1 2025:CGHC:15769 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1201 of 2024 Judgment reserved on : 03/02/2025 Judgment delivered on: 03/ 04/2025 1 - Mohd. Osama S/o Jakir Husain, aged about 24 years, R/o Village Bojhwa, Police Station Lalganj, District Pratapgarh (U.P.) 2 - Mohd. Shahrukh Khan S/o Mo. Sharif Khan, aged about 24 years, R/o Village Chhemersaraiya, Police Station Lalganj, District Pratapgarh (U.P.) ---Appellants Versus The State of Chhattisgarh, Through Station House Officer, Police Station Bemetara, District- Bemetara (C.G.) ---Respondent/State _____________________________________________________________ For Appellant No. 1 : Mr. Syed Afaque Hussain Rizvi, Advocate. For Appellant No.2 : Mr. Vimlesh Bajpai, Advocate. For Respondent/State: Mr. Vivek Sharma, Panel Lawyer. _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey CAV Judgment 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 20.06.2024 passed by learned Sessions Judge, Bemetara, District- Bemetara (C.G.) in Sessions Trial No. 06/2020 whereby the said Court convicted Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 the appellants and sentenced them as under:- Conviction Sentence Under Section 460 r/w Section 34 of IPC R.I. for 10 years with fine amount of Rs. 5,000/-, in default of payment of fine, to undergo R.I. for 01 year. Under Section 307 r/w Section 34 of IPC R.I. for 10 years with fine amount of Rs. 5,000/-, in default of payment of fine, to undergo R.I. for 01 year. Under Section 25 (1) (a) (b) of Arms Act, 1959 R.I. for 05 years with fine amount of Rs. 1,000/-, in default of payment of fine, to undergo R.I. for 01 month. Under Section 27 of Arms Act, 1959 R.I. for 05 years with fine amount of Rs. 1,000/-, in default of payment of fine, to undergo R.I. for 01 month. (All the substantive sentences are directed to run concurrently.) 2. The case of the prosecution, in brief, is that a report was lodged by complainant- Lalit Rajak in Police Station- Bemetara alleging that he works at Ambika Petrol Pump, Raipur Road, Kobiya owned by Akhilesh Sharma, who resides in Bemetara and fills petrol and diesel in two wheelers and four wheelers. On 29.08.2019, he was on duty from 5.30 pm with his friend Shubham Kashyap and Dhaneshwar Sahu. At around 12 o’ clock, the complainant and Dhaneshwar Sahu were lying on their beds in the room in front of the petrol pump office and were awake. Shubham Kashyap was sitting in the room behind the office. On the night of 30.08.2019, at about 1.00 am, three unknown persons came on a motorcycle to the petrol pump office, parked the motorcycle and started knocking on the glass of the office, upon noticing them, Shubham Kashyap woke up the complainant and his friend. Then the 3 complainant and Dhaneshwar Sahu got up and saw that all three persons were holding weapons i.e., they were in possession of pistols in their hands and they were in disguise, as such, the complainant and his colleague did not open the door, then the accused persons broke the glass forcefully by hitting it with the pistols, which were in their possession, one of them entered the office and started fighting, who was caught by Dhaneshwar Sahu. When the complainant started hitting the two people standing outside with a stick from inside to drive them away, then both of them, with the intention of killing the complainant and his friend, made a fatal attack and shot them with the pistol in their hands, due to which the complainant got shot on the right side of his chest and blood was oozing from it and after that all three of them fled on a motorcycle. The complainant informed his owner about the fateful incident. On the basis of the complainant’s complaint, police of Police Station- Bemetara registered a crime against unknown persons in Dehati Nalishi and thereafter registered the FIR and conducted the investigation. After giving notices to the witnesses, a spot map was prepared and injured was sent for treatment. After completion of investigation, when evidence of crime was found against the accused persons, they were arrested on 04.10.2019 and thereafter a charge- sheet was led before the Court of Chief Judicial Magistrate Bemetara, District- Bemetara (C.G.) and thereafter, the matter was committed to the learned Sessions Judge, Bemetara, District- Bemetara (C.G.) and they were put to trial for the offence under Sections 395, 397 of IPC and Section 25 of the Arms Act to which the appellants abjured their guilt and prayed for trial. 3. 3. In order to bring home the guilt, the prosecution has examined as many as 19 witnesses to prove its case against the accused persons. Statements of the accused/appellants were recorded under Section 313 of Cr.P.C wherein they denied all the incriminating circumstances appearing against them in the prosecution case and pleaded their innocence and false implication. 4. Learned trial Court after appreciation of oral and documentary 4 evidence on record acquitted the co-accused persons namely Ashok Sharma, Dinesh Pal, Guddu Ansari and Doman Sharma of the offence under Sections 395, 397 of IPC and Section 25 of the Arms Act and convicted and sentenced the present appellants namely Pappu Choudhari alias Prem Kumar, Munna Singh and Satyendra Dubey for the offence punishable under Sections 395, 397 of IPC and Section 25 of the Arms Act and sentenced them as described in opening para of this judgment. Hence, this present appeal filed by the appellants. 5. Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence dated 20.06.2024 is completely bad-in-law as well as facts available on record. The learned trial Court has failed to appreciate that the identification of the accused is not proved by the prosecution. The learned trial Court also ignored that the identification process of the prosecution is doubtful and vitiated as the identification process has not been conducted properly. The learned trial Court has failed to appreciate that the prosecution has completely failed to prove the seizure process, the seizure witnesses have not supported the prosecution case before the learned trial Court. Lalit Rajak (PW-02) and Dhaneshwar Sahu (PW-04) have stated that faces of the accused were covered in such a situation, the identification process is doubtful. The accused/appellants have been arrested without completing the identification process which is not legal. The prosecution has failed to prove the charges leveled against the accused persons/appellants. The learned trial Court relied upon the interested witnesses, they are arranged and managed by the prosecution itself, therefore, their statements are suspicious and doubtful and accused/appellants are entitled for benefit of doubt. It is clear from F.I.R. that it was lodged by the complainant against the unknown persons and at the time of occurrence, the faces of unknown persons were covered and they were not identified by any of the staff of the petrol pump, but at the time of identification how PW-03 and PW-04 easily identified the accused persons/appellants is not at all explained by the prosecution witnesses. The learned trial Court did not appreciate 5 the oral and documentary evidence properly and gave wrong findings. So, the impugned judgment is liable to be set aside. 6. Ex adverso, learned counsel for the State supported the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted and sentenced the appellants. So, this appeal being devoid of merit is liable to be dismissed. 7. Heard both the counsel for the parties and perused the material available on record including the impugned judgment. 8. It is clear from the record of the learned trial Court that learned trial Court framed charges under Section 460 read with Section 34, 307/34 of IPC and Section 25(1) (a) (b) and Section 27 of the Arms Act against both the accused persons/appellants and after appreciation of oral and documentary evidence, the learned trial Court convicted both the appellants under Section 460/34 and Section 307/34 of IPC and Section 25 (1) (a) (b) and Section 27 of Arms Act and sentenced them as described in the opening paragraph of this judgment. 9. (PW-02) Lalit Rajak, the complainant stated that he is working in Ambika Petrol Pump and on the date of incident, two years ago, it was August 2019, he along with his friends Dhaneshwar and Shubham were on duty at the petrol pump, they had reached the petrol pump at 5:30 pm. At around 12 o’ clock in the night, he along with his friends were lying on their beds, Shubham was sitting in the back of the room. At around 1: 00 am, three unknown persons came on a motorcycle near the petrol pump office and started knocking on the glass, Shubham noticed their act and woke me and Dhaneshwar up. As per the information provided by the complainant, (PW-02) Lalit Rajak, Dehati Nalishi vide Ex. P/01 was lodged and police also recorded dying declaration Ex. P/02. He admitted his signature on A to A part and he further stated that he identified the accused persons/appellants in Central Jail, Raipur and on test identification 6 memo Ex. P/03 he admitted his signature. 10. (PW-03) Shubham stated the same story that three unknown persons knocked the door of the petrol pump and they fired, as a result of which Lalit got shot and they ran away. On seizure memo Ex. P/04. (PW-03) Shubham admitted his signature on B to B part. The prosecution declared him hostile and cross-examined him, but he denied all suggestions of the prosecution that he saw the accused persons/appellants and also saw the full incident. In cross-examination, he admitted this suggestion of the defence that all three persons covered their faces and at that time, they were unable to identify them due to darkness. 11. (PW-04) Dhaneshwar Sahu stated in his examination-in-chief that all three persons came to the petrol pump and one person was armed with pistol in his hand and he fired, due to which the complainant Lalit Rajak got shot and in total they were three persons and they all ran away. He further stated that all three persons covered their faces and at that time, they were unable to identify them due to darkness. He admitted his signature on seizure memo Ex. P/04 on A to A part. 12. (PW-01) Akhilesh Sharma stated that he is the owner of Ambika Fuels Petrol Pump and he was apprised by his staff regarding the complainant Lalit Rajak (PW-02) being shot by one of the accused persons/appellants. He admitted in his cross-examination that he did not see the incident and there was no loot of money made from his petrol pump. 13. (PW-07) Vikas Sahu stated that he did not see the incident and police called him at the police station. In para 3 of his examination-in-chief, he stated the people who had committed robbery were present in the police station. The policeman had questioned them and confiscated mobile phones, country-made pistols, cartridges, motorcycles etc. and read out the seized items and on memorandum Exs. P/06 and P/07 and on seizure Exs. P/08 and P/09 he admitted his signature on A to A part. 7 In cross-examination, he and (PW-08) Ishwar Nishad admitted the fact that whatever signatures they made were made in the police station. 