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2013 DIGILAW 165 (CHH)

LOKNATH v. STATE OF C. G.

2013-06-11

Radhe Shyam Sharma

body2013
JUDGMENT 1. This appeal is directed against the judgment dated 06-02-2010 passed by First Additional Sessions Judge, Surajpur, Distt. Surguja in Sessions Trial No. 377/09. By the impugned judgment, accused/appellant Loknath has been convicted under Section 394 read with Section 398 IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo rigorous imprisonment for 15 days. Co-accused Heera and Netaram have been acquitted of the charges framed against them. 2. The case of the prosecution, in brief, is as under:- On 18-07-2009, at about 6.00 P.M., complainant Meena Singh (PW-1) was going Champaknagar from Village Tedua along with her uncle Kunwar Sai (PW-2). On the way, her sister Bahali and niece Bilaso also met them. They proceeded for Champaknagar together. When they reached near Kajoo Nursery at Deonagar, appellant Loknath, who was carrying a tangi (axe), came there and at that time, co-accused persons Heera and Netaram were also present along with appellant Loknath. They attempted to assault complainant Meena Singh (PW-1) and her uncle and sister. Shouting, Bilaso (niece of complainant Meena Singh (PW-1)) ran away towards village. The appellant snatched a bag from complainant Meena Singh (PW-1) and robbed a sum of Rs. 500/-kept in the bag as also snatched a pair of silver anklet (payal) worn by her. Thereafter, the appellant and co-accused persons ran away towards the nursery. Meena Singh (PW-1) lodged First Information Report (Ex.-P/1) in Police Station Surajpur. In further investigation, spot map (Ex.-P/2) was prepared. Memorandum statement of appellant Loknath was recorded under Section 27 of the Evidence Act vide Ex.P-4 and at his instance, tangi, purse, saree, petticoat, salwar suit, sum of Rs. 90/- and silver payal (anklet) were seized vide Ex.-P/5. Sum of Rs. 200/- was seized from co-accused Netaram and a danda and sum of Rs. 200/ - were seized from co-accused Heera vide Ex.-P/7. Complainant Meena Singh (PW-1) was sent to Community Health Center, Surajpur for medical examination. Doctor Shashi Tirki (PW-5) examined complainant Meena Singh (PW-1) and gave her report vide Ex.-P/8, in which she found small abrasion on left forearm of 0.5 cm. Complainant Meena Singh (PW-1) complained pain on her breast and back and both of the wrists. Test identification of the property was conducted vide Ex.-P/3. In test identification, complainant Meena Singh (PW-1) identified her property. Complainant Meena Singh (PW-1) complained pain on her breast and back and both of the wrists. Test identification of the property was conducted vide Ex.-P/3. In test identification, complainant Meena Singh (PW-1) identified her property. After completion of the investigation, charge sheet was filed against the appellant and two other co-accused persons namely Heera and Netaram in the Court of Additional Chief Judicial Magistrate, Surajpur, who, in turn, committed the case to the Court of Session, Surguja (Ambikapur), from where it was received on transfer by the First Additional Sessions Judge, Surajpur, who conducted the trial and convicted appellant Loknath as mentioned above and acquitted the co-accused persons, namely, Heera and Netaram of the charges framed against them. 3. Shri Ashok Shukla and Shri Atanu Ghosh, learned counsel for the appellant argued that Bilaso and Bahali were material witnesses for the prosecution but the prosecution did not examine them. The evidence of Meena Singh (PW-1) and Kunwar Sai (PW-2) was full of contradictions and not reliable. The injury sustained by complainant Meena Singh (PW-1) was simple in nature. Therefore, ingredients of Section 398 IPC do not arise. Therefore, the appellant deserves for acquittal. 4. On the contrary, Shri Anand Verma, learned Panel Lawyer appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference, by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 377/09. The conviction of appellant Loknath is based on the evidence of complainant Meena Singh (PW-1) and Kunwar Sai (PW-2). 6. Complainant Meena Singh (PW-1) deposed that on the date of incident, she was going Champaknagar from Tedua along with her uncle Kunwar Sai (PW-2). On the way, her sisters Bahali and neice Bilaso were met them. When they reached near nursery, appellant Loknath met them. At that time, the appellant was carrying a tangiya (axe) with him. Appellant Loknath attempted to assault her with the tangiya (axe) and snatched her bag and robbed sum of Rs. 500/- kept in the bag as also snatched a pair of silver anklet (payal) worn by her. Shouting, Bahali and Bilaso ran away towards basti. She further deposed that her maternal uncle Vijay Singh (PW-3) came there and she narrated the incident to him also. 7. 500/- kept in the bag as also snatched a pair of silver anklet (payal) worn by her. Shouting, Bahali and Bilaso ran away towards basti. She further deposed that her maternal uncle Vijay Singh (PW-3) came there and she narrated the incident to him also. 7. Kunwar Sai (PW-2) deposed that on the date of incident, he was going to Champaknagar from Tedua along with her niece Meena Singh (PW-1). On the way, Bahali and Bilaso aslo met them. When they reached near Kajoo Nursery; appellant Loknath, carrying a tangi (axe) with him, came there and he snatched the bag of Meena Singh (PW-1) and robbed sum of Rs. 500/- and also snatched her payal. Having heard her shout, 2-3 persons came there, then appellant Loknath fled from there. 8. Vijay Singh (PW-3) deposed that shouting, Bilaso was coming to village. Having heard her shout, he reached the place of occurrence, then Meena Singh (PW-1) narrated the incident to him. 9. Meena Singh (PW-1) deposed that she lodged First Information Report (Ex.-P/1) in Police Station, Surajpur. Kunwar Sai (PW-2) also deposed that Meena Singh (PW-1) lodged the First Information Report (Ex.-P/1) in Police Station, Surajpur. 10. Pramod Sharma (PW-4) deposed that on 18-07-2009, he was posted as Sub-Inspector at Police Station, Surajpur. At that date, Meena Singh (PW-1) lodged the First Information Report (Ex.-P/1). He further deposed that he recorded memorandum statement (Ex.-P/4) of the appellant and at his instance, saree, petticoat, blouse, salwar suit, currency notes, sum of Rs. 90/- and a pair of silver payal were seized from the appellant vide Ex.-P/5. He further deposed that identification of the property was conducted. 11. Vijay Singh (PW-3) also deposed that memorandum statement of the appellant was recorded vide Ex.-P/4 and at the instance of the appellant, saree and other clothes and payal were seized from the appellant. 12. It is true that Bahali and Bilaso were not examined by the prosecution. In Avtar Singh Vs. State of Haryana (2012)9 SCC 432 , in paragraph 19, the Hon'ble Supreme Court has observed that the law on this aspect can be succinctly stated to the effect that in order to prove the guilt of the accused, the prosecution should make earnest efforts to place material evidence where there were several persons stated to have witnessed the incident. State of Haryana (2012)9 SCC 432 , in paragraph 19, the Hon'ble Supreme Court has observed that the law on this aspect can be succinctly stated to the effect that in order to prove the guilt of the accused, the prosecution should make earnest efforts to place material evidence where there were several persons stated to have witnessed the incident. In the instant case, Meena Singh (PW-1) is complainant and Kunwar Sai (PW-2) is an eye-witness. Both have specifically deposed that appellant Loknath stopped Meena Singh (PW-1) and snatched her bag and robbed sum of Rs. 500/- and payal. Therefore, non-examination of Bahali and Bilaso is not fatal to the case of the prosecution. 13. The date and time of incident was 18-07-2009 at about 6 P.M. and the First Information Report (Ex.-P/1) was also lodged on the same day at about 10:30 P.M. Memorandum statement (Ex.-P/4) of the appellant was recorded on 19-07-2009 and the property was seized at the instance of appellant Loknath which belonged to complainant Meena Singh (PW-1) and complainant Meena Singh (PW-1) identified her property in the identification. Appellant Loknath was not acquainted with complainant Meena Singh (PW-1) earlier, therefore, Meean Singh (PW-1) had no motive to falsely implicate appellant Loknath. 14. Looking to the evidence of Meena Singh (PW-1) and Kunwar Sai (PW-2), it is established that appellant Loknath caused injury during the robbery. The evidence of both the witnesses is cogent, reliable and conviction can be based on their testimony. 15. Now, I shall consider whether the appellant can be convicted under Section 398 IPC. 16. Section 398 IPC runs as under :- "398. Attempt to commit robbery or dacoity when armed with deadly weapon - If at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years." 17. In the instant case, the appellant was armed with tangi (axe) which is a deadly weapon and the appellant attempted to assault Meena Singh (PW-1) during the robbery and Meena Singh (PW-1) sustained injury. The appellant was carrying deadly weapon tangi (axe) and a view of the above weapon to Meena Singh was sufficient to frighten or terrorize her. In the instant case, the appellant was armed with tangi (axe) which is a deadly weapon and the appellant attempted to assault Meena Singh (PW-1) during the robbery and Meena Singh (PW-1) sustained injury. The appellant was carrying deadly weapon tangi (axe) and a view of the above weapon to Meena Singh was sufficient to frighten or terrorize her. Therefore, Section 398 IPC is also attracted and the learned Additional Sessions Judge rightly applied Section 398 IPC and convicted the appellant under Section 394 read with Section 398 IPC. 18. Therefore, the finding recorded by the learned Additional Sessions Judge convicting the appellant under Section 394 read with Section 398 IPC does not suffer from any illegality and does not call for interference and, therefore, the same is upheld. 19. In the result, the appeal, being devoid of any merit, is liable to be and is hereby dismissed. It is stated that appellant Loknath is in jail. He is entitled for set off under Section 428 Cr.P.C. Appeal Dismissed.