Chattisgarh High Court
Kamlesh Chouhan vs State Of Chhattisgarh on 16 January, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:2905
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1889 of 2022
Kamlesh Chouhan S/o Ramdhari Chouhan Aged About 22 Years R/o Village
Indira Colony, Kouhakuda, Police Station Pithora, District Mahasamund
Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through - Station House Officer, Police Station Pithora,
District Mahasamund Chhattisgarh
... Respondent
For Appellant : Mr. Shikhar Sharma, Advocate.
For Respondent : Mr. Devesh G. Kela, Panel Lawyer.
Hon'ble Smt. Justice Rajani Dubey, J
Judgment On Board
16/01/2025
The appellant in this appeal is challenging the legality and validity of
the judgment of conviction and order of sentence dated 11.5.2022 passed by
Sessions Judge, Mahasamund in ST No.H-02/2021 whereby the appellant
stands convicted and sentenced as under:
Conviction Sentence
Under Section 450 of Indian Penal RI for 07 years, fine of Rs.1000/- and
Code. in default thereof to suffer additional
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RI for 01 month.
Under Section 394 of Indian Penal RI for 10 years, fine of Rs.1000/- and
Code. in default thereof to suffer additional
RI for 01 month.
Under Section 397 of Indian Penal RI for 07 years, fine of Rs.1000/- and
Code. in default thereof to suffer additional
RI for 01 month.
Under Section 506-II of Indian Penal RI for 07 years, fine of Rs.1000/- and
Code. in default thereof to suffer additional
RI for 01 month.
All the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that on 18.10.2020 at around 13:30
hours some unknown person illegally entered the house of complainant
Nirmala with intention to commit loot on the threat of life. Seeing him, the
complainant got afraid and when she asked about his identity, he demanded
money on the point of knife. He snatched Rs.2000/- from her purse and
demanded more money. During this process, he assaulted on her with knife
as a result of which fingers of both her hands got cut. The assailant also
suffered cut injury in his hand. However, on her raising alarm, he fled from
there. Based on this report, offence under Sections 394, 450 and 506 of IPC
was registered against unknown person. The complainant was got medically
examined, bloodstains from the place of occurrence were seized and spot
map was prepared. During investigation, the accused/appellant was arrested
and on his memorandum, the clothes worn by him at the time of incident,
cash of Rs.2000/-, knife and motorcycle used in commission of crime were
seized and he too was subjected to medical examination. The seized articles
were sent to FSL for chemical examination. After completion of necessary
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investigation, charge sheet was filed under Sections 394, 450, 506, 397 and
398 of IPC.
03. Learned trial Court framed charges under Sections 450, 397, 394 and
506 Part-II of IPC against the accused which were abjured by him and he
prayed for trial. In order to substantiate its case the prosecution examined 13
witnesses. 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.
However, no witness was examined by him in defence.
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 in para 1 of this judgment.
Hence this appeal.
05. Learned counsel for the appellant submits that the impugned judgment
is contrary to law and material available on record. Learned trial court ought
to have appreciated the fact that the complainant in her cross-examination
admitted that the person who entered her house had covered his face with
scarf and his face was not identifiable. She also admitted that she could
identify the accused/appellant as the police had showed her photographs of
the accused. Thus, identification of the accused is very much doubtful in this
case. Further, seizure of knife and cash of Rs.2000/- is also not significant
because knife is a common article found in every household and the amount
recovered is also not so much as to connect the accused with the crime in
question. The statements of the prosecution witnesses also suffer from the
vice of contradiction and omission. The prosecution has failed to prove its
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case based on the evidence adduced by it and therefore, the findings of guilt
recorded by the trial Court are liable to be set aside and the appellant be
acquitted of all the charges.
06. On the other hand, learned counsel for the State opposing the
contention of the appellant submits that the learned trial Court upon minute
appreciation of oral and documentary evidence has rightly convicted and
sentenced by the appellant by the impugned judgment which calls for no
interference by this Court. Therefore, the present appeal being without any
substance is 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 the appellant was
charged under Sections 450, 397, 394 and 506 Part-II of IPC and after
appreciation of oral and documentary evidence, he was convicted and
sentenced by the impugned judgment as mentioned in para 1 of this
judgment.
09. PW-2 Smt. Nirmala Pimpalkar, complainant, states in her examination-
in-chief that on the date of incident the accused entered her house with a
knife and demanded money on the point of knife. He took out Rs.2000/- from
her purse. During the scuffle when she raised her hand, three fingers of each
of her hands got cut. However, on her raising hue and cry, the accused fled
from there. She states that report of Ex.P/5 was lodged by her which bears
her signature from A to A part and the spot map Ex.P/6 bears her signature
from A to A part. She states that she identified the accused before the
Executive Magistrate vide Ex.P/7.
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In her cross-examination she admits that the accused had covered his
face with a scarf and therefore, he was not identifiable. She further volunteers
that she had pulled the scarf and saw his face. However, in para 11 she
states that the police had shown her the photograph of the accused in the
hospital. She admits that only on the basis of photograph shown to her by
the police, she identified the accused in the test identification parade. She
further volunteers that on account of pulling the scarf, she identified him. On
being asked as to why she did not mention the fact of pulling the scarf in FIR
(Ex.P5) and her case diary statement (Ex.P/1), she states that at that time
she was in hospital, all this was written by the police, the contents were not
read over to her whereas she had disclosed this fact to the police.
10. The other witnesses namely PW-3 Smt. Aarti Dani and PW-4 Hemant
Pimpalkar (son of the complainant) are not eyewitness to the incident. Even
PW-3 has stated that the complainant told her that an unknown thief entered
her house with his face covered.
11. PW-6 TR Dewangan, Sub Divisional Officer, states that he conducted
test identification parade in Tahsil Office, Pithoura where the complainant duly
identified the accused and accordingly he prepared the identification memo
Ex.P/7 which bears his signature from B to B and C to C part. He denied the
suggestion that before TIP the complainant was already shown the
photograph of the accused on mobile.
12. PW-11 Naveen Sahu and PW-12 Arun Sahu are witnesses to the
memorandum Ex.P/21 and seizure Ex.P/22. They only admit their signature
on these documents and state that they signed these documents at the
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behest of police. The prosecution declared them hostile and cross-examined
but they denied all the suggestions of the prosecution.
13. Learned trial Court has convicted the appellant under Sections 394 and
397 of IPC whereas Section 397 of IPC deals with enhanced punishment only
and it’s not a substantive offence. The High Court of Madhya Pradesh in the
matter of Kallu @ Ramkumar Vs. State of Madhay Pradesh, 1992 MPLJ
558 observed in para 11 of its judgment as under:
“11. Learned trial Judge has sentenced the accused persons
under sections 395 and 397 of the Indian Penal Code
separately. Section 397 of the Indian Penal Code deals with the
enhanced punishment only. It is not a substantive offence. The
substantive offence may be robbery or dacoity. In this case, the
substantive offence as proved, is dacoity and, therefore, there
ought to have been only one sentence. It is a different matter
that the enhanced punishment could be inflicted with the aid of
section 397 of the Indian Penal Code.
Consequently, the appeal filed by accused Kallu alias
Ramkumar, Barelal and Sukhram is accepted. They are
acquitted of the charges levelled against them. They are on
ball. Their ball-bonds are discharged.
The appeal of accused-appellants Gabbar allas Goverdhan
and Chhotu alias Dayaram is dismissed and sentence passed
against them under section 395 read with section 397 of the
Indian Penal Code, i.e., rigorous imprisonment for seven years,
is maintained. Appellant No. 1 Gabbar alias Goverdhan is in jail.
He be informed with the result of this appeal accordingly.
Appellant Chhotu alias Dayaram is on bail. He is directed to
appear before the Chief Judicial Magistrate, Seoni, on 11-12-
1991 for serving out the remaining period of sentence.”
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14. So far as identification of the accused is concerned, looking to the
evidence of the complainant and other witnesses, the TIP appears to be
doubtful. She admits that prior to TIP, the police had shown her photograph of
the accused on mobile while she was in hospital. 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.
15. 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 para … 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).”
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16. Having regard to the facts and circumstances of the case, the nature
and quality of evidence adduced, in particular of the complainant; the manner
in which identification of the accused is made; keeping in view the aforesaid
decisions this Court is of the opinion that the prosecution has failed to prove
its case beyond reasonable doubt against the appellant. Neither identification
of the accused is proved in accordance with law nor memorandum or seizure
is proved against him. Learned trial Court without properly appreciating the
oral and documentary evidence on record has recorded finding of guilt which
cannot be sustained and the appellant deserves to be acquitted of all the
charges by extending him benefit of doubt.
17. In the result, the appeal is allowed. The impugned judgment of the trial
Court is hereby set aside and the appellant is acquitted of the charges under
Sections 450, 394, 397 and 506 Part-II of IPC. He is reported to be in jail,
therefore, he be set free forthwith if not required to be detained in connection
with any other offence.
18. Keeping in view the provisions of Section 437-A of CrPC, appellant is
also directed to furnish a personal bond in terms of form No.45 prescribed in
the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the
like amount before the Court concerned which shall be effective for a period
of six months alongwith an undertaking that in the event of filing of special
leave petition against the instant judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereon shall appear before the Hon’ble
Supreme Court.
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The record of the trial Court along with copy of this judgment be sent
back immediately to the trial Court concerned for compliance and necessary
action.
Sd/
(Rajani Dubey)
Digitally
MOHD signed by Judge
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan
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