Nafr High Court
Case Details
1 2025:CGHC:44669 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 919 of 2003 1. 2. Bholu alias Vipra Chand, S/o Kewal Rawat, aged around 19 years, R/o N.P.A. Road, Zone 3, Khursipar Bhilai, Police Station – Chhawani, District Durg (C.G.) Sanjay Kumar, S/o Gulab Singh, aged about 19 years, R/o Subhash market, Khursipar, Bhilai, Police Station – Chhawani, District Durg (C.G.) Versus ---- Appellants State of Chhattisgarh Through : S.H.O. Police Station – Chhawani, Bhilai, District Durg (C.G.) ---- Respondent And CRA No. 791 of 2004 P. Mohan Rao, S/o Papiya Telagu, aged 19 years, R/o Subhash market, Zone – 3, Khursipar-Bhilai, P.S. Chhawani, District Durg (C.G.) ---- Appellant Versus State of Chhattisgarh Through : S.H.O. Police Station – Bhilai - 3, District Durg (C.G.) ---- Respondent 2 For Appellants : Mr. S. P. Sannat, Advocate For Respondent : Ms. Nandkumari Kashyap, P.L. Hon'ble Smt Justice Rajani Dubey Judgment On Board 02/09/2025 1. Since the aforesaid two appeals arise out of the same judgment of conviction and order of sentence dated 21.07.2003 passed by the 1st Additional Sessions Judge, Durg (C.G.), in Sessions Trial No.20/2003, they are being
Decision
heard together and disposed of by this common judgment. 2. The appellants have been convicted and sentenced as under :- CONVICTION SENTENCE In CRA No.919/2003 Under Section 395 read with section 397 of IPC In CRA No.791/2004 Under Section 395 of IPC R.I. for 07 years with fine of Rs.500/- each, in default of payment of fine amount to undergo additional R.I. for 01 month R.I. for 07 years with fine of Rs.500/- , in default of payment of fine amount to undergo additional R.I. for 01 month. 3. As per the prosecution case, on 22.10.2002 at around 10.00 PM, when complainant Karamjeet Singh (PW-3), after 3 closing his Spare Parts shop situated at Transport Nagar, was coming to his home at New Khursipar in his vehicle Maruti Van, on the way, one boy came in front of his car and to beg side he blew horn but that boy did not move aside and he slowed down his car. The boy peeped inside his car and, at the same time, 4-5 more boys covering their faces with cloth also came there, pulled him down from the car and demanded whatever he has. The accused/appellants took Rs.8000/-, traffic card and other documents from right pocket of his pant and assaulted him, as a result of which, he sustained injuries on his both wrists, left hand and on abdomen. The accused/appellants also broke the glass of his car and ran away from the spot towards railway line. When the complainant made hue and cry, the nearby people gathered there thereafter, complainant lodged an FIR (Ex.P- 3) in police station Bhilai-3 against unknown persons. The complainant was sent for medical examination to Govt. Hospital, Durg, vide Ex.P-4, where he was examined by Dr. V.R. Meshram (PW-5) and gave his report under Ex.P-4/A noticing three contusions on right upper and left upper arm, four incised wounds on right forearm, right elbow and right side of abdomen. The doctor has opined that the injury Nos. 1, 2 and 6 were caused by hard and blunt object & injury 4 Nos. 3, 4, 5 and 7 were caused by hard and sharp object. During investigation, the accused/appellants were apprehended, they were interrogated and on the memorandum statement (Ex.P-8) of appellant Bholu in CRA No.919/2003, Rs. 500/-, cloth by which he had covered his face at the time of incident and sword were seized vide seizure memo Ex.P-12. On the memorandum statement (Ex.P-9) of accused/appellant Sanjay in CRA No.919/2003, one iron rod, cash of Rs.360/- and cloth by which he had covered his face at the time of incident were seized vide seizure memo Ex.P-14. On the memorandum statement (Ex.P-10) of accused/appellant P. Mohan Rao in CRA No.791/2004, one telephone diary on which the name and address of the complainant were written, one bill of Rajesh Stationery in the name of complainant, one photo behind which name of complainant was written, cash of Rs.500/- and piece of cloth were seized vide seizure memo Ex.P-15. Similarly, on the memorandum statement (Ex.P-11) of one accused Sheikh Shelani, one cheque of Rs.2000/- of State Bank which was issued in favour of Bisansingh, one photo of Balveer Singh, one currency note of Rs.500/- and red- yellow colour cloth were seized vide seizure memo Ex.P-13. The accused/appellants were arrested and arrest memo 5 was prepared vide Ex.P-16, P-17, P-18 and P-19. The accused/appellants were put to identification vide Test Identification Parade (Ex.P/2) on 25.10.2002 and they were duly identified by complainant Karamjeet Singh (PW-3). After filing of the charge sheet, the trial Court framed charges under Sections 395 read with Section 397 of IPC against the accused/appellants. 4. So as to hold the accused/appellants guilty, prosecution examined as many as 09 witnesses in support of its case. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellants as mentioned in para-2 of this judgment. Hence, this appeal. 6. Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence passed by the learned trial Court is bad in law as well as on facts. The learned trial Court erred in appreciating the material available on record and wrongly held the appellants 6 guilty of committing the offence. The learned trial judge has erred in not believing the contradictions and omissions in the statements of the prosecution witnesses. Learned counsel also submits that the prosecution has failed to prove the seizure from the appellants and it was also not proved beyond reasonable doubt that the seized amount was looted one. It is also clear that the charge sheet was filed against three accused persons only and the learned trial Court convicted the three accused persons, as such, the offence of dacoity is not made out against the appellants as there must five or more persons for recording conviction of an offence of robbery. So, the impugned judgment is liable to be set aside. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsel that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the appellants and no interference is called by this Court. Both the appeals being without any merit are liable to be dismissed. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of learned trial Court that the learned trial Court framed charges under Section 395 read 7 with section 397 of IPC against the accused/appellants, and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellants in CRA No.919/2003 under Section 395 read with section 397 of IPC and appellant in CRA No.791/2004 under Section 395 of IPC. For ready reference, Sections 395 and 397 are reproduced as under :- “395. Punishment for dacoity. – Whoever commits dacoity 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.” “397. Robbery, or dacoity, with attempt to cause death or grievous hurt. – If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or 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 .” 10. “Dacoity” is defined in Section 391 IPC, which is reproduced as under :- “391. Dacoity. – When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a 8 robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, a attempting or aiding, is said to commit “dacoity”. 11. It is clear from the definition of dacoity that when five or more persons conjointly commit or attempt to commit a robbery, every person so committing, attempting or aiding is said to commit dacoity. It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons, but is is clear from the record of the learned trial Court that charge sheet was filed only against three accused persons. The FIR (Ex.P-3) was lodged against 4-5 unknown persons but after investigation, the police filed charge sheet only against three accused/appellants herein and the learned trial Court also convicted three accused persons for the offence under Sections 395 and 397 of IPC. 12. The Hon’ble Apex Court in the matter of Manmeet Singh @ Goldie Vs. State of Punjab reported in (2015) 7 SCC 167 held in paras 32, 33 and 34 as under :- “32. With reference to the offence of dacoity under Section 391 IPC in particular and the import of Section 149 IPC, this Court in Raj Kumar v. State of Uttaranchal3 had propounded that in the absence of a finding about the involvement of five or more persons, an accused 9 cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum of their presence either is not disputed or is clearly established, but the court may not be able to record a finding as to their identity resulting in their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or participation of five or more persons, less than five persons cannot be convicted for an offence of dacoity. 33. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined in Section 149 IPC in Section 396 IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under Section 396 IPC permitting conviction of any one or more members thereof even if others are acquitted for lack of their identity. In the absence of such an assembly of five or more persons imbued with the common object of committing dacoity with murder, any member thereof cannot be convicted for the said offence irrespective of his/her individual act of murder unless independently and categorically charge for that offence. 34. As adverted to hereinbefore above, the 10 prosecution has completely failed in the instant case to either prove the participation of five or more persons in the commission of the offence or establish their identity. In that view of the matter having regard to the above principle of law as authoritatively laid down by this Court and in the absence of a singular charge under Section 302 IPC against the appellant sans the assembly, we are of the unhesitant opinion that his conviction for dacoity with murder punishable under Section 396 IPC, in the facts and circumstances of the case, cannot be sustained in law. The attention of the courts below we understand had not been drawn to this vital and determinative facet of the case.” 13. Further Hon’ble Apex Court in the matter of Raj Kumar alias Raju Vs. State of Uttaranchal reported in (2008) 11 SCC 709 held in para 21 and 35 as under :- “21. It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order 11 their acquittal observing that their identity is not established. In such case, conviction of less than five persons – or even one – can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity. 22. xxxx 23. xxxx 35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial Court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412 IPC. The conviction of the appellant herein for an offence punishable under Section 396 IPC, therefore, cannot stand and must be set aside.” 14. In the instant case, complainant Karamjeet Singh (PW-3) has stated that on the date of incident, when he was coming to his house after closing his shop, on the way, one boy was 12 ahead of his car and to beg side he blew horn but when that boy did not move aside, he slowed down his car. Thereafter, the boy peeped inside his car and when that boy found him alone in the car then 4-5 boys also came there covering their faces with cloth, assaulted him and looted cash of Rs.8,000/- and other documents from him. Thereafter, he lodged an FIR (Ex.P-3). He has also stated in para 4 that after receiving the call from the police that they have arrested the accused persons, he went to police station, signed identification panchanama (Ex.P-2) and identified the accused persons, but this witness, in para 6 of his cross- examination, has specifically admitted that the accused persons present in the Court were not involved in committing robbery with him. 15. Looking to the aforesaid testimony of complainant Karamjeet Singh (PW-3), the identification memo (Ex.P-2) creates doubt particularly when he specifically admitted that the accused persons present in the Court were not involved in committing the robbery with him, but the learned trial Court did not appreciate the testimony of complainant (PW- 3) in its true perspective and convicted the appellants under Sections 395 and 397 of IPC. 16. For the reasons set out above, the prosecution has utterly 13 failed either to prove the participation of five or more persons in commission of offence or establish their identity. Therefore, in my considered view the conviction and sentence of appellants is being repugnant to letter and spirit of Sections 395 and 397, the same cannot be sustained. 17. In the result, the aforesaid both the appeals are allowed. Impugned judgment of conviction and order of sentence dated 21.07.2003 passed by the 1st Additional Sessions Judge, Durg (C.G.), in Sessions Trial No.20/2003, is hereby set aside. The accused/appellants are acquitted of the charges and hereby ordered to be set at liberty forthwith, if not required in any other case. 18. The appellants are on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (481 of the B.N.S.S.), the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned 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. 14 19. 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/- (Rajani Dubey) JUDGE Pekde Digitally signed by VIJAY BHARATRAO PEKDE