Appellants given benefit of doubt due to several discrepancies with regard to the evidence, conviction and sentence set aside: The High Court of Chhattisgarh

NAFRHIGH COURT OF CHHATTISGARH BILASPURCriminal Appeal No.12916Judgment Reserved on : 22.9.2021Judgment Delivered on : 18.10.2021Kapil Das Mahant son of Roopdas Mahant aged about 20 years resident of Village Karma Police Chowki Pantora Police StationBaloda District Janjgir Champa Chhattisgarh Appellantversus State of Chhattisgarh through Station House Officer Police StationBaloda District Janjgir Champa Chhattisgarh RespondentCriminal Appeal No.17417Kamal Chandra son of Late Shri Ganpat Chandra aged about 18years resident of Village Sukhada Police Station Dabhara DistrictJanjgir Champa Chhattisgarh Appellantversus State of Chhattisgarh through the Station House Officer Police StationBaloda District Janjgir Champa Chhattisgarh RespondentCriminal Appeal No.57191.Sharad Goutam son of Satyaprakash Goutam aged about 27 years resident of Village Sarawa Police Station Shikarpur District BulandCity U.P.2.Radheshyam Kashyap son of Shivram Kashyap aged about 33 years resident of Village Barbhatha Police Station Baloda District Janjgir Champa Chhattisgarh Appellantsversus State of Chhattisgarh through Police Station Baloda District Janjgir Champa Chhattisgarh Respondent For Respective Appellants : Shri Vipin Singh Shri Rishi Rahul Soni andShri Akath Kumar Yadav AdvocatesFor Respondent State : Shri Akhtar Hussain Panel Lawyer 2Hon ble Shri Justice Arvind Singh ChandelC.A.V. JUDGMENT1.Since all the three appeals arise out of a common judgment theyare decided together. 2.The instant appeals have been preferred against the judgmentdated 29.8.2016 passed by the 2nd Additional Sessions Judge Janjgir Champa in Sessions Trial No.516 whereby thepresent Appellants have been convicted and sentenced as under: AppellantConvictionSentenceAll the Appellants Under Section392 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years and fine ofRs.1 000 with defaultstipulation Under Section397 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years Under Section398 34 of theIndian PenalCodeRigorous Imprisonmentfor 7 years Appellant SharadGoutamof theArms Act Rigorous Imprisonmentfor 3 years and fine ofRs.500 with defaultstipulationAppellant RadheshyamKashyapof theArms Act Rigorous Imprisonmentfor 1 year and fine ofRs.500 with defaultstipulationThe jail sentences are directed to run concurrently3.Prosecution case in brief is that on 4.1.2016 in the afternoon atabout 12:30 O’clock Complainant Mahendra Agrawaland 3his wife Pooja Agrawaland their children were returning on amotorcycle. When they reached near jungle nahar bridge 3unknown persons came there on a motorcycle overtook andprevented them. They showed them a kattalodged First Information Reportsold the looted gold tops to co accused 4Purushottam Sonivide Ex.P11.During the course of investigation all the accusedpersons Appellants were duly identified by Complainant MahendraAgrawaland his wife Pooja Agrawalvide Ex.P12 andP13. On completion of the investigation a charge sheet was filed.Charges were framed by the Trial Court. 4.In support of its case the prosecution examined as many as 13witnesses. In examination under Section 313 of the Code ofCriminal Procedure the accused persons Appellants denied theguilt and pleaded innocence. No witness has been examined intheir defence. 5.On completion of the trial the Trial Court convicted and sentencedthe accused perspms Appellants as mentioned in the secondparagraph of this judgment. Hence the present appeals. 6.Learned Counsel appearing for the respective Appellants jointlysubmitted that without there being sufficient evidence on recordagainst the Appellants the Trial Court has wrongly convicted them.The incident took place on 4.1.2016 but the First InformationReportwas lodged by Complainant Mahendra Agrawal(PW1) on 10.1.2016 when the Appellants were caught in CrimeNo.16. Thereafter in the present case also i.e. in CrimeNo.116 to falsely implicate the Appellants a false andfabricated First Information Reportwas lodged by 5Complainant Mahendra Agrawalon 11.1.2016. It wasfurther submitted that according to the FIR3 unknownpersons looted the articles from victims Mahendra Agrawalbut the charge sheet was filed against 4accused persons for the alleged commission of loot. During theTest Identification Parade accused persons Sharad and Kapil wereidentified by Complainant Mahendra Agrawalvide Ex.P12and accused persons Sharad and Radheshyam were identified byPooja Agrawalvide Ex.P13 but the Test IdentificationParade Reportsdo not bear signatures ofComplainant Mahendra Agrawaland his wife Pooja Agrawal(PW2). Other accused persons were not identified by MahendraAgrawal and Pooja Agrawal. Both Mahendra AgrawalandPooja Agrawalcategorically admitted the fact that at the timeof the test identification parade police officials were also presentalong with them and they identified the accused persons as told bythe police officials. It was further submitted that the TestIdentification Parade Reportsdo not bearsignatures of Complainant Mahendra Agrawaland his wifePooja Agrawaland therefore the whole Test IdentificationParade is doubtful. Though at the time of recording of theirstatements in the Court both Mahendra Agrawaland PoojaAgrawalidentified all the Appellants in their Courtstatements they have admitted the fact that at the time of incidenttwo accused persons had covered their faces with cloth. But despite that they identified the Appellants in the Court and therefore also the identification of the accused persons Appellants 6by Complainant Mahendra Agrawal and his wife Pooja Agrawalduring the course of recording of their statements in the Court isdoubtful. It was further submitted that though in the instant caseone mobile phone of Nokia brand is shown to be seizedbut accused Purushottam Soni fromwhich said gold tops were seized has been acquitted by the TrialCourt and therefore the said gold tops were looted by any of theAppellants at the time of alleged incident is not established. Finally it was argued that looking to the evidence adduced by theprosecution the offences alleged against the Appellants are notduly proved and the Appellants are entitled to get benefit of doubt. 7.Learned Counsel appearing for the State Respondent supportedthe impugned judgment of conviction and sentence.8.I have heard Learned Counsel appearing for the parties andperused the record including the statements of the witnesses withdue care. 9.As regards the present incident which took place on 4.1.2016 it isnot in dispute that the First Information Reportwas lodgedby Complainant Mahendra Agrawalbelatedly on 11.1.2016. 7The FIRwas lodged by Complainant Mahendra Agrawal(PW1) against 3 unknown persons only but in their Courtstatements both Mahendra Agrawaland his wife PoojaAgrawaldeposed that at the time of incident when theyreached near the jungle nahar there all the Appellantsprevented them and looted one mobile phone of Nokiabrand from Mahendra Agrawaland 2 numbers of gold topsfrom Pooja Agrawalhad arranged Test IdentificationParade of the accused persons in District Jail Janjgir on 18.2.2016vide Ex.P12 and P13. This witness admitted the fact that the TestIdentification Parade Reportsdo not containsignatures of identifiers Mahendra Agrawaland PoojaAgrawaland Pooja Agrawal(PW2) have also admitted the fact that during the Test IdentificationParade police officials were present along with them and boththese witnesses identified the accused persons as told by thepresent police officials. 10.According to the case of prosecution during the course ofinvestigation the looted mobile phone of Nokia brand was seizedvide Ex.P10 on being produced by Appellant Kapil Das. Noidentification of this seized mobile phone was got done byComplainant Mahendra Agrawalfrom Appellant Kapil Daswas the looted mobile phone of Complainant Mahendra Agrawal isnot established. 11.With regard to the seizure of the gold tops according to the case ofthe prosecution the said gold tops were seized from acquittedaccused Purushottam Soni but the seizure witnesses have notsupported the case of the prosecution regarding the seizure. It wasnot established before the Trial Court that acquitted accusedPurushottam Soni received the gold tops from acquitted accusedShantabai and therefore on this ground itself the Trial Courtacquitted Purushottam Soni and Shantabai of the charge framedagainst them under Section 411 of the Indian Penal Code.Therefore it is not established that the said gold tops were receivedby Purushottam Soni from any of the Appellants. 12.It is the further case of the prosecution that at the instance ofaccused Appellant Sharad Goutam 1 country made pistol and 7live cartridges of 315 bore were recovered and seizedfromthe parawat kept behind the house of Puniram Kaushik situated inVillage Kosmanda. Though seizure witnesses Ritesh Kaushik(PW3) and Santosh Kumar Rajwadehave supported theseizure of these articles they have only stated that the country 9made pistol and the cartridges were seized from Appellant SharadGoutam from Village Kosmanda. But the prosecution has notspecified that from which place of Village Kosmanda seizure ofthese articles was made. Both these witnesses are residents ofVillages Baksara and Kanki respectively. No resident of VillageKosmanda has been made a witness nor has it been properlyexplained why this was done so. Even if for the sake of argument it is considered that the country made pistol and the cartridgeswere seized from Appellant Sharad Goutam the country madepistol and the cartridges were in live and running condition there isno examination report of any armorer or any ballistic expert onrecord to this effect nor has any such expert been examined by theprosecution in this regard. Apart from this as required underSection 39 of the Arms Act no prior sanction for prosecution hasbeen obtained from the concerned District Magistrate. 13.With regard to the recovery of the knife according to the case ofthe prosecution the knife was recovered and seizedfromthe house of Appellant Radheshyam situated at Village Barbhatha.Again the seizure witnesses are same i.e. Ritesh Kaushikwho are residents of VillagesBaksara and Kanki respectively. No resident of Village Barbhathahas been made a witness by the prosecution and it has not beenexplained also why this was done so. As stated by seizurewitnesses Ritesh Kaushikand Santosh Kumar Rajwade(PW7) they had put their signatures in the seizure memorandumsin Police Chowki Pantora. Therefore it is not established that the 10knife was seized from Village Barbhatha in presence of thesewitnesses. Even if for the sake of argument it is considered thatany knife was seized from Appellant Radheshyam no examinationreport of the knife given by any expert regarding size of the knifehas been placed before the Court nor was even the knife producedbefore the Court. Therefore the prosecution does not get any helpfrom the recovery and seizure of the said knife. 14.On a minute examination of the above evidence it is clear that theFIRwas lodged against 3 unknown persons but in theirCourt statements Mahendra Agrawaland Pooja Agrawal(PW2) deposed that the offence in question was committed by allthe Appellants in total 4 persons and the charge sheet was filedagainst 4 accused persons for commission of the alleged loot. Intheir Court statements Mahendra Agrawaland PoojaAgrawaladmitted that two accused persons had coveredtheir faces with cloth and therefore they were not identifiable.Despite that both these witnesses identified all the 4 Appellantsduring recording of their statements before the Trial Court. Lookingto the above statements of these witnesses with regard to theidentification of the Appellants are suspicious. With regard to theTest Identification Parade also both these witnesses admitted thatduring the Test Identification Parade police officials were presentalong with these witnesses and they identified the accused personsas told by the present police officials. In addition to this the TestIdentification Parade Reportsdo not containsignatures of these two witnesses. Therefore the Test 11Identification Paradeis also suspicious. Asregards the looted mobile phone of Nokia brand as discussedabove it is not established that the seized mobile phone was thelooted mobile phone. As discussed above the gold tops reached toacquitted accused Purushottam Soni through any of the Appellantsis not established and therefore if any looted article was seizedfrom Purushottam Soni that does not help the case of theprosecution. With regard to the knife and the kattait has already been discussed above that their seizure isalso suspicious. The necessary sanction for prosecution underSection 39 of the Arms Act has not been obtained. Even any reportof any armorer or ballistic expert has not been produced nor havethey been examined and therefore also the offences alleged underthe Arms Act against Appellants Sharad Goutam and RadheshyamKashyap are not proved. The finding of the Trial Court is not inaccordance with the evidence available on record. All theAppellants are entitled to get benefit of doubt.15.Consequently all the appeals are allowed. The impugnedjudgment of conviction and sentence is set aside. All the Appellantsare acquitted of the charges framed against them. Sd JUDGE Gopal 

Summary: The finding of the Trial Court is not in accordance with the evidence available on record. All the Appellants are entitled to get benefit of doubt. The aforesaid was established by the High Court of Chhattisgarh while adjudicating the case of Kapil Das Mahant &amp; Ors. v. State of Chhattisgarh [Criminal Appeal No.1292 of 2016] which was decided upon by a single judge bench comprising Justice Arvind Singh Chandel on 18th October 2021. The brief facts of the case are as follows. The FIR was lodged by Complainant against 3 unknown persons only, but in their Court statements, both Complainants deposed that at the time of incident when they reached near the jungle nahar, there all the Appellants (total 4 persons) prevented them and looted one mobile phone of Nokia brand from Mahendra Agrawal and 2 numbers of gold tops from Pooja Agrawal (PW2). Both these witnesses admitted the fact during their cross-examination that 2 accused persons had covered their faces with cloth and, therefore, they were unidentifiable. Tahsildar Shabab Khan (PW4) had arranged Test Identification Parade of the accused persons in District Jail, Janjgir This witness admitted the fact that the Test Identification Parade Reports not contain signatures of identifiers Mahendra Agrawal (PW1) and Pooja Agrawal (PW2). Mahendra Agrawal (PW1) and Pooja Agrawal (PW2) have also admitted the fact that during the Test Identification Parade, police officials were present along with them and both these witnesses identified the accused persons as told by the present police officials. The instant appeals have been preferred against the judgment passed by the 2nd Additional Sessions Judge whereby the present Appellants have been convicted and sentenced. The court perused the facts and arguments presented. It was of the opinion that “The necessary sanction for prosecution under Section 39 of the Arms Act has not been obtained. Even any report of any armorer or ballistic expert has not been produced nor have they been examined and, therefore also, the offences alleged under the Arms Act against Appellants Sharad Goutam and Radheshyam Kashyap are not proved. The finding of the Trial Court is not in accordance with the evidence available on record. All the Appellants are entitled to get benefit of doubt. 15. Consequently, all the appeals are allowed. The impugned judgment of conviction and sentence is set aside. All the Appellants are acquitted of the charges framed against them.”