1 2025:CGHC:59600 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1718 of 2023 1 - Sandeep Hate S/o Dinesh Hate Aged About 25 Years R/o- Banstal, Sweeper Colony, P.S.- Goal Bazar, District : Raipur, Chhattisgarh 2 - Ishwar Tangil @ Girgit S/o Mukesh Tangil Aged About 25 Years R/o Shastri Market, Beside Chicken Shop, Dhobi Gali, P.S.- Goal Bazar, District : Raipur, Chhattisgarh ... Appellants versus State Of Chhattisgarh Through- Station House Officer, Police Station- Goal Bazar, District : Raipur, Chhattisgarh ... Respondent (Cause title, as taken from Case Information System} For Appellants : Mr. Pushkar Sinha, Advocate. For Respondent : Mr. Pratik Tiwari, Panel Lawyer. (Hon’ble Mr. Justice Naresh Kumar Chandravanshi) Order on Board 08/12/2025 1. This criminal appeal under Section 374(2) of the Cr.P.C. has been preferred by the appellants/accused against the judgment of conviction and order of sentence dated 24.02.2023 passed by the Upper Sessions Judge/(Special Judge of Special Court for trial of CBI cases) in Sessions 2 Case No. 48/2022, whereby the learned Special Court, after holding the appellants guilty, convicted and sentenced them in the following manner:- Appellant No. 1- Sandeep Hate Conviction Sentence Under Section 397 of the IPC Rigorous Imprisonment for 07 years and fine of Rs.500/-, in default thereof, to undergo additional R.I. for three months. Under Section 25 (1[k) ([k) of the Arms Act, 1959 Rigorous imprisonment for one year and fine of Rs.500/-, in default thereof, to undergo additional RI of three months. Both the sentences were ordered to run concurrently. Appellant No. 2 – Ishwar Tangil @ Girgit Conviction Sentence Under Section 397 read with Section 34 of the IPC Rigorous Imprisonment for 07 years and fine of Rs.500/-, in default thereof, to undergo additional R.I. for three months. 2. Case of the prosecution, in brief, is that on 18.11.2020 at about 9 PM, both the appellants looted Honda Activa bearing registration No. C.G.-07 B.M.-8047 and mobile phone of complainant Azad Banjare (PW-2) near Sahu Hotel, situated at Old Bus Stand, Multilevel Parking, Raipur. FIR (Ex.P-7) was 3 lodged against unknown person, as complainant was not identifying them, for the offence under Section 392 of the IPC at Police Station, Gol Bazar, District Raipur. During investigation, appellants were arrested and on the basis of their memorandum statement, aforesaid Honda Activa was seized on 30.01.2021 from the possession of appellant No. 2 – Ishwar Tangil @ Girgit vide Ex.P-11. Appellant No. 1 – Sandeep Hate was identified by the complainant (PW-2) in Test Identification Parade. 3. After usual investigation, charge-sheet was against appellants for the offence under Sections 392 of the IPC and Sections 25 of the Arms Act, 1959 (for short, “Arms Act”) before Judicial Magistrate First Class, Raipur. 4. Charges under Section 397 read with Section 34 of IPC and Section 25 (1[k) ([k) & 27 of the Arms Act was framed against the appellant No. 1- Sandeep Hate whereas charge under Section 397 / 34 IPC was framed against appellant No. 2 - Ishwar Tangil @ Girgit, who abjured the guilt and entered into trial. 5. In order to prove the charge against the appellants/accused, prosecution has examined as many as 11 witnesses and exhibited 21 documents Statement of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied all the incriminating circumstances appearing against them in the evidence of prosecution case and pleaded their innocence and false implication in crime in question. Appellants have not examined any witness in their defence. 6. After completion of trial, learned Upper Sessions Judge vide its impugned judgment dated 24.02.2023 has convicted and sentences both the appellants, as has been mentioned in opening paragraph of the judgment, which has been assailed by them in the instant appeal. 4 7. At the outset, learned counsel appearing for the appellants/accused submits that he is not pressing this appeal as regards conviction part of the impugned judgment and would confine his arguments to the sentence part thereof only. He further submits that appellants looted Honda Activa and mobile from the complainant on the point of knife, but while referring to judgment rendered by the Supreme Court in the matter of K. Balaji vs. State represented by the Inspector of Police 1 would submit that 'knife has not been held to be deadly weapon'. It is further submitted that no injury was caused to the complainant and alleged incident occurred at street (xyh). It is next contended that appellants remained in custody during trial for 288 days and 1051 days, respectively. Thereafter, they are remaining in jail from date of passing of judgment i.e. 24.02.2023, till date, thus, the appellant No. 1 has remained in jail 3 years & 6 months and appellant No. 2 has remained in jail 5 years, 9 months. Hence, he prayed that the jail sentence of the appellants be reduced to the period already undergone by them. 8. On the other hand, learned counsel for the State supported the impugned judgment of conviction, as also the sentence part of the judgment. 9. I have heard learned counsel for the parties and perused the material available on record, including record of Court below with utmost circumspection. 10. Though, counsel for the appellant is not pressing instant appeal as regards conviction part of the impugned judgment, but having considered deposition of complainant (PW-2) and further considering the fact that he (PW-2) identified appellant No. 1 – Sandeep Hate in Test Identification 1 Criminal Appeal No. 1157 of 2018, decided on 30th January, 2025. 5 Parade and alleged Honda Activa was seized from the possession of appellant No. 2- Ishwar Tangil @ Girgit holding appellants guilty for the offence of loot by Upper Sessions Judge does not suffer from perversity or illegality, but the offence committed by the appellants does not fall under Section 397 of the IPC, as neither any injury was caused to the complainant nor appellants were having any deadly weapons, because Hon'ble Supreme Court in the case of K. Balaji (supra) has held in that case that knife in question was not termed to be a deadly weapon within the scope and ambit of Section 397 of the IPC, therefore, having considered aforesaid judgment of Hon’ble Supreme Court, conviction of the appellants for the offence under Section 397 IPC is not found to be sustainable, instead thereof, appellant is liable to be convicted for the offence under Section 392 of the IPC. 11. 11. In view of the above, it is held that the offence committed by the appellants falls under Section 392 of IPC instead of Section 397 of IPC, therefore, the appellants are convicted for the offence under Section 392 of IPC instead of Section 397 of IPC. Their conviction for the offence under Section 25 (1[k) ([k) of the Arms Act is also upheld. 12. So far as sentence part of the impugned judgment is concerned, appellants were in custody during trial from 4.12.2020 to 17.9.2021 and from 29.01.2020 to 14.12.2022, respectively, thereafter, they were sent behind the bar from the date of judgment i.e. 24.02.2023 to till date. The appellants have been sentenced for 7 yeas for the offence under Section 397 IPC , but since their conviction has been altered/converted from 397 of IPC to 392 IPC and no useful purpose would be served in further sending them behind the bar, rather it would be just & proper, if the sentence period of the appellants is 6 reduced to period already undergone by them, as has been mentioned above. 13. In view of the above, the appeal is partly allowed. Conviction of the appellant for the offence under Section 25 (1[k) ([k)of the Arms Act is affirmed and conviction of appellant under Section 397 is altered /converted to Section 392 of the Indian Penal Code and they are sentenced to the period already undergone by them, as mentioned above. Fine sentence imposed upon the appellants is also maintained. Other terms of impugned judgment are hereby affirmed. 14. Appellants are reported to be in jail. They be set free forthwith, if not required in any other case. 15. Record of the Upper Sessions Judge be returned forthwith along with a copy of this judgment for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.12.11 10:44:32 +0530