Madhya Pradesh High Court
Shivrajsingh vs The State Of Madhya Pradesh on 10 July, 2020
Equivalent citations: AIRONLINE 2020 MP 1331
Author: Shailendra Shukla
Bench: Shailendra Shukla
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE S.C. SHARMA &
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.953 OF 2011
ARUN
Versus
THE STATE OF MADHYA PRADESH
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Shri Vivek Singh, Advocate for the appellant.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.994 OF 2011
MAHESH
Versus
THE STATE OF MADHYA PRADESH
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Shri Vivek Singh, Advocate for the appellant.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.1070 OF 2011
ANKUR @ BANTI AND 3 OTHERS
Versus
THE STATE OF MADHYA PRADESH
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Shri Girish Desai, Advocate for the appellants.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.1071 OF 2011
RAJENDRA @ MANJU AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
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Smt. Sudha Shrivastava, Advocate for the appellants.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.1081 OF 2011
RAHUL @ VIJAYENDRA
Versus
THE STATE OF MADHYA PRADESH
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Smt. Sudha Shrivastava, Advocate for the appellant.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.1123 OF 2011
SHIVRAJ SINGH
Versus
THE STATE OF MADHYA PRADESH
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Smt. Sudha Shrivastava, Advocate for the appellant.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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CRIMINAL APPEAL NO.1205 OF 2011
PRADEEP
Versus
THE STATE OF MADHYA PRADESH AND 11 ORS.
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Shri P.K. Shukla, Advocate for the appellant.
Shri L.S. Chandiramani, public prosecutor for respondent/State.
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JUDGMENT
(Delivered on 10th day of July, 2020) Per Shailendra Shukla, J.
These appeals have been preferred under the provision of Section 374 of Cr.P.C by the appellants against the convictions and sentences pronounced against them by ASJ Indore in S.T.No.460/18 vide judgment dt. 31.3.2011. The convictions and sentences are noted as under in Tabular form :-
S CRA.No Name of Conviction under Jail Fine Addl. Sentence r. accused the provisions of sentence in default of N IPC. payment of fine o 1 953/2011 Arun U/s. 412 of IPC 7 years RI 1000 1 month 2 994/2011 Mahesh U/s. 412 of IPC 7 years RI 1000 1 month 3 1070/2011 1.Ankur U/s. 396 & 398 of L.I. & 7 2000 2 and 1 months.
@ Banti IPC. years RI 1000 on each count 2. Ashok U/s. 396, 398 & L.I., 7 years 2000 2, 1 & 1 months 25(1-b) (a) of RI & 2 1000 on each count Arms Act. years RI 1000 3. Ravi U/s. 396, 398 & L.I., 7 years 2000 2, 1 months and @ Babi 25(1-b) (b) of RI & 1 year 1000 15 days on each Arms Act. RI 500 count ---3--- 4.Hemraj U/s. 396, 398 & L.I., 7 years 2000 @ Sonu 25(1-b) (b) of RI & 1 year 1000 2, 1 months and Arms Act. RI 500 15 days on each count 4 1071/2011 Rajendra @ U/s. 412 of IPC 7 years RI 1000 1 month Manju 2.Ghanshyam U/s. 412 of IPC 7 years RI 1000 1 month 5 1081/2011 Rahul @ U/s. 396 of IPC L.I. 2000 2 months Vijendar 6 1123/2011 Shivraj U/s.412 of IPC 7 years RI 1000 1 month Singh 7 1205/2011 Pradeep U/s. 396 of IPC L.I. 2000 2 months
2. The prosecution story in short is that cash amounts from Rajwada Branch of Union Bank of India at Indore used to be transported to chest of Union Bank of India at Sindhi Colony. On 11.4.2008, the head cashier of Rajwada Branch namely Mr. Brij Mohan Gupta set out to deposit Rs.19.50 lacs in an auto rickshaw hired for Sindhi Colony Branch where chest is available for storing cash and he was accompanied by Rekha Dubey (PW5), a bank employee and another person called Vikas Shinde (PW32). Brij Mohan Gupta sat in a middle of seat along with the box containing money which was already fastened with two locks. As the auto rickshaw reached Manik Bagh Bridge, six persons in two motor cycles, one silver colored and the other red colored came from behind and blocked the path of auto rickshaw. Some of the riders jumped from their motorcycles and immediately dealt knife blows on Vikas Shinde (PW32) who got seriously injured and fell out of the auto rickshaw. These assailants thereafter dragged out Rekha Dubey (PW5) and thereafter they snatched the box from the hands of Brij
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Mohan Gupta and in the process gave knife injuries to him as well. When Brij Mohan Gupta, despite being hurt, ran after the accused persons, one of the accused fired from his fire arm resulting in serious injury to Brij Mohan Gupta. The auto rickshaw driver thereafter immediately took injured Vikas Shinde (PW32) to Police Station Juni and thereafter to M.Y. Hospital at Indore whereas Rekha Dubey (PW5) took Mr. Brij Mohan Gupta, who was critically injured to Anand Hospital. Before leaving for another hospital Rekha Dubey (PW5) called up her Branch Manager. The police of police station Juni had also got information in the meanwhile and the investigating officer reached Anand Hospital where the deceased was declared as brought dead. Rekha Dubey (PW5) thereafter narrated the story to Investigating Officer Mohan Singh (PW47) which was taken down in writing which is Ex.P/13 and thereafter on the basis of this Dehati Nalishi report, FIR Ex.P/60 was lodged and investigation was initiated. Two days later, ie., on 13.4.2008, a secret information was received in the police station that accused Rahul is about to leave the city and he is present on his house along with some other accused persons and is possessing looted cash of the bank. On the basis of such information, the place where Rahul was staying with two other co-accused persons was raided, and Rahul and two of his accomplices Ankur and Pradeep were nabbed and thereafter on interrogation Rahul spilled the beans and divulged about the roles of others also. Part of looted money was recovered from Rahul and on
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his memorandum from other accused persons as well, looted cash was recovered. Out of Rs.19.50 lacs Rs.17.24 lacs were recovered from various accused. This apart, sharp edged knives which were used in inflicting injuries on Vikas Shinde (PW32) and Brij Mohan Gupta were also recovered from these accused persons on the basis of their memorandum. The fire arm which was used in the incident was also recovered from the accused Ashok. These items along with the blood stained articles were sent to FSL for serological examination. The serological laboratory gave its findings and the fire arm was also sent to arms Moharrir which was found to be in a fit condition to fire. After completion of investigation charge sheet was filed against the appellant and other co-accused persons including an accused namely Ejaz.
3. Charges were framed against all the accused under provisions of Section 396, 398 and 412 of IPC. Additional charges under Section 25(1-b) (b) of Arms Act were framed against accused Hemraj and Ravi whereas charge under Section 25(1-b) (a) of Arms Act was framed against accused Ashok. The accused abjured their guilt and claimed innocence. They proposed to give defence evidence. However, no defence evidence was led by them.
4. The trial court after examining as many as 47 witnesses pronounced its verdict and has convicted appellants as depicted in the table. However, accused Ejaz was acquitted of all charges.
5. In their appeals, the appellants have claimed innocence.
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6. Appellant Arun in Cri.Appeal No.953/2011 has stated that the prosecution could not prove the intention which is essential ingredients under Section 412 of IPC and the material omissions and contradictions have been omitted by the trial court.
7. Appellant Mahesh in Cri.Appeal No.994/2011 has submitted that the allegation against him was that he received Rs.60,000/- from co-accused Ashok. It is submitted in the aforesaid appeal that Panch witnesses Sachin (PW8) and Ghanshyam (PW12) have turned hostile and conviction is based only on the testimony of Investigating Officer Mohan Singh Yadav (PW47), which suffers from infirmities. The citation of Karanjit Singh v/s. State of Delhi, AIR 2003 S.C. 1311 which has been relied upon by the trial court does not apply to the facts and situation of the present case. It is further stated that for proving the offence under Section 412 of IPC, the prosecution has to prove that the seized property was looted property and secondly that the accused knew or had reason to believe that the property which is found in his possession was received by him from the members of the gang of the decoits. These essential ingredients of Section 412 of IPC have not been fulfilled by the prosecution.
8. In CRA.No.1070/2011, the appellants are Ankur @ Banti, Ashok, Ravi and Hemraj who have all been convicted under Sections 396 and 398 of IPC and 3 of them namely Ashok, Ravi and Hemraj have been additionally convicted and sentenced respectively under Sections 25(1-b)(a), Section 25(1-b) (b) and Section 25(1-b)
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(b) of Arms Act. The grounds have been taken by these appellants are that the identification of appellants have not been established, Rekha Dubey (PW5) witness of identification memo is not reliable, that all the independent witnesses of memorandum and seizure have turned hostile, that Vikas Shinde (PW32) was an important eye-witness, but he was not made to undergo identification parade, that the cash amount was recovered was also not subjected to any identification. On these grounds appellants have claimed acquittal.
9. Cri. Appeal No.1071/2011 is preferred by appellants Rajendra and Ghanshyam both of them have been convicted under Section 412 of IPC. The grounds which have been taken are that the cash amount allegedly recovered from the appellants was not identified to be the same cash which was looted and that no identification of appellants was also conducted and ingredients of Section 412 of IPC have not been proved and on these grounds acquittal has been sought.
10. CRA.No.1081/2011 has been filed by appellant Rahul @ Vijender. It is submitted that the identification of the accused has not been done appropriately and the material omissions and contradictions in the statements of the witnesses have been overlooked and all the independent witnesses have turned hostile and on these grounds acquittal has been sought.
11. Cri.Appeal No.1123/2011 has been filed by appellant Shivraj Singh. In this appeal also it is submitted that ingredients of Section
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412 of IPC have not been satisfied and the witnesses who have deposed against him should not have been relied upon and the appellant deserved to have been given the benefit of Probation of Offenders Act.
12. Cri.Appeal No.1025/2011 has been filed by appellant Pradeep who has been convicted under Section 396 of IPC. In his appeal he has submitted that none of the eye-witnesses have identified the appellant, that the proof against the appellant is based upon circumstantial evidence but the various links of the circumstances do not join together in such a manner so as to prove the charge under Section 396 of IPC beyond reasonable doubt. The appellant is innocent and he has been falsely implicated.
13. Learned counsel for the appellants has also submitted written final arguments to bolster the cases of the appellants. The question before this court is whether in view of such submissions the conviction and sentences imposed upon the appellants deserve to be set aside and the appellants be acquitted ?.
14. This court and the trial court were faced with determination of the following questions :-
(1) Whether on 11.4.2008 Mr. Brij Mohan Gupta who was a head cashier of Union Bank of India Rajwada Branch, Indore, accompanied by bank employee Rekha Dubey (PW5) and Vikas Shinde (PW32) was carrying Rs.19.50 lacs in a locked box for depositing the same in Union Bank of India chest at Branch situated
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near Sapna Sangeeta Road, Indore and the aforesaid amount was being carried by them in auto rickshaw driven by Rameshchand (PW2) ?
(2) Whether the box containing cash amount of Rs.19.50 lacs was looted by more than 5 persons resulting in commission of decoity ?
(3) Whether Shri Gupta was murdered by one of the decoits by firing from fire arm and whether Vikas Shinde was seriously injured by this gang of decoits ?
(4) Whether decoity was committed by appellants Ankur, Ashok, Ravi @ Babi, Hemraj @ Sonu, Pradeep and Rahul ?
(5) Whether Brij Mohan Gupta was murdered by appellant Ashok by firing from his fire arm ?
(6) Whether at the time of commission of decoity accused Ankur, Ashok, Ravi and Hemraj were armed with deadly weapons ?
(7) Whether accused Arun, Mahesh, Rajendra, Ghanshyam and Shivraj Singh dishonestly received cash amounts from the members of the gang of decoits and were they liable under Section 412 of IPC ?
15. It would be appropriate to revisit Sections 396, 398 and 412 of IPC.
Section 396 of IPC reads as under :- 396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years,
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and shall also be liable to fine.
Section 398 of IPC reads as under :- Attempt to commit robbery or dacoity when armed with deadly weapon. -- If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
Section 412 of IPC reads as under :- 412. Dishonestly receiving property stolen in the commission of a dacoity.
--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, 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.
16. Regarding question No.1 - Narendra Mohan Pant (PW4) states that on 11.4.2008 while he was posted as Branch Manager in Union Bank of India, M.G. Road, Rajwada, cash amount of Rs.19.50 lacs was to be transported from his branch to the branch near Sapna Sangeeta Road, which has a chest for keeping large amounts of cash. On that day Mr. Brij Mohan Gupta, head cashier was deputed to transport the cash along with bank employee Rekha Dubey (PW5) and Vikas Shinde (PW32) and they set out on auto rickshaw.
17. Rekha Dubey (PW6) states that she was posted as cash peon in Rajwada Union Bank Branch and on 11.4.2008, the head cashier was Mr. Brij Mohan Gupta. The witness states that she, Vikas Shinde (PW32) and Shri Gupta set out on an auto rickshaw for depositing Rs.19.50 lacs in Sindhi Colony currency Section at 4.10 PM. Her statements have been corroborated by Vikas Shinde (PW32). Auto
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rickshaw driver Rameshchand (PW2) has stated that he was hired by Rekha Dubey (PW5) for going to bank situated at Sindhi Colony near Sapna Sangeeta Talkies.
18. Regarding the fact that Mr. Brij Mohan Gupta was indeed carrying Rs.19.50 lacs with him, the evidence of Amirchand (PW1) is important. He states that he was Assistant Manager of M.G. Road Union Bank of India and had told Mr. Brij Mohan Gupta to count the money which was to be transported to the chest branch and Mr. Brij Mohan Gupta counted Rs.19.50 lacs before this witness. This amount was kept in bundles of different denominations as per the witness. This witness has not been challenged in cross-examination. The Investigating Officer Shri Mohan Singh (PW47) has seized two voucher slips No.226 and 227 respectively of Rs.11.50 lacs and Rs.8.00 lacs which he has seized from the Branch Manager Narendra Mohan Pant (PW4). The seizure memo is Ex.P/5. Narendra Mohan Pant (PW4) has stated that these voucher slips were seized from him by the Investigating Officer. Other witnesses of the seizure memo Ex.P/5 are Anil Yadav (PW23) and Akhilesh Mishra (PW37). Both of whom have supported the prosecution story regarding seizure of these vouchers. None of these witnesses have been challenged regarding counting of money and preparation of voucher slips. Thus, no doubt remains that the amount which was being transported was in fact was Rs.19.50 lacs and the said amount was kept inside the box in different bundles of various denominations as described in Exhibits P/6 and
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P/7 respectively.
19. The statements of Rekha Dubey (PW5), Narendra Mohan Pant (PW4), Vikas Shinde (PW32) and Rameshchand (PW2) have not been challenged appropriately in cross-examination to the extent that Mr. Brij Mohan Gupta, Rekha Dubey (PW5) and Vikas Shinde (PW32) had started of in an auto rickshaw from Rajwada Branch with box of cash for carrying the same to the chest situated at Branch near Sapna Sangeeta Road. Further the evidence of Amirchand (PW1) is also reliable and it is thus proved that the bank employees had been carrying Rs.19.50 lacs in cash in a box with them. Thus question No.1 is found rightly proved by the trial court.
20. Regarding question No.2 and 3 - Rekha Dubey (PW5) states that as the auto rickshaw moved towards Moti Tabela, some miscreants on Hero Honda motorcycle over took the auto rickshaw in which the witness was travelling. This was followed by another motorcycle. There were two such motor cycles on which six persons were sitting. As the auto rickshaw started climbing Manik Bagh Bridge, the miscreants blocked the auto rickshaw and Vikas Shinde (PW32) was inflicted knife wounds and he was dragged down the auto rickshaw and thereafter miscreants started snatching the box containing cash. Mr. Brij Mohan Gupta when tried to resist, he was inflicted knife injury and then he was shot at by one of the accused with a fire arm.
21. Similarly Vikas Shinde (PW32) has supported the prosecution
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story stating that on 11.4.2008, he was working as a peon in Union Bank Branch at Rajwada. On that day he along with Mr. Brij Mohan Gupta and Rekha Dubey (PW5) set out for depositing Rs.19.5 lacs in the main branch situated at Sapna Sangeeta talkies. As per the witness six persons in two different motor cycles blocked their path near Manik Bagh Bridge and started abusing the auto rickshaw driver and thereafter immediately those miscreants inflicted injury on the witness and dragged him down. Thereafter, they snatched away the cash box from Mr. Brij Mohan Gupta and when Mr. Gupta tried to stopped the miscreant he was shot at.
22. This witness has been further supported by Rameshchand (PW2), the auto rickshaw driver. He states that he was hired by Rekha Dubey (PW5) for going to bank situated at Sindhi Colony near Sapna Sangeeta Talkies. There were 3 passengers in auto rickshaw and on the way near Millat Nagar, miscreants came on motorcycles and started abusing him alleging that he does not know how to ride this auto. Later on, they stopped the auto rickshaw and immediately after getting out, those persons started assaulting Vikas Shinde (PW32) and gave him knife injuries and when the witnesses started picking up Vikas Shinde (PW32), the assailants snatched away the cash box and they were chased down by Mr. Brij Mohan Gupta, but Brij Mohan Gupta was shot at by fire arm and Mr. Brij Mohan Gupta fell down at that place only. The statements of these three witnesses have not been challenged in the cross examination.
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23. The witness Narendra Mohan Pant (PW4) received a call at 4.30 PM from Rekha Dubey (PW5) that some miscreants have stopped their vehicle and snatched away the cash box and they have also injured Mr. Brij Mohan Gupta. This statement of witness has also not been challenged. Thus, it is found proved that on 11.4.2008, Mr. Brij Mohan Gupta the head cashier had set out on an auto rickshaw for depositing Rs.19.50 lacs in the Branch situated near Sapna Sangeeta talkies at Indore where there is chest. However on the way the loot occurred and motor cycle borne persons snatched away the cash box and they also injured Mr. Brij Mohan Gupta and Vikas Shinde (PW32). These witnesses have not been challenged appropriately in their cross-examinations. Thus, it is found proved that the box containing Rs.19.50 lacs was looted by six decoits while the money was being transported in auto rickshaw.
24. Now the question is whether Brij Mohan Gupta died as a result of injuries suffered by him due to shooting by fire arm by one of the assailants ?. As already seen earlier Rekha Dubey (PW5) has stated that Brij Mohan Gupta was shot at by one of the assailants and she took Brij Mohan Gupta in auto rickshaw to hospital called Anand Hospital but Shri Brij Mohan Gupta was declared to be brought dead. Mohan Singh (PW47) as Investigating Officer in para 3 states that on 11.4.2008 on receiving the information about incident he arrived at Anand Hospital but came to know that Brij Mohan Gupta had died on 12.4.2008. The body of Mr. Brij Mohan Gupta was shifted from
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Choitram Hospital to District Hospital at Dhar and a Safina form was prepared which is Ex.P/2 and thereafter the body panchnama document was also prepared which is Ex.P/3 which carries signatures of the witnesses. Rajesh Gupta (PW3) is also witness of Safina form Ex.P/2 and of body panchnama Ex.P/3. Dr. Bharat Prakash (PW18) states that on 12.4.2008, he was posted in District Hospital at Indore on the post of medical officer and he carried out postmortem examination of Brij Mohan Gupta whose body was brought by constable Sher Singh. On examination he found that there were six injuries on the body of Brij Mohan Gupta, five of which were contusions and abrasions at various place such as left eye-brow, on the forehead, on left knee etc and the sixth wound was found in the form of a bullet injury, due to which second and third rib had been pierced and left lung was pierced through and through and bullet had injured the right ventricle of the heart and diaphragm and had also scrapped right side of liver and a yellow colored metal piece was located in posterior abdominal valve and the direction of the firing of bullet was from left to right and from upper to lower region. There was 1 litre blood in thoracic cavity of left side of the chest and 2 ½ litres of blood was found in abdomen. This was gun shot injury and the time of death was 12 hours earlier. The postmortem report is Ex.P/45 and the cause of death was excessive bleeding due to this injury. There was no blackening around injury wound which showed that bulled was not fired from extremely close range. There is no
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reason to dispute the statement of this witness and it is found proved beyond doubt that the death of Brij Mohan Gupta occurred due to gun shot injury. Thus, the death of Brij Mohan Gupta would come in the category of culpable homicide.
25. As far as Vikas Shinde (PW32) is concerned, he also suffered knife injuries and the witness was taken to M.Y. Hospital by Rameshchand (PW2) who is auto rickshaw driver. Dr. Jitendra Verma (PW31) states that on 11.4.2008, he was posted in M.Y. Hospital on the post of CMO and on that day Vikas Shinde (PW32) was brought for treatment. On examining him, it was found that there were two injuries caused to him and both were incised wound. First was on the left thigh on the exterior which was 2cm x ½ cm and the second injury was also incised wound on the posterior side of left thigh which was 3.5 cm x 3 cm x 2 cm. Both these injuries were caused due to hard and sharp object and was caused within 24 hours. The report is Ex.P/65. Dr. Sunita Gupta (PW42) Assistant Professor in M.Y. Hospital states that on 11.4.2008 Vikas Shinde (PW32) was brought in injured state. It was found that a major vessel on his left thigh had been severed which was repaired by this witness and on 20.4.2008 Vikas Shinde (PW32) left the hospital on his own. Dr. Ravikant (PW41) also submits that on 11.4.2008, while he was posted in M.Y. Hospital on the post of RSO he had examined Vikas Shinde (PW32) who was bleeding profusely from his left thigh and he was immediately taken inside operation theater and the Ex.P/4 is his
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admission ticket and Ex.P/17 is the set of his treatment papers running into 23 pages. He also submits that on 20.4.2008 Vikas Shinde (PW32) left the hospital on his own accord. This witness has not been challenged in cross examination and thus, it is found that Vikas Shinde (PW32) was inflicted knife injuries on his left thigh resulting in heavy and profuse bleeding and his life could be saved because of timely surgical intervention.
26. So far it has been found proved that Rs.19.50 lacs which were being transported by Brij Mohan Gupta, Rekha Dubey and Vikas Shinde (PW32) were looted by six persons when this amount was being transported from Rajwada Branch to Union Bank of India to chest of bank situated near Sapna Sangeeta road at Indore. It has also been found proved that Vikas Shinde (PW32) was seriously injured with knife by the dacoits and further it is found proved that dacoits injured Brij Mohan Gupta with knife and later on one of the dacoits fired at Brij Mohan Gupta from fire arm resulting in his death. In view of the doctor conducting postmortem, it is found proved that the injury was such which could have caused death in the ordinary course of nature and the culpable homicide of Brij Mohan Gupta amounted to murder.
27. Thus questions No.2 and 3 are answered in affirmative.
Now we shall deal with question Nos.4, 5 and 6 which are as under:
Question No.4: Whether the dacoity was committed by
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appellants namely; Ankur, Pradeep, Ravi, Hemraj, Rahul and Ashok.
Question No.5: Whether at the time of commission of dacoity, the accused/appellants namely; Ankur, Ashok, Ravi and Hemraj were armed with deadly weapons. The role of each of the appellant shall be discussed separately.
Question No.6: Whether at the time of commission of decoity accused Ankur, Ashok, Ravi and Hemraj were armed with deadly weapons ?
28. As per prosecution story, the Investigating Officer (IO) through Mukhbir Punchnama received the first lead about the appellant- Rahul. The evidence relating to Rahul and Pradeep have a commonality, therefore the evidence regarding both the accused persons shall be dealt with together.
Regarding Rahul and Pradeep:
29. There are three eye-witnesses in this case. These are Rekha Dubey (PW5), Vikas Shinde (PW32) and Auto-Driver Ramesh Chandra (PW2).
30. Rameshchand (PW2) at the outset fails to identify the accused persons during evidence. He also states that he could not identify any of the accused persons during test identification parade. Thus, this witness does not give any lead as to the identification of the accused persons. As far as Vikas Shinde (PW32) is concerned, he in his court deposition identifies 4 accused persons namely Sonu, Hemraj, Rajendra, Ravi and Ashok. However, in his police statement which is
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Ex.D/4, this witness has stated that he could not see the physical traits of the assailants and he also could not see the motor cycle registration number. It is quite clear that no identification parade was carried out in front of this witness which he admits as well. Thus, witness has identified the accused persons for the first time during dock identification which has taken place on 11.10.2010, which is about 2 ½ years from the date of the incident. In such scenario, the court statements of the witnesses regarding identification of the accused persons becomes suspicious.
31. The third eye witness is Rekha Dubey (PW5) who in para 4 states that out of six dacoits the faces of three dacoits were covered and that of 3 others were uncovered. This witness in the same paragraph identifies accused Ravi as the person who was driving the motorcycle at that point of time. This witness has been declared hostile because she does not state anything regarding identification parade. However, after being declared hostile, she admits that identification parade was carried out and she had identified accused Hemraj @ Sonu. She admits to have signed the identification memo Ex.P/1.
32. We have seen that none of the eye witnesses namely, Rekha (PW-5), Ramesh Kumar (PW-2) and Vikas Shinde (PW-32) have identified Rahul as one of the assailants. However, there is circumstantial evidence available against him which shall now be appreciated. Witness Mohan Singh (PW-47), in para-4 states that on
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13.04.2008 he received a mukhbir information that accused Rahul @ Brajesh is presently at his house along with some of his accomplices and is preparing to flee from his house and that he has cash with him belonging to the bank and that he is the person who along with accomplices had committed loot. On receiving this information, the witness recorded the information in Rojnamcha (Ex.P/74) and went to the house of Rahul along with accompanying force. He found Rahul along with Ankur and Pradeep in his house. They were all brought to the police station and again Rojnamcha (Ex.P/75) was recorded. Rahul was arrested vide Ex.P/33 and then his memorandum statements were recorded. Rahul in his memorandum stated that he has hidden Rs.2.40,000/- in a metal box and proposed to recover the same. The memo is Ex.P/34 on which the signatures of the witness appears from D to D part. After preparation of memo, the cash amount of Rs.2,40,000/- was seized from his house from a box vide seizure memo Ex.P/38. The amounts were in bundles of Rs.100/- denomination as also bundles of Rs.500/- denomination. The panchnama of the denominations and bundles were prepared which is Ex.P/39. As per the information given by Rahul, one Hero Honda Passion Plus silver colour bearing registration No.MP09 MD 2747 was also seized vide Ex.P/37 which carries his signatures from C to C part. The independent witnesses of Ex.P/37 that is the seizure of Hero Honda Passion Plus are Satish (PW16) and Mahadev (PW15) however, both these witnesses have turned hostile. In his cross-
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examination, this witness has been given suggestion that Rahul did not give any such memorandum, which suggestion has been denied by him. There is nothing to discredit the statements made by this witness in his examination-in-chief. The witness Mohan Singh (PW47) in para-5 also states that he had recorded yet another memorandum of Rahul which is Ex.P/52 in which he had stated that the planning of loot was made by using a Motorola mobile bearing mobile No.9826631273 and on the basis of this memorandum, the aforesaid mobile was recovered from the possession of Rahul vide seizure memo (Ex.P/54). The witness Mahesh Othwani (PW43) has exhibited the call details which is Ex.P/72 which carries the calls which were exchanged between accused Ashok Akodiya with other accused persons. This witness is the Assistant Manager in the Reliance Smart Mobile Company, Indore and he was asked by CSP, Juni region at Indore to provide the call details of the mobile of co- accused Ashok which bears mobile No.9827385808. On perusal of Ex.P/72, which is the call details show that Ashok and Rahul had exchanged telephone calls on 11.04.2008 at 6.55 PM and 7.10 PM and also at 9.00 PM and again on the next day i.e. on 12.04.2008, the telephone calls were exchanged at 7.32 PM. This evidence is relevant under Section 7 of Evidence Act. Thus, it is quite clear that Rahul was in constant touch with the other co-accused Ashok on the day of the incident and even day after.
33. There is one more evidence against Rahul which is regarding
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his motorcycle seen at the spot when the incident occurred. In Ex.P/13, Dehati Nalishi, which has been made by Rekha, it has been mentioned that miscreants had come in a silver coloured motorcycle Hero Honda on which the number 74 in large numerals had been written. The motorcycle which has been seized from Rahul is silver colour Hero Honda Passion Plus and its registration number is MP09 MD 2747. The numerals 74 are the middle numbers. The question is how the witness Rekha could only see the two numbers i.e., 74. The answer to this would be understood from the memorandum statement of co-accused Pradeep who in Ex.P/36 has stated that the number plate of motorcycle of Rahul was taken out which has been hidden by Pradeep below his almirah. Pradeep proposed to recover the number plate of the motorcycle. Subsequently, vide Ex.P/41, a number plate of motorcycle was recovered and only two numbers i.e. 74 was prominent and the numeral 2 which preceded the numeral 7 as also numeral 7 which succeeded numeral 4 were scrapped off. Thus, the number was 2747 however, the numeral 2 in the beginning and 7 in the end were scrapped off and only 74 was visible. It thus becomes clear that at the time of the incident, this number plate had been used in the motorcycle in which only two numerals i.e. 74 were visible. However, after the incident, this number plate was taken out and replaced with another number plate carrying registration No.MP09 MD 2747. However, even this number plate was not the correct registration number because Narendra Kumar Diswaiya (PW44) who
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works as Assistant Grade-2 at RTO, Indore, has appeared as a witness and from his record, he has stated that the registration No.MP09 MD 2747 motorcycle is registered in the name of another person namely, Kailash Ore. Thus, it is quite clear that Rahul was in possession of a motorcycle whose registered owner was some other person namely, Kailash. It may be that this motorcycle was also a looted vehicle. The crux of the matter is that Rahul had taken care that the vehicle which he was using was not registered in his name. However, from the discussion undergone herein before, it is proved that the Hero Honda Passion Plus motorcycle was the same motorcycle which was in possession of Rahul. The only difference was that its number plate was not the same which was found when the vehicle was seized and at the time of incident, a different number plate was used, which had only two numerals i.e. 74 and this number plate was recovered from the possession of co-accused Pradeep. This shows not only the involvement of Rahul but also of Pradeep. The onus was upon Rahul to show as to how he came in possession of currency notes of a huge sum of Rs.2.40,000/-. No explanation has been given by Rahul.
34. Section 114(a) of Evidence Act provides that the court may presume that a man who is in possession of stolen woods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
35. In the present case, looking to the evidence available the first presumption would be applicable that Rahul in possession of stolen
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money was in fact the thief and the circumstances proved that he was one of the robbers. This presumption has not been rebutted satisfactorily by him.
36. In the written submission on behalf of Rahul, stress has been laid on the fact that independent witnesses namely; Mahadev (PW15), Satish (PW16) and Pappu (PW24) who are witnesses of memorandum and seizure of Hero Honda Bike, mobile and cash memo have turned hostile and it is not safe to rely upon the sole witness-Mohan Singh (PW47). The impact of the independent witnesses having turned hostile has already been considered. However, it has been found that the evidence of Investigating Officer- Mohan Singh (PW47) is reliable and there is nothing in his cross- examination so as to discredit him. In the case of P.P. Beeran v/s. State of Kerala, AIