NAFR Judgment reserved on 27/01/ 2025 Judgment delivered on 25/04/2025 HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 774/2002 Manish Choudhary, S/o. Shri Pramod Kumar Choudhary, aged about 22 years, R/o Village Nawagaon, P.S. Devariya, Distt- East Champaran (Bihar) at Present R/o Sector-2, Street 2, Quarter No.3-A, Bhilai Nagar, Tah. & Distt. Durg(CG) --- Appellant Versus State of Chhattisgarh Through Officer-in-Charge, Police Station – Jamul, Tah. & Distt. Durg(C.G.) --- Respondent & Cr.A.No. 868/2002 1. Dalpat, S/o. Janak Lodhi Nagpure, aged about 22 Years, Native of Bori, Thana Lanjee, District - Balaghat, M.P., R/o. Santoshi Para, Camp-2, Thana- Chhawani, Bhilai (C.G.) 2. Virendra Kumar Shrivastav (Died) (Deleted) In Compliance Of Honble Court Order Dated 02.09.2024. 3. Tribhuwan Sahare, S/o Ghasi Ram Sahare, aged about 22 Years, Native of Vishanpuri, Thana - Kanker, District - Bastar, R/o. Telha Nala, Khursipar, Thana- Chhawani, Bhilai 4. Pradeep Kumar, S/o. Sambhunath Choudhari, aged about 20 Years Native of Gosaipur, Thana- Gosaipur, Distt. Balia (U.P.) R/o. Camp-2, Sardapara, Behind Tarhi Shop, Thana - Chhawani, Bhilai (C.G.) 5. Maneesh Choudhari (dleted), (As Per Honble Court Order Dated 23-09-2024 6. Omprakash, Alias Prakash, Alias- Rahul S/o. Janudas Kosle, aged about 19 Years, Native of Baltakri, Thana - Nandghat, District - Durg, R/o. Camp-2, Sardapara, ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.04.25 18:09:54 +0530 -2- Baikunth Nagar, Near Yug Nirman School, Thana - Chhawani, Bhilai. 7. Parmeshwar Dongre, S/o. A.O. Dongre, Native of Thana Sarangarrh, District - Raigarh, R/o. Khursipar, Near Telha Nala, Thana - Chhawani, Bhilai. --- Appellants Versus State of Chhattisgarh By Inspector of Police Thana - Jamul, Bhilai (C.G.) --- Respondent Cause Title is taken from CIS system __________________________________________________________________ For Appellants : Shri Ramkumar Tiwari, Advocate. For Respondent /State : Shri Kishan Lal Sahu, Dy. Government Advocate. ___________________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput CAV Judgment Since these two appeals arise out of the judgment dated 18.07.2002 passed by II Additional Sessions Judge, District – Durg (C.G.) in Sessions Case No.122/98, they are being disposed of by this common judgment. 2. By the judgment impugned the accused/appellants in Cr.A No. 868/2002 have been convicted under Sections 395/397 IPC and each of them have been sentenced to undergo RI for seven years whereas the appellant in Cr.A No. 774/2002 has been convicted u/s 120-B/397 IPC and sentenced to undergo RI for seven years. 3. The facts in short: Rambharosa (PW-1) was working as Mechanic in the Vandana Gas Agency of Lakhan Lal (PW-2) situated at Vijeta Complex, Jamul Area who runs the same with his nephew Raju (PW-3). On 18.07.1997 at about 6.15 PM when complainant (PW-1) was going to his house after closing the Agency along with his nephew (PW-3) on a Scooter by keeping an amount of Rs. 50,000/- wrapped in a bag and the cheque book, pass book and other papers in its dickey, on the way near Housing Board Road four boys stopped them and out of them two took out the sword and putting them under threat of life snatched their scooter and boarding the same all four fled away. -3- Being handicapped, the complainant (PW-1) could not make any resistance to the act of the robbers. His nephew (PW-3) could also not do anything as he was in fear. According to the complainant, all the four culprits were in the age group of 18 - 22 and on seeing he would identify them. Thereafter, he went to the Gas Agency and from a nearby STD booth he telephonically informed the police of Police Station Jamul on the basis of which FIR (Ex.P-2) was registered against four unknown persons for the offence punishable under section 392 IPC. Accused Tribhuwan, Pradeep Kumar Chaudhary and Manish Kumar were arrested on 27.09.1997 vide Ex. P-17 to P-19, accused Om Prakash Satnami was arrested on 30.09.1997 vide Ex. P-20, accused Dalpat was arrested on 11.07.1997 and accused Virendra was arrested on 17.07.1997. Scooter bearing registration No. MP-24-H-3887 was seized under Ex. P-6 from near Naresh Kirana Store in presence of Naresh and Ramesh (not examined) in which a black colour bag was found containing a cash of Rs. 23,500/-, a filled up cash deposit form, two cheque books, passbook, stamp pad and seal of Gas Agency etc and they all were also seized. After completion of investigation, charge-sheet was filed against seven accused persons for the offence punishable under Sections 392/34, 120-B/397 IPC and section 25/27 of Arms Act. However, charge against accused Manish was framed under Section 120-B/397 whereas against others it was u/s 395/397 IPC. 4. Prosecution examined as many as 09 witnesses in support of its case. Statements of the accused/appellants u/s 313 of the Cr.P.C. were also recorded in which they pleaded their innocence and false implication in the case. 5. Learned trial Court after hearing the parties convicted and sentenced the accused/appellants as described above. Hence these appeals. 6. Learned counsel for the appellants submits that the findings recorded by the trial Court are not based on the proper appreciation of the evidence of the witnesses and therefore they are liable to be set aside. He submits that even if the entire case of the prosecution is taken to be true, the offence of dacoity alleged against the appellants is not made out as the robbed articles were not seized from exclusive possession of any of -4- the accused/appellants, rather the seizure was made from an open place. He further submits that even the test identification parade becomes vitiated in this case because the accused/appellants were already seen by the complainant in the police station. Likewise, the offence under Section 120-B IPC alleged against accused/appellant Manish is also not made out as in the absence of any cogent and reliable evidence to this effect, the ingredients of the conspiracy contained in section 120-A of the IPC are not attracted to the case in hand. In support of his submission, reliance is placed on the decisions of the Supreme Court in the matter of Mallela Seetharamaiah v. State of Andhra Pradesh reported in (1989) MPWN 1, in the matter of Amrik Singh v. State of Punjab reported in (2022) 9 SCC 402, on the Division Bench decision of Madhya Pradesh High Court in the matter of Indar Singh v. State of MP reported in (1997) 1 MPWN 82, on the decision of MP High Court in the matter of Mangaliya alias Mangal Singh v. State of MP reported in 2005 (2) CGLJ 4. 7. On the other hand, supporting the impugned judgment learned counsel for the State submits that while passing the judgment impugned convicting and sentencing the accused/appellants as mentioned above learned trial Court has taken note of the evidence of all the witnesses very elaborately and therefore the findings so recorded holding the accused/appellants guilty do not suffer from any illegality or irregularity calling for interference in these appeals. He submits that the judgment impugned is a well reasoned one deserves affirmation by dismissing these appeals. 8. Heard counsel for the parties and gone through the evidence of the witnesses including the judgment impugned with great diligence. 9. Lakhan Lal Mandavi (PW-2) is the complainant in this case. According to this witness, he knew the accused Pradeep whom he had seen at the time of incident. He has stated that on the date of incident in the evening hours after closing his Gas Agency he was going to his house along with his nephew Raju (PW-3) and before that he had kept an amount of Rs. 34,000/- inside the bag and Rs. 40,000 – 50,000/- on the upper portion thereof, and the said bag was put in the front dickey of the scooter. According to -5- him, the scooter was ridden by his nephew whereas he was sitting as a pillion rider. By the time they reached near Housing Board Road, three-four persons in the age group of 26-27 armed with a bigger-than-knife object came there on foot, stopped them, made him alight the scooter and took away his scooter. Thereafter, they went to the STD booth from where Raju telephoned to the Police. They then went to the police station where a report (Ex.P-2) was lodged. He has stated that being the month of July, sufficient light was there to identify. 3-4 months thereafter this witness had gone to jail to participate in the Test Identification Parade where he identified accused Pradeep. He has stated that the scooter and an amount of Rs. 23,550/- out of the looted one was received by him in the Court on Supurdginama and the remaining amount remained unreceived. In cross examination he has stated that at the relevant time he was suffering from paraplegia on the right side of his body and for that he could not even speak properly. He has stated that after the incident he along with his nephew had gone to STD booth from where either his nephew or he himself informed the police about the same. Thereafter they went to the police station where on being told by him, the incident was narrated by his nephew to the police, and about 4-5 days thereafter he was called and interrogated by the police. First time when he went to the police station, the accused persons were not there but during the second visit they were present there. He is stated to have not seen all the accused persons together. He has then stated that in the Test Identification Parade he only identified the accused who was seen by him in the police station and not the others. 10. Raju (PW-3) has stated that out of the accused present in the Court he knew only four who were identified by him in the jail premises during test identification parade, and he had no idea about others. Rest of his statement is similar to that of the PW-2. Dincharan (PW-4) and Peter (PW-6) have not supported the case of the prosecution and turned hostile. J.S. Jangi (PW-5) has stated that a Scooter bearing registration No. MP- 24-H-3887 was seized under Ex. P-6 from near Naresh Kirana Store in presence of Naresh and Ramesh (not examined) in which a black colour bag was found containing a cash of Rs. 23,500/-, a filled up cash deposit form, two cheque books, passbook, stamp -6- pad and seal of Gas Agency etc and they all were also seized. He has stated that he did not get the robbed articles identified by PW2 nor did he confirm about the scooter from the RTO or the cheque books, passbook from the Bank. Taman Singh (PW-7) is witness the who conducted Test Identification Parade. He has stated that he paraded the accused by mixing with 20 persons of the same age and stature where complainant PW- 2 identified accused Pradeep and PW-3 identified four accused persons namely Dalpat, Virendra, Pradeep and Tribhuvan vide Ex. P-3. He has not ascertained whether the accused persons were shown to the PW-2 and PW-3 beforehand. Rajendra Jain (PW-8) has stated that after seeing a vehicle parked in front of his shop, his neighbour called up the police which on checking the dickey found some cash and some articles. He has stated that police had taken with it the vehicle with cash. In cross examination he has stated that though the police counted the currency notes found in the vehicle, he is not aware as to how much it was. Ram Bharosa (PW-1) who was working as mechanic in the Gas Agency of complainant (PW-2) has not stated anything specific in his deposition. Though he admitted the seizure memo (Ex.P-1), he has stated that no seizure according to Ex. P-1 was made before him. RP Shukla (PW-9) is the witness who did part of the investigation has supported the case of the prosecution. 10. If the FIR Ex. P-2 lodged by complainant (PW-2), his statement (Ex. D-2) recorded under Section 161 of the Code of Criminal Procedure and that of his Court statement is seen together, it is manifest that there is contradiction between the two as regards the money robbed of by the accused/appellants which was kept in the dickey of the scooter. In the FIR the amount is mentioned as Rs. 50,000/-, in the 161 CrPC statement it is mentioned as Rs. 50,000/- and Rs. 23,500/- whereas in the Court statement it is mentioned as 34,000/- and Rs. 40,000 – 50,000/-. However, Raju (PW-3) the nephew of PW -2 who was with him at the time of incident has stated that the amount kept in the dickey of the scooter was Rs. 60,000/-. There is variation about the age of the miscreants contained in the 161 CrPC statement and the Court statement of the complainant. As per the 161 CrPC statement, the accused persons were in the age group of 18 - 22 whereas -7- as per the Court statement they were 26 – 27 years of age. Furthermore, Rajendra Jain (PW-8) has stated that after seeing a vehicle parked in front of his shop, his neighbour called up the police which on checking the dickey found some cash and some articles. He has stated that police had taken with it the vehicle with cash. In cross examination he has stated that though the police counted the currency notes found in the vehicle, he is not aware as to how much it was. Thus it is apparent that the seizure of the scooter with cash was not made from the exclusive possession of any of the accused/appellants, rather it was made from an open place. More importantly, according to the deposition of complainant (PW-2) on the date of incident at about 6 PM when he was returning home along with his nephew (PW-2) after closing the Gas Agency, on the way 3-4 persons came, waylaid them, made them alight the scooter, took out knife and putting them under threat of life decamped with the scooter carrying cash. However, according to Raju (PW- 3) who was with PW-2 all along, the time of the incident is 6.15 PM and that when they reached the spot, first two boys appeared on the scene and on their call two more boys came there. Out of them, only two are stated to have carried sword. Thus if the testimony of PW-2 and PW-3 who were riding the same scooter and were together all throughout the incident is seen conjointly, they carry material contradiction and omissions casting doubt on the case of the prosecution. The other aspect of the matter is the TIP which was conducted on 04.10.1997 i.e. about three months after the incident also does not appear to be of any help to the prosecution because the complainant (PW-2) as per his Court deposition, had already seen the accused persons in the police station and thereafter he identified them in jail to be the same persons. It has been held time and again by the Supreme Court that if the accused persons are shown to the witnesses before the Test Identification parade being conducted, the identification becomes illegal. As regards the articles and money seized under Ex. P-6, the witness (PW-5) who did the investigation has admitted that he did not get the same identified by the complainant (PW-2). Even otherwise, the money, even if seized, cannot be subjected to identification. -8- 11. Now if the statements of PW-2 and PW-3 is again cast a glance, the number of persons stated to have committed the offence is not more than four. PW-2 states it to be 3-4 and PW-3 states about them to be 4 (two came first and the two on their call) whereas for dacoity the minimum number of persons has to be 5. Even the FIR is against four unknown persons. Secondly, though the accused persons are stated to have carried sword with them, none of the witnesses has stated that anyone of them had used the same for committing the offence. Before moving further, it appears necessary to have a look of the relevant provisions, which are reproduced hereunder for ready reference:- “390. Robbery.-In all robbery there is either theft or extortion. When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.-Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation.-The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. 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 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". 392. Punishment for robbery.-Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. 393. Attempt to commit robbery.-Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. 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 -9- with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 395. Punishment for dacoity.-Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 396. Dacoity with murder.-If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or 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. 398. Attempt to commit robbery or dacoity when armed with deadly weapon.-If, at the time of attempting to commit 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." 12. On conjoint reading of the aforesaid provisions, commission of `robbery' is sine qua non. The `dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the `dacoity'. Therefore, the only difference between the `robbery' and the `dacoity' would be the number of persons involved in conjointly committing or attempt to commit a `robbery'. The punishment for `dacoity' and `robbery' would be the same except that in the case of `dacoity' the punishment can be with imprisonment for life. However, in the case of `dacoity with murder' the punishment can be with death also. However, in a case where 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. 13. Now getting back again to the facts of the case in hand, neither the complainant (PW-2) nor his nephew (PW-3) is stated to have been caused any hurt much less the grievous hurt by any of the accused/appellants while committing the alleged offence. The culprits are just stated to have waylaid them, made them alight the scooter, threatened -10- them of life, snatched the scooter and fled away on it. Nothing beyond is stated by the complainant. While dealing with an identical issue in the matter of Ganesan v. State Rep. By Station House Officer and Shanmugam @ Babu v. State Rep. By Station House Officer reported in (2022) 15 SCC 634, it has been held by the Supreme Court as under:- “27. Thus, as per the law laid down by this Court in the aforesaid two decisions the term `offender' under Section 397 IPC is confined to the `offender' who uses any deadly weapon and 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 has not used any deadly weapon. Even there is distinction and difference between Section 397 and Section 398 IPC. The word used in Section 397 IPC is `uses' any deadly weapon and the word used in Section 398 IPC is `offender is armed with 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. 28. In light of the above observations and the law laid down by this Court in the aforesaid two decisions the case on behalf of the accused in the present appeals is 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 A1 and A3 are not alleged to have used any weapon. The allegation of use of any weapon was against Benny and Prabhakaran. Therefore, in absence of any allegations of use of any deadly weapon by the appellants herein - Accused Nos.1 and 3, Section 397 IPC shall not be attracted and to that extent the Learned Counsel appearing on behalf of the appellants - accused are right in submitting that they ought not to have been convicted for the offence punishable under Section 397 IPC.” 14. As regards the conviction of accused/appellant Manish Choudhary under Section 120-B IPC, there is no allegation against him that he ever entered into an agreement with anyone to commit an offence. No such agreement has been proved through directly or by circumstantial evidence. The requirement of manifestation of such agreement has also not been established by the prosecution. Dealing with an identical issue in the -11- matter of Ram Sharan Chaturvedi v. State of Madhya Pradesh reported in 2022 LiveLaw (SC) 709 it has been held as under: “26. In view of the clear enunciation of law on the criminal conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant with the accused, let alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement.” 15. Thus if the facts of the case in hand and the evidence on record are seen in the light of the aforesaid decisions of the Supreme Court, there can be no two opinion that the prosecution has not been able to prove its case beyond all reasonable doubt. The approach of the Court below also appears to have misdirected itself from the correct and proper appreciation of the evidence of the witnesses while recording the finding of conviction. The glaring defects in the case of the prosecution have also not been taken care of while passing the judgment impugned. Being so, the conviction of the accused/appellants under the aforesaid sections cannot be made to sustain and are liable to be set aside. Held accordingly. 16. To sum up, the appeals are allowed, judgment impugned is set aside and the accused/appellants are acquitted of the charges levelled against them. The accused appellants are already on bail and therefore the bail bonds furnished by them will remain in force for six months in view of Section 481 of BNSS, 2024. Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish / J