Laxmaniya and Others Vs State of Chhattisgarh

1. The present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973, has been 昀椀led by the appellants against the impugned judgment of conviction and sentence dated 19.02.2003 passed by the learned Additional Sessions Judge, Bilaspur, in Sessions Case No. 133/2002, whereby the appellants have been convicted and sentenced in the following

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manner :-

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Conviction		Sent	ence
Under Section 450 of	Rigorous	Imp	risonment for
the Indian Penal Code.	05 years 椀	with 椀	昀椀ne amount of
	Rs. 100	0/-,	in default of
	payment 椀	of 椀	昀椀ne further
	Rigorous 03 month	Imp s.	risonment for
Under Section 394 of	Rigorous	Imp	risonment for
the Indian Penal Code.	05 years 椀	with 椀	昀椀ne amount of
	Rs. 100	0/-,	in default of
	payment 椀	of 椀	昀椀ne further
	Rigorous 03 month	Imp s.	risonment for

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(Both the sentences will run concurrently)

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2. The brief facts of the case are that, in the intervening night of 17.12.2001–18.12.2001, the complainant, Vivek Agrawal (PW2), was sleeping in his house along with his family members at about 3:00 a.m., the complainant heard the noise of knocking at the door, by which the door of the house was broken, and four persons entered into his house and demanded the golden and silver ornaments and cash amounts. One of them also broke the telephone wire and assaulted the complainant with a danda, the accused persons also assaulted his sister Reena Agrawal and his mother Pushpa Agrawal, by which they also received injuries on their heads. The accused persons started searching for the ornaments and cash by opening almirahs and

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boxes, they looted the ladies’ wristwatches of his mother and sister, cash amount, golden and silver ornaments, silver coins, silver necklace, bangles, metal bangles, and golden tops, and after committing the robbery and assaulting them, they 昀氀ed away. The complainant, Vivek Agrawal (PW-2), immediately lodged the FIR (Ex. P-1) on 18.12.2001 at about 3:30 a.m. at Police Station Torwa, Bilaspur, an o昀昀ence under Section 394 of the IPC was registered against the four unknown accused persons. The injured Vivek Agrawal was sent for medical examination to Government Hospital, Bilaspur, where he was medically examined by PW-1, Dr. Lakhhan Singh, who gave his report (Ex. P-1), while medically examining the complainant, the doctor noticed one lacerated wound on his left arm and one linear abrasion on his left forearm and opined that the injuries were simple in nature, caused by a hard and blunt object. The other injured persons, Smt. Pushpa Agrawal (PW-3) and Reena Agrawal (not examined), were also sent to Government Hospital, Bilaspur, for their medical examination, where they were examined by PW-5, Dr. Anjali Chippade, who gave the MLC reports (Ex. P-8 and Ex. P-9), respectively, while medically examining the injured PW-2, Smt. Pushpa Agrawal, the doctor noticed multiple linear abrasions, six and seven in number, over the inner aspect of the left forearm and left elbow joint, which were simple in nature, and while examining Reena Agrawal, the doctor noticed contusion and abrasion on the right side of the forehead, which were

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simple in nature.

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The police party who were on patrolling were informed about the incident, and the patrolling party arrested two accused persons, i.e., Laxmania and Ballu @ Balram (present appellants), and the present appellants were taken to the police station at about 5:30 a.m. on 18.12.2001, and their arrival was recorded in Rojnamcha (Ex. P-11). From the accused Ballu @ Balram, one ladies’ wristwatch, cash of Rs. 570/-, one iron hammer, and one plastic chappal were seized vide seizure memo (Ex. P-6), and from the accused Laxmania, one ladies’ wristwatch, two metal bangles, cash of Rs. 420/-, one gulel, and three stones were seized vide seizure memo (Ex. P-7). One telephone set was seized from the house of the complainant vide seizure memo (Ex. P-3), and an MP liquor bottle was also seized from the backside of the house of the complainant vide seizure memo (Ex. P-12). The spot map (Ex. P-5) was prepared by the Patwari. The accused persons were put to a test identi昀椀cation parade, which was conducted by Nayab Tahsildar P.C. Kori (PW-9), in which the present appellants were duly identi昀椀ed by the complainant Vivek Agrawal and Smt. Pushpa Agrawal, and their identi昀椀cation memo (Ex. P-3) was prepared. The wristwatches seized from the appellants and the plastic chappal seized from the accused Ballu @ Balram were also identi昀椀ed by the complainant Vivek Agrawal and Smt. Pushpa Agrawal, and the identi昀椀cation memo of the wristwatches and plastic chappal was prepared,

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which is (Ex. P-4). The statements of the witnesses under Section 161 of the CrPC were recorded, and after completion of the investigation, a charge-sheet was 昀椀led against the present appellants for the o昀昀ence under Section 395 of the IPC before the Chief Judicial Magistrate, Bilaspur.

