1 2025:CGHC:40460 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 50 of 2007 Judgment reserved on :09.06.2025 Judgment delivered on : 12.08.2025 1. Kamal S/o Shri Ram Khilawan Balmik, aged about 19 years, R/o Ratna Nagar, Ratanlal Nagar, Mahadeo Nagar, P.S.- Govind Nagar, District- Kanpur (U.P.) 2. Virendra S/o Shri Chhotelal Balmik, aged about 19 years, R/o Ratna Nagar, Ratanlal Nagar, Mahadeo Nagar, P.S.- Govind Nagar, District- Kanpur (U.P.) --- Appellants versus • State of Chhattisgarh, Through P.S.- Bemetara, District- Durg (C.G.) (Now Bemetara District). --- Respondent/State _____________________________________________________________ For Appellants : Mr. Ram Kumar Tiwari, Advocate. For State : Mr. Devesh G. Kela, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 29.12.2006 passed by learned Additional Sessions Judge, Bemetara in Sessions Trial No. 70/2006, wherein the said Court convicted the appellants and sentenced them as under:- Conviction Sentence Digitally signed by AMIT PATEL 2 Under Section 394/34 of IPC R. I. for 07 years each and fine amount of Rs. 1,000 each, in default of payment of fine, to undergo additional R.I. for 03 months each. 2. Brief facts of the case are that on the date of incident i.e. 09.11.2004, the complainant was going Gramin Bank on his motorcycle bearing registration No. CG-07-J-7743, at that time the accused stopped him by showing stone for assaulting and the accused assaulted him and took towards the field and snatched the key of the motorcycle and caused the injury on the head by country-made pistol and when the witnesses shouted for help, they fled from the spot on the motorcycle of the complainant. Upon searching, the accused Kamal and Virendra found, on the basis of their memorandum statements, country-made pistols and cartridge seized from the possession of Kamal and Virendra and after completion of due, necessary investigation, they were charge- sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. In this case one co-accused was juvenile aged about 17 years old, therefore, he charge-sheeted before the Juvenile Justice Board, Durg. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the present appellants for alleged commission of offence under Section 397 read with Section 34 of IPC. 3. In order to establish the charges against the accused persons, the prosecution has examined as many as 10 witnesses. The statement under Section 313 of Cr.P.C. of the appellants have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. However, no witness examined by them in their defence. 4. The learned trial Court after hearing the counsel for the respective 3 parties and considered the material available on record and thereby convicted and sentenced the present accused/appellants as mentioned in inaugural para of this judgment. Hence, this present appeal. 5. Learned counsel for the appellant submits that the learned trial Court has not properly evaluated the material available on record and wrongly convicted the appellants. Learned trial Court also failed to appreciate this fact that the prosecution has failed to establish the ingredient of Section 394 of IPC. It is clear that charge-sheet was filed under Section 397/34 of IPC and which is not proved by the prosecution and learned trial Court altered the said section into Section 394/34 of IPC. The appellants have not committed the said offence and has not seized the motorcycle from the appellants, however the said motorcycle seized from the co-accused, who was juvenile at the time of incident and he has been produced before the Juvenile Justice Board, Durg for the aforesaid offences. The injury sustained by the complainant, was simple in nature and the complainant failed to identify the accused persons, but the learned trial Court did not appreciate all these facts and gave perverse findings and thereby wrongly convicted the appellants for the aforesaid offences. Therefore, the judgment passed by the learned trial Court is liable to be set aside and the appellants deserve to be acquitted of the said charges. He reliance placed upon the decision of the Hon’ble Apex Court in the matter of Mallela Seetharamaiah vs. State of Andhra Pradesh,1 6. Ex-adverso, learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellants. Therefore, the judgment impugned does not suffer from any irregularity or infirmity warranting interference by this Court in the 1 1989 M.P. Weekly Notes 11 4 instant appeal. 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record that learned trial Court framed charges against the appellants for the offences punishable under Section 397 read with Section 34 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted the appellants for offence under Section 394 read with Section 34 of IPC. 9. PW-1 Jethuram Jaiswal stated that he did not identify the accused persons and stated that on the date of incident when the complainant who working in the Bank Dadhi was coming from Bemetara to Dadhi, at that time, two accused persons stopped him who were standing on the road and took the motorcycle by pushing towards the field, however he did not recognize them as he had seen from a very far distance. 