;ss. M1GH COURT OF CHHATTISGARH AT BILASPUR Cnminal Appeal No.373 of 2005 APPELLANT: (!n Jai!) RESPONDENT: Shiv Prasad Mandavi, S/o Dharam Singh Mandavi, aged 24 'years, R/o Ghotiya, P.5. Dongarhgarh, Distt. Rajnandgaon, C.G. Versus State of Chhattisgarh, Through Police Statio" Dongarhgarh, Distt. Rajnandgaon (C.G.) {Criminai appeai under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. S.C. Verma, counsel for the appellant. Mr. Pankaj Shrivastava, Panel Lawyer for the State/respondent. Singje Bench: Hon'ble Mr. T.P. Sharma,^. (ORADJUDGMENT (Delivered on 11"'August, 2008) 1. This appeal is directed against the judgment of conviction and order of sentence dated 17 Mareh, 200-5 passad by the Additiona! Sessions Judge, Rajnandgaon in Sessions Trial No.76/2004 whereby & whereunder learned Additionaf Sessions Judge after holding the accused/appellant guilty for commission of offence under Sections 307, 394 of the t.P.C., 25 (1) (b) and 27 (2) of the Arms Act, sentenpe^ hlm to undergo R.l. for seven years &paya flne of Rs.500/-, In default of payment of fine to further undergo R.l. for three months, to undergo R.l. for seven years & pay a fine of Rs.SOO/-, in default of payment of flne to further undergo R.i. for three months, to undergo R.l. for one ysar & pay a iine of Rs.200/-; in default of payment of flne to further undergo R.i. for two months and to undergo R.l. for seven years & pay '/ ^ ? ^- h ^fS-fas^ .!y..>—<.'^-» ft^, l'Bsi , ^,bH^i£^'^^A*^^ridA±^^^t^LrtIria^t C£f) >'IAV a flne of Rs.500/-, in defauit of payment of flne to further undergo R.i. three months, respectively. 2. The impugned judgment is challenged on the ground that without any clinching and credibie evidence, leamed trial Court has convicted and sentenced theappellant as aforementioned. 3. Case of the prosecution, in brief, is that on 19-12-2003 at about 6.45 a.m. when compfainant Tutsiram, who is a forest guard, was going aiong with Shailesh Ujwane, another forest guard, in a motorcycie by keeping the payment for distribution in the dickey of the motorcycle, two unknown persons holding guns in their hands stopped the compiainant in the forest area and asked as to what he was carrying in the dickey of the motorcycle, on which the complainant informed that he is taklng money for distribution in the village. The accused persons snatched the back containing Rs.1 ,08,200/- and on being resisted by the complainant, one of the accused persons flred with gun and assaulted Shaiiesh Ujwane, forest guard, as a result of which both the legs of Shailesh Ujwane received gun shot imuries. Thereafter, the accused persons ran away. The accused persons were in green colour dress. The matter was reported by the complainant vide F.I.R. Ex.P-1 jn which description of the accused is given. License bo.eks' registration book of the vehicie, insurance papers and blood stained pant of Shailesh Ujwane were seized from Shaitesh Ujwane vide Ex.P- 2. Other documents were seized from the complainant vide Ex.P-3. Three pieces of bullets were seized from the spot vide Ex.P-4. Injured Shailesh Ujwane was examined by Dr. S. Chaudhary (PW^) vide reportEx.P-13whofoundfollowing injuries:- '/, ^: ^ \ a. One injury betow knee on left side - X-ray shows that two pieces of buliets were seen below the wound oftibia; b. One injury below knee on right side - X-ray shows that two pieces of bullets were seen over middle side of tibia 6" below hand of tibia. 4. Site map Ex.P-17 was prepared by the Investigating Officer. The appeliants was taken intocustody vide Ex.P-18. Resin bag containing currency notes was recovered vide Exs.P-6 & P-7. One 12 bore country made pistoi was recovered vide Ex.P-8. Identification parade was conducted inside the jail in which complainant Shailesh Ujwane identifled the appellant vide Ex.P-1 1. After recording of the statements under Section 161 ofthe Cr.P-C. and after compietion of investigation, charge sheet has been flled fciefore the Additional Chief Judicial Magistrate, Dongargarh, who in turn, committed the case to the Court of Sessions Judge, Rajnandgaon, from where learned Additional Sessions Judge, received the case on transferfortrial. 5. in order to prove the guilt of the accused, the prosecution has examined as many as ten witnesses. Statement of the accused under Section 313 of the Cr.P.C. was recorded in which he denied the circumstances appearing against him, pieaded innocence and false ,, / •'' implication. / ^ 6. It is argued on behalf of the appellant that the appeltant has not committed any offence as alleged against him and he has been impiicated faisely. As regards complicity of the accused in the crime in question, the prosecution has adduced ocuiar and medical evidence. At the time of incident, injured witness Shailesh Kumar Ujwane (PW-4) was going along with complainant Tulsiram & Deputy Ranger K.R. J '/ ^ Ibi '^:. ^ Kaushik,..he was assaulted by the accused persons and received buliet injuries. This fact is not disputed and otherwise established with the statements of Shaiiesh Kumar Ujwane (PW-4) & Dr. S. Chaudhary (PW-5) who examined the injuries of injured Shailesh UJwane vide Ex.P-13. X-rayreportofShaileshisEx.P-12. » 7. Tulsiram Gwal (PW-1), the complainant, & Shailesh Kumar Ujwane (PW-4), both forest guards, have stated in their evidence that on the date of incident when they were going to the forest for payment of wages by Hero Honda motorcycle, they were stopped by the appellant and one another accused and were compelied to open the dickey of the motorcycle otherwise the accused persons would assault them with gun, on which they opened the dickey, when the complainant tried to resist, one accused fired gun shot as a result of which Shaiiesh Ujwane was injured. Thereafter, the accused persons snatehed the bag containing Rs.1,08.300/- and ran away. 8. Tulsiram Gwai (PW-1) lodged the F.I.R. vide Ex.P-1. Motorcycle, full pant &other papers have been seized vide Exs.P-2 & P-3. Used buiiet pieces were seized from the spot vide Ex.P-4. Identification parade was conducted inside the jail and appellant Shiv Prasad & other accused were got identffled vide Ex.P-5. Tulsiram Gwal (PW-1) tjas stated in his evidence that Article A-4, fuil pant of injured Shailesh was seized from Shailesh. He has also stated that the ctothes which the appellant and another co-accused were wearing at the time of incident were seized vide A-6 & A-7. The above evidence of Tulsiram Gwal (RA/-1) is supported by Gangadas Sahu (PW-3). 9. Umashankar Sahu (PW-8) has conducted identification parade in which Tulsiram (PW-1) & Shailesh Kumar Ujwane (PW-4) had identified the appellant along with other accused vide Ex.P-5. Defence has cross-examined PW-1 & PW-3, but it has not been able to elicit anything in their cross-examination to discredit their evidence. In other words, defence has not been abte to bring anything against the prosecution witnesses to discredit their testimonv. 10.P.C. Shrivastava (PW-10), Investigating Offlcer, has stated in his evidence that he has obtained sanction for prosecution of the accused persons under Section 39 of.the Arms Act vide Ex.P-29. 11 .After appreciating the evidence adduced on behalf of the prosecution, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 12.Admittedly, according to the case of the prosecution and the evidence adduced in the Court against the appellant, the appeiiant has committed robbery and at the time of commission of crime he has used deadiy weapon and attempted to commit the murder of Shailesh Ujwane. 13.The act of the appellant squarely fatls within the ambit of Section 397 of the I.P.C. for which the punishment is not iess than seven years, but the learned Additional Sessions Judge has not framed the charge of Section 397 of the I.P.C. The present appellant is in custody from 23-' 11-2003, as such, he hascompleted about more than 4 % years of imprisonment. The triai Court has already imposed the sentence of R.l. for seven years on the appellant for commission of oftenceunder Sections 307 & 394 of the I.P.C., on both the counts. In the circumstances, 1 do not flnd it proper, especially taking into consideration the sentence aiready imposed upon the appeilant, to u u lc^ ^: ^ o cemand the case for amending the charge when the appeliant has aiready served outthe sentence of more than 4 % years. 14.in the resuit, the appeal is devoid of merit, same is liable to be dismissed and it is accordingly, dismissed. Homa Sd/- T.P. Sharma Judge ^ u / .''