1 2025:CGHC:55843 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 152 of 2001 Lavkesh Kumar s/o Janki Prasad Gupta Aged about 29 years, R/o Village – Tendutola, Thana – Jaitpur --- Appellant versus State Of Chhattisgarh Through P.S. Kotadol Distt. Koriya (C.G.) --- Respondent CRA No. 195 of 2001 1 - Gendlal @ Genda S/o Ghanshyam, Caste-Kenwat, aged about 25 years, Village Bhamra, Thana Kotma, Distt.Shahdol, M.P. 2 – Laloo Lal S/o Bhaiyalal, caste Mehar (Dewangan) aged about 26 years, r/o Jhokbijuri, P.S. Kotma, Distt.Shahdol. ---Appellants Versus State Of Chhattisgarh through District Magistrate, Korea East. --- Respondent For Appellant- Lavkesh Kumar For Appellants- Gendlal @ Genda and Laloo Lal : : Ms.Sharmila Shinghai, Senior Advocate assisted by Mr.Kanwaljeet Singh Saini, Advocate in CRA No.152/2001 Mr.Mohit Kumar, Advocate in CRA No.195/2001 For Respondent- State : Mr.Jitendra Shrivastava, Government Advocate with Mr.Nitansh Jaiswal, Panel Lawyer 2 Hon'ble Shri Justice Ramesh Sinha, Chief Justice Judgment on Board 17/11/2025 1. Since the aforesaid two criminal appeals have been filed against the judgment dated 18.12.2000 passed by the Additional Sessions Judge, Beohari, District Shahdol in Sessions Trial No.6/2000, they were clubbed and heard together and being disposed of by this common judgment. 2. Appellant-Lavkesh Kumar has filed criminal appeal being CRA Nos.152/2001 and appellants-Gendlal @ Genda and Laloo Lal have filed criminal appeal being CRA No.195/2001 against the judgment dated 18.12.2000 passed by the Additional Sessions Judge, Beohari, District Shahdol in Sessions Trial No.6/2000, whereby the trial Court has convicted the appellants for offence under Section 395 read with Section 397 of the IPC and sentenced to undergo RI for 10 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 3 months. 3. The prosecution story, in brief, is that complainant Ramsubhag was the driver of a bus of Saibaba Travels, bearing number MP27 B/1700, which operated from Ambikapur to Rewa. The helper on the bus was Kundan Uraw. On 15.06.1998, at around 7:00 P.M., the bus departed from Ambikapur for Rewa with approximately 55 passengers on board. When the bus reached Dhuatal at about 2:00 A.M., it was seen that some dacoits had blocked the road with PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.11.20 17:03:43 +0530 3 wooden logs and had stopped a jeep. The dacoits stopped the bus as well. As soon as the bus stopped, they detonated a bomb to terrorize the passengers, forced the driver to open the bus gate, and two dacoits entered the bus. They threatened the passengers with country-made pistols and looted their gold and silver ornaments and other belongings. The dacoits assaulted driver Ramsubhang, robbing him of ₹2,740 and his wristwatch. Due to the assault, he suffered injuries on his left leg and his back. Ramadhar was also beaten by the dacoits, causing injuries, and his belongings were taken as well. The dacoits smashed both headlights of the bus. Due to the explosion, the rear part of the bus had turned blackened. Right behind the bus was a car bearing number MP 27 F 3541, and the occupants of that car were also robbed by the dacoits. Among the passengers in the bus were Ramswaroop (resident of Ambikapur), Dinesh Soni (resident of Umeshpur), S.K. Shrivastava (resident of Janakpur), Prem Shankar (resident of Janakpur), Sharda Prasad (resident of Ambikapur), and about 50 others. The dacoits, armed with country-made pistols, bombs, axes, and sticks, robbed the passengers of their belongings. There were eight dacoits, aged approximately 25–30 years, wearing shirts and full pants, with their faces covered. One dacoit was tall and thin and was wearing spectacles. They were speaking in Sargujia and Rewa dialects, while one of them spoke the Allahabad (Uttar Pradesh) dialect. The driver stated that he would be able to identify them upon seeing them again. Thereafter, the driver, along with the 4 passengers, took the bus to Janakpur Police Station and lodged the report, which is recorded in Ex. P/21. The police registered Crime No. 7/98 and initiated investigation. During the investigation, property was seized from the accused on the basis of their memorandum statements, and an identification parade of the accused and the seized property was conducted. 4. After completing the legal proceedings, the charge-sheet was filed in the court of the Judicial Magistrate First Class, Janakpur, and thereafter, the case was transferred to the Sessions Court, Shahdol, from where the Additional Sessions Judge, Bouhari, received the case on transfer for trial in accordance with law. 5. The trial court has framed charges against the appellants under Sections 395 read with Section 397 of the IPC. The appellants abjured their guilt and pleaded innocence. 6. In order to establish the charge against the appellant, the prosecution examined 36 witnesses. The statements of the appellants under Section 313 of the CrPC were also recorded in which they denied the material appearing against them and stated that they are innocent and they have been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellant and sentenced him as mentioned in para 2 of the judgment. Hence, these appeals. 7. Ms.Sharmila Shinghai, learned Senior Advocate for appellant- Lavkesh Kumar in CRA Nop.152/2001 submits that learned trial 5 Court in its judgment specifically stated that the case is based on the items seized from the accused persons on the basis of their memorandum statements and identification of the accused persons, but the test identification parade which was conducted, contains infirmities and errors. Also, the identification parade was conducted after approximately 3 months & 15 days and even there is no signature of the jail authorities where the identification was conducted. The witnesses were not consistent in their opinion as to whether the faces of the accused persons were covered or not or how many of the accused have covered their faces, therefore the identification of the accused in the test identification parade becomes suspicious. Items seized from the accused persons were not identified. The items seized from appellant Lavkesh were not identified by any of the persons which clearly shows that the prosecution case is false and frivolous on the face of it. Rama Kant (PW-35) who identified Lavkesh has specifically stated that he has met the Thanedar outside the jail on the date of identification. Witnesses, namely, Deenanath (PW-5) and Premlal (PW-10) who were the witnesses of seizure and memorandum of Lavkesh and Gendlal, have not supported the prosecution case and have turned hostile. Ramdhari who is one of the important witness who sustained injuries in the attack and has identified silver mehendi in the identification parade, has not been examined by the prosecution. Moreover, seizure, memorandum and arrest of accused Lallu Lal, namely, Moh. Hanif and Moh. Mustafa, were also 6 not examined by the prosecution. She further submits that from perusal of paras 25, 26, 28 and 30 of the impugned judgment, it is crystal clear that there are inconsistencies and discrepancies in the statements of the witnesses. Also, there is dispute regarding number of accused persons present at the spot, dispute as to the total time taken for committing the offence, dispute regarding the language spoken by the accused persons, dispute as to whether jeep was standing before the bus reached at the spot or it reached the spot after the bus etc, which makes the prosecution story unreliable. She also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal. She relied upon the judgments of the Supreme Courts in the matters of Dhanai Mahto and another v. State of Bihar, AIR 2000 SC 3602(1), Iqbal and another v. State of Uttar Pradesh, (2015) 6 SCC 623, Chunthuram v. State of Chhattisgarh, (2020) 10 Scc 733 and Gireesan Nair and others v. State of Kerala, (2023) 1 SCC 180. 8. Mr. Mohit Kumar, learned counsel for the appellants in CRA No. 195/2001, adopted the submissions made by Ms.Shinghai, learned Senior Advocate for the appellant in CRA No.152/2001. 9. On the other hand, learned Government Advocate appearing for the respondent/State supports the impugned judgment and submits that learned trial Court after considering all the material available on 7 record and perusing the statements of the witnesses including the injured witnesses has rightly convicted the appellants for offence under Section 395 read with Section 397 of the IPC, which warrants no interference by this Court. As such, the criminal appeals deserve to be dismissed. 10. I have heard learned counsel for the parties, perused the impugned judgment and records of the trial Court. 11. At this stage, it would be appropriate to notice the provisions contained in Sections 391, 395 and 397 of the IPC which read as under:- “391. Dacoity.—When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. 395. Punishment for dacoity.—Whoever commits dacoity 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.” 8 12. Section 391 IPC defines ‘dacoity’. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the ‘dacoity’. Section 395 IPC provides for punishment for ‘dacoity’. Whoever commits dacoity 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. 13. In the present case, Ramakant (PW-35) has identified appellant Lavkesh, Ramsamag (PW-19) has identified Gendlal and Kishori Sharan (PW-4) has identified appellant Lallu. 14. The trial Court in its judgment has specifically stated that the case is based upon the items seized from the accused persons on the basis of their memorandum statements and identification of the accused persons, but identification parade was conducted after appropriately 3 months and 15 days and there is no signature of the jail authorities where the identification was conducted. The 9 witnesses were not consistent in their statements as to whether the faces of the accused persons were covered or not or how many of the accused have covered their faces, therefore, the identification of the accused in test identification parade becomes suspicious. 15. Items seized from appellant Lavkesh were not identified by any of the persons which clearly shows that the prosecution case is false and frivolous on the fact of it. Ramakant (PW-35) who identified Lavkesh has specifically stated that he has met the Thanedar outside the jail on the date of identification. Moreover, witnesses namely Deenanath (PW-5) and Premlal (PW-10) who were witnesses of seizure and memorandum of Lavkesh and Gendlal, have not supported the prosecution case and have turned hostile. Further, Ramdhari who is one of the important witness who sustained injuries in the attack and has identified silver mehendi in identification parade, has not been examined by the prosecution. Moreover, seizure, memorandum and arrest of accused Lallu Lal namely Moh. Hanif and Moh. Mustafa, were also not examined by the prosecution. 16. Admittedly, in the present case, katta and farsa have been seized from the appellants, however, the seizure witnesses have turned hostile and they have not supported the case of the prosecution. 17. The Supreme Court in the matter of Iqbal (supra) has held as under:- 10 “15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence.” 18. The Supreme Court in the matter of Chunthuram (supra) has held as under:- “10. To establish the presence of Chunthuram at the place of incident, the Courts relied on the Test Identification Parade and the testimony of Filim Sai (PW 3). The Test Identification evidence is not substantive piece of evidence but can only be used, in corroboration of statements in Court. The ratio in Musheer Khan v. State of M.P., (2010) 2 SCC 748 will have a bearing on this issue where A.K. Ganguly, J. writing for the Division Bench succinctly summarised the legal position as follows: (SCC p. 756, para 24) “24. It may be pointed out that identification test is not substantive evidence. Such tests are meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. 11. The infirmities in the conduct of the test identification parade would next bear scrutiny. The major flaw in the exercise here was the presence of the police during the 11 exercise. When the identifications are held in police presence, the resultant communications tantamount to statements made by the identifiers to a police officer in course of investigation and they fall within the ban of section 162 of the Code. (See Ramkishan Mithanlal Sharma v. The State of Bombay, AIR 1955 SC 104.)” 19. The Supreme Court in the matter of Gireesan Nair (supra) has held as under:- “62. In view of the evidence available on record, we are of the opinion that the conduct of the TIP, coupled with the hovering presence of the police during the conduct of the TIP vitiated the entire process. The trial court as well as the High Court have committed a serious error in relying on the evidence of the TIP witnesses for convicting and sentencing the Appellants. We are of the opinion that the conviction and sentencing are not sustainable. In view of these lapses on the part of the prosecution, it is not necessary for us to consider various other grounds raised by the Appellants.” 20. Bare perusal of paras 25, 26, 28 and 30 of the judgment makes it clear that there are inconsistencies and discrepancies in the statements of the witnesses. Also, there is dispute regarding number of accused persons present at the spot, dispute as to the total time taken for committing the offence, dispute regarding the language spoken by the accused persons, dispute as to whether jeep was standing before the bus reached at the spot or it reached the spot after the bus etc, which makes the prosecution story unreliable. 12 21.In the present case, there are three injured eyewitnesses. Ram Subhag (PW-19) has received one contusion over middle of the back of right thigh about 3 cm x 1 cm in sized as per Ex.P-17. The doctor has opined that concern injury is simple in nature and caused by blow from blunt and hard object. Ramdhani has received one lacerated wound over middle surface of right forearm about 5 cm above from the right wrist joint about 5 cm x 1 ½ cm in sized situated vertically and one contusion over middle of the back of left side about 4 cm x 1 cm in sized situated obliquely. The doctor has opined that concern injury is simple in nature caused by blow from blunt & hard object. However, in MLC report of injured Ramakant Tripathi, no injury was mentioned and in remark column, the doctor has written that patient already under treatment of Dr.Sanger (Ortho. Specialist), Ambikapur. 22. The Supreme Court in the matter of Dhanai Mahto (supra) held as under:- “3. Learned Counsel contends that the weapons attributed to them cannot answer the description of deadly weapons. We are persuaded to accept the said contention, particularly, in view of the absence of other descriptions given to the weapons. Merely, the description of bamboo sticks or lathis is not enough to make the weapons lethal or deadly. There is no case that the accused inflicted grievous hurt or attempted to inflict grievous hurt to the inmates. Therefore, the limitation prescribed in Section 397 of the Indian Penal Code cannot be applied. 13 4. Considering all aspects, we think that a sentence of imprisonment for a period of 4 years will be sufficient to meet the ends of justice. We, therefore, reduce the sentence of the appellants to rigorous imprisonment for 4 years.” 23. Having considered the rival submissions, examined the entire evidence on record and applied the settled legal principles governing Test Identification Parades (TIP), evidentiary value of recoveries, and the scope of Sections 395 and 397 of the IPC, this Court proceeds to record the following findings. 24. The conviction of the appellants by learned trial Court rests substantially upon (i) the identification of the accused in the TIP and (ii) the alleged recoveries pursuant to the memorandum statements. The TIP, however, was conducted after an undue delay of 3 months and 15 days, and the proceedings do not bear signatures or certification of the jail authorities. The prosecution witnesses have made inconsistent statements about whether the accused persons were masked, unmasked, or partially covered at the time of the incident. PW-35 Ramakant further admitted that he met the Thanedar outside the jail prior to the TIP. These circumstances seriously affect the credibility and fairness of the TIP. 25. The Supreme Court, in Iqbal (supra), Chunthuram (supra) and Gireesan Nair (supra), has categorically held that TIP is not substantive evidence and any infirmity in its conduct such as delay, police presence, or procedural lapses renders it unsafe to rely 14 upon. In the present case, the infirmities are substantial and go to the root of the identification process, making the TIP unreliable for sustaining conviction under a graver charge. 26. The prosecution case is further weakened by the fact that the items allegedly seized from appellant Lavkesh were never identified by any witness. The seizure witnesses PW-5 Deenanath and PW-10 Premlal turned hostile. The prosecution also failed to examine essential witnesses regarding the arrest and seizure from co- accused Lallulal (namely Moh. Hanif and Moh. Mustafa), and did not produce injured witness Ramdhari, who purportedly identified silver jewellery. These omissions break the chain of evidence. 27. As reflected in paragraphs 25, 26, 28 and 30 of the impugned judgment, there exist significant discrepancies regarding the number of accused persons, the time taken for committing the offence, the language spoken by the assailants, and whether the jeep was already parked or arrived after the bus. These inconsistencies materially dent the reliability of the prosecution story. 28. As regards Section 397 IPC, the prosecution has not established that any of the appellants used a “deadly weapon” or inflicted any grievous injury. The medical evidence shows only simple injuries caused by a blunt object. As held in Dhanai Mahto (supra), mere possession or use of a lathi or stick without proof of inherently lethal character or grievous injury cannot attract Section 397 IPC. Hence, 15 the conviction under Section 397 IPC cannot be sustained. However, the evidence on record sufficiently establishes that a dacoity was committed, and the occurrence itself is proved beyond doubt. Though the TIP suffers from infirmities, the substantive evidence, including the in-court identification of the appellants, though weak, is not wholly demolished. The cumulative evidence supports the finding that the appellants participated in the commission of the offence of dacoity. Therefore, the conviction under Section 395 IPC deserves to be affirmed. 29. During the pendency of the trial, the appellants have already undergone 2 years 5 months and 15 days of actual imprisonment, and thereafter, until release on bail (appellants Gendlal and Lalloolal on 12.04.2001 and appellant Lavkesh on 03.05.2001), they have undergone approximately 2 years 9 months of custody in total. Considering the infirmities in the prosecution case, the long lapse of time since the incident of 1998, the nature of injuries, and the mitigating circumstances, ends of justice would be met by reducing the sentence to the period already undergone. 30. In view of the above discussion, the appeals are partly allowed as follows:- (i) The conviction of the appellants under Section 397 IPC is set aside. (ii) The conviction of the appellants under Section 395 IPC is affirmed. 16 (iii) The sentence under Section 395 IPC is reduced to the period already undergone by them i.e. appropriately approximately 2 years 9 months. (iv) As the appellants are already on bail, they are not required to surrender. Their bail bonds are cancelled and sureties stand discharged. 31. The impugned judgment is modified accordingly. The appeals stand partly allowed in the above terms. 32. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellants are directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties each in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 33. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Ramesh Sinha) Chief Justice Preeti/Bablu