14. (PW-09) Dr. Anand Nirmalkar stated that he examined (PW-02) Lalit Rajak on 30.08.2019 and he found punctured wound on the lower part of his chest which was caused by fire arm and he referred him to medical hospital, Raipur for his treatment and his report is Ex. P/10. He also admitted his signature on dying declaration Ex. P/02 on B to B part. He also stated that in his query report vide Ex. P/11 that there can be no definite opinion given that whether the gun shot injury would lead to his death or not. 15. (PW-18) Dr. Sarita Das, stated that she was posted at Medical College, Raipur and on 30.08.2019, she examined the complainant Lalit Rajak (PW-02) and found one 3 cm x 1cm x 2 cm wound on his left side of chest and the bullet was recovered from operation and pipe was inserted in his body. The whole treatment related Bed head ticket is Ex. P/25 and she admitted her signature on it from A to A part. She stated that if treatment was not given to him at the right time, he would have died. 16. Looking to the statements of both the Doctors, it is clear that (PW-02) Lalit Rajak has sustained injuries in his chest by fire arm and Dr. Sarita Das, who treated the victim (PW-02) Lalit Rajak opined that if treatment was not given to him at the right time and if the bullet was not removed from his body, then he would have died. As such, the learned trial Court rightly finds that the nature of injuries sustained by Lalit Rajak (PW-02) is dangerous to his life. 17. The main objection of learned counsel for the appellants is that original memorandum and seizure memo were not filed by the prosecution in this case and only attested copy of memorandum and seizure memo were filed and both witnesses have not supported the memorandum and seizure and they have only admitted their signature and stated that they put their signatures at the police station and at that time seized articles were present in the police station. Lalit Rajak (PW-02) also 8 stated in his examination-in-chief that three unknown persons covered their face and in cross-examination, he admitted that all three persons covered their face and at that time of incident, there was darkness and there was no light inside the room of the complainant. Shubham Kashyap (PW-03) and Dhaneshwar Sahu (PW-04) have also not identified the accused persons/appellants. 18. Krishna Kumar Sahu (PW-20) conducted Test Identification Parade, he stated in his examination-in-chief that on 18.10.2019, he conducted Test Identification Parade and the complainant (PW-02) Lalit Rajak rightly identified both the accused persons/appellants Mohd. Osama and Mohd. Shahrukh Khan, then he prepared identification memo Ex. P/03 and he then admitted his signature. This witness also admitted in para 6 of his cross-examination that it is true that there is no mention in the identification memo that their faces were covered with a blanket. 19. Investigating officer Lakhan Singh Verma (PW21) stated that he recorded memorandum statement of accused Shahrukh vide Ex. P/06 and memorandum statement of accused Osama vide Ex. P/07 and seized pistol from motorcycle bearing registration No. UP 72 AD 5399 and prepared seizure memo vide Ex. P/09. In cross-examination he admitted that he did not find anything regarding the owner of the motorcycle. 20. In Dehati Nalishi (Ex. P/01) the complainant only stated against three unknown persons and motorcycle. Thereafter, dying declaration was recorded by the doctor (Ex. P/02) who also recorded against three unknown persons and the Investigating Officer stated that he recovered pistol from motorcycle which is standing in Railway Station parking as per the memorandum of the accused persons, but it is clear that both witnesses (PW-07) Vikas Sahu and (PW-08) Ishwar Nishad have not supported the memorandum and seizure, even the original memorandum and seizure have not been produced by the prosecution, only the attested copy of all four documents were filed by the prosecution with charge-sheet and at the time of recording of evidence of witnesses, their signatures is marked on A to A part and on B to B 9 part. The Investigating Officer has also stated that he did not enquire about the owner of the motorcycle and the prosecution was unable to explain this fact as to how that motorcycle belongs to accused persons/appellants. 21. Lalit Rajak (PW-02) the complainant is the only witness who identified both the accused persons/appellants in the test identification parade at Central Jail, Raipur, however, he did not explain that how he identified both the accused persons/appellants. The complainant and other witnesses admitted this fact that all three persons covered their face and at the place of incident, there was no light inside the room of the complainant. In Dehati Nalishi (Ex. P/01) there is no specific identification made of the accused persons/appellants regarding their personality. 22. Hon'ble Apex Court held in the matter of Ravishankar Tandon Versus State of Chhattisgarh passed in CRA No. 3869 of 2023 in paras 13 & 14 as under:- “13. As such, for bringing the case under Section 27 of the Evidence Act, it will be necessary for the prosecution to establish that, based on the information given by the accused while in police custody, it had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the said statement. It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It has been held that the rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. 14. We will have to therefore examine as to whether the prosecution has proved beyond reasonable doubt that the recovery of the dead body was on the basis of the information given by the accused persons in the statement recorded under Section 27 of the Evidence Act. The prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered.” 10 23. Hon’ble Apex Court in the matter of Gireesan Nair and Ors. Vs State of Kerala held in paras 32, 33 & 34 which reads as under:- “32. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk Ahmed Shaikh v. State of Maharashtra7). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh19 and Ramkishan Mithanlal Sharma v. State of Bombay20). 33. It is significant to maintain a healthy ratio between suspects and non-suspects during a TIP. If rules to that effect are provided in Prison Manuals or if an appropriate authority has issued guidelines regarding the ratio to be maintained, then such rules/guidelines shall be followed. The officer conducting the TIP is under a compelling obligation to mandatorily maintain the prescribed ratio. While conducting a TIP, it is a sina qua non that the non-suspects should be of the same age-group and should also have similar physical features (size, weight, colour, beard, scars, marks, bodily injuries, etc.) to that of the suspects. The officer concerned overseeing the TIP should also record such physical features before commencing the TIP proceeding. This gives credibility to the TIP and ensures that the TIP is not just an empty formality (Rajesh Govind Jagesha v. State of Maharashtra21 and Ravi v. State10). 34. It is for the prosecution to prove that a TIP was conducted in a fair manner and that all necessary measures and precautions were taken before conducting the TIP. Thus, the burden is not on the defence. Instead, it is on the prosecution (Rajesh Govind Jagesha v. State of Maharashtra21). 24. In the light of above cited judgment, in the present case also, the Test Identification Parade is doubtful as the complainant Lalit Rajak (PW-02) was not able to explain this fact that how he identified the accused persons/appellants as he did not see their faces at the time of incident and no particulars of identification like their physical features etc. were mentioned in the Dehati Nalishi Ex. P/01 and in his dying declaration 11 (Ex. P/02) and all three witnesses Lalit Rajak (PW-02), Shubham (PW- 03) and Dhaneshwar (PW-04) have admitted this fact that at the time of incident, there was darkness and also there was no light inside the room of the complainant and all three witnesses did not mention the year in which the motorcycle was manufactured and the number on the number plate of the motorcycle. Investigating Officer seized pistol from the motorcycle, but memorandum witnesses have not supported the memorandum vide Ex. P/06 and it is also clear that the photocopy of the memorandum Exs. P/06 and P/07 and the photocopy of the seizure memo Exs. P/08 and P/09 were produced by the prosecution. These all documents were prepared on 05.09.2019 and the prosecution has utterly failed to prove this fact that the motorcycle belongs to both the accused persons/appellants and at the time of incident they used this motorcycle. So, the statement of Lalit Rajak (PW-02) as in Test Identification Parade memo Ex. P/03 is not reliable and memo Ex. P/06 and seizure of pistol (Katta) is also doubtful, even original documents were not produced before the learned trial Court, only photocopy attested by the Investigating Officer were produced in this case, however, the learned trial Court did not appreciate all these facts. It is well settled principle of law that the prosecution has to prove its case beyond all reasonable doubt. 25. (PW-13) Amarendra Kumar, who examined the pistol only stated that there is a pistol which is in running position that it can be fired with it and all three bullets were also in running position and it can be fired with them and he gave his report Ex. P/22, but there is no evidence in this regard to show that bullets so seized from Lalit’s body were of the same pistol or not. So, the prosecution has failed to prove this fact that both the accused persons/appellants were present in those three persons who came at petrol pump at night and attacked the complainant. However, the learned trial Court did not appreciate all these facts and gave wrong findings. So, findings recorded by the learned trial Court are not sustainable. 26. For the foregoing reasons, the appeal is allowed and the impugned judgment dated 20.06.2024 passed by learned Sessions Judge, District 12 Bemetara (C.G.) in Sessions Case No. 06/2020 is set-aside. The appellants are acquitted of the aforesaid charges leveled against them. 27. Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, 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 thereof, shall appear before the Hon’ble Supreme Court. 28. 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 U.K. Raju