1 CGHC010177762018 2026:CGHC:39359 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 813 of 2018 Faijal Khan S/o Chand Khan Aged About 22 Years R/o Barpali Chauk, Champa, Thana - Champa, District Janjgir Champa Chhattisgarh. --- Appellant versus State Of Chhattisgarh Through Police Station Champa, District Janjgir Champa Chhattisgarh. --- Respondent CRA No. 1626 of 2018 Sandeep Yadav @ Sanju S/o Tribhuvan Yadav Aged About 21 Years R/o Bhojpur Champa, District Janjgir -Champa Chhattisgarh. ---Appellant Versus The State Of Chhattisgarh Through The Police Station Champa, District Janjgir-Champa Chhattisgarh. --- Respondent For Appellants : Mr. Samir Singh, Advocate in CRA No.813/2018 and Mr. Punit Ruparel, Advocate in CRA No.1626/2018. For Respondent/State : Mr. Ujjawal Choubey, Panel Lawyer 2 Hon'ble Shri Justice Naresh Kumar Chandravanshi, J Judgment On Board (08th September, 2026) Since both these appeals arise out of the judgment of conviction and order of sentence dated 30.5.2018 passed by Sessions Judge, Janjgir-Champa in S.T.No.13/2018, they are being decided by this common judgment. By the impugned judgment, the appellants stand convicted and sentenced as under: Conviction Sentence Appellant – Sandeep Yadav @ Sanju Under Section 394/397 of Indian Penal Code. RI for 07 years, fine of Rs.100/- and in default thereof to suffer additional SI for 05 days. Appellant – Faijal Khan Under Section 394/34 of Indian Penal Code. RI for 05 years, fine of Rs.100/- and in default thereof to suffer additional SI for 05 days. 2. Case of the prosecution, in brief, is that on 29.07.2017, at about 10:30 p.m., complainant Pareshwar Shrivas (PW-1) and his son Yogesh (PW-2) were proceeding towards village Mudpar on a motorcycle carrying about Rs.50,000/- for payment of labour charges and purchase of construction material. Near a bridge shortly after Hathnewara, three persons stopped them on the pretext of requiring petrol. Two of them approached the complainant and his son, removed the motorcycle key, assaulted Yogesh and forcibly took approximately Rs.1,200/- from his purse and Rs.50,000/- from his rear pocket. They 3 also took away a mobile phone and fled towards Champa. As the incident occurred at night, the complainant and his son could not clearly identify the assailants at the spot. The complainant thereafter made a written complaint (Ex.P-1) at Police Station Champa, on the basis of which FIR (Ex.P-2) was registered under Section 392 of IPC. 2.1 During investigation, the injured Yogesh was medically examined, the spot map was prepared, and memorandum statements of accused Sandeep and Faizal Khan were recorded, pursuant to which seizures were effected. The accused persons were arrested. The investigating agency also collected call detail records, mobile- location data and other electronic evidence relating to the mobile phones allegedly connected with the occurrence, along with a certificate under Section 65-B of the Indian Evidence Act. Subsequently, a test identification proceeding was conducted at District Jail, Janjgir on 31.08.2017, in which complainant Pareshwar and his son Yogesh identified accused Sandeep and Faizal Khan. After completion of investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Champa under Sections 392, 394, 397 and 323 of IPC. After committal proceeding, the case received on transfer for trial by learned Sessions Judge, Janjgir-Champa. 3. Learned trial Court framed charges under Sections 394 read with 397 and 34 of IPC against the accused persons which were abjured by them and they prayed for trial. In order to substantiate its case the 4 prosecution examined 13 witnesses in all. Thereafter, statements of the accused were recorded under Section 313 of CrPC wherein they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no witness was examined by them in defence. 4. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellants as mentioned in para 1 of this judgment. Hence these appeals. 5. Learned counsel for the appellants would submit that the impugned judgment is contrary to law and material available on record. They submit that written complaint (Ex.P-1) was made by complainant Pareshwar Shrivas (PW-1), based on which FIR (Ex.P-2) was registered against three unknown persons. The appellants were caught by the police on 5.8.2017 i.e. after seven days of the incident. They further submit that the appellants have been implicated in the present crime only on the basis of memorandum and seizure whereby two mobile phones, one of Samsung company and another of Micromax company, along with some cash amount, were seized from appellant Sandeep Yadav @ Sanju but in the complaint/FIR, the complainant (PW-1) did not name the company of said mobile phones looted by the miscreants. The seized mobile phones have also not been got identified from the complainant and his son. Learned counsel would 5 next submit that the further ground of implicating the appellants is the Test Identification Parade (TIP) conducted by PW-11 Garima Manhar, Naib Tehsildar, who prepared Panchanama (Ex.P-4) of TIP, which was conducted in District Jail, Janjgir. However, PW-7 Ramdhan Markam, a witness to TIP, has admitted in his cross-examination that he was not present in the hospital ward during the identification process, rather he signed the document on being called subsequently. Likewise, PW-6 Kumar Ram Netam, another witness to TIP, has also admitted in cross- examination that he did not witness the proceedings conducted in the hospital ward. PW-2 Yogesh, son of the complainant, has specifically admitted in para 6 of his cross-examination that while conducting TIP, police were present behind in the room. In view of aforesaid evidence, the identification of the accused/appellants becomes doubtful. 5.1 Learned counsel for the appellant Sandeep Yadav @ Sanju would submit that no any grievous injury was sustained by PW-1 or PW-2, rather injury sustained by them is said to be simple in nature as per medical evidence of PW-5 Dr. Hemendra Jaiswal. This witness also admits in cross-examination that the type of injury sustained by the victim (PW-2 Yogesh) is possible due to a cut caused by one’s own teeth. As such, there being no grievous injury caused to any of the victims, offence under Section 397 of IPC is not attracted in this case. Lastly, learned counsel for the appellants would submit that without there being any cogent and reliable evidence, only on the basis of 6 conjectures and surmises, the learned trial Court has held the appellants guilty of the aforesaid crime. Therefore, both the appeals may be allowed and the impugned judgment be set aside. 6. On the other hand, learned counsel for the State opposing the contention of the appellants would submit that the impugned judgment has been passed on the basis of seizure of incriminating articles from the accused/appellants as well as their identification in the TIP conducted by PW-11 Garima Manhar, Naib Tehsildar, where PW-1 Pareshwar Shrivas and his son PW-2 Yogesh duly identified the appellants. Thus, the impugned judgment being based on proper appreciation of oral and documentary evidence needs no interference by this Court. Both the appeals being devoid of any substance are, therefore, liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 Pareshwar, complainant, states that on 29.07.2017, at about 10:00–10:30 p.m., while he and his son Yogesh were proceeding towards village Mudpar on a motorcycle, four boys stopped them near a bridge after Hathnewara on the pretext of requiring petrol. One of them removed the motorcycle key, while the others searched him and his son and took away his mobile phone, Rs.50,000/- and approximately Rs.1,200/- from Yogesh. Yogesh was also assaulted and 7 threatened with a knife. Thereafter, the assailants fled. He identified accused Dilip Yadav and Faizal in Court and attributed the removal of the motorcycle key and assault with a knife to the accused/appellants. He further stated that he had identified both accused persons during the test identification proceeding conducted in jail, wherein 7-8 other persons were also mixed with them. He admitted his signature from A to A part on written report (Ex.P-1), FIR (Ex.P-2) and Identification Panchanama (Ex.P-4). In cross-examination, he admitted that his written report and police statement referred to three unknown boys and that the report did not mention that he could identify the assailants upon seeing. He denied that the police had shown the accused persons to him before the identification proceeding or that he was identifying them in Court at the instance of the police. 9. PW-2 Yogesh, son of the complainant, has also stated that on 29.7.2017 at 10-10.30 pm while he along with his father (PW-1) was going to Mudapar from Champa on motorcycle, four boys stopped their motorcycle on the way, and one of them removed the key from the motorcycle. He stated that when he objected to the same, accused/appellant Sandeep Yadav threatened him on the point of knife and also assaulted him with fist on his face. Thereafter, accused/appellant Sandeep Yadav looted Rs.1,200/-, his voter ID and other documents kept in the purse as also his mobile. He stated that the another accused looted Rs.50,000/- and mobile from his father. He 8 stated that the said accused is not present in the Court and charge sheet has been filed against him before the juvenile Court. He further stated that accused/appellant Faijal was standing with his motorcycle at the spot and after loot being done, all the accused persons fled from the spot. He stated that his father made a written complaint (Ex.P-1) at Police Station – Champa. In para 4 he states that he identified the accused/appellants in the TIP conducted in the jail vide Identification Panchanama (Ex.P-4) which bears his signature from B to B part. In cross-examination he admits that when they were taken into a room for conducting identification proceeding, the police were standing behind. 10. PW-9 Lakheshwar and PW-12 Ramesh Chouhan, witnesses to memorandum (Ex.P-9 & P-10) and seizure (Ex.P-11 & P-12), have not supported the prosecution case and have been declared hostile. 11. PW-5 Dr. Hemendra Jaiswal medically examined PW-2 Yogesh on 30.7.2017 and found a lacerated wound on the inner right side of his lip of size 1 cm x 1 cm which appeared to have been inflicted by a hard and blunt object and it was simple in nature. His report is Ex.P/12. In cross-examination he admits that the type of injury sustained by the victim (PW-2 Yogesh) is possible due to a cut caused by one’s own teeth. 12. PW-6 Kumarram Netam, Head Guard in District Jail, Janjgir, who is a witness to the Identification Panchanama (Ex.P-4), states that at 9 the time of identification proceeding, he was present near the gate in front of hospital ward. He admits that he did not witness the proceeding conducted in hospital ward. Similarly, PW-7 Ramdhan Markam, another witness to Identification Panchanama (Ex.P-4), admits in cross-examination that he did not attend the identification proceeding conducted in the hospital ward, and that he signed the documents later. 13. PW-11 Garima Manhar, Naib Tehsildar, conducted the TIP on 31.8.2017 in District Jail, Janjgir. She states that in the TIP, PW-1 Pareshwar and PW-2 Yogesh identified the accused/appellants by touching them. She states that when she took Pareshwar and Yogesh into the barrack of the hospital for identification of the accused, at that time the police were sitting in the office of the jail. 14. Having gone through the entire evidence on record, this Court is of the considered opinion that the prosecution has failed to establish the identity and involvement of the appellants beyond reasonable doubt. Admittedly, the incident took place at about 10:00–10:30 p.m. and, as stated by PW-1 Pareshwar himself, the assailants were initially unknown. The written report (Ex.P-1) as well as the FIR (Ex.P-2) specifically described the offenders as unknown persons. Significantly, the complainant did not state in the FIR that he had seen the assailants sufficiently well so as to be in a position to identify them subsequently. 10 15. The subsequent identification of the appellants in the test identification proceeding, therefore, assumes considerable importance. However, the manner in which the TIP was conducted creates serious doubt regarding its evidentiary reliability. PW-2 Yogesh, who claimed to have identified the appellants, categorically admitted in his cross- examination that when he was taken into the room for the identification proceeding, police personnel were present behind. More importantly, PW-6 Kumar Ram Netam and PW-7 Ramdhan Markam, who were cited as witnesses to the identification proceeding, admittedly did not witness the actual identification conducted in the hospital ward. PW-7 went to the extent of admitting that he had signed the document subsequently. Thus, the prosecution has failed to establish that the identification proceeding was conducted in a manner which excluded the possibility of the witnesses having been exposed to the accused prior to or during the process of identification. 16. The testimony of PW-11 Garima Manhar, Naib Tehsildar, does not completely dispel the aforesaid doubt. Though she states that PW- 1 and PW-2 identified the appellants by touching them and that police personnel were sitting in the jail office, the material admissions of PW- 2, PW-6 and PW-7 regarding the presence of police and their absence from the actual identification proceeding cannot be brushed aside. In a criminal trial, particularly where the assailants were admittedly unknown at the time of the occurrence, identification evidence must 11 inspire confidence and be free from circumstances which create a reasonable possibility of tutoring, prior exposure or mistaken identification. 17. The prosecution case is also not supported by any convincing corroborative evidence connecting the appellants with the articles allegedly robbed during the occurrence. The witnesses to the memorandum and seizure proceedings, namely PW-4 Lakheshwar and PW-12 Ramesh Chouhan, have not supported the prosecution case and have been declared hostile. The two mobile phones allegedly seized from appellant Sandeep were admittedly not identified by PW-1 or PW-2 as being the same mobile phones which were allegedly looted during the occurrence. The mere recovery of articles, in such circumstances, cannot constitute a safe basis for recording a conviction when the foundational question of the identity and participation of the accused itself remains doubtful. 18. The medical evidence also does not provide any substantial corroboration to the prosecution version so as to connect the appellants with the alleged assault. PW-5 Dr. Hemendra Jaiswal found only a lacerated wound measuring 1 cm × 1 cm on the inner right side of the lip of PW-2 Yogesh, which was simple in nature. The doctor further admitted that such an injury was possible even by a cut caused by one's own teeth. Thus, the medical evidence neither establishes the manner of assault alleged by the prosecution nor furnishes any 12 independent circumstance connecting the appellants with the commission of the offence. 19. So far as the conviction under Section 397 IPC is concerned, the prosecution was required to establish, beyond reasonable doubt, that at the time of committing robbery or dacoity, the offender used a deadly weapon, or caused grievous hurt, or attempted to cause death or grievous hurt. Section 397 of IPC reads as under: “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. In the present case, apart from the doubtful ocular assertion regarding the use of a knife, there is no reliable and independent evidence establishing the use of any deadly weapon by the appellants. The alleged injury suffered by PW-2 was admittedly simple in nature and there is no medical evidence of any grievous hurt or any attempt to cause death or grievous hurt. In the backdrop of the doubtful identification evidence and absence of reliable corroboration, the bald assertion regarding use of a knife cannot safely be made the basis of conviction under Section 397 IPC. 21. It is true that for an offence under Section 394 IPC, the hurt need not necessarily be grievous; even voluntarily causing simple hurt while 13 committing or attempting to commit robbery may attract the provision. However, before recording such conviction, the prosecution must first establish beyond reasonable doubt the participation of the accused in the robbery and the fact that hurt was voluntarily caused by them in connection therewith. In the present case, the evidence regarding the identity and participation of the appellants is itself doubtful for the reasons discussed hereinabove. Consequently, the simple injury found on PW-2 cannot, by itself, be treated as sufficient to establish the guilt of the appellants under Section 394 IPC. 22. It is a fundamental principle of criminal jurisprudence that suspicion, however strong, cannot take the place of proof. Where two views are reasonably possible on the evidence, the one favourable to the accused must necessarily be adopted. The prosecution is required to prove its case beyond reasonable doubt and the accused cannot be convicted merely because the prosecution version appears probable. In the instant case, the doubtful TIP, the presence of police personnel in the vicinity of the identification proceeding, the material admissions of PW-6 and PW-7, the hostile seizure witnesses, non-identification of the recovered mobile phones, and the absence of convincing medical or other corroborative evidence, cumulatively create a serious and reasonable doubt regarding the involvement of the appellants in the crime in question. 14 23. On the basis of aforesaid discussions, both the appeals deserve to be and are hereby allowed. The impugned judgment of conviction and order of sentence dated 30.05.2018 passed by the learned Sessions Judge, Janjgir-Champa in S.T. No.13/2018, is hereby set aside. The appellants are acquitted of the charges under Sections 394/397 and 394/34 of IPC by extending to them the benefit of doubt. 24. The appellants are reported to be on bail, therefore, their bail bonds shall remain in operation for a period of six months from today in view of provisions of Section 481 of BNSS, 2023. 25. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/ (Naresh Kumar Chandravanshi) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2026.09.15 10:40:10 +0530