Ex.P/14. arrested on 16.2.2001. :onducted on 10.4.2001 by Gupta, in which witnesses >rrectly identified accused ntification memo of Ex.P/2. Ira was released on bail and before the trial Court and GRPRJ— FS/246—2/2007— 50,000." 3^ST •-Ml^!<^^, ^TO-M'KS, ?c)^iy^< ^INdl 5bMi<!b""""""""""" """""""" """•""••^ 200 3?ii[?r ^^ (^f^^sr) ^T^T^ ^?+ ^TT^TT^T 5h^(W (^as declared absconding. l/rinod Kumar has died durin^ After completing the in^ filed against the four a feccused Vinod Kumar and D] Learned counsel for th< [^onviction of the appellants >f complainant Virendr< [Satyanarayan (PW-15) who |and have identified the app |on the alleged recovery of :ustody of appellant Miland^ 5. Learned counsel for th| false case has been foisted business rivalry between th< business of liquor. Referringj rehemently argued that as accused Milan and Vinod apprehended in front of officj police and employees of th< police station and the presence. It is also evidl< prosecution that the loote( ct)j<4f<n4lti HW^S 'Sj [^^\ {psi^K ^3TRpT3Tr^T tt was stated that accused pendency of this appeal. ;stigation charge sheet was (cused persons including ^armendra Singh. appellants submitted that Is based on the statements Kumar (PW-1) and •e witnesses of the incident dlants during trial as also robbed amount from the thje appellants argued that a o|n the appellants because of two groups engaged in the to the FIR of Ex.P/1 it was ^er case of the prosecution Kumar were immediately e of the complainant by the office. They were sent to rejport was lodged in their ;nt from the case of the sum was recovered from GRPRJ— FS/246—2/2007— 50,OQO.- 3:S5T ^W<ft^, ^Tfl^'KS, [s|<^l^^< @ NINdl sb^lcb' ••^ 200 3TT^T V^K (^cj^^) 3Tl^T,5FT R'fic^ 'TOT^IT^ sh^Jch ^•Kii^R ^f^a 3?ii^[ 4 |:hem immediately after the jof recovery of the said amou|it |was argued that from perus^.1 |of the prosecution is that jlodged, appellant Milan and Ipresent in the police statio^i; |the recovery of any amounl |serious doubt upon the verajc Iprosecution case. It wa|s jappellant Amit Kumar has [though he was arrested on [was not put to test identji Ibased on the dock identi ^omplainant and Satyanaraf^ the statements of the comFJ: that in the FIR it has beeit person who was holding Kat|ta other one was 5?8?? tall, h^ arrest memo height of accus 5?2M, therefore, dock ider^i complainant Virendra Kuma) 6. Conviction is also ^ prescription slip of articj] recovered from a bag fromj name of the appellant Ami| chl^t<n4lv1 'RR^Jf if fe1^' Tf^STT '^^fRR'an^T lincident. However, the fact is missing in the FIR. It of the FIR itself the case before the complaint was laccused Vinod Kumar were ., however, not mentioning from their custody throws |city and genuineness of the further contended that hot been named in the FIR :he same day. However, he ification and conviction is Fication as stated by the |yan (PW-15). Referring to jlainant it has been argued alleged that height of the against him was 5?7M and wever, from perusal of the >ed Amit has been shown as :ification of Amit by the becomes doubtful. ased on the recovery of e (P? which is allegedly the jeep and which bears @ Anil. It is argued that GRPRJ— FS/246—2/2007— 50,000." 'S^ ^WW^, ^Til-f-t'Ko, fs)C<i|^^< $;t ^l^dl (b^jcb """•"""""""•"••"•••• "••—•"--"•^ 200 3H^T xy^^ ( lic<^<^T) 3^?T^T ^ich ^TT^^^T ^^r ^TT^R'^tT[ 3TI^?T the ;rat)h >imply because of recovery |:he jeep, appellant Amit jwith the crime in question in| ^vidence to the fact that jbelonging to appellant Ami1 jsaid prescription has no1 Iprosecution as a wltness. 'E' i.e. envelope, have not |the investigating officer or ^omplainant in the parag] [stated that managers of iBrajesh, Deepak Jaina, Aml^ Naila Railway Station spott^ the office and he identified holding pistol and the boy| present in the Court is th^ that day. In paragraph 18 (( that the said boy was takenj mangers and thereafter, he has also stated in paragraij)h lodge the report in the already present there. E^ statement of this witness itj of appellant Amit is not n^< the complainant claims tha| CM<4(€n^<1 HIH<vff 16f k^\ Tf^TSR ^^tf^^TT^r |f the above document from Kiimar cannot be connected the absence of any positive |the said slip was in fact as the doctor issuing the been examined by the )ven the contents of article |een specifically deposed by witnesses of seizure. The 10 of his statement has the office Satyanarayan, ^sh etc while returning from ;d a boy, brought him near :he boy as the boy who was namely Amit @ Anil Singh same boy he identified on )f his evidence he has stated to the police station by the ^vent to lodge the report. He 21 that when he went to FJolice station, the boy was :tensively referring to the has been argued that name mtioned in the FIR though appellant Amit was already GRPRJ — FS/246—2/2007— 50,000." 3^q- ^ii^!^, ^TH-H'KS, (cf^i'yy NINdl sh^lcb ••^ 200 3?T^?T Xpl^ ('<^^^) OT^T^T R^ich ^Sff^TT^T 5hHI<=h '^TTW ^f^T 3?n^r ^ apprehended and brought before lodging of the report.| 7. PW-15 Satyanarayan] immediately after the incid< office and police constabl^ part of the robbed sum w| they went in search of oth^ station and apprehended a^ from the station. In thesl the fact of recovery of part| FIR makes the statemenl Virendra Kumar (PW-1) doubtful and therefore, on °hi^<n41ri Hi^<^T18fttc^ <P^^l< ^'3tRHT3H^T to the police station even has also claimed that nt the driver and the helper of the jeep were apprehen<|led by the employees of the |s and from their custody a ^.s recovered and thereafter, [r accused persons to railway >pellant Amit while returning ^ circumstances, absence of of the robbed amount in the ts of these two witnesses [and Satyanarayan (PW-15) the basis of their statements the appellants cannot be co|nvicted. 8. On the other hand State/respondent supporte learned counsel for the ^i impugned judgment of the trial Court and submittec^ that appellant Milan and accused Vinod were imme^iately apprehended after the incident and from their po^ and looted articles from th| is no explanation from the| they were doing at the late of incident. The recoved ^session more than Rs.2 lakh ? jeep were recovered. There accused persons as to what hours of night near the place of medical prescription of GRPRJ— FS/246—2/2007— 50,000. ^3-c^^ ^WW^, ^rfi'M4!^, ts|01^^< ^INdl sb^llch ••^ 200 3^5T'<^RF (^c<f^<^T) ^n^T^ R^i+ H^T3TR¥T 5h^l<=h ^TTW^f^T 3?1^T 9 appellant Amit from the involvement in the crime. 9. I have heard learne< parties and perused the including the impugned ju< 10. Learned trial Court h< appellant basically on the| Kumar whose version has earlier paragraphs. His staj statement of Satyanaraya^ visitors? register of article appellant Amit stayed Dharmendra Singh, it ha^ persons stayed at the lod| the lodge in the night. Ho| overlooked the material prosecution case regardin| the FIR of Ex.P/1 given byj of rupees two lakh and o4 the jeep from the custodj; from the report itself it |: lodged after appellant Mi|l apprehended along withg recorded in their presence| CM<Llf<rt<flrt 'HR^ff 'fif fe^ Tf^RSTC ^'BtRm a^?r jeep also establishes his counsel for the respective biaterial available on record ^gment. is based the conviction of the statement of PW-1 Virendra ilready been reiterated in the bement is corroborafed by the (PW-15). On the basis of (C? of Ashok Lodge where the rith other accused persons been held that the accused on 16.1.2001 and they left wever, learned trial Court has discrepancy present in the absence of the fact that in the complaint about recovery d amount from a bag kept in of appellant Milan though evident that the same was lan and accused Vinod were the jeep and report was in the police station. This is GRPRJ— FS/246—2/2007— 50,000.-- 75ST "q|<4!<?'><M, ^xn^^l^, fGf(rii|y^< ^l^dl 5b*<|ch' •^ 200 3^91 ^S^K ( ^4^c^T ) W^T^T Rtlich H^T^TT^T $b^J<=b i^nw^na^T /o knaterial omission which cre jof the complaint itself. |11. The alleged eyewitn< Satyanarayan did not rec^ However, the prosecution fo: it, did not conduct any id< which makes the dock id< during trial doubtful. The the statements of these witn mater and the same crelates reliability of these two witi fact that the robbed amoulnt from the custody of appell^ alleged recovery itself highl^ considered opinion of this not justified in convicting ^ of alleged recovery of cash his custody and was also n( appellant Amit on the basis] trial by PW-1 Virendra Kum{ 12. In the result, appeal deserves to be allowed an<& Their conviction under sentenced passed thereon; CM^f<n<i1'1 'RFR^f ^f fe^ Tf^R^R "^ 3TRFT ^TF^T tes doubt upon the veracity Iss Virendra Kumar and )gnize Amit since before. the reasons best known to [ntification of this accused, Intification of this accused |discrepancy pointed out in esses goes to the root of the serious doubt about tesses. The absence of the recovered from the jeep nt Milan in FIR, makes the doubtful. Therefore, in the ^ourt, the Court below was ppellant Milan on the basis amount from the jeep from ^t justified in convicting the )f dock identification during ir and PW-15 Satyanarayan. preferred by the appellants accordingly, it is allowed. ^ection 395 of IPC and are set aside. They are GRPRJ— FS/246—2/2007 — 50,000." 3:^r ^I^I^A), ^Tfi'y^KS, Ici^i'y^ ^l^dl (hNlcb •-^ 200 W^ ^ ( ^f^t^T ) ^n^T^ ^ich ^^T37R?T 5h^|cb '^TTW^TT^T^T lA acquitted of the above chai forthwith if not required in 13. Heardon I.A.No.l, an| 452 read with Section 386 and disposal of the property 14. This application ha complainant for releasing Rs.2,56,475/- in favour conclusion of the trial. been preferred by the tjie looted seized property of |of the complainant after 15. Learned counsel for the trial Court has errone^ with respect to disposal ol Section 452 of the Cr.P.CJ accused persons are absco] charge sheet ifself it would| of the prosecution the pro] the complainant which was| from his jeep, therefore, handing over the said prop|< the reasons assigned for respect to disposal of the 16. From perusal of reccj CM^41i 'Rpraf ^f fi1^- <pji^i< ^ 3tRm v37T^T ge. They be set at liberty ny other case. application under Section ;) of the Cr.P.C. for custody at the conclusion of trial. tHe complainant submits that )usly not passed any order the seized property under on the pretext that other (iding. From perusal of the be evident that as per case >erty in question belongs to seized from appellant Milan :here is no impediment in ?rty to the complainant and |iot passing any order with pi|operty 1s not proper. rd of the trial Court it is observed that accused Dl-tarmendra Singh absconded GRPRJ— FS/246—2/2007— 50,000.~ 3^'^RTT^T, ^Tfl<rlJI(o, ^Wvi\ Sb^ll* •^ 200 an^T i^ra? ('^t^si^T) 3?T^T^ ^ich ^^T37TOT 5h^|ch '^ITW^f^^n^T -7-^ after being released on bai arrest was issued against persons are also abscondin| arrested de novo trial will therefore, the reasons assi] not passing any order unde| for disposal of the property! otherwise, before passing of the Cr.P.C. an enquir| affording an opportunity of and as such, it would not order on the application fo^ complainaLnt at this stage. 17. Accordingly, the apj rejected. chl^^-t iTT^f ^ ^S <P»(^K '^•^tRm^rT^i and permanent warrant of him and other two accused ^ and as and when they are IDC conducted against them, ^ned by the trial Court for Section 452 of the Cr.P.C. |appears to be proper. Even a|ny order under Section 452 |y would be necessary for [hearing to all the concerned |be appropriate to pass any disposal of property of the Iplication {I.A.No.1/07} is Sd/- Dhirendra Mishra Judge GRPRJ— FS/246—2/2007 — 50,000.