Pushpendra @ Pushpendra Nath @ ... vs State Of Chhattisgarh
2022 Latest Caselaw 1406 Chatt

                                                                    NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR


                      Criminal Appeal No.733 of 2014

                   Judgment Reserved on :     17.2.2022
                   Judgment Delivered on :    17.3.2022

   1. Pushpendra @ Pushpendra Nath @ Manish @ Manoj @ Pappu @
      Papa, son of Shatruhan Chouhan, aged 30 years, resident of
      Darrabhata, Police Station Baradwar, District Janjgir-Champa,
      Chhattisgarh
   2. Gulab Singh @ Bablu @ Amit, son of Lalman Singh, aged 30 years,
      resident of Ayyodhyapuri, Jailgaon Chowk Darri, District Korba,
      Chhattisgarh
   3. Sonu @ Sannu @ Makardwajah, aged 35 years, son of Vijay @
      Nanhe, resident of Near Jagganath Temple, Brajraj Nagar, Police
      Station Brajrajnagar, District Brajrajnagar, Orissa
   4. Dinesh @ Dipak @ Dinu Netam, aged 24 years, son of Ramji Netam,
      resident of Sumedha, Police Station Bankimongra, District Korba,
      Chhattisgarh
                                                         ---- Appellants
                                    versus
      State of Chhattisgarh through Station House Officer, Sakti, District
      Janjgir-Champa, Chhattisgarh
                                                            --- Respondent


For Appellants         :        Shri Ajay Ayachi, Advocate
For Respondent         :        Shri Devesh Chandra Verma, Govt. Advocate



           Hon'ble Shri Justice Rajendra Chandra Singh Samant
                Hon'ble Shri Justice Arvind Singh Chandel

                               C.A.V. JUDGMENT


Per Arvind Singh Chandel, J.

1. This appeal is directed against the judgment dated 30.5.2014

passed by 2nd Additional Sessions Judge, Sakti, District Janjgir-

Champa in Sessions Trial No.193 of 2009 (Crime No.07/2009),

whereby the Appellants have been convicted and sentenced as

under:

Each of the Appellants

Conviction Sentence

Under Section 394/34 of the Rigorous Imprisonment for 10 Indian Penal Code years and fine of Rs.3,00,000 with default stipulation Under Section 397/120B of Imprisonment for Life and fine the Indian Penal Code of Rs.10,000 with default stipulation

Appellant Pushpendra Conviction Sentence

Under Section 302 of the Imprisonment for Life and fine Indian Penal Code of Rs.1,00,000 with default stipulation

Remaining Appellants Conviction Sentence Under Section 302/34 of the Imprisonment for Life and fine Indian Penal Code of Rs.1,00,000 with default stipulation

Appellants Pushpendra and Sonu

Conviction Sentence Under Section 25 of the Rigorous Imprisonment for 1 Arms Act year and fine of Rs.5,000 with default stipulation Under Section 27 of the Rigorous Imprisonment for 3 Arms Act years and fine of Rs.15,000 with default stipulation

All the jail sentences are directed to run concurrently

2. In this case, name of the deceased is Gitaram Rathor. He was a

guard of State Bank of India, Branch Sakti. According to the case

of prosecution, on 29.12.2008, PW6 Virendra Kumar along with

PW9 Deenbandhu Kishan, PW3 Itwarilal and deceased Gitaram

Rathor went to the ATM of the State Bank of India situated at

Railway Station, Sakti for filling amount of Rs.14,00,000 in the said

ATM. As soon as they reached near the ATM and were waiting for

coming out of the person who was inside the ATM Room, 2

unknown persons who were armed with pistols reached there and

asked them to up their hands. One person shot fire on Gitaram and

the amount of Rs.14,00,000 which was kept in a tin trunk and the

gun of Gitaram were looted by them and they ran away towards the

city. Both the persons who were armed with pistols had covered

their faces with white cloth. Unnumbered First Information Report

(Ex.P11) was immediately lodged by PW6 Virendra Kumar. Later

on, numbered First Information Report was also lodged by PW6

Virendra Kumar in Police Station Sakti. Injured Gitaram was

immediately taken to C.H.C. Sakti. During the course of treatment,

he died. During the course of investigation, Appellants

Pushpendra, Sonu and Gulab were arrested in connection with

Crime No.191 of 2007 of Police Station Takhatpur. In that Crime,

memorandum statements of Pushpendra, Sonu and Gulab were

recorded vide Ex.P15, P19 and P17, respectively. On the basis of

said statements, 1 pistol and 10 cartridges and other articles were

seized from Pushpendra vide Ex.P16. 1 katta and 2 cartridges

were seized from Sonu vide Ex.P20. 1 pistol and 9 cartridges were

seized from Gulab vide Ex.P18. During the course of investigation,

memorandum statement of Dinesh alias Dipak was recorded on

25.6.2009 vide Ex.P27. On the basis of said memorandum

statement, 1 desi katta, 4 live cartridges of said katta, 1 magazine

and cash of Rs.500 were seized from Dinesh vide Ex.P28. On

19.7.2009, in the instant case, memorandum statements of

Pushpendra, Sonu and Gulab were recorded vide Ex.P4, P5 and

P6, respectively and on the basis of said memorandum statements,

cash of total Rs.10,000 was seized from Pushpendra vide Ex.P7

and P8, cash of Rs.2,000 was seized from Sonu vide Ex.P9 and 1

receipt of hotel was also seized from Gulab vide Ex.P10. Post

mortem examination on the dead body was conducted by PW11 Dr.

Mrs. C.K. Singh. Post mortem report is Ex.P24. Seized articles

were sent for examination. PW17 Madanlal Maravi,

Armorer/Constable examined the articles and gave report (Ex.P30).

On 25.6.2009, test identification parade of Appellant Dinesh was

conducted vide Ex.P12. He was identified by PW6 Virendra Kumar,

PW9 Deenbandhu and Anand Ram Gond. On 18.7.2009, test

identification parade of remaining Appellants Pushpendra, Sonu

and Gulab was conducted vide Ex.P13. PW6 Virendra Kumar and

PW9 Deenbandhu identified them. It is alleged that Appellants

Pushpendra and Sonu were the persons who committed the loot

and shot Gitaram on the spot. With regard to remaining Appellants,

it is alleged that they made a criminal conspiracy along with

Pushpendra and Sonu and at the time of incident they were

recceing. Statements of witnesses were recorded under Section

161 Cr.P.C. On completion of the investigation, a charge-sheet was

filed. The Trial Court framed charges.

3. In support of its case, the prosecution examined as many as 39

witnesses. In examination under Section 313 of the Code of

Criminal Procedure, the Appellants denied the guilt and pleaded

innocence. No witness was examined in defence.

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

the Appellants as mentioned in first paragraph of this judgment.

Hence, this appeal.

5. Learned Counsel appearing for the Appellants argued that the Trial

Court has wrongly convicted the Appellants without there being any

clinching and sufficient evidence on record against them. According

to the contents of the FIR and the statements of eyewitnesses, at

the time of incident, only 2 unknown persons were present and they

had covered their faces with wide gamchha. But, during the test

identification parade, all the 4 Appellants were identified by the

eyewitnesses. Therefore, the prosecution case is suspicious. It

was further argued that eyewitnesses of the case PW6 Virendra

Kumar and PW3 Itwarilal have not identified the Appellants. In the

Court also, they have not identified the Appellants. Though another

eyewitness PW9 Deenbandhu identified the Appellants in the Court,

but on what basis he identified the Appellants is not specifically

stated by him. He also admitted that at the time of incident 2

persons who were present on the spot had covered their entire face

except their eyes. Therefore, identification of the Appellants

Pushpendra and Sonu by this witness in the Court is suspicious. It

was further argued that with regard to the criminal conspiracy also,

the prosecution has not produced any evidence. Mobile tower

location of any of the Appellants or call details of the Appellants

have also not been collected by the prosecution. The seized

articles were not sent to the ballistic expert for examination.

Therefore also, it is not established that any of the seized arms was

used for firing on the deceased. Therefore, seizure of the arms

does not help the case of the prosecution. Hence, the conviction of

the Appellants is not sustainable. It was further argued that there is

no evidence on record to show that the cash seized from the

Appellants was the looted cash.

6. Learned Counsel appearing for the State opposed the arguments

advanced by Learned Counsel for the Appellants and supported the

impugned judgment of conviction and sentence.

7. We have heard Learned Counsel appearing for the parties and

perused the record of the Trial Court, gone through the statements

and other evidence minutely.

8. With regard to the incident, from the statements of PW6 Virendra

Kumar, PW9 Deenbandhu and PW3 Itwarilal, it is well established

that on the date of incident, i.e., 29.12.2008 at about 11:30 a.m.,

they went to the ATM situated near Sakti Railway Station for filling

cash of Rs.14,00,000 in the said ATM. It is also established that at

that time, one Anand Ram Gond and deceased Gitaram Rathor

also went along with them. In this case, the prosecution has not

examined Anand Ram Gond. With regard to the incident, PW6

Virendra Kumar and PW9 Deenbandhu have deposed that when

they reached near the ATM, at that time, 1 person was operating

the ATM inside the ATM Room. They waited outside the ATM

Room. At that time, Anand Ram Gond was carrying a box of cash.

They further deposed that at that time, 2 unknown persons, whose

faces were covered with cloths and only their eyes were open and

who were armed with pistols, reached there and showed them their

pistols. 1 persons tried to snatch the gun of guard Gitaram. When

he could not snatch the gun from Gitaram, he fired 1 shot on the

stomach of Gitaram due to which Gitaram fell down. Another

person snatched the box of cash from the possession of Anand

Ram Gond. Thereafter, both the persons fled from the spot on their

motorcycle towards the Sakti City with the looted gun of Gitaram

and cash box. Injured Gitraram was taken to hospital where he

died. As stated by PW6 Virendra Kumar, immediately after the

incident, he lodged the FIR (Ex.P11).

9. From the statements of above witnesses, it is clear that at the time

of incident, 2 unknown persons, who were armed with pistols

reached the spot and committed the loot of cash of Rs.14,00,000.

Out of them, 1 person also fired on Gitaram as a result of which he

died in the hospital. Thus, apparently, only 2 persons were present

on the spot who committed the crime and only these 2 persons

were seen by the above-named 2 witnesses PW6 Virendra Kumar

and PW9 Deenbandhu. It is the case of the prosecution that other

2 persons, who recced, were also involved in the crime. According

to the prosecution itself, the 2 persons, who recced, were not seen

by any of the above-named 2 witnesses at the place of loot. With

regard to the 2 persons, who committed the loot and fired on

Gitaram, as stated by PW6 Virendra Kumar and PW9 Deenbandhu,

they had covered their faces with cloths and only their eyes were

open. It is the case of the prosecution that Appellants Pushpendra

and Sonu were the persons who committed the loot of cash of

Rs.14,00,000 and fired on Gitaram at the spot and Appellants

Dinesh and Gulab were the persons who recced. Surprisingly, at

the time of test identification parade (Ex.P12) of Appellant Dinesh,

both PW6 Virendra Kumar and PW9 Deenbandhu identified

Appellant Dinesh and they also identified Appellant Gulab at the

time of his test identification parade. On what basis they identified

Appellants Dinesh and Gulab at the time of test identification

parade is not mentioned. In his Court statement, PW6 Virendra

Kumar did not identify any of the Appellants. In paragraphs 7 and 8

of his examination-in-chief, though he stated that at the time of

conducting of test identification parades (Ex.P12 and P13) he

identified all the Appellants, he categorically admitted that at the

time of identification of Appellant Dinesh, he was already shown

Appellant Dinesh in Police Station Sakti by police officials and at

the time of test identification parade he had identified Appellant

Dinesh on the basis of identification given by the police officials.

He further admitted the fact that later on in Police Station Sakti,

police officials had shown him Appellants Pushpendra, Sonu and

Gulab and told him that these 3 are the persons who committed the

crime and, therefore, he identified these 3 Appellants. This witness

also admitted that PW9 Deenbandhu also saw all the Appellants in

the police station before conducting the test identification parade.

In paragraph 15 of his cross-examination, he categorically admitted

that he could not tell that any of the Appellants was present at the

spot or not.

10. PW9 Deenbandhu, in his Court statement, only identified

Appellants Pushpendra and Sonu. He did not identify remaining

Appellants Dinesh and Gulab. He also admitted the fact that at the

time of incident, the 2 persons who committed the loot, had covered

their faces with gamchha and only their eyes were open. He also

admitted the fact that in his diary statement, he did not tell

regarding physical measurement of the 2 assailants like height,

weight, complexion or any specific identification mark etc.

therefore, identification of the Appellants Pushpendra and Sonu by

this witness before the Trial Court also appears to be suspicious.

11. According to the case of prosecution, on the basis of the disclosure

statement (Ex.P4) of Appellant Pushpendra and disclosure

statement (Ex.P5) of Appellant Sonu, cash of total Rs.10,000 was

seized from Appellant Pushpendra vide Ex.P7 and P8, cash of

Rs.2,000 was seized from Appellant Sonu vide Ex.P9 and cash of

Rs.500 was seized from Appellant Dinesh vide Ex.P28, which were

the parts of looted cash of Rs.14,00,000. In this regard, the

prosecution has examined 1 witness, i.e., PW23 Y. Venkat Ramna,

Branch Manager of State Bank of India, Branch Sakti. He admitted

the fact that he could not state that the cash kept in the looted cash

box were of which numbers, series or year. Thus, the above

recovery of currency notes from the Appellants does not help the

case of the prosecution in any manner.

12. PW11 Dr. Smt. C.K. Singh, who conducted the post mortem on the

dead body of Gitaram, has deposed that no cartridge was found

inside the dead body and only 1 punctured wound near navel was

found which was an entry wound of bullet. According to this

witness, she did not find any exit wound of bullet in the dead body.

According to the seizure memo (Ex.P3) of empty cartridge which

was seized from the spot, KF 7.65 was mentioned in the bottom of

the cartridge. The said seized cartridge was examined by PW17

Armorer/Constable Madanlal Maravi. This witness has deposed

that the cartridge examined by him was of 7.65 pistol. In the

bottom of the said cartridge KF 7.65 was mentioned, no such

statement is made by this witness. This witness also examined 1

pistol GAL 7.65 bearing body No.791848/02 which was seized from

Appellant Pushpendra in connection with Crime No.191/07 of

Police Station Takhatpur. This witness has not given any opinion

that the empty cartridge which was examined by him was used for

fire from the above pistol examined by him or not.

13. In this case, during the course of investigation, in Crime No.191/07

of Police Station Takhatpur, 1 pistol and 10 cartridges were seized

from Appellant Pushpendra vide Ex.P16, 1 katta and 2 cartridges

were seized from Appellant Sonu vide Ex.P20 and 1 pistol and 9

cartridges were seized from Appellant Gulab vide Ex.P18. 1 katta,

4 cartridges and 1 magazine were seized from Appellant Dinesh

vide Ex.P28 in Crime No.07/2009 of Police Station Sakti (instant

case). Though all the seized pistols, kattas and cartridges were

sent for ballistic expert's examination, unfortunately the prosecution

has not submitted any report in this regard before the Trial Court for

the reasons best known to them. Therefore, it is also not

established that any of the seized pistols or kattas or cartridges

were used by the Appellants in connection with the present crime in

question. Thus, from the recovery of said pistols, kattas and

cartridges also, the prosecution does not get any help.

14. On a minute examination of the above evidence, it is clear that in

this case, the incident was caused by 2 unknown persons who had

covered their facts with clothes and only their eyes were seen. In

the FIR also, no details of their identification is mentioned.

Surprisingly, all the 4 Appellants were identified during the test

identification parade. Why and on what basis the test identification

parade of 4 persons was conducted, has not been clarified by the

prosecution. PW6 Virendra Kumar did not identify any of the

Appellants before the Trial Court. Though he identified all the

Appellants during the test identification parade, it is well established

that he had already seen the Appellants before the test

identification parade in the police station and on the instance of

police officials he identified them. PW9 Deenbandhu identified

Appellants Pushpendra and Sonu before the Trial Court, but on

what basis he identified them has not been specified by him. As

admitted by him, even he was not aware of physical measurements

like height, weight, complexion or any other specific identification

mark of aforesaid 2 Appellants Pushpendra and Sonu. Therefore,

identification of Appellants Pushpendra and Sonu before the Trial

Court is also suspicious. In this case, the prosecution has also

failed to prove that the cash amounts which were recovered or

seized from the Appellants were the parts of the looted cash

amount of Rs.14,00,000. The prosecution has also failed to

establish that any of the seized pistols or kattas or cartridges was

used for commission of the offence in question. No ballistic expert

report is also submitted by the prosecution before the Court in this

regard. There is also no evidence available on record on the basis

of which it could be established that any criminal conspiracy for

committing the alleged offence was made. The Trial Court has also

convicted Appellants Pushpendra and Sonu under the Arms Act,

but, the evidence on record shows that the said arms were seized

by Police Station Takhatpur in connection with Crime No.191/07.

Those articles were not seized in connection with the present crime

in question. Therefore, if we accept that any arms were seized,

that seizure was not in connection with the present crime in

question and, therefore, the conviction of Appellants Pushpendra

and Sonu under the Arms Act is not sustainable. There is also no

evidence on record on the basis of which it could be said that those

seized arms were used by above-named 2 Appellants in this case.

Therefore, their conviction under the Arms Act is also not

sustainable.

15. The prosecution has failed to prove its case beyond reasonable

doubt. The finding of the Trial Court is not in accordance with the

evidence available on record.

16. Consequently, the appeal is allowed. The impugned judgment of

conviction and sentence is set aside. The Appellants are acquitted

of the charges framed against them. They be set at liberty

forthwith, if not required in any other case. If any amount has

already been deposited towards fine, the same shall be refunded to

the Appellants within two months from receipt of this judgment. The

seized properties shall be disposed of in accordance with law.

                      Sd/-                                  Sd/-

        (Rajendra Chandra Singh Samant)           (Arvind Singh Chandel)
                   Judge                                  Judge

Gopal