I U CHHATTISGARH AT BILASPUR LSB: Hon’ble Mr.T.P.Sharma,J.‘| CRIMINAL APPEAL No. 800 12005 APPELLANTS ’1. Manesh Mandavi S/o Kolu, aged 25 years, R/o Vinage Devasoor, OP. Gyarahpatti (Garh Chiroli) Sant Ram Jhade S/o Birajhu Jhade, Aged 23 years R/o Tumarikasa PS Manpur, District Rajnandgaon, CG. VERSUS RESPONDENT Stater of Chhattisgarh ‘through Police Station, District Rajnandgaon, CG $f Shri Satish Verma learned counse! for the appeilants‘ K‘u. Sangita Mishra PL for the respondent/State. CRIMINAE APPEAL HNDER SECTION 374‘2! OF THE CODE OF CRIMINAL I PROCEDURE I (ORAL)JUDGEMENT (Passed on 5.8.20a8) ‘i. This appeat is directed against the judgment of conviction and order of sentence dated 4.1 .2005 passed by the Additional Sessions Judge) Rajnandgaon, in Sessions Trial No. 47/2005 whereby the appellants have been convicted for the offence punishable under section 398 IPC and sentenced them to undergo Rl for seven years each. 2. The judgment of the trial Court is chailenged on the ground that without there being any clinching evidence against the acetJsed/appellants, they have been convicted and sentence as aforesaid. 3. Heard Shri Satish Verma counsel for the appeliants and Ku. Sangita Mishra PL for the respondent/State and perused the impugned judgment as well as the material availabie on record A 4t According to the case of the prosecution on 21.12005 at about 12 in the night some persons knocked at the door of the complainant namely Banjurao Mandavi for committing dacoity/robberyl On opening the door; he saw that 6—7 persons were present there who posed themselves to be the Naxailites. They demanded Rs. 10,000/— from the complainant and asked him to keep the money ready when they would come Within 1- 2 days and not to disclose the matter to Police otherwise they would kiil him. Again on 27.2.2005 at about 12 in the night when the door was knocked, he came out of the house and saw that two-three \ persons wearing Khaki dress were present there and were holding deadly lE weapons (gun) with them. Thereafter, compiainant went inside and asked his brother Deepchand to go from the back door and call the villagers. On seeing the viilagers the accused persons tried to run away out of whom, one person accused/appeiiant was caught hoid of by them who disclosed his name as Manesh Mandavi. Accused/appenant Manesh Mandavi was holding a loaded gun and he told himself to be the resident of village Devasoor. Thereafter, he was produced in police‘station Maahapur and FIR Exr P-1 was lodged by the complainant. Spot map Ex. P-2 was prepared, one loaded gun, khaki dress and one red colour beit were recovered from hlml Other accused namely Bajirao and Janglu Ram made disclosure statements vide Ext P-4 and P—5. On the basis of disclosure statement Exr P—4 one loaded gun was seized at the instance of Bajlrao vide Ext P—7 and on the basis of disclosure statement Ex. P-5 one gun was seized at the instance of Janglu Ram vide Ex. P-B. On the basis of disclosure statement‘dt’ accused/appellant Sant Ram (EX, P-6), one loaded gun was seized at his instance vide EX P-9. At the instance of accused Devram one old loaded gun was seized from the field of accusediappellant Sant Ram under Ex. P-‘i O. s 5. After completion of investigation the charge sheet was filed against the accused/appellants in the Court of Judicial Magistrate First Class, Ambagarh Chowki, who in tum committed the case to the Court of Sessions, Rajnandgaon, from where learned Additional Sessions Judge, Rajnandgaon, received the same on transfer for trial 6. in order to prove the guilt of the accusedlappellants the prosecution has examined six witnesses Statement of the accused/appellants was also recorded under’section 313 of the Code of Criminal Procedure, in which they have stated that they are innocent and have been falsely implicated in the crime in question 7. After affording opportunity of hearing to the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. 8. lt is argued by the counsel for the appellants that the accused/appellants were not known to the complainant or the witnesses and therefore, their identification was necessary but the prosecution has failed to conduct the test identification parade to establish guilt of accused/appellant Sant Ram. lt is further argued that accused/appellant Manesh Mandavi being the member of Executive Body of Gondwana Society was permitted to wear Khaki dress and he has been unnecessarily caught hold of by the villagers and implicated in a false case. 9. On the other hand the impugned judgment of the trial Court has been upported by the counsei for the State. 10. in the instant case, it is not disputed that accused/appellant Manesh Mandavi was present at the place of incident i.e. village Maravi Toia at 12 o‘clock in the night with loaded gun. He is resident of village Devasoor and not Maravi a t s x “'5’ Tola. In order to convict the accused persans under section 398 of the Code of Criminal Procedure, the prosecufion is required to prove that they went to the house of the complainant at 12 o'clock in the night, tried to commit dacoity/robbery and they were having deadly weapons with them, 11. Complainant - Banjuram Mandavi PW<1 has stated in his evidence that on 27.2.2005 when he was sieeping in his house, at about 12 o’clock in the night the door of his house was knocked by someone and when he came out of his house he saw that accused persons wearing Khaki dress were present there, they took him to some distance and posing themselves to be Naxallites asked him to give 10,000 rupees or else they would kill him. Thereafter, complainant went inside and asked his brother Deepchand to go‘from the back door and call the villagers On seeing the villagers the accused personstried to run away out of whom, one person‘was caught hoid of by them who disclosed his name as Manesh Mandavi. He however has not offered any expianation for going to the house of compiainant along with other accused persons and knocking his door at 12 o’clock in the night. Hostile Witness (PW-3) namely Raisingh of the same Village to which accused/appellant Manesh Mandavi belongs, has stated in his cross examination that on the date of incident accused Manesh Mandavi had gone to village Tumdikasa to enjoy village fair There was no reason for the accused/appellant Manesh Mandavi to go to village Maravi Toia at 12 o’clock in the night and knock the door of the appellant armed with air gun and ask the complainant to part with Rs 10,000, but to commit robbery/dacoity. The evidence adduced by the prosecution against aCcused Manesh Mandavi is reliable and inspires conhdence that he tried to commit dacoity/robbery at the point of air gun in the house of the complainant and therefore, his conviction under section 398 IPC is sustainable 12. As regards conviction of accusedfappellant No.2 Sant Ram, he was not . caught hold of by the villagers at the time of incident. Though at his instance an air gun was seized vide Ex. P-9 from the field, he was ‘not subjected to the test identification parade. Complainant or any other witness has not stated that this accused was present on the spot at the time of incident. There is no evidence to connect accused/appellant Sant Ram with the crime in question. Even if the seizure of air gun is accepted, the same is not sufficient for connecting him with the crime in question. Thus his conviction under section 398v IPC is not sustainable and the same is liable to be set aside. 13. Consequently, the appeal partly succeeds. Conviction of appellant “Manesh Mandavi under section 398 IPC is sustained and conviction of accused/appellant Sant Ram under section 398 IPC is set aside. He is acquitted of the charge leveled against him. lt is stated that he is in custody. Therefore, he be set at liberty forthwith if not required in any other case. /’ / /