5fs£i^^Si ::;:':[l^-^-:::: : .:• •• '. INtHEHI6HCOUI^©F^HAt'rig6ARI-I^TBILASPUR CRIMI^L APPEAl. N©.^^ZOOS APPELLANT IN.TAl^SINCE 23.05.2000 . .,„ / T/41^5' ....- f:::.--i:on , .' 1.1^ ''.,.• -•••••— G-.T. S^nftS^ ...^.. Si^l\ ;.u71.}cata RESP@NC(gMT MOI.W^.WO S/o.RjdoWhalkho, agedcibou1-23^yeiars, Oecupatibn-l^drmer', R/oSr'Brn.Sar'angpur, P.S. RamanujgcKij, Distt.Surgujci[G.6.] ItyERsys STATEOR^I-lt-lAT-llES&AflH -Thrpygh^-P.g.iiRai'naBa.jgai'l,),!^ OisW. 5UR6y*rA[CBN] CRJMINAL APPEALU/S 374[2] ORGfyEMlNAl. PROCEGURECQDE. '<;. |g^tiiasH|plWBBBa7 ^IIl^illJiiijS'JI '^.:T:;Ss*:t:S^(^:: ^ft";:;&:^ilK;;^?^li^i@y^c 'S'i^l^li; llfejill?!^W^^^Sl^^l'^^:!^K^. ••^".- / '^% gs li^^s^ ',/ . ^'•y :*;' HIGH COURT OF CHHAmSGARH AT BILASPUift -^" ~ (Hon. Mr. 3ustice PritmkerDiwaker) Criminal Appeal No. 86 of 2005 APPELLANTS Tahir Ansari and 5 others VERSUS ReSPONDENT ^fate of Chhattisgarh Shn Ravi Bhagat, counsel for fche appellants Sl-iri Pravin Das, Dy. G.A. for the State CrlrBlnaJ_Atioeal No. 145 of 2005 APPEU..ANT^ Niyamafc Ansari VERSUS RESPONDENT State of Chhattisgarh iS3®S?' Shri Ravi Bhagat, counse! for the appellant Shri Pravin Das, Dy. G.A. forthe State CriifninalApoeal No. 247 of 2005 APPELLANT Ahil Khalkho VERSUS RESPONDENT State or Chhafctisgarh ; i<ysu'—s:wjK:^ ^W2i tSWSi ll®\|<S'& :/g^ l''iC;I^E^' ^^l^^-s^ '*^^-: ^ssgk. ^^s> •'^a?5 Shri Manoj Mishra under tfie authority of Snri A. N. Pandey, counsel for the appellant Shri Pravin Das, Dy. G.A. and Shri Niraj Mehta, counsel for the State - s CRJMIhlAL APPEALS UNDER SECTXON 374 {•J) OF TH6 _COi3E OF C%I?4Z%AL P^OCEDu'RE. 3 U D<3M ENT (51.04.2011) . •;':iyB;?iuEiJf^ \ "3 '~y ^:t-«» /»-''.^^,, I-"^'^'•"-^ %?Y^ ii3^cs ^ ilsi .iSs -jffji ^h'&^i W3VX3sS 'w&s^ss^- -%- Since the aforementioned three appeals arise out of the \ same judgment dated 24.01.2005 passed by Additional Ssssions Judge (F.T.C), Ramanujganj, District - Surguja in Sesslons Trial No. 271/2000, they are being disposed of by this commonjudgment. 2. The accused/appeltants Tahlr Ansari, Alwad, Lagan @Thuru and R.ustan'i.Ansari have been convicted under Sectlons 395 and 397- of IPC and sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 5,000 u/s 395 and rigorous imprisonment for ten years u/s 397 whereas the appellante Manoranjan @ Montu, Anll Khatkho and Anil Tigga have been convicted under Sections 395, 397 of IPC and 25 (1) and 27 of Arms Act and sentenced to undergo rigorous imprisonment for three years and pay fine of Rs.3000 u/s 25 (1) and rigorous imprisonment for three years and pay fine of Rs. 2000 u/s 27. The accused/appeltant Nlyamat Ansari has been convicted only under Sections 25 (l) and 27 of Arms Art and sentenced to undergo rigorpus imprisonment for three years and pay fine of Rs.3000 u/s ^5 (1) and rigorous imprisonment for three years and pay fine of Rs. 2000 U/S 27, ptus default stipulations.'AII ths sentences were directed to run concurrently. 3. Facts of the case in brief are that on 11.05.2000 at about 8 p.m. one passeisger bus bearing registration No. GJ 5Z 8817 was stopped In between villages Ramanujgan] and Aaragahl by 7-8 unknown persons carr/ing arms in their hands. It is alleged that the accused persons first switched off the head light of £t?e bus, asked the passengers to get ctown from the bus one- by one and thereafter roObed watches, money and other valuable articles. FtR Ex. P-37 was todged by Rajendra Prasad Gupta (RA/-7) on 12.05.2000 at about 12.30 a.m, at potice Station Balrampur which was '^-.. ^:!...^fcl.S-^1 ^ils^a^ —3" transferred to Potlce S^tlon Ramanujganj under whose territory the offence had taken place and it was registered vide Ex. P-47. Based on this report, offence under Section 395 of IPC was registereci against 7-8 unknown persons. Accused/appetlants Tahir Ansari, Alwad, Lagan, Anil Tigga, Manoranjan, Anll Khalkho and Nlyamat Ansarl were arrested on 23.05.2000 vjde arrest meirio Exs. P-27 to P-33whereas ^i Rustam Ansarl was arrested on 08.06.2000 vide arred: memo Ex. P-39. Ukewise e acquitted accused Mahesh Kherwar and Rohit Gupta were arrested on 20.02.2001 and 24.4.2001 respectlvety. On the basis of thelr memorandum/ seizures were made and after investlgation, Challan was filed on 16.08.2000 for the offence under Secttons 395, 397, 109, 1208 ofIPC and 25 and 27 of Anns Act against 10 persons including Rohit Kumar Gupta and Mahesh Kherwar who have been shown as absconders. However the Court below framed charge agalnst the accused/appeltants Rustam Ansari, Lagan @ Thuru, Alwad, Tahir Ansari, Mahesh Kherwar and Rohit Gupta under Sectlons 395 and 397 of IPC whereas against the accused/appellants, Anil Tigga, Manoranjan, Niyamat Ansari and Anil Khelkho under Sectlons395, 397 of IPC and 25 (l-B) (a) and 27 of Arms Act. 4. So as to hotd the accused persons guilfry, prosecution has examined 27 witnesses insupport of (ts case. Statements ^;.. of the accussd persons were atso recorded under section 313 of the Code of Crlminal Procedure in whtch they denied the charges tevelled against them anct.pteaded their innocence and fatse implication in the case. 5. After hearing the parties the trial Court has acquitted the accused/appetlants Rohit. Kumar Gupta and Mahesh Kherwar of the offence under Sections' 395 and 397 of IPC but 'Y... •^ -<->•-.?<'^'•: S^SS '•:'':^-'K ^s^s^^ 'Wfisi'iS^ 'vSs-S:.^^ -4- convicted and sentencedthe other accused/appellants as \ . mentioned In paragraph No.2 of this judgment. 6. Leamed counsel'for the appellants have argued that as per the case of the^prosecution itsetf the EtR was lodged against unknown persons, in the test Identification parade (Ex. P-35) conducted on 23.05.2000 by R. L. Dewangan (PW- 6), only accused/appettai'its Anil Khalkho and Manoranjan (§> Montu have been identified by the complainant Rajendra Prasad Gupta (PW-7) and therefore question of conviction of the accused/appellants Tahir Ansari, Alwad, Rustam Ansari, Lagan and Anil Tigga under Sections 395 and 397 does not arlse. In respect of identified accused Manoranjan and Anil Khatkho, it has been argued that in the examinatlon in chief the complalnant Rajendra Prasad Gupta (PW-7) has stated that on the date of Incldent he knew the accused/appellants Manranjan and Anll Tigga but in the FIR he has not disdosed their namss and the same was lodged against unknown persons and therefore the very identlfication of appellants Manoranjan and Anil Khatkho becomes doubtful. They furtrier submit that in paragraph-3 of his cross-examination this witness has categorically deposed that he coulcl not see any of the accused persons because it was dark night and in paragraph-5 he has stated that.all the accused persons had covered their faces and therefore the identification of the appellants Manoranjan "and Anil Khalkho becomes doubtful and thatbeing so the same Is of no significance. It has been further argued that Ex. P-8- Is, the memos-andum on whlch basis Rs. 200 has been seized from Rustam Ansari vide seizure memo B<. P-9, Ex. P-10 is the memorandum on which basis front 'muzzle loading gun has been seized from Anil Kumar Tigga vide seizure memo Ex. P-17, Ex. P-ll is the memorandum on which basis Rs.1900, one dagger, one revotver, one country made pistot and ons watch have been t,;- .•t .'.,yy' ^. »V i'",: 1-'::. MiJNIsf-'''''':- f^f^ ^S'^^'J^^' -5' seized from Anll Khalkfto vide seizure memo Ex. P-18, Ex. P-12 is the memorandum on which basis one country made pistol, 315 bore ttve cajtridges and one knife have been selzed from Manoranjan vide seizure memo Ex. P-19, Ex. P- 13 ls the memorandum on which basis slx round pistol has been seized from Niyamat Ansart vide setzure memo B<. P-20, Ex. P-14 is the memorandym on which basis Rs. 2000, one ^ watch, one towel have been selzed from Tahir Ansari vide seteure memo Ex. P-21, Ex. P-15 is the memorandum on which basis slippers, Rs. 25 have been seized from Atwad vide seizure memo Ex. P-22, Ex. P-16 is the memorandum on which basis Rs. 920 and one bamboo have been seized from Lagan vide seizure memo Ex. P-23, Ex. P-10 is the memorandum on whlch basis Rs. 3850 and Rs. 2,000, two watches, have been seized from Anit KumarTlgga vide seizure memo Ex. P-24. According to the leamed counsel, the sslzure witness namely Bajranglal Agrawat (PW-4) has though supported ttie prosecution case but .lagdish Rai (PW-22) has not supported the prosecution case and tumed hostiie. It has been further argued that as the seized artictes have not been put to Identification but for one watch, the entlre seizure loses its value and on this count also the accused/appellants cannot be convlcted under sections 395 and 397 of IPC. In respecfc of convlctton of accused/appettants Manoranjan, Anil Tigga, Niyamat Ansari and Anill^ialkho under section25 (1) and 27 of the Arms Act, it has been argued that as one ssizure witness nameiy Jagdish (PW-22) has not jsupported the prosecution case/ the entire seizure becomes doubtful and therefore benefit of doubt must go in their favour. Lastty it has been argued that the appellant Manoranjan has already served jail sentenced for about 6 years 9 months, Anil Kumar Tigga for about 7 years 8 months, Anfl Kumar Khatkho for about 6 years 8 months and Niyamat Ansan for about 7 -sas* ~-ei-.tS'^ --"T"-^ •:i£SS6" •V'.'-'': i£»iS \y"s^fSfy ^•-^1.-^.»t"frl:-^:\^'~... ^ISssSS^ ^a3S5sy -6- months 16 days, ^refore It is ctear that appetlants Manoranjan, Anli Kumar Khatkho ,and Anil Kumar Tigga have already sen/ed entfre jail sentence of 3 years in respect of Arms Act and it has been pleaded that the Jail sentence of Niyamat Ansari may be reduced to the period already under gone by him. 7. On the other hand supporting the impugned judgmentit v has been argued byShri Das and Smt. Ghai, leamed counsel for the State that despite someshort-comingson the side of prosecutlon, the act of the accused/appellants are as such where no teniency can be shown to them. it has been argued that the manner in which they looted alt the passengers of the bus shows the gravity of the offence. Leamed State counset however do not dispute that in the test identificatlon parade but for Anll Khalkho and Manoranjan the other accused/appellants were not identified. They furttier su&mlt that the conviction of ttie aecused/appeilants Manoranjan, Anit Tigga, Niysmat Ansari and Anil Khaikho under Sections 25 (l) and 27 of Arms Act is in accordance with law in view of the memQrandum and seizure whlch have been duly proved by Bajranglal Agrawal (PW-4). It has been further argued that the weapons seized from Manoranjan, Anil Tigga, Niyamat Ansari and Anit Khalkho were examlned by armourer Tneodar Lakra (PW-14) and he found atl the weapons in worklng condltion vide Ex. P-14. ^v. 8. Dr. B. R.. Ratre (PW-l) who was examined twlce by the prosecution as PW-i and PW-20 h'ad medically examined atl the accused/appeltants vlde Exs. P-l to P-7. Munni Mahto (PW-2) was a passesnger of the said bus has stated that after stopping the bus tha accused persons caused alt the passengers to get down. Me has stated that the accused persons fobbed sitver anktets of hls wife but he onnot telt as ^:< -7- to it was the accused persons who are present In the Court \ had robbed. Vlmal Kumar Agrawal (PW-3) is a witness or memorandum and seizure Exs. P-8 and P-9 has not supported the prosecution case and turned hostite. Bajranglal Agrawal (PW-4) is a witness of memorandum Exs. P-10 to P-16/ seizure Exs. P-17 to P-24 and arrest memo Exs. P-29 to P-33 has supported the prosecuti.on case. Srjpati (PW-5) was a "j', passenger tFaveting in th^ bus has not supported the prosecution case and turned hostile. R. L Dewangan (PW-6) is the Tahsildar who had conducted the test identification parade (Ex. P-35) and prepared identification memo Ex. P-36 has stated that the complalnant Rajendra Gupta had identified the appellants Manoranjan and Anil Khalkho and atso identified hls watch vide articte Ex.P-36. Rajendra Gupta (PW-7), the complainant has stated that on the date of Incidenl whtle he wastraveling in the bus, the said bus was stopped by 8-10 armed persons and committed the robbery. In test identification parade he had idenflfied the appellants Manoranjan and Anil Khalkho and also identified his watch when the same was put for identification vide Ex. P-36. However, in paragraph-7 of his cross-examination this witness has stated that he had not identifled any of the accused persons nor he had disclosed their names at the time of lodging the FIR. Rajan Ram (PW-8) was traveting in the other vehicle when the passengers of the bys in quesyon were robbed has stated that 8-10 persons were committing the robbery but he tias not identified any of the accused persons. According to thts wftness nb .robbery whatsoever was committed from him. Birju Ram (PW-9) has made almost similar statement as made by Ranjan Ram (PW-8). Umesh Kumar (PW-10) was also traveling in another veh»cle when the bus in question was rotoed has stated that hts vehide was also stopped by the aGCuseci persons,Rs.l200 were T^- ..-^'' ,"*^:- -^- taken from hlm and he was also slapped by them. Me \ however has not stated. anything against the accused/appellants. M. K. Tiwari (PW-ll), the Station Mose Officer, Ramanujganj had done part of investigation. Dikeswar Singh (PW212) is the Patwari who had prepared spot map Ex.P-43. Kameswar Prasad Mehta (PW-13) was a passenger in the said bys has stated that after stopping the bus Rs.90 were l6otedifrom him but he has not stlted anything against the accused/appellants. Theodor Lakra (PW- 14) is the armourer who had examlned the weapons seized from the accused/appellants has Stated that the weapons were in working condition vide Ex.P-40, Persuram (PW-15), Ashok Jaiswal (PW-16), Bigu Das (PW-17) and Lalchand (PW- 18) are the witnesses to memorandum Ex.P-44, P-45B & p- 46A, P-45B and P-14 respectively have not supported the prosecution case and have been declared hostlle. P. S. Mahllane (PW-19) who recorded the memorandum of Mahesh has supported the prosecutlon case. Dr. B. R. Ratre (PW-20) was examined to prove the medical report In respect of the, Injured Surendra Kumarand Subodh Kumarwhose medicar reports were submitted by Dr. Rajiv Kumar vide Exs. P-45 and P-46 had confirmed the signature of the said Dr. Rajiv Kumar. Brijnath Sai (PW-21), the Mead Constable had recorded the FIR Ex. P-37. Jagdish Rai (PW-22) has not supported the prosecutlon case and tumed hostlle. M. S. Rathlya (PW-23), the Assistant Sub inspectbr ts a wltness of seizure of sword Ex.p-44A and stlck Ex. P-45A form the spot has supported the prosecution case. Bamkesh Kumar Singh (PW-24), the bus driver has supported the incident but has not stated anything against the accused/appellants. The Head Constable Krishn Kumar Kosle (RA/-25) had done part of investigatton. -O.P.Singh (PW-26), Assistant Grade-m hss proved the sanction to prosecute the accused/appeffants under the lilfi -^^ :a .:'i.i'.i»i l ' •l y^^;i » u -?-".^. <-• ;1 ^9 ?sS^^- :t7^i^.A ',. ..,<:.•:.. \'li .''• :;' -q- provisions of Arms Act vide Exs. P-48 and P-49 has supported the prosecutlon case. Surendra Upadhyay (PW-27), hetper or the bus hassupported the occurrenceof the incident but has not stated anything against the appellants. He is also a seizure witness of Exs. P-44A and P-45B. 9. Mlnute examination of the evldence makes it clear that out of 6 accused/appettants (^ly Anil Khalkho and Manoranjan have been lcientified by the complainant Rajendra Gupta (PW- 7) in the identification parade vide Ex.P-35 held on 23.05.2000. In respect of accused/appellants Niyamat Ansari and Rustam Ansari, no test identlfication parade was conducted, It is said that Rajendra Gupta (PW-7) had (dentified accused Anil Khalkho and Manoranjan in test identification parade however in cross-examination/ thls witness has categoricalty deposed that the incident had taken place in dark night, that e accused persons had covered their faces, therefore he could not identify any of them. In view'of this statemsnt nothing remains in the identification parade and it can be easily held that none of the accused/appeltants has been identified by Rajendra Gupta (PW-7). Further the only Identified article is the Titan watch seized from accused Anit Khalkho which is said to have been identified by Rajenctra Gupta vide Ex. P-36 bul the same is not very conctusive as proper mlxlng of watches were not done and in the FIR lodged by the comptainant proper descriptlon. of thearticles was not given. That apart, one more Titan watch alleged to have been sei-zed from the appetlant Tahir Ansari whlch was not-put fbr identification. 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It has been informed by the respective counsel appearing for the State and the appellants trtat Manoranjan @ Montu, Anil Tigga and Ani! Khalkho have already remained in jait for more than 6 years and thus they have undergone the entire sentence imposed on them under sections 25 (1) and 27 qf Arms Act. In view of this, these three accused/appellants are not required to be sent back to jail. The appellants Tahir Ansari, Mnoranjan @ Montu, Anil Tigga, Alwad, Rustam Ansarij'and Anil Khalkho are already on bait and therefore their baij bonds stand discharged, It is reported that the appeilant Lagan @ Thuru is stiil in jait and therefore he is directed to be set free forthwith if not required in any other case. ll. The sentence imposed on the appellant Niyamat Ansari to undergo rigorous imprisonment for three years under Sections 25 (1) and 27 of Arms Act is maintained. It has been informed by Shri Bhagat, leamed counset for the appellants that the appellant Niyamat Ansari has remained in jaij only for 7 months and 16 days and therefore the period already spent by him in jail shall be adjusted from the total sentence of three years. As the appetlantNiyamat Ansari is on bail, his bail bonds stand cancelled and he is directed to be sent back to jail forthwith to sen/e out the remaining part or the jail sentence. 12. Appeal thus partly succeeds. V: Sd/- Pritinker Diwaker Judge Judge " g .^fK