1 2026:CGHC:904 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 369 of 2005 Vinod Shah Gupta, S/o. Keshari Shah, Aged 24 years, R/o. Bikunthpur, Rajgarh Camp-I, 18 No. Steel Nagar, Thana Chhawani, Distt. Durg (CG) ... Appellant versus State Of Chhattisgarh Through District Magistrate, Durg (CG) ... Respondent For Appellant : Mr. Vidyabhushan Soni, Advocate on behalf of Mr. BP Singh, Advocate For Respondent/State : Mr. Shailesh Kumar Puriya, Panel Lawyer (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 07.01.2026 1. This criminal appeal has been preferred under Section 374(2) of the CrPC against judgment of conviction and order of sentence dated 14.8.2002 passed by Sixth Upper Sessions Judge, Durg (CG) in Session Case No.89/2002, whereby the learned Upper Sessions Judge, after holding the appellant guilty, convicted and sentenced him in the following manner:- Sl. No. Conviction under Section Jail Sentence Fine Sentence Default stipulation 01. 398 IPC RI for 07 years Rs.1000/- RI for 06 months 2. Case of the prosecution, in brief is that, on 28.10.2001 at about 8.00 pm, complainant Murari Charan Dubey, Excise Sub Inspector, was in his house, situated at Padmanabhpur, Durg, at that time, the appellant and other five accused persons went there and attempted to commit robbery on the BINI PRADEEP Digitally signed by BINI PRADEEP Date: 2026.01.09 15:01:43 +0530 2 point of country made pistol, but on being screamed by the complainant, they fled from the spot. FIR (Ex-P/8) was lodged by the complainant. After usual investigation, charge sheet for the offence under Section 398/34 was filed before Judicial Magistrate First Class, Durg against the appellant and other 04 accused persons namely Suresh, Vinod Koushik, Krishna Kumar and Dharmendra, showing co-accused Ravi Yadav as absconding. The learned JMFC committed the case to the Court of Sessions Judge, Durg and thereafter the case was transferred to the Sixth Upper Sessions Judge, Durg for trial. 3. The learned Sixth Upper Sessions Judge framed charges under Section 398/34 IPC against accused Suresh Kumar, Vinod Koushik, Krishna Kumar and Dharmendra Kumar and framed charges under Section 398 IPC and Section 27/25 Arms Act against appellant Vinod Shah Gupta. The accused persons abjured guilt and prayed for trial. 4. To bring home the charges, the prosecution has examined as many as 08 witnesses and exhibited 18 documents. Statement of the appellant under Section 313 CrPC was recorded, in which, he denied all the incriminating circumstances appearing against him in the prosecution evidence, claimed himself to be innocent and prayed for trial. He has not examined any witnesses in his defence. 5. After considering the evidence adduced by the prosecution, the learned trial Court acquitted co-accused Suresh Kumar, Vinod Koushik, Krishna Kumar and Dharmendra Kumar from all the charges, granting them benefit of doubt. The learned trial Court also acquitted present appellant for the offence under Sections 25/27 Arms Act, but convicted and sentenced him for the offence under Section 398 IPC, as has been mentioned in the opening 3 paragraph of this judgment, which has been assailed by the appellant in the instant appeal. 6. Learned counsel for the appellant submits that, to punish the accused for the offence under Section 398 IPC, the prosecution is obliged to prove that the accused person(s) were attempted to commit robbery or dacoity armed with deadly weapons. But in the instant case, the learned trial Court itself has held that, recovery of alleged country made pistol from the appellant has not been proved, despite that, the appellant has been convicted for the offence under Section 398 IPC. Therefore, he prays that conviction of the appellant may be modified to Section 393 IPC instead of Section 398 IPC. The appellant remained in jail during trial from 02.12.2001 to till suspension of his jail sentence by this Court on 07.6.2005. Thus, the appellant remained in jail for about 03 years and 06 months, hence, he prays to modify the conviction of the appellant for the offence under Section 398 IPC to Section 393 IPC and his jail sentence may be reduced to the period already under gone by him. 7. Learned counsel for the State would submit that impugned judgment is based on well appreciation of the evidence, hence, the appeal is liable to be rejected. 8. I have heard learned counsel for the parties and perused the material available on record as well as the impugned judgment. 9. Complainant MC Dubey (PW-5) has stated in his deposition that on the fateful night at about 8.00 pm, he was in his house along with his wife. At that time, the appellant entered the house and tried to commit dacoity of the sale amount of the liquor, which was kept by him in his house, on the point of country made pistol. He further deposed that he tried to catch the 4 appellant but he escaped from his clutches. He further deposed that when he came out from the house, he found other persons present in the Sumo vehicle, who along with the appellant fled away from the spot. Since he has not identified those persons, he has not named them, but he not only named the appellant in his statement recorded before the court, but he also identified him in the identification parade (Ex-P/7), which has also been proved by Naib Tahsildar SR Mandavi (PW-3). 10. The alleged incident is stated to be occurred at about 8.00 pm on 28.10.2001and the report was lodged by the complainant (PW-5) within two hours, though against unknown person. But he has identified the appellant not only in the identification parade (Ex-P/7) but in the Court also. Therefore, having considered the evidence available on record, it is found that the learned trial Court has not committed any mistake in holding the appellant guilty for attempt to commit robbery of the amount from the complainant. 11. The learned trial Court itself has held that seizure of alleged country made pistol from the possession of the appellant has not been proved, therefore, sanction as provided under Section 39 of the Arms Act, has also not been proved, therefore, it has acquitted the appellant for the offence under Sections 25 & 27 of the Arms Act. 12. To convict the the accused persons for the offence under Section 398 IPC, the prosecution must prove that accused was armed with weapon and the weapon was deadly one and while so armed, he attempted to commit robbery or dacoity. But in the instant case, the prosecution has failed to prove that the alleged country made pistol was seized from the possession of the appellant, therefore, he has been acquitted by the learned trial Court for the offence under Sections 25 & 27 of the Arms Act. In such circumstances, though it has been proved that the appellant attempted to commit robbery, but 5 since it has not been proved that he was armed with any deadly weapon, therefore, his conviction under Section 398 IPC is modified and instead thereof, he is convicted under Section 393 IPC for the offence of attempt to commit robbery. 13. So far as the sentence part is concerned, it is apparent from the impugned judgment that during trial, the appellant was in jail from 02.12.2001 to 14.8.2002 (date of judgment) and after the date of judgment he remained in jail till 07.6.2005 i.e. date when his jail sentence was suspended by this Court. Thus, he remained in jail for about 03 years and 6 months. 14. Having considered the totality of the case, it is found that ends of justice would be served, if the appellant is awarded jail sentence for the the period already undergone by him for the offence under Section 393 IPC. 15. In the result, the criminal appeal is partly allowed. Conviction of the appellant for the offence under Section 398 IPC is modified and instead there of, he is convicted under Section 393 IPC and is awarded jail sentence for the offence under Section 393 IPC to the period already undergone by him, i.e. from 02.12.2002 to 07.6.2005 and to pay fine of Rs.1,000/- and in default of payment of fine, to undergo further period of 3 months RI. 16. The appellant is stated to be on bail. The bail bonds furnished by the appellant shall remain in operation for a period of 06 months from today, in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 17. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) Judge Bini