Kaila vs State Of Chhattisgarh
2026 Latest Caselaw 1459 Chatt

Chattisgarh High Court

Kaila vs State Of Chhattisgarh on 9 April, 2026

Author: Rajani Dubey

Bench: Rajani Dubey

                                   1




                                                    2026:CGHC:16243

                                                               NAFR

          HIGH COURT OF CHHATTISGARH AT BILASPUR

                         CRA No. 968 of 2008

Kaila, S/o Shri Mahadev, aged about 50 years, Occupation -
Agriculture, R/o Village Sukhratola, Sabhaduma, PS -Bindhamganj,
Distt. Sonbhadra (UP)
                                                          ... Appellant
                                versus
State Of Chhattisgarh Through PS-Ramchandrapur, Distt. Surguja
(CG)
                                                       ... Respondent

For Appellant : Mr. Vivek Kumar Pandey, Advocate. For Respondent : Mr. Jitendra Shrivastava, Govt. Advocate.

Hon'ble Smt. Justice Rajani Dubey

Judgment On Board 09-04-2026

The appellant in this appeal calls in question the legality and

validity of the judgment of conviction and order of sentence dated

24.10.2008 passed by First Additional Sessions Judge, Ambikapur,

Surguja in ST No.57/1987 whereby the appellant stands convicted

under Section 395 of IPC and sentenced to undergo RI for five years,

pay a fine of Rs.1000/- and in default thereof to suffer additional RI for

six months.

02. Case of the prosecution, in brief, is that on 16/01/1986 at about

7:15 PM, the complainant and his wife were sitting by the fire. The

complainant's daughter-in-law was serving food to the complainant's

son and a village boy named Govind Yadav. At that time, 3-4 unknown

persons, armed with sticks and axes, arrived. Two of them caught hold

of the two boys who were eating and tied them with a cloth (gamcha).

The complainant's daughter-in-law ran away from the spot. Then, one

of the miscreants caught hold of the complainant's wife and said,

"Show us the belongings, or we will kill you." Two or three of them also

caught the complainant and warned him not to look up, or they would

kill him. They made everyone sit inside the house. From the

complainant's house, they looted one brass pot (approx. 4 kg) worth

Rs.200/-, four brass lotas (one approx. 1 kg and three about 750 g

each) worth Rs.150/-, two brass plates (about 500 g each) worth

Rs.100/-, one brass bowl (about 250 g) worth Rs.25/-, one aluminum

cooking pot (approx. 1 kg) worth Rs.40/-, one black woolen blanket

with white markings worth Rs.30/-, one white iron sheet trunk worth

Rs.30/-, which contained one green terrycot kurta worth Rs.30/-, one

white cotton dhoti worth Rs.20/-, one violet terrycot saree worth

Rs.90/-, one red women's sheet worth Rs.25/-, three cotton blouses

(green, yellow, and one white nylon perforated), one red cotton saree

with white print worth Rs.25/-, one small black tin box worth Rs.15/-,

one steel necklace, one pair of plastic shoes, one iron axe and cash

amount of Rs.7/-. Two of the thieves looted these items and locked the

complainant and others inside the house. After somehow getting out,

they raised an alarm, and villagers gathered there. The complainant,

his wife, and daughter-in-law stated that they would be able to identify

the culprits. Upon the report being lodged by the complainant Dargahi

at Police Station Ramchandrapur, the police, after investigation, found

sufficient evidence against the accused persons under Section 395 of

IPC and presented them before the Judicial Magistrate First Class,

Samanujganj. After committal by the Magistrate, the case was received

by the trial court.

03. Learned trial Court framed charge under Section 395 of IPC

against the accused/appellant which was abjured by him and he

prayed for trial. To bring home the charge, the prosecution examined

11 witnesses in all. Statement of the accused was recorded under

Section 313 of CrPC wherein he denied all the incriminating

circumstances appearing against him in the prosecution case, pleaded

innocence and false implication. In his defence, he examined one

Bandhu as DW-1.

04. After hearing counsel for the respective parties and appreciation

of oral and documentary evidence on record, the learned trial Court

convicted and sentenced the accused/appellant as mentioned above.

Hence this appeal.

05. Learned counsel for the appellant would submit that the

impugned judgment is per se illegal and contrary to the material

available on record. Learned trial Court ought to have appreciated the

fact that no identification parade of the accused was held and the

property which was seized from the appellant was also not duly

identified by the witnesses. He submits that name of the appellant is

not mentioned in the FIR and the witnesses have also not named the

appellant. No independent witness has supported the prosecution

case. Thus, in view of the nature and quality of evidence adduced by

the prosecution, it is clear that the prosecution has failed to prove its

case against the appellant beyond reasonable doubt and therefore, the

appellant deserves to be acquitted of the charge leveled against him.

06. On the other hand, learned counsel for the State opposing the

contention of the appellant would submit that in view of oral and

documentary evidence on record, the learned trial Court has rightly

convicted and sentenced the appellant by the impugned judgment

which calls for no interference by this Court. The present appeal being

without any substance is, therefore, 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 learned trial Court that charge sheet

was filed against the appellant and other co-accused persons but

during trial the appellant absconded. Learned trial Court passed

judgment against other co-accused persons on 4.9.1997. After some

time, the appellant was arrested and trial was conducted against him.

Learned trial Court framed charge under Section 395 of IPC against

him and after appreciation of oral and documentary evidence,

convicted and sentenced him under this section as mentioned in the

opening paragraph of this judgment.

09. PW-1 Jagdish Prasad states that he identifies all the seven

accused persons by face but knows Sunderdev by name only. There

was dacoity in the house of Haidergahi Mahto and after coming to

know about this, he also went with the police personnel to the spot. He

and Sudama were taken to Village Dhuma by the police to enquire

about the dacoits and there six dacoits were caught. He states that

excluding accused Sunderdev, all the accused present in the court are

the persons who were caught by the police.

10. PW-2 Sudama Prasad identified only Sunderdev and not others.

He states that the police interrogated the accused persons. He admits

his signature on the memorandum statements of Ex.P/1 to P/7 and

seizure of Ex.P/8 to P/14. He states that he does not remember as to

on what date the articles were seized. PW-3 M. Khes, Naib Tehsildar,

states that he conducted test identification of the seized articles and

prepared memo Ex.P/16 which bears his signature.

11. PW-5 Dargahi Prasad identified all the accused persons and

stated that on the date of incident 5-6 hooligans entered his house with

clubs, tied his son Paras and Govind; however, his daughter-in-law

escaped from there; he was made to sit in the courtyard. His wife was

threatened by the dacoits of life if she did not disclose the place where

the articles are kept. They looted utensils, saree, shirt, dhoti, blanket,

axe and other household articles. In cross-examination he states that

there is a land dispute with Sunderdev. He saw all the accused persons

in the police station only and thereafter before the court. He states that

he does not know name of the accused persons except accused

Sunderdev.

12. PW-6 Phoolkunwar also states that she identifies all the accused

persons, on the date of incident they entered her house with club, tied

her sons and looted the household articles. In cross-examination she

denies the suggestion that 8-10 days after the incident the Station

House Officer called them to police station to show the accused

persons. PW-7 Parasnath states that the accused persons committed

dacoity in his house and looted utensils, clothes, axe etc and locked

them in the house. In cross he states that he identified accused

Sunderdev.

13. PW-8 Govind and PW-9 Bechan identified accused Sunderdev

only. PW-9 Bechan and PW-10 Devsai were declared hostile by the

prosecution.

14. It is clear from the statements of all the witnesses that they only

identified co-accused Sunderdev. The complainant and other witnesses

state that they saw all the accused persons in the police station before

the Station House Officer. Learned trial Court also observed in para 12

of the impugned judgment that prosecution witnesses Dargahi Prasad,

Phoolkunwar and Parasnath have clearly deposed that after arrest of

the accused, the Station House Officer called them to police station for

identification where they identified the accused persons before the

SHO. It is thus clear from the statements of the witnesses that they

identified the accused persons at the police station and therefore,

before the trial court.

15. It is well settled that if the evidence on record reveals that the

accused was shown to the witness prior to TIP, such identification loses

its significance and sanctity of TIP before the Court is doubtful. The

Hon'ble Supreme Court in the matter of Gireesan Nair and others Vs.

State of Kerala reported in (2023) 1 SCC 180 held in paras 28 & 29 of

its judgment as under:

"28. In cases where the witnesses have had ample opportunity to see the accused before the identification parade is held, it may adversely affect the trial. It is the duty of the prosecution to establish before the court that right from the day of arrest, the accused was kept "baparda" to rule out the possibility of their face being seen while in police custody. If the witnesses had the opportunity to see the accused before the TIP, be it in any form, i.e., physically, through photographs or via media (newspapers, television etc.), the evidence of the TIP is not admissible as a valid piece of evidence (Lal

Singh and Ors v. State of U.P., (2003) 12 SCC 554 and Suryamoorthi and Anr. v. Govindaswamy and Ors., (1989) 3 SCC 24).

29. If identification in the TIP has taken place after the accused is shown to the witnesses, then not only is the evidence of TIP inadmissible, even an identification in a court during trial is meaningless (Sk. Umar Ahmed Shaikh v. State of Maharashtra (1998) 5 SCC 103). Even a TIP conducted in the presence of a police officer is inadmissible in light of Section 162 of the Code of Criminal Procedure, 1973 (Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 and Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 SCR

903)."

16. In view of above decision, in the present case, looking to the

statements of the witnesses, the TIP loses its significance. This apart,

the witnesses to memorandum and seizure have also not supported

the prosecution case. Thus, considering the oral and documentary

evidence available on record, this Court finds that the prosecution has

not been able to prove its case against the appellant beyond

reasonable doubt. He deserves to be acquitted of the charge by

extending him benefit of doubt.

17. In the result, the appeal is allowed and the impugned judgment

of learned trial Court is hereby set aside. The appellant is acquitted of

the charge under Section 395 of IPC.

The appellant is reported to be on bail. Therefore, keeping in

view the provisions of Section 481 of BNSS, 2023, his bail bonds shall

continue for a period of six months from today.

Sd/ Digitally

MOHD signed by MOHD AKHTAR (Rajani Dubey) AKHTAR KHAN Date:

KHAN      2026.04.10
          16:29:51
          +0530
                                                                                      Judge
   Khan