Ajeem Ansari vs State Of Chhattisgarh on 13 November, 2024

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Chattisgarh High Court

Ajeem Ansari vs State Of Chhattisgarh on 13 November, 2024

Deepu @ Deepak Tirkey, son of Patras Tirkey, aged about 27 years, occupation - Agriculturist, resident of Village Tengari, P.S. Bhandariya, Distt. Garha Jharkhand, present resident of Village Shahpur, PS Chando, Distt. Surguja (CG)

----Appellant Versus State Of Chhattisgarh through Police Station Ramanujganj, Distt. Surguja (CG)

---- Respondent 3 / 13 CRA No. 452 of 2009 Helaru @ Helarus Aged About 28 Years, S/o Silbanus, Occupation - Agriculturist, R/o Village - Ugra, PS Bhandaria, District Garhwa (Jharkhand)

----Appellant Versus State Of Chhattisgarh Through Station House Officer, Police Station, Ramanujganj, District Surguja (CG)

---- Respondent For Appellants in CRA: Mr. Ishan Verma, Advocate. No.558/2003 For Appellants in CRA: Mr. Navneet Kumar Yadav, Advocate Nos. 660/2003 and 452/2009 For Respondent/State : Mr. Ratan Pusty, Govt. Advocate Hon'ble Smt. Justice Rajani Dubey C A V Judgment Since in all these appeals the appellants have challenged the legality and validity of the judgment of conviction and order of sentence dated 26.4.2003 passed by Additional Sessions Judge, Link Court, Ramanujganj, Distt. Surguja (CG) in ST No.9/94, they are being disposed of by this common judgment. By the impugned judgment, each of the appellants stands convicted and sentenced as under:

Conviction Sentence Under Section 395 of Indian Penal RI for seven years, pay a fine of Code. Rs.100/-, in default thereof to 4 / 13 undergo additional RI for one month.

Under Section 397 of Indian Penal RI for seven years, pay a fine of Code. Rs.100/-, in default thereof to undergo additional RI for one month.

Both the sentences were directed to run concurrently.

02. Briefly stated, case of the prosecution is that on 23.8.1993 at around 12 midnight complainant Jokhu was at his house and his son Keshav Prasad, aged about 16 years, was asleep at veranda. Adjoining the said verandah, there is a room where they run a shop. His wife Devmukhi after serving food to the servant when opened the door, at that time some unknown persons, 10 in number, armed with firearm and lathi were standing there who threatened of shooting if they raise alarm. His wife ran into the room and then the complainant ran and closed the door. Though his son also tried to ran into the room but was caught by the dacoits. They started beating him with lathi saying that he is the person who raised alarm by use of mike on 15th August due to which they could not succeed in their plan. Some of them entered there shop and looted bundles of cloths, saris, readymade clothes, blouse, frock, underwear, torch cells, loudspeaker mike, audio cassettes, bicycle and one tin box containing Rs.2000/-. They also took complainant's son with them. However, near Sindur river they left the bicycle. The complainant along with the villagers chased the dacoits. 5 / 13 They left the complainant's son near Sindur river after beating him. Report of the incident was lodged after five house of the incident at 5 am at the police station. Three days after the incident, the police arrested accused Ajeem Ansari and his memorandum was recorded. Thereafter, other accused persons were arrested and pursuant to their memorandum, seizure of looted articles was made. After completion of usual investigation, charge sheet was filed before the concerned jurisdictional Magistrate. Accused Jannat Hussain being 16 years of age, his case was transferred to Juvenile Court. The accused/appellants were charged under Sections 395, 397, 115 of IPC and Sections 25(1)(A) and 27 of the Arms Act to which they abjured their guilt and prayed for trial.

03. In order to prove its case the prosecution examined 17 witnesses in all. Statements of the accused under Section 313 of CrPC were recorded where they denied the incriminating circumstances appearing against them in the prosecution case and pleaded innocence and false implication. However, no witness was examined by them in defence.

04. Learned trial Court after appreciation of the oral and documentary evidence by the impugned judgment convicted and sentenced the accused/appellants as mentioned above. Hence these appeals.

05. Learned counsel for the appellants at the outset contend that charges framed by the learned trial Court under Section 395 and 397 6 / 13 of IPC are not proper and conviction u/s 397 of IPC is also illegal as Section 397 is not for a separate or substantive offence but it deals with enhanced punishment only. They would next submit that the learned trial Court has not properly appreciated the oral and documentary evidence on record while recording conviction of the appellants. In this case, none of the appellants have been identified by the complainant Jokhu Ram (PW-1) or any other witnesses and in the FIR the complainant had initially named one Rijhan as accused thereby casting doubt on the prosecution case from its inception. There are major contradiction in the statements of PWs-1 to 6 including inconsistency regarding the number of dacoits which makes their evidence doubtful. The seizure witnesses (PWs-7, 8, 9, 12 & 13) have not supported the prosecution case. Even otherwise, IO (PW-17) has admitted in his deposition that 95 articles seized were recovered from an open space. This apart, Jokhu Ram (PW-1) identified the seized clothes only after they were pointed out by the investigating officer in police station and this raises a serious doubt as to the reliability of the identification process. The appellants were acquitted of the charges under the Arms Act as no country made pistol or any other firearm was recovered from them. This acquittal under the Arms Act further demonstrates the falsehood of the prosecution's case. Looking the nature and quality of evidence, it is crystal clear that the prosecution has utterly failed to prove its case against the appellants beyond 7 / 13 reasonable doubt and therefore, they deserve to be acquitted of all the charges.

Reliance is placed on the decision in the matter of Kallu @ Ramkumar Vs. State of Madhay Pradesh, 1992 MPLJ 558 and Trimbak Vs. State of Madhya Pradesh, (1953) 1 SCC 397.

06. On the other hand, learned counsel for respondent/State supporting the impugned judgment submits that the learned trial Court after due appreciation of the overall evidence on record has rightly held the appellants guilty and as such, no interference is called for. The instant appeals lack any substance and are thus liable to be dismissed.

07. Heard learned counsel for the parties and perused the material available on record.

08. It is clear from the record of the learned trial Court that the appellants were charged under Sections 395, 397, 115 of IPC and Section 25(1)(A) and 27 of the Arms Act. The prosecution in order to substantiate its case examined in all 17 witnesses. Learned trial Court after appreciation of oral and documentary evidence convicted the appellants under Sections 395 & 397 of IPC while acquitting them of the charge under Section 115 of IPC and Sections 25(1)(A) & 27 of the Arms Act.

09. PW-1 Jokhuram, complainant, states that on the date of incident 15-16 persons armed with firearms were standing outside his house, 8 / 13 he immediately closed the door; his son Keshav was sleeping in the verandah and he was caught by those persons. They tied Keshav and beat him. After one hour, when the dacoits had fled, he opened the door. They had taken away the grocery items, cash and other articles with them. However, he states that he could not see them

10. PW-2 Keshav Prasad states that on the date of incident he was sleeping in the verandah, at that time 10-12 dacoits armed with rifles came to their house and asked him to get the door opened but he did not do so. They after breaking open the door of their adjacent shop looted the clothes and grocery items. They also beat him and took him with them towards forest side and there also beat him with club. However, as the villagers were chasing them, they left him. He states that he identified the accused persons in the jail vide Ex.P/3 and he identified accused Ajeem, Ali Hussain, complainant and Ishaq. In cross-examination he admits that he identified four accused persons but he did not see them before. He admits that the dacoits had covered their faces.

11. PW-3 Devmurti also admits that the dacoits had covered their faces. PW-5 Satyanarayan states that the dacoits caught him on the way and beat him. He states that he cannot tell whether the accused present in the Court were the dacoits or not. In para 2 of his deposition it is mentioned that this witness after minutely seeing the accused persons for 4-5 minutes stated that none of them was dacoit. PW-6 9 / 13 Fagua also did not identify the accused persons. PW-7 Shivprasad only admitted his signature on Ex.P/5 and P/6. The other witnesses PW-12 Kanhai Ram @ Khedu and PW-13 Shankar Ram only admitted their signature on Ex.P/9 to P/15 but denied any seizure and memorandum. The prosecution declared them hostile and cross- examined but they denied all the suggestions of the prosecution.

12. Since the prosecution did not get the firearm examined and did not file any prosecution sanction of District Magistrate, the learned trial Court acquitted the accused persons under Sections 25(1)(A) and 27 of the Arms Act. Likewise for want of evidence to substantiate the offence u/s 115 of IPC, the appellants were also acquitted of the said charge. However, despite there being no cogent and conclusive evidence, merely on the basis of evidence of the investigating officer, the learned trial Court held the appellants guilty under Sections 395 & 397 of IPC. It is clear from the evidence of all the material witnesses including the complainant that at the time of incident all the dacoits had covered their faces. PW-2 Keshav Prasad admits that before TIP he had not seen the accused persons anywhere.

13. The High Court of Madhya Pradesh in the matter of Kallu @ Ramkumar (supra) observed in para 11 of its judgment as under:

"11. Learned trial Judge has sentenced the accused persons under sections 395 and 397 of the Indian Penal Code separately. Section 397 of the Indian Penal Code 10 / 13 deals with the enhanced punishment only. It is not a substantive offence. The substantive offence may be robbery or dacoity. In this case, the substantive offence as proved, is dacoity and, therefore, there ought to have been only one sentence. It is a different matter that the enhanced punishment could be inflicted with the aid of section 397 of the Indian Penal Code.

Consequently, the appeal filed by accused Kallu alias Ramkumar, Barelal and Sukhram is accepted. They are acquitted of the charges levelled against them. They are on ball. Their ball-bonds are discharged.

The appeal of accused-appellants Gabbar allas Goverdhan and Chhotu alias Dayaram is dismissed and sentence passed against them under section 395 read with section 397 of the Indian Penal Code, i.e., rigorous imprisonment for seven years, is maintained. Appellant No. 1 Gabbar alias Goverdhan is in jail. He be informed with the result of this appeal accordingly. Appellant Chhotu alias Dayaram is on bail. He is directed to appear before the Chief Judicial Magistrate, Seoni, on 11-12- 1991 for serving out the remaining period of sentence."

14. The Hon'ble Apex Court in the matter of Trimbak (supra) observed in paras 4 & 6 of its judgment as under:

"4. It is settled law that the presumption of the innocence of an accused person is reinforced by an order of acquittal and a heavy onus rests on the prosecution in an appeal from such an order to prove that the order is manifestly erroneous. The High Court seems to have approached the case as if it was considering an appeal preferred against 11 / 13 his conviction by an accused person. The Magistrate came to the conclusion that the witnesses for the discovery were interested in the prosecution and were not on good terms with the appellant, that the kangi from where the property is said to have been taken was in the open and easily accessible to all and sundry and that in these circumstances it was not safe to hold that the place was in the possession of the accused, or that the property was recovered from his possession. The learned Judges in the High Court, however, took the view that the ornaments belonging to the complainant were taken out by the respondent from the field of Namdeo Anand and that the respondent having given no explanation regarding his knowledge of the place from which the ornaments were taken out, it must be presumed that he must have kept the ornaments there. It was further held that the fact that the field did not belong to the respondent and that the place was accessible to others would not show that the ornaments were not in his possession but were kept by someone else, in the absence of a statement from the respondent explaining the circumstances under which he came to know about the ornaments.

6. When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be 12 / 13 regarded as conclusive proof that the accused was in possession of these articles."

15. In light of above decisions, if the facts and evidence of the present case are examined, it is clear that the complainant and other witnesses did not identify the accused persons as perpetrator of the crime. PW-2 Keshav Prasad also admits that before TIP in jail he had not seen the accused persons anywhere. The memorandum and seizure witnesses have also turned hostile and not supported the prosecution case. In the given set of evidence, the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellants but even then the learned trial Court on the basis of evidence of the investigating officer only held them guilty under Sections 395 & 397 of IPC which is also not in accordance with provisions of Section 397 of IPC as this section only deals with enhanced punishment and is not a substantive offence. The substantive offence may be robbery or dacoity but in the present case, dacoity by the accused/appellants itself is not proved.

16. On the basis of aforesaid discussions, this Court is of the opinion that the trial Court was not justified in recording conviction of the appellants under Section 395 & 397 of IPC based on the evidence adduced by the prosecution. Therefore, the impugned judgment of the trial Court is liable to be and is hereby set aside in relation to aforesaid 13 / 13 conviction and sentence and the appellants are acquitted of the charges leveled against them. All these appeals are thus allowed.

The appellants are reported to be on bail. However, appellants Lal Mohan and Teju have died during pendency of these appeals. Therefore, the bail bonds of the appellants shall remain in force for a period of six months from today in view of provisions of Section 437A of CrPC.

Sd/ (Rajani Dubey) Digitally signed Judge MOHD AKHTAR by MOHD KHAN AKHTAR KHAN Khan

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Chattisgarh High Court