1 2026:CGHC:15894 The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 18.03.2026 07.04.2026 -- 07.04.2026 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 39 of 2008 1. Vijay Kumar Chauhan S/o Shri Prit Ram Chauhan, Occupation- Agriculture, aged about 23 years, R/o Village- Bataikela, Police Station- Kansabell, District- Jashpur (C.G.) 2. Kanhaiya Ram, S/o Shri Lodoram Chauhan, Occupation- Agriculture, aged about 34 years, R/o Village- Bataikela, Police Station- Kansabell, District- Jashpur (C.G.) ... Appellants versus • State Of Chhattisgarh through Police Station- Kansabell, District- Jashpur (C.G.) --- Respondent/State _____________________________________________________________ For Appellants : Mr. Pushpendra Kumar Patel, Advocate. For State : Mr. Kanhaiya Ram Yadav, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey C A V Judgement 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Digitally signed by AMIT PATEL 2 Procedure, 1973 against the judgment dated 30.11.2007 passed by learned Additional Sessions Judge, Jashpur in Sessions Trial No. 83 /2007, wherein the said Court convicted the appellants and sentenced them as under:- Conviction Sentence Under Section 398/34 of IPC R. I. for 07 years each 2. Brief facts of the case are that on the date of incident i.e. 15.04.2007, the complainant- Niranjan Das, a businessman, had gone to the weekly market at Baghicha along with Kulumani and Basant Das in a tempo, carrying utensils for trade. After the market concluded, he was returning home in the same tempo accompanied by his two sons. At about 7:30 PM, when they reached near Bataikela, on the road leading towards Khutera forest, the persons viz., Vidur, son of the Sarpanch, Vijay and Kanhaiya Cheek arrived on a motorcycle and attempted to intercept the complainant’s vehicle with the intention of committing robbery. One of the accused brandished a country-made firearm (katta) and tried to force the complainant to stop the vehicle. However, out of fear, the complainant did not stop the tempo and continued driving. During this attempt, the three accused lost control and fell from their motorcycle. Despite this, the complainant later proceeded towards Khutera colony with the vehicle. The complainant raised an alarm, upon which several villagers gathered and when questioned, the complainant described the personality traits of the accused persons. Based on this description, the villagers identified them as Vidur, son of the Sarpanch, Vijay, and Kanhaiya Cheek, residents of Badhaikela. The complainant stated that had he stopped the vehicle, he would have been robbed by the 3 accused persons. Subsequently, a report was lodged at the police station vide Ex. P/5 and investigation commenced. A spot map (Ex. P/6) was prepared, and witnesses’ statements were recorded. The accused Kanhaiya was arrested vide Ex. P/11 and on the basis of his memorandum statement, a country-made firearm along with a bird- shooting gun (
या मार बंदुक) were seized from him vide Ex. P/8. The accused Vijay was also arrested vide Ex. P/12 and on the basis of his memorandum statement, an iron knife was recovered from his possession. Both accused were sent for medical examination. After completion of due, necessary investigation, they were charge-sheeted before the Court of concerned Jurisdictional Magistrate, who, in turn, committed the case for trial and on the basis of the material contained in the charge-sheet, learned trial Court framed charges against the present appellants for alleged commission of offence under Sections 341 and 398 read with section 34 of IPC. 3. In order to establish the charges against the accused persons, the prosecution has examined as many as 10 witnesses. The statement under Section 313 of Cr.P.C. of the appellants have been recorded, in which they denied the incriminating charges leveled against them and pleaded their innocence that they have been falsely implicated in this case. However, no witness examined by them in their defence. 4. The learned trial Court after hearing the counsel for the respective parties and considered the material available on record and thereby convicted and sentenced the present accused/appellants as mentioned in inaugural para of this judgment. Hence, this present appeal. 5. Learned counsel for the appellant submits that the learned trial Court 4 has not properly evaluated the material available on record and wrongly convicted the appellants. Learned trial Court also failed to appreciate this fact that the prosecution has failed to establish the ingredient of Section 398 of IPC. The learned trial Court has failed to rigorously scrutinize whether these essential ingredients have been proved by cogent evidence. The material on record does not, in any manner, substantiate the claim that the appellants were armed with a firearm at the time of the alleged dacoity. The mere general references in the statements of the complainant or the alleged eyewitnesses, without independent corroboration, cannot constitute proof of such an essential ingredient of the offence. It is submitted that the statements of the complainant and other prosecution witnesses are wholly insufficient to establish the guilt of the appellants. These statements are inherently weak, contradictory, and suffer from material omissions. The learned trial Court, instead of carefully analyzing the discrepancies and contradictions in the testimony, has relied mechanically on these statements to record a conviction. This constitutes a manifest misreading and non-appreciation of the evidence. The learned trial Court also failed to consider whether the alleged act of grievous hurt was caused by the appellants themselves or by any other person. Mere presence at the scene, without clear evidence of participation in the act with the requisite mens rea, cannot constitute criminal liability under Section 398 of IPC. The trial Court overlooked this critical aspect, which goes to the root of criminal responsibility. It is respectfully submitted that the prosecution has failed to discharge its burden to prove beyond reasonable doubt that the appellants committed dacoity while being armed with a firearm or caused grievous hurt in the course of such 5 dacoity. In the absence of such proof, the conviction is perverse and cannot be sustained in law. Therefore, the judgment passed by the learned trial Court is liable to be set aside and the appellants deserve to be acquitted of the said charges. He relied upon the decision of the Hon’ble Apex Court in the matter of Chinnadurai vs. State of Tamil Nadu,1 6. Ex-adverso, learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellants. Therefore, the judgment impugned does not suffer from any irregularity or infirmity warranting interference by this Court in the instant appeal. 7. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment. 8. It is evident from record that learned trial Court framed charges against the appellants for the offences punishable under Sections 341 and 398 read with Section 34 of IPC and after appreciation of oral and documentary evidence, learned trial Court convicted the appellants for the aforesaid offences. 9. PW-5, the complainant- Niranjan Das, has stated that on the date of the incident, i.e., 15.04.2007, while he was returning from the market after selling utensils in a tempo along with his sons- Kulumani and Basant, at approximately 7:30 p.m., when he had just entered the forest at night and after crossing the culvert, was climbing the ghat that he came to know from Khutera colony that the motorcycle rider was Shashikant Bhagat, the Sarpanch’s son. He further stated that in the Court, an 1 AIR 1996 SC 546 6 unknown person pointed towards one of the accused, identifying him as the individual who had been carrying an iron sword at the time of the incident. Upon being asked by the Court to state the name of the said accused, the accused stated his name as Vijay Kumar. He further stated that the second accused present at the spot was carrying a revolver on the date of the incident. The witness identified the said accused in the Court as the person who was in possession of the revolver at the relevant time. Upon being asked by the Court, the accused disclosed his name as Kanhaiya Ram. In para 3, he stated as under :- “3. म घटना थल पर गाी नह रोका रोड कनारे पर से गाी पार कर लया था पीछे से कसी ने गाी के दाहने तरफ कसी ीज से मारा था। उसके मारने से गाी म% आवाज आई। हम लोग आगे ब) ुके थे लगभग कु छ दूर आगे ब)े ही थे की , घटना थल पर उप-थत अरोपीगण तथा मोटर साइकल म% )ा हुये 1य2 तीन3 मलकर मोटर सायकल को पीछा कर हम लोग के टे4प3 गाी तक पहुं गये। और 6की म% 7रवा8वर लते- लते 7रवा8वर अा दये थे। मुझे तुर:त पता लगा क, मोटर सायकल सवार तीन3 1य2 गर पे । In para 3 of his examination, he stated that thereafter, he drove the tempo further ahead from colony Khutera, when he noticed that the three aforementioned accused had again overtaken their tempo on their motorcycle. At that time, one of the accused was pointing a revolver from the motorcycle, while another was swinging a bag. Fearing that the accused might commit further robbery, he immediately turned the tempo back towards colony and informed the local Oraon residents about the incident. Some people gathered there, and one of them identified the person riding the motorcycle as 7 Shashikant Bhagat, the son of the Sarpanch. Subsequently, someone used a mobile phone to call the police station at Thana Kansaabel. The Station Officer, along with other police personnel, arrived at the spot. They instructed them to go to the police station, while they proceeded in the direction in which the accused had fled. Then, he lodged the written report vide Ex. P/5. During his cross-examination, he admitted the suggestion that at the time of the incident, the accused neither assaulted them nor committed any robbery against them. However, he denied the suggestion that the accused requested them to give way in order to cross the road. 10. PW-6 Kulumani Das and PW-7 Basant Das, the complainant’s sons, have supported the complainant’s version of the incident. During the course of their examination-in-chief, they reiterated the facts as narrated by the complainant. Significantly, during cross-examination, both witnesses explicitly stated that the accused persons did not physically assault them in any manner, nor did they commit any act of robbery. 11. PW-8, Sanjay Tirkey, has admitted his signatures on the seizure memo (Ex. P/8), memorandum (Ex. P/9), seizure memo (Ex. P/10), and arrest memos (Ex. P/11 and Ex. P/12). The prosecution declared him hostile and proceeded to cross-examine him; however, he denied all suggestions put forth by the prosecution. 12. A careful and thorough scrutiny of the statements of all the witnesses reveals that PW-5, PW-6, and PW-7, who are the complainant and his sons, specifically alleged the involvement of Shashikant Bhagat, the 8 son of the Sarpanch, in the alleged incident. In addition, they have identified Vijay Kumar as one of the accused before the learned trial Court. However, it is noteworthy to mention that these identifications, while made in the trial Court are not supported by any independent or neutral evidence. There are material inconsistencies in their statements and the witnesses themselves, in their cross-examination, admitted that the accused did not assault them and did not commit any robbery. 13. For ready reference, Sections 398 of Indian Penal Code are defined as under:- “ Section 398. attempting to commit robbery or dacoity while armed with a 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.” 14. It has been held by the Hon’ble Apex Court in the matter of Chinnadurai (supra) in para 4 as under:- “4. It seems to us that the conviction of the appellant under Section 398, I.P.C. whereunder he has been sentenced to seven years' rigorous imprisonment cannot be sustained. Section 398, L.P.C. gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainants and nothing said to be belonging to the complainants was 9 recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity. Scattering of articles in the house may cause a scene as if ran-sacked, but that does not prove the charge. We thus feel that on the evidence, the conviction of the appellant under Section 398, I.P.C. is not sustainable. Accordingly, the same is set aside. 15. In light of the foregoing, it is evident that in the present case, the prosecution did not conduct any Test Identification Parade (TIP). All the witnesses allegedly identified the co-accused, namely Shashikant Bhagat, solely on the prompting of local villagers, which casts serious doubt on the reliability of their identification. PW-8, who was a witness to the memorandum and seizure, did not support the prosecution’s case. Consequently, the prosecution has failed to produce any legally admissible or conclusive evidence against the appellants and the learned trial Court did not appreciate both the oral and documentary evidence properly and thereby wrongly convicted the appellants for the aforesaid offences. 16. Ex consequenti, the appeal is allowed and the impugned judgment dated 30.11.2007 of the learned trial Court is hereby set aside. The appellants are acquitted of the charges levelled against them. 17. The appellants are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellants are also directed to furnish a personal bond for a sum of Rs. 25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in 10 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. 18. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE AMIT PATEL