1 2025:CGHC:21582-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 166 of 2021 1 - Chandrashekhar @ Deepak, S/o Shri Sanak Sai, Aged About 29 Years R/o Village Madhubantoli, Jashpurnagar, Police Station Jashpur, District Jashpur Chhattisgarh. --- Appellant(s) versus 1 - State Of Chhattisgarh, Through - S.H.O., Police Station - Sanna, District Jashpur Chhattisgarh --- Respondent(s) CRA No. 408 of 2021 1 - Amar @ Budhan Ram S/o Shri Vishwanath Ram, Aged About 35 Years Occupation Labourer, R/o Village Ekamba, Police Station Sanna, At Present R/o Village Sarnatoli, Jashpur, Police Station And District Jashpur Chhattisgarh ---Appellant(s) Versus 1 - State Of Chhattisgarh Through Out Post Sonkyari, Police Of Police Station Sanna, District Jashpur Chhattisgarh --- Respondent(s) 2 For Appellant(s) : Ms. Meena Shastri and Mr. Anil Gulati, Advocates For Respondent/State : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Arvind Kumar Verma , Judge 09/05/2025 As all the above appeals arise out of judgment and order dated 23.01.2021 passed by the Additional Sessions Judge, Jashpur, District Jashpur in Sessions Trial No. 24/2019 convicting the accused/appellants in the above Criminal Appeals and sentencing them in the following manner, they are being disposed of by this common judgment. Conviction and sentence of appellant in Cr.A.No. 166 of 2021 Conviction Sentence U/s. 394 read with Section 397 IPC To undergo RI for 12 years with fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for 15 days. Conviction and sentence of appellant in Cr.A.No. 408 of 2021 Conviction Sentence U/s. 394 IPC To undergo RI for 10 years with fine of Rs. 1,000/-, in default of payment of fine to further undergo RI for 15 days. 2. Brief facts of the case are that on 18.03.2019, complainant Yashwant Singh is working as Manager in the Bharat Financial Inclusion Ltd. Jashpur where the company after making group of 3 ladies, provide loan an thereafter it was borrowed from them every week. It is alleged that on the date of incident ie. 18.03.2019, the complainant after collecting the loan amount of Rs. 8,000/- from village- Patia he was going towards Baghima, on the way two unknown persons, covering their faces, apprehended him in their motorcycle and were honking. As soon as they reached near the motorcycle of the complainant, they dashed his bike and they fell down. Thereafter, one of the accused pointing the knife towards the complainant, asked him to gie the bag or else he will kill and due to fear, he gave the bag to them in which cash of Rs. 8,000/- and one Tab of Samsung company, cost of which is Rs. 12,000/- was looted by them and they fled away. The incident was reported by the complainant in his office and written complaint was made at police station Sonkyari. On the basis of the said information, Crime No.0/2019 was registered against unknown persons under Section 392,34 IPC and FIR was lodged. On the information received by the police station Narayanpur on 30.04.2019, the accused/appellants have admitted the fact of looting the complainant and the crime was registered against the appellants in Crime No. 38/2019 under Sections 379 and 34 IPC against the appellants in the instant appeals whereas for the offence registered at police station Manora, Jashpur in Crime No. 110/2019, Sections 397 IPC and 25 and 27 of the Arms Act was registered against the present appellants and one Virendra @ Laddoo. Memorandum statements of the accused/appellants were recorded and the looted property was seized. After completion of investigation, charge sheet was filed against the appellants under Sections 394 and 397,34 IPC. 4 3. The learned trial court has framed charges under Sections Sections 394 & 397,34 IPC. The appellants abjured their guilt, pleaded innocence and claimed for trial. 4. In order to bring home the charge, the prosecution has examined as many as 13 witnesses. Statements of the accused/appellants were recorded under section 313 of CrPC in which they denied the charges levelled against them and pleaded innocence and false implication in the offence. 5. After appreciation of the evidence available on record, the trial court has convicted the appellants and sentenced them as mentioned in para 01 of this judgment. Hence these appeals. 6. Smt. Meena Shastri, learned counsel for the appellant in Cr.A. No. 166/2021 submits that submit that the trial Court has wrongly convicted the appellant without proper appreciation of evidence and there are material contradictions and omissions in the statements of the prosecution witnesses. She submits that the conviction of the appellant under Section 394 read with Section 397 of I.P.C is erroneous as the ingredients of the said offence requires that the knife and the motorcycle used in the incident must have been recovered from the accused by the prosecution then only the involvement of the appellant can be held to be proved by the prosecution but the prosecution failed to prove the same beyond the reasonable doubt. She submits that the conviction is based on circumstantial evidence but prima facie the chain of circumstance is not complete. She submits that the prosecution witnesses have given different versions in the case which makes the entire case doubtful. Apart from this, there are 5 several other infirmities and therefore the conviction cannot be based on such doubtful prosecution case. It is submitted that the appellants were not identified by the complainant and the seizure witnesses who are independent witnesses have not stated anything against the appellants and except knife which is used in the kitchen, no other looted articles have been seized from the possession of the appellants. 7. She submits that as per the version of the prosecution, the alleged offence is said to have been committed by three unidentified persons whose faces were covered with clothes and they could not be properly identified during investigation hence, the prosecution case becomes doubtful. She submits that the conviction is based on the memorandum of the appellant and seizure memo of the articles. Further, the independent prosecution witnesses PW-6 (Roshan lal) and PW-7 (Durgesh Kumar Jaiswal) did not support the case and they have turned hostile. She submits that the trial court has relied on the statement of prosecution witnesses which are full of inconsistencies and therefore it is liable to be set aside. She submits that learned trial court at para No.26 of the judgment the complainant has admitted that at the time of incident, both the accused persons have covered their faces and therefore he cannot state as to who was carrying the knife. Thus, on the basis of statement of the witnesses the trial Court had convicted the accused though no articles was seized from the present appellants, as such conviction of the appellant is bad in law, therefore, the judgment and sentence passed by the trial Court be set aside and the appellant be acquitted. 8. Mr. Anil Gulati, learned counsel for the appellant in Cr.A. No. 408 6 of 2021 submits that the learned trial court has failed to appreciate that there was major contradictions and omissions in the statement of the prosecution witnesses, hence the warrant of conviction of the appellant is bad in law. He submits that the learned trial court had failed to appreciate the fact that the memorandum and seizure witnesses have not supported the case of prosecution and despite that the appellant has been convicted. He submits that the test identification parade which was conducted by the prosecution was doubtful as the complainant Yashwant Singh (PW-4) has admitted the fact that he has seen the appellant prior to the identification parade at PS Jashpur. even on the basis of statement of the witnesses the trial Court convicted the accused though no articles was seized from him, as such conviction of the appellant is bad in law, therefore, the judgment and sentence passed by the trial Court be set aside and the appellant be acquitted. 9. On the other hand, learned Penal Lawyer would support the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved its case beyond reasonable doubt and the appellant has rightly been convicted for the offence committed by him which does not warrant interference by this Court. He submits that upon the complainant of complainant, FIR has been registered vide Crime No. 0/2019 at police outpost Sonkyari against two unknown accused persons and thereafter the case was transferred to the police station Sanna District Jashpur and FIR w as registered as Crime No. 12/2019. During investigation, the police outpost Sonkyari received radio message from the police station 7 Narayanpur on 30.04.2019 that the accused of Crime No. 38/2019 for the offence punishable under Sections 379,34 IPC registered at police station Narayanpur namely Amar @ Budhan and Chandrashekhar Chauhan and during enquiry they had admitted the commission of crime committed by them with the complainant in the present case at village Ghaghara, Patiya Forest on 18.03.2019. After receiving the certified copy of the memorandum statement of the accused/appellants recorded by the police station Narayanpur in respect to the Crime No. 38/2019 against the accused/appellants and co-accused Virendra @ Laddu recorded by the outpost Manora, police station Jashpur in respect of Crime No. 110/2019 for the offence punishable under Section 397 IPC and Section 25 & 27 of the Arms Act was obtained from the In charge of police station Jashpur. After obtaining permission of CJM, Jashpur and after obtaining the police and formal arrest, during interrogation of the accused and on the basis of their memorandum statement, seized the articles and money from the accused and after completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate First Class, Jashpur on 17.06.2019 for the offence punishable under Sections 392/34 and 397 IPC. Charges were framed for the offence punishable under Sections 394 and 39, 34 IPC. 10. He submits that in the memorandum statement of the other co- accused, the appellants were involved in the alleged commission of the offence and the knife by which the victim was threatened has been seized from the possession of the appellant-Chandrahekhar @ Deepak in Cr.A. No.166/2021. 8 11. We have heard learned counsel for the parties and considered the rival submissions and gone through the records of the trial court. 12. Present appeals have been preferred by the accused/appellants challenging their conviction for the offence under Section 394 read with 397 IPC. It is required to be noted that the concurrent findings recorded by the trial court and the Sessions Court of the accused persons at the time of commission of the offence and their active involvement has been established and proved by the prosecution by examining the relevant witnesses during the course of trial. 13. From the documents on record and the statement of the complainant Yashwant Singh (PW-4) who has stated that on the date of incident, at about 7.00 am. when he was going from his Company, Bharat Finance, Sangam Chowki, Jashpur in his motorcycle carrying his Tab and cash bag with documents, for weekly collection to village Patia and after collecting the amount of Rs. 8,000/-, he was going towards village Ghaghra, on the way, two persons who were apprehending him on their bike, covered their faces, had honked and hit the motorcycle of the appellant from the backside and he fell down. Thereafter one of the accused on the point of knife, snatched the bag and ran away in their bike. He has stated that he was carrying one Tab which was provided by the Company and the amount of Rs. 8,000/- collected from village Patia which was looted by the accused persons. He then made a call to the Manager of the Unit, Uday Kumar and informed about the incident and after half an hour later, Unit Manager Uday Kumar and Branch Credit Manager Raju Uraon came and they went to the police station Sonkyari and lodged the report Ex.P-6 and 9 on the basis of the written complaint, FIR Ex.P-7 was registered. Spot map was prepared vide Ex.P-8 and the receipt of the tablet was seized vide Ex.P-9 from the complainant. He has stated that after 1-1/2 months of the incident, identification parade was conducted at Tahsil Office Jahspur where he identified the accused persons and on being asked they mentioned their names. The identification of accused Chandrashekhar has been done vide Ex.P-5 and Budhan @ Amar has been identified as Ex.P-3. Identification in respect of co-accused Virendra @ laddoo vide Ex.P-4 is concerned, he was not identified. He has stated that the seized articles ie. bag Article A-1 Tablet A-2 and Demo mobile A-3 were identified by him. He had also identified the knife Article A-4 however, he has admitted the fact that he cannot identify a to who was carrying the knife at the time of incident. 14. Uday Kumar(PW-5) has stated on the date of incident, the complainant Yashwant Singh had gone to village Patia for weekly collection of amount in his bike and at about 12-1.00 noon, the complainant made a call and informed about the incident. Thereafter he along with one Raju Uraon went to the place of incident and thereafter they went to the police station Sonkyari and lodged the report. 15. Independent witness (PW-6) Roshanlal Ratre has stated that on the date of incident, when the complainant was coming from village Patia after weekly collection of amount, the incident of loot has been committed by the accused persons and after one month of the incident, it was informed by the police to identify them. Similar statement has been made by Durgesh Kumar Jaiswal (PW-7). 10 16. In the present case, the appellants were identified at the time of identification parade before the Executive Magistrate by the complainant and he had also identified them during exmaination. The Naib Tahsildar (PW-2) Vikas Jindal has stated that the complainant identified the accused by putting his hand on the head. The main thrust of the argument of the learned counsel for the appellant Chandrashekhar @ Deepak is concerned, the conviction under Section 397 IPC is not called for, the admitted fact being that the weapon of offence was not recovered and as such its user could not be proved and thus the conviction under Section 397 IPC is ill founded. 17. It has to be noted that at the time of committing loot, one of the offenders had shown knife but the prosecution has not proved as to who had shown the knife to the victim. Mere recovery of Knife that too, which is a kitchen knife, is not sufficient to prove that the appellant Chandrashekhar @ Deepak has shown it to the complainant. It is also pertinent to mention here that no injury has been caused to the victim. 18. There are some contradictions, however on reading the entire evidence, we are of the opinion that the contradictions are not such material contradictions which affect the case of the prosecution as a whole. As per the settled proposition of law only those contradictions which are material contradictions may create the doubt and benefit of such material contradictions can be given to the accused. It is the case on behalf of the accused that their conviction for the offence under Section 397 IPC is unsustainable. It is the case on behalf of the accused that in the present case only three accused were tried and subsequently one of the accused namely Virenda @ Laddoo have been acquitted by the trial court. It is also the case on behalf of the 11 accused/appellants that the trial courts has materially erred in convicting them for the offence punishable under Section 397 IPC even as per the case of the prosecution the present appellants Accused did not use any deadly weapon and it was only a kitchen knife. It is submitted that the accused who has not used any deadly weapon at the time of committing robbery cannot be convicted under Section 397 IPC for the imposition of the minimum punishment and the term ‘offender’ is confined to the offender who uses any deadly weapon to attract Section 397 IPC for the imposition of the minimum punishment. 19. To appreciate the aforesaid submissions the relevant provisions with respect to Section 394 & 397 required to be referred to relevant portion of which reads as under: 394. Voluntarily causing hurt in committing robbery.— If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. 20. As per Section 394 IPC, if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, 12 and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. As per Section 397 IPC, if at the time of committing robbery or dacoity, the offender “uses” any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. 21. Thus, as per the submission of the learned counsels appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who “uses” any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. The interpretation of Section 397 IPC has been observed in the matter of Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR1975 SC 905 reads as under: The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. So far as the accused is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW - 13 4 Yashwant Singh, one of the accused had a knife in his hand”. He was therefore carrying a deadly weapon open to the view of the complainant/victim sufficient to frighten or terrorize him. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103]; Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code.J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to ‘using’ the weapon within the meaning of Section 397. 22. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word “uses” in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct.” 14 23. It has been reiterated in the matter of Dilawar Singh Vs. State of Delhi, AIR 2007 SUPREME COURT 3234, 2007 (12) SCC 641, which reads as under: “19. The essential ingredients of Section 397 IPC are as follows: 1. The accused committed robbery. 2. While committing robbery or dacoity (i) the accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person. 3. “Offender” refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. 20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR1975 SC 905] the term “offender” under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between “uses” as used in Sections 397 IPC and 398 IPC. 31Section 397 IPC connotes something more than merely being armed with deadly weapon. 21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253].” 15 24. Thus, in view of the aforesaid two decisions the word used in Section 397 IPC is ‘uses’ any deadly weapon’. Therefore, for the purpose of attracting Section 397 IPC the ‘offender’ who ‘uses’ any deadly weapon Section 397 IPC shall be attracted. 25. Reverting back to the facts of the present case, in view of the principles laid down by the Apex Court, as also the fact that the independent witnesses namely, Roshan Lal (PW-6) and Durgesh Kumar Jaiswal (PW-7) have not supported the prosecution case and that the knife which was used in the commission of loot was merely a kitchen tool and they had not caused any hurt/injury to the victim and it has also not been proved by the complaint as to who had shown the knife to the complainant and therefore the case on behalf of the accused/appellants in the present appeals are required to be considered. Even as per the case of the prosecution and even considering the evidence on record it can be seen that the present accused appellants have not caused any hurt to the victim and that too it was a kitchen knife. 26. Taking into consideration that there were three accused persons in the present case and out of them, one of the accused namely Virendra @ Laddoo had been acquitted by the trial court. In order to bring home the charge under Section 397 IPC, the prosecution has to prove as to which of the accused/appellant had shown knife to the complainant while commission of loot. 27. The trial court has acquitted the accused/appellant Budhan Ram @ Amar of the charge under Section 397 of the Indian Penal Code. However he has been convicted for the offence punishable under Section 394 of the IPC. 16 28. In the case in hand, the prosecution has failed to prove that appellant-Chandrashekhar @ Deepak has shown knife to the victim and therefore the conviction under Section 397 of the IPC is not made out against the appellant. Hence, we are of the considered view that the prosecution has not proved its case beyond reasonable shadow of doubt against the appellant Chandrshekhar @ Deepak for the ofence punishable under Section 397 of IPC. Hence, appellant- Chandrashekhar @ Deepak is hereby acquitted of the charges framed against him under Section 397 IPC. However, the conviction of the appellants- Chandrashekhar @ Deepak and Budhan Ram @ Amar under Section 394 IPC is concerned, it is upheld. Since the appellants are in jail since 03.05.2019 and thereby has completed more than 6 years of custody, there are no criminal antecedents against the appellants, their sentence is reduced to the period already undergone by them. 29. In the result, the the appeals are partly allowed. While maintaining conviction of the appellants under Section 394 of I.P.C., the sentence imposed thereunder by the Trial Court is hereby reduced to the period already undergone by them, however, the fine amount imposed by the Trial Court shall remain intact. The impugned judgment extend modified to the above extent. 30. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellants- Chandrashekhar @ Deepak and Amar @ Budhan Ram are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned 17 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. 31. The criminal appeals are allowed in part to the extent indicated hereinabove. 32. The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.15 10:45:47 +0530