APPELLANT In Jail HIGH COIIRT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 317 Of 2007 Budhu Ram VERSUS RESPONDBNT The State of Chhattisgarh, Post for pronouncement of Judement on 25 /8/2QQ9. Sd/- T.P. Sharma Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 317 Of 2007 APPBLLANT InJaU VERSUS RBSPQNDENT Budhu Ram S/o Ram Kishun Vishwakanna, aged about 29 years, resident of ViMage Bhitti Kala (Majhapara), P.S. Ambikapur Disrict Siirguja (CG). The State of Chhatdsgarh, fhrough the PoUce Station Ambikapur, District Surguja(C.G.). MBMORANDUM OF CRIMINAL APPBAL UNDER SBCTION 374 (21 OF Cr. P.C. (SB :Hon>ble Mr.T.P. Sharma J.) Present:-. Mr. Sunil Tripathi, Advocate for the appellant. Mr. Akhil Mishra, Dy. G.A. for the State/respondent. JUDGBMBNT (Passedon 25/8/2009) This crimmal appeal is directed against fhe judgment of conviction and order of senteace dated 28/3/2007 passed by fhe leamed Special Sessions Judge under Schedule Caste and Schedule Tribe (Prevention of Atrocity) Act, 1989, Distdct Suiguja at Ambikapur ia Sessions Trial No, 406/2000 whercby aad where under leamed Special Judge after holding fhe appeUant gmlty for the offence punishable uader Section 395 and 397 ofthe Indiaa Penal Code convicted aad sentenced ngorous imprisonment for 5 years aad fiine of Rs. 100/- ia default of fine additional rigorous uaprisoiiment for 1 month aad rigorous iaiprisomnent for 7 years aad fine of Rs. 100/- in default of fine additional rigorous impnsonment for 1 monfh. Judgment of conviction aad order of sentence is chaUenged on titie ground that wifhout a3iy credible and clmchmg evidence leamed Special ^> i.' ^uniuuw Judge has convicted and sentenced fhe appeUaat aforeiaentioned and fhereby committed an inegalily, The Prosecution case m brief :- On 4/9/2000 on 9 P. M. PW2 Raianarayaa Dubey was goiag to Lakhanpur from Ambikapur by toruck No. M.P. 24C1005 near village Bhitti Kala appeUaat along with ofher accused persons intercepted fhe tnick when PW2 Ramnarayaa Dubey got down fi^>m fhe truck fhen accused and other persons who were armed wifh sword aad stick demaaded money. They snatched Rs. 500/- from PW2 Ramnarayan Dubey. They were 5 to 8 m number Ramnarayaa Dubey caught hold the present appellaiit, ofher accused fled away from fhe spot. They took the accused to fhe police station Lakhaapur wherc he lodged fhe First Information Report vide P-9 under 0/2000. AppeUant was sent for niedical examiaation vide P-2. Rs. 150/- was recovered from Raninarayaii Dubey vide P-3, One iron sword aad Rs. 550/- was rccovered froin fhe present appeUant Budhu Ranx. Currency notes aiid other articles were seized from other accused persons on the basis of disclosure statemente vide Exs, P-5, P-6, P-7 & P-8, First mforaiation Report was lodged in the PoUce Station Surguja Vide Ex, P- 10-498/2000. Accused were arrested. Statements ofthe witoesses were recorded under Section 161 ofthe Code ofCrimmal Procedxire, 1973 (in short 'the code3), Watch, Torch, Rmg were identified by fhe Ramnarayaa Dubey vide P-24. After completion ofthe investigation charge sheet was filed before fhe Chief Judicial Magistrate, Ambikapur who m tum committed fhe case to fhe Court of Sessions Jude, Ainbikapur./Learaed Additional Sessions Judge/ Special Judge received fhe case on traasfer, Fz ^' 8. In order to prove fhe guilt of the accused persons prosecution examined as weU as 8 witnesses, exammation of the accused persons were conducted under Section 313 offhe Code of Criiainal Procedurc, 1973 (ia short fhe code) where fhey denied circumstaaces appearing against them, imiocency aad false implication have been claimed. After affordiag an opportunity of fhe hearing to fhe parties learaed Sessions Judge convicted and sentenced ftie appeUaat Budhu Raoi as aforementioned aad acquitted the rest accused person m absence of cUnchiag evidence agamst fhem, Leamed counsel for the pardes are heard. Judgment impugned aad record ofcoiuts below perused. Learaed couiisel for fhie appellant argued fhat present appellaat was ia drunken state he was movmg near Bhitti Kala where offence of Dacoiti took place. After conmussion of Dacoiti assailaats fled away from spot.. The complamaiit R.N, Dubey, owner and driver of the truck foiiad Present appeUaat who was not Dacoit, was under di^lcen condition moving near the place of iacident, they caught hold aad fhey took fhe appeUaat PoUce Station aad fhey lodged fhe report agaiast fhe present appellaat aad ofher accused, On fhe ofher haad, leanied counsel for fhe State/respondent has supported fhe judgment aad argued fhat appeUant along wifh other accused persons have committed ofiFence of Dacoiti ofher accused persons have been acquitted on fhe ground of identification, Present appellaat was caught red haaded by fhe coinplainant and other witaesses on fhe spot whoin fhey took fhe poUce station aad has lodged tlie report, Leamed Special Sessions Judge has convicted aad sentenced «/t<w%-^-. ?^3^,. -^ fhe appellaat on the basis of credible aad clmchmg evidence adduced on behalf of fhe prosecution. 