SUNIL MISHRA v. STATE OF CHHATTISGARH

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2. Challenge in these appeals under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.) is to the judgment of conviction and order of sentence dated 16.06.2023 passed in Sessions Trial No. 42/2020 by the learned Additional Sessions Judge, Rajnandgaon, by which which each of the appellants have been convicted and sentenced as under:

Conviction under Section

Jail Sentence (Rigorous) Fine Default Sentence

395 of the Indian Penal Code (for short, the IPC)

Life

imprisonment

Rs. 10,000/- 6 months R.I. more

506 IPC 2 years Rs. 1,000/- 2 months more Both the above jail sentences to run concurrently. However, the default sentence would run separately.

3. The appellants/accused were charged for the offences punishable under Sections 341/34, 394, 395/34, 506, 120(b) of the IPC alleging that on 24.08.2020 at about 17:45 hours, near the pond in village Hoditola, they wrongfully obstructed the complainant-Gopendra Gupta (PW-3) from proceeding in his direction, in the course of common intention and voluntarily caused hurt to the complaint (PW-3) by stealing 12 kg silver jewellery worth Rs. 6,00,000/- and gold jewellery 40 pieces lockets, 12 pieces earring, 10 pieces gold ring, 05 pieces double hook locket, 05 pieces dorla weighing 109 grams, total worth Rs. 5,45,000/- and cash worth Rs. 9,000/-, motor cycle and mobile were robbed and caused criminal intimidation to the complainant (PW-3) by threatening to kill him and also entered into a criminal conspiracy together with the intention of committing robbery.

4. The case of the prosecution, in brief, are that on 24.08.2020, the complainant (PW-3) had gone to the weekly market Amatola on his

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motorcycle bearing registration number CG-08-Z-6003 Hero Deluxe at around 3:00 p.m. to sell gold and silver ornaments. After buying and selling gold and silver ornaments in the weekly market Amatola, he was returning alone on his motorcycle to his home Bandhabazar at around 5:30 p.m. He had kept the gold and silver ornaments in a white coloured bag and a ply box. He was returning home by motorcycle after tying the bag and box at the back of the motorcycle. When he reached near the Hoditola pond at around 5:45-6:00 p.m., at the same time, suddenly a person picked up a stick and caught him with the vehicle to rob him and threw him on the ground. At the same time, three more persons came there and dragged Gopendra Gupta about 100 metres away from the road and one person took the motor cycle of the complainant (PW-3) and turned around and went away. Three men took the complainant 100 meters away and made him lie on the ground. One of them asked him to blindfold the complainant and another man asked him to stab him. When Gopendra Gupta was trying to get up up from the ground, the three men snatched his mobile phone and left their gamchhas, all the three men went to the person who had taken complainant's bike and thereafter, all the four men together robbed his bike and gold and silver jewellery and ran away. The jewellery kept in the bag and box contained about 12 KG of silver bearing double G mark. Silver jewellery includes 20 pairs of ainthi weighing about 3.500 kg worth Rs. 1,75,000/-, 10 pairs of silver lachcha and santhi weighing about two kg worth Rs. 1,00,000/-, 25 pairs of silver anklets weighing about four KG worth Rs. 2,00,000/-, 05 pieces of Kardhan weighing 300-300 grams each, totaling 1.5 kg worth about Rs. 75,000/-, 05 pieces of Kardhan weighing 200 grams each, total weight 01 kg worth Rs. 50,000/-, total Rs. 6,00,000. The silver Santhi Payal, Kardhan had AC mark and double G mark was on the Anthi. Gold

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jewellery included 40 pieces of lockets, each locket weighing 1 gram, total 40 grams, price Rs. 2,00,000/-, about 12 pieces of plain earring and also with fringe of 2 grams each, total 24 grams, price Rs. 1,20,000/- 10 pieces of rings of 2 grams each, total 20 grams, price Rs. 1,00,000/-, 05 pieces of locket with hook weighing 15 grams, price Rs. 75,000/-, 05 pieces of Dorla weighing about 10 grams, price Rs. 50,000/- total weight 109 grams, total price Rs. 5,45,000/- and cash of Rs. 9,000/-. One Spice company mobile of the complainant (PW-3) whose SIM number is 9406409322, two or three pieces of used bill book in which Kanchan Jewelers and Furniture was written, the purse given to the customers in which the name of the shop is written which had a photo in it, were looted by unknown persons.

5. The complainant (PW-3) went to Ambagadh Chowki at about 20:30 hours and lodged the report against unkown persons upon which Crime No. 149/2020 was registered for the offence under Sections 394, 341, 506/34 of the IPC. The complainant (PW-3) was sent by Inspector Ashirwad Rahatgaonkar (PW-16) to the Community Health Center, Abagarh Chowki, for medical examination and on the same day, a pink check print Gamchha of the unknown accused was seized from Gopendra Gupta in presence of witnesses.

6. During the investigation, the Investigating Officer, Inspector Ashirwad Rahatgaonkar (PW-16) seized a wooden stick, three bottles of Thumps Up cold drink, three small and big stones and one Rajshree Gutka pouch from the place of incident and on the same day in presence of witnesses and prepared a seizure memo. On 25.08.2020, the IO went to the place of incident and a spot map as per information given by complainant (PW-3). While fleeing, the accused had left the

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complainant's motor cycle No. CG 08 Z 6003 near the pond of village Bital, which was seized by the IO in presence of the witnesses. While fleeing, the accused had thrown away the complainant's mobile phone near the village Pathandhodgi which was picked up by Hemant Kumar, a resident of village Pathandhodgi, and kept it with himself. The said mobile was seized by the IO from Hemant Kumar in presence of witnesses. On 09.09.2020, the IO (PW-16) recorded the memorandum statement of the accused in presence of witnesses at Ambagarh Police Station. In the said memorandum, the accused accepted robbing gold and silver jewellery from the complainant (PW-3) and told them to keep their share of jewellery at their house and to get it recovered.

7. On the basis of the memorandum of the accused persons, the IO (PW-

16) on 09.09.2020 seized various jewellery items from accused Mohammad Rizwan. From the accused Mohammad Mehraz, various gold and silver jewellery items including one old bill book of Kanchan Jewellers written on it and one mobile of Vivo Company was seized in presence of witness. On the same day, the IO seized various jewellery items, one mobile of Vivo Company, one Motorcycle Yamaha bearing registration No. CG 04 CT 0543 was seized from the accused Sunil Mishra. From the possession of the accused Mohammad Gulzar, various jewellery items including a purse in which Kanchan Jewellers and Furniture, Bandhabazar was printed which contained the photograph of the complainant and the air ticket of Indigo Airlines, one Vivo mobile was seized. Similarly, on the same day, the IO seized various jewellery and one mobile of Samsung company from the possession of the accused Nikit Binjhale and from the accused Karan Mishra, including jewellery items, one motorcycle bearing Registration No. CG-08 G 5692 and one mobile of Realme Pro Company was seized by the IO (PW-16).

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8. The IO sent a notice to Virendra Soni (PW-11) on 09.09.2020 for identification and weighing proceedings of the seized jewellery. On the same day, the jewellery seized from the accused was weighed and identified in presence of witnesses. A notice was given to the complainant (PW-3) to submit the bill regarding the ownership of the seized jewellery, on which the complainant presented the receipts. On 12.09.2020, a memorandum was sent to the Executive Magistrate Ambagarh Chowki for conducting the proceedings for identification of the jewellery. On 14.09.2020, the IO (PW-16) sent a memorandum to the Tehsildar Ambagarh Chowki to get the spot map prepared from the Patwari, on which on 03.11.2020, Patwari Tauheed Ahmed (PW-9) visited the spot and prepared the map.

9. The Executive Magistrate/Tehsildar Parmeshwar Lal Mandavi (PW-13) received six sealed packets of seized gold and silver jewellery along with a memorandum from Ambagarh Chowki Police Station on 14.09.2020 and got the gold and silver jewellery identified in presence of witnesses at the Tehsil office Ambagarh Chowki on 18.09.2020, wherein the complainant (PW-3) identified his jewellery after opening the sealed jewellery and comparing it with other jewellery, whose identification report was prepared by Tehsildar Parmeshwar Lal Mandavi. The Station House Officer, Police Station Ambagarh Chowki, sent a memo to the Executive Magistrate, Ambagarh Chowki upon which Parmeshwar Lal Mandavi (PW-13) had conducted the identification proceedings at District Jail Rajnandgaon on 26.09.2020 after including other prisoners and the accused persons. The complainant (PW-3) identified the accused in presence of witnesses, for which identification proceedings were prepared. During the investigation, the IO (PW-16) recorded the statements of the Jitendra Pal (PW-1), Manoj Kumar (PW-2),

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complainant (PW-3), Safi Mohammad (PW-4), Ramsing (PW-5), Shivam Gupta (PW-6), Devkishan Gupta (PW-7), Pranay Kumar Bajpai (PW-8), Shobhnath Singh Rajput (PW-12), Avinash Warke (PW-14), Satyanarayan Singh (PW-15), Rajendra Kumar Sharma, Hemant Chandravanshi, Virendra Shankar Soni and Pranav Sharma.

10. After completion of the investigation, the police submitted the police report alongwith charge-sheet against the appellants/convicts under section 394, 395, 341, 506, 120-B, 34 of the IPC on 24.08.2020 before the Judicial Magistrate First Class, Ambagarh Chowki, District Rajnandgaon which was registered as Criminal Case No. 159/2020 and was later committed to the Court of Additional Sessions Judge, Rajnandgaon, vide order 15.12.2020.

11. The learned Additional Sessions Judge, Rajnandgaon, framed charge on 15.02.2021 charging the appellant/accused for the offence punishable under Sections 341 read with Section 34, 394 and 395 read with Section 34, 506 and Section 120-B of the IPC. The appellants/ convicts abjured the guilt and prayed for trial.

12. In order to bring home the offence, prosecution examined as many as 16 witnesses namely; Jitendra Pal (PW-1), Manoj Kumar (PW-2), complainant Gopendra Gupta (PW-3), Mohd. Safi (PW-4), Ram Singh Patel (PW-5), Shivam Gupta (PW-6), Devkishan Gupta (PW-7), Pranay Kumar Bajpeyi (PW-8), Tauhid Ahmad (PW-9), Domar Singh Chandravanshi (PW-10), Virendra Shankar Soni (PW-11), Shobhnath Singh Rajput (PW-12), Parmeshwar Lal Mandavi (PW-31), Avinash Warke (PW-14), Satyanarayan Singh (PW-15), IO, Ashirwad Rahatgaokar (PW-16) and exhibited 60 Exhibits and 8 Articles.

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13. The statement of the appellant/convict under section 313 Cr.P.C was recorded on 05.06.2023. They stated that they were innocent and have been falsely implicated in this case. In support of their case, they got the statement of Gopendra Gupta (PW-3) exhibited as as Exhibit D/1.

14. The learned trial Judge, after considering the evidence on record, convicted the appellants/accused as detailed in the opening paragraph of this judgment. Hence, the present appeal by the appellants/convict.

15. Mr. Rishabh Bisen as well as Mr. Anmol Sharma, learned counsel appearing for the respective appellants submit that there are total six accused in this case, three of the accused belong to Rajnanadgaon and three belong to the State of Uttar Pradesh. It is submitted by the learned counsel that there are contradictions and omissions in the evidence of the witnesses. The learned trial Court ought to have considered this fact that the evidence adduced by the prosecution is not sufficient to hold the appellants guilty of the offence in question. It is submitted that one of the memorandum/seizure witness namely Rajendra Kumar Sharma has not been examined by the prosecution. Jitendra Pal (PW-1) and Manoj Kumar (PW-2) who are the independent witnesses have not supported the prosecution case. Even the statement of the complainant (PW-3) is contradictory as he was not able to correctly inform as to what was the actual number of the robbers/dacoits. Even though in the FIR, the complainant stated that one accused had wore a helmet but in TIP, he has identified all the persons. The entire TIP is doubtful and cannot be relied upon as different witnesses have stated different numbers of accused being identified by the complainant. Even the complainant has admitted that the Tahsildar had already disclosed the seized jewellery to the interested witnesses. Pranay Kumar Bajpayi (PW-8) is the interested

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witness and friend of the son of the complainant. In the alternative, it is lastly submitted by the learned counsel for the respective appellants that since all the looted jewellery has been recovered and handed over to the complainant, some leniency may be shown by this Hon'ble Court and if at all this Court is of the view that the appellants are guilty of the offences, the jail sentence may be reduced to the minimum or else their entire life would be ruined behind the bars as the jail sentence of imprisonment for life with fine of Rs. 10,000/- each awarded by the learned trial Court is too harsh.

16. On the other hand, Mr. Sangharsh Pandey, learned Government Advocate appearing for the State/respondent submits that the appellants have committed robbery and theft of gold and silver ornament from the complainant and they had also threatened him to kill him. The looted articles have been recovered at the instance of the accused themselves from their own possession and the vehicles used for commission of the crime has also been seized. The accused/appellants have been duly identified by the complainant in the Test Identification parade and as such, there remains no manner of doubt that it was the accused/ appellants who have committed the offence in question. The learned trial Court has not committed any illegality or irregularity while convicting and sentencing the appellants as aforesaid and as such, all these appeals deserve to be dismissed.

17. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

18. In nutshell, case of the prosecution is that the appellants had committed dacoity by robbing the gold and silver jewellery from the complainant on

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the way while he was returning on his bike from the weekly market after doing his business. The accused are six in number who all stand convicted as aforesaid.

19. The term dacoity has been defined in Section 391 of the IPC which reads as under:

"391. Dacoity.—When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".

20. Section 395 of the IPC provides for punishment of dacoity which states that whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

21. The appellants/convicts have also been convicted and sentenced for the offence under Section 506 of the IPC which provides that whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; if threat be to cause death or grievous hurt, etc.— and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

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22. The incident is said to have taken place on 24.08.2020 at about 17:45 hours to 18:00 hours and the FIR in this regard was lodged by the complainant promptly at 20:30 hours on the same day wherein he has stated that there were four persons who had committed the offence and has also given the description of one person who had long beard and was wearing a mask. All the four accused were stated to be around 25 to 30 years. The mobile which was robbed by the accused persons was seized from one Hemant Kumar Chandravanshi from village Pathan Dhodgi vide Exhibit P/4 which was thrown by the accused persons. Similarly, the motorcycle of the complainant was seized vide Exhibit P/7 from village Bital near a pond lying by the side of the road. Exhibit P/19 to 24 are the memorandum statement of accused-Mehraj Ansari, Mohd. Gulzar Khan, Mohd. Rizwan, Sunil Mishra, Nikit Kumar Bijhale, and Karan Mishra. They all have described how they all made a plan to commit dacoity and rob the complainant who used to conduct the business of selling and purchase of gold and silver jewellery in the weekly market on Monday. They used two motorcycles for the said purpose. In one motorcycle, Gulzar, Karan Mishra and Rizwan and in other motorcycle Sunil Mishra, Mehraz Ansari and Nikit Binjhale reached the place of incident and after committing the dacoity. After the incident, the motorcycle of the complainant was driven by Sunil Mishra and when the same broke down, it was left at village Bital. It has also been stated by them that they had thrown the mobile phone of the complainant near Pathan Dhodgi. They all reached Dongargaon where they divided the looted article and threw the box in a river in which the jewllery was kept. The cash amount was also distributed amongst them and were kept in their respective houses.

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23. Even though the complainant had stated in the FIR that there were four accused but the police had made six persons as accused, it is very much possible that at the time of incident, due to fear and shock, the complainant could not have described the correct story at the time of lodging of the FIR as he was also threatened by one of the accused to be done to death.

24. The police during the course of investigation has recovered the looted articles from the possession of the accused/appellants on the basis of their memorandum statement and the two motorcycles have also been seized. In the identification proceedings of the jewellery, the jewellery has been identified by the complainant as it contained special marks in the jewellery.

25. It is an admitted position that out of the six accused/convicts, the complainant has identified all the accused except Mohammad Mehraj. Vide Exhibit P/9, which is test identification memorandum, the complainant has identified Mohammad Rizwan and Nikit Kumar, vide Exhibit P/10, the complainant has identified the accused-Sunil Mishra, and vide Exhibit P/11, the complainant has identified the accused Karan Mishra and Mohammad Gulzar. Shobhnath Singh Rajput (PW-12) and Satyanarayan Singh (PW-15) are the witnesses to the said proceedings. In their statement before the Court, they have clearly deposed that the complainant had identified the accused persons. Alongwith the accused persons, there were other prisoners also and it was not a case where only the accused persons were standing in a queue.

26. Even the appellants have not offered any explanation in their statements recorded under Section 313 Cr.P.C. to any of the questions and simply stated that they have been falsely implicated in this case.

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27. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellants/ convict.

28. So far as the sentence part is concerned, looking to the age of the appellants/convicts, who were around 21 to 23 years of age except the appellant-Sunil Mishra who was aged about 27 years of age at the time of incident, and and further the fact that they do not have any previous antecedent, this Court is of the opinion that looking to the fact that this is their first offence, it would not be proper to sentence the appellants with such harsh punishment of life imprisonment with fine of Rs. 10,000/- each for the offence punishable under Section 395 of the IPC as the imprisonment for life would ruin the entire life of the appellants. Instead, for the said offence, each of the appellants are sentenced for a period of 7 years rigorous imprisonment with fine of Rs. 5000/- and in default of payment of fine, to undergo further 1 month's rigorous imprisonment. So far as sentence for the offence under Section 506 of the IPC awarded by the learned trial Court is concerned, the same does not warrant any interference. Both the sentences shall run concurrently.

29. As a result, these appeals are partly allowed.

30. The appellants are stated to be in jail. They shall serve out the remaining part of the sentence as has been modified by this Court.

31. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their respective jail sentences to serve the same on the appellants informing

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them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

32. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

JUDGE CHIEF JUSTICE

Amit

AMIT

KUMAR

DUBEY

Digitally signed by

AMIT KUMAR

DUBEY

Date: 2025.01.13 18:05:53 +0530