Vicky Singh @ Criminal And Another vs State Of Chhattisgarh
2021 Latest Caselaw 2764 Chatt

                                                                                               NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                              Criminal Appeal No.365 of 2016

                          Judgment Reserved on :               22.9.2021
                          Judgment Delivered on :             18.10.2021

    1. Vicky Singh @ Criminal, son of Labh Singh, aged about 19 years,
       resident of Sangram Chowk, Camp 1, Gudiya Kirana Stores, Bhilai,
       District Durg, Chhattisgarh
    2. Rocky @ Surendra Singh, son of Rajkumar, aged about 20 years,
       resident of Arjun Nagar, Camp 1, Rickshaw Colony, Bhilai, Police
       Station Chhawni, District Durg, Chhattisgarh
                                                             ---- Appellants
                                    versus
       State of Chhattisgarh through Station House Officer, Police Station
       Chhawni, District Durg, Chhattisgarh
                                                            --- Respondent


                              Criminal Appeal No.779 of 2016
    1. Shubham Sahu, son of Ranjit Sahu, aged about 19 years,
    2. Chandan Singh Mangeda, son of Lt. Shri Jaswindar Singh, aged about
       24 years
       Both residents of Arjun Nagar, Camp 1, Rickshaw Colony, P.S.
       Chhawni, Bhilai, District Durg, Chhattisgarh
                                                               ---- Appellants
                                     versus
       State of Chhattisgarh through District Magistrate, Durg, District Durg,
       Chhattisgarh
                                                              --- Respondent

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For Respective Appellants : Shri Sakib Ahmad and Shri Goutam Khetrapal, Advocates For Respondent/State : Shri H.S. Ahluwalia, Dy. Advocate General

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. Since both the appeals arise out of a common judgment, they are

decided together.

2. Both the appeals have been preferred against judgment dated

13.1.2016 passed by the 4th Additional Sessions Judge, Durg in

Sessions Trial No.174 of 2014, whereby the Appellants have been

convicted and sentenced as under:

                 Conviction                        Sentence

                              All the Appellants

Under Section 395/397 of the Rigorous Imprisonment for 10 Indian Penal Code years and fine of Rs.500 with default stipulation Appellant Chandan Singh Mangeda (Additional Convictions) Under Section 25(1B) of the Rigorous Imprisonment for 1 Arms Act year and fine of Rs.500 with default stipulation Under Section 27 of the Arms Rigorous Imprisonment for 3 Act years and fine of Rs.500 with default stipulation The jail sentences are directed to run concurrently

3. According to the case of prosecution, on 9.7.2014 at about 6 p.m.,

victim Uday Singh (PW7) was returning from Ramnagar after taking

cash of Rs.5,000 from Digvijay (PW3). At that time, on the way, the

Appellants and one juvenile accused, total 5 accused persons

looted the cash of Rs.5,000 from the victim and at the time of

commission of the offence, one of the accused persons assaulted

the victim by a knife as a result of which he sustained an injury on

his abdomen. The incident was informed by some children to the

father of the victim, namely, Virendra Singh (PW4). Virendra Singh

(PW4) went to the spot, but some people had taken the victim to

Sector 9 Hospital, Bhilai for treatment. Then he also went to the

hospital. On being asked by him, the victim told about the incident.

Thereafter, Virendra Singh (PW4) reported the incident on the basis

of which Dehati Nalishi (Ex.P4) was recorded. Ms. Madhu Harsh,

Additional Tahsildar (PW2) recorded dying declaration (Ex.P3) of

the victim in the hospital. During the course of investigation,

statements of witnesses were recorded under Section 161 of the

Code of Criminal Procedure. On the basis of disclosure statements

of the Appellants, out of the looted cash, amount of Rs.1,000 was

recovered from Appellant Chandan Singh Mangeda and Rs.500

each was recovered from rest of the Appellants. Thus, total

amount of Rs.2,500 was recovered. From Appellant Chandan

Singh Mangeda, the weapon of offence, i.e., the knife was also

recovered vide Ex.P13. On completion of the investigation, a

charge-sheet was filed. The Trial Court framed charges.

4. To bring home the offence, the prosecution examined as many as

14 witnesses. Statements of the Appellants were also recorded

under Section 313 of the Cr.P.C. in which they denied the guilt,

pleaded innocence and false implication. No witness has been

examined in their defence.

5. On completion of the trial, the Trial Court convicted and sentenced

the Appellants as mentioned in 2nd paragraph of this judgment.

Hence, these appeals.

6. Learned Counsel appearing for the respective Appellants jointly

submitted that without there being clinching and sufficient evidence

on record, the Trial Court has wrongly convicted the Appellants.

Referring to the statement of victim Uday Singh (PW7), it was

argued that as stated by the victim, after commission of the loot

when he stepped down from his bicycle to take his money back

from the Appellants, the assault was caused to him. Therefore, the

offence under Section 397 of the Indian Penal Code is not made

out and the Trial Court has wrongly convicted the Appellants

thereunder. As regards the offence under Section 395 of the Indian

Penal Code, it was argued that there are material contradictions

and omissions in the statement of the victim and, therefore, his

testimony is not reliable. In the alternative, it was argued that even

if the entire statement of the victim is taken as it is, it appears that

the assault was caused by Appellant Chandan Singh Mangeda

after commission of the loot and at the time of the assault Appellant

Shubham Sahu had caught hands of the victim and in that assault

there was no overt act on the part of Appellants Vicky and Rocky.

Since Appellant Shubham Sahu is in jail since 11.7.2014, Appellant

Chandan Singh Mangeda has already suffered jail sentence of

about 5 years and 1 month and Appellants Vicky and Rocky have

already suffered jail sentence of 2 years and 2 months and the

Appellants have no criminal antecedent and they are facing the lis

since 2014, they may be sentenced to the period already

undergone by them.

7. On the contrary, Learned Counsel appearing for the State opposed

the submissions put-forth on behalf of the Appellants and supported

the impugned judgment.

8. I have heard Learned Counsel appearing for the parties and

perused the entire material available on record including the

statements made by the witnesses before the Trial Court.

9. Virendra Singh (PW4), father of the victim deposed that on the date

of incident, i.e., 9.7.2014 in the morning hours, he had asked the

victim to go and collect cash of Rs.5,000 from his relative Digvijay

(PW3). Digvijay (PW3) has supported the above statement of

Virendra Singh (PW4) and stated that on the date of incident in the

evening, the victim had come to him and collected cash of Rs.5,000

from him and returned. Victim Uday Singh (PW7) also

corroborated the above statements of Virendra Singh (PW4) and

Digvijay (PW3). The above statements of these three witnesses

are not duly rebutted during their cross-examination. Thus, it is well

established that before commission of the incident, the victim was

in possession of cash of Rs.5,000.

10. With regard to the incident, victim Uday Singh (PW7) deposed that

after collecting cash of Rs.5,000 from Digvijay (PW3), he was

returning home. When he reached near a temple, at that time, the

Appellants stopped him and demanded money from him.

Thereafter, they snatched the cash of Rs.5,000 from him. He

further deposed that thereafter for taking his money back from

them, he stepped down from his bicycle. Then Appellant Chandan

Singh Mangeda assaulted him by a knife and ran away from there.

At that time, Appellant Shubham Sahu had caught his hands.

Thereafter, some boys lifted him up and took to Sector 9 Hospital,

Bhilai. Supporting the above statement of the victim, his father

Virendra Singh (PW4) deposed that he also rushed to the hospital

where he was told about the incident by the victim. Thereafter, he

lodged the report (Ex.P4). Though there are some contradictions

and omissions in the statement of the victim, they are not material.

From the statements of Dr. D.P. Sarkar (PW5) and Dr. Parag Gupta

(PW14) and from perusal of the medical report (Ex.P7), it is also

well established that the victim had suffered a stab injury on his

abdomen whose nature was grievous.

11. With regard to the seizure of the looted money and the weapon of

offence, i.e., the knife, though Jitendra Singh (PW9) and Amit

Kumar (PW10) have not supported the entire case of the

prosecution regarding recording of the disclosure statements of the

Appellants and seizures of the looted money and the weapon of

offence, i.e., the knife, Inspector Alexender Kiro (PW12) has

supported the entire case of the prosecution in this regard. There

is nothing in his cross-examination to disbelieve his statement in

this regard.

12. On a minute examination of the above evidence, it is clear that at

the time of incident, victim Uday Singh (PW7) was in possession of

cash of Rs.5,000 which he had collected from Digvijay (PW3) and

was returning home thereafter. From the evidence adduced by the

prosecution, it is well established that when the victim reached near

the temple while returning, the Appellants demanded money from

him and thereafter snatched the cash of Rs.5,000 from him. There

is no evidence on record to show that at the time of snatching of the

cash from the victim, any of the Appellants had used any deadly

weapon or caused any grievous hurt or attempted to cause death

or grievous hurt to the victim or any other person. Rather, when the

victim stepped down from his bicycle for taking his money back

from the Appellants, at that time, Appellant Chandan Singh

Mangeda assaulted him by a knife and ran away from there.

Therefore, in my considered view, the offence under Section 397 of

the Indian Penal Code is not made out. Thus, the conviction of all

the Appellants under Section 397 of the Indian Penal Code is set

aside. The conviction of the Appellants under Section 395 of the

Indian Penal Code is upheld. The additional convictions of

Appellant Chandan Singh Mangeda under Sections 25(1B) and 27

of the Arms Act are also upheld.

13. As regards the sentence, considering the totality of the facts and

circumstances of the case, particularly the facts that the main

assailant was Appellant Chandan Singh Mangeda, who has already

suffered jail sentence of about 5 years and 1 month, Appellant

Shubham Sahu is in jail since 11.7.2014 and Appellants Vicky and

Rocky have already suffered jail sentence of about 2 years and 2

months and there was no overt act on the part of Appellants Vicky

and Rocky and none of the Appellants has criminal antecedent,

they are facing the lis since 2014, the jail sentences of all the

Appellants are reduced to the period already undergone by them.

The fine sentences imposed upon them by the Trial Court are

affirmed.

14. Consequently, both the appeals are allowed to the extent indicated

above.

Sd/-

(Arvind Singh Chandel) JUDGE Gopal