1 2025:CGHC:41144 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 57 of 2004 1 - Anwar Hussain, S/o. Hifayat Ali, Aged about 31 years, R/o. Gram Nawaparakala, Prem Nagar, District Surguja (CG) 2. Ramhari @ Hariram @ Chehca, S/o. Shivmohan Sahu, Aged about 30 years, R/o. Gram -Bakirma, Thana Prem Nagar, District Surguja (CG) ... Appellant(s) versus 1 - State Of Chhattisgarh ... Respondent(s) For Appellants : Shri Leekesh Kumar, Advocate on behalf of Ms. Renu Kochar, Advocate and Shri Ujjwal Choubey, Advocate for the respective appellants For Respondent(/State : Shri Soumitra Kesarwani, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 14/08/2025 The present appeal arises out of judgment and order dated 23.12.2003 passed by the Fifth Additional Sessions Judge, FTC, Surajpur, District Ambikapur in Sessions Trial No.370/1999 convicting 2 the accused/appellants and sentencing them in the following manner: Conviction Sentence u/s. 397 of IPC RI for 7 years u/s. 25(1-A) of the Arms Act RI for 3 years 2. Brief facts of the case are that on 27.05.1999, at about 8.00 pm, the complainant was lying on his bed. At that time, the appellants entered his house and on the gunpoint, forcefully taken his signatures on some typed papers/affidavit and thereafter looted the scooter and irrigation pump and ran away. They had also threatened him to kill if he make a complaint to the police. The next day he informed about the incident to Shobhit Da, Chandra Singh, Indra Singh at about 1.30 pm and thereafter lodged FIR against the appellants. Sport map Ex.P-13 was prepared and the documents of the vehicle LML Vespa purchased by the complaint and the Chechis number as well as the insurance papers were seized and on the basis of memorandum of accused Anwar Hussain, statement was recorded vide Ex.P-8 and on the basis of which the said vehicle was seized from the house of his in-laws at Marwahi bearing No. MP 27 C6768 and the irrigation pump, desi katta (Tamancha) and Rs. 200/- cash was seized from the possession of accused/appellants. On the basis of memorandum of accused/appellant No.2 Ramhari his statement was recorded vide Ex.P-9. Thereafter arrest memos were prepared and the appellants were arrested. After completion of investigation, the appellants were charge-sheeted for the offence punishable under Sections 397 of IPC and 25(1-A) of the Arms Act, before the jurisdictional criminal Court and the case was committed 3 to the trial Court for hearing and disposal in accordance with law, in which appellants/accused abjured their guilt and entered into defence by stating that they have not committed the offence. 3. In order to bring home the offence, prosecution has examined as many as 10 witnesses. 4. The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants as above against which the present appeal has been preferred. 5. Learned counsel for the appellant No.1 would submit that the prosecution has failed to prove its case against the appellants. It is submitted that the test identification parade has not been conducted in accordance with law and therefore, the test identification parade was only a farce and it is liable to be rejected. It is submitted that the alleged incident occurred on 27.05.1999 and the statements of the witnesses were recorded two days after the incident. He further submits that the there are full of omissions and contradictions in the statements of the witnesses and are contrary to each other. The independent witnesses Bodh Kumar (PW-5) and Chandra Singh (PW-6) have not supported the prosecution case and turned hostile. Lastly, he submit that the trial court has failed to prove the seizure memo and the sanction report in accordance with law and the independent witnesses have not been examined. 6. So far as appellant No. 2 is concerned, it is submitted that the prosecution has failed to prove its case against the appellants. It is submitted that the test identification parade has not been conducted in 4 accordance with law and therefore, the test identification parade was only a farce and it is liable to be rejected. It is submitted by the counsel for the appellant No.2 that he has not been named in the FIR. It has bee stated that the IO had deposed that accused Hariram has made statement before him but there is no signature in the memorandum statement. There is no recovery made from the appellant No.2 and the memorandum and seizure has also not been proved in accordance with law, therefore his conviction is liable to be set aside. There are omissions, contradictions in the statements which does not inspire confidence to convict the appellants. On the basis of shaky evidence the appellants cannot be convicted for the offence. Hence, learned counsel prayed that the appeal be allowed and the appellants be acquitted of the charges levelled against them. 7. Learned State counsel vehemently opposes the submissions made by learned counsels for the appellants/accused persons and submits that after detailed appreciation of the evidence for the offence adduced by the prosecution, in the judgment, the trial Court convicted the appellants through a reasoned judgment; and as the judgment of conviction is well founded, the appeal for judgment of conviction be dismissed. Learned counsel for the State/respondent further submits that looking to the act of the appellants, the trial Court rightly sentenced the appellants, hence, the prayer for already undergone by the appellants are also not acceptable. Therefore, conviction recorded and sentence awarded to the appellants/accused persons for the aforesaid offences is unexceptionable and the appeal deserve to be dismissed. He has placed his reliance upon the judgment of the Apex Court in the 5 matter of Sunil Clifford Daniel Vs. State of Punjab, (2012)11 SCC 205 wherein it has been held that “if the evidence on record suggest sufficient/necessary motive to commit a crime, it may be conceived that the accused had committed it.” 8. Heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection. 9. Harinandan (PW-1) is the complainant. He has stated that on the date of incident ie. 27.05.1999 at about 8.00 pm. when all the family members were sleeping in the verandah appellant came to his house and asked his wife about his whereabouts. Thereafter, the appellant with the help of torchlight came near his bed and asked him to come along with them. Thereafter they took him outside on gun point towards the pond where they abused him and appellant No.1 after taking stamp paper out of his bag, asked him to sign on them, dropped him in his house, looted the keys of the scooter LML Vespa, irrigation pump and cash of Rs.900/- and ran away. He informed about the incident to his neighbours and in the morning at about 8.00 am. Report was lodged vide Ex.P-1. 10. Smt. Suhano Bai (PW-2) has stated that on the date of incident, appellant Anwar came to their house and asked for her husband and thereafter woke him up and took outside. After sometime, she saw the appellant were taking signatures on the stamp paper and threatening him. Basant (PW-3) has stated that the complainant is his uncle and on the date of incident, when he along with Bodh Kumar were returning 6 from school, on the way appellant Anwar stopped them and asked them as to where they were going and on informing him, he took them towards the bathroom, threatened them not to raise alarm and locked the room. This witness has stated that co-accused Hariram was also present along with the appellant. 11. Jai Singh (PW-4) has stated that on the date of incident, at about 8.00 pm, appellant Anwar came to his house and asked for pen and informed him that he had purchased the scooter of Sarpanch. He asked the complainant as to why he sold the vehicle then Anwar informed that Harinandan is going to purchase Suzuki. However, the next morning, complainant Harinandan informed him that his vehicle and irrigation pump have been stolen. Bodh Kumar (PW-5) has also made similar statement to that of Basant (PW-3).Chandra Singh (PW-6) is the neighbour of the complainant and he has stated that after the incident, Hiranandan narrated about the incident to him. Gahbali (PW-7) is the witness to seizure of Scooter, Pump and Katta vide Ex.P-10 and 11. I.Tirkey (PW-10) is the Investigating Officer who conducted the investigation. 12. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced before the trial Court. 13. As regards complicity of the appellants in the crime in question, it has to be seen as to whether the conviction of the appellants for the aforesaid offence is based on proper appreciation of the facts of the case. 7 PW-1 Harinandan has deposed in para 7 that there were two weapons at the time of incident and the appellants took him on the gunpoint towards the field. However as per the story of prosecution, in the FIR, only one accused ie. Anwar has pointed the gun towards him. There is vital contradiction in the statement of this witness. Moreover, one katta has been seized and that too, from the appellant No.1 Anwar by the police. 14. Suhano Bai (PW-2) has deposed that accused Anwar had pointed the gun towards her husband. Basant (PW-3) who is the eyewitness to the incident. It is also established from the statements of Suhano Bai (PW-2) and Basant (PW-3) that they did not knew the name of the accused Ram Hari @ Hariram and there is no identification parade conducted by the investigating agency. These witnesses have specifically admitted that has stated in para 3 which reads as under: “;g lgh gS fd ?kVuk ds le; jkr Fkh vkSj ml le; va/ksjk Hkh FkkA ;g dguk lgh gs fd ?kVuk ds iwoZ esa gfj dks ugha igpkurk FkkA ugkuh ?kj esa gfFk;kj vuoj ,oa jkegfj fn[kk;s FksA ;g lgh gS fd gfFk;kj ,d FkkA ;g dguk xyr gS fd gfFk;kj vuoj fn[kk;k Fkk] Lor% dgk fd jkegjh fn[kk;k FkkA iwoZ esa ;fm eSaus vuoj dks gfFk;kj fn[kkuk crk;k gS rks og xyr gSA jkegjh mQZ gjhjke gfFk;kj fn[kk;k Fkk ;g ckr lgh gSA ;g lgh gS fd ogka ij va/ksjk Fkk blfy, gjhjke dks ugha igpku ik;k FkkA” Bodh Kumar (PW-5) has admitted that only one Katta has been seized. The complainant has stated that appellant No.1 has pointed the gun towards him. The question of dispute is as to who had pointed the gun towards the complainant. 8 15. Thus, on perusal of the statement of Suhano Bai (PW-2), Basant (PW-3) and Bodh Kumar (PW-5) there are material contradictions in their statements as to who had pointed the gun towards the complainant. Section 397 of the IPC provided that : Section 397: Robbery, or dacoity, with attempt to cause death or grievous hurt : “Whoever commits robbery and in committing robbery causes hurt or attempts to cause death or voluntarily causes grievous hurt, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to life imprisonment and shall also be liable to fine.” 16. In the light of the evidence available on record, it is clear that on the date of incident, complainant Harinandan (PW-1), Suhano Bai (PW- 2) and Basant (PW-3) have categorically deposed that the robbery was committed by appellant No.1 Anwar and they identified him at the time of incident. 17. Upon careful consideration of the evidence on record, it is evident that the charge of robbery against the appellant Anwar stands proved. However it is not proved beyond reasonable doubt that appellant Anwar has pointed the gun towards the complainant so as to attract the ingredients of Section 397 IPC. Accordingly, the conviction of the appellant under Section 397 cannot be sustained and is liable to be altered to one under Section 394 IPC. 18. It is also pertinent to note that the appellant did not cause any injury to the complainant during the commission of the offence. The 9 incident pertains to the year 1999 and more than 26 years have since elapsed. The appellant, by now, is a middle aged man with family responsibilities. It is also not in dispute that the appellant had already undergone incarceration for a period of about 2 years. 19. Considering the overall facts and circumstances of the case and keeping in view the passage of time as well as the period of custody already undergone by the appellant, this court is of the considered view that ends of justice would be served if the jail sentence imposed on the accused/appellant No.1 is reduced to the period already undergone by him. 20. Consequently, the appeal stands partly allowed. Conviction of the appellant No.1 is altered from Section 397 IPC to that under Section 394 IPC and the sentence imposed on him is reduced to the period already undergone. Accused/appellant is reported to be on bail and therefore no further order is required. His bail bond stands discharged. 21. So far as appellant No.2 is concerned, the judgment of conviction and order of sentence passed against appellant No.2 is hereby set aside. He is acquitted of the charge levelled against him. Accused/appellant is reported to be on bail. His bail bonds shall remain in force for six months in view of Section 437-A of the Code of Criminal Procedure, 1973. 22. Consequently, the appeal is partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.09.23 11:51:55 +0530