Janjgir-Champa, Chhattisgarh v. 1 - State of Chhattisgarh Through Station House Officer
Case Details
1 2025:CGHC:3388-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1594 of 2019 1 - Dinesh Netam @ Deenu @ Dayano S/o Ramji Netam Aged About 32 Years Resident Of Sumedha Police Station Bankimongra, District Korba , Chhattisgarh..... (In Jail), District : Korba, Chhattisgarh 2 - Pushpendra @ Pushpendranath @Manish Chouhan@Manoj@ Pappu@ Papa S/o Shatruhan Lal Chouhan Aged About 35 Years Resident Of Darrabhata, Police Station Baradwar, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through Station House Officer Police Station Malkharouda , District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Ajay Ayachi, Advocate. For Respondent(s) : Mr. Malay Kumar Jain, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 20/01/2025 1. The present appeal has been filed by the appellants under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the impugned judgment of conviction and sentence dated 13.09.2019, passed by 2 Learned Second Additional Sessions Judge, Sakti, District- Janjgir-Champa, Chhattisgarh in Sessions Case No. 224/2014, whereby the appellants have been convicted and sentenced for the offence in the following manner:- Appellant No. 1. Conviction Sentence U/s 397 of I.P.C. RI for 14 years, with fine of Rs. 5000/-, in default of payment of fine Additional Imprisonment for 06 months. U/s 27 of Arms Act RI for 7 years, with fine of Rs. 5000/-, in default of payment of fine Additional Imprisonment for 06 months. Appellant No.2. U/s 394/34 of I.P.C. R.I. for 10 years, with fine of Rs. 5000/- in default of payment of fine further S.I. for 06 months. All the sentences will run concurrently 2.
Legal Reasoning
Brief facts of the case are that on 27.08.2008 at about 02:00 p.m. when the complainant Rajkumar Sahu (PW-14) was going to Sakti along with Jagdish Rai (PW-3) to deposit the total amount of Rs. 4,58,276/- which was collection of 7 - 8 days of sell of patrol of Radhavallabh Service Station, Dhabhara, by his motorcycle, near village Karrapali, Main road the accused persons came there by another motorcycle from back side, they over-taked them and started assaulting by sword. By their assault he along with Jagdish Rai fell down from the motorcycle and when Jagdish Rai was trying to run along with the cash amount, the accused person chased him and looted the bag in which the cash amount of Rs. 4,58,276/- was there. After looting the said amount the accused persons fled away by their motorcycle towards Sakti. The FIR Ex.-P/1 was lodged by PW-14 Rajkumar Sahu against the unknown persons for the offence under Section 394 of I.P.C. The complainant was being sent for his medical examination to Community Health Centre, Sakti
Legal Reasoning
where PW-10 Dr. Smt. Chandrakiran Singh has medically examined the victim and gave report Ex.-P/11. During his medical examination the doctor has noticed the following injuries:- 3 (i) Abrasion over right wrist 3.5x 2cm (ii) Burn mark over right foot 6cm over the medial part 2.5x1.5cm. (iii) Abrasion over dorsum of right foot length 1.0cmx1/4cm (ii) 1.0cmx1/2cm. (iv) Incised wound over right frontal region size 5x1cm x bone deep with fracture of bone chips, active bleeding present. (v) Swelling present over right side of waist. The doctor has opined that the injuries no.1 to 3 are simple in nature and injury no.4 is grievous in nature. The victim was referred to higher centre for further treatment and thereafter he was shifted to CIMS, Bilaspur where he was hospitalized and after taking treatment, he was discharged on 04.09.2008. 3. The numbered FIR Ex.-P/23 was recorded at police station, Malkharouda. Spot map Ex.-P/24 was prepared by the police and Ex.-P/4 was prepared by the Patwari. 4. During the investigation of the present case the appellant No.1 Dinesh Gond was taken into custody for the offence of Crime No. 79/2009 registered at police station Malkharouda, District Janjgir-champa for the offence under Sections 394, 307 and 34 of I.P.C. and Section 25 and 27 of the Arms Act and his memorandum statement Ex.-P/8 was recorded on 04.07.2009. In his memorandum statement he disclosed about the present incident also that he committed the offence along with his friend Pushpendra Chouhan and Bablu @ Gulab Singh, thereafter, the appellant no.2 Pushpendra @ Pushpendranath @ Manish Chouhan @ Manoj @ Pappu @ Papa have also been taken into custody in Crime No. 07/2009 registered at police station Sakti, District Janjgir-champa for the offence under Sections 397/302, 120-B of I.P.C. and 25 and 27 of the Arms Act and his memorandum statement Ex.- P/22 was recorded on 19.07.2009 in which he disclosed various incidents which they have committed including the present offence of loot. 5. Considering the evidence against the present appellant Pushpendra @ Pushpendranath, the memorandum statement Ex.-P/1 was recorded in the 4 present case also on 26.08.2009 in which he disclosed the manner in which they committed the offence and looted cash amount of Rs. 4,58,276/- from the complainant. From the appellant Dinesh Gond an old sword has been seized from shrubs under the water at Khartal canal culvert vide seizure memo Ex.-P/9. The seized weapon of offence was sent for its query report to the doctor who after its examination gave query report Ex.-P/13 and opined that the injury no. 4 found on the body of the victim Rajkumar Sahu could have been caused by the said sword. The appellant no.1 Dinesh Netam was put to test identification parade on 03.07.2009 which was conducted by the Tahsildar, Malkharouda, and the identification memo Ex.-P/2 was prepared and the complainant has duly identified the appellant Dinesh Netam. The appellant no.2 Pushpendra @ Pushpendranath have also been put the test identification parade on 26.08.2009 which was conducted by the Tahsildar, Sakti and the appellant Pushpendra Chouhan has also been identified by Jagdish Rai and the test identification parade memo Ex.-P/3 was prepared. The appellant Pushpendra has also been identified by the complaint Rajkumar on 26.08.2009 and separate identification memo Ex.-P/19 was prepared by the Tahsildar, Sakti. 6. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed against the appellants for the offence under Section 394, 326 of I.P.C. and Section 25 and 27 of the Arms Act, before the learned Judicial Magistrate First Class, Malkharouda. The case was committed to the Court of learned Sessions Judge, Janjgir-champa from where the same has been transferred to the learned trial Court for its trial. 7. The learned trial Court has framed charge against the appellants for the offence under Sections 394/34 and 397/34 of I.P.C. and Section 25 and 27 of Arms Act. The appellants denied the charge and claimed trial. 8. Earlier when the charge-sheet has been filed by the police before the learned 5 Judicial Magistrate First Class, the learned Judicial Magistrate First Class had tried the matter by framing the charge under Section 394/34, 324/34 of I.P.C. and Section 25 of Arms Act. After recording evidence of 4 witnesses the learned Judicial Magistrate First Class, Malkharouda after considering that the case falls under Section 397 of I.P.C. as the dangerous weapon like sword has been used in the commission of the offence by which the complainant was injured, he committed the case for its trial to the learned Sessions Court for its trial. Thereafter, the case was received by the learned trial Court and after framing of charge against the appellants the trial of the case was again started before the learned trial Court. 9. In order to prove the charge against the appellants, the prosecution has examined as many as 22 witnesses. Statement of the appellants under Section 313 of Cr.P.C. has also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence and they are innocent. 10. After considering the evidence available on record and hearing the parties the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence this appeal. 11. Learned counsel for the appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The appellants have been arrested in the present case on the basis of evidence available in the other offence whereas there is no nexus of the appellants with the present case. It is only when the actual culprit could not be traced out by the police, to shift the liability upon the present appellants they have been made as the accused persons in the present case. There is no recovery of any cash amount or any incriminating articles from the appellants. The alleged recovery of sword from the appellant no.1 Dinesh Netam is also doubtful that after such a long period i.e. one year the article 6 could not have been found in the condition in which it is said to have been found. The test identification parade has also not been conducted in accordance with law and there are various flaws in conducting the test identification parade. He would further submits that in the FIR it comes that the accused persons were covered their faces then it is very difficult for anyone to identify the accused persons that too after about a year. In alternative he would further submits that the appellants have already remained in jail for sufficient period, therefore, their sentence may be reduced for the period already undergone by them. 12. On the other hand, learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions the evidence of the prosecution witnesses are reliable. It would not be possible to recover the cash amount from the appellant after about a year of the incident. From the memorandum statement of the appellants the facts has been discovered that they committed the offence and threw the weapon of offence in the water which has been seized from the appellant Dinesh Netam. In the test identification parade conducted by the Tahsildar, both the accused persons have duly identified by the complainant. There is no reason for the complainants to false implication of the appellants. After a minute examination of the evidence available on record, the learned trial Court has convicted and sentenced the appellants and the nature of offence and the manner in which it has been committed, the appellants are not entitled for any leniency and their appeal is liable to be dismissed. 13. We have heard learned counsel for the parties and perused the record. 14. PW-14, Rajkumar Sahu is the complainant in the case, he stated in his evidence that on 27.08.2008 at about 02:00 p.m. when he along with Jagdish Rai was going to owner of the patrol pump along with cash amount of Rs. 4,58,276/-, on the way near the village Tavlipali. The appellants came there 7 by another motorcycle and the appellant Pushpendra pulled his hand by which they fell down from the vehicle and then Dinesh Netam assaulted on his head by iron plate. At this stage the learned trial Court has made a note in deposition sheet that the injury on the head of the witness is visible. When his companion Jagdish Rai tried to run away along with the cash, the appellants chased him and then he, in order to save his life, thrown the bag of cash amount and again started running. Thereafter, the appellants took the bag containing cash and fled away by their motorcycle. They immediately came to police station and lodged the report and he was sent for his medical examination to Sakti Hospital, he lodged the report Ex.-P/1. He identified the appellants at Tahsil Office, Malkharouda where identification memo Ex.-P/2 was prepared. During his examination he identified the appellants before the Court also. In cross-examination he remained firm in saying that he saw the appellants when they pulled him and fell down from the motorcycle. He also denied the suggestion that he identified the accused persons on the instance of police. He voluntarily stated that he identified the appellant from the 'Kara' (iron bangle). He also duly proved the identification parade conducted by the Tahsildar and remained firm in saying that he duly identified the appellants. Nothing could be extracted from the evidence of this witness to disbelieve him. 15. PW-3, Jagdish Rai who is the person who accompanied with the complainant Rajkumar Sahu PW-14 at the time of incident. He stated in his evidence that on the date of incident when he along with Rajkumar Sahu were going to State Bank, Sakti and as and when they reached in between Taulipali and Karrapali, two persons came from their back side by their motorcycle, they over taked them and pushed their vehicle by which they fell down. He identified the present appellant Pushpendranath that he is the person who pushed their motorcycle, the person who was the pillion rider was having 8 sword in his hand who inflicted the blow on the head of Rajkumar Sahu by which he received injuries on his head and bleeding was coming out from the injury. He also identified that the appellant Dinesh Netam had given the sword blow upon the victim Rajkumar Sahu at that time they were having Rs. Rs. 4,58,276/- when he tried to running from the place along with the bag of the cash amount, the appellant Dinesh Netam chased and due to fear he left the bag of currency notes on the road and fled away towards Dhabhara to save his life. Thereafter, both the appellants have fled away along with cash amount, he took the victim Rajkumar Sahu to police station, Sakti and hospital. They also informed the incident to the owner of the patrol pump and lodged the report which is Ex.-P/1. The test identification parade was also conducted at Tahsil Office Sakti and he identified both the appellants and identification memo Ex.-P/2 and Ex.-P/3 was prepared. In cross- examination he stated that he was working in the patrol pump of Smt. Rinku Devi at Dhabhra they collected daily transaction amount in the evening, daily rough slip was also got prepared with respect to the daily transactions and instead of depositing it daily, they deposited with the interval and the daily deposit was kept in the house of Khetan. In cross-examination he also remained firm in test identification parade and identification of the present appellants. He also proved the manner in which the test identification was conducted and he identified the accused persons. 16. PW-1, Govind Rai, PW-2, Dujeram who are the witness of memorandum Ex.- P/1. These two witnesses though have turned hostile and not supported the prosecution case but they have admitted their signature in the memorandum statement Ex.-P/1. 17. PW-4, Mahadev is the witness of memorandum Ex.-P/8 and seizure of Ex.- P/9 by which the sword has been seized from the appellant Dinesh Netam. This witness have also turned hostile but has admitted his signature over these documents. 9 18. PW-6, Labhoram is the witness to the test identification parade and memo Ex.-P/2. He has also turned hostile and not supported the prosecution case, however, he too have admitted his signature in the document Ex.-P/2. 19. PW-7 is a motorcycle mechanic who has done the mechanical inspection of the motorcycle and given the report Ex.-P/10. 20. PW-8 Daduram Kariyare is the Patwari who prepared spot map Ex.-P/4 and panchnama Ex.-P/5. 21. PW-9, Awadhram is the witness of the memorandum Ex.-P/8 and seizure of sword Ex.-P/9, on the basis of memorandum statement of appellant Dinesh Netam. He is also the witness of test identification parade of Pushpendranath and the document Ex.-P/3. He is also the witness of panchnama Ex.-P/11. In cross-examination he remained firm in test identification parade and duly supported the test identification parade, memorandum of the appellant Dinesh Netam and seizure made from him. 22. PW-10, Smt. Chandrakiran Singh who medically examined the victim Rajkumar Sahu have duly supported her medical report Ex.-P/11 and proved the injuries found on the body of the victim Rajkumar Sahu. She also proved the query report Ex.-P/13, he also examined the victim Jagdish who too have received injuries and proved his injury report Ex.-P/12. 23. PW-12, Haran Kumar is another witness to the test identification parade memo Ex.-P/2, he also has turned hostile and not supported the prosecution case but he admitted his signature in the said document. 24. PW-13, B. S. Markam was the Tahsildar posted at Tahsil, Office Malkharauda. He conducted the test identification parade on 03.07.2009 at Tahsil Office, Malkharauda in presence of the witnesses Labhoram and Haran Kumar. In the test identification parade the witnesses Rajkumar Sahu and Jagdish Rai have duly identified the appellant Dinesh Kumar. In his cross-examination the defence could not elicited any material which makes his evidence doubtful or unreliable. He proved the process of test 10 identification parade conducted by him. 25. PW-15 Sanjay Khomawar is another Tahsildar who conducted the test identification parade on 26.08.2009 with respect to the appellant Pushpendranath, he stated in his evidence that on 26.08.2009 he conducted the test identification parade of appellant Pushpendranath at Tahsil Office, Sakti and the victim Jagdish Rai have duly identified the appellant Pushpendranath and test identification parade memo Ex.-P/3 was prepared. Awadhram and Govind Ram were the witness of document Ex.-P/3. On the same day the accused Pushpendranath also identified by the complainant/victim Rajkumar Sahu and he also duly identified by him and the memorandum Ex.-P/19 was prepared. In his cross-examination nothing substantive being asked from him to make his evidence disbelieve. He too have duly proved the test identification parade memo. 26. PW-16, Amritlal Sahu is the Assistant Sub Inspector of Police who recorded the unnumbered FIR Ex.-P/12 and sent the victims for their medical examination. 27. PW-17 Smt. Rinku Agrawal is the owner of the patrol pump have stated in her evidence that Jagdish Rai was the manager in her patrol pump and Rajkumar Sahu was the assistant. Jagdish Rai has made her telephonic call and informed that two unknown person have looted their cash amount of Rs. 4,50,000/- when they were coming towards Sakti. 28. PW-18, Anand Agrawal is the husband of PW-17 Smt. Rinku Agrawal and made similar statement as PW-17 has given. 29. PW-19, Dilip Kumar Mitra is the witness of memorandum statement Ex.-P/22 of Pushpendranath. He duly proved the memorandum of Pushpendranath Ex.-P/22. 30. PW-20, Smt. K. Sahu and PW-21, S.R. Parihar are the police Officers have conducted the investigation and proved the procedure they adopted during investigation. 11 31. PW-22, Pradeep Soni is the Medical Officer posted at CIMS, Hospital Bilaspur and proved the injuries found on the body of the victim Rajkumar Sahu and proved the medical reports of the victim Rajkumar Sahu which is Ex.-P/25. He further stated that the victim Rajkumar Sahu was discharged from CIMS, Hospital Bilaspur on 04.09.2008 which has been informed to the police also. He admitted that as per the CT scan report, the injury found on the head of the victim Rajkumar Sahu is simple in nature. 32. Close scrutiny of the evidence makes it clear that on the date of incident when the victim Rajkumar Sahu PW-14 and Jagdish Rai PW-3 were coming towards Sakti along with the cash amount of Rs.4,58,276/- which was the collection of patrol pump of few days, on the way these two appellants came from back side pushed the motorcycle of the victims, when they fell down from the motorcycle, they looted the cash amount of Rs. 4,58,276/- which they were kept in a bag and fled away. During the investigation the accused persons have been arrested, their memorandum statement have been recorded and on the memorandum statement of the appellant Dinesh Netam, one sword has been seized. From the query report of the doctor, it is proved that the injury found on the body of the victim Rajkumar Sahu could have been caused by the said sword. Rajkumar Sahu admitted in the CIMS, Hospital Bilaspur from 27.08.2008 to 04.09.2008. In the test identification parade conducted by the Tahsildar both the accused persons have duly identified by the victims Rajkumar Sahu PW-14 and Jagdish Rai PW-3 and there is no discrepancy in their evidence either with respect to the commission of loot of cash amount or conducted the test identification parade by the Tahsildar and their identification. From the above evidence the prosecution has proved its case beyond reasonable doubt that the appellants had committed loot of Rs. 4,58,276/- from the victims on the alleged date and time of the incident and the learned trial Court has also found that the appellant Dinesh Netam has used deadly weapon/sword and caused and 12 attempted to cause grievous hurt, the victim Rajkumar Sahu committed robbery and further the appellant Pushpendranath has voluntarily causing hurt to the victims in committing robbery in which this Court does not find any perversity or illegality, therefore, we do not find any ground to interfere with the conviction of the appellants for the alleged offence and the learned trial Court has rightly convicted them. 33. Before considering the sentence part, the judgment passed by Hon'ble Supreme Court in the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 is relevant to be consider. The Hon’ble Supreme Court has observed in Para 9 of this judgment that: “9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 34. Considering the law laid down by Hon'ble Supreme Court in the above 13 mentioned case Mohammad Giasuddin (supra) also in the facts and circumstances of the case, further the incident is of the year 2008, also looking to the detention period we deem it fit to reduce the sentence awarded to the appellants for their offences, therefore, the appellant Dinesh Netam is sentenced for the offence under Section 397 of I.P.C. for RI for 07 years with fine of Rs. 5000/- in default of payment of fine further RI for 03 months. The conviction of the appellant Dinesh Netam for the offence under Section 27 of the Arms Act is maintained. However, he has been sentenced for RI for 07 years with fine of Rs. 5000/- in default of payment of fine further RI for 03 months. The conviction of the appellant Pushpendranath for the offence under Section 394 of I.P.C. is also hereby maintained. However, he has been sentenced for RI for 06 years with fine of Rs. 5000/- in default of payment of fine further RI for 03 months. Sentences awarded to the appellant Dinesh Netam shall run concurrently. 35. The appellants are entitled for set-off of their undergone period either during trial or during the pendency of this appeal. 36. With the aforesaid modification/observation the appeal is partly allowed. 37. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 38. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.01.28 14:42:18 +0530