9, In order to appreciate the contention oftiie parties, I have examiaed the statement of the witaesses adduced on behalf of the prosecution. In fhe prcsent case Leamed Special Sessions Judge/Additional Sessions Judge has acquitted 7 accused persons aad convicted only present appeUaat/accused. His present at fhe spot has not been disputed by the appeUaat, Defence has taken speci&c defence fhat present appellaat was moviag around the place of iacident. He has not committed aay Dacoiti, He was not a member of Dacoit. The aUeged asssdlaats Ued away jfrom fhe spot after conuiiitting of fhe Dacoiti but inider suspicion, present appeUaat was caught hold by the coniplmaat and ofher witaesses. 10. PW2 Ramnarayan Dubey, complauiaat has deposed ia his evidence that at tiiae of incident at about 9,30 he was traveliag iii a truck froin Ainbikapur to Lakhaapur when fhey reached near Bhitti accused persons iatercepted the truck when he got down firom fhie truck fhen appellaat along with other accused persons who were armed with sword aad stick deiaaaded laoney aad snatched Rs. 500/- froni him. They also snatched money and ofher artlcles from driver aad owner of fhe truck aad fhey also assaulted fhein. At tiiat tiine appeUaat was haviag sword aad he had consuined Uquor. He was bearmg Lunggi PW2 Ramnarayan Dubey has also deposed fhat accused persons has snatched his inoney, he was aoiioyed with fhe accused persons aad he assaulted fhe accused by fists aad accused fell down ia fhe laiid. They took the accused ia a tnick, Rest accused persons fled away, Accused was holdmg sword. They took fhe accused to fhe poUce station Lakhaapur. Prcsent appellaat told fhe name of other accused persons aiid he lodged the 5— report vide P-1, He was sent for miedical exaniination 3 currency uotes of Rs. 50/- were seized from hioi vide Ex. P-3. PW3 BakU Ahmed owner of fhe truck who was settmg ia the truck has also supported the commission of the Dacoiti aad has deposed that fhe present appeUaat was also armed with sword who was caught hold by coniplaiaaiit Ramnarayaa Dubey. They have snatched the sword and fhey took him ia a truck to the Police Station PW1 Subhashdas Station In-charge of fhe PoUce Station Lakhanpur has deposed fhat on 4/9/2000 he has rcgistered the First Information Report vide P-1 aad has sent injured Ramnarayaii Dubey to ftie hospital for medical exaoiiaation vide P-2, He has also seized 3 currency notes of Rs. 50/- froni the Rainnarayaa Dubey vide P-3 aad one sword aad Rs. 550/- from fhe prcsent accused vide P-4. 11. Nofhiag has been suggested rclatiag to consuinption of liquor aad othenvise presence of the appeUaat on the spot by fhe present appeUaat to this witaess defence has also crossed examiaed PW3 Vakfl Ahmad who has speci&caUy deposed fhat accused/appellaat Budhu Ram was holdiag sword at the tmie offhe cominission ofthe oflfence, The evidence of PW2 Ramnarayaa Dubey, PW3 Vakil Ahmad are sufficient for drawiag the iaference fhat ofience of Dacoiti have been committed by 8 persons aad out of 8 peraons present appeUant was caught hold on fhe spot by fhis wifaiess aad fliey took the present appellaat to fhe police station Lakhaapur where after lodging fhe report. One sword aad Rs. 550/- has been seized from fhe appeUaat vide P-4. First Information Report Ex, P- It also reveals that complamaat aad truck owner had produced the present appeUaat in. fhe poUce station, These stateiaents are suf&cient for drawiag fhe iaference fhat present appeUaat has committed fhe " ^ ^/^ offence of Dacoiti aad was holdiag deadly weapon sword wifhout Ucense and has used sword ia tihie commission offhe Dacoiti. 12. After appreciatmg fhe evidence available on record learaed Special Judge has convicted aad sentenced fhe present appellaat for fhe offence punishable under Sections 395 and 397 of fhe Indiaa Penal and convicted aad sentenced rigorous miprisonment for 5 years and fine of Rs, 100/- m default of fme additional rigorous imprisonment for 1 inonth aad rigorous tcaprisoimient for 7 years aad fine of Rs. 100/- ia default of fine additional rigorous imprisoiunent for 1 inonfh. Section 397 of fhe Indiaa Penal Code does not provide aay substaative offence but provide minimum punishment ia case ofrobbeiy or Dacoiti by using deadly weapon. The aforesaid offence, punishable iinder Section 397 of Indiaa Penal Code is a exaggerated form of Dacoiti or robbery and no iadependent conviction aad sentence are legatly sustaiaable under Sections 395 aad 397 ofthe Indian Penal Code. 13. For fhe foregomg reasons, fhe judgment requires modi&cation. Consequenfly, fhe appeal is partly allowed aad iadependent conviction of fhe appellaat under Section 395 aad 397 of the Indiaa Penal Code is modified. Appellaat is convicted under Sections 395 read wifh 397 of the Indian Penal Code aad ia. stead of iadependent sentence appeUaat is sentenced to Rigorous imprisormient for 7 years aad fine ofRs. 100/- ia default additional rigorous ioiprisonment for 1 inonfh. Sd/- ^ p. sharma Judge