1 2025:CGHC:32597 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 891 of 2006 Samunder @ Sonu @ Raju, S/o Jail Singh, aged about 25 years, R/o Mudul, Police Station- Majetha, District- Amritsar, Punjab. Temporary Address- Dabra Para, Bhilai,- 3, District- Durg (C.G.) ... Appellant versus State of Chhattisgarh through P.S.- Jamul, District- Durg (C.G.) ----- Respondent/State For Appellant : Mr. Virendra Verma, Advocate appears through Legal Aid. For Respondent/State : Ms. Nandkumari Kashyap, Panel Lawyer. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 14.07.2025 1. On 07.05.2025, a fresh non-bailable warrant was issued against the appellant through concerned Superintendent of Police for his production before this Court on 14.07.2025. 2. Today, service report of non-bailable warrant of the appellant received unserved with a note that he is not residing in the given address. 3. Looking to the pendency of this case, which is pending since 2006 and since long no one has been appearing on behalf of the appellant to contest the matter, therefore, in these circumstances, this Court Digitally signed by AMIT PATEL 2 requested to Shri Virendra Verma, learned Panel Lawyer to assist the Court and contest the matter on behalf of the appellant. 4. The Secretary, High Court Legal Aid Committee is directed to appoint Shri Virendra Verma, Advocate to contest the matter on behalf of the appellant and authorization letter in this regard be also issued. 5. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 06.11.2006 passed by Fourth Additional Sessions Judge, Durg, District- Durg (C.G.) in Sessions Trial No.105/2005, whereby the said Court convicted the appellant and sentenced him as under:- Conviction Sentence Under Section 392 of IPC R.I. for 05 years with fine amount of Rs. 100/-, in default of payment of fine, to undergo additional R.I. for 01 month each. 6. Brief facts of the case are that on 17.05.2004 at about 11: 20 pm, the complainant- Manharan Lal, who along with one Pammi Meshram @ Swarnalata were returning to home on his motorcycle and when they reached near canal behind of the A.C.C. colony near the railway crossing, it was dark, two boys aged between 25-30 years ran towards them, stopped them and threatened them to kill by taking out knife which was in their possession and then demanded money from them and thereafter snatched one mobile phone bearing No. 9425234423 from the front pocket of the complainant- Manharan and robbed a sum of Rs. 70/-, then the accused persons took undue advantage of the darkness and fled from the spot. Thereafter the report lodged by the complainant before the concerned police station against the unknown 3 persons and spot map was prepared and on the basis of the complaint, the police started searching for the accused persons and after passage of seven days, police caught hold of the accused for the commission of the aforesaid offence. After completion of due, necessary investigation and test identification parade, they were charge-sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial. On the basis of the material contained in the charge- sheet, learned trial Court framed charges against the appellant and co- accused person for alleged commission of offence under Section 397 of IPC. The appellants/accused persons having abjured guilt were subjected to trial. 7. In order to establish the charges against the accused persons, the prosecution has examined as many as 06 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. 8. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record has acquitted the co-accused of all the charges and thereby convicted and sentenced the present accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal. 9. Learned counsel for the appellant submits that the learned trial Court has not properly evaluated the material available on record and wrongly convicted the appellant. Learned trial Court also failed to appreciate this fact that the prosecution has failed to establish the ingredient of Section 4 392 of IPC. He further contended that neither the independent witnesses have made any statement against the appellant, nor they have turned hostile and thus, have not supported the prosecution case. The complainant has deposed that due to darkness at the time of incident and on the other side, he has deposed that he was able to identify the accused persons, his statement is contrary and as such this witness is not trustworthy and unreliable, hence prosecution has failed to prove its case beyond reasonable doubt. So, the impugned judgment is liable to be set aside. Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellant under Section 392 of IPC, as imposed by the Trial Court is just and proper, the incident took place in the year 2005, this appeal is pending since 2006, the appellant is now aged more than 40 years and appellant has remained in jail for more than 03 years and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already undergone by him. 10. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellants. So, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 11. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 5 12. It is evident from record of learned learned trial Court that it framed charges for offence punishable under Section 397 of IPC against the appellant and another co-accused person namely Sonu @ Sandeep @ Sona and after appreciation of oral and documentary evidence, learned trial Court convicted the appellant and another co-accused person for offence under Section 392 of IPC. 13. Complainant- Manharan Sahu (PW-2) and eye witness Pammi Swarnlata (PW-4) identified both of the accused persons and have clearly stated against the appellant and co-accused person in their depositions. 14. Ganesh (PW-1) and Safeen Das (PW-3) have admitted their signatures on memorandum and seizure memo. M. R. Janghel, Naib Tahsildar (PW-5) has proved the test identification parade vide Ex. P/8, in which the complainant has clearly identified the accused persons. From bare perusal of the record and from close scrutiny of all the witnesses, clearly establish the involvement of the appellant in the crime in question, this Court is of the view that the learned Trial Court did not commit any illegality or irregularity in the findings as recorded by learned Trial Court as regards conviction of the appellant. So, the conviction of the appellant is hereby affirmed. 15. As regards the sentence, keeping in view the facts that incident took place in the year 2005, this appeal is pending since 2006, appellant is now aged more than 40 years and appellant has remained in jail for about more than 03 years and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him is reduced to the period 6 already undergone by him. 16. Ex consequenti, the appeal is partly allowed. Conviction of the appellant under the aforementioned section is affirmed and he is sentenced to the period already undergone by him. The impugned judgment stands modified to the above extent. 17. Non-bailable warrant was issued against the appellant on several occasions, but the same received unserved due to his not residing in the given address, as such the appellant is still on bail. However, in view of provisions of section 481 of BNSS, 2023, he shall furnish a bail bond for a sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the concerned trial Court to ensure his appearance before the higher Court as and when such Court issues notice in respect of any appeal being filed against this judgment, and this bail bond shall remain in force for a period of six months from today. 18. 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/- AMIT PATEL (Rajani Dubey) JUDGE