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2015 Supreme(Chh) 60
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Manindra Mohan Shrivastava, J.
Umendra and Ors. - Appellants
Vs.
State of C.G. - Respondent
Criminal Appeal Nos. 750 of 2010 and 208 of 2012
Decided On : 21.01.2015
For The Appellant :Vimlesh Bajpai, Advocate
For The Respondents:O.P. Sahu, Govt. Advocate
Headnote:
Indian Penal Code - Section 395 - Rigorous Imprisonment - Stated in his evidence - Trial Court - Assailing the correctness and validity of impugned judgment of conviction and the sentence learned counsel for the appellants argued that the prosecution has failed to prove its case beyond reasonable doubt. He submits that the identification of the two appellants is highly doubtful because it was conducted within the jail premises and that too, after 65 days of they having been taken into custody - Prosecution witness has not clearly stated as to on what basis she identified the two appellants. She had earlier stated that one of the accused had a cut mark on his face, whereas, none of the appellants have any cut mark on their faces. It is next contended that the appellants have not been identified by the son of namely – Held, Learned counsel for the appellants have vehemently argued that looking to the totality of the circumstances even if the appellants are found guilty of commission of offence, their conviction may be reduced to the period already undergone by them - Relying upon the judgment of the Supreme Court in the case of Haryana learned counsel for the appellants submits that it was a case of commission of offence under Section 394 and 397 where the accused had come armed with pistol and victims were injured also - He submits that in those circumstances, the sentence of ten years was reduced to five years which the appellants had already undergone - Present is a case where the appellants have been found involved in commission of dacoits by entering dwelling house in the night at about 8:30 and looted a female in the house. While these are the incriminating circumstances at the same time, it is found that the appellants did not fire any gun shot or in any manner cause any injury on the person of the lady or her child. It is also found that the allegation that one of the accused was armed with pistol could not be conclusively proved because the prosecution has not recovered any pistol and from the possession of any of the appellants. The value of gold articles which have been looted is said to be about Rs. 35,000/-. The appellants have already undergone 6 years of imprisonment. Therefore, taking into consideration the totality of the circumstances, the interest of justice would be served if the conviction of the appellants, in the facts and circumstances of the present case, is altered to seven years - It is well settled that even where the recovery is not supported by seizure witnesses, in appropriate cases, the seizure proved by the police officer who carried out such seizure, can be acted upon. It has been examined herein above that two appellants were identified by the victim, therefore, this identification itself is a corroborative circumstance in support of seizure of gold ornament from the appellants – Appeal allowed
Manindra Mohan Shrivastava, J.
1. These two appeals are being decided by this common judgment as both the appeals are directed against impugned judgment of conviction and order of sentence dated 26th August, 2010 passed by 8th Additional Sessions Judge, F.T.C., Durg (C.G.), in Sessions Trial No. 77/2009, whereby the appellants have been held guilty of commission of offence and sentenced as described below:--
Conviction
Sentence
Under Section 395 of IPC
Rigorous Imprisonment for ten years with fine of Rs.500/-, in default of payment of fine further R. I. for one month.
2. Case of the prosecution is that Anjana Pathaniya (PW10) was looted in her dwelling house and information was given to the police who arrived at the spot and recorded dehati nalishi in Ex. P/24. It followed registration of FIR in Ex. P/25 in the police station. In the FIR, Anjana Pathaniya (PW10) stated that on 03.01.2009 at about 8:30 p.m., she was in her house along with her son Ninad, aged about 11 years and while she was going to close the gate, four persons came in and bolted the door from inside. Their faces were open. She was asked to take out valuables stating that nothing would happen to her upon which, she took out a chain, ear-tops and bangles. One of the four assailants was holding a small silver coloured pistol and also holding a hockey stick. Others had picked up stumps and bat kept in the house. She and her son was locked inside the bathroom. After sometime when the accused persons went away, she came out and cried for help and ear-tops, rings were not found. The police, thereafter, carried out investigation and suspecting appellants and five other persons, they were arrested. Their memorandum were taken and it is said that on the basis of the memorandum, looted articles were recovered. The accused persons were subjected to Test Identification Parade and it is said that in the identification parade carried out on 31.03.2009, the two appellants namely -Dilip Sahu and Umed Kumar Pathak were identified by Anjana Pathaniya (PW10). The recovered articles were identified by Anjana Pathaniya (PW10) in the presence of the Executive Magistrate. After completion of usual investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Durg (C.G.) who in turn, committed the case to the Court of Sessions wherefrom it was received on transfer by 8th Additional Sessions Judge, F.T.C. Durg for trial.
3. On the basis of the material contained in the charge-sheet, learned Trial Court framed charges against each of the appellants alongwith other accused on 27.07.2009. The appellants were charged of committing offence under Section 395 IPC on the allegations that the appellants had looted gold jewelries valued Rs. 35,000/- on gun point. The appellants having abjured guilt, they were put to trial. During trial, out of seven accused, two accused namely -Kamlesh Chandravanshi and Raju Nishad absconded. Relying upon the evidence led by the prosecution, learned Trial Court held the two appellants guilty of commission of offence and convicted each of them for commission of offence under Section 395 of IPC and sentenced them as described above. Remaining three accused namely-Bhishmdev, Hemant Sahu and Gopeshwar were acquitted.
4. Assailing the correctness and validity of impugned judgment of conviction and the sentence, learned counsel for the appellants argued that the prosecution has failed to prove its case beyond reasonable doubt. He submits that the identification of the two appellants is highly doubtful because it was conducted within the jail premises and that too, after 65 days of they having been taken into custody. The prosecution witness Anjana Pathaniya (PW10) has not clearly stated as to on what basis she identified the two appellants. She had earlier stated that one of the accused had a cut mark on
