1 2025:CGHC:49947 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1213 of 2024 1 - Raju Pal S/o Shri Jatin Pal Aged About 19 Years R/o Village- P. V. -78, Police Station- Pakhanjur, District - Urrar Bastar Kanker, District : Kanker, Chhattisgarh ---Appellant(s) Versus 1 - The State Of Chhattisgarh Through The Station House Officer, Police Station- Pakhanjur, District Uttar Bastar, District : Kanker, Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant(s) : Mr. Arun Kumar Shukla, Advocate For Respondent(s)/State : Ms. Priya Sharma, Panel Lawyer ... Respondent(s) CRA No. 1231 of 2024 1 - Amit Rai S/o Late Ramesh Rai Aged About 30 Years R/o Village P.V. - 96, P.S. Pakhanjur, District North Bastar Kanker (C.G.) --- Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Pakhanjur District North Bastar Kanker (C.G.) --- Respondent(s) (Cause title taken from Case Information System) For Appellant(s) : Mr. Nitansh Kumar Jaiswal, Advocate For Respondent(s)/State : Ms. Priya Sharma, Panel Lawyer VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2025.10.15 18:46:20 +0530 2 Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 07/10/2025 1. Both these appeals are arising out of the same crime number and a common judgment, and therefore, they are being heard and decided together. Both these appeals are listed for consideration on I.A. No. 1 of 2024, which are the applications for suspension of sentence and grant of bail of the respective appellants, however, with the consent of the parties, the appeals have been heard finally. 2. Both these appeals are arising out of the judgment of conviction and sentence dated 20.06.2024, passed by learned Additional Sessions Judge, Bhanupratappur, District North Bastar, Kanker (C.G.), in Sessions Case No. 18 of 2021, whereby the appellants have been convicted and sentenced in the following manner:- Conviction sentence U/s. 458/34 of IPC R.I. for 10 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 03 months. U/s. 395 of IPC R.I. for 07 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 03 months. U/s. 120-B of IPC R.I. for 05 years with fine of Rs. 500/-, in default of payment of fine additional R.I. for 02 months. U/s. 384/34 of IPC R.I. for 03 years with fine of Rs. 500/-, in default of payment of fine additional R.I. for 02 months. U/s. 25 and 27 of Arms Act R.I. for 07 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 04 months. All the sentences are directed to run concurrently. 3 3. The prosecution’s case in brief are that, the complainant Vishwajeet Adhikari/PW-1 made a written complaint (exhibit P-1) on 28.11.2020 to the police of police station Pakhanjur with the allegation that on 18.10.2020, three unknown persons covered their faces by black clothes, out of which one was having pistol and walkie-talkie wireless set called him to come out from his house and when he came out from his house, they started assaulting him and looted Rs. 5 lakhs cash, which were kept in almirah, thereafter from the room of his brother they also looted two golden malgalsutra, two pairs ear studs, and two finger rings. At the time of committing loot, they exhorting “Lal salaam” and threatened them that, if they would lodge the report to the police, they would kill them. Due to fear, they could not lodge the report. On 05.11.2020, at about 6:20 PM, two persons again came to his house and asked him to gave them Rs. 5 lakhs cash and to send it the same on 06.11.2020, at about 12:00 noon, near the school at Nelchang Kodekursi, failing which they would kill them On 06.11.2020, at about 12:00 noon, he along with one Uttam Mandal had gone to the place, where they have been called, two persons came there, introduced themselves to be a naxalites and demanded money from him. He requested them that, he will give them money after Diwali festival, thereafter they left the place. Due to fear, he again could not tell the incident to anyone, however after sometime, he regained his confidence and informed the incident to his near and dear Bhajan Vishwas and Sahdev Bachhad, thereafter he lodged the complaint on 28.11.2020. Based on the written complaint, the FIR (exhibit P-2) was registered for the offence under Sections 392, 458 and 34 of IPC against unknown persons. 4 4. Spot map (exhibit P-3) was prepared by the police. During the investigation, the police received a secrete information about the suspects, who committed the offence on 18.10.2021 and then the police prepared the secrete information panchnama (exhibit P-22) on 29.11.2020. On being secrete information, the police have inquired from Ajay Mandal/PW-4, and thereafter, the appellant Raju Pal was taken into custody on 30.11.2020 and his memorandum statement (exhibit P-7) was recorded, in which he disclosed about commission of the offence along with other accused persons. Based on his memorandum, cash of Rs. 10,000/- and one mobile phone has been seized from him vide seizure memo (exhibit P-8). The co-accused Amit Rai was also taken into custody on 30.11.2020 and his memorandum statement (exhibit P-9) was also recorded and from the accused Amit Rai, one semi-automatic pistol (32 bore), one magazine having four live cartridges (32 bore), one box of walkie- talkie set, in which two chargers, two headphones, two charger adopters and one pencil battery charger, the passbook of the accused, two golden mangalsutra, two pairs of golden ear studs, two golden finger rings, one pearl mangalsutra, two golden tops, two golden chains, two golden nose pins, one silver bracelet, one golden necklace, two pairs of ear studs, two golden tops, one ATM card, one mobile phone, cash of Rs. 5000/- and his Honda motorcycle have been seized vide seizure memo (exhibit P-12). From the spot pointing out by the accused Amit Rai, the ash of burnt naxalite dress and soil have also been seized vide seizure memo (exhibit P-13). The spot map (exhibit P-6) and panchnama (exhibit P-7) were prepared by the Patwari. On the memorandum of the co-accused 5 Anish Benarjee (exhibit P-20) , cash of Rs. 1100/-, motorcycle and one mobile phone have been seized vide seizure memo (exhibit P- 14). On the memorandum of the co-accused Shishir Bairagi (exhibit P-21), cash of Rs. 900/- and one mobile phone have been seized vide seizure memo (exhibit P-15). 5. The local people refused to be the witness of the police proceeding and a panchnama to that effect has been prepared, which is (exhibit P-23). The recovery panchnama of the seized articles from the accused Amit Rai was prepared, which is exhibit P-24. The spot inspection panchnama of the burnt clothes is also prepared, which is exhibit P-25 and the wireless walkie-talkie set and bag search panchnama (exhibit P-26) is also prepared. The identification panchnama of the ornaments (exhibit P-27) was also prepared, in which Smt. Mamta Adhikari identified the ornaments that it was the looted property from her house. The pistol and cartridges seized by the police has been sent for its examination to arms repairing workshop, North Bastar, Kanker, from where report (exhibit P-30) was received by the police. 6. On 14.12.2020, the another co-accused Sanjeet Vishwas @ Gadai was arrested and his memorandum statement (exhibit P-35) was recorded and Rs. 5000/- cash have been seized from him vide seizure memo (exhibit P-36). The other co-accused Anant Goldar was also arrested on 14.12.2020 and based on his memorandum statement (exhibit P-39), Rs. 4500/- cash, motorcycle and RC book of the motorcycle have been seized vide seizure memo (exhibit P- 40). 6 7. The seized ornaments were kept in safe custody of malkhana of the police station and for its identification, it was taken out and the panchnama (exhibit P-45) was prepared. The Executive Magistrate, Pakhanjur was directed to conduct the test identification parade of the accused persons and the relevant memos issued to the Executive Magistrate, Pakhanjur are exhibit P-46 and P-47. The test identification parade was conducted by Sunil Kumar Dhruw, Executive Magistrate/PW-4 and identification panchnama (exhibit P- 4) was prepared, in which the witnesses have duly identified the accused Amit Rai, Shishir Bairagi and Raju Pal, however the witnesses of other accused Sanjeet Vishwas and Anant Goldar could not be identified and the panchnama (exhibit P-5) was prepared. Sanction for prosecution under the Arms Act was also obtained from the District Magistrate, North Bastar, Kanker, which is exhibit P-67. The mobile details have also been obtained by the police. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned Judicial Magistrate First Class, Pakhanjur for the offences under Sections 392, 458, 34, 395, 120-B, 394, 399, 402, 397, 506 and 384 of IPC and Sections 25 and 27 of Arms Act. The case was committed to the learned trial Court for its trial. 8. The learned trial Court has framed charge against the accused Raju Pal for the offence under Sections 458, 395, 120 and 384/34 of IPC and Section 25 read with 27 of Arms Act. The charges against the other accused persons Amit Rai, Anish Benarjee, Sanjeet Vishwas @ Prasannajeet @ Gadai Vishwas, Shishir Bairagi and Anant Goldar for 7 the offences under Sections 458/34, 395, 120-B and 384/34 of IPC and Section 25 read with Section 27 of Arms Act. The accused persons denied the charge and claimed trial. 9. In order to prove the charge against the accused persons, the prosecution has examined as many as 19 witnesses. Statement of the accused persons under Section 313 of CRPC have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 10. After appreciating the oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the four accused persons namely Anish Benarjee, Shishir Bairagi, Sanjeet Vishwas @ Prasannjeet @ Gadai Vishwas and Anant Goldar by giving them the benefit of doubt, but have convicted the appellants Amit Rai and Raju Pal and sentenced them as mentioned in the earlier part of the judgment. Hence, this appeal. 11. Mr. Arun Kumar Shukla, learned counsel for the appellant Raju Pal (CRA No. 1213 of 2024) would submit that, the prosecution has failed to prove its case beyond reasonable doubt against the appellant. There are material omissions and contradictions in the evidence of prosecution’s witnesses. There is material discrepancies and the identification of the appellant as well as ornaments. No proper procedure have been drawn before conducting the identification of the accused persons and ornaments. The identification was done in presence of the police persons, which make the identification 8 doubtful. No any ornaments or incriminating weapon or article have been seized from the appellant Raju Pal. There is no allegation of use of any weapon against him. On the same set of evidence, the other four accused persons have been acquitted and the case against the appellant Raju Pal is similar to those accused persons, who have been acquitted by the learned trial Court. He would further submit that the alleged incident was of 18.10.2020, however, the report has been lodged on 28.11.2020, which is after about more than 01 month and 10 days and there is no sufficient explanation for the delay in lodging the report. There is no sufficient cogent and clinching evidence against the appellant Raju Pal and he is also entitled for his acquittal. 12. Mr. Nitansh Kumar Jaiswal, learned counsel appearing for the appellant Amit Rai (CRA No. 1231 of 2024) would submit that, there is sufficient discrepancies in the evidence of prosecution’s witnesses to raise suspicious about their credibility of their evidence. The seizure of ornaments and its identification has not been duly proved by the prosecution. He would further submit that there is material discrepancies in the evidence of the complainant/PW-1 and the other witnesses with respect to use of any deadly weapon while committing the offence. The FIR has been lodged against unknown persons that too in a highly belated stage and there is no explanation for the delay. The test identification parade of the accused persons as well as identification of the ornaments have not been conducted in fair and transparent manner and the procedure prescribed for the same have also not been complied with. He would further submit that in he 9 written complaint it was alleged that, the accused persons came in the house of the complainant, covered their faces by clothes and then there is no question of their identification. He would also submit that the other co-accused persons have been acquitted on the same set of evidence and the appellant Amit Rai is also entitled for the same relief and is entitled for the acquittal. 13. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, the evidence of prosecution’s witnesses are fully reliable and considering the evidence, the learned trial Court has convicted the present appellants, in which there is no infirmity or illegality. The discrepancies pointed out by the learned counsel for the respective appellants are minor and does not affect the credibility of the witnesses. The witnesses are the victim of offence and they have duly supported their case. The test identification parade of the accused persons was conducted by the Executive Magistrate, in which the present appellants have been duly identified by the witnesses. The ornaments seized from the accused Amit Rai have also been identified by Smt. Mamta Adhikari, from whose house the said ornaments were looted. Therefore, there is sufficient evidence available on record to sustain the conviction of the appellants and their appeals are liable to be dismissed. 14. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 10 15. In the present case, four accused persons have been acquitted by the learned trial Court by giving them the benefit of doubt and two accused persons have been convicted. The investigation of the case started from 28.11.2020, when the complainant Vishwajeet Adhikari made a written complaint to the police and the FIR (exhibit P-2) was registered. During the investigation, the police received secrete information and involvement of the appellant Raju Pal and thereafter the manner in which the offence was committed was disclosed in the memorandum statement of Raju Pal. 16. PW-1, Vishwajeet Adhikari, who is the complainant in the case, has stated in his evidence that he can identify the accused Amit Rai by his name and face and identify the other accused persons by their faces. On 18.10.2020, when he was in his house, at about 9:00 PM, three accused persons including the accused Amit Rai, Sanjeet Vishwas and Raju Pal came there, who were in police dress, they called him outside of his house and when he opened the door, he accused Amit Rai entered into his house, introduced himself to be a naxalite and assaulted slapped him 2-3 times. His brother Surjeet Adhikari also came there and he assaulted him also. By that time, the other two accused persons also entered into their house and looted Rs. 5 lakhs cash, two golden mangalsutra, three golden finger rings, two pairs of golden ear studs. Rs. 5 lakhs were looted from his almirah and the golden ornaments were looted from the almirah of his brother Surjeet. After committing loot, the accused persons threatened them, not to disclose the incident to anyone and fled away by exhorting the slogan of “Lal salaam”. After about 15 days, on 11 05.11.2020, at about 6:00 PM, the accused persons Amit Rai and Sanjeet Vishwas again came to his house, called him on 06.11.2020, near Nelchang School along with Rs. 5 lakhs cash. On 06.11.2020, when he along with Uttam Mandal had gone there, those two accused persons met him and he requested him that, he will give the money after Diwali festival. After about a week, he disclosed the incident to Bhajan Vishwas and Sahdev Bachhad and then lodged the written complaint on 28.11.2020. Due to the fear and threat of life, he could not lodge the report earlier. It is also said that on 18.10.2020, when the three accused persons came to his house, one of them was having a pistol and the accused persons were having walkie-talkie and exhorting the slogan of “Lal salaam”. He identified the accused persons and in the test identification parade conducted by the Executive Magistrate at Tahsil Office, Pakhanjur, he identified the accused persons Amit Rai, Raju Pal and Sanjeet Vishwas. He proved the documents (exhibit P-1 to P-7). In cross-examination, though he admitted that at the time of incident the accused persons covered their faces by black clothes, but he voluntarily stated that they uncovered their faces at that time. He also denied that he had seen the accused persons at police station Pakhanjur. He proved that when he reached at Tahsil Office, the accused persons were mixed with 12-13 other persons and the test identification parade was conducted by the Executive Magistrate. He also denied that he identified the accused Raju Pal on assumption. In further cross- examination, he further stated that, he identified the persons came on 06.11.2020 by their faces. He clearly denied that he could not identify the accused persons at the time of incident, to whom he 12 identified during their TIP. This witness has duly proved the incident of 18.10.2020 and identification of the accused persons vide identification memo (exhibit P-4 and P-5). The defence had not given any suggestion to this witness that, no incident was occurred on 18.10.2020 or he was not called on 06.11.2020. The cross- examination by this witness was limited to the extent of their identification. 17. PW-2, Surjeet Adhikari, brother of the complainant has stated in his evidence that on being heard the noise of his brother, he came out from his room and he was also assaulted by 2-3 persons. They wore spotted dress and hurling “Lal salaam”. By assaulting them, they took them inside the house and looted Rs. 5 lakhs cash from the almirah of his brother Vishwajeet and on the point of knife, they looted golden ornaments from the almirah of his room. One of them was accused Amit Rai, to whom he identified, when he removed his mask. The person, who is taller than other, having pistol in his hand. Due to the fear and threatening of the accused persons, they could not disclose the incident to anyone. On 05.11.2020, the accused Amit Rai and another person, again came to their house and called his brother Vishwajeet on 06.11.2020 along with Rs. 5 lakhs cash at Nelchang village. On the next day, they had gone to the place, where they have been called and requested the accused persons that, they will give the amount after Diwali festival, thereafter the accused persons went towards jungle by hurling “Lal salaam”. When they disclosed about the incident to Sahdev Bachhad and Bhajan Vishwas, they advised them to lodge report, and thereafter, they made police complaint. He 13 too has identified the accused Amit Rai at Tahsil Office, Pakhanjur. In cross-examination, he admitted that he could not identify the accused Sanjeet Vishwas during the TIP. He too has duly proved the TIP (exhibit P-4 and P-5). He further stated in his evidence that, till the lodging of the report, they were unknown about the names of the accused persons. The cross-examination by the accused by this witness is also restricted up to their identification. 18. PW-3, Smt. Chandna Adhikari is the wife of the complainant Vishwajeet, from whose house Rs. 5 lakhs were looted. She stated in her evidence that, on 18.10.2020, the accused persons came to their house and looted cash from her room and golden ornaments from the room of her brother-in-law. They also threatened them with dire consequences. She identified Anish Benarjee and Amit Rai at the time of incident. After some days, they again came to her house and called them with Rs. 5 lakhs cash near Nelchang school. Her husband had gone there with her neighbour Uttam Mandal and after sometime they came back. Thereafter, they lodged the report. In cross-examination, she stated that she identified the accused Amit Rai before the Court first time. Since, they could not identified the accused persons, they lodged the report against unknown persons. 19. PW-4, Ajay Mandal is the independent witness, who stated in his evidence that, before a month of the alleged incident, the accused Amit Rai came to his tractor garage and inquired about the fish seed businessman. He informed him about the complainant Vishwajeet Adhikari and Vidyut Mandal as the big businessman of fish seed at PV-122. He collected the details of these two businessmen and left 14 back. After 15-20 days, the accused Amit Rai and his two friends again came to his garage. The accused Amit Rai is his cousin brother and asked for food. He gave them the food and they left his house. He asked them to stay there in the night as it was already 8:00-8:30 PM, but they left the place by saying that they had some urgent work. After 4-5 days, when he was returning from village Iributta, at about 6:30-7:00 PM via PV-122, on the way, he saw the accused Amit Rai along with his 4-5 friends, who covered their faces. After 3-4 days, he came to know from the police that Amit Rai has committed the offence of loot. With respect to the Raju Pal and Anish Benarjee, this witness has turned hostile. In cross-examination, he remained firm in saying that he identified the accused Amit Rai, when he saw him on various occasions. Nothing substantial could be extracted from the evidence of this witness to disbelieve his evidence. 20. PW-5, Hansi Adhikari is the daughter of the complainant. Though she stated about the incident of loot on 18.10.2020 and calling her father on 05.11.2020 by the accused persons along with Rs. 5 lakhs cash near village Kodekurse, however she stated that she could not remember the faces of the accused persons. 21. PW-6, Subhagya Adhikari has also not identified the accused persons, however, she also disclosed about the incident. 22. PW-7, Adheer Sana is the witness of memorandum and seizure from the accused persons. He stated in his evidence that, the accused Raju Pal gave his memorandum statement (exhibit P-7) in his presence and from him huge amount of cash has been seized vide 15 seizure memo (exhibit P-8). The accused Amit Rai was also arrested, who also gave memorandum (exhibit P-9) and based on his memorandum statement, various golden ornaments, cash, pistol, life cartridges, etc. have been seized vide seizure memo (exhibit P-10, P-11, P-12 and P-13). He also proved the other seizure memos (exhibit P-14 and P-15), memorandum statement (exhibit P-20 and P-21), secrete information panchnama (exhibit P-22), the refusal panchnama (exhibit P-23), recovery panchnama from Amit Rai (exhibit P-24), inspection panchnama (exhibit P-25) and wireless walkie-talkie and bag search panchnama (exhibit P-26). In cross- examination, but for minor omissions or contradictions, he stuck in saying that on the basis of memorandum statement of the accused persons, various articles have been seized from them. The accused persons have been arrested and he was the witness in all that proceedings. He also proved his signature over the documents prepared in their presence. 23. PW-8, Prashant Mandal is another witness of memorandum and seizure from the accused persons. He stated in his evidence that the memorandum statement of Raju Pal was recorded in his presence and the police has seized cash and golden ornaments from his house. His memorandum is exhibit P-7 and seizure is exhibit P-8. The police have also recorded the memorandum of accused Amit Rai vide exhibit P-9 and from his house, one pistol, walkie-talkie, golden ornaments and cash have been seized vide seizure memo (exhibit P- 10 to P-13) and recovery panchnama (exhibit P-24) was prepared. In cross-examination, he remained firm in saying that on the basis of 16 the memorandum statement of the accused persons, recoveries have been made from them. He accompanied the police persons during the seizure proceedings from the accused persons Raju Pal and Amit Rai. He duly proved the involvement of these two appellants and memorandum and seizure. 24. PW-9, Uttam Mandal is the person, to whom the complainant informed him about the incident, he accompanied the complainant on 06.11.2020 to village Nelchang. They requested the accused persons to give time to give money to them. He identified accused Amit Rai at Tahsil Office Pakhanjur and his signatures over exhibit P-4 and P-5. He is also the witness of identification of the ornaments and proved exhibit P-27, by which the wife of Surjeet Adhikari had identified her ornaments. In cross-examination, he remained firm in identification of accused Amit Rai and also identification of the ornaments. 25. PW-10, Sahdev Bachhar is the witness, to whom the complainant informed about the incident. When they lodged the report to the police, the police persons have arrested the accused Raju Pal and Amit Rai and they admitted their offence in his presence. However, he does not supported the prosecution’s case in his cross- examination. 26. PW-12, is a constable posted at Cyber Cell, Kanker. He proved the mobile call details (exhibit P-37) of mobile No. 9301586066, 8815248404, 7587151787 and 7647073796. 27. PW-14, Sunil Kumar Dhruw is the Executive Magistrate/Tahsildar, who conducted the test identification parade. He stated in his 17 evidence that on 01.12.2020, he conducted the TIP of Amit Rai, Shishir Bairagi, Raju Pal, Sukhendra Mistri and Anish Benarjee. The witnesses have identified the accused persons. On 14.12.2020, he also conducted TIP of accused Sanjeet Vishwas and Anant Goldar, but they have not identified the witnesses. In cross-examination, he stated that the accused persons were brought to the Tahsil Office and their faces were covered. In the TIP (exhibit P-4), the witnesses have identified the accused Amit Rai. He denied the presence of police persons during the test identification parade proceeding. He also denied that the documents (exhibit P-4 and P-5) were prepared without conducting the TIP. In cross-examination, though he admitted that in the TIP memo (exhibit P-4), it has not been mentioned that the other persons were standing in between the accused persons, but in view of the evidence of this witness, who proved the TIP, non- mentioning of position of independent person, does not affect its credibility. 28. PW-15, Lokesh Sahu is the Armorer, posted at Police Line, Kanker. He examined the automatic pistol and magazine. On being examination, he found that it was the 32 bore country made pistol and the cartridges are live cartridges and the pistol was in working condition. His examination report is exhibit P-30. In cross- examination, he admitted that he has not examined the weapon by fire. 29. PW-17, Sharad Dubey is the Inspector of Police, posted as Station House Officer, Police Station Pakhanjur and the investigating officer of the case. He stated in his evidence that, on 28.11.2020, the 18 complainant Vishwajeet Adhikari made a written complaint to the police about the incident of 18.10.2020, 05.11.2020 and 06.11.2020. He registered the FIR (exhibit P-2) and investigated the matter. He received a secrete information about the accused persons and then after due inquiry from Ajay Mandal, he arrested the accused persons, their memorandum statement have been recorded and recoveries have been made. From the accused Raju Pal, Rs. 1000/- cash and one mobile phone have been seized. From the accused Amit Rai, Rs. 5000/- cash, number of golden ornaments, automatic pistol and four live cartridges, mobile phone and motorcycle, etc. have been seized. From the other accused persons also, he has seized various articles. He also proved the seizure of ash of burnt clothes. He arrested the accused persons, sent the accused persons for test identification parade by the Tahsildar and conducted the identification of the ornaments from the wife of Surjeet Adhikari namely Smt. Mamta Adhikari and she has duly identified the ornaments. He proved the entire process of investigation, which he has done after registration of the FIR. He being the procedural witness, has fully supported the prosecution’s case and investigation in the matter. But for minor omissions or contradictions, he remained firm in the entire process of investigation. The minor discrepancies are trivial in nature and has not affected the credibility of this witness. 