Raghu Tirkey vs The State of Chhattisgarh

D.R. Deshmukh, J.

This judgment shall govern Criminal Revision 229/ 2005 preferred by Raghu Tirki and also Criminal Revision No. 79/2000 preferred by Ashwaghosh. In both the revisions, the applicants above mentioned have assailed the common judgment dated 4.5.2005 delivered by Shri H.S. Markan, learned Sessions Judge, Surguja, Ambikapur (C.G.) in Criminal Appeal No. 113/2003 (Ashwaghosh Xalxo v. State) in Criminal Appeal No.118/2003 (Raghu Tirkey v. State) whereby conviction of the applicants herein for offences u/s 454 & 380 I.P.C. and the sentence of Simple Imprisonment for one year and a fine of Rs. 500/- each, in default to undergo additional S.I. for one month on each count recorded by Shri V.K. Chanakya, Chief Judicial Magistrate, Ambikapur vide judgment dated 25.03.2003 in Criminal Case No. 1129/99 was affirmed.

Briefly stated the prosecution story is that on 5.12.1999 between 8.30 and 9.00 A.M. applicants-Ashwaghosh, Raghu and one Rajendra Kujur entered the Mission hostel in Lakhanpur and after breaking open the locks of the rooms of Sister Filo P.W.2, Sister Sabina P.W.3, Sister Latina, Sister Divya, Sister Mariya committed theft of cash Rs. 29,945/-, one Camera, one Umbrella one V.C.P., one Bag, one torch and two purses. The inmates of the hostel, upon being informed that the thieves were going towards Lakhanpur, chased them. Meanwhile, Sister Filo P.W.2 lodged F.I.R. in Police Station Lakhanpur at 9.10 A.M. vide Ex. P.1.

Applicants Raghu Tirkey and co-accused Rajendra were apprehended near the high school ground in Lakhanpur by one Manuel, Edward P.W.4 and one Gulabram P.W. 6. One black coloured leather bag, total cash Rs. 8,800/- and one iron Saw kept inside the B.C.P. bag were seized vide Ex.P.7 from co-accused Rajendra Kujur. One old plastic bag, one folding umbrella, one table watch, one torch on which the name of Sister Gloriya was written and one Canon Camera were seized vide Ex.P.9, one leather purse, one iron rod and cash of Rs. 10,700/- were also seized vide Ex.P.10 and Rs. 730/- were seized vide Ex.P.11 on 5.12.99 from the applicant Raghu Tirkey. On 11.12.99 one green coloured full pant and one blue coloured new full sleeves shirt were seized from the applicant Ashwaghosh Xalxo. None of the articles seized were subjected to identification by Sister Filow P.W.2 or the inmates of Mission Hostel. After completion of investigation, the applicants Raghu Tirkey, Ashwaghosh and co-accused Rajendra Kujur were prosecuted.

The applicants Raghu Tirkey and Ashwaghosh abjured their guilt. The prosecution examined as many as 9 witnesses. The learned trial Judge relying upon the evidence led by the prosecution convicted and sentenced the applicants as aforesaid in para 1.

Shri Amiya Kant Tiwari, learned counsel appearing for Ashwaghosh and Shri A.K. Prasad, learned counsel appearing for Raghu Tirkey have contended that the evidence led by the prosecution does not establish the guilt of the applicants beyond doubt since the articles seized were not subjected to test identification. It is further contended that the testimony of Gulab Ram P.W. 6 is not reliable since in para 7 thereof it has emerged that he was testifying at the behest of Sister Sabina and others. In para 10 of his testimony, he has admitted that he came to know in the evening that the thieves have been apprehended which completely contradicted his testimony that he had chased the thieves and apprehended them in the high school ground near the police station. It was further conteneded that there was no evidence to establish the guilt of Ashwaghosh since the new full pant and shirt seized on 11.12.99 from the applicant Ashwaghosh was not proved to be stolen property. On the other hand, Shri Ashish Shukla, G.A. has argued in support of the impugned judgment.

Having heard rival contentions, I have gone through the record. So far as the fact of commission of theft inside the Mission Hostel in Lakhanpur is concerned, it is fully established by the testimony of Sister Gloriya P.W.1, Sister Filow P.W.2. Their unrebutted testimony establishes that after breaking open the locks of many rooms inside the Mission hostel, a V.C.P. Bag, torch, Camera, table watch, Umbrella and cash Rs. 29,000/- had been stolen.

Prosecution has examined a child witness namely Ku. Shashi P.W.5 who has stated that she had seen the applicants entering the Mission Hostel on the date of occurrence. After some time she had seen the applicant-Raghu and co-accused Rajendra Kujur coming out of the hostel and running towards Lakhanpur. She has further stated that they were carrying a black coloured bag. Gulab Ram P.W.6 has stated that he saw the applicant Raghu coming out of the Mission hostel carrying a bag and one V.C.D belonging to Sister. Upon this he ran to the Church and informed Edward P.W. 4. Both chased Raghu and Rajendra and apprehended them near the high school ground. I have minutely perused the testimony of Gulab Ram P.W.6 and Edward P.W.4. Edward P.W.4 has also corroborated the testimony of Gulab Ram and stated that they had apprehended Raghu and Rajendra on the date of occurrence. He has further stated that cash, Camera, V.C.R., table watch, torch and an iron rod were seized from Raghu and Rajendra. The testimony of the above witnesses is further corroborated by Sub-Inspector Subhash Das P.W.9 who has proved the seizure memo Ex.P.9, P.10 and P.11 which shows that one plastic bag, one black folding umbrella, one table watch, one torch upon which the name of Sister Gloriya was written, one Canon Camera and one red coloured leather purse, one iron rod and cash of Rs. 11,432/- were recovered and seized from the possession of the applicant Raghu Tirkey immediately after the occurrence at 10.45 A.M. Nothing has emerged in the testimony of Edward Kujur P.W. 4, Ku. Shashi P.W.5 and Gulab Ram P.W.6 which would go to show that they bear any grudge against the applicant-Raghu Tirkey or had any reason to falsely implicate the applicants herein. Their testimony is reliable, inspires confidence and proves that the stolen articles were recovered from the applicant-Raghu Tirkey immediately after the occurrence on being chased and apprehended by Edward P.W.4 and Gulab Ram P.W.6 It also establishes that the applicant-Raghu Tirkey was seen entering the Mission Hostel as also emerging therefrom carrying a black coloured bag by Ku. Shashi P.W.5.

Thus, so far as the applicant-Raghu Tirkey is concerned, the evidence led by the prosecution fully establishes the guilt u/s 454 and 380 I.P.C. It is true that no test identification of the articles was conducted. However, in this case, the applicants were seen entering the Mission Hostel. The evidence led by the prosecution shows that after breaking open the locks of the rooms of many Sisters occupying the hostel, various articles and cash were stolen. Applicant-Raghu Tirkey was seen emerging from the hostel carrying a black coloured bag, was chased and apprehended by Edward P.W.4 and Gulab Ram P.W.6. Immediately thereafter seizure of one torch on which name of Sister Gloriya was written, one Canon Camera and one folding umbrella, one table watch, cash Rs. 11,432/- one iron rod, one red coloured purse form the possession of Raghu Tirkey has also been proved. In the above mentioned circumstances, the absence of test identification of any seized articles does not created a dent in the prosecution case. Having thus considered the evidence led by the prosecution in its entirety, no such illegality or manifest error of law is seen which would justify any interference in the conviction of the applicant- Raghu Tirkey u/s 454 & 380 I.P.C. and the sentence awarded thereunder in exercise of revisional jurisdiction.

So far as the applicant-Ashwaghosh in concerned, there is absolutely no evidence against him. Neither witnesses Edward P.W.4, Ku. Shashi P.W.5 and Gulab Ram P.W.6 have stated that he was seen entering or emerging out of the Mission Hostel or that he was apprehended near the high school ground. So far as the seizure of one green coloured new full pant and one blue coloured sleeves shirt vide Ex.P.12 from the possession on applicant-Ashwaghosh on 11.12.1999 is concerned, these articles were articles of common use and were not a part of a stolen property. Therefore, it cannot be said to be an incriminating circumstance against the applicant-Ashwaghosh and does not establish his guilt u/s 454 & 380 I.P.C. The impugned judgment so far as it relates to the applicant-Ashwaghosh is thus perverse since the conviction is based upon no evidence.

Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that so far as Criminal Revision No. 79/2006 preferred by Ashwaghosh is concerned, it deserves to be allowed while Criminal Revision No. 229/2005 preferred by Raghu Tirkey deserves to be dismissed.

In the result, Criminal Revision NO. 79/2006 preferred by Ashwaghosh Xalxo is allowed, Conviction of the applicant-Ashwaghosh u/s 454 & 380 I.P.C. and their sentence awarded thereunder are set aside. The applicant-Ashwaghosh shall be set at liberty forthwith, if not required in any other case. Criminal Revision No. 229/2005 stands dismissed and conviction of Raghu Tirkey u/s 454 & 380 I.P.C. and sentence awarded thereunder are maintained. His bail bonds stand cancelled. He shall surrender before the Chief Judicial Magistrate, Ambikapur on 30.03.2006 to Undergo sentence.