High Court of Chhattisgarh
Case Details
1 2025:CGHC:37624 NAFR RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.08.05 10:23:20 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 723 of 2004 Santosh Kumar S/o Sahettar, aged 35 years R/o Jhigaradogari, P.S. Kukdur, Distt. Kabeerdham (Kawardha) State Of Chhattisgarh Appellant versus Respondent(s) CRA No. 969 of 2004 Bharat Yadav S/o Dashrath Yadav, Aged about 31 years R/o Village Chantidih, bilaspur, P.S. Sarkanda, bilaspur, Tahsil and District Bilaspur (C.G.) State Of Chhattisgarh Appellant Versus Respondent(s) (Cause title is taken from Case Information System) For Appellant in CRA No. 723/2004 : Mr. Anurag Khatri, Advocate For Appellant in CRA No. 969/2004 Mr. Priyanshu Gupta, Advocate For Respondents/State : Mr. U.K.S Chandel, Dy. AG 2
Legal Reasoning
may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: ‘certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and must be’ is long and divides vague conjectures from sure conclusions.’ (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the 12 conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” it was held that conviction cannot be based on conjectures and surmises, and the chain of evidence must be complete. 24. Applying these principles, this Court is of the view that the evidence on record does not establish the guilt of A4 and A6 beyond reasonable doubt. Hence, the benefit of doubt must go to the A4 & A6. 25. In light of the above discussion, this Court finds that the conviction of A4 – Santosh Kumar under Section 414 IPC and A6 – Bharat Yadav under Section 395 IPC is unsustainable in law and deserves to be set aside. 26. Accordingly, both the appeals filed by the appellants Santosh Kumar (A4) and Bharat Yadav (A6) are allowed. The conviction and sentence imposed on them by the judgment dated 06.08.2004 passed by the learned trial Court in Sessions Trial No. 75/2004 are set aside. The appellants are acquitted of all the charges. 27. At this juncture, learned counsel would submit that in the present appeals though both A4 & A6 were released on bail by this Court, however, on account of committing another crime by A4 he has been arrested and as on date he is in jail whereas after release from jail, A6 failed to appear before the Court to mark his appearance and even till today the non bailable warrant issued against him has not been executed. 13 28. In view of the foregoing, so far as A4 – Santosh Kumar is concerned, since he is presently in judicial custody in connection with another criminal case, he shall not be released pursuant to this acquittal but shall remain in custody in connection with that other matter. The concerned Trial Court and Jail Superintendent are directed to take note of this judgment and act accordingly. 29. As regards A6 – Bharat Yadav is concerned, albeit he stands acquitted in the present case, it is noted that a non-bailable warrant has been issued against him due to his non-appearance during pendency of this appeal, his acquittal shall take effect upon his appearance or arrest before the concerned court. The Non-bailable shall remain inoperative in accordance with law until such time. 30. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Rahul/Gowri Sd/- (Bibhu Datta Guru) Judge
Arguments
Hon’ble Shri Bibhu Datta Guru, Judge Order on Board 31/07/2025 Heard. 1. Since both the appeals arise out of Sessions Trial no. 75/2004, therefore, they are being considered and decided together by this common judgment. 2. These criminal appeals preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 06/08/2004 passed in Sessions Trial No. 75/2004 by the II Additional Sessions Judge (FTC), Mungeli, Distt. Bilaspur (C.G.) whereby the appellants have been convicted and sentenced as under:- Name of Appellants Conviction Sentence Santosh Kumar Under Section 414 RI for three years along of the IPC with fine of Rs. 500 with default stipulation. Bharat Yadav Under Section 395 RI for ten years along with of the IPC fine of Rs. 1000 with default stipulation. 3. Out of seven accused persons, in the above mentioned Sessions Trial No. 75/2004, total six accused persons were put under trial namely Riddhigiri (A1), Tukaram (A2), Chandrakumar (A3), Santosh Kumar (A4), Gangaram (A5) and Bharat Yadav (A6). Seventh accused namely; Pardeshi is still absconding. For the sake of convenience, the appellants herein would be referred as per their status before the trial Court. 3 Appeal filed by A1 bearing Cr.A. No. 942/2004 stands abated vide order dated 20/08/2024. Appeal filed by A2 bearing Cr.A. No. 545/2007 stands dismissed having become infructous as he had been released after completing the entire jail sentence. As far as A3 & A5 are concerned, by the impugned judgment, the Trial Court has acquitted them of the charges framed against them. The present appeals preferred by A4 & A6. 