v^ h"^^ c^^^ 's HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS Criminal Appeal No. 392/2007 1. PATWARI ALIAS JAIJEET S/0 SADHURAM NAGE8IA AGED 18 YEARS OCCUPATION LABOUR VILLAGE DADGAON THANA JASHPURNAGAR, DISTRICT JASHPUR (C.G.) 2. RANJIT ALIAS RANJEET ALIAS SANDEEP S/0 PODHRAM URAV AGED 28 YEARS OCCUPATION LABOUR VILLAGE DADGAON THANA JASHPURNAGAR, DISTRICT JASHPUR (C.G.) VERSUS RESPONDENT STATE OF CHHATTISGARH THROUGH, POLICE STATION ASTA, DISTRICT JASHPUR (C.G.) CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CMMINAL PROCEDURE. 1973. (SB :Hon*ble Mr. T.P.Sharma, J.) Present: Shri B.D.Badgaiya, Advocate for tiie appellants. Shri Akhil Mishra, Dy. G.A. for the State/respondent. ORAL- JUDGEMENT (Passedon 25/8/2009) 1. This appeal is directed against the judgment of conviction and order of sentence dated 29/4/06 passed by the Additional Sessions Judge, Jashpur in Sessions Trial No. 142/05 whereby and where under learned Additional Sessions Judge after holding the appellants guilty for the offence punishable under Sections 395 of the Indian Penal Code and Sections 25 8& 27 of the Arms Act and convicted and sentenced the appellant Patwari and Ranjeet rigorous imprisonment for 7 years and fine of Rs.5,000/-, rigorous imprisonment for 3 years and fme of Rs.1,000/- rigorous —2--- imprisonment for 3 year and fme of Rs. 1,000/- in default additional rigorous imprisonment for 5 months 85 6 months. Judgment of conviction and order of sentence is challenged on the ground that without any credible and clinching evidence learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. The brief case of the prosecution is on 3/7/05 at about 11.30 P.M. 4 unknown persons knocked the door of complainant PW4 Emanuval Kerketta, they entered into the house and after giving threat to the complainant they took Rs. 15,450/- and one Titan watch. They were holding country made pistol after commission of the offence they Hed away. He has lodged the report vide P-7 on second day where he has given the description of the accused persons. On 11/8/05 after 8 days of the incident both the appellants along with other co-accused persons were taken into custody and on the basis of disclosure statement of the Quem Ansari vide P-1, present appellant Patwari vide P-2, present appellant Ranjeet Vide P-3, accused Beersay vide P-4 accused Ravishankar Vide P- 5, Accused Viraj Vide P-6 and accused Babulal Vide P-7. The property has been recovered at their instance vide P-8 to P-14. Accused persons were identified by the complainant vide identification memo Exs. P-15 & 16. Spot map was prepared vide P-18 and Patwari prepared spot map vide P-19. Sanction for prosecuUon of the accused under Section 39 of the Arms Act, 1959 was accorded by the District Judge vide Ex P-20. After completion of the investigation charge sheet was filed before the J- 8. Judicial Magistrate First Class, Jashpur who in turns committed the case to the Court of Sessions Judge, learned Additional Sessions Judge received the case on transfer. In order to prove the guilt of the appellants prosecution examined as well as 11 witnesses. Examination of the accused persons conducted under Section 313 of the Code of Criminal Procedure, 1973 (in short the code) where they denied the circumstances appearing against them innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned Additional Sessions Judge has convicted and sentenced the appellants as aforementioned. Learned counsel for the parties are heard. Judgment imputed and records ofcourts below perused. Learned counsel for the appellants vehemently argued that nothing has been recovered from the appellants to connect them with the offence of dacoity therefore material exaggeration, contradiction and omission in the statement of the complainant and the First Information Report lodged by him. The statement of the complainant and other witnesses does not inspire any confidence or, are not sufficient for drawing an inference that present appellants has committed the aforesaid offence. On the other hand, learned counsel for the State/respondent opposed the appeal and submits that PW4 complainant Emanuval Kerketta is sufficient for drawing the inference that appellants are persons who has committed the offence of the dacoity in the house of the complainant. ••^^:, ;'^ '.•'^ ^ ^ ..: ^ \... ,J'^ '"-.. ''"^"^' "'^^ ~'y ^<.-; '^^^^ —^^ '3. 9. In order to appreciate the contention of the parties, I have examined the material available on record, case of the prosecution rests on the following sets of evidence (i) Statement of the eye witnesses. (ii) Identification of the appellants. (iii) Recoveiy of the articles on the basis of disclosure statement of the appellant recorded under Section 27 of the Evidence Act and their identification. PW4 Emanuval Kerketta has deposed in his evidence that at the time of commission of the offence he was present in his house he heard some gents sound when he opened the door after lighting the light he saw 7 85 8 persons were present, face of one person was opened and rest were closed by the cloths accused Ranjeet was present at the time of commission of the offence who told that they are persons of the forest and f another accused threat him while he was going back for taking key of the lock and thrown the light of his torch over the face of the accused then present appellant Patwari abused him then he opened the door they took out Rs. 15,450/- on the point of country made pistol and went away. He lodged the report on next day vide Ex. P-7. Map was prepared vide Ex. P-18. PW3 Udayraj Singh, Naib Tahsildar has deposed that he has conducted identification of the accused persons and complainant has identified present appellant and other accused vide Exs. P-15 85 P-16 in his detailed cross examination. He has denied the suggestion that Police Officer were present at the time of identification. He has specifically deposed that he has conducted identification Parade inside the jail where complainant has identified the accused persons. PW7 R. G. S. Gautam has / s~' Y-' deposed that he has recorded First Information Report vide Ex. P- 7. PW9 Investigating Offlcer R.R. Toppo has deposed that he has recorded the memorandum of Appellant Patwari Vide P-2 and was recovered one country made pistol and 2 alivecorteges and one Camera vide Ex P-9. He has also recorded the memorandum statement of appellant Ranjeet Vide P-3 and has recovered one iron Khukhri (Knife) and Torch vide P-10 along with statement and seizure of articles from the different accused persons. 10. Defence has cross examined the complainant at length. He has adinitted in Para-9 of his statement that when he came to know that assailant have been arrested by the police then he went to the police station where accused persons sitting in a group but he has not seen them clearly. His statement reveals that he has identified the two accused in Dak identification before the Court on the basis that they are persons who had played specific role at the time of the commission of offence. Admittedly, his statement relating to 7 8& 8 accused is exaggerated statement after appreciating the evidence available on record learned Additional Sessions Judge has convicted and sentenced only two accused aforesaid appellants. Learned Additional Sessions Judge has rightly separated the truth from falsehood of from exaggeration according to the statement of the complainant two aforesaid appellants along with other persons had committed the dacoily in his house and these two persons were holding deadly weapon. The sanction for the prosecution of the present appellants has been accorded by District Magistrate vide P-20 who was competent to accord such sanction relating to the commission of the offence by two persons and their identification inspire confidence trustworthy sufficient for drawing the inference that both the appellants have committed aforesaid offence along with Other more than 5 co-accusd. 11. For the foregoing reasons, I do not find any scope in the merits. Appeal is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge