Arjun Yadav vs State Of Chhattisgarh
2022 Latest Caselaw 7357 Chatt

                                                                    NAFR



         HIGH COURT OF CHHATTISGARH, BILASPUR

                 Criminal Revision No.703 of 2011

      Arjun Yadav, S/o Ganeshram Yadav, aged about 25 years,
       R/o Village Tiur, Police Station Kharsiya, District Raigarh
       (C.G.)

                                                         ---- Applicant

                              Versus

      State of Chhattisgarh, through District                 Magistrate,
       Raigarh, District-Raigarh, Chhattisgarh.

                                                       ---- Respondent

For Applicant : Mr.Arvind Shrivastava, Advocate. For State/Respondent : Mr.H.S.Ahluwalia, Deputy Advocate General.

Hon'ble Shri Justice Arvind Singh Chandel

Order on Board

07.12.2022

1. This revision has been preferred by the Applicant under

Section 397 read with Section 401 of the Code of

Criminal Procedure against the judgment dated

26.11.2011 passed by learned First Additional Sessions

Judge, Raigarh (C.G.) in Criminal Appeal No. 65/2010,

whereby the learned First Additional Session Judge

upheld the order of conviction dated 21.10.2010 passed

in Criminal Case No.320/2009, passed by learned

Judicial Magistrate First Class (JMFC), Kharsiya,

District Raigarh (C.G.).

2. Case of the prosecution, in brief, is that on 25.07.2004,

Complainant Butau (PW-1) along with her wife and

children went to the field for doing agricultural work, at

around 10 AM, when he returned to his home, he found

that door of his home was opened, Rs.20,000/- cash

and some gold and silver ornaments amounting to

Rs.6,100/-were stolen by some unknown person. He

lodged an F.I.R. vide Ex.P-1. During course of

investigation, memorandum statements of the

Applicant/accused and co-accused Ramesh were

recorded vide Ex.P-4 & Ex.P-5. On the basis of said

statements, Rs.8,000/- was seized from the possession

of co-accused Dhaniram Yadav vide Ex.P-6. Further

Rs.8,000/- and some stolen articles were seized from

the possession of co-accused Ramesh. Identification of

the stolen articles was also carried out vide Ex.P-3.

3. After completion of investigation, the charge-sheet was

filed against the Applicant and other co-accused

persons. After framing of charges, recording of evidence

and hearing both the Counsel appearing for the parties,

the Trial Court vide its judgment dated 21.10.2010,

acquitted co-accused Dhaniram Yadav from the charges

punishable under Section 411 of the Indian Penal Code.

However, the Trial Court convicted the

Applicant/accused and co-accused Ramesh for the

offence punishable under Section 454 & 380/34 of the

Indian Penal Code and sentenced them rigorous imprisonment for 2 years and fine of Rs.100/- and

rigorous imprisonment for 3 years and fine of Rs.200/-

respectively, with default stipulations.

4. Being aggrieved with the judgment passed by the Trial

Court, the appeal was preferred by the

Applicant/accused Arjun Yadav before the First

Appellate Court and vide its judgment dated

26.11.2011, the First Additional Sessions Judge,

Raigarh(C.G.) upheld the conviction, imposed by the

Trial Court. Hence, this revision.

5. Learned Counsel appearing on behalf of the Applicant

submits that there is no eye-witness in this case and

the conviction of the Applicant is based upon his

memorandum statement and test identification of the

seized ornaments. He further submits that only one

witness of memorandum has been examined by the

prosecution i.e. Chaitram (PW-4). In his Court

statement, Chaitram (PW-4) has only stated that

Applicant/accused admitted the fact that he along with

co-accused Ramesh committed theft in the house of

complainant. According to the Counsel, the said part of

the statement is not admissible. It is further submitted

that in his Court statement, Chaitram (PW-4) also

revealed the fact regarding recovery of some amount

but this statement is also not sufficient to convict the

Applicant. A reliance has been placed by the Counsel in

the judgment passed by Supreme Court in case of Shahaja alias Shahajan Ismail Mohd. Shaikh Vs.

State of Maharastra reported in 2022 SCC Online SC

883.

6. It is further argued by learned Counsel appearing for

the Applicant that conviction of the Applicant is also

based upon the admission made by co-accused in his

statement recorded under Section 313 of the Cr.P.C.,

without corroborating other evidence, only on the basis

of confessional statement, the Applicant can not be

convicted. It is further argued by the Counsel that

though some ornaments were seized from co-accused

Ramesh and according to the prosecution, test

identification of said ornaments was also conducted

but, Butau (PW-1), in his Court statement categorically

admitted that one day prior to test identification, Police

had shown the seized ornaments to him, therefore, on

the basis of test identification also, conviction of the

Applicant is not sustainable. Thus, the conviction

imposed upon by the Trial Court as well as affirmed by

the first appellate Court is not sustainable.

7. Learned State Counsel opposes the argument advanced

by learned Counsel for the Applicant and submits that

the Trial Court has rightly convicted the Applicant and

the First Appellate Court has rightly upheld his

conviction.

8. I have heard learned Counsel appearing on behalf of the parties and perused the entire material available on

record with utmost circumspection.

9. It is undisputed that there is no eye-witness in the

case, the conviction is mainly based upon the

statement of complainant Butau (PW-1) and Chaitram

(PW-4), the witnesses of memorandum and seizure and

Investigating Officer B.Minj (PW-9).

10. According to the case of prosecution, during course of

investigation, the memorandum statement of the

Applicant under Section 27 of the Evidence Act has

been recorded vide Ex.P-4 before Lalit Sidar and

Chaitram. Lalit Sidar has not been examined by the

prosecution, another witness of memorandum

Chaitram (PW-4) deposed that the Applicant told the

police that some stolen amount has been kept by him

which is present in his house and some amount he

given to his uncle (Fufa) but, neither any of the

ornament nor any amount have been seized on the

instance of the Applicant. On perusal of contents of

Ex.P-4 i.e. memorandum statement of the Applicant, it

appears that amount of Rs.8,000/- was kept by co-

accused Ramesh Kumar Sidar and amout of Rs.8,000/-

was kept by the Applicant in the house of Dhaniram

Yadav. During course of investigation, on the basis of

memorandum statement of Dhaniram Yadav,

Rs.8,000/- was seized from him but the Trial Court has

already acquitted Dhaniram Yadav from the charges punishable under Section 411 of the I.P.C., therefore, it

is not established that the amount which was seized

from Dhaniram Yadav was the stolen amount.

Therefore, only on the basis of confessional statement

recorded under Section 313 of the Cr.P.C. made by

Dhaniram Yadav, without corroborating the other

evidence, the conviction of the Applicant is not

sustainable. Further, from the admission made by

complainant Butau (PW-1) (in paragraph six of his

cross-examination), it is also established that though

the test identification of the seized ornaments was

carried out, but the same have already shown by the

Police to Butau one day prior to the test identification,

therefore, the test identification of the seized ornaments

is suspicious. Hence, on this ground also, the

conviction of the Applicant is not sustainable.

11. As discussed above, it makes clear that the prosecution

has failed to prove its case beyond all reasonable

doubts. Thus, the conviction imposed by the Trial Court

as well as upheld by the First Appellate Court is not

sustainable.

12. Consequently, the revision is allowed. The judgment

dated 26.11.2011 passed by learned First Additional

Sessions Judge, Raigarh (C.G.) and the order of

conviction dated 21.10.2010 passed by learned Judicial

Magistrate First Class, Kharsiya, District Raigarh (C.G.)

are hereby set-aside. The Applicant is acquitted from the charges framed against him.

13. It is reported that the Applicant is on bail. His bail

bonds are not discharged at this stage and the same

shall remain operative for a further period of six

months from today in view of the provisions contained

in Section 437A of the Cr.P.C.

14. Records of the Court below be sent back along with a

copy of this order forthwith for information and

necessary compliance.

Sd/-

(Arvind Singh Chandel) Judge Shubham