4. Case of the prosecution in brief is that on 04.01.03 Complainant- Kamal Kumar Soni and one Sumit kumar Soni, both had gone to weekly market of Bhalukhondra to sell their silver ornaments. Both had gone to the said market on a motor cycle. After the market, they were returning on their motor cycle. After some distance returning from the said market towards Phoolwari, they saw four persons standing on the road, armed with lathis wearing, full pant and shirts. These persons stopped them by asking in Chhattisgari language and told them that they have cheated the public by selling Dalda metal ornaments in the name of silver ornament. When the Complainant denied that they did not do so, one of the accused took out the key of the motor cycle and threw it in the field. The accused persons tried to drag them towards the fields and when these two objected, the accused persons assaulted them. One of the accused assaulted Sumit on his head and eye and snatched away the bag of ornaments, which he had kept on the rear seat of the motor cycle. In the said bag, various silver ornaments including cash of Rs. 1,500/- were kept, which was snatched by one of the accused and ran away. Subsequently, the Complainant Kamal Kumar and Sumitkumar went 4 walking to a place where some of the labours were working on the road and they narrated the incident to them. These labours then informed that accused Riddhigiri, Tukaram, Bharat, Pardeshi and maternal uncle of Tukaram all residents of village Gorakhpur have looted them. Subsequently, the Complainant lodged the report before the Police Station Mungeli and based on the above report, offence under Section 394/34 of the IPC was registered. As the incident had taken place within the jurisdiction of Police Station Lapur, the complaint registered in zero number and subsequently, the case diary was sent to Police Station Lalpur through constable. Thereafter, the FIR No. 03/2003 was registered and the investigation was commenced. During the pendency of investigation, in Pandariya Police Station, an offence under Section 102 Cr.P.C was registered bearing crime No. 01/03, wherein various silver ornaments were seized. As the ornaments were relating to the offence registered at Police Station Lalpur, the seized ornaments were transmitted to the Police Station Lalpur and the FIR No. 01/03 was merged with FIR No. 03/03. During the course of investigation, the appellants were arrested. The complainant- Kamal Kumar and Sumit Kumar were medically examined and their statement were recorded. After completing the investigation, a charge-sheet under Sections 395, 412 & 414 of the IPC was filed before the concerned Court. After framing the charges, the same were read over to the appellants which they denied and claimed to be tried. 5 In order to bring home the offence, the prosecution has examined 19 witnesses in its support. Statement of the accused/appellants under Section 313 Cr.P.C were recorded, wherein they have pleaded their innocence and false implication in the matter. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 06/08/2004 convicted and sentenced the appellants (A4 & A6) as mentioned in paragraph one of this judgment. Hence, this appeal. 5. Mr. Anurag Khatri, learned counsel appearing on behalf of A4 would submit that so far as allegation of section 414 IPC on A4 is concerned, he has been falsely implicated in this case. The only evidence against him is the statement of PW5 Virendra Singh Thakur, who claims that A4 came with another person to sell the ornaments to one Chandra Kumar, however, Chandra Kumar, a vital link in the chain of evidence, has not been examined. In absence of corroboration, this sole uncorroborated statement cannot form the basis of conviction under Section 414 IPC. Moreover, PW3, PW4, and PW6, all material witnesses have turned hostile and did not support the prosecution case. Therefore, the conviction of A4 is bad in law and he is entitled to be acquitted. 6. Mr. Priyanshu Gupta, learned counsel appearing on behalf of A6 would submit that it is clear that he was not identified by any of the co-accused (A1 or A2) in their memorandum statements. Further, the prosecution’s case rests largely on the presumption and suspicion raised by villagers, which is legally insufficient. Conviction under Section 395 IPC requires 6 credible evidence proving involvement in dacoity beyond reasonable doubt such standard is clearly not met here. Further, the prosecution witnesses have turned hostile and have not supported the case of the prosecution. 7. Per Contra, learned counsel for the State would oppose the arguments advanced by the counsel for the respective appellants and submits that there are sufficient material available on record to prove the guilt of the appellants, as such, the conviction is well merited and does not warrant any interference. He would submit that both the appellants are habitual offenders. In these appeals, this Court granted bail to both of them, but they have defied the conditions of the bail order. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. PW1-Kamal Kumar Soni (complainant) has deposed that on 04/01/2003, when he along with Sumit was returning from the market after selling the ornaments, on the way, some persons stopped them and one of them told him that they cheated them by selling the fake ornament. One of the accused assaulted Sumit on his head and eye and snatched away the bag of ornaments, which he had kept on the rear seat of the motor cycle. In the said beg, various silver ornaments including Rs. 1,500/- were kept, which was snatched by one of the accused and ran away. 10. Memorandum statements of the A1 is Ex.P/17. As per memorandum, he has stated that he along with Gangara (A5) , Tukaram (A2), Pardeshi 7 (absconded) & Bharat Yadav (A6) have committed the loot of silver ornaments at Mungeli. In cross-examination, this witness has admitted that he had not seen the A1, A6, A2 & A5 prior to the date of the incident. 11. PW2- Sumit Kumar Soni in his deposition has stated that on 04/01/2003, he was along with the complainant was in the market. They were gone to the market to sell the silver ornament. While returning from the market, they were on motor-cycle, and when they reached Phoolbari, A1 & A2 came and assaulted them by lathis. He further stated that along with A1 & A2, five persons were more. During the identification parade, this witness identified Ridhigir (A1) and Tukaram (A2) only. 12. PW3 - Rikhiram, who is an agriculturist, has deposed that when he was collected tax from the shopkeepers in the weekly market of Bhalukhodara on the date of incident, Sumit Kumar and Kamal Kumar had gone to market about 5’O clock to sell silver ornaments in the weekly market of Bhalukhodara. He recognized Riddhigiri, Tukaram and Gangaram of village Churv Goradnupur but they had not gone to that market. He further deposed that he does not know Tukaram's maternal uncle Bharat Yadav and he also does not know know Pardeshi. He deposed that Sumit Kumar and Kamal Kumar used to close their shops at 5 pm in the evening and they used to go to the market. He did not know anything about the incident. 8 There was no commotion regarding incident after they left the market. This witness has been declared hostile by the prosecution. PW4- Sukhiram, who is an agriculturist, has deposed that he had not seen Soni’s shopkeepers while going on motor cycle. He also deposed that he did not know A1 & A2. 13. PW5- Virendra Singh Thakur, who is also an agriculturist, has deposed in his deposition that he knows Chandra Kumar, who had delivered jewelry to Thana Pandaria which was subsequently seized vide seizure memo Ex.P/7. At that time Raghunathan (PW7) was present in the police station. He deposed that the said jewelry was given by Santosh (A4) to the Chandra Kumar. 14. Memorandum statement of the A2 is Ex.P/18. As per memorandum statement, he has stated that he along with Gangaram (A5), Ridhigiri(A1), Pardeshi (absconded) & Bharat Yadav (A6) have committed the loot of silver ornaments at Mungeli. 15. Ex.P/2 is Test Identification Parade (TIP) of the accused persons, which was done in presence of the witnesses of identification parade. As per the identification Parade, one Sunil Kumar had identified A1 & A2 during the said parade. Analysis: 16. Perusal of the statement of the above witnesses would show that though PW1 Kamal Kumar and PW2 Sumit Kumar supported the version of the assault and dacoity but they could only identify Accused A1 (Riddhigiri) and A2 (Tukaram). Notably, neither of them identified A4 or A6, nor did 9 they state that these appellants were involved in the commission of the offence. Further, PW3- Rikhiram and PW4- Sukhiram, both agriculturists, turned hostile and did not support the prosecution case. PW3- Rikhiram has categorically stated in his statement that he did not know A6 – Bharat Yadav or Pardeshi (absconded), and PW4- Sukhiram disclaimed witnessing the complainants traveling or being assaulted. 17. Apart from this, PW5- Virendra Singh Thakur stated that Santosh Kumar (A4) had allegedly given silver ornaments to one Chandra Kumar for selling, who later handed over to the police. However, the prosecution failed to examine Chandra Kumar, who was a critical link in establishing the origin and identity of the stolen goods. No seizure from A4 was proved. PW6-Gaukaran, cited as a witness to memorandum statements, but he also did not recognize A1 or A2. 18. The only evidence against A4 is the uncorroborated statement of PW5, which alleges that A4 gave ornaments to Chandra Kumar. This statement lacks legal weight in absence of direct testimony or examination of Chandra Kumar. There is no recovery from A4’s possession nor is there any evidence suggesting that A4 knew the property was stolen. 19. It is a settled principle that conviction under Section 414 IPC (dealing with voluntarily assisting in concealing or disposing of stolen property) requires the prosecution to prove that: • • The property in question was stolen. The accused was in possession of the said property. 10 • The accused had knowledge or reason to believe that it was stolen. 20. In the present case, none of these elements are proved beyond reasonable doubt. The failure to examine the only person (Chandra Kumar) who allegedly received the property from A4 fatally weakens the prosecution's case. 21. So far as the evidence against A6 is concerned, the only mention of A6 arises from the memorandum statements of co-accused A1 and A2. It is trite law that a confession or statement made by one co-accused under Section 27 of the Evidence Act is inadmissible against another accused unless corroborated by independent evidence. Though there was TIP but Sunil Kumar had not identified A6 in the said TIP. Neither complainant nor any other witness testified to having seen or recognized A6 at the scene of the crime. No recovery was made from A6 and no circumstantial evidence links him to the offence. The general suspicion raised by villagers or alleged implication in a memorandum statement does not meet the strict standard of proof beyond reasonable doubt, required under Section 395 IPC (dacoity). Moreover, the hostility of key witnesses and lack of credible, admissible evidence renders the prosecution’s case unreliable so far as it relates to A6. 22. The Hon’ble Supreme Court in Kali Ram v. State of Himachal Pradesh (AIR 1973 SC 2773) held that if two views are possible on the evidence one pointing to the guilt of the accused and the other to his innocence the view favorable to the accused must be adopted. 11 23. Similarly, in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, it has underlined the conditions, which must be fulfilled for convicting an accused on the basis of circumstantial evidence and held in para-153 as under : “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It