Chandrashekhar @ Deepak Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 172 of 2021

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Judgment Reserved on 04.04.2024

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Judgment Delivered on 06.05.2024

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Chandrashekhar @ Deepak, S/o Shri Sanank Sai, aged about 29 Years, R/o Village Madhubantoli, Jashpurnagar, P.S. Jashpur, District Jashpur, Chhattisgarh.

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----Appellant

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Versus

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State of Chhattisgarh, Through S.H.O., Police Station Jashpur, District Jashpur, Chhattisgarh.

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---- Respondent

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For Appellant Ms. Meena Shastri, Advocate. For State Mr. R.K. Gupta, Additional Adovcate General.

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CRA No. 403 of 2021

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Amar @ Budhan, S/o Vishwanath Ram, aged about 35 Years, Occupation Labour, Resident of Village Ekamba, Police Station Sanna, District Jashpur, Chhattisgarh.

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Virendra @ Laddu, S/o Sikso Ram, aged about 23 Years, Resident of Village Sarnatoli / Nawatoli, Jashpur, Police Station Jashpur, District Jashpur, Chhattisgarh.

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----Appellants

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Versus

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State of Chhattisgarh, Through the Incharge, Chowki Manora, Police Station Jashpur, District Jashpur, Chhattisgarh.

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---- Respondent

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For Appellants Mr. Dhirendra Prasad Mishra, Advocate. For State Mr. R.K. Gupta, Additional Advocate General.

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Hon’ble Shri Justice Goutam Bhaduri &

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Hon’ble Shri Justice Radhakishan Agrawal

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C A V Judgment

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Per Radhakishan Agrawal, J.

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Both these appeals under Section 374(2) of Cr.P.C. have been filed against the judgment of conviction and order of sentence dated 11.01.2021 passed by the Additional Sessions Judge, Jashpur, District Jashpur, C.G. in Sessions Trial No.27/2019, therefore, they are being disposed by this common judgment.

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By the impugned judgment, the appellants have been convicted and sentenced as under:-

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Conviction namely Chan Deepak & Am	of ap drash ar @	pellants ekhar @ Budhan	Sentence
Under Section Penal Code	397	of Indian	R.I. for 14 years with fine of Rs.1,000/- to each appellants, in default of payment of fine additional R.I. for 15 days months
Conviction Virendra @ Lad	of du	appellant-	Sentence
Under Section Penal Code	397	of Indian	R.I. for 14 years with fine of Rs.1,000/- to each appellants, in default of payment of fine additional R.I. for 15 days months
Under Section Arms Act	25	(1-[k)(d) of	R.I. for three years with fine of Rs.1,000/-, in default of payment of fine additional R.I. for 15 days

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(Both sentences of appellant- Virendra @ Laddu were directed to run concurrently)

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Case of the prosecution, in brief, is that on 05.04.2019 at 7:20 pm, when the complainant-PW-1 Amrit Abhay Minj, who was working as Salesman in Lava Fuels Petrol Pump, Manora, at the same time, three persons covering their face reached the said petrol pump on their

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motorcycle without having any number plate and asked him to fill petrol amounting to Rs.50/- and when the complainant-PW-1 was about to fill the petrol, then one of the pillion riders of motorcycle got down and tried to snatch the cash bag. When the complainant tried to resist the said act, in that process, the person snatched the bag at the point of pistol ( Desi Katta ). In the meantime, the other person also showed pistol (Desi Katta) and all the three persons ran away towards Manora village. According to the complainant-PW-1, the bag contains cash of Rs.14,300/-. Thereafter, on the same day, at 20:00 hours, the complainant lodged the report (Ex.P-1) at Police Outpost Manora where a crime No.0/2019 was registered under Section 397 of IPC and Section 25 & 27 of Arms Act against the unknown persons, on the basis of which, a numbered FIR vide Ex.P-12 came to be registered at police station Jashpur. Based on FIR, investigation took place and during course of investigation, the appellants namely Amar @ Budhan Ram and Chandrashekhar Chouhan were nabbed in connection with another crime No.38/2019 for the offence under Section 379/34 of IPC and Sections 25 & 27 of the Arms Act registered at Narayanpur Police Station and on being asked, they disclosed the name of appellant- Virendra @ Laddu. Memorandum statement of the appellant namely Virendra @ Laddu was recorded vide Ex.P-4, pursuant to which, one country made pistol (Desi Katta) having length of 27 cm, length of barrel 11.5 cm, length of handle 09 cm, length of circle of barrel 05 cm and one live cartridge having length 08 cm and size of bullet is 02 cm and cash of Rs.1,500/- were recovered from him vide Ex.P-7. Likewise, memorandum statement of appellantChandrashekhar @ Deepak was also recorded vide Ex.P-5, pursuant

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to which, cash of Rs.660/- was recovered vide Ex.P-9 and similarly, vide memorandum statement (Ex.P-6) of appellant- Amar @ Budhan, cash of Rs.1,120/- was recovered vide Ex.P-8. Thereafter, identification panchnama of motorcycle (Ex.P-10) was prepared whereby the complainant-PW-1 identified the motorcycle used in the course of offence. Another panchnama (Ex.P-11) was prepared showing cash of Rs.14,200/- was looted. Vide Ex.P-15, seized pistol was sent for examination to Armorer (PW-7). Ex.P-16 is the report of Armorer (PW-7 Amar Tigga) which shows the length of bullet is 3 cm and length of pistol is 10.2” i.e. 25.908 cm and according to him (Armorer), the seized pistol was not in working condition. Test identification parade was conducted vide Ex.P-3 where accused persons were identified by PW-1 Amrit Abhya Minj. Thereafter, appellants were arrested vide Exs.P-27, P-28 & P-33.

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Statements of the witnesses were recorded under Section 161 Cr.P.C. After due investigation, appellants were charge-sheeted before the jurisdictional criminal Court and thereafter, the case was committed to the Court of Sessions where the appellants/accused persons abjured their guilt and pleaded innocence. Hence, the trial Court proceeded with trial.

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In order to bring home the guilt of accused, prosecution has examined as many as 12 witnesses and brought on record 65 documents. In defence, the appellants have not examined any witness, but exhibited one document i.e. Ex.D-1 statement of Ramsevak Ram.

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The trial Court, after appreciation of oral and documentary evidence on record, convicted and sentenced the appellants as mentioned

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above, against which, the present appeals have been preferred.

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Learned counsel for the appellants would submit that the impugned judgment is per se illegal and contrary to the material available on record as the trial Court has not properly appreciated the oral and documentary evidence in its true perspective. There are material contradictions and omissions in the statements of the prosecution witnesses, which make the whole prosecution case doubtful. They would further submit that the test identification parade of the appellants is also not in accordance with law. Memorandum statements of the appellants and seizure effected from them, has not been proved by the prosecution beyond reasonable doubt. They would also submit that the seized pistol (Desi Katta) was not kept and sealed properly and there is variation of size of cartridge as the seizure memo and in the armorer's report, differently shows the seizure of cartridge. On these premises, learned counsel for the appellants urged that appeal be allowed and the appellants be acquitted of the charges levelled against them.

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Per contra, learned counsel for the State supporting the impugned judgment would submit that the prosecution has brought home the offence against the appellants and has proved the case against the appellants beyond reasonable doubt since the victim/PW-1 had clearly identified the appellants as perpetrators of the crime in question and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences. Therefore, the appeal deserves to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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Now the question which remains for our consideration is that whether the learned trial Court was fully justified in holding the appellants as perpetrators of the crime in question?

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PW-1 Amrit Abhya Minj, who is the eye-witness to the incident was examined. In his statement, he has stated that on the date of incident i.e. 05.04.2019, at about 7:00-7:15 pm, while he was on duty in Lava Fules Petrol Pump, three unknown persons covering their faces with black cloth, came there on Honda Shine 110 Motorcycle and asked him to fill petrol in a plastic bottle amounting to Rs.50/-. Thereafter, the person asking for petrol was trying to snatch the cash bag kept with him, but this witness resisted him, upon which on the point of pistol (Desi Katta) , they threatened him and forcibly snatched the bag and ran away towards Manora bus stand by motorcycle which did not have any number plate. He has further stated that in the said bag, he had kept cash of Rs.14,200/-. Thereafter, he rushed to the Manager of Petrol Pump (PW-2 Ramsevak Ram) and informed him about the incident. Then, he reported the matter to the police station vide Ex.P-1. In para 4, he has further stated that upon information by Manora Police Personnel, he went to Narayanpur Police Station along with owner of Petrol Pump where he saw the appellants namely Chandrashekhar and Amar. However, he has stated that he could not recognize the accused persons, but could recognize the motorcycle. In para 5 of his examination-in-chief, he has contradicted his statement that during identification process vide Ex.P-3, he has identified the accused persons by seeing their legs and eyes. This witness was subjected to cross-examination where in para 7, he has categorically stated that the persons who committed loot had covered their faces with scarf and

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during commission of loot, he could not identify the persons who committed loot.

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In para 10 of his cross-examination, he (PW-1) admitted that at the time of incident, his attention was pointed on the person who snatched the bag and he could not pay his attention to the other two persons. Further in para 14, he has admitted that when he went to Narayanpur Police Station, he saw the appellants-Amar and Chandrashekhar as their faces were not covered by mask. Further, he admitted that when he reached Teshil Office Manora for identification proceedings, the three accused persons present in the Court were brought by the Manora Police and mixed them with the other accused persons whereas on the contrary, he has stated in para 15 that he did not have any knowledge about the accused being brought from the police station and then mixed them with the other accused persons. Upon showing the appellant- Chandrashekhar, he replied that he had seen him earlier in Narayanpur Police Station and when he saw the appellantChandrashekhar at Manora Tehsil Office, at that time, his face was covered with mask. He further admitted that the persons, at the time of commission of loot, had already covered their faces by mask, therefore, he could not see their faces. In para 16, he admitted that after accused persons were brought and the other persons associated with them were searched. It is also admitted by him that when he went to the Narayanpur Police Station, they have told him that the accused persons during interrogation told that they have committed the loot at petrol pump.

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PW-2 Ramsevak Ram is the Manager of Lava Fules Petrol Pump. In

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his deposition, he has stated PW-1 Amrit Abhay Minj told him about the

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incident of loot and further stated that CCTV cameras were installed around the petrol pump. He has further stated that the persons who committed loot were nabbed by the Police of Narayanpur and in order to identify them, police called PW-1 Amrit Abhay Minj and Aniket Bairagi. He has further stated that PW-1 Amrit Abhay Minj could not identify the motorcycle used in commission of offence nor any identification proceedings of any person was conducted in his presence. Thereafter, this witness has deposed that after seeing the accused-appellants at Police Station Narayanpur, PW-1 Amrit Abhya Minj identified the accused persons in his presence at Manora Tehsil Office during identification proceedings. Though this witness has turned hostile, but in para 12, he has stated that he is witness to the seizure of country made pistol, live cartridge and cash of Rs.1,500/- from appellant- Virendra and seizure of cash of Rs.660/- from appellantChandrashekhar. However, he has denied that appellantChandrashekhar did not give Rs.660/- to police personnel, but his father gave the said amount to police.

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In para 14, on a query being made to this witness regarding denial of giving memorandum statement to the police in examination-in-chief and with respect to the admission of the fact of giving statement by the accused, this witness has stated that accused persons had not told him directly, but the police told him that accused persons accepted the commission of offence and on that basis, he along with police personnel went to the house of accused persons for effecting seizure. In para 19, he has stated that when the police personnel came to the spot, then he showed the CCTV cameras installed around the petrol pump and the police collected CCTV footage.

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PW-4 Pramod Kumar Chandravanshi, Nayab Tehsildar, Manora, who conducted the test identification proceedings, in para 6 of his crossexamination, has admitted that firstly he made the three accused persons stand in front of his Court and after that he called 10 persons to the Court and placed one person in between each accused and made them stand in a line. In para 7 of his cross-examination, he has admitted that the person to whom the identification proceedings was to be done and those witnesses in front of whom the identification was to be conducted, he had called them before the identification proceeding. It has been further admitted by him that the said persons were present outside in front of his Court room before identification proceeding took place. In para 8, it has been further admitted by him that the identifiers and witnesses were present before the arrival of the accused persons. He has further admitted that the alleged 10 persons, whom this witness included among the three accused, had covered their faces with cloth in court room.

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PW-6 Aniket Bairagi, owner of the Lava Fules Petrol Pump, has specifically stated that around the premises CCTV camera was installed wherein the three persons were clearly shown while committing loot of cash bag on the point of pistol (Desi Katta), however, recording of the same has not been brought on record. He has further admitted that when he and PW-1 Amrit Abhay Minj went to Narayanpur Police Station, then he saw the accused/appellants namely Amar @ Budhan and Chandrashekhar.

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A perusal of the statement of PW-1 Amrit Abhay Minj would reveal that during commission of loot, he was present on the spot and could not identify the accused persons because the accused persons veiled their

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faces by scarf and when the accused persons were nabbed by the Narayanpur police station, then upon their call, he went to Narayanpur police station accompanied by PW-6 Aniket Bairagi where, at the behest of police personnel, saw and identified those persons who were nabbed in connection with crime No.38/2019 by the Narayanpur police personnel. In cross-examination, he stood firm with respect to the fact that he could not identify those persons as their faces were covered by scarf and during commission of offence also, his attention was towards only that person who was snatching the bag and did not pay any attention towards remaining other two persons. It appears that this witness (PW-1), as a matter of fact, could not identify those persons as he was in scramble during snatching of cash bag by one of the accused persons. Moreover, it would also reveal from his statement that on the one hand, he admitted that during identification proceedings at Tehsil Office, Manora, the three accused persons brought by the Manora Police mixed them with the other accused persons and on the other hand, he admitted that he did not have any knowledge about the accused being brought from the Police Station and then included them with the other accused persons during identification proceeding. It would also reveal that police personnel of Narayanpur Police Station told him that the accused persons, during interrogation, admitted the commission of offence, therefore, it appears, at their instance, this witness identified them. Further, PW-4 Pramod Kumar Chandravanshi, who conducted test identification proceedings also admitted in his cross-examination that before the arrival of accused persons, the identifiers and witnesses were present during T.I.P. proceedings and in that proceedings, he included the three accused persons amongst the

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10 persons who were called in T.I.P. and had covered their faces with cloth in court room for identification. Thus, looking to the statements of PW-1 Amrit Abhya Minj and PW-4 Pramod Kumar Chandravanshi, it is not clear as to whether those persons i.e. appellants nabbed by the Narayanpur police personnel are the same persons who committed loot in petrol pump with PW-1 Amrit Abhya Minj on the date of incident. Thus, the prosecution has not been able to prove the factum of identification of accused persons as the perpetrator of the crime beyond reasonable doubt and that the trial Court has also held that the TIP (Ex.P-3) has not been proved by the prosecution.

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Further, as per the statements of PW-2 Ramsevak Ram and PW-6 Aniket Bairagi, CCTV cameras were installed in and around the premises of petrol pump and on the date of incident, when the three persons were clearly shown during commission of offence and such footage was also collected by the police personnel, then why the same has not been brought by the prosecution on record to prove its case with respect to identification proceedings despite the said CCTV footage is a material piece of evidence to connect the appellants in the crime in question, which makes the prosecution case doubtful.

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As regards the memorandum and seizure of the appellants, though PW-2 Ramsevak is the witness to seizure of country made pistol, live cartridge and cash of Rs.1,500/- from appellant-Virendra and seizure of cash of Rs.660/- from appellant-Chandrashekhar, but he admitted that at the behest of police personnel, he along with police personnel went to the house of accused persons for effecting seizure. His statement does not inspire confidence as he has been declared hostile since he did not support the prosecution case. Likewise, PW-5 Suraj Kumar is

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the also witness to memorandum statements of the accused persons vide Exs.P-4 to P-6 and seizure of country made pistol and cash of Rs.1,500/- from appellant-Virendra @ Laddu and seizure of cash of Rs.1,100/- from the possession of the appellant- Amar @ Budhan, but his evidence also does not inspire confidence as he has turned hostile and did not support the prosecution story. It is to be seen that although some petty amount, which was alleged to have been seized from the appellants is not much significant because such amount could have been seized from any person, which the prosecution ought to have brought on record to show that amount so seized from such person was of looted property, but the prosecution has failed to do so and that learned trial Court did not consider the memorandum statements of appellants vide Exs.P-4 to P-6 as material piece of evidence. Therefore, the seizure of such amount by the prosecution is of no use.

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So far as pistol ( Desi Katta ) seized from the appellant- Virendra is concerned, PW-7 Amar Tigga, Armorer, has stated that he examined the seized pistol and gave report vide Ex.P-16, according to which, the length of bullet is 3 cm, length of pistol is 10.2” i.e. 25.908 cm, dia of bore is .303 inch (nominal), length of barrel is 4.5 inch, length of pistol body is 3.1 inch and breadth of pistol body is 1.3 inch. According to his opinion, the seized pistol (Desi Katta) is not in working condition. Likewise, PW-9 Ramnath Rathiya, Head Constable, has deposed that he has deposited the cash of Rs.660/-, Rs.1120/-, Rs.1,500/-, pistol (Desi Katta) and live cartridge in the malkhana vide Ex.P-16. In crossexamination, he has stated that in malkhana register (Ex.P-17), there is no mention about the date and time of exit of seized articles. It is also admitted by him that he did not know that at what time, he was

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entrusted to keep the seized articles in malkhana register. It has also been admitted by him that he did not see the seized pistol and cartridge as he got the same in a sealed condition.

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A perusal of statement of PW-7 Amar Tigga, Armorer, would reveal that the length of bullet which he has examined was 3 cm, whereas the pistol used in the commission of offence as per seizure memo vide Ex.P-7, the length of that bullet is mentioned to be 02 cm. Thus, there is difference in the size of the bullet and that seized pistol ( Desi Katta) is also not in working condition and as per Ex.P-16, there is a piece of ammunition having letters OK-83-7 on its bottom rim which is .303'' mark-7 ammunition, whereas in Ex.P-7 seizure memo, there was no such identification mark as was shown in Ex.P-16 whereas it is necessary for identifying the property. Be that as it may, the seized articles were not in sealed condition and in seizure memo Ex.P-7, there is no mark of sample of seal, as is evident from columns 12 & 13, which makes the prosecution case doubtful. Further, as per the statement of PW-9 Ramnath Rathiya, Head Constable, there is no mention of date and time of exit of seized articles in malkhana register (Ex.P-17C) and on perusal of Ex.P-17C, there is no mention that the seized articles which were deposited in Malkhana were in sealed condition, which also makes the prosecution story doubtful and that the learned trial Court also acquitted the appellant- Virendra of the charge under Section 27 of the Arms Act, meaning thereby the prosecution has failed to prove beyond reasonable doubt that firearm was being used in commission of offence, therefore, recovery of such pistol from appellant- Virendra is not proved beyond reasonable doubt.

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As regards identification of motorcycle used in the commission of

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offence, it is pertinent to mention here that PW-1 Amrit Abhay Minj identified the motorcycle kept in Narayanpur Police Station wherein number plate was affixed, but perusal of FIR (Ex.P12) shows that the motorcycle which was used in the commission of offence has no number plate and further PW-2 Ram Sevak Ram has admitted in his deposition para 8 that in his presence, PW-1 Amrit Abhya Minj has not identified any item, but PW-1 Amrit Abhay Minj told this witness that he was asked to identify the motorcycle, however, on account of darkness at time of incident, he could not identify the motorcycle used in the incident. Had there been CCTV footage on record, then the motorcycle would have been identified by PW-1 Amrit Abhay Minj. Therefore, in absence of CCTV footage, it cannot be said that very motorcycle was used in commission of offence on the date of incident.

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Thus, when we examine the overall evidence brought on record by the prosecution, there is nothing on record to show the involvement and complicity of the appellants in the crime in question. In that view of the matter, we are of the considered opinion that the prosecution has totally failed to prove its case beyond reasonable doubt against the appellants and the learned trial Court was not justified in convicting and sentencing the appellants for the aforesaid offences, as such, the appellants are entitled to be acquitted of the charges on the basis of benefit of doubt.

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Resultantly, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 11.01.2021 is liable to be and is hereby set aside. Appellants are acquitted of the charges entitling them to be released by extending them the benefit of doubt. Appellants are

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reported to be in jail, therefore, we direct that they be released from jail forthwith, if not required in any other matter/case.

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action.

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Sd/Sd/(Goutam Bhaduri) (Radhakishan Agrawal) Judge Judge

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Akhilesh / Anjani

Chandrashekhar @ Deepak v. State of Chhattisgarh

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Chandrashekhar @ Deepak v. State of Chhattisgarh

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