1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 799 of 2004 (Abated) Anil Kumar Tigga (Died) (As Per Hon’ble Court Order Dated 15-01-2025) 1 - Ajay Kumar Khesh S/o Alekjender Khesh Aged About 24 Years R/o Gram- Sarangpur, Thana- Ramanujganj, District Sarguja, Chhattisgarh ... Appellant (s) versus 1 - State Of Chhattisgarh ... Respondent(s) For Appellant (s) : Shri Leekesh Kumar, Advocate on behalf of Ms. Renu Kochar, Advocate For Respondent(s) : Shri Ankur Kashyap, Dy.G.A. ({Hon’ble Shri Justice Sachin Singh Rajput}) Judgment on Board 12/02/2025 This appeal under Section 374 (2) of CrPC, 1973 has been filed by the appellant being aggrieved by impugned judgment dated 26/08/2004 passed in sessions trial No.269/2000 by the Additional Sessions Judge (FTC), Ramanujganj, Sarguja, (CG). 2. Against seven accused persons namely Anil Kumar Tigga, Philip Minj, 2 Rustam Ansari, Rohit Kumar Gupta, Mahesh Khairwar, Anil Khalkho and Ajay Kumar Khes (present appellant) charge sheet was filed for an offence punishable under Section 147, 148, 149, 353, 307, 109, 120-B of IPC. Accused Rohit and Mukesh were shown absconding in the charge sheet. 3. Accused – Philip Minj, Rustam Ansari, Rohit Kumar Gupta, Mahesh Khairwar were charged for an offence punishable under Section 147, 148, 307 / 149 of IPC and accused Anil Kumar Tigga, Anil Khalkho, Ajay Kumar Khes were charged for offence punishable under 147, 148, 307/149, 29 (1) (1-[k) and 27 of the Arms Act, 1959. 4. Case of the prosecution in brief is that on the date of incident i.e. on 14/05/2000, complainant P.S.Mahilane (PW4) and Constable Satyendra Singh (PW5) were patrolling on motor cycle from Ramanujganj to Balrampur. A truck bearing No.B.R.15 G/0081 was parked near Awarajhharia stream. 2-3 motorcycles were also parked there. 6-7 dacoits were trying to loot it. One was carrying 12 bore gun in his hand. Looking to the situation, P.S.Mahilane (PW4) stopped the motor cycle and challenged the assailants, upon which the assailants holding gun, opened fire upon P.S.Mahilane (PW4) with intention to kill him, however, he survived. Keeping in mind the welfare of the public at large, P.S.Mahilane (PW4) shot four rounds from his A.K.47 Rifle. The assailants managed to run away taking advantage of the darkness. They could not be apprehended despite being chased. Report of the incident was lodged by P.S.Mahilane (PW4) on 15/04/2000 at 12:20 hrs in police station – Ramanujganj which was reduced in FIR (Ex.P/4) by Inspector M.K.Tiwari (PW12) in crime No.53/2000 under Section 147, 148, 353, 307 of IPC. 3 5. On 22/06/2000, M.K.Tiwari recorded memorandum of Anil Kumar Tigga (Ex.P/8), memorandum of Anil Khalkho (Ex.P/10) and memorandum of Ajay Kumar Khes (present appellant) (Ex./P/12), memorandum of Philip Minj (Ex.P/14) and on the same day, at the instance of the accused Anil Kumar Tigga, Anil Khalkho, Ajay Kumar Khes (present appellant), Philip Minj recovered country made gun, cash, gupti, sixer, country made revolver, watch, air gun, bus ticket, ticket of video hall, yellow colour napkin, wooden stick, towels etc. vide seizure memo Ex.P/9, P/11, P/13 and P/15. On 08/06/2000, on memorandum statement of accused Rustum Ansari vide Ex.P/6 at the instance of accused Rustum Ansari, Rs.200/- cash was seized vide Ex.P/7 by M.K.Tiwari (PW12). On 23/05/2000 accused Anil Kumar Tigga, Philip Minj, Anil Khalkho, Ajay Kumar Khes (Present appellant) were arrested vide Ex.P/16 to Ex.P/19. Accused Rustum Ansari was arrested vide arrest memo Ex.P/20. Vide Ex.P/26, spot map was prepared by Suresh Kumar Mishra, Sub- Engineer, PWD. Identification parade of the accused persons was conducted in sub-jail by R.L.Dewangan (PW2), Tahsildar on 18/07/2000 vide Ex.P/2. Four empty cartridges of A.K.47 rifle were seized from the spot on 16/05/2000 vide Ex.P/1. Sanction was granted by the District Magistrate for prosecution under Section 25, 27 of the Arms Act against the accused persons. 6. Accused Mahesh and Rohit were absconding. Accused Rohit surrendered in the Court on 27/03/2001 and accused Mahesh was produced before the Court by production warrant on 19/06/2001 being in detention in some other crime. 7. Charges as stated above were framed against the accused persons who denied the charges and claimed to be tried. 4 8. The prosecution examined as many as 14 witnesses to prove its case. Statement of the accused persons under Section 313 CrPC was recorded. 3 defence witnesses were examined. 9. Learned trial Court in paragraph 18 of the impugned judgment held that one air gun was seized from the possession of Ajay Khes (Present appellant), hence it cannot form a basis for its conviction under Section 25, 27 of the Arms Act, however, he was found guilty of offence under Section 352 of IPC. Accused Rustum, Rohit, Philip Minj, Anil Kumar Tigga, Anil Khalkho, Ajay Khes (present appellant ) and Mahesh were acquitted from the charges under Section 147, 148, 307/149 of IPC however, accused Philip Minj, Anil Tigga, Anil Khalkho, Ajay Kumar Khes (present appellant) were also found guilty under Section 352/34 of IPC. In para 19 and 20 of the impugned judgment, accused Anil Kumar Tigga and Ajay Khalkho were also found guilty for an offence punishable under Section 25 (1), 27 (1) of the Arms Act. However, though in the preceding part of paragraph 20, the accused Philip Minj and Ajay Kumar Khes (present appellant) were not found guilty under Section 25, 27 of the Arms Act however, in the subsequent portion of this paragraph, they were also found guilty under Section 352/34 of IPC read with Section 25, 27 of the Arms Act and they were heard on point of sentence. 10. In paragraph 22 of the impugned judgment, learned trial Court sentenced the accused Philip Minj and Ajay Kumar Khes (present appellant) under Section 352/34 of IPC for 3 months R.I. Accused Anil Kumar Tigga and Anil Khalkho were sentenced for 3 months R.I. under Section 352/34 of IPC and 5 years each for offence under Section 25(1) (1-[k) of the Arms Act and fine of 5 Rs.2,000/-. In default of payment of fine, they were required to undergo 6 months each additional R.I. Sentences were directed to run concurrently. 11. From perusal of the impugned judgment, it appears that in paragraph 18, learned trial Court observed that Ajay Kumar Khes (present appellant) could not be found guilty of offence under Section 25, 27 of the Arms Act. In para 20, he was only convicted for offence under Section 352/34 of IPC in the first portion of this paragraph however, in later part of this paragraph, accused Philip Minj and Ajay Kumar Khes (present appellant) were also found guilty for the offence punishable under Section 25 and 27 of the Arms Act. It appears that the name of Philip Minj and Ajay Khes was wrongly mentioned for convicting them under Section 25, 27 of the Arms Act as just few lines prior to it, against accused Anil Kumar Tigga and Anil Khalkho, charges under Section 25 (1), 27 (1) of the Arms Act was proved, therefore, it appears that instead of convicting accused Anil Kumar Tigga and Anil Khalkho, name of accused Philip Minj and Ajay Kumar Khes (present appellant) were mentioned while convicting them under Section 25, 27 of the Arms Act. 12. Perusal of paragraph 22 of the judgment would make it explicitly clear that no sentence was awarded to Ajay Kumar Khes (present appellant) under Section 25 (1) (1-[k) and 27 (1) of the Arms Act. Paragraph 24 of the impugned judgment discloses that accused Anil Kumar Tigga, Anil Khalkho, Philip Minj, Ajay Kumar Khes (present appellant) remained in jail from 23/05/2000 to 26/08/2004 i.e. 4 years 2 months and 34 days. 13. The instant appeal was preferred by Anil Kumar Tigga and Ajay Kumar 6 Khes. During the pendency of this appeal, Anil Kumar Tigga passed away and his appeal stood abated. 14. Learned counsel for the appellant submits that the conviction of the appellant is bad in law and contrary to the evidence on record. He further submits that learned trial Court did not appreciate the evidence brought on record to its proper perspective and erroneously convicted the appellant – Ajay Kumar Khes. He further submits that the evidence of prosecution witnesses do not inspire confidence. There are majority of contradictions and omissions in the statement of the prosecution witnesses and their statement cant be relied to sustain conviction and prays for acquittal of the appellant. 15. Learned State counsel supports the impugned judgment of conviction and order of sentence and submits that the prosecution was able to bring home the guilt beyond reasonable doubt. From the evidence of the prosecution, the overt act of the appellant is clearly established, proper seizures have been effected. The findings recorded by the learned trial Court do not require any interference. 16. I have heard learned counsel for the parties and perused the records. 17. Shri P.S.Mahilane (PW4) in his deposition before the learned trial Court vividly described the happening of the incident. He has deposed that he was in the patrolling duty and in the place of incident, some unidentified persons kept stones on the way and stopped the truck No.B.R.-15 G / 0081 and other motor cycles and they were looting the motor cycles. One of the assailants was carrying a 12 bore gun. The evidence of this witness further discloses that he 7 challenged the assailants and he was fired upon by the persons holding the guns. He also fired 4 rounds towards the assailants in self defence and the assailants ran away. He lodged FIR (Ex.P/4). Four empty cartridges were also seized from the spot. Though he describes the happening of the incident, however he states in his deposition that 6-7 unidentified assailants were looting the people. He stated that he did not identify the assailants at the spot. Satyendra Singh (PW5) who was accompanying P.S.Mahilane (PW4) in his deposition before the trial Court only identified the accused Philip Minj and also in the Test Identification Parade. These two witnesses failed to identify the appellant either at the place of incident or in the Test Identification Parade. Vimal Kumar Agrawal (PW6) does not speak anything against the present appellant. Bajrang Agrawal (PW7) is a witness of memorandum and seizure of the accused persons and he said to have been stated that the accused Anil Kumar Tigga was interrogated in front of him by the police. He further stated that before him, other accused Anil Khalkho, Ajay Kumar Khes and Philip Minj stated that the looted articles and the articles used in the loot has been hidden by them and police has recovered such articles vide Ex.P/10 to Ex.P/15 and he has put his signature. In his cross-examination, he deposed that the police took him to the house of six accused persons. He does not know the name of any of the six accused persons and he can only identify the house of the accused persons after seeing them. It is important to note here that when this witness was examined, none of the accused persons were present. He has deposed that he cannot tell the age of any of the accused. He further deposed that he cannot recognise the physical appearance of Ajay Kumar Khes (present appellant). He further goes on to depose that the accused persons were caught 8 and brought near a tree where they were interrogated and he signed on 8-10 papers. He further deposed that thereafter he went to his home and did not go to the place of incident. 18. Sunil Kumar Singh (PW9) was declared hostile. In the examination-in- chief, he deposed that when he was coming from Balrampur at 8:30 PM on his motor cycle and as he reached near Awarajhharia stream, road was blocked by stones and as he stopped his vehicle, the assailants put the knife on him and demanded money and he gave Rs.150/- to the assailants. The assailants were keeping one rifle and after being looted, he came back to Ramanujganj and does not know about the incident. Though he states that the test identification parade was conducted before him but his signature is not there on test identification parade (Ex.P/2). He has stated that the assailants had covered their face with cloth. He further deposed that he did not lodge report about the incident happened with him to the police. 19. S.K.Tiwari (PW12), the investigating office deposed in favour of the prosecution. Mohd. Sarif (PW13) deposed in the line of Sunil Kumar Gupta (PW9) that when he was coming back from Balrampur, he was stopped by the assailants and Rs.200/- were looted from him. He further deposed that the assailants were keeping guns in their hands. He has also deposed that the assailants had covered their faces with clothes. He was declared hostile. He denied that he was looted by the accused persons. He has not supported the case of the prosecution. 20. In order to sustain conviction of the accused appellant, his presence at 9 the place of incident is required to be proved by the prosecution. Two victims Sunil Kumar Singh (PW9) and Mohd. Sarif (PW13) have not stated anything with regard to presence of the present appellant. Rather from his statement it is gathered that the assailants had covered their face with clothes. P.S.Mahilane (PW4) and Satyendra Singh (PW5) also did not depose that they have identified the appellant at the scene of occurrence. Though Test Identification Parade (Ex.P/2) was conducted but Satyendra Singh (PW5) could not identify the appellant–Anil Kumar Khes and he had only identified the accused Philip Minj. Though the prosecution tried to project recovery of air gun and other articles at the instance of the appellant but from perusal of testimony of seizure witness Bajrang Agrawal (PW7), it appears that the entire proceedings were carried out under a tree and thereafter, he put signatures on 8 to 10 papers and after the proceedings were over, he came back home and never went back to the place of incident. This witness has not stated in explicit terms that he accompanied Ajay Kumar Khes, the present appellant along with the police official for recovery of air gun and other articles which said to have been recovered from the appellant – Ajay Kumar Khes. Apart from this, it is to be seen that the prosecution was unable to show that the air gun which is said to have been recovered at the instance of the present appellant would entail conviction under the Arms Act. Even otherwise, learned trial Court in para 18 of the impugned judgment has categorically held that appellant could not be convicted under Section 25, 27 of the Arms Act. 21. Once the prosecution failed to prove the presence and involvement of the appellant in the crime beyond reasonable doubt and recovery of the articles 10 appears to be doubtful, the appellant could not be identified in the test identification parade, the appellant is entitled to be acquitted from the abovestated charges. Accordingly, the impugned judgment of conviction and order of sentence against the present appellant is set aside. The appeal is allowed. 22. Appellant is reported to be on bail. His bail bonds will remain in force for a period of six months in view of Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023. 23. The copy of this judgment along with the record of the trial Court be sent back for information and necessary compliance. Sd/- ({Sachin Singh Rajput}) JUDGE Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.02.13 14:58:05 +0530