Sanju @ Vikesh Kumar Vs State of Chhattisgarh

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NAFR

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H IGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 197 of 2003

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Judgment reserved on 27/03/2024 Judgment passed on 15/06/2024

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Sanju @ Vikesh Kumar, S/o Firtu Ram, aged about 19 years, Resident of village Kurud, P.S. Jamul, District Durg, Chhattisgarh ---- Appellant Versus State of Chhattisgarh ---- Respondent CRA No. 240 of 2003
Govind S/o. Shanker Rao, aged about 19 years, Resident of village Kurud, P.S. Jamul, District Durg, Chhattisgarh ---- Appellant
Versus
State of Chhattisgarh ---- Respondent
For Appellants : Mr. Shiv Shankar Singh, Advocate For Respondent/State : Mr. Vinay Pandey, Deputy A.G. ________

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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C.A.V. Order

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Both these appeals are arising out of the same crime number and same sessions trial, therefore, they are being heard and decided together.

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The present appeals are arising out of the judgment of conviction and sentence dated 03.02.2003, passed by learned Special Judge and

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learned Additional Sessions Judge, Durg, in Sessions Trial No. 15/1997, whereby the appellants have been convicted for the offence under Section 395 read with Section 397 of Indian Penal Code and sentenced them R.I. for 7 years.

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The facts of the case in nutshell is that the complainant Khushiyal Ahmad Hussain was engaged in the business of potato and onion. On 24.09.1996, he attended the Kohka Bazar in relation to his business. PW-2 Pradeep Kumar was working as his helper. At about 8:30 p.m. when the market was over, and the complainant and his elder brother were accounting the transaction, 7-8 persons having weapons, like; gupti and sword in their hands came there and assaulted the complainant Khushiyal Hussain on his head, abdomen and chest and looted Rs.10,000/- from him. The other persons have committed marpeet with the elder brother of the complainant. All the accused persons were the age group of 20-30 years. The report was lodged by Pradeep Kumar (PW-2) to the Police Station Supela immediately. The complainant Khushiyal Hussain was taken to the District Hospital for his treatment, from where he was referred to Sector-9 Hospital, Bhilai on 25.09.1996. The complainant received the number of injuries on his body including the internal injuries.

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During the investigation, the memorandum statement of the accused Mohan Choti has been recorded vide Ex.P/3 and based on his memorandum one gupti has been seized vide Ex.P/7. The memorandum statement of accused Santosh was also recorded vide Ex.P/9 and based on it, a sword has been seized vide Ex.P/10. One scooter bearing No. MPQ/6075 has been seized from accused

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Santosh vide seizure memo Ex.P/11. From the accused Mohan Choti cash of Rs.5000/- has also been seized vide seizure memo Ex.P/8 and cash of Rs.850/- has been seized from the accused Santosh Kumar vide seizure memo Ex.P/18.

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The memorandum statement of accused Shashi Kumar has been recorded vide Ex.P/12 and one gupti has been seized vide seizure memo Ex.P/13. Cash of Rs.750/- has also been seized from accused Shashi Kumar vide seizure memo Ex.P/14. The memorandum statement of Sanju @ Vikesh Kumar has also been recorded vide Ex.P/15 and based on it one knife has been seized vide seizure memo Ex.P/16. Cash of Rs.900/- has also been seized from the accused Sanju @ Vikesh Kumar vide seizure memo Ex.P/17.

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The accused Govind has also gave his memorandum statement vide Ex.P/19 and based on it one sword has been seized vide seizure memo Ex.P/19. The cash of Rs.950/- has also been seized from him vide seizure memo Ex.P/21. The accused Uttam Kumar has also gave his memorandum statement vide Ex.P/22 and based on it one wooden club has been seized vide seizure memo Ex.P/23. Cash of Rs.950/- has also been seized from him vide seizure memo Ex.P/24.

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From the spot, one gupti-case and chili powder, which was kept in a polythene bag has been seized vide seizure memo Ex.P/25. Spot map Ex.P/26 has been prepared by the Investigating Officer.

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The accused persons have been put for TIP (test identification parade) which was conducted by N.R. Sahu (Naib Tahsildar) and the identification memo has been prepared vide Ex.P/2. The complainant

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Pradeep Kumar and Masooq Ali have duly identified the accused persons. The statement under Section 161 of Cr.P.C. of the witnesses have been recorded, seized the medical treatment documents from the hospital and after completion of usual investigation charge-sheet was filed before the Court of learned Judicial Magistrate First Class, Durg. The case was committed to the Court of learned Sessions Judge, Durg from where it has been transferred to the learned trial Court for its trial.

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The learned trial Court has framed charge against the accused persons under Sections 395 & 397 of Indian Penal Code. The accused persons denied the charge and claimed trial.

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In order to establish the charge against the accused persons, the prosecution has examined as many as 12 witnesses. Statement under Section 313 of Cr.P.C of the accused persons have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. Five defense witnesses have been examined by the accused persons.

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Initially the charge-sheet was filed against 06 accused persons, but vide order dated 30.08.1999, the accused Mohan Choti was declared absconding and standing warrant of arrest has been issued against him. The trial against rest of the accused persons has been conducted. After appreciation of oral as well as documentary evidence produced by the parties, the trial Court has convicted and sentenced the present appellants as mentioned in the opening

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paragraph of this judgment, whereas the accused Santosh, Shashi Kumar and Uttam Kumar have been acquitted from the alleged offences. Hence, this appeal.

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Learned counsel for the appellants would submit that the appellants are innocent and have been falsely implicated in the offence. There are material omissions and contradictions in the evidence of prosecution witnesses. The TIP (test identification parade) has not been conducted in accordance with law and the identification memo Ex.P/2 has also not been proved by the witnesses. The requirement to conduct the TIP has not been complied with and therefore, the same looses its efficacy. The alleged incident was occurred in the dark night and there was no occasion to identify the accused persons, but due to the business rivalry, the present appellants have been falsely implicated in the offence. Although the number of injuries have been found on the body of the victim, but the person who have caused the injuries, has not been established by the prosecution. The memorandum and seizure have also not been proved by cogent evidence and therefore, the appellants are entitled for their acquittal. Learned counsel for the appellants would further submit that on the same set of evidence, the other accused persons have been acquitted, therefore, the present appellants are also entitled for the same relief and they may also be acquitted.

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Per contra, learned counsel for the State opposes and submitted that the prosecution has proved its case beyond reasonable doubt. There are sufficient and cogent evidence available on record against the present appellants. The present appellants have duly been identified

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by the victim as well as the complainant. The memorandum statement and based on it the recovery of weapon and cash amount hae also been proved, which has rightly been considered by the learned trial Court and has convicted the appellants, which needs no interference and their appeals are liable to be dismissed.

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I have heard the learned counsel for the parties and perused the record.

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PW-1 Khushiyal Ahmed Hussain is the victim in the case. On 24.09.1996 he and his other family members have installed the shop of potato and onion at Kohka Bazar. At about 8:30 p.m. when they closing their shop and loading the remaining potato and onion in the Metador and accounting the transaction, 7-8 persons came there, who were having gupti, sword and knife like weapons in their hands. They threw the chili powder on his eyes and the person, who wore red shirt and black full pant has made assault by gupti above his right eye on the head. His two companions have also assaulted on his head, chest and buttock. By the assault made by three accused persons, he received injuries and they threatened his other family members by hurling weapons. The currency note of Rs.10,000/- and loose note of Rs.700-800/- looted by the accused persons from him. He was being taken to hospital, where he remain hospitalized. He stated that Mohan, Sanju and Govind are the persons, who assaulted him. His helper Pradeep Kumar has lodged the report to the Police Station. In cross-examination, he stated that when the accused persons threw chili powder on his eyes, he could not see anything and when they assaulted on his head, he could seen them. He could

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not specify as to what was the denominations of his currency notes and what was its quantity, but the accused persons have looted Rs.10,000/- and Rs.700-800/-. He further stated that he informed the police that one accused wore the red shirt and black full pant. The police has not called him for identification of the accused persons. He further stated that the accused Mohan, Sanju and Govind have assaulted him and the other accused persons were threatening his companions. He further stated that he disclosed before the police that Mohan, Sanju and Govind have assaulted him and other accused persons threatened his companions in his police statement Ex.D/1, but if it is not there in his police statement, he could not know the reason. He admitted in para 14 of his deposition that who looted the cash amount from him, he could not tell. When the intensity of the effect of chili powder was getting down, then he could see that his amount was being looted. The intensity of chili powder is getting down and then he could see, was disclosed in his police station Ex.D/1, but if it is not written in it, he could not tell the reason.

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He denied the suggestion given by the defense that he was having business rivalry with the accused Mohan and Govind and he was well acquainted with these accused persons and therefore, he named them in his deposition.

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PW-2 Pradeep Kumar, who is the complainant has stated in his deposition that on the date of incident, when they closing their shop at Kohka Bazar and accounting the transaction, the accused persons came from outside and started assaulting Khushiyal Ahmad. He identified Mohan Choti, Sanju and Santosh that these accused

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persons have made assault on Khushiyal Ahmad. The other accused persons have assaulted his elder brother. Khushiyal Ahmad has received number of injuries on his body, the accused persons looted the amount of Rs.10,000-11,000/- and fled away. The incident was reported by him to the police vide Ex.P/1. The accused persons were put before him for TIP (test identification parade), which was conducted at Slaughter House, Supela. Out of 20-22 persons, he identified the 05 accused persons including Sanju, Mohan, Uttam, Santosh and Govind. In his cross-examination, he stated that up to the time of lodging of the F.I.R. he was not known the name of the victim Khushiyal Ahmad. Just before lodging of the report, he came to know the name of Khushiyal Ahmad. He shown his ignorance that in the F.I.R., he disclosed that one accused has assaulted his head and further stated that he disclosed before the police that the accused persons have looted Rs.10,000-11,000/- cash. He further stated that at the time of TIP, except the accused persons, how many other persons were present, he could not tell. He further stated that at the time of TIP, 30 other persons were there, but he could not tell their age as to whether they are aged about 40-45 years or not. At the time of TIP, the persons of lower and higher age were there. He could not know their sequence, their directions, their clothes and further when the identification proceeding was over, he could not tell.

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In further cross-examination, he stated that he was being informed by Khushiyal Ahmad that he was having Rs.8,000-10,000/- at the time of incident. He further stated that he could not remember that at the time of lodging of the report, he disclosed about tube light or not. At

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the time of incident, he saw the 05 accused persons from front side and one accused person from back side. He further stated that he could not identified the accused Govind, Sanju, Santosh, Mohan and Uttam by putting his hands on their heads, but identified by putting his hands on their shoulders. He could not tell that as to why all the 05 accused persons were brought in covered face. He could not remember as to whether the sequence of the accused persons were changed or not.

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PW-3 Masooq Ali is also engaged in potato and onion selling business and he is the elder brother of the victim Khushiyal Ahmad. He stated that on the date of incident they installed their shop at Kohka Bazar and at about 9-9:30 p.m. when they were closing their shop and taking account of the transaction, 7-8 persons came there, threw the chili powder on the eyes of Khushiyal Ahmad and three persons started assaulting him. The accused Govind threw the chili powder and Mohan, Sanju and Govind have assaulted him. The accused persons were armed with danda, gupti, sword and knife. The other accused persons were threatened the other persons. He was also being assaulted by one of the accused Santosh. They were looted the cash amount from his brother Khushiyal and thereafter they fled away. They have taken Khushiyal to Police Station and thereafter to the hospital. Khushiyal has received injuries on his head, chest and waist. The TIP (test identification parade) was conducted in his presence and he identified the 06 accused persons out of 15-16 persons. In cross-examination, he stated that at the place of incident two Petromax were enlightened. He too was being

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assaulted by the accused persons. He could not tell as to what clothes the accused persons and other persons, who were mixed at the time of TIP, but what clothes they wore. Whom he has identified first, he could not remember. He has further stated that the persons, who were mixed with the accused persons at the time of TIP, were of different age group, which was of 70-80 years as well as young persons also. At the time of TIP, except him no other persons were there. He further denied that Mohan and Govind were also engaged in the business of potato and onion and they were also installed the shop in the market. He further stated that he was not called by the police for TIP, but he himself went there in TIP. He stated that total 15-16 persons were mixed with the accused persons at the time of TIP. The accused persons were not put before the victim of the offence, from whom the amount is said to have been looted and who received injuries in the incident for the reason best known to the prosecution. He has stated in his deposition that despite having discharge from the hospital, the accused persons were not put before him for TIP. The TIP was conducted in presence of PW-2 Pradeep Kumar and PW-3 Masooq Ali. Although they have stated that they saw the accused persons at the time of incident and could have identified when they saw them, but at the time of TIP the persons of same age group were not mixed with the accused persons. Pradeep Kumar (PW-2) has stated in para 8 of his deposition that at the time of TIP, the persons of more and less age were also there. Likewise, Masooq Ali (PW-3) has stated in para 11 of his deposition that at the time of TIP the persons who were mixed with the accused persons were the age group of 70-80 years as well as the young persons

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also. Both the witnesses have made in consistent statement about the number of persons, who were mixed with the accused persons at the time of TIP. PW-2 has stated that he has identified the 05 accused persons, whereas PW-3 has stated that he has identified 06 accused persons.

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From perusal of the identification memo Ex.P/2, it appears that both the witnesses have identified all the 06 accused persons for which the statement of PW-2 is contradictory.