10. Complainant- Ghashiram Yadav (PW-2) stated that when he was going Dadhi from Bemetara on his motorcycle, at that time six boys have created hindrance in his route as they intentionally staged by standing between the Suguna and Karesara, accused were involved with them and showed him stone for assaulting, therefore, he stopped his motorcycle, the accused assaulted him by revolver on his head and they fled from the spot on his motorcycle. Thereafter, he lodged the report before the concerned police station vide Ex. P/1. In cross- examination, he stated that at the time of supurdnama of motorcyle, he saw both the accused. He denied the suggestion by saying that though the police has produced the accused, therefore, he is saying that the persons have committed the said offence. 11. PW-3 Ravindra Dubey stated that when he was going to Dadhi from Bemetara to attend the duty along with one Narsingh and when 5 reached near the Karesara, at that time he saw that some persons assaulted the complainant in the field, but he did not recognize them as they fled from the spot, however he did not identify the accused before the trial Court. 12. PW-5 Jagdish was examined before the Court wherein he has stated that Test Identification Parade was done by the Tahsildar before the complainant and before him and the Tahsildar prepared identification memo vide Ex.P-4 in which the accused persons/Kamal and Virendra were rightly identified by the Bank Manager of Dadhi Bank, complainant- Ghasiram Yadav (PW-2). In para 6 of his cross- examination, he admitted this fact the police were present at the time of identification proceeding. 13. PW-6 Naresh Singh is also the witness of Test Identification Parade Ex.P/4 and he stated that after the identification proceeding, T.I. Sharma told him that message received through phone from the Village- Suguna that in the field of Krishna Sahu situated at Kalesara, two country-made pistols were lying, then he along with Jagdish, T.I. and the accused went towards the field and seized 1-1 each country- made pistols as per information given by the accused persons and seizure memos are Exs. P/5 and P/6, in which he admitted his signatures on B to B part. 14. PW-9 Laxmi Prasad, ASI recorded the FIR vide Ex. P/1. PW-10 S. R. Diwan, Naib Tahsildar, who conducted the Test Identification Parade and admitted his signatures on Identification memos vide Exs. P/4 and . P/9. 15. Before learned trial Court prosecution did not ask any question about Test Identification Parade from the complainant- Ghasiram Yadav, but the complainant clearly admitted in his cross-examination that he saw 6 both accused in the Court at the time of motorcycle supurdnama proceeding. Other independent witnesses did not identify the accused persons and it is also clear from seizure memos that two country-made pistols were seized from the field of Krishna Sahu, however, it is written in both seizure memos Exs. P/5 and P/6 that original seizure memos are attached in charge-sheet of another Crime Nos. 403/04 & 404/04 and no memorandum proved by the prosecution before the learned trial Court, so prosecution has failed to prove this fact that these articles were recovered on the basis of his memorandum statement. The prosecution has also failed to prove Test Identification Parade Memo from the complainant. 16. PW-10 S.R. Diwan, Naib Tahsildar stated about whole proceedings, but the complainant admitted this fact that he saw accused persons in the Court, no memorandum and seizure proved by the prosecution before learned trial Court, but the learned trial Court on the basis of Test Identification Parade convicted the appellants. 17. It is quite evident that motorcycle was not recovered from any of the appellants and it was recovered from another co-accused (Juvenile) on the basis of his memorandum statement and he charge-sheeted before the learned Juvenile Justice Board, Durg for the said offence. Thus, the learned trial Court did not appreciate the oral and documentary evidence properly and thereby convicted the appellants for the said offences. It is quite vivid that the prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubt, thus, findings recorded by learned trial Court are not sustainable. 18. Ex consequenti, the appeal is allowed and the impugned judgment dated 29.12.2006 of the learned trial Court is hereby set aside. The appellants are acquitted of the charges levelled against them. 7 19. The appellants are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellants are also directed to furnish a personal bond for a sum of Rs. 25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 20. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL