Madhya Pradesh High Court
Vijesh @ Brajesh vs The State Of Madhya Pradesh on 23 October, 2021
Author: Shailendra Shukla
Bench: Shailendra Shukla
1 CRA Nos.114-149/2011
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.114 OF 2011
Vijesh @ Brajesh S/o Dhannalal Raghuvanshi
Age 28 years, Occupation - Labour
Resident of 99/6, Nandbihar Colony,
Narmada Road, Rau, District - Indore (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Bhanwarkuan
District - Indore (MP)
.....Respondent
And
CRIMINAL APPEAL NO.149 OF 2011
(1) Gourav @ Goldi S/o Sundarlal Jaiswal
Age-31 years, Occupation-Business
Address: Village Bagrod,
District - Ratlam (MP)
A/P-1212, Ram Rahim Colony, Rau,
Indore (MP)
(2) Santosh S/o Manoj Kumar
Age-24 years, Occupation-Service
Address-1212, Ram Rahim Colony, Rau,
District-Indore (MP)
(3) Vipin S/o Dharamnath Sharma
Age-24 years, Occupation-Service
Address-1212, Ram Rahim Colony, Rau,
District-Indore (MP) ....Appellants
Versus
The State of Madhya Pradesh
Through Police-Station - Bhanwarkuan
District - Indore (MP)
....Respondent
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Shri Tarun Kushwah, learned counsel for the appellant -Vijesh @
Brajesh in Cr.A. No.114 of 2011 and for appellant Gourav @ Goldi
in Cr.A. No.149 of 2011.
Shri S.K. Golwalkar, learned counsel for the appellants No.2 and 3
in Cr.A. No.149 of 2011.
Smt. Mamta Shandilya, learned counsel for the
respondent /State of Madhya Pradesh.
2 CRA Nos.114-149/2011
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JUDGMENT
(Delivered on 23rd day of October 2021) Per Shailendra Shukla, J.
These appeals under Section 374 of Code of Criminal Procedure, 1973 have been preferred aggrieved with judgment of conviction and sentence dated 16.12.2010 passed by 16 th Additional Sessions Judge, Indore (M.P.) in Session Trial No.830/2008, whereby the appellants have been held guilty and sentenced as under:-
Conviction Sentence Fine Imprisonment in
lieu of payment of
fine
u/S. 395 IPC Life Imprisonment Rs.5000/- 06 Months RI
u/S. 450 IPC 06 Years R.I. Rs.2000/- 02 Months RI
2. The appellants namely; Gourav @ Goldi, Santosh and Vijesh have been convicted additionally under Section 25(1)
(b)(a) of Arms Act, 1959 and sentenced to 03 Years RI with fine of Rs.1000/- and 02 months RI with further default stipulation. All the jail sentences have been ordered to run concurrently.
3. The prosecution story in nutshell was that on 08.09.2008 at about 3:35 pm to 3:40 pm, daily banking transactions were taking place as usual at Prakash Nagar branch of State Bank of India, Indore. All of a sudden, Branch Manager, Leeladhar 3 CRA Nos.114-149/2011 (PW/1), while sitting in his Chamber heard commotion and saw people rushing around. He saw three miscreants with pistols in their hands threatening the customers and Bank staff, telling them to assemble in the Chamber of Bank Manager. The miscreants were talking in Hindi and were about 25-30 years of age and had covered their faces with handkerchiefs. They looted the currency/amount lying in the cash counter of the Bank and it was found later that the missing currency was to the tune of Rs.9,68,122/-. The accused confined the Bank staff and customers in the chamber and locked the chamber from outside and fled from the spot. Police control room was informed telephonically. Police team from Bhanwarkuan Police- Station arrived at the spot and initiated investigation. Sub- Inspector, Mr. Pratap Singh Ranawat (PW/31) lodged Dehati Nalishi (Ex.P/1) which was based on the statements of Branch Manager, Leeladhar (PW/1). On the basis of (Ex.P/1), FIR was lodged at Crime No.646/08. In the ensuing investigation, spot- map Ex.P/53 was drawn. The cash-book register from the Bank was seized from Senior Assistant Girdharilal (PW/10). Transactions which had been entered in the computer were also seized vide Ex.P/4. True copy of the counter slips of money deposited by the customers was seized as per Ex.P/5. 4 CRA Nos.114-149/2011 One of the customers who had thrown his mobile which was later on seized from one of the appellants, submitted the bill of mobile purchased which was seized from him. The first accused was arrested barely three days after the incident i.e. on 11.09.2008 and by 15.09.2008 all the accused had been arrested. Their memorandum statements were recorded. The ed cash, pistols with live rounds motorcycle used along with helmet were seized from the accused persons. The seized pistols, revolvers and live rounds were sent for mechanical examination which were found to be in working condition. Sanction for prosecution under the Arms Act was taken from District Magistrate, Indore. In all, cash of Rs.8,35,000/- were recovered from all the accused persons.
4. After investigation, charge-sheet was filed before the Chief Judicial Magistrate, who committed the matter to Sessions Judge, Indore, from where the matter was made over to 16th Additional Sessions Judge (Fast Track Court). Charges were read over to the appellants who abjured their guilt and claimed innocence. The prosecution has examined as many as 32 witnesses in support, whereas no evidence has been led by the appellants in their defense.
5 CRA Nos.114-149/2011
5. Out of the witnesses examined by the prosecution, seven witnesses are the employees of State Bank of India, Prakash Nagar Branch, Indore who were present at the time of incident and these are namely; Branch Manager Leeladhar (PW/1), Deputy Manager, Ajay Kumar Dave (PW/2), Senior Assistant Chandrakala Rathi (PW/3), Assistant Manager Surendra Vyas (PW/8), Deputy Manager Rajgopal (PW/9), Relationship Executive Anchal Jhanwar (PW/11) and Special Assistant Vijay Singh Bundela (PW/19). The customers of the Bank who were present at the time of the incident are Satish Kumar Dwivedi (PW/4), Dharmraj (PW/16), Ranu Jaiswal (PW/17) and Smt. Radha (PW/20). Police Officers who had recorded the memorandum statements of the accused and had drawn seizure memo are Assistant Sub-Inspector B.S. Sikarwar (PW/29) and Pratap Singh Ranawat (PW/31). Head Constable Irfan Ali (PW/28) is the Arms Moharir. Investigating Officer Pratap Singh Ranawat (PW/31) has conducted overall investigation. Trial Court, after examining the witnesses has convicted and sentenced the appellants, as mentioned in the first paragraph of the judgment. Apart from the appellants, one another co-accused namely; Manoj had also been convicted who has since expired.
6 CRA Nos.114-149/2011
6. In the appeal filed by the appellants namely Gourav @ Goldi, Santosh and Vipin, it has been mentioned that the eye- witnesses who have deposed have admitted that they did not know the accused persons and test identification parade has also not been conducted in this matter and that the witnesses have given inconsistent and contradictory statements and the whole case is totally false and fabricated.
7. In the appeals preferred by appellants Vijesh @ Brajesh and rest of the appellants in their separate appeals, it has been pointed out that the witnesses have only deposed in a manner which would not travel beyond conjecturing. They have been given statements to the effect that it appears that appellants were the same persons who had committed the loot in the Bank but none of these witnesses have given a definite opinion regarding the involvement of appellants in the crime. It is further stated that it is the case of the prosecution only that all the accused persons/miscreants who had entered in the Bank premises had covered their faces with handkerchief/clothes and therefore it was not possible for them to identify any of the miscreants but had identified only by height etc which was not a conclusive proof that the miscreants were the appellants only. It has been further stated that although the prosecution 7 CRA Nos.114-149/2011 has relied upon the memorandum and seizure of looted items from the appellants/accused but the independent witnesses of these documents have stated that they were made to sign on blank papers. It is further stated that none of the employees of the Bank or the Customers have received any kind of injury showing that there was no inclination of the miscreants to cause hurt to any of these persons. Terming the conclusion drawn by the Trial Court as incorrect, the appellants have sought acquittal.
8. The main question before us is whether in view of the grounds contained in the appeals and oral submissions made on behalf of these appellants, whether the appellants deserve to be acquitted ?
9. It would be appropriate to revisit the evidence adduced by the prosecution.
10. Leeladhar (PW/1) has stated that while he was working on computer in his Chamber at about 3:30 pm on 08.09.2008 in his capacity as Branch Manager in State Bank of India at Prakash Nagar, Indore, heard sounds of commotion, he saw miscreants who had tied up their faces with clothes and was brandishing the pistol and was assembling the customers to congregate towards the chamber of the witness. One another 8 CRA Nos.114-149/2011 person was stationed near the outside door. He was also possessing the pistol. The miscreant who was pointing the pistol near the chamber of witness was asking as to who is the Branch Manager and also asked to hand over the locker keys. The witness states that he did not give any response. As per him, all the miscreants were well built. The witness further states that he only identified the accused from their physical characteristics which he could not do earlier.
11. Ajay Kumar Dave (PW/2) who was Deputy Manager of the Bank has stated that on the day of the incident, he had resumed his work after the lunch time and he heard some commotion and the voices were coming from the cabin of the Branch Manager. At that moment, a person pointed a pistol at him and took him to the cabin where he saw 4 to 5 pistol wielding persons with covered faces. These persons were of the same built as those appearing before him at the time of deposition. He states that he had not gone to a police station despite receiving a notice Exh.P/10, which was for identification of the accused. The witness states that due to being frightened, he had declined to go for identification. In para 6 he admits that although persons with same faces are rare to be found but persons with the same height and body 9 CRA Nos.114-149/2011 frame can be found. Chandrakala Rathi (PW/3) was Senior Assistant in Prakash Nagar Branch of SBI. She states that she was looking after the single window (cash counter) of the bank. As per this witness, at about 3.00 PM or 3.30 PM while she was working and a queue of approximately 15 customers was lined up before her, at that point of time, a person wielding a pistol came up and shoved the persons standing in the queue and pointed pistol at her. He asked her to stand up in a hands up position. The person who had pointed pistol at her was wearing a helmet. The witness states that she immediately realized that these persons were looters. She closed the door of her counter and immediately moved inside the strong room so that she may push the button which would activate the siren. The witness states that she again opened up the door for allowing inside another employee namely Ranu. At that very moment the helmet wearing person climbed over the counter and started banging at the door saying that if she would not open, he would shoot the persons standing outside. As per this witness, outside strong room, bank employee Mr. A.K. Dave was sitting on his chair who also possess a key to a safe inside the strong room. The witness states that fearing that looter would shoot Shri A.K. Dave, she opened the door of the strong 10 CRA Nos.114-149/2011 room. The miscreant put his revolver against her temple and asked for the keys or else threatened that he will shoot her. She declined possessing the and miscreant continued to threaten her. She was then taken to the cabin of the Branch Manager and asked as to who has the possession of the key to the locker. Witness replied that none of them had the key to the locker room. At that point of time, she saw one of the miscreant collecting the money from the cash counter and putting inside the white bag. They also tried to open up the bank locker. Witness states that she was so frightened that she could not muster courage to even look at the accused persons. Hence, she does not know as to how these miscreants fled from the bank. She states that the miscreant who had put the money inside the white bag was the same who had held his revolver against her temple. In para 7, she has been asked as to whether she identifies the accused persons she states that he can identify appellant Santosh and Manoj, both of whom had covered their faces and that Manoj was also wearing a helmet. She states that she has identified both these persons on the basis of their body built submitting that the miscreant who had committed the loot have the same body built as these accused. She again reiterates that Manoj is the person who had pointed 11 CRA Nos.114-149/2011 a revolver at her and who was wearing a helmet. She thereafter identifies rest of the accused persons as well, ie., Vijesh @ Brajesh, Vipin and Gaurav. In para 8 she admits that she had received a notice for identifying, but she had declined because of fear. The notice is Ex.P/11. In para 12 of her cross examination she states that she had gone to the police station for identification. She admits further that the looters had covered their faces with the cloth and therefore, their faces could not be seen. In para 15, she admits that there are number of persons who are thin and may have the same height but faces of persons are not alike.
12. Learned counsel for the appellants submits that the statements of this witness made in examination in chief that she had identified the accused persons is not reliable statement because she has herself stated that the looters had their faces covered. He submits that just because of body built being the same it cannot be stated that these were the same persons because admittedly their can be number of persons having the same body built and height.
13. There is substance in the submissions of the learned counsel for the appellant that with the admission that looters had their faces covered, identifying them only on the basis of 12 CRA Nos.114-149/2011 body built may not be a clinching evidence regarding identification of the persons.
14. Satish Kumar Dwivedi (PW/4) has stated that on the day of the incident he had gone to the Branch for depositing Rs.2000/- and was standing in the queue and there were 3 to 4 persons standing in front of him. At that point of time, 4 to 5 persons came wielding revolver and one of whom was wearing a helmet. One of these two persons pointing revolver asked the witness and other to go inside the cabin of manager and asked them to face the wall. At that point of time, due to a call received, the mobile of the witness started to ring and he was asked to throw the mobile. The mobile was thrown by the witness. This mobile belong to his uncle Ratandhan Dwivedi. The bill of the mobile is Ex.P/15, which was seized as per Ex.P/14. This mobile has been shown to have been seized from one of the accused persons by the Investigating Officer which shall be discussed later on. However, the witness, on being asked a question as to identification of the accused, states in para 4 that the looters had covered up their faces a worn helmet and therefore, their faces could not be seen.
15. Surendra Vyas (PW/8) has stated that he was posted as Addl. Manager in the State Bank of India, Prakash Nagar 13 CRA Nos.114-149/2011 Branch, that on 8.9.2008, while he was on duty at 3.30 PM a person covering his face with cloth came to him and pointed a revolver at him and asked him to stand up. He was taken to the cabin of Branch Manager and the door of the cabin was closed. All these persons who had come as looters were between 20 to 30 years of age, one of whom was bulky with short height wearing a helmet and rest were having lean frames. They were wielding pistols. These miscreants stayed in the bank for 10 minutes and looted a cash from the cash counter. The witness has pointed at the Gaurav and Santosh stating that the looters had similar body built as these persons but states that he cannot for sure state that these were the same accused had come to the bank for committing loot. The witness states that he had received notice Ex.P/30 for identifying the accused but he had replied that due to security reasons he would not appear for identification proceedings. In cross examination he admits that there may be many persons with the same body frame as that of Santosh and Gaurav and further admits that due to covered faces, he could not see the colour of the skin of the looters.
16. Raj Gopal (PW/9) states that he was working as the key manager in Prakash Nagar Branch of State Bank of India, on 14 CRA Nos.114-149/2011 that day, he was working as Dy. Manager in Prakash Nagar Branch of State Bank of India. On the day of the incident, at about 3.30 PM a person covering his face with cloth and wielding a pistol came to his table and asked him to stand up or he will shoot. The witness states that he thought that the persons is of unsound mind and therefore, he did not comply. The miscreant again asked him sternly to stand up or he will be shot. The witness stood up with his hands stretched above his head. He saw that there were 4 other miscreants one of whom was wearing helmet. All of whom were about 25 years of age. The witness states that he was taken to the chamber of Branch Manager where there were other staff members also and miscreants locked him inside the chamber. The witness further states that employee Rathi (PW/3) was threatened to come out of the strong room and thereafter the miscreant collected the money kept in the cash counter as they were asking a key of the locker again and again. The witness in para 3 states that he can identify Manoj as one of the miscreant who was in the bank. He states that apart from Manoj he can also identify accused Santosh and it was Santosh who was giving instructions to other co-accused persons asking that to take out cash from cash counter. The witness further states that he had 15 CRA Nos.114-149/2011 received a notice Ex.P/31 asking him to joint the identification proceedings, which he replied by declining for security reasons. In para 7, he admits that due to covered faces, the facial features of the miscreants could not be seen. However, he states that he could identify the accused from their size, hairs, eyebrows and body frames. He states that different persons may have different types of eyes. All the persons generally do not have identical shaped eyes. The witness admits that in Ex.D/5, he had not stated that one of the accused was giving instructions to other co-accused persons.
17. Learned counsel for the appellants submits that in fact, no identification proceedings were carried by the Investigating Officer and the witness Rajgopal (PW/9) has deposed on 20.5.2019, i.e., 8 months after the incident with the admissions of the witness that all the accused had their faces covered and with no identification proceedings carried out, the dock identification by this witness is not reliable.
18. Considered.
19. The dock identification may be reliable piece of evidence provided there are no inconsistencies in the statement of the witness and there is no time lapse between date of incident and that of deposition. As far as witness Rajgopal (PW/9) is 16 CRA Nos.114-149/2011 concerned, not only there is a substantial lapse of time but due to fact that accused were seen covering their faces at the time of incident and inconsistencies in her cross examination as to identification by eyes, body frame etc, his statements would not conclusively prove that the accused persons who had committed loot were the same as appearing before the Court during deposition.
20. Witness Anchal Jhanwar (PW/11) states that she was the relationship executive posted in the Prakash Nagar Branch of State Bank of India and at about 3.00 PM in the evening while she was sitting in the cabin of Branch Manager, 5 persons had entered into the bank and they scattered themselves in the premises of the bank. A commotion ensued and the witness saw that such persons had their faces covered and were wielding guns. They were compelling the persons inside the premises of the bank to to to the cabin of Branch Manager. He states that the accused collected Rs.9,68,122/- from counter and left. As per this witness he received a notice from Tehsildar for joining the identification proceedings. The notice is Ex.P/32. He states that he did not join the identification proceedings for the reasons expressed in the reply to the notice. The witness has in para 4 stated that the accused persons were the same 17 CRA Nos.114-149/2011 who had committed the loot. He states that he can identify the accused on the basis of their height and body built. In cross examination this witnesses admits that there may be many persons having the same height and the body built can also be similar in different person. In para 5, he states that he had gone to the police station when he was asked by SHO to identify the persons standing their telling him that these are the same persons who had committed the loot and that he should identify them. The witness states that he had replied by stating that the looters had covered their faces and therefore, he cannot identify them.
21. Learned counsel for the appellants states that the statements of this witness regarding identification by him of the accused is also not reliable because of his admission in cross examination that various persons may have the same body built.
22. Considered.
23. As is admitted, all the accused had covered their faces and therefore, there was no way to identify them by their faces and the body structure was one of the other facets of identification. However it is true that this alone would not be a clinching piece of evidence for the identification purpose. There 18 CRA Nos.114-149/2011 has to be other corroborative pieces of evidence as well. Witness Abdul Wasim (PW/15) and Dharampal (PW/16) are the other witnesses before whom the incident had taken place. Dharampal (PW/16) states that he is employee of an RTO agent and looks after the banking transaction of his employer. His employer has his account in the aforesaid Branch. The witness states that on the day of the incident he had gone to the Branch for depositing Rs.1,35,000/- in the account number of Manjeet Singh Bohara who was his employer. He had filled up the bank slip and given to the cashier. At about 3.30 to 3.45 PM as soon as he took his hand out of the counter after giving a money a miscreant came with a revolver and given indication to him and others to go to the cabin of the Branch Manager. The person had covered his face along with whom there were other 4 to 5 miscreants all of whom of age between 20 - 25 years. They were asking for the keys from the bank cashier and were threatening the persons who were inside the bank. These persons then collected the money from counter in a bag and left after 10 minutes. The witness after seeing the accused states that he cannot identify them as the accused who came to the bank as looters had covered their faces. He also states that due to nervousness he could not even grasp the kind of 19 CRA Nos.114-149/2011 body structures of the looters. He has been declared hostile and denies that he had given such statement to the police that the looters were having lean frames.
24. Ranu Jaiswal (PW/17) has stated that she was employed in the bank and her hob was to tie up together the cash received in the bank. She states that the cashier was Chandrakala Rathi on the date of the incident, ie. on 8.9.2008. At about 3.30 PM, Rathi madam (PW/3) had closed the cash counter when some persons arrived who had covered their faces. These persons had lean frames, but their faces could not be seen. The witness states that these persons were wielding small guns. The witness further states that she had locked herself in a room, the miscreant kicked the door threatening them that they should come out or else they shall shoot the persons standing out. As per the witness she opened up the cash counter gate and immediately the miscreants had kept guns against temple of the witness and took the witness to a cabin and locked her from outside. They entered the cash room and filled up the bag with the cash. The witness states that she is not in a position to identify the accused because they had their faces covered. When the witness was 20 CRA Nos.114-149/2011 confronted with the accused persons appearing before the Court, she states that she cannot identify them.
25. She also states that she had declined to attend the identification proceedings after receiving a notice Ex.P/40. In cross examination she states that she was appointed as water woman in the bank and her job was to provide drinking water to the staff. She however, used to look after other work at the instructions of the Manager. She has been confronted with the police statement Ex.D/6 in which there is no mention of a revolver being pointed at her. There is no mention about the door of the room being kicked from outside. The question has been asked from her by the Presiding Officer regarding identification of accused. She replies that the accused were having their faces covered and therefore, she cannot identify. Learned counsel submits that this witness has clearly states in her examination - in - chief only that she cannot identify the accused because their faces were covered with clothes. There is substance in the submissions of the learned counsel. The witness at no point of time has identified the accused and therefore her statements are of no help for prosecution as far as identification of the accused is concerned. 21 CRA Nos.114-149/2011
26. The next eyewitness is Vijay Singh Bundela (PW.19) who states that he was working as Senior Assistant in Prakash Nagar Branch of State Bank of India and on the date of the incident at about 3.00 PM to 3.30 PM while he was on duty, 5 to 6 miscreants having their faces covered and wielding pistols entered into the bank, one of them positioned himself near the gate. The next came inside and pointing revolver on the customers and bank staff took them in a room and locked them in a cabin and started asking for the key to the locker threatening them that they would be killed if key is not given. As per this witness one of the bank employees told that they do not have in their possession the key of the locker then the accused went to the door of the strong room which had been locked from inside by cashier Chandrakala Rathi (PW.3). The miscreants shouted and threatened that she should come out otherwise she and her other staff colleagues would be shot dead. Hearing such threats Chandrakala Rathi (PW.3) came out. The accused then collected money from the cash counter in a bag and left the bank. The bag in which the money was kept was having in print of an advertisement of Pan Gutka. The witness states that miscreants were between 20 to 25 years of age and were of the similar body frames as that the accused 22 CRA Nos.114-149/2011 appearing before the Court. She states that a notice Ex.P/41 had been received by him for requiring him to appear in the identification proceedings. The witness states that he had given a reply stating that due to criminal background of the accused persons, he does not want to run the risk of identifying the accused. In cross examination he admits that he had been called to the police station and the accused were taken out of the lockup room and there were other bank employees with him and police told him that these are the persons who had committed loot and from them the police has recovered the money. In para 10 he admits that persons of similar body frames are commonly found. However, persons with same faces are generally not found. Learned counsel for the appellant submits that this witness although claims to identify the accused from their body frames had admitted that persons with similar body frame be generally found and therefore, such identification would not be a conclusive piece of evidence for the purpose of identification. This submission is acceptable. It has already been concluded earlier that identification from body structure cannot be considered to be conclusive piece of evidence as far as the question of identification is concerned. However, the submission that the accused who had committed 23 CRA Nos.114-149/2011 the crime of loot had similar body structure as that of the appellants cannot be looked over completely.
27. Witness Radha (PW/20) has stated that she had gone to the bank for depositing money which was Rs.2.00 lacs. She was to deposit Rs.1.00 lac in her account and Rs.1.00 lac in her husband's account. She has already deposited Rs.1.00 lac and was about to deposit Rs.1.00 lac more. She was facing towards the cash counter at that point of time 7 to 8 persons came and pointed a revolver on a lady who was working in the cash counter. One of them pointed a gun at the witness and gave an indication to her to move aside. She states that she became extremely nervous and could not see. He states that Rs.1.00 lac which she was carrying and the ornaments which she was wearing were shoved by her beneath a sofa set placed in the bank. Witness states that all the miscreants had covered their faces and therefore, she could not see any one's face. She has been declared hostile. She admits that she had received a notice Ex.P/43 in which she had declined to attend the identification proceedings due to fear factor. She admits in para 7 again that she cannot identify the accused persons. The evidence of this witness is of no help to the prosecution as far 24 CRA Nos.114-149/2011 as the identification of the accused is concerned. Thus, it can be seen that there is no identification.
28. Pratap Singh Ranawat (PW/31) who was SHO at Police Station Bhanwarkuan has stated that he had given notices to the banking staff and the customers of the bank who were present inside the bank on the date of the incident as per Exhibits P/8, P/11, P/30, P/31, P/32, P/40, P/41 and P/43, but the recipients of these notices had declined to appear due to fear. It can be seen that no identification proceedings was carried out by the Investigating Officer and the reason for doing so disinclination of the witnesses to attend such proceedings. Some of the witnesses have already found are completely hostile as far identification of accused is concerned. Others have claimed to have identify the accused from their body structure, height etc as also from their age brackets but none of the witnesses have claimed to have identified them by their faces because of the same being covered by the clothes at the time of incident. It has been found that the doc identification has been carried out after lapse of about 8 months from the date of incident. It has also been observed earlier that identification by body structure is not a conclusive piece of evidence of identification as the possibility of number of other 25 CRA Nos.114-149/2011 persons having the same body structure cannot be ruled out. However what emerges from the evidence of these witnesses is that accused who had committed the offence of loot had similar body structure as the appellants, which cannot be looked over and would be an admissible piece of evidence. However, further evidence is required for proving the case against them. From the evidence of witnesses, it is proved that an incident of loot in Prakash Nagar Branch of State Bank of India had indeed taken place on 8.9.2008 at about 3.30 PM and the looters had taken away cash placed in the cash counter after threatening the banking staff and the customers present in the bank at the time of incident.
29. Girdhari (PW/1) has stated that the looted amount was Rs.9,68,122/- and this amount was determined from tallying cash book register of the bank and the closing amount contained in the computer. The copy of the cash book register is Ex.P/3 and the closing amount is Ex.P/4. The amounts deposited by customers during the day were contained in deposit slips which were 67 in numbers. The total amount so deposited was Rs.12,18,170/-. The aforesaid deposit slips were seized as per seizure memo Ex.P/5.
26 CRA Nos.114-149/2011
30. Pratap Singh (PW/31) has stated that he had seized the cash book register from Girdharilal (PW/1) and the whole day's transaction was also determined from the computer which included the amounts deposited by the customers and withdrawn by them. The sum of amount thus remaining was Rs.9,68,122/- and therefore, this was the amount which had been looted. These witnesses have not been cross examined in such a manner that their claim may be subjected to any uncertainty or doubts. Hence, it is found proved that the amount of Rs.9,68,122/- in fact was looted from the bank.
31. The other piece of evidence is in the form of memorandum and seizure of cash and other incriminating items from the accused. The witnesses relevant for the purpose are ASI B.S. Sikarwar (PW.29) and S.I. Pratap Singh Ranawat (PW.31), ASI Shri F.M. Qureshi (PW.30).
32. Regarding appellant Vijesh - ASI B.S. Sikarwar (PW.29) states that he was posted in police station Bhawarkuwa on the date of the incident. During investigation the memorandum of accused Brijesh @ Vijesh was recorded by the witness who had proposed to recover his share of Rs.35,000/- which he had kept in an iron box in the house of his relative namely Tukaram Raghuvanshi. The memorandum is Ex.P/45 carrying signatures 27 CRA Nos.114-149/2011 of the witness from c to c part. On the basis of this memorandum a box was taken out by accused from the house of Tukaram Raghuvanshi on opening which Rs.35,000/- were recovered which were in the currencies of Rs.50 and Rs.100 denomination. The seizure memo is Ex.P/46. The witness stated that he has recorded the statement of Tukaram.
33. Tukaram (PW/13) has stated that he knows accused Brajesh @ Vijesh who resides in his colony only. However, this witness is hostile as far as the recovery of an independent box from his house at the instance of Vijesh @ Brajesh is concerned. After being declared hostile. He admits that Brajesh @ Vijesh is his cousin brother. However, he denies that in order to save his brother he is not telling the truth. The suggestion has been denied by him. The independent witnesses of memorandum and seizure are Chandan (PW.23) and Indresh (PW.27). Both the witnesses have turned hostile. Although the independent witnesses have turned hostile, but it is a settled principle that just because of this, the evidence of police officer would not be rendered unreliable unless there are serious contradictions / inconsistencies in his statement.
34. ASI B.S. Sikarwar (PW.29) has admitted in para 10 of cross examination that he has not seized the iron box from 28 CRA Nos.114-149/2011 which the money was recovered. The witness states that the seizure of currency was the material piece of evidence and therefore, the box was not seized. He admits that in the currency which was seized, there was no bank seal appended on any of the note. The statement of this witness has been corroborated by Pratap Singh Ranawat (PW.31) who states in para 19 that on the basis of memorandum of Brijesh @ Vijesh an iron box was recovered from his relative as per Ex.P/45. This witness has not been asked any specific question regrading Exhibits P/45 and P/46.
35. The currency of Rs.35,000/- has been recovered on the basis of memorandum of the appellant Vijesh @ Brajesh Raghuvanshi from inside the house of Tukaram (PW/13). Tukaram is the relative of Vijesh @ Brajesh Raghuvanshi. Although, he has turned hostile but there is no reason for doubt as to the veracity of B. S. Sikarwar (PW/29) and Pratap Singh Ranawat (PW/31).
36. All these notes were in the denominations of Rs.100/- and Rs.50/-. In general search, notes of particular denominations in bundles would be generally found when the amount is withdrawn from a bank. Further, such comparatively substantial amount could have been obtained in a commercial 29 CRA Nos.114-149/2011 transaction. However, the appellant has neither shown any commercial transaction nor any banking transaction hence, he has not shown the source of money recovered at his insistence. This is a corroborative piece of evidence against him.
37. Further on 11.09.2008, on the basis of memorandum of the appellant Vijesh @ Brajesh Raghuvanshi, the currency note bundles of Rs.500/- and Rs.100/- denominations, in total Rs.1,80,000/- was recovered from the cloth bag carrying advertisement of "Vimal Gutka" along with a pistol loaded with magazine containing two live cartridges. The seizure memo is Exhibit P/23, which is dated 11.09.2008.
38. Thus, it can been seen that while memorandum Exhibit- P/45 in respect of Rs.35,000/- was given on 21.09.2008, the memorandum Exhibit-P/21 in respect of recovery of pistol and Rs.1,80,000/- has been given at an earlier date i.e. on 11.09.2008 at 7.45 AM and the recovery of pistol and Rs.1,80,000/- on the basis of this memorandum has been made at 11.50 AM from inside the house of the appellant.
39. The independent witnesses of the memorandum and seizure memo (Exhibits-P/21 and P/23) are Mohd. Aslam (PW-
5) and Vinod (PW-7). Both these witnesses have turned 30 CRA Nos.114-149/2011 hostile and not supported the prosecution story of seizure on the basis of memorandum and they deny that the appellant was questioned before them and recovery was also made. In cross-examination, B. S. Sikarwar (PW-29) has admitted that he had not seen the ownership documents of the house of the appellant and neither he had given any notice to the neighbours of the appellant. He states that the witnesses were accompanying him and therefore he did not consider any necessity to issue notice to any neighbours.
40. The statements of these witnesses have been corroborated by Pratap Singh Ranawat (PW-31), who has stated that Rs.1,80,000/- was recovered from the house of the appellant situated at Nand Vihar Colony, Rau on the basis of his memorandum and these notes were in the denominations of Rs.500/-, Rs.200/- and Rs.100/-. This amount was seized along with a pistol carrying two live bullets and these items were contained in a bag of "Vimal Gutka". The cloth bag which is Article-E has been identified by this witness. This witness in para-42 denies that independent witnesses i.e. Mohd Aslam and Vinod were not present when he was recording the memorandum statements of the appellant. In para-48, he states that he had taken Mohd. Aslam and Vinod himself when 31 CRA Nos.114-149/2011 proceeding for recovery of the looted amount. He has exhibited Rojnamchasanha Exhibit-P/16 in which it has been mentioned that Mohd. Aslam and Vinod were hamrah. He admits that he did not give any notice to the accused before searching the house of the accused. He however states that the house was in possession of the accused only.
41. From perusal of the statements of Pratap Singh Ranawat (PW-31), it does not appear that there is any substantial lacuna/inconsistency in his deposition. His statements have duly been corroborated by B. S. Sikarwar (PW-29). Although, the independent witnesses have turned hostile but there is no rule of law that evidence of police officers cannot be relied upon unless and until corroborated by independent witnesses. The aforesaid amount of Rs.1,80,000/- has been shown to be seized from the house of appellant Vijesh @ Brajesh Raghuvanshi.
42. As per seizure memo Exhibit-P/23, the present address of the appellant is 99/6, Nand Vihar Colony, Rau and this address has been shown in the arrest memo as well, which is Exhibit-P/17. The same address has been given by the appellant in his accused statements. The appellant has not given any evidence to show that he does not reside at the 32 CRA Nos.114-149/2011 aforesaid address. The currency, which has been seized from him is in bundles of specific currency denominations of Rs.500/-, Rs.200/- and Rs.100/-. Such huge amount of money can either be found in a house in a recent commercial transaction or by way of withdrawal from the bank. However, no aforesaid situation has been shown to have existed. One of the witnesses namely, Vijay Singh Bundela (PW/19) has stated that the looted amount was being kept in a cloth bag on which words "Vimal Gutka" were printed. This evidence shows that in all probability, the amount recovered was in fact the same amount looted from the bank and was kept in a bag carrying the same print i.e. "Vimal Gutka", which has been seen by an eye-witness. Further, from the same bag, a pistol with two live cartridges have also been recovered at the insistence of the appellant. This fact further substantiates the prosecution story that the amount was part of the looted amount, which was looted at the point of gun.
43. Regarding appellant Santosh - The Investigating Officer Pratap Singh Ranawat (PW/31) has stated that on 11.09.2008, the memorandum statements of appellant Santosh was recorded in which he proposed to recover the mobile allegedly snatched from a person in the bank along with looted 33 CRA Nos.114-149/2011 Rs.50,000/- and a pistol which had been used in committing the offence. The memorandum statement is Exhibit-P/22 which has been signed by Mohd. Aslam (PW-5) and Vinod (PW/7). On the same day in presence of the same witness, Rs.50,000/- cash containing notes of Rs.500/- and Rs.100/- denominations, a pistol with four live cartridges and a Nokia mobile model No.1200 carrying IMEI No.35953401973051 was seized vide seizure memo Exhibit-P/24 carrying signatures of the witness and independent witnesses. B. S. Sikarwar (PW-
29) has corroborated these statements submitting that from appellant Santosh he had recovered Rs.50,000/- cash, a pistol with live cartridges and Nokia mobile phone in his presence and in the presence of the Investigating Officer Pratap Singh Ranawat (PW/31). The witness also states that on 10.09.2008 under the direction of the Investigating Officer, cash memo of the mobile purchased was seized from Kirti Dwivedi and the seizure memo is Exhibit-P/14 which carries signatures of the witness from C to C part and also of the Investigating Officer from D to D part. Pratap Singh Ranawat also corroborates these statements in para-4 of his examination-in-chief and the bill is Exhibit-P/15.
34 CRA Nos.114-149/2011
44. As already stated, the independent witnesses have turned hostile however, there is no law that the evidence of police officers cannot be relied upon unless and until corroborated by the independent witnesses. It has been shown that there has to be material discrepancy in the statements of such police officers before doubting the credibility of such evidence. On perusal of Exhibit-P/15 shows that the mobile bill bears IMEI No.35953401973051, which is same as that of the mobile number seized from appellant Santosh. It has already been stated by Satish Kumar Dwivedi (PW/4) that the mobile phone of Nokia company with the same IMEI number was taken from him by one of the miscreants. There is no discrepancy in the statements of this witness so as to discredit them hence, the onus was upon the appellant Santosh to show as to how this mobile phone belonging to Satish Kumar Dwivedi (PW/4) had come in his possession. It was further required to show the source of Rs.50,000/- cash recovered from his house. No explanation has come forth from the appellant Santosh and therefore, there is no escaping conclusion that appellant Santosh who was present in the bank on the date of the incident with a pistol had taken the mobile phone of Satish Kumar Dwivedi hence, there is strong 35 CRA Nos.114-149/2011 corroborative evidence against appellant Santosh who was involved in committing loot in the bank.
45. Regarding apellant Gaurav @ Goldi - Shri B.S. Sikarwar (PW/29) states that while he was posted as ASI in Police Station Bhanvarkua, two lac rupees cash were seized from the house of Gaurav @ Goldi containing currency notes of denominations of Rs.1,000/-, Rs.100/- and Rs.50/- as also Bajaj Discover motorcycle bearing No. MP09-M.B.-8671 along with a helmet and a country-made revolver of 32 bore as per Ex.P/26.
46. Pratap Singh Ranawat (PW/31) has stated that he had interrogated appellant Gaurav on 11.9.2008 at Police Station Bhanvarkua, who had revealed that out of the looted amount from the State Bank of India, Palda Road, his share of Two Lakh Rupees were hidden in an almirah at his residence, the motorcycle which was used in committing the offence, the revolver and the black helmet are also placed in his house. The memorandum is Ex.P/20 carrying signatures of the witness from D to D part and that of the accused from E to E part. The witnesses were Aslam and Vinod.
47. Witness Pratap Singh Ranawat (PW/31) further states that from the house of Gaurav situated in Ram Rahim Colony, 36 CRA Nos.114-149/2011 Rau, the aforesaid items were seized as per seizure memo Ex.P/26.
48. The statements of this witness have been supported by Shri B.S. Sikarwar (PW/29), as already mentioned earlier. Independent witnesses Aslam and Vinod i.e. PW/5 and PW/7 have already turned hostile as has been referred to earlier. Ex.P/26 shows that 91 currency notes of denomination of Rs.1,000/- each, 1038 currency notes of denomination of Rs.1,00/- each and 104 currency notes of denomination of Rs.50/- each have been recovered from the appellant. The onus was upon the appellant Gaurav to show as to how such a huge amount was kept by him in his house. Whether they pertain to any commercial transaction entered into by him or whether he had withdrawn the aforesaid amount from Bank, has not been explained. Seizure of country-made revolver along with the currency notes also needed to be explained, which has not been done by him. The seizure of these incriminating items was made three days after the incident. The proximity of time between the incident and the seizure creates a presumption against the appellant, which has not been discharged by him and, therefore, strong corroborative piece of evidence linking the appellant with the incident is proved. 37 CRA Nos.114-149/2011
49. Regarding appellant Vipin - Pratap Singh Ranawat (PW/31) has stated that on 15.9.2008 appellant Vipin was arrested vide Ex.P/36. He was arrested from the house of Wasim from Ram Rahim Colony, Rau. On interrogation, the appellant gave his memorandum statements as per Ex.P/37, in which he had stated that one lac rupees of the looted amount has been kept by him in his house hidden in a wooden box, which he had proposed to recover. Subsequently the recovery of the aforesaid amount was made as per Ex.P/38. A perusal of Ex.P/38 shows that 100 currency notes of Rs.500/- amounting to Rs.50,000/- and 500 currency notes of Rs.100/- amounting to Rs.50,000/- (in all Rs. 1 Lakh) were recovered from him. The independent witnesses are Mohd. Shakil and Abdul Wasim. Mohd. Shakil is PW/14 and Abdul Wasim is PW/15. Both these witnesses have turned hostile and not supported the prosecution story. Further, as already stated earlier, that if the police officer's evidence is reliable, the same can be considered even though the independent witnesses have turned hostile. No specific questions have been asked from Shri Pratap Singh Ranawat (PW/31) who is the IO, apart from the fact that two independent witnesses have turned hostile. The witness in Para-51 has admitted that these witnesses i.e. 38 CRA Nos.114-149/2011 Mohd. Shakil (PW/14) and Abdul Wasim (PW/15) have turned hostile. Incidentally Abdul Wasim (PW/15) has admitted that Vipin is his tenant and at present also the father of Vipin stays in the same house. He states that police had come to the aforesaid tenanted premises and had told him that Vipin has been arrested and asked him to append his signatures in the memorandum and seizure memo. Further, he has stated that these proceedings were not carried out before him. Thus, it is found proved that substantial amount of one lakh rupees was seized from the house of appellant Vipin from a wooden box as per his own memorandum. The onus was upon Vipin to show as to how he came in possession of this amount, which has not been explained by him. Thus, it is a corroborative piece of evidence available against him.
50. Thus, from the perusal of the evidence of all the witnesses, the following chain of events and circumstances are found to be proved:-
(i) That, on 11.9.2008 loot was committed in the State Bank of India, Branch Pratap Nagar, Indore, whereby Rs.9,68,122/- were looted by miscreants, who had committed loot with their faces covered.
(ii) That, the appellants were having similar body built as that of the miscreants.
(iii) That, the appellants were in similar age (as 39 CRA Nos.114-149/2011 apparently that of the appellants).
(iv) That, from each of the appellants substantial amount of currency notes in different bundles of specified denominations were recovered.
(v) That, no explanation could be given by the appellants regarding such substantial amount of currency recovered as per their memorandum.
(vi) The notes were well arranged in bundles of separate denominations of currencies, which is specific trait and pattern adopted in banking institutions.
(vii) That, along with the currency notes, firearms were also recovered from appellants, excepting Vipin, which corresponds with the prosecution story that the recovery of currency and firearm was made soon after the incident.
(viii) That, from appellant Vijesh currency and firearm were recovered from a bag with the words of "Vimal Gutka" imprinted on it, which corresponds with the evidence of Vijay Singh Bundela (PW-19), who had stated that the looted amount was being kept in a cloth bag on which words "Vimal Gutka" were printed.
(ix) That, from appellant Santosh, the same mobile has been seized which belong to Satish Kumar Dwivedi (PW-
4), who was the account holder in the same branch and who in his evidence has stated that one of the miscreants had asked him to throw his mobile phone and when he threw it, the miscreant picked it up and kept it with him.
(x) It has also been found proved that the staff of the Bank and the customers were subjected to threat of life by pointing firearms at them and the amount was taken 40 CRA Nos.114-149/2011 away by the miscreants.
(xi) That, all the appellants are from Rau, Indore, moreover from one particular locality called Ram Rahim Colony, which shows high probatility of being acquainted with each other.
(xii) That, the onus which have shifted on the appellants, has not been discharged by them.
(xiii) From the statements of witnesses it has been found proved that there were at least five miscreants who had committed the loot. It has also been found proved that one of the accused namely Manoj had died during the course of the appeal and thus, it was indeed a case of loot committed by five persons, meaning thereby that dacoity was committed.
51. Thus, even though the appellants have not been subjected to identification parade and even though dock identification parade is also not found to be reliable as far as their facial recognition is concerned, however various substantial pieces of evidence which have been found proved against the appellants, form a complete chain specifying the standards as laid down in the Apex Court judgment of Sharad Birdhichand Sarda Vs. State of Maharashtra [1984(4) SCC 116] relating to proving of case based on circumstantial evidence. Hence, no impropriety has been committed by the trial Court in convicting the appellants under Section 450 and 41 CRA Nos.114-149/2011 395 of IPC.
52. As far as the offence relating to Section 25(1-B)(a) of Arms Act is concerned, it has been found proved that from each of the appellants i.e. Gaurav @ Goldi, Santosh and Brajesh @ Vijesh, country-made firearms have been recovered, for which they did not have any licence. These firearms and the live bullets have been examined by Irfan Ali (PW/28) who was the armourer/Head Constable and who has found semi-automatic pistol, 32 bore pistol and 32 bore revolver in working condition from which bullets could be fired. Pradip Sahukar (PW/32) has given statements regarding obtaining sanction to prosecute the appellants Santosh, Gaurav @ Goldi and Vijesh from ADM vide Ex.P/54, P/56 and P/55. Statements of these witnesses are also reliable as nothing substantial has been reflected in the cross-examination so as to discredit them. Thus, the aforesaid offence under Section 25(1-B)(a) of Arms Act has also rightly been found to be proved by the trial Court against these appellants. Thus, these appeals fail on the point of conviction.
53. Learned counsel for the appellants has drawn Court's attention to certain citations in the case of Debasish Sarkar Vs. The State of Tripura [2012 Cri.L.J. 418], Girdhari Vs. 42 CRA Nos.114-149/2011 State (NCT of Delhi) [2012 Cri.L.J. 984], Noorahammad and others Vs. State of Karnataka [2016 Cri.L.J. 1232] and Hari Nath and another Vs. State of U.P. [1988 Cri.L.J. 422].
54. The same were perused. As the identification parade has not been carried out, these citations have no relevance in the matter.
55. Adverting to the quantum of sentence, the facts reveal professional manner in which the banking institution was subjected to threat and loot was committed putting the lives of scores of persons at risk on gun points. The sense of insecurity and fear which must have gripped the banking staff, cannot be considered to be limited for that particular day but would obviously be haunting them for rest of their carrier, as their duties required them to deal with money transactions and handling of currency on daily basis. Such incidences have cascading effect on security concerns of banking employees in other banking institutions, whether private or public. Financial institutions need to be insulated from any such misadventures on the part of rogue elements, as the health of the financial institutions and consequently the economic robustness of the State depends upon their unhindered functionality without being bogged down by acts of daredevilry as exhibited by the 43 CRA Nos.114-149/2011 appellants in the present case. Ensuring secure and safe environment in financial institutions is must for their smooth functioning, in particular and economic well being of the country in general. Not only the security concerns of banking staff but that of the customers also has been impacted by the act of the appellants. The appellants have been convicted for the similar bank dacoity in another matter i.e. S.T. No.228/09. Thus, no case of leniency is made out.
56. Consequently, the sentence imposed upon the appellants by the trial Court is also affirmed. All the jail sentences shall run concurrently.
57. The appeals on the point of conviction and sentence stand dismissed in aforesaid terms.
58. A copy of this judgment along with record of trial Court be sent to the trial Court for compliance.
59. The disposal of the property shall be as per the order of trial Court.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2021.10.23 18:20:45
+05'30'