30. The learned trial Court after appreciating the evidence available on record, has found proved the offence against the present appellants as they have duly identified by the witnesses and incriminating articles have been seized from them. The ornaments seized from the 19 accused Amit Rai have duly been identified by the wife of Surjeet Adhikari, from whose house the said ornaments were looted. The learned trial Court has also considered that after a long time of the incident, it cannot be expected from any witness that, he has to disclose the photogenic picture of the incident and there may be some discrepancies. Relying upon the judgment of “Bhola v. State of Himachal Pradesh” AIR 2009 SC 1338 and “Bhogin Bhai Hirji Bhai Bhoiwada v. State of Gujarat” AIR 1983 SC 753. They came into conclusion that trivial discrepancies in the evidence of the witnesses can be ignored. 31. With respect to laches in the investigation, learned trial Court has also considered the judgment passed by Hon'ble Supreme Court in the matter of “State of West Bengal v. Mir Mohammad Omar” AIR 2000 SC 2988, and “State of U.P. v. Jagdeo and others” AIR 2003 SC 660 and held that mere defects in investigation or irregularities in the investigation is of no consequence, are also found to be justified. 32. In the matter of “Leela Ram (dead) through Duli Chand v. State of Haryana and another” 1999 (9) SCC 525, the Hon'ble Supreme Court has held that:- “12. It is indeed necessary to note that hardly one comes across a witness whose evidence does not contain some exaggeration or embellishments - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give slightly exaggerated account. The Court can sift the chaff from the corn and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness - If this element is satisfied, they ought to inspire confidence in the mind of the Court to accept 20 the stated evidence though not however in the absence of the same.” 33. After a detailed discussion of the facts and circumstances of the case, evidence available on record as well as the law laid down by the Hon'ble Supreme Court in the field, the learned trial Court has convicted the appellants Raju Pal and Amit Rai for the offences under Sections 458/34, 395, 120-B, 384/34 of IPC, in which this Court does not find any scope of interference and their conviction for these offences are hereby affirmed. 34. PW-7, Adheer Sana is the witness of memorandum and seizure. He stated in his evidence that evidence that the golden ornaments, pistol and walkie-talkie were recovered from the house of the appellant Amit Rai. In his cross-examination he stated that, Amit Rai was arrested from his house at Gadhchirauli. He did not state about location or situation of the house from where the appellant Amit Rai was arrested. 35. PW-8, Prashant Mandal is another witness of the seizure made from the appellant Amit Rai. He too has stated in his evidence that the police persons have seized pistol, walkie-talkie and gold ornaments from the house of the appellant Amit Rai. He too has stated that Amit Rai was arrested from Gadhchirauli, Maharashtra from his house. He admitted that at the time when Amit Rai was arrested, he could not know about the other persons residing there and nearby places. The police has called the persons of nearby places of the house of the appellant Amit Rai. He further admitted that the persons of nearby 21 places of the house of the appellant Amit Rai were not gathered there. 36. The fact remains that PW-7, Adheer Sana and PW-8, Prashant Mandal are the witnesses of seizure of the pistol from the accused Amit Rai. These two witnesses are from the village of the complainant and there is no witness from the place, from where the said pistol has been seized from the accused Amit Rai. The said pistol was said to have been seized from the house of the appellant Amit Rai. 37. The question, whether the appellant Amit Rai had any possession over the said house, from which the alleged pistol was seized, has not been duly satisfied by the prosecution. Without any evidence of the proximity of the house in possession of the appellant Amit Rai or the conscious possession of the said pistol allegedly recovered from the house of the appellant Amit Rai, cannot have said to be in possession of the said pistol. Further, in absence of any local witness from Gadhchirauli, who belongs to the adjoining places, from where the alleged pistol is said to have been seized, the alleged recovery of the pistol from the conscious possession of the appellant Amit Rai is doubtful. 38. Although, the permission for prosecution under the Arms Act was given by the District Magistrate through the documents (exhibit P-66 and P-67), however, there is material discrepancies in possession of the said weapon during the commission of the offence. From the evidence of PW-1/complainant. It does not appear that they 22 committed the offence on the point of the gun. He only stated that out of three accused persons, one was having pistol with him. Who was having pistol, he did not identify. PW-2 has stated that out of three accused persons, one have restrained them on the point of knife. The person, who is taller than others, was having pistol with him. He also did not state that Amit Rai was having pistol with him, but he stated that he identified Amit Rai, when he removed his face masks and the person, who is taller, was having pistol. He did not specifically state that Amit Rai was having pistol with him. PW-3, the wife of the complainant, has also did not state, as to who was having pistol with him at the time of incident. She only stated that out of three accused persons, one was having gun with him. The witness to the memorandum and seizure from the accused persons is PW-7 Adheer Sana. Though he also stated about seizure of the pistol from the house of appellant Amit Rai, but the said pistol is prohibited arm, could not be proved by the prosecution by producing any notification to that effect. Merely by the permission for prosecution order issued by the District Magistrate is not sufficient to consider it to be a prohibited arm. The evidence led by the prosecution with respect to the offence of Sections 25 and 27 of Arms Act are not of that quality, for which the appellants are being convicted. 39. In view of the quality of evidence produced by the prosecution the appellants are entitled for benefit of doubt with respect to the offences under Sections 25 and 27 of Arms Act, and therefore, by giving them the benefit of doubt, their conviction and sentence for the offence of Section 25 read with Section 27 of Arms Act are set aside. 23 40. Now, what would be the appropriate sentence is the question here for the alleged offence committed by the accused persons. Sections 458, 395, 120-B and 384 of IPC does not provide any minimum sentence. The submission of the appellants that, at the time of incident, the appellants were tender aged person. Looking to their socioeconomic condition and the area, in which they are residing, is a naxalite affected area and the residents of that area are under extreme pressure either by the police or by the naxalites to support them, and therefore, in view of the nature of the alleged offence and the manner, excessive sentence has been awarded to them, the appellant Amit Rai has already undergone for more than 04 years of his sentence and Raju Pal has already undergone for more than 03 years of his sentence, and therefore, their sentence may be reduced, is appealing to this Court. 41. In the matter of “Mohammad Giasuddin Vs. State of Andhra Pradesh”, (1977) 3 SCC 287, Hon'ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows:- "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the 24 focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences." 42. Considering the entire facts and circumstances of the case and the evidence available on record, the appellants have been acquitted from the offence under Sections 25 and 27 of Arms Act and their conviction for the offence under Sections 458/34, 395, 120-B and 384/34 of IPC are maintained and their sentence are modified in the following manner:- Conviction sentence U/s. 458/34 of IPC R.I. for 05 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 03 months. U/s. 395 of IPC R.I. for 05 years with fine of Rs. 1000/-, in default of payment of fine additional R.I. for 03 months. U/s. 120-B of IPC R.I. for 05 years with fine of Rs. 500/-, in default of payment of fine additional R.I. for 02 months. U/s. 384/34 of IPC R.I. for 03 years with fine of Rs. 500/-, in default of payment of fine additional R.I. for 02 months. All the sentences are directed to run concurrently. 25 43. In view of the above, the present appeal is partly allowed. 44. The appellants are presently reported to be in jail. They shall serve the entire sentence, as modified by this Court. 45. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 46. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved