Nafr High Court
Case Details
1 2025:CGHC:48644 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No.131 of 2007 1 – Milan, S/o Biselal, aged about 23 years, Occupation Stitching work, R/o Sankra, PS Somni, District Rajnandgaon (C.G.) 2 - Barsan S/o Purandas Aged About 21 Years Occupation Nothing, R/o Sankara, P.S. Somni, District Rajnandgaon (C.G.). versus Appellant (s) 1 - State Of Chhattisgarh through PS Bori, District Durg (C.G.) Digitally signed by R NIRALA For Appellant (s)
Legal Reasoning
: Mr. Anup Majumdar and Mr. Basant Dewangan, For Respondent(s) : Mr. Afroj Khan, PL Advocates Respondent(s) Hon’ble Smt. Justice Rajani Dubey Judgment on Board 22/09/2025 1. The present appeal is directed against the judgment of conviction and order of sentence dated 15.01.2007 passed by the learned 1st Additional Session Judge, Durg (C.G.) in Session Trial No.274/2005, whereby the appellants have been convicted under Sections 450, 394 read with Section 397 and Section 324/34 of IPC and sentenced to undergo RI for 5 years with fine of Rs.500/-, 2 RI for 7 years with fine of Rs.500/- and RI for 1 year, respectively, with default stipulations. 2. The prosecution case, in brief, is that on 11.08.2005 at about 1- 1:30 a.m. in night, the appellants entered in the house of the complainant Kavita Bai and assaulted the complainant and her son Mukesh as a result of which they sustained severe injuries and thereafter appellants looted Rs.40,000/- from the possession of the complainant. Thereafter a case was registered against the accused and they were arrested. After completion of investigation, the charge sheet was filed against the appellants before the Magistrate concerned. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. The learned Trial Court did not appreciate the oral and documentary evidence properly and did not consider omissions and contradictions in the statements of the prosecution witnesses. The prosecution witnesses have failed to prove that the persons, who committed house trespass and looted the house of the complainant, were the present appellants. At the time of incident it was dark and the face of the persons, who entered the house, was covered. In First Information Report also the complainant has not stated name of one of the appellants Barsan. The exaggerated statement of the complainant can not be relied upon for connecting both the appellants. The prosecution has also 3 not conducted identification parade for revealing the real culprit who is behind the whole episode. The Court below ought not to have relied upon the statements of Baratu (P.W.-2) and Dhruv Das (P.W.-9), who are heresay witnesses of the incident. The injuries sustained by the complainant and her child by sharp edged weapons can not be attributed to them despite that the learned Trial Court has wrongly convicted the appellants. It is clear from the statement of witnesses that the offence under Section 397 of IPC is not made out against the appellants and looking to the statement of witnesses and documents, only Section 392 of IPC can be made out against the appellants. Therefore, the impugned judgment is liable to be set aside. Alternatively, They submit that the incident took place in the year 2005, this appeal is pending since 2007, the appellants remained in jail for more than 2 years and have never misused the liberty granted by this Court and presently they are aged more than 40 years, therefore, the appellants may be sentenced to the period already undergone by them. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of K. Balaji vs State represented by Inspector of Police, passed in CRA No.1157/2018 vide judgment dated 30.01.2025. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly 4 convicted the appellant, as such no interference is called for. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 450, 398 & 324 of IPC against the appellants. After appreciation of oral and documentary evidence available on record, the learned Trial Court convicted the appellants, as mentioned in para 1 of the judgment. 7. Section 394 of IPC provides as under:- “394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 8. Section 397 of IPC provides as under:- “397. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.” 9. The complainant PW-1 Kavita Bai stated that on the date of incident, both the appellants/accused entered into her house and assaulted her and her son Mukesh and looted money from her. She identified both the accused. 5 10. Barato PW-2 and Komal Das PW-3 stated that Kavita Bai told the whole incident to them in the same night and they also saw injuries of Kavita Bai and Mukesh. 11. Dr. S. P. Kesharwani – PW-11 examined Mukesh and Kavita and found injuries of incised wound in their leg, hand and stomach and gave his report vide Ex-P/12, P/13 & P/14. The learned Trial Court also minutely appreciated the oral and documentary evidence and rightly convicted the appellants under Sections 450 and 324 of IPC. 12. The Hon’ble Supreme Court in the matter of K. Balaji (supra) held in paras 11 & 12 as under:- “11. The contention of learned counsel for the appellant is that there is no proof by the prosecution that the knife which was sought to be used by the appellant herein was a deadly weapon. Consequently, the charge under Section 397 was incorrectly framed as against the appellant herein. Also, the offence has not been proved against the appellant, as the knife was not a deadly weapon. 12. We find force in the said submission of learned counsel for the appellant and hence we find that even if the charge under Section 397 of the IPC has been framed as against the appellant herein, as the knife in question cannot be termed to be a deadly weapon within the scope and ambit of Section 397 of the IPC, there is no proof that the appellant had used a deadly weapon. Consequently, the prosecution has been successful in proving the case against the appellant- accused only under Section 392 of the IPC.” 13. In light of the above, the conviction of the appellants under Section 394 read with Section 397 is altered into Section 394 of IPC only. Consequently, the appellants are convicted under Sections 450, 6 394 & 324/34 of IPC. 14. As regards sentence, it is clear that the incident took place in the year 2005, this appeal is pending since 2007, the appellants remained in jail for more than 2 years and have never misused the liberty granted by this Court and presently they are aged more than 40 years of age, therefore, ends of justice would be served if the appellants are sentenced to the period already undergone by them. Accordingly, the appellants are sentenced to the period already undergone by them. 15. The appeal is partly allowed. 16. The appellants are reported to be on bail. 17. Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the Court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 18. The Trial Court’s record along with the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Nirala Rajani Dubey Judge