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PW-6 N.R. Sahu, who was the Naib Tahsildar, Durg and who conducted the TIP has stated in his deposition that he conducted the TIP on 05.10.1996. Other 16 persons were mixed with the accused persons of almost similar physic. The accused persons were produced in their covered face and the witnesses Masooq Ali and Pradeep Kumar have identified the accused persons. In his crossexamination, he has stated that when he reached at Slaughter House, Supela, no one was there. First he called the accused persons and thereafter the witnesses. The persons who were mixed with the accused persons were called together and thereafter the witnesses were called. Since the accused persons were brought by the police vehicle, he could identified them. He could not know as to on what basis the witnesses have identified the accused persons and the same has not been endorsed in the identification memo. It is also not mentioned in the identification memo that as to the complainant has identified which accused first. The witnesses Masooq Ali and Pradeep Kumar were brought for TIP by the police before their presence at Slaughter House, where they were, he could not know.

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He admitted that if the accused persons were seen by the witnesses in the Police Station, he could not know. From the overall evidence produced by the prosecution with respect to the TIP, it is not of that sterling quality, which can be relied upon to hold that they involved in the offence. There are inconsistencies in the evidence of PW-2 and PW-3, who are the witnesses of TIP. As discussed herein above and also in view of the evidence of PW-6 N.R. Sahu, the prosecution could not establish that the TIP is free from any doubt and can be relied upon to hold that the accused persons have committed the offence and who had duly identified by the complainant. The accused persons have not been put before the victims for their identification, and thus I hold that there is serious lacuna in the prosecution case to establish the identification of the accused persons, who involved in the offence.

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PW-7 Dr. V.R. Meshram has medically examined the victim Khushiyal Ahmad and gave his report Ex.P/5, in which he described the incised wound found on the body of the victim Khushiyal Ahmad. While examining the victim the Doctor has not found any symptom of chili powder on the eyes of victim Khushiyal Ahmad as alleged by him that the accused persons threw chili powder on his eyes and looted the cash amount from him and has assaulted him. Had there been any incident of throwing the chili powder on the eyes of the victim, there should be symptoms on his body, but the same has not been found on his body, which also creates a doubt on the prosecution case.

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PW-5 Dr. R.P. Singh, who medically examined and treated the victim

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Khushiyal Ahmad at Sector 9 Hospital, Bhilai and found that the victim has received injuries on his left lung, blood was collected in his abdomen, for which he was being operated and found that his small intestine were purported. He was being treated and discharged from the hospital on 14.10.1996. His bed head ticket is Ex.P/4-A . True it is that the victim Khushiyal Ahmad has received number of incised wound on his body including the internal injuries, which were grievous in nature, but the question would be, who caused the injuries.

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From the above discussion, the involvement of the appellants in the offence in question by the TIP has been disbelieved by this Court, and thus, the memorandum and recovery remains to connect the accused persons with the offence in question. From the memorandum statement of the appellant Govind (Ex.P/19), one sword has been seized vide seizure memo Ex.P/20 and the cash of Rs.950/- has been seized vide seizure memo Ex.P/21. Likewise, from the memorandum statement of the appellant Sanju @ Vikesh Kumar (Ex.P/15) a knife has been seized vide seizure memo Ex.P/16 and cash of Rs.900/- has been seized vide seizure memo Ex.P/17. There is no FSL report in the case as to whether the weapons seized from the accused persons were stained with blood or not, which could prove that the weapon has been used in assaulting the victim. There is no identification of the cash amount allegedly seized from the accused persons, and thus the memorandum and seizure of the weapon as well as cash amount from the appellants has also not sufficient to connect them with the offence in question.

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Further, the other 03 accused persons in the case namely; Santosh, Shashi Kumar and Uttam have been acquitted from the offences against which the same set of evidence with respect to the TIP has come on record, but the trial Court has convicted the present appellants and has acquitted the other 03 accused persons, which also creates doubt upon the prosecution case. Although the Court has abundant duty to choose the grain from the chaff, but the quality of evidence produced by the prosecution is not of that standard which pointing out the guilt of the present appellants without any reasonable doubt.

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For the reason mentioned herein above, the prosecution has failed to prove the case against the present appellants beyond reasonable doubt and the present appellants are entitled for benefit of doubt. In the result, both the appeals are allowed. The appellants are acquitted from the alleged offences of Section 395 read with Section 397 of Indian Penal Code. The impugned judgment of conviction and sentence is set aside.

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The appellants are reported to be on bail. Their bail bond shall continue for the further period of 06 months as provided under Section 437-A of Cr.P.C.

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The record of the trial Court be sent back along with the copy of this judgment to the trial Court concerned for compliance and necessary action.

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Sd/(Ravindra Kumar Agrawal) Judge

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ved

Sanju @ Vikesh Kumar v. State of Chhattisgarh

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Sanju @ Vikesh Kumar v. State of Chhattisgarh

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