@ HIGH COURT OF CHHATTISGARHI BILASPUR Criminal Appeal No.21 ,of 2005 APPELLANTS: Prahlad Yadav and others Versus The State of Chhattisgarh RESPONDENT: Post for pronouncement of judgment on 10th AugustL 2009 g Sd/— ‘5 T.P. Sharma ] w; w J Judge x I HIGH COURT OF CHHATTISGARH‘ BILASPUR Criminal Appeal No.21 of 2005 : 1. Prahlad Yadav, S/o Kishun Yadav, n ) aged 29 Yrs. Surajdeo APPELLANTS (I Jail Shankar Thakur, S/o Thakur, aged 25 Yrs. Santosh Thakur, Thakur, aged 24 Yrs. All by occupation Agricultural, No.1 R/o Village Navapara, P.S. Ramanujganj, Distt. Sarguja (C.G.) No.2, R/o Vill. Deviganj, P.S. Ramanujganj, Distt. Sarguja (C.G.) No.3 R/o Vill. Tetardih, P.S. Ramanujganj, Distt. Sarguja (C.G.) Vel'SUS The State of Chhattisgarh, Through P.S. Ramanujganj, Distt. Sarguja (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} S/o Surajdeo RESPONDENT: t Present: , Mr. D.N. Prajapati, counsel for the appellants. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Single Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 10th AUQust, 2009) 1. This appeal is directed against the judgment of conviction and order of sentence dated 16—12-2004 passed by the Additional Sessions Judge (F.T.C.), Ramanujganj in Sessions Trial No.51/2004, whereby & whereunder learned Additional Sessions Judge after holding the accused/appellants guilty for commission of the offence of dacoity ‘& other offences, convicted & sentenced them as under: — Name of' the accused Conviction Sentence Prahlad Yadav,. Sec. 395 I.P.C. R.I. for ten years & fine of i months. Sec. 398 I.P.C. R.I. for ten years & fine of Rs.5,000/- each, in default months. @ " m onths. . nviction & sentees are chailengd n the round t witht ani of evnce tily e vidence of dtifiti o unknow on, th Cot b s ed an sened app th mi llega . ae ear larne counl for the partis nd ruse te pun judgnt as so t recod f the trial Court. . Case oi’ tio ha ienn g R/ l rdh P io s ping he, n gh o t dor and ol that‘som tive e m qud r o t r. A th im pilDev ws sug er, we ed he t at te, Ka’ a fferin from fev his if open t or n told Sonu ingh ha r husband is not rent on whh So Sg h at M le e e, Mam an rr. At at te, wo persons armed wi g nted int t h of Ka ev and asked about gun, he showed the place where he wa k whre t ou h and t om ad s ol Saam lit -—2003 the mtt reported lice Staon ang e b Kl pd id x.P'—. Licens of g was seid from complainant Kapil ev vide Ex.P-3. 5. .The accused persons were taken into custody in another case of dacoity. Accused Prahlad made discloser statement of Rs.6,240/-, one locket, country made pistol & one cartridge vide Ex.P-4A and the same were recovered at his instance vide Ex.P-10A. Accused Santosh Thakur made discloser statement of country made pistol along with cartridges & currency notes of Rs.4,000/- vide Ex.P-5A and the same were recovered at his instance vide Ex.P—11A. ‘ '*‘ Accused Shankar Thakur made discloser statement relating to Rs.8,500/— & country made pistol along with cartridge vide Ex.P-6A Co nc e o g tha ou y‘ota ide parcular th e iencaon f n pers e ur elow, ha convict d entc the ellants and ereby comtted ility. I hv hd ed se e a ped h imged me al he r o ‘the prosecun, in brief, is tt in the ntrveig niht of t“ & Dece‘er, 22 at aout mid nigh appev (P-1 6 7t“ mb 00 b 12 t Kil W), o Vilage Tetai, olice Statn Ramanujganj wa slee in his ous Sou Sin came t his house and knocked he o td e relas hav coe, he reeste fo pening he doo do ad S tt he pse ic nu inh told er th ama peop hav com a mes Neka Saka th im t th un eer o he ouse pil D s t gun s ept eupon hey took t te gun went ou fr the house n alo td that they are Lal al Naxaes. On 133 aer was in Po ti ,Ramujanj vid Ex.P-1 y api Dev. Spot map was repare ve E2 e un ze D Sec. 25 (1) R.I. for three years & fine of Arms Act Rs.1,000/— each, in default additional R.I. for six months. Sec. 27 (1) R.I. for three years & fine of Arms Act Rs.1,000/— each, in default additional R.I. for six and same were recovered at his instance vide Ex.P-13A. Accused Sudeshwar also made discioser statement of Rs.15,500/—, one ' Bharmar (fire arm) & substance for preparing cartridge vide Ex.P—7A and the same were recovered at his instance vide Ex.P-12A. Accused Bansidhar Yadav also made discioser statement Ex.P-9A relating to four receipts o'f gold jewellery and same were recovered at his instance. The accused persons were arrested and statements of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Ramanujganj who in turn committed the case to the Court of Sessions, Ambikapur, from where learned Additional Sessions Judge (F.T.C.~), Ramanujganj received the case on transfer for trial. u t In order to prove the guilt of the appellants, the prosecution has examine£d as many as 8 witnesses. Statements of the accused were recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against them and pleaded innocence & false implication. Defence has examined Antu Prasad Singh (DW-l) who has deposed that accused Bansidhar Yadav is not involved in any criminal case and he is not having any criminal antecedents. .After affording opportunity of hearing to the parties, learned dditional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. . Learned counsel for the appellants vehemently argued that the prosecution has not adduced any clinching evidence to connect the ppellants with the crime in question. The present F.I.R. has been lodged after three months of the incident when the accused persons were arrested in another case. The appellants were not known to the complainant, but no identification parade was conducted to identify the appellants and to establish the identity of the appellants. Witnesses examined by the prosecution have not supported the case of the prosecution and have specifically deposed that the accused persons are not known to them. Learned counsel placed reliance in the. matter of Mohanlal Gangaram Gehani v. State of Maharashtra'l in which it has been held by the Apex Court tha t identification ofrthe accused before the Court when he was no t 1 1982 STPL(LE) 11029 sc . A a own to the complainant has no value and cannot be relied upon. Learned counsel further placed reliance in the matter of Ahmed Bin Salam v. State of A.P.2 in 'which the Apex Court has held that in absence of cogent evidence relating to identification, conviction is not safe. Learned counsel also placed reliance in the matter of MuSku Pentu and Another v. State of A.P.3 in which the Andhra Pradesh High Court has held that accused persons not identified in the test identification parade, not safe for conviction under Section 395 of the I.P.C. Learned counsel lastly placed reliance in the matter of Hari Nath and another etc. v. State of U.P.4 in which the Apex Court has held that person known to the accused persons did not disclose the identity of accused in FIR raise reasonable doubt about their complICIty In the crime and test Identification parade conducted after unexplained delay of four months is not safe to rely On the other hand learned counsel appearing on behalf of the State/ - respondent supported the Judgment and submitted that the eVIdence adduced on behalf of the prosecution is suffICient for drawmg inference for commission of offence by the aforesaid appellants. Evidence of Kapil Dev (PW-1) & Sonu Khairwar (PW-2) is sufficient for drawing inference against the appellants. 10.In order to appreciate the contentions of the parties, I have examined the evidence of the witnesses adduced on behalf of the parties. 11.In he present case, accused Bansidhar Yadav has adduced the defence evidence of Antu Prasad Singh (DW-l) who has deposed that Bansidhar Yadav is not having any criminal antecedents. "\ However, Antu Prasad Singh (DW-l) has not stated anything to show that on the date of incident accused Bansidhar Yadav was not present at the place of incident. 12.Kapil Dev (PW—1) has deposed in his evidence that in the intervening night of 6th & 7th December, 2002 he was sleeping in his house, Sonu Singh called him and told that relatives have come, Sonu Singh W , also requested for opening the door at that time he was suffering from fever, his Wife woke up and opened the door, Sonu Singh asked 2 1999 STPL(LE) 26121 SC 3 2005 Cri LJ 1355 4 AIR 1988 SC 345 W ‘ . t about him and told that Mama had come, Mama means Neka Sarkar, on which his wife told that her husband is not present, whereupon two persons armed with gun entered into the house and directiy asked her about the gun, she indicated towards the place where the gun was 'kept, they took the gun of Kapil Dev and went away, and told that they are Naxalites. Kapil Dev (PW—1) has further deposed thathe has lodged the report on second day and after some time, he has seen the gun before the Police. 13.Sonu Singh (PW-2) has deposed that he knows accused Santosh Thakur, on the date of incident at about 12 mid night the accused persons came to him and demanded gun, he told them that he was not having gun, thereafter they went to the house of Kapil Dev and at their direction he called Kapil Dev, his wife opened the door, the accused persons entered into the house of Kapil Dev and took-out the gun£of Kapil‘Dev and went away. 14.J.P.N. Singh (PW-‘8), Inspector, has deposed that he has registered the F.I.R. on 13-3-2003 at the instance of Kapil Dev vide Ex.P-1 and prepared the spot map vide Ex.P-2. He has further deposed that he has recorded the discloser statements of the accused persons vide Exs.P-4 to P—9 and their instance he has recovered different articles vide Exs.P-lO to P-14. He has also recovered counter copy of license renewal application from Kapil Dev vide Ex.P—3 and arrested the accused persons. Bajrang Lal Agrawal (PW-4) & Kanhai Ram (PW—6) had supported the discloser statements of the accused persons and recovery at their instance. ,15.The accused persons were arrested in Crime No.19/2003 registered ~’ at Police Station Ramanujganj in the case of bus dacoity and the accused persons of this case were taken into custody and they have made discloser statements relating to the said case, the instant case and another case i.e. Crime No.126/2002 registered at Police Station Ramanujganj. 16.In the present case Kapil Dev (PW—1) & Sonu Singh (PW-2) are the only material witnesses who have not supported the case of the prosecution. They have deposed that they know accused Santosh Thakur. The Police have declared them hostile. Kapil Dev (PW-1) l has deposed that two persons entered into his house, but he has not i seen any of the accused. Sonu Singh (PW-2) has also not deposed. against any of the accused persons. 1.Discloser statements and recovery on the basis of discloser statements are relating to all the three offences, but in the present case Kapil Dev (PW—1) & Sonu Singh (PW-2) have not identified any person as miscreant of this case. ‘Kapil Dev has lodged the report after three months from the date of commission of offence when the F.I.R. in Crime No.19/2003 was lodged. He has not explained the delay in lodging the F.I.R. Fire arm gun has been recovered from accused Shankar Thakur vide Ex.P-13 rand no specific description or number has been mentioned inrEX.P-13. Identification of the said gun has not been conducted by the prosecution. In absence of evidanee of identification of the accused persons/appellants, as also of the gun and non-expression of delay in lodging the F.I.R., it is difficult£to hold that the appellants are the persons who have entered into the house of l<apil Dev and committed dacoity of gun. _18.Learned Court below has convicted & sentenced the appellants on the basis of‘discloser statements and recovery of articles relating to other offences, which is not admissible and relevant for the'present offence. In absence of cogent and reliable evidence, conviction & sentences of the appellants for the commission of the aforesaid offence is not sustainable. 19.Consequently, the appeal is allowed. Conviction & sentences of appellants Prahlad Yadav, Shankar Thakur & Santosh Thakur under Sections 395, 398 of the I.P.C., 25 (1) & 27 (1) of the Arms Act are liable to be set aside and they are hereby set aside. The appellants are acquitted of the said charges. They be set at liberty at once relating to this case. Fine amount, if deposited, shall be refunded to tm. l Sd/— l l ‘l T.P. Sharma Jl L JudgezW? he Soma 7