1 2025:CGHC:38467 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 442 of 2004 1. Jitendra @ Buchhi @ Raju Bihari Son of Shivmorat Gupta, aged about 23 years, resident of Marouda Station, Police Station: Newai, Distt: Durg (CG) 2. Lala @ Virendra Pratap Singh, Son of Shiv Pratap Singh, aged about 32 years, resident of Gadadih, Police Station: Ranchirai, Distt: Durg (CG). ---- Appellants Versus State of Chhattisgarh through the Police Station: Purani Bhilai- 3 District : Durg (CG). ---- Respondent -------------------------------------------------------------------------------------- For Appellant No.1 : Mr. Avinash Chand Sahu, Advocate For appellant No.2 : Ms. Laxmi Gupta, Advocate on behalf of Mr. Pragalbh Sharma, Advocate. For Respondent-State: Ms. Upasana Mehta, Dy. GA. -------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 04.08.2025 1. This criminal appeal has been preferred by appellants against the judgment of conviction and order of sentence dated 05/05/2004 passed in S.T. No.231/2003 by learned Additional Session Judge, Durg, (CG), whereby appellants stand convicted 2 and sentence as under: Conviction Sentence Under Section 341 of the IPC. Simple imprisonment for one month each. U/s 394/397 of the IPC Rigorous imprisonment for 07-07 years each. All sentence run concurrently 2. The prosecution case, in brief, is this that on 23/02/2003 at about 7.00 p.m. present appellants alongwith co-accused/Vinod Shah have looted one Hero Honda motor-cycle bearing registration No.CG-07/F-5021 from the Bharat Dewangan (complainant), when he was coming from Patan to Jarwal alongwith Jitendra Dewangan and Bhumika Dewangan. The accused persons have threatened the victims and also looted some money from them on the point of knife and pistol. Based on report lodged by complainant, FIR was registered against three unknown persons for offence punishable under Section 392 of IPC. During investigation, alleged motor-cycle has been recovered from the possession of co-accused/Vinod Shah and on the basis of his memorandum, present appellants were also arrested for the aforementioned crime/offence. 3. On completion of investigation, challan/charge sheet was filed against the appellants and based upon which, trial Court framed the charges against them. 3 4. Prosecution in order to prove its case examined total 07 witnesses. Statement of appellants (accused) was also recorded under Section 313 of CrPC in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. However, no evidence was adduced by them in their defence. 5. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described in Para-1 of this judgment. Hence this appeal. 6. At the outset, Ms. Laxmi Gupta, learned counsel appearing on behalf of appellant No.2 contended that appellant No.2/Lala @ Virendra Pratap Singh has already been released from concerned jail on 15.08.2012 after serving out the entire substantive sentence imposed upon him by the trial Court. As such, instant criminal appeal be disposed of. 7. On the aforesaid statement, this Court has directed the State Counsel to obtain written instruction with regard to release of the appellant No.2/accused from the concerned jail. 8. Learned State Counsel as per direction of this Court, received a written instruction from Jail Superintendent, Central Jail, Durg, and would submit that appellant No.2 has already completed his jail sentence awarded to him by the trial Court and released from 4 jail on 15.08.2012. In this regard, she places reliance upon the dictum of Hon’ble Supreme Court in case of Suresh Singh and Another v. State of Haryana reported in (2007) 13 SCC 518. Relevant portion of said judgment reads as under:- “12. It appears that thereafter on 22.01.2007, Criminal Miscellaneous Petition No. 1497 was filed wherein it was stated that Devender Singh (Accused 1) had expired. Death certificate was also produced alongwith the application. It was further stated that Jai Bhagwan (Accused 2), Jai Pal (Accused 4) and Shamsher Singh (Accused 5) be permitted to withdraw from special leave petition since all the three had already undergone the sentence and special leave on their behalf had become infructuous. The said application was allowed by the Court and the prayer was granted. Thus, out of the six accused only two have remained viz. Suresh Singh, Appellant 1 (Accused 3) and Jagbir Singh, Appellant 2 (Accused No.6).” 9. Since appellant No.2/accused has already completed his jail sentence and has already been released from jail on 15.08.2012 and learned counsel for the appellant No.2 does not want to press this appeal on merits, instant criminal appeal is disposed of. 10. Let the written instruction received from the Jail Superintendent, Central Jail, Durg, (CG), be kept on record. 11. Mr. Avinash Chand Sahu, learned counsel appearing on behalf of appellant No.1/Jitendra @ Buchhi @ Raju Bihari contended 5 that impugned judgment is per se illegal and contrary to the evidence available on record as there is no any ioto of evidence available in charge-sheet against appellant No.1. During course of the identification parade, appellant No.1 has neither identified by the complainant nor any recovery has been made from him. During investigation, alleged motor-cycle has been recovered from the possession of the co-accused/Vinod Shah and on the basis of his memorandum, appellant No.1 has made accused in this case. Akturam/PW-5 (independent witness of memorandum and seizure) has been turned hostile and he has not supported the case of prosecution. There are many contradictions and omissions in the statements of the prosecution witnesses, which was not considered properly by learned trial court. Prosecution has failed to prove the case against appellant No.1 beyond all such reasonable doubts, hence, he is entitled for acquittal. 12. Per contra, learned State Counsel supported the impugned judgment and submits that the impugned judgment passed by the trial Court is based on proper appreciation of material and evidence available on record and the same requires no interference. 13. Heard learned counsel for the respective parties and perused the recorded placed on record. 14. PW-1/Bharat Dewangan (complainant) in his Court evidence has stated that on the date of alleged incident, when he was coming from Patan to Jarwal alongwith Jitendra Dewangan & Bhumika 6 Dewangan, on the way, accused/Vinod Shah alongwith two other co-accused persons intercepted them and snatched/looted the motor-cycle and sum of Rs.2300/- from the complainant and Rs.1200/- from Jitendra Dewangan on the point of knife and pistol and, thereafter, fled away from the spot. In his cross- examination, he (PW-1) admitted that due to dark at the time of alleged incident, he could not recognize the accused persons clearly/explicitly. 15. PW-2/Jitendra Dewangan (victim) in his Court evidence has stated that on the date of alleged incident, when he was coming from Patan to Jarwal alongwith his wife (Bhumika Dewangan) and Bharat Dewangan (complainant) on motor-cycle, on the way, three accused persons have intercepted them and snatched/looted the motor-cycle alongwith sum of Rs.1200/- from him (Jitendra Dewangan) and Rs.2,000/- from the complainant on the point of knife and pistol and, thereafter, fled away from the spot. He (PW-2) further stated that due to dark at the time of alleged incident, he could not recognized the accused persons. 16. As per evidence of PW-3/Sunil David (Sub-Inspector, Crime Branch) & PW-4/B. R. Singh (Assistant Sub-Inspector), on the instance of co-accused/Vinod Shah, alleged motor-cycle has been recovered from the quarter/house of the Housing Board, however, nothing has been recovered from appellant No.1. 7 17. In Test Identification Parade (Ex. P-2) made before PW-7/Naib Tahsildar, Durg, out of the 10 persons (including appellant No.1/Jitendra @ Raju Bihari), only co-acused/Vinod Shah has been identified by the victims (Bharat Dewangan & Jitendra Dewangan). 18. It is pertinent to mention here that though it is alleged that on the date of incident, accused persons have threatened and snatched/looted some money from the victims on the point of knife & pistol, but prosecution has failed to produce any documents or material in this regard. 19. In view of above discussion/observation, this Court is of the considered view that learned trial Court has committed error in convicting appellant No.1/Jitendra @ Buchhi @ Raju Bihari for the aforementioned offence/crime. 20. Accordingly, the appeal is allowed and appellant No.1/Jitendra @ Buchhi @ Raju Bihari is acquitted from the aforementioned offence/crime. 21. Record of case be sent back forthwith with a copy of this order for information and necessary action/compliance. Sd/- (Arvind Kumar Verma) JUDGE J/-