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3. The case was remitted to the Court of the learned Sessions Judge, Bilaspur, from where it was transferred to the learned trial Court for its trial. The learned trial Court framed charges for the o昀昀ences under Sections 450 and 395 of the IPC, and the accused persons denied the charges and claimed trial.

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4. In order to prove the charges against the accused persons, the prosecution examined as many as 11 witnesses. The statements of the accused persons under Section 313 of the CrPC were also recorded, in which they denied the circumstances that appeared against them, pleaded innocence, and submitted that they had been falsely implicated in the o昀昀ence.

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5. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court convicted the accused persons/appellants for the o昀昀ences under Sections 450 and 394 of the IPC instead of Section 395 of the IPC and sentenced them as mentioned in the earlier part of the judgment, hence, this appeal.

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6. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable

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doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses, which cannot be made the basis to convict the appellants for the o昀昀ence in question. The test identi昀椀cation parade conducted by the Nayab Tahsildar is full of suspicion, and the proper procedure has not been followed, and the entire process of test identi昀椀cation is vitiated, as the accused persons were not kept behind the curtain while conducting the test identi昀椀cation parade and the complainant had an opportunity to see them before conducting the test identi昀椀cation parade, and thus the identi昀椀cation parade loses its sanctity. Further, while conducting the identi昀椀cation parade of the wristwatches, other similar wristwatches were not mixed, and the same also loses its evidentiary value. He would also submit that the test identi昀椀cation parade of the accused persons, as well as the watches, was conducted after about two months from the date of the incident, which itself is a suspicious circumstance, and the same cannot be relied upon for the conviction of the accused persons. The witnesses are interested witnesses belonging to the same family members, and therefore, in the absence of any cogent and clinching evidence against the appellants, their conviction cannot be sustained, and they are entitled to acquittal. He would also submit that the alleged incident took place at night time and there was no proper source of light to identify the accused persons, yet they have identi昀椀ed the accused persons, which itself is doubtful, and had the accused persons committed the

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o昀昀ence, the entire looted articles would have been seized from them, but only wristwatches have been seized and no other golden and silver ornaments have been seized from them. The entire prosecution case appears to be a concocted case against the accused persons, and therefore, by giving them the bene昀椀t of doubt, they may be acquitted.

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7. On the other hand, learned counsel appearing for the State opposes the submissions made by learned counsel for the appellants and submits that, but for minor omissions and contradictions, the evidence produced by the prosecution is fully reliable, as the accused persons have caused injuries to the complainant and thus they had ample opportunity to see them and they identi昀椀ed them. The accused persons were identi昀椀ed by the complainant in the test identi昀椀cation parade, and even the wristwatches seized from the accused persons have also been identi昀椀ed. There were four accused persons, out of whom two have been arrested, and from them wristwatches and cash amount have been seized. The appellants have not speci昀椀cally asked the Investigating O昀케cer about the delay in conducting the test identi昀椀cation parade, and in the absence thereof, the test identi昀椀cation parade cannot be doubted. The complainant duly identi昀椀ed the accused persons, and the same was conducted in accordance with law by Nayab Tahsildar P.C. Kori. He would also submit that the accused persons were arrested at the same time when they were 昀氀eeing from the place, and from them wristwatches

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belonging to the complainant have been recovered, which clearly connects the appellants with the o昀昀ence in question. Non-recovery of the golden and silver ornaments does not absolve them of their liability, as the same may have been in possession of the other accused persons who are still absconding. Therefore, there is su昀케cient and clinching evidence against the appellants that they committed the o昀昀ence, and in view of the evidence available on record against the appellants, they have rightly been convicted by the trial Court, and their appeal is liable to be dismissed.

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8. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection.

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9. The case of the prosecution is based on the test identi昀椀cation parade and recovery of wristwatches from them, which belong to the complainant party. The incident occurred on 18.12.2001 at about 3:00 a.m., and within half an hour, that is, at about 3:30 a.m., the FIR was registered at Torwa Police Station, Bilaspur, and as per the Rojnamcha entry (Ex. P-11), at about 5:30 a.m., the accused persons were arrested and taken to the police station. In such close proximity of time, it can be said that the accused persons were arrested without their 昀氀eeing from the place after committing the o昀昀ence, and from the present appellants two wristwatches have been recovered, which allegedly belong to the complainants. PW-2 Vivek Agrawal is the complainant. He stated in his evidence that on

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the date of the incident, when he and his other family members were sleeping in the house in the night after 2:00 a.m., he heard the noise of knocking at the door when he awoke. He asked who was there outside the door, and at the same time four persons entered into his house after breaking open the door. He remained standing at the door as they entered into his house, and two persons started assaulting him with a danda, by which he received injuries on his right palm. His sister Reena also received injury on her head, and his mother, Smt. Pushpa Agrawal, also received injuries. The accused persons demanded the keys of the almirah, cash amount, and other articles, and due to fear they gave them the keys of the almirah, and then the accused persons looted two ladies’ wristwatches and gents’ wristwatches, and also took the cash amount of Rs. 2000–3000/-. They also looted the golden chain worn by his mother and other ornaments found in the house and worn by his sister, ornaments from the almirah, silver coins, and 昀椀xed deposit receipt. They cut the telephone wire and damaged other articles, and after detaining them in a room, they 昀氀ed away from the place. Somehow he came out from his house and on the way he met the police patrolling party and informed them about the incident. He further stated that out of four accused persons, two accused persons are the present appellants who had entered into his house. He lodged the report (Ex. P-1), and he was sent to the hospital for his treatment. The accused persons were put to test identi昀椀cation

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parade in the Bilaspur jail, in which he identi昀椀ed the accused persons and memo (Ex. P-3) was prepared. He also identi昀椀ed his wristwatch and the memo is (Ex. P-4). In crossexamination, the defence asked him about the location and position of the room and place of incident, however, he explained every question which was asked from him by the defence. He categorically stated about the manner in which the incident occurred and that the o昀昀ence of loot was committed by the accused persons and that they assaulted them. In crossexamination, he remained 昀椀rm in identifying the accused persons and in the identi昀椀cation of the wristwatch. It had been looted by the accused persons from his house, but for minor omissions or contradictions, which are trivial in nature, nothing could be extracted from his evidence by the defence so that his evidence could be disbelieved. He denied the suggestion that before the test identi昀椀cation parade the police persons had shown to them the photographs of the accused persons.

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10. PW-3 Smt. Pushpa Agrawal is another victim of the o昀昀ence who was assaulted by the accused persons. She stated in her evidence that on the date of the incident, at about 3:00 a.m., she heard the noise of breaking the door and woke up. She saw that four accused persons had entered into her house after breaking open the door, they were having an iron rod and danda and started assaulting them. She, her son Vivek Agrawal, and Reena Agrawal received injuries by the assault made by the accused persons. She wore a golden chain, which

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was looted by the accused persons, her metal bangles were also looted by the accused persons, and the tops and stones of her daughter were also looted. They also took the silver ornaments and coins from the almirah and two ladies’ wristwatches and one gents’ wristwatch. She too identi昀椀ed the accused persons at District Jail, Bilaspur, and also identi昀椀ed the wristwatch, and her signatures were obtained on Exhibits P-3 and P-4. In her detailed cross-examination, the defence could not elicit anything material to disbelieve her evidence or to discredit the test identi昀椀cation parade (Ex. P-3) or identi昀椀cation of the wristwatch (Ex. P-4). Being an injured witness and victim of the o昀昀ence, she duly identi昀椀ed the accused persons/appellants and the wristwatch. The incident occurred on 18.12.2001 and the witness was examined on 21.01.2003, and in such a long gap of time minor discrepancies are but natural, which came in her evidence, but the substantive evidence could not be rebutted by the defence that the accused persons committed loot in her house and caused injuries to her and other family members. Her evidence is su昀케cient to identify the accused persons that they committed the o昀昀ence on the alleged date of incident.

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11. PW-4 Abhay Narayan Rai, who was present and conducted the test identi昀椀cation parade of the wristwatch, is also a witness to the seizure memos (Exs. P-6 and P-7), by which the wristwatch and cash amounts were seized from the accused persons. He too found that, during the conducting of the test

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identi昀椀cation of the wristwatch, the same was identi昀椀ed by the complainants Vivek Agrawal and Smt. Pushpa Agrawal.

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12. PW-9 P.C. Kori, who is the Nayab Tahsildar, conducted the test identi昀椀cation parade of the accused persons on 25.02.2002 at Central Jail, Bilaspur. He stated in his evidence that, while conducting the test identi昀椀cation parade, the complainant Vivek Agrawal and Smt. Pushpa Agrawal duly identi昀椀ed the accused persons by touching them with their hands and by putting their hands over the heads of the accused persons, and he prepared the test identi昀椀cation memo (Ex. P-3). He duly followed the procedure for conducting the test identi昀椀cation parade, and in his cross-examination he remained 昀椀rm regarding the conduct of the test identi昀椀cation parade and denied any discrepancy in the procedure of the same. He, being an independent witness, cannot be disbelieved on the ground that the test identi昀椀cation parade was not conducted by him or that he prepared document (Ex. P-3) without conducting the test identi昀椀cation parade. The test identi昀椀cation parade conducted by this witness is fully reliable, in which the complainant Vivek Agrawal and Smt. Pushpa Agrawal duly identi昀椀ed the present appellants. They denied the suggestion that they had seen the accused persons before conducting the test identi昀椀cation parade, and the test identi昀椀cation parade (Ex. P-3) is a vital piece of evidence, which has been proved by PW-9 P.C. Kori, and this evidence is also supported by the evidence of PW-2 Vivek Agrawal and

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PW-3 Smt. Pushpa Agrawal.

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13. PW-10 Komal Sahu is a constable who stated in his evidence that on the date of the incident they were on patrolling, and they were patrolling near Hemunagar at about 4:00 a.m. They reached Gurunanak Chowk while patrolling, and they were informed by the Investigating O昀케cer, Mr. D.P. Thakur, about the incident of dacoity in the house of Vivek Agrawal at Lal Khadan. During the search for the accused persons near Chuchuhiya Para Railway Gate/railway line, they caught hold of the accused persons and recovered two wristwatches from them. From accused Ballu @ Balram, one wristwatch, one hammer, and Rs. 570/- cash were seized, and from accused Laxmaniya, one ladies’ wristwatch, Rs. 420/- cash, and one gulel were seized. They disclosed their names, and thereafter they were taken to the police station, which has been recorded in Rojnamcha (Ex. P-11). From the evidence of these witnesses, it clearly transpires that in close proximity of time to the incident, the accused persons were arrested from whom ladies’ wristwatches were seized, which were duly veri昀椀ed by the complainant Vivek Agrawal and Smt. Pushpa Agrawal that the said wristwatches belonged to the complainant.

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14. Thus, this Court is of the considered opinion that the prosecution has duly proved the o昀昀ence under Section 394 against the accused persons, and the learned trial Court has rightly convicted the accused persons for the said o昀昀ence. The

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entire piece of evidence also includes the evidence of Dr. Lakhan Singh (PW-1), who medically examined the complainant Vivek Agrawal. He found one lacerated wound and one abrasion on the left hand and forearm, and his MLC report is (Ex. P-1). PW-5 Dr. Anjali Chipade medically examined the injured Smt. Pushpa Agrawal (PW-3) and found abrasion on the right elbow joint of her hand, and also examined Kumari Reena Agrawal, who had received injuries on her hand and head. From the evidence of PW-2 Vivek Agrawal and PW-3 Smt. Pushpa Agrawal, it has been categorically stated about causing injuries by the accused persons, which has been corroborated by the evidence of PW1 Dr. Lakhan Singh and PW-5 Dr. Anjali Chipade. It has also been proved by the prosecution that while committing the o昀昀ence of robbery, the accused persons voluntarily caused hurt to the complainant, therefore, the act of the accused persons would fall under the de昀椀nition of Section 394 of the IPC, which has rightly been considered by the learned trial Court.

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15. When the allegations levelled by the complainant that the accused persons entered into the house of the complainant and committed loot have been proved by them, the prosecution is also able to prove the o昀昀ence under Section 450 of the IPC regarding trespass into the house of the complainant for the commission of the o昀昀ence. This Court does not 昀椀nd any in昀椀rmity or perversity in the conviction of the appellants for the

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o昀昀ence under Section 450 of the IPC also.

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16. As a fallout, this Court does not 昀椀nd any perversity in the conviction and the sentence awarded by the trial Court to the accused persons, accordingly, this appeal is hereby dismissed.

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17. It is reported that the appellants were granted bail by the coordinate Bench of this Court vide order dated 12.03.2003, and thereafter they remained absconding, and warrants of arrest have been issued against them and they could not be arrested. Let the appellants be arrested and made to undergo the entire sentence as awarded by the learned trial Court.

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18. Let a copy of this judgment along with the original records be transmitted to the trial Court concerned forthwith for information and necessary compliance.

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Rahul Dewangan

Laxmaniya and Others v. State of Chhattisgarh

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Laxmaniya and Others v. State of Chhattisgarh

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