1 CGHC010370962019 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1551 of 2019 1 - XYZ --- Appellant Versus 1 - State of Chhattisgarh Police Station Thana Balco, District Korba, Chhattisgarh. --- Respondent(s) CRA No. 663 of 2022 1 - ABC ---Appellant Versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Balco Nagar District Korba (C.G.) --- Respondent(s) (Cause-title taken from Case Information System) For Appellants : Shri Alok Kumar Dewangan and Shri C.R. Sahu, Advocates. For State : Shri Atanu Ghosh, Dy. Govt. Advocate along with Shri Rajkumar Sahu, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 26.09.2026 1 These two appeals arise out of same Crime Number and by common judgment, therefore, they are being heard and decided together by this common judgment. 2 CRA No.1551 of 2019 has been filed by the appellant XYZ and CRA No.663 of 2022 has been filed by the appellant ABC. They are accused No.1&2 respectively in the impugned judgment. INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.09.29 16:53:27 +0530 2 3 Both these appeals have been filed by the appellants against the impugned judgment of conviction and order of sentence dated 11.03.2019 passed by the Additional Sessions Judge (FTC)/Childrens Court, Korba, in Special Case (Juvenile) No.11/2017 whereby the juveniles in conflict with law have been convicted for the offence under Section 397 IPC and sentenced to undergo RI for 7 years. 4 Brief facts of the case are that, on 09.03.2016 when the complainant Virendra Kumar Chandra, PW-6 went to Coffee Point along with his female friend PW-2, at about 12:30 PM when they reached near Futahamuda, the present appellants along with another person came there by driving motorcycle rashly and negligently. To save themselves, the complainant parked his Schooty beside the road, yet the present appellants dashed them. They got down from their motorcycle by abusing the complainant and one out of them took out a Chopper and assaulted the complainant on his head by which he received injury on his head and blood was oozing out. Considering furious-ness of the appellants, the complainant left his vehicle and ran towards Jungle. The appellants also looted the mobile phone and purse containing Rs.950/- and fled away from the place. After some time, the complainant came back to the place. Through the mobile phone of bypasser he made a telephonic call to his friend Sourabh Gupta, PW-5, who came there for their help and thereafter he took him to hospital. Dehati Nalisi Ex.P/10 was recorded on the report made by the complainant Virendra Kumar Chandra against three unknown persons for the offence under Sections 294,323,34 of IPC. Based on Dehati Nalisi, an FIR Ex.P/21 was registered against the unknown 3 persons at Police Station Balco Nagar. The complainant Virendra Kumar was sent for his medical examination to Balco Trauma Centre, Korba where PW-9 Dr. Brijlal medically examined him and gave report Ex.P/18-C. While medically examining the complainant, the doctor noticed one injury on the left fronto-parietal region of head which was simple in nature and caused by hard and sharp object. He opined that since the complainant has left the hospital, the nature of injuries could not be ascertained. The complainant was also referred for CT Scan of his head, however, from CT Scan report Ex.P/21 no diagnostic abnormalities were seen in brain. The complainant was also referred for X-ray of his chest, however, in the X-ray report of his chest, no bony injury was found and report Ex.P/22 was given by Dr. Anand Bhagat, PW-11. During investigation, the appellants were taken into custody on 02.04.2016 and their memorandum statement Ex.P/1&P/2 were recorded. On the basis of their memorandum statement, one chopper was seized vide Ex.P/3 from appellant XYZ whereas Rs.200/- cash was seized from appellant ABC vide seizure memo Ex.P/4. Primary School progress report card of the appellants, who were juvenile in conflict with law, were seized vide seizure memo Ex.P/7. The appellants were also put to Test Identification Parade (in short, TIP) by the Tehsildar Korba on 02.04.2016 at Tehsil Office Korba where the present appellants have been identified by the witnesses and identification memo Ex.P/9-C was prepared. Spot map Ex.P/11 was prepared by the Police. Invoices of mobiles phones were seized from complainant Virendra Chandra vide Ex.P/13-C. School register with respect to date of birth of appellant XYZ was seized vide Ex.P/14 4 and after retaining its attested true copy Ex.P/16-C, the original register was returned back. Transfer Certificate of the appellant ABC Ex.P/17 was also seized by the police. 5 The statement under Section 161 CrPC of witnesses were recorded and after completion of usual investigation, initially the charge sheet was filed against the appellants before the Juvenile Justice Board, Korba on 01.06.2016. After preliminary enquiry, vide order dated 24.05.2017 the case was committed to Childrens Court as the appellants were found to be more than 16 years and less than 18 years of age on the date of incident and therefore they were required to be tried by the Childrens Court as provided under Section 18(3) of The Juvenile Justice (Care and Protection of Children) Act, 2015. Thereafter, the trial of the case was conducted by the Childrens Court. 6 The Childrens Court framed charge against the appellants for the offence under Section 397 of IPC. They denied the charge and claimed trial. 7 In order to establish the charge against the appellants, the prosecution has examined as many as 14 witnesses. Statement under Section 313 CrPC of the appellants have also been recorded in which they denied the circumstances appears against them, pleaded innocence and have submitted that they are innocent and falsely implicated in the offence. 8 After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court convicted the appellants and sentenced them as mentioned in opening para of this judgment. Hence these appeals. 5 9 Learned counsel for the appellants would jointly submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the prosecution witnesses which cannot be made basis to convict them in the offence in question. Subsequently vide order dated 11.03.2019 the additional charge for the offence under Section 25(1)(1B)(b) of the Arms Act have been framed against them. The trial court has acquitted the appellants from the offence of Section 25(1)(1B)(b) of the Arms Act holding that seizure of any deadly weapon or prohibited arms has not been proved by the prosecution. Once seizure of any deadly weapon has not been found proved by the prosecution, the appellants cannot be convicted for the offence under Section 397 IPC as use of deadly weapon is one of the condition for conviction of the appellants for the offence under Section 397 IPC. They would further submit that as per requirement of Section 397 IPC, the complainant should have received grievous injuries on his body, but in the present case the doctor found simple injury which also does not supported the offence of Section 397 IPC, yet the trial court has convicted the appellants for the said offence. They would further submit that even if the case of prosecution is taken as it is, the offence of appellants, if any, does not travel beyond the scope of Section 394 IPC. The appellants have already remained in jail for more than five years and for the offence under Section 394 IPC there is no minimum sentence provided, their conviction may be altered to one under Section 394 IPC and their sentence may be reduced for the period already undergone by them. 6 10 On the other hand, learned counsel for the State opposes the submissions made by the appellants and would submit that although the appellants have been acquitted from the offence under Section 25(1)(1B)(b) of the Arms Act, that itself is not determinative for acquittal of appellants for the offence under Section 397 IPC as requirement under Section 397 IPC and Section 25(1)(1B)(b) of Arms Act are entirely different. The injury was found on the fronto parietal region of the head of the complainant which itself is sufficient to draw an inference that he was being assaulted by the appellants. They looted their mobile phones and cash amount from complainant during which one of them caused injury on the head of the complainant. Therefore, the ingredients of offence under Section 397 IPC has duly been satisfied by the prosecution and allegation against them has been proved by the complainant himself. Therefore, the trial court has rightly convicted and sentenced the appellants and there is no need to interfere with the impugned judgment of conviction and sentence. 11 I have heard the counsel for the parties and perused the records of the case. 12 The age of the appellants are not in dispute as after preliminary inquiry they referred to the Childrens Court for their trial. Therefore, there is no need to discuss evidence with respect to age of the appellants. 13 The consideration of the court in these appeals revolves the scope of Section 397 of IPC as the appellants have challenged their conviction for the offence under Section 397 IPC and confined their submission to the extent that offence of Section 394 IPC would be made out instead of Section 397 IPC. 7 14 The complainant PW-6 have stated in his evidence that on the date of incident when he along with his female friend went to Coffee Point, on the way, the appellants dashed them by motorcycle and when the complainant parked their vehicle on the side of road, they started abusing and one of them assaulted him by Chopper by which he received injury and blood was oozing out. To save themselves, the complainant and his female friend ran towards Jungle. While running towards Jungle, his mobile phone and purse fell down on the spot which the appellants took with them and they fled away. After some time, they came to the place of incident and made a telephonic call to his friend Sourabh Gupta, PW-4 through the mobile phone of bypasser who came and took them to Hospital. In cross examination he remain firm in saying that on the way he was being assaulted by one of the accused by Chopper. Though he stated that he has been falsely implicated the appellants in the offence, but he being the injured witness, have stated that on the way he was being restrained by the appellants and they assaulted him. He denied the suggestion given by the defence that he could not identify the juvenile in conflict with law who committed the offence. 15 PW-2 is the female friend of the complainant who was with him at the time of incident. She too supported the case of prosecution that when she as going along with complainant, on the way, three persons came through motorcycle and one of them assaulted the complainant on his head by an Iron weapon. Looking to their furious-ness, they ran away towards Jungle and after sometime when they return back, they found their purse and mobile phone taken by the appellants. In cross 8 examination she stated that during her police statement she could not disclose the physic of offenders. Before incident, she had not seen the appellants anywhere. From her cross examination also, the defence could not deny the incident that complainant was not being assaulted by the appellants. 16 PW-4, Sourabh Gupta, is the friend of complainant who was being called by him after the incident. He stated that when he received information, he came on spot and saw that complainant had received injuries on his head and blood was oozing out and then he took the complainant at Trauma Centre, Korba. The complainant informed about the incident. There is nothing substantive in his cross examination to disbelieve his evidence. His evidence is corroborative only to the extent that after the incident the complainant made a telephonic call to him and he went on spot and took the complainant to Trauma Centre, Korba. 17 PW-5, R.S. Sidar, is the Naib Tehsildar who conducted TIP of the appellants and proved the identification memo Ex.P/9. He stated in his evidence that on 02.04.2016 he conducted TIP of the appellants at Tehsil office Korba where the witnesses have duly identified the appellants and TIP memo Ex.P/9 was prepared. In cross examination, he remain firm in conducting TIP and preparation of TIP memo. He duly supported the prosecution case that during TIP the complainant has duly identified the appellants. Nothing in his evidence to disbelieve that he has not conducted any TIP. From his evidence, the involvement of the appellants have duly been proved that the appellants committed the offence. 9 18 PW-9, Dr. Brijlal who medically examined the complainant have stated that on 09.03.2016 the complainant was admitted to Trauma Centre, Korba, and after his preliminary treatment by him and Dr. Rajiv Shrivas, he proved his MLC report Ex.P/18. In cross examination he admits that he has not treated the complainant and the injury mentioned in the MLC report would have been caused on falling floor from the vehicle. 19 PW-11, Dr. Anand Bhagat is the Radiologist. He states that on 09.03.2016 he was on duty at Trauma Centre and he took CT Scan of the complainant and gave report that no diagnostic abnormalities seen in the brain parenchyma. His report is Ex.P/21 and chest x-ray report is Ex.P/22, according to which, no bony injury was found in the body of complainant. 20 From the evidence of these two doctors who medically examined the complainant, the prosecution could not prove that complainant received grievous injuries, however, from MLC report Ex.P/18, it is clearly mentioned that injuries found on the head of the complainant was simple in nature. Thus, these are the evidences available on record to consider the offence against the appellants as the involvement of the appellants have been proved in the case. 21 The appellants have been convicted for the offence under Section 397 IPC for committing robbery with attempt to cause death or grievous hurt. As per the provisions of Section 397 IPC, the requisite criteria to convict the accused for the said offence is that, the offender uses any deadly weapon or causes grievous hurt to any person or attempted to 10 cause death or grievous hurt to any person at the time of committing robbery. 22 In the present case, the use of any deadly weapon could not be proved by the prosecution as seizure of any Chopper from the appellant XYZ has not been found proved by the prosecution and the appellants have been acquitted from the offence under Section 25(1) (1B)(b) of the Arms Act. Further, there is no evidence that complainant has received any grievous injuries at any part of his body. Rather, MLC report of complainant Ex.P/18 clearly suggests that he received simple injury on his head and thus, both these ingredients i.e use of any deadly weapon or grievous hurt on the body of complainant is missing in the case which is the condition required for convicting the appellants for the offence under Section 397 IPC. 23 When the involvement of the appellants in committing robbery has been proved and simple injury was found on the body of complainant, their act squarely falls under Section 394 IPC which defines voluntarily causing hurt in committing robbery. Therefore, this court is of the considered opinion that the act of the appellants come under Section 394 IPC instead of Section 397 IPC. Thereby, their conviction is required to be altered under Section 394 IPC. Accordingly, the appellants are convicted for the offence under Section 394 IPC instead of Section 397 IPC. 24 So far as the sentence awarded to the appellants for the alleged offence is concerned, the offence of Section 394 IPC provides that the accused shall be punished with imprisonment for life or rigorous imprisonment for a term which may extent to 10 years and shall also 11 be liable to fine. There is no minimum sentence provided for the offence under Section 394 IPC. As has been argued by the counsel for the appellants that appellant XYZ has already remained in jail for more than five years and appellant ABC have been released from jail after completing his entire jail sentence as awarded for the offence under Section 397 IPC, their sentence may be reduced for the period already undergone by them. 25 Accordingly, while converting their conviction for the offence under Section 394 IPC, they are sentenced to undergo RI for five years and fine of Rs.1000/- to each of the appellants. In default of payment of fine amount, they shall undergo additional RI for one month. As has been submitted by the counsel for the appellants that appellant XYZ has already undergone more than five years and three months of jail sentence, he is entitled for set off period of the undergone period during trial as well during pendency of appeal. The appellant ABC is reported to be already released from jail after completing his entire jail sentence, therefore, appellant ABC is not required to surrender again to serve any part of jail sentence. 26 With the aforesaid modification of the conviction and sentence of the appellants, both the appeals are partly allowed. 27 The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder