Kawardha (Kabirdham), Chhattisgarh v. State of Chhattisgarh Through Station House Officer Kawardha, District : Kawardha
Case Details
1 / 7 2025:CGHC:17607 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1350 of 2023 Mahesh Patil S/o Jailal Patil Aged About 20 Years R/o Village- Bhimauri, Thana- S. Lohara (Sahaspur Lohara), District : Kawardha (Kabirdham), Chhattisgarh. --- Appellant(s) versus State of Chhattisgarh Through Station House Officer Kawardha, District : Kawardha (Kabirdham), Chhattisgarh. --- Respondent(s) CRA No. 1449 of 2023 Durgesh Nishad S/o Shyam Lal Nishad Aged About 25 Years R/o Village - Bhimauri, Thana - S. Lohara (Sahaspur Lohara), District - Kabirdham (Chhattisgarh) --Appellant(s) Versus State Of Chhattisgarh Through Station House Officer - Kawardha, District - Kabirdham (Chhattisgarh) --- Respondent(s)
Legal Reasoning
For Appellants : Mr. Gautam Khetrapal, Advocate with Mr. Bhupendra Shrivas, Advocate. For State : Mr. Swajeet Ubeja, PL. Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 11.04.2025 2 / 7 1. Challenge in these criminal appeals is to impugned judgment of conviction and order of sentence dated 23.06.2023 passed by learned Session Judge, District : Kawardha (Kabirdham), (CG), in Session Trial No.9/2020, whereby the appellants stand convicted and sentence as under: Conviction Sentence Under Section 397 7 years Rigorous imprisonment. of the IPC. 2. Case of the prosecution, in brief, is that on 15.12.2019 at 11.00 am, when victim (Gaya Bai) was at agricultural field, two unknown persons came there on motorcycle and asked her to pluck the pods of Rahar राहर की फली) and bring it. When victim was plucking the pods of Rahar ( in the field, one of them pressed her mouth forcefully and other one has cut her ears by means of blade and snatched her gold earrings (worth Rs. 30,000/-) and, thereafter, they fled away from the spot. Based upon report lodged by victim/complainant, FIR was registered against unknown persons for offence under Section 394 IPC. During investigation, appellant/Mahesh Patil was arrested on 01.01.2020, however, appellant/Durgesh Nishad was arrested on 04.01.2020 in the aforementioned crime/offence and on the basis of memorandum statement of accused/Durgesh Nishad, one motorcycle and razor was recovered. 3. On completion of investigation, challan/charge sheet was filed against the appellants based upon which, trial Court framed the charge against them for offence under Section 397 of IPC. 3 / 7 4. The prosecution in order to prove its case examined as many as 10 witnesses, whereas the appellants-accused in support of their defence not examined any witness. Statement of appellants (accused) were recorded under Section 313 of CrPC in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. 5. After hearing learned counsel for the parties and appreciating the evidence/material available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellants in the manner as described in Para-1 of this judgment. Hence this appeal. 6. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. 7. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the evidence available on record, therefore, it deserves to be set-aside. Prosecution has failed to prove the ingredients of alleged offences as there was no any independent eye-witness of the alleged incident, though the alleged offence/crime alleged to have been committed on day light. Trial Court convicted the appellants solely based upon memorandum statement of accused/ Durgesh Nishad. There is no any corroborative piece of evidence to show that the alleged offence/crime was committed by the appellants, further prosecution witnesses have failed to support the prosecution case. The gold earrings (worth Rs.30,000/-) alleged to be looted/snatched from the victim, has not been seized from the accused persons. To establish the offence/crime committed by the appellants, prosecution ought to have independently established that the present 4 / 7 applicants have used the deadly weapon and caused grievous hurt to the victim, however, neither the deadly weapon was seized nor it has been established that out of the two accused persons, who assaulted the victim by the deadly weapon (razor) at the time of committing robbery or dacoity. There are many contradictions, omission and improvement in the evidence prosecution witnesses. Hence, looking to the entire evidence/material, appellants may be acquitted from the aforementioned offence/crime, giving benefit of doubt. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in case of Dilawar Singh versus State of Delhi, 2007 (12) SCC 641. Alternatively, it is argued that if the Court finds that alleged incident has been committed by the appellants, then considering the age, detention period of appellants i.e, since the year 2020 and further the fact that they are not having any previous criminal incident, sentence awarded to appellants be reduced to the period already undergone by them. 8. On the other hand, learned counsel for the State supporting the impugned judgment would submit that based on material/evidence available on record, trial Court has rightly passed the impugned order/judgment and convicted the appellants for the aforementioned offence/crime. Hence, present appeals being sans merits are liable to be dismissed. 9. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 5 / 7 10. Question arises before this Court whether Section 397 of IPC is applicable in this case or not ? 11. For ready reference, Sections 397 of IPC reads as under: “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”. 12. Section 397 of IPC, "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused. 13. PW-1/Victim in her evidence has stated that on the date of alleged incident, when she was guarding the agricultural field, appellants- accused came there on motorcycle and asked her to pluck the pods of Rahar ( राहर की फली) and bring it to them. When she was plucking the pods of Rahar, accused pressed her mouth forcefully from the back side, cut her ears by blade and looted/snatched her gold earrings, however, she could not explain that out of two accused persons, who used the deadly weapon (blade/razor) at the time of robbery/dacoity. 6 / 7 14. Test Identification Parade (TIP) has been conducted by Smt. B. Chouhan, Naib Tahsildar (PW-5) in which victim (PW-1) has identified the appellants/accused. PW-5/Naib Tahsildar in her evidence has also supported said fact that in the TIP, victim has recognized the appellants/accused. 15. PW-8/Dr. Aadesh Kumar Bagde (medical officer) in his evidence has stated that he found the injuries upon ears of victim during examination, which may be caused from the sharp weapon. 16. It is pertinent to mention here that FIR has been lodged against the appellants under Section 394 of IPC, however, trial Court framed the charges against them under Section 397 of IPC. As per finger print report (Ex.P-42), fingure prints of appellant-accused (Durgesh Nishad) was also found present at the place of incident. 17. It is also pertinent to mention here that during arguments, learned State Counsel submits that though there is evidence available on record that appellants have committed the alleged offence/crime, but from the evident/material, it is not proved that who used the deadly weapon at the time of committing the alleged offence.
Decision
18. For the foregoing reasons/discussions, this Court is the opinion that the trial Court has committed an error in convicting the appellants for offence under Section 397 of IPC, however, as per evidence/material available on record, appellants should be convicted under Section 394 of IPC instead of Section 397 of IPC. 19. Accordingly, the conviction of appellants under Section 397 of I.P.C is converted into Section 394 of I.P.C and they are sentenced to undergo RI for 04 years. 7 / 7 20. In the result, both criminal appeals are partly allowed to the extent indicated herein-above. 21. Record of case be sent back forthwith with a copy of this order for information and necessary action/compliance. Sd/- (Arvind Kumar Verma) Judge J/-