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Chattisgarh High Court

Vijay Kumar Chauhan And Anr vs State Of Chhattisgarh on 7 April, 2026

Author: Rajani Dubey

Bench: Rajani Dubey

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                                                                                 NAFR

                        HIGH COURT OF CHHATTISGARH AT BILASPUR


                                         CRA No. 39 of 2008

              1. Vijay Kumar Chauhan S/o Shri Prit Ram Chauhan, Occupation-

                  Agriculture, aged about 23 years, R/o Village- Bataikela, Police Station-

                  Kansabell, District- Jashpur (C.G.)

              2. Kanhaiya Ram, S/o Shri Lodoram Chauhan, Occupation- Agriculture,

                  aged about 34 years, R/o Village- Bataikela, Police Station- Kansabell,

                  District- Jashpur (C.G.)

                                                                        ... Appellants



                                                versus

              •   State Of Chhattisgarh through Police Station- Kansabell, District-

                  Jashpur (C.G.)

                                                              --- Respondent/State

_____________________________________________________________

For Appellants : Mr. Pushpendra Kumar Patel, Advocate.

For State : Mr. Kanhaiya Ram Yadav, PL _____________________________________________________________ Hon'ble Smt. Justice Rajani Dubey C A V Judgement

1. This appeal is preferred under Section 374 (2) of the Code of Criminal

Procedure, 1973 against the judgment dated 30.11.2007 passed by

learned Additional Sessions Judge, Jashpur in Sessions Trial No. 83

/2007, wherein the said Court convicted the appellants and sentenced

them as under:-

         Conviction                  Sentence
         Under Section 398/34 of R. I. for 07 years each
         IPC

2. Brief facts of the case are that on the date of incident i.e. 15.04.2007,

the complainant- Niranjan Das, a businessman, had gone to the weekly

market at Baghicha along with Kulumani and Basant Das in a tempo,

carrying utensils for trade. After the market concluded, he was returning

home in the same tempo accompanied by his two sons. At about 7:30

PM, when they reached near Bataikela, on the road leading towards

Khutera forest, the persons viz., Vidur, son of the Sarpanch, Vijay and

Kanhaiya Cheek arrived on a motorcycle and attempted to intercept the

complainant's vehicle with the intention of committing robbery. One of

the accused brandished a country-made firearm (katta) and tried to

force the complainant to stop the vehicle. However, out of fear, the

complainant did not stop the tempo and continued driving. During this

attempt, the three accused lost control and fell from their motorcycle.

Despite this, the complainant later proceeded towards Khutera colony

with the vehicle. The complainant raised an alarm, upon which several

villagers gathered and when questioned, the complainant described the

personality traits of the accused persons. Based on this description, the

villagers identified them as Vidur, son of the Sarpanch, Vijay, and

Kanhaiya Cheek, residents of Badhaikela. The complainant stated that

had he stopped the vehicle, he would have been robbed by the

accused persons. Subsequently, a report was lodged at the police

station vide Ex. P/5 and investigation commenced. A spot map (Ex. P/6)

was prepared, and witnesses' statements were recorded. The accused

Kanhaiya was arrested vide Ex. P/11 and on the basis of his

memorandum statement, a country-made firearm along with a bird-

shooting gun (चिड़िया मार बंदक ु ) were seized from him vide Ex. P/8. The

accused Vijay was also arrested vide Ex. P/12 and on the basis of his

memorandum statement, an iron knife was recovered from his

possession. Both accused were sent for medical examination. After

completion of due, necessary investigation, they were charge-sheeted

before the Court of concerned Jurisdictional Magistrate, who, in turn,

committed the case for trial and on the basis of the material contained

in the charge-sheet, learned trial Court framed charges against the

present appellants for alleged commission of offence under Sections

341 and 398 read with section 34 of IPC.

3. In order to establish the charges against the accused persons, the

prosecution has examined as many as 10 witnesses. The statement

under Section 313 of Cr.P.C. of the appellants have been recorded, in

which they denied the incriminating charges leveled against them and

pleaded their innocence that they have been falsely implicated in this

case. However, no witness examined by them in their defence.

4. The learned trial Court after hearing the counsel for the respective

parties and considered the material available on record and thereby

convicted and sentenced the present accused/appellants as mentioned

in inaugural para of this judgment. Hence, this present appeal.

5. Learned counsel for the appellant submits that the learned trial Court

has not properly evaluated the material available on record and wrongly

convicted the appellants. Learned trial Court also failed to appreciate

this fact that the prosecution has failed to establish the ingredient of

Section 398 of IPC. The learned trial Court has failed to rigorously

scrutinize whether these essential ingredients have been proved by

cogent evidence. The material on record does not, in any manner,

substantiate the claim that the appellants were armed with a firearm at

the time of the alleged dacoity. The mere general references in the

statements of the complainant or the alleged eyewitnesses, without

independent corroboration, cannot constitute proof of such an essential

ingredient of the offence. It is submitted that the statements of the

complainant and other prosecution witnesses are wholly insufficient to

establish the guilt of the appellants. These statements are inherently

weak, contradictory, and suffer from material omissions. The learned

trial Court, instead of carefully analyzing the discrepancies and

contradictions in the testimony, has relied mechanically on these

statements to record a conviction. This constitutes a manifest

misreading and non-appreciation of the evidence. The learned trial

Court also failed to consider whether the alleged act of grievous hurt

was caused by the appellants themselves or by any other person. Mere

presence at the scene, without clear evidence of participation in the act

with the requisite mens rea, cannot constitute criminal liability under

Section 398 of IPC. The trial Court overlooked this critical aspect, which

goes to the root of criminal responsibility. It is respectfully submitted that

the prosecution has failed to discharge its burden to prove beyond

reasonable doubt that the appellants committed dacoity while being

armed with a firearm or caused grievous hurt in the course of such

dacoity. In the absence of such proof, the conviction is perverse and

cannot be sustained in law. Therefore, the judgment passed by the

learned trial Court is liable to be set aside and the appellants deserve to

be acquitted of the said charges. He relied upon the decision of the

Hon'ble Apex Court in the matter of Chinnadurai vs. State of Tamil

Nadu,1

6. Ex-adverso, learned counsel for the respondent/State supporting the

impugned judgment submits that the learned trial Court properly

appreciated the oral and documentary evidence and rightly convicted

the appellants. Therefore, the judgment impugned does not suffer from

any irregularity or infirmity warranting interference by this Court in the

instant appeal.

7. I have heard learned counsel for the parties and perused the material

available on record including the impugned judgment.

8. It is evident from record that learned trial Court framed charges against

the appellants for the offences punishable under Sections 341 and 398

read with Section 34 of IPC and after appreciation of oral and

documentary evidence, learned trial Court convicted the appellants for

the aforesaid offences.

9. PW-5, the complainant- Niranjan Das, has stated that on the date of the

incident, i.e., 15.04.2007, while he was returning from the market after

selling utensils in a tempo along with his sons- Kulumani and Basant, at

approximately 7:30 p.m., when he had just entered the forest at night

and after crossing the culvert, was climbing the ghat that he came to

know from Khutera colony that the motorcycle rider was Shashikant

Bhagat, the Sarpanch's son. He further stated that in the Court, an 1 AIR 1996 SC 546

unknown person pointed towards one of the accused, identifying him as

the individual who had been carrying an iron sword at the time of the

incident. Upon being asked by the Court to state the name of the said

accused, the accused stated his name as Vijay Kumar. He further

stated that the second accused present at the spot was carrying a

revolver on the date of the incident. The witness identified the said

accused in the Court as the person who was in possession of the

revolver at the relevant time. Upon being asked by the Court, the

accused disclosed his name as Kanhaiya Ram.

In para 3, he stated as under :-

"3.मैं घटना स्थल पर गाड़ी नहीं रोका रोड किनारे पर से गाड़ी पार कर लिया था पीछे से

किसी ने गाड़ी के दाहिने तरफ किसी चीज से मारा था। उसके मारने से गाड़ी में आवाज

आई। हम लोग आगे बढ़ चुके थे लगभग कुछ दरू आगे बढ़े ही थे की , घटना स्थल पर

उपस्थित अरोपीगण तथा मोटर साइकिल में चढ़ा हुये व्यक्ति तीनों मिलकर मोटर

सायकिल को पीछा कर हम लोग के टेम्पों गाड़ी तक पहुच ं गये। और खिड़की में रिवाल्वर

चलते-चलते रिवाल्वर अड़ा दिये थे। मुझे तुरन्त पता लगा कि, मोटर सायकिल सवार

तीनों व्यक्ति गिर पड़े ।

In para 3 of his examination, he stated that thereafter, he drove the

tempo further ahead from colony Khutera, when he noticed that the

three aforementioned accused had again overtaken their tempo on

their motorcycle. At that time, one of the accused was pointing a

revolver from the motorcycle, while another was swinging a bag.

Fearing that the accused might commit further robbery, he

immediately turned the tempo back towards colony and informed the

local Oraon residents about the incident. Some people gathered

there, and one of them identified the person riding the motorcycle as

Shashikant Bhagat, the son of the Sarpanch. Subsequently,

someone used a mobile phone to call the police station at Thana

Kansaabel. The Station Officer, along with other police personnel,

arrived at the spot. They instructed them to go to the police station,

while they proceeded in the direction in which the accused had fled.

Then, he lodged the written report vide Ex. P/5.

During his cross-examination, he admitted the suggestion that at the

time of the incident, the accused neither assaulted them nor committed

any robbery against them. However, he denied the suggestion that the

accused requested them to give way in order to cross the road.

10. PW-6 Kulumani Das and PW-7 Basant Das, the complainant's sons,

have supported the complainant's version of the incident. During the

course of their examination-in-chief, they reiterated the facts as

narrated by the complainant. Significantly, during cross-examination,

both witnesses explicitly stated that the accused persons did not

physically assault them in any manner, nor did they commit any act of

robbery.

11. PW-8, Sanjay Tirkey, has admitted his signatures on the seizure memo

(Ex. P/8), memorandum (Ex. P/9), seizure memo (Ex. P/10), and arrest

memos (Ex. P/11 and Ex. P/12). The prosecution declared him hostile

and proceeded to cross-examine him; however, he denied all

suggestions put forth by the prosecution.

12. A careful and thorough scrutiny of the statements of all the witnesses

reveals that PW-5, PW-6, and PW-7, who are the complainant and his

sons, specifically alleged the involvement of Shashikant Bhagat, the

son of the Sarpanch, in the alleged incident. In addition, they have

identified Vijay Kumar as one of the accused before the learned trial

Court. However, it is noteworthy to mention that these identifications,

while made in the trial Court are not supported by any independent or

neutral evidence. There are material inconsistencies in their statements

and the witnesses themselves, in their cross-examination, admitted that

the accused did not assault them and did not commit any robbery.

13. For ready reference, Sections 398 of Indian Penal Code are defined as under:-

" Section 398. attempting to commit robbery or dacoity while armed with a deadly weapon.

" If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."

14. It has been held by the Hon'ble Apex Court in the matter of

Chinnadurai (supra) in para 4 as under:-

"4. It seems to us that the conviction of the appellant

under Section 398, I.P.C. whereunder he has been

sentenced to seven years' rigorous imprisonment

cannot be sustained. Section 398, L.P.C. gets attracted

if at the time of attempting to commit robbery or

dacoity, the offender is armed with a deadly weapon

which will attract an imprisonment not less than seven

years. When no robbery or dacoity has been

committed as such, in the sense that no property was

removed from the house of the complainants and

nothing said to be belonging to the complainants was

recovered, it would be difficult to hold that there was

any attempt in regard to the commission of robbery or

dacoity. Scattering of articles in the house may cause

a scene as if ran-sacked, but that does not prove the

charge. We thus feel that on the evidence, the

conviction of the appellant under Section 398, I.P.C. is

not sustainable. Accordingly, the same is set aside.