Kaila Vs State of Chhattisgarh

The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 24.10.2008 passed by First Additional Sessions Judge, Ambikapur, Surguja in ST No.57/1987 whereby the appellant stands convicted under Section 395 of IPC and sentenced to undergo RI for five years,

¶15

2

¶16

pay a fine of Rs.1000/- and in default thereof to suffer additional RI for six months.

¶17

Case of the prosecution, in brief, is that on 16/01/1986 at about 7:15 PM, the complainant and his wife were sitting by the fire. The complainant’s daughter-in-law was serving food to the complainant’s son and a village boy named Govind Yadav. At that time, 3–4 unknown persons, armed with sticks and axes, arrived. Two of them caught hold of the two boys who were eating and tied them with a cloth (gamcha). The complainant’s daughter-in-law ran away from the spot. Then, one of the miscreants caught hold of the complainant’s wife and said, “Show us the belongings, or we will kill you.” Two or three of them also caught the complainant and warned him not to look up, or they would kill him. They made everyone sit inside the house. From the complainant’s house, they looted one brass pot (approx. 4 kg) worth Rs.200/-, four brass lotas (one approx. 1 kg and three about 750 g each) worth Rs.150/-, two brass plates (about 500 g each) worth Rs.100/-, one brass bowl (about 250 g) worth Rs.25/-, one aluminum cooking pot (approx. 1 kg) worth Rs.40/-, one black woolen blanket with white markings worth Rs.30/-, one white iron sheet trunk worth Rs.30/-, which contained one green terrycot kurta worth Rs.30/-, one white cotton dhoti worth Rs.20/-, one violet terrycot saree worth Rs.90/-, one red women’s sheet worth Rs.25/-, three cotton blouses (green, yellow, and one white nylon perforated), one red cotton saree with white print worth Rs.25/-, one small black tin box worth Rs.15/-,

¶18

3

¶19

one steel necklace, one pair of plastic shoes, one iron axe and cash amount of Rs.7/-. Two of the thieves looted these items and locked the complainant and others inside the house. After somehow getting out, they raised an alarm, and villagers gathered there. The complainant, his wife, and daughter-in-law stated that they would be able to identify the culprits. Upon the report being lodged by the complainant Dargahi at Police Station Ramchandrapur, the police, after investigation, found sufficient evidence against the accused persons under Section 395 of IPC and presented them before the Judicial Magistrate First Class, Samanujganj. After committal by the Magistrate, the case was received by the trial court.

¶20

Learned trial Court framed charge under Section 395 of IPC against the accused/appellant which was abjured by him and he prayed for trial. To bring home the charge, the prosecution examined 11 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence, he examined one Bandhu as DW-1.

¶21

After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellant as mentioned above. Hence this appeal.

¶22

4

¶23

Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court ought to have appreciated the fact that no identification parade of the accused was held and the property which was seized from the appellant was also not duly identified by the witnesses. He submits that name of the appellant is not mentioned in the FIR and the witnesses have also not named the appellant. No independent witness has supported the prosecution case. Thus, in view of the nature and quality of evidence adduced by the prosecution, it is clear that the prosecution has failed to prove its case against the appellant beyond reasonable doubt and therefore, the appellant deserves to be acquitted of the charge leveled against him.

¶24

On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is, therefore, liable to be dismissed.

¶25

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

¶26

It is clear from the record of learned trial Court that charge sheet was filed against the appellant and other co-accused persons but during trial the appellant absconded. Learned trial Court passed

¶27

5

¶28

judgment against other co-accused persons on 4.9.1997. After some time, the appellant was arrested and trial was conducted against him. Learned trial Court framed charge under Section 395 of IPC against him and after appreciation of oral and documentary evidence, convicted and sentenced him under this section as mentioned in the opening paragraph of this judgment.

¶29

PW-1 Jagdish Prasad states that he identifies all the seven accused persons by face but knows Sunderdev by name only. There was dacoity in the house of Haidergahi Mahto and after coming to know about this, he also went with the police personnel to the spot. He and Sudama were taken to Village Dhuma by the police to enquire about the dacoits and there six dacoits were caught. He states that excluding accused Sunderdev, all the accused present in the court are the persons who were caught by the police.

¶30

PW-2 Sudama Prasad identified only Sunderdev and not others. He states that the police interrogated the accused persons. He admits his signature on the memorandum statements of Ex.P/1 to P/7 and seizure of Ex.P/8 to P/14. He states that he does not remember as to on what date the articles were seized. PW-3 M. Khes, Naib Tehsildar, states that he conducted test identification of the seized articles and prepared memo Ex.P/16 which bears his signature.

¶31

PW-5 Dargahi Prasad identified all the accused persons and stated that on the date of incident 5-6 hooligans entered his house with

¶32

6

¶33

clubs, tied his son Paras and Govind; however, his daughter-in-law escaped from there; he was made to sit in the courtyard. His wife was threatened by the dacoits of life if she did not disclose the place where the articles are kept. They looted utensils, saree, shirt, dhoti, blanket, axe and other household articles. In cross-examination he states that there is a land dispute with Sunderdev. He saw all the accused persons in the police station only and thereafter before the court. He states that he does not know name of the accused persons except accused Sunderdev.

¶34

PW-6 Phoolkunwar also states that she identifies all the accused persons, on the date of incident they entered her house with club, tied her sons and looted the household articles. In cross-examination she denies the suggestion that 8-10 days after the incident the Station House Officer called them to police station to show the accused persons. PW-7 Parasnath states that the accused persons committed dacoity in his house and looted utensils, clothes, axe etc and locked them in the house. In cross he states that he identified accused Sunderdev.

¶35

PW-8 Govind and PW-9 Bechan identified accused Sunderdev only. PW-9 Bechan and PW-10 Devsai were declared hostile by the prosecution.

¶36

It is clear from the statements of all the witnesses that they only identified co-accused Sunderdev. The complainant and other witnesses

¶37

7

¶38

state that they saw all the accused persons in the police station before the Station House Officer. Learned trial Court also observed in para 12 of the impugned judgment that prosecution witnesses Dargahi Prasad, Phoolkunwar and Parasnath have clearly deposed that after arrest of the accused, the Station House Officer called them to police station for identification where they identified the accused persons before the SHO. It is thus clear from the statements of the witnesses that they identified the accused persons at the police station and therefore, before the trial court.

¶39

It is well settled that if the evidence on record reveals that the accused was shown to the witness prior to TIP, such identification loses its significance and sanctity of TIP before the Court is doubtful. The Hon’ble Supreme Court in the matter of Gireesan Nair and others Vs. State of Kerala reported in (2023) 1 SCC 180 held in paras 28 & 29 of its judgment as under:

¶40

"28. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept “baparda” to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal

¶41

8

¶42

Singh and Ors v. State of U.P., (2003) 12 SCC 554 and Suryamoorthi and Anr. v. Govindaswamy and Ors., (1989) 3 SCC 24).

¶43

If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra (1998) 5 SCC 103). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR 903)."

¶44

In view of above decision, in the present case, looking to the statements of the witnesses, the TIP loses its significance. This apart, the witnesses to memorandum and seizure have also not supported the prosecution case. Thus, considering the oral and documentary evidence available on record, this Court finds that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. He deserves to be acquitted of the charge by extending him benefit of doubt.

¶45

In the result, the appeal is allowed and the impugned judgment of learned trial Court is hereby set aside. The appellant is acquitted of the charge under Section 395 of IPC.

¶46

9

¶47

The appellant is reported to be on bail. Therefore, k eeping in view the provisions of Section 481 of BNSS, 2023, his bail bonds shall continue for a period of six months from today.

¶48

Sd/ Digitally signed by MOHD MOHD AKHTAR (Rajani Dubey) AKHTAR KHAN KHAN Date:2026.04.10 16:29:51+0530 Judge Khan

Kaila v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kaila v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Baiju Singh and Ors. Vs State of Chhattisgarh

Rakesh Rai Vs State of Chhattisgarh

Deenu Vs State of Chhattisgarh

Kurukshetra Mali Vs State of Chhattisgarh

Dhananjay Barle Vs State of Chhattisgarh

Rajesh Maravi Vs State of Chhattisgarh