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2008 DIGILAW 238 (CHH)

Ashish Sinha v. State of Chhattisgarh

2008-09-04

T.P.SHARMA

body2008
Judgement Cr.A.No.506/2004 filed by Ashish Sinha, Cr.A.No.562/2004 filed by Vijay K. Lakra and Cr.A.No.601/2004 filed by Vijay Kumar Bariha have been preferred against the common judgment dated 13-5-2004 passed in Sessions Trial No.375/2003, therefore, they are being disposed of by this common judgment. 2. These appeals are directed against the judgment of conviction and order of sentence dated 13-5-2004 passed by the Additional Sessions Judge, Korba in Sessions Trial No.375/2003, whereby and whereunder learned Additional Sessions Judge after holding the accused/appellants guilty for commission of offence under Sections 120-B, 397 read with Section 34 of the I.P.C., Sections 25 (2) and 27 (2) of the Arms Act, sentenced each of them to undergo rigorous imprisonment for seven years and pay a fine of Rs.3,000/-, in default of payment of fine to further undergo simple imprisonment for one year under Sections 120-B and 397 read with Section 34 of the IPC and to undergo rigorous imprisonment for six months and pay a fine of Rs.500/-, in default of payment of fine to further undergo simple imprisonment for three months under Sections 25 (2) and 27 (2) of the Arms Act. 3. The impugned judgment is challenged on the ground that without any evidence regarding identification, memorandum and seizure and eye-witness, learned trial Court has convicted and sentenced the appellants in the aforesaid manner. 4. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. 5. Case of the prosecution, in brief, is that Vinod Kumar Dewangan (PW-1) was posted as Clerk/Assistant Grade-II in Woman and Child Development Project, Korba, on 25-6-2003 he went to State Bank, I.T.I. Rampur Branch, Korba for withdrawal of payment of the employees of his Office along with Shyamlal Mahant (PW-2), Peon of the said Office, they received payment of Rs.4,30,351/- in the denominations of Rs.100/-, Rs.50/-, Rs.10/- and one rupee coins. He kept the said money in jute bag and resin bag. They were coming back in the bicycle which was driven by Shyamlal Mahant (PW-2) and Vinod Kumar Dewangan (PW-1) was sitting on the bicycle holding the money. When they reached near P.W.D. School they were restrained by one tall man on the pistol point, he abused them and demanded the money and also threatened to kill them. He put pistol over the head of Shyamlal and snatched the money from Vinod Kumar. When they reached near P.W.D. School they were restrained by one tall man on the pistol point, he abused them and demanded the money and also threatened to kill them. He put pistol over the head of Shyamlal and snatched the money from Vinod Kumar. Two other accused persons were standing by the side of the road on a motorcycle which was in standing position. All the three accused ran away from the spot by the motorcycle. Vinod Kumar Dewangan and Shyamlal Mahant shouted and tried to follow them, even they chased the accused persons up to some extent, but the accused persons absconded from the spot. 6. Vinod lodged the F.I.R. at Police Outpost Rampur, Korba vide Ex.P-1 and on the basis of Ex.P-1 numbered F.I.R. was registered vide Ex.P-23. Statement of Vinod was recorded on the same day. During the course of investigation, appellant Vijay Bariha was taken into custody and he made disclosure statement on 1-7-2003 at about 9.15 p.m. vide Ex.P-14 in which he has disclosed that Rs.50,000/- was kept under a pit in the land situated in backside of Ashish Sinha's house and his clothes are in a box. After digging out the land, money of Rs.50,000/- and one country made pistol were recovered at the instance of Vijay Bariha vide Ex.P-15 and his clothes were seized vide Ex.P-16. Appellant Ashish Sinha made disclosure statement vide Ex.P-18 regarding Rs.1,50,000/-and his clothes that the same were kept under a pit in the land situated at backside of his house, same were seized at his instance vide Ex.P-7. Appellant Vijay Lakra also made disclosure statement vide Ex. P-3 regarding Rs. 2 lakhs, country made pistol along with cartridge and clothes which were kept under a pit in the land situated at backside of the house of Ashish Sinha, same were recovered at his instance vide Ex. P-4. Other coaccused who have been acquitted by the trial Court have also made disclosure statement and on the basis of their disclosure statements, articles were recovered at their instance. Recovered country made pistols were examined vide Ex.P-21. Spot map was prepared vide Ex.P-22. The accused persons were arrested and statements of witnesses under Section 161 of the Cr.P.C. were recorded. 7. Identification parade was conducted inside the jail vide Ex.P-2 in which all the three appellants were identified by Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2). 8. Recovered country made pistols were examined vide Ex.P-21. Spot map was prepared vide Ex.P-22. The accused persons were arrested and statements of witnesses under Section 161 of the Cr.P.C. were recorded. 7. Identification parade was conducted inside the jail vide Ex.P-2 in which all the three appellants were identified by Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2). 8. After completion of investigation, charge-sheet was filed before the Chief Judicial Magistrate, Korba, who in turn committed the case to the Court of Sessions Judge, Korba from where learned Additional Sessions Judge, Korba received the case on transfer for trial. 9. In order to establish the guilt against the accused persons, the prosecution has examined as many as 14 witnesses. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which they have denied the circumstances appearing against them and they pleaded innocence and false implication. 10. It is argued on behalf of the appellants that their names have not been mentioned in the F.I.R. which was registered within half an hour of the incident. The incident has not been witnessed by any person. The appellants have been shown to the witnesses prior to the identification parade. Memorandum and seizure have not been supported by the Panch witnesses. Ocular evidence adduced by the prosecution does not warrant conviction against the appellants and conviction under Section 397 read with Section 34 of the I.P.C. is not sustainable in law. The prosecution has not adduced any evidence to connect the appellants with the crime in question. There is no evidence to the effect that out of the three appellants who had used the deadly weapons. In absence of specific evidence, the appellants are not liable for conviction under Section 397 read with Section 34 of the I.P.C 11. Learned counsel for the appellants placed reliance in the matter of Narsi v. State of Haryana, AIR 1999 SC 234 : 1999 Cri LJ 271 in which it has been held by the Apex Court that in absence of any independent witness at the time, on the basis of recovery of weapons, offence under Section 25 of the Arms Act is not proved. Learned counsel also placed reliance in the matter of State of Madhya Pradesh v, Chamru alias Bhagwandas etc., etc., 2007 (3) Crimes 241 (SC) : 2007 Cri LJ 3509 in which it has been held by the Apex Court that absence of any description of the miscreants whose names are not mentioned in the F.I.R. is fatal to the prosecution. 12. Learned counsel for the appellants have further placed reliance in the matter of Paramjeet Singh v. State of Rajasthan, 2001 Cri LJ 757 in which the Rajasthan High Court held that Section 397 of the I.P.C. relates only to offender who actually uses deadly weapon himself and no person can be convicted with the aid of Section 34 of the I.P.C. for offence under Section 397 of the I.P.C. 13. Learned counsel for the appellants have also placed reliance in the matter of Phool Kumar v. Delhi Administration, AIR 1975 SC 905 in which it has been held by the Apex Court that "Where an accused at the time of committing robbery, carries in his hand a knife open to the view of the victims it is sufficient to frighten or terrorize them and he can be convicted under Section 397. Any other overt act such as, brandishing of the knife of causing grievous hurt with it is not necessary to bring the offender within the ambit of Section 397". 14. On the other hand, the judgment is supported on. behalf of the State/respondent. 15. The prosecution has adduced ocular (direct) evidence and circumstantial evidence to prove the guilt against the appellants. In the instant case, the prosecution is required to establish the following ingredients : - (i) the appellants had snatched the money from Vinod Kumar Dewangan (PW-1); (ii) the appellants had used criminal force against Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) at the time of snatching the money; (iii) the appellants had used deadly weapons while committing the aforesaid act; (iv) the appellants had put complainant Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) in fear of death at the time of commission of offence; (v) the appellants were found in possession of fire arms; and (vi) the District Magistrate has accorded sanction for prosecution of the accused persons as required under Section 39 of the Arms Act. 16. 16. In order to appreciate the contentions of the parties, I have examined the evidence adduced by the prosecution. Vinod Kumar Dewangan (PW-1) who is complainant has stated in his evidence that on the date of incident he along with Shyamlal Mahant (PW-2) went to State Bank for encashment of the amount of pay of the employees, he received Rs.4, 30,351/- from the Bank, kept the same in jute bag and resin bag, when they were coming back to their Office by the cycle and when they reached near P.W.D. School, they were restrained by one tall man who was having country made pistol, he abused them and pointed the pistol on the head of Shyamlal and threatened to kill them. Other two accused persons were standing by the side of road on a motorcycle which they had already started. On the pistol point, the said tall man snatched the two bags from the complainant. The complainant and his associate fell down from the cycle. Thereafter, all the three appellants ran away in the motorcycle. This witness and Shyamlal tried to chase them and they shouted, lastly, they went to lodge the report at Police Chowki Rampur vide F.I.R. Ex.P-1 and on the basis of Ex.P-1, numbered F.I.R. was registered vide Ex.P-23. He has also stated that after few days he was called by the Police Officer, then he went inside the jail along with Shyamlal where he identified the three appellants namely Vijay Lakra, Ashish Sinha and Vijay Bariha who had committed offence against them vide identification parade Ex. P-2. 17. Shyamlal Mahant (PW-2) has stated in his evidence that he was with Vinod Kumar Dewangan (PW-1) at the time of the incident and while they were returning from the Bank with money of Rs.4,30,351/-, he was driving the bicycle Vinod Kumar Dewangan was sitting on the bicycle holding money in his hands. He has further stated in his evidence that appellant Vijay Bariha pointed country made pistol upon him and after abusing them, he snatched the money from them and ran away in the motorcycle. They tried to chase the accused persons and lastly they went to the Police Station to report the matter. He has further stated that he has identified the appellant inside the jail. 18. Sukulsai Toppo (PW-3) and Jaikumar Shukla (PW-4) are Panch witnesses. They tried to chase the accused persons and lastly they went to the Police Station to report the matter. He has further stated that he has identified the appellant inside the jail. 18. Sukulsai Toppo (PW-3) and Jaikumar Shukla (PW-4) are Panch witnesses. They have not supported the case of the prosecution, but they had admitted their signatures over the disclosure statements and recovery of articles. They have been cross-examined at length by the prosecution, but they have not supported the case of the prosecution and they have not explained as to why they have signed on the documents of disclosure statements and seizures. 19. B.K. Lakra (PW-7), Additional Tahsildar, Jaijaipur, has stated in his evidence that he has conducted identification in which Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) have identified the appellants by saying that these persons have committed the robbery. 20. Sunil Kumar Pandey (PW-8), Constable, has stated in his evidence that he has produced the firm arms for examination vide Ex.P-20 and report of the same is Ex.P-21. Likewise, Grahan Singh Rathore (PW-9), A.S.I., has stated in his evidence that he has registered the F.I.R. Ex.P-1 and prepared the site map Ex.P-22. Head Constable Jugal Kishore (PW-10) has stated in his evidence that he has examined the pistols and prepared the report Ex.P-21. Vidhan Dave (PW-11) has not supported the case of the prosecution. 21. C.P. Bhatt (PW-14), Inspector, is the Investigating Officer of the case. He has categorically stated in his evidence that after taking the accused persons into custody, he has interrogated them. Appellant Vijay Lakra has made disclosure statement vide Ex.P-3 and on the basis of the said disclosure statement, Rs.2 lakhs, country made pistol along with cartridge and clothes were recovered from the pit situated in the backside of the house of appellant Ashish Sinha vide Exs.P-4 and P-17, at his instance. Appellant Vijay Bariha has made disclosure statement vide Ex.P-14 and on the basis of the said disclosure statement, Rs.50,000/-, clothes and country made pistol have been recovered vide Exs.P-15 and P-16, at his instance, from a pit at backside of the house of appellant Ashish Sinha. Appellant Ashish Sinha has made disclosure statement vide Ex.P-18 and on the basis of the said disclosure statement, money and clothes have been recovered vide Ex.P-7, at his instance. 22. In this case, Panch witnesses have not supported the case of the prosecution. Appellant Ashish Sinha has made disclosure statement vide Ex.P-18 and on the basis of the said disclosure statement, money and clothes have been recovered vide Ex.P-7, at his instance. 22. In this case, Panch witnesses have not supported the case of the prosecution. Neither they are stock witnesses nor they have challenged the case that they have signed the papers under threat or pressure or otherwise. This shows that they have concealed the truth. 23. Now, the evidence of C.P. Bhatt (PW-14), Investigating Officer, only remains for consideration on the point of disclosure statements and recovery of articles on the basis of the disclosure statements. 24. Corroboration is not a rule of law, but it is a rule of prudence. In order to appreciate the evidence of Police Officers, some corroboration is necessary from independent sources. C.P. Bhatt (PW-14) has stated in his evidence that the appellants have made disclosure statements before the independent witnesses and properties have been recovered at their instance. But the Panch witnesses have not supported the case of the prosecution. The Police Officer has tried his level best for calling the witnesses of the locality, but in absence of corroboration by independent sources his evidence cannot be discarded on the ground that he is a Police Officer and interested in the outcome of the case. In the matter of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra, AIR 1996 SC 2943 : 1996 Cri LJ 1698, the Apex Court has held that "there is no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness". Further in the matter of P.P. Beeran v. State of Kerala, AIR 2001 SC 2420 : 2001 Cri LJ 3281, the Apex Court has placed reliance on the uncorroborated testimony of the Police Inspector in the case of possession of drug of small quantity under the Narcotic Drugs and Psychotropic Substances Act, 1985. 25. Further in the matter of P.P. Beeran v. State of Kerala, AIR 2001 SC 2420 : 2001 Cri LJ 3281, the Apex Court has placed reliance on the uncorroborated testimony of the Police Inspector in the case of possession of drug of small quantity under the Narcotic Drugs and Psychotropic Substances Act, 1985. 25. C.P. Bhatt (PW-14) has categorically stated in his evidence that the appellants have made disclosure statements and on the basis of their disclosure statements, money, clothes and country made pistols were recovered from the appellants. All the three appellants are students. They have not stated anything in their statements recorded under Section 313 of the Cr.P.C. that they were having any source of income of such a huge amount of Rs.50,000/-, Rs.1,50,000/- and Rs.2,00,000/-. They have also not stated anything that as to why the huge amount of money was under the pit in the land situated at backside of the house of appellant Ashish Sinha or how they came to know that such a huge amount of money was kept under the pit. In the absence of any explanation offered on behalf of the appellants and on the basis of the evidence of C.P. Bhatt (PW-14) which is trustworthy and inspires confidence, the only inference can be drawn that the appellants were in possession of huge amount of money without any explanation. According to Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) the robbery has been committed on 25-6-2003 and the recovered amount was found in possession of the appellants on 1-7-2003 within seven days of the incident. The appellants have not offered any explanation to the same. The denominations of the currency notes stated by Vinod Kumar Dewangan (PW-1) also tallied with the money recovered from the possession of the appellants. 26. As regards the question of identification, Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) have categorically stated in their evidence that they have identified the appellants in jail and prior to identification they have not seen the appellants except at the time of incident. Defence has cross-examined these witnesses at length and tried to show some discrepancy in their evidence, but defence has not been able to elicit anything on the point of identification in their evidence. Defence has cross-examined these witnesses at length and tried to show some discrepancy in their evidence, but defence has not been able to elicit anything on the point of identification in their evidence. Identification parade is also supported by B.K. Lakra (PW-7), Additional Tahsildar, Jaijaipur who has categorically stated in his evidence that he has conducted the identification parade in which Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2) have identified the appellants by saying that these are the persons who have committed the robbery. Shyamlal Mahant (PW-2) has specifically stated that these three appellants have committed the robbery and out of the three appellants, appellant Vijay Bariha, who is a tall man, has pointed pistol on him, snatched the money and ran away with other two appellants. Defence has not been able to elicit any circumstance from the evidence of Vinod Kumar Dewangan (PW-1) and Shyamlal Mahant (PW-2), which discredits their evidence on the point that the present appellants are not the accused and they are giving statements on the basis of assumption. The evidence of Vinod Kumar Dewangan (PW-1), Shyamlal Mahant (PW-2) and C.P. Bhatt (PW-14) inspires confidence that the appellants are the persons who have committed the robbery in question. At the time of commission of robbery, appellant Vijay Bariha has used the country made pistol which is a deadly weapon. 27. After appreciating the entire evidence available on record, learned trial Court has convicted the appellants for commission of offence under Sections 120-B, 397 read with Section 34 of the I.P.C., Sections 25 (2) and 27 (2) of the Arms Act and sentenced each of them in the aforesaid manner. 28. The prosecution has not been able to adduce evidence to the effect that there was any conspiracy for commission of the offence. Country made pistols have been recovered from the appellants and they have been convicted and sentenced for commission of offence under Sections 25 (2) and 27 (2) of the Arms Act. Possession or illegal use of arms is punishable under Sections 25 and 27 of the Arms Act, but for prosecution under the Arms Act relating to fire arms, previous sanction of the District Magistrate is the condition precedent. In this case, the prosecution has not adduced any evidence to the effect that the District Magistrate has accorded any sanction for prosecution of the offence relating to fire arms. In this case, the prosecution has not adduced any evidence to the effect that the District Magistrate has accorded any sanction for prosecution of the offence relating to fire arms. In the absence of any sanction from the District Magistrate, conviction and sentences imposed upon the appellants under Sections 25 and 27 of the Arms Act are not sustainable. 29. For the foregoing reasons conviction and sentences imposed upon the appellants under Sections 25 (2), 27 (2) of the Arms Act and 120-B of the I.P.C. are not sustainable. Similarly, conviction and sentences imposed upon the appellants under Section 397 read with Section 34 of the I.P.C. are also not sustainable. However, on the basis of the evidence adduced by the prosecution, the act of appellants Vijay Lakra and Ashish Sinha is punishable under Section 392 of the I.P.C. and the act of appellant Vijay Bariha is punishable under Section 397 of the I.P.C. 30. Consequently, the appeals (Cr.A.Nos. 506/2004, 562/2004 and 601/ 2004) are partly allowed. Conviction and sentences imposed upon the appellants under Sections 120-B, 397 read with Section 34 of the I.P.C., Sections 25 (2) and 27 (2) of the Arms Act are set aside and the appellants are acquitted of the said charges, instead thereof, appellants Vijay Lakra and Ashish Sinha are convicted under Section 392 of the I.P.C. and appellant Vijay Bariha is convicted under Section 397 of the I.P.C. Taking into consideration, the manner in which the appellants had committed the robbery in question and looted huge amount of Rs.4,30,351/-, each of them are sentenced to undergo rigorous imprisonment for seven years and pay a fine of Rs.3,000/-, in default of payment of fine to further undergo simple imprisonment for one year. The amount of fine deposited by each of the appellants for conviction and sentence in rest of the offences shall be refunded to them forthwith. Appeals partly allowed.