l mmtlllmmHill!!!”HM 058697 Smgk Qantil (€{mman f Ihv'’ THE “IGH CGURI‘ Of‘ I'I’KDHK’A PRADESH EAT J23ABALWJR Carmina} Appmll Ne. %/1993 § I$hwar aethftS/a Niraxnj an $e2t1 aged about 30 yeara/msident of Ch‘haawar Pgs.mmgir digtrict sunéergaix‘a Orrsa u MPELLANT no :imLZ V$f$u$ Etate 0f MP. thraggh Di$tricm Magmtratee Raigarh‘) . « Rwgmm'mgg him-109.? APFmkL UNDER $‘ECTXON 374/ (Z) OF THE CODE OF S g i k @ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Aggeal No. 599 of 1993 APPELLANT Ishwar Seth VERSUS RESPONDENT State of Madhya Pradesh Criminal AQQeaI N0. 696 of 1993 APPELLANTS Usatram and others VERSUS RESPONDENT State of Madhya Pradesh Shri V.R. Tiwari, counsel for the appellants. Shri Neeraj Mehta PL for respondent/State. CRIMINAL APPEALS UNDER SECTION 374 (2! OF THE CODE ’ ’ OF CRIMINAL PROCEDURE. . J U D G M E N'T (23.03.201 0) Since the aforementioned two appeals arise of the same judgment dated 13.5.1993 passed by Additional Sessions Judge Raigarh in Sessions Trial No. 42/1992, they are disposed of by this common judgment: Appellants namely lshwar Seth, Sahbo, Bholanath, Ghundu and Nars‘ingh have been convicted under Section 395 IPC and sentenced to undergo rigorous imprisonment for three years each, appellant Usatram has been convicted‘u/s 395/397 IPC and sentenced to undergo rigorous imprisonment for seven years. Appellant Ghundu has been convicted under Section 450 IPC also and sentenced to undergo rigorousximprisonment for five years. 2. Case of the prosecution in brief is that on 1.4.1990 FIR (EXP-1) was lodged by Manbedh (PW-1) alleging that in the intervening night of 31.3.1990 and 1.4.1990 when he along with s .A v.2, his family members was sleeping in his house along, he heard the bark of the dogs and when he tried to open the door he found that the it was bolted from outside. When he and his son came out from the other door, 7-8 persons were found standing there and when he made an enquiry as to who they were, they said that they would open fire. When he was to get back, somebody fired at him causing injury on his elbow, stomach and back and also on the stomach of his son. Then all the accused persons entered his house and committed the dacoity of Cash of Rs. 53,000 and also the gold. Extensive investigation was done by the police but as the police could not trace the accused persons, the matter was closed. However, it appears that when in some other case they were apprehended, the present case was re-opened. After arrest, identification parade was held and then the challan was filed against them. 3. In order to establish the guilt of the accused/appellants the prosecution has examined 10 witnesses. Statements of the accused/appellants were also recorded under Section 313 of. the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants for the offence as mentioned above. During the pendency of appeals, appellant Bhola Nath has expired and thetefore, presentappeals relate to lshwar, Usatram, Sahbo alias Sahablal, Ghundu and Narsingh. 5. Heard counsel for the parties and perused the material available on record including the judgment under challenge. Counsel for the appellants submits that the" entire identification of the accused/appellants has been disbelieved by the Court below on the ground that it was held after about 13 months from the date of incident and proper mixing of the ' 6. l accused persons was not done. He submits that as according to the case of prosecution itself the accused persons had covered their faces with cloth and there was no Iight on the place of incident, Test Identification Parade itself becomes doubtful. He submits that the only evidence against the accused/appellants Usatram and Ghundu is their confessional statement made by them under Section 164 of the Code of Criminal Procedure and as the said confession was not a voluntary one, it cannot be accepted in the eye of law. In respect of accused/appellants Ishwar, Sahbo alias Sahablal, and Narsingh, he submits that there is no evidence on record to show their complicity in the crime in question. He submits that as no seizure has been made from the accused persons, they cannot be convicted under Sections 395 and 397 IPC. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that so far as accused Usatram and Ghundu are concerned, on the basis of their confessional statement recorded under Section 164 of the Cod’e of Criminal Procedure, their conviction for the offences mentioned above is strictly in accordance with law. In respect of remaining accused persons he submits that as they have been properly identified, finding of the trial Court disbelieving the identification is not in accordance with law. 8. Complainant Manbodh (PW-1) has stated in his evidence that on the date of incident'he along with his family members was sleeping in his house and when at about 12 in the night after hearing the bark of the dogs, he tried to open the door but it was found bolted from out-side. Thereafter, when he along with his son came out froaggthe other door, he.,saw eight persons standing near his house. When he asked-as to who they were, they said to fire at him. Subsequently, he was to get back to the house, somebody fired at him causing Lnjury on his elbow, back and stomach. His son Padamlochan had also sustained injury on his stomach. After he entered his house, the accused persons also followed him and started abusing him and his family members. Accotding to the complainant/victim, the accused persons also took away cash of Rs. 53,000, one s @ yj ’L(’_ gold ornaments weighing 18 tolas, silver ornaments weighing 17 tolas‘ three torches and one bicycle. He has stated that some of the accused persons had covered their faces. In the identification parade conducted on 2.5.1991 he identified the accused persons namely Ghundu, Usatram, Bhola Nath, Narsingh, Sahablal and lshwar vide identification memo Ex. P~2. Padamlochan (PW-2) has also supported the statement made by the..complainant/vlctim and he too had identified all the accused persons. Dr. Shailednra Upadyaya who had medically examined the son of the complainant namely Padamlochan and found four injuries on his body. R.K. Anant (PW—9) whohad conducted the Test Identification Parade has supported the case of the prosecution stating that it was done by mixing the accused persons properly. 9. From perusal of the record it thus appears that accused Usatram, Ghundu and deceased/accused Bhola Nath have made categorical confessional statement recorded under Section 164 of the Code of Criminal Procedure. Finding recorded by‘the Court below in paragraph 14 of the judgment impugned that as the identification parade was conducted 13 months after the incident, it loses its credibility, appears to be incorrect for the reason that the identification has been duly proved by the Naib Tehsildar R.K. Anant (PW-10) who had conducted the same in which complainant (PW-1) and his son Padamlochan (PW-2) have duly identified all the accused persons. Moreover, looking to the statements of the complainant/victim and his son Padamlochan in which they have categorically stated that the accused persons entered their house and started firing at them as a result of which they had sustained injuries, this Court is not inclined to interfere with the, conviction and sentence awarded to the accused/appellants by the Court below. 10. ln view of above, the appeals have no substance at all and accordingly the same are dismissed. . Sdix Pritinker Diwaker Judge H‘x . I; i l: ‘l ‘i piece of ingot gold, n, (e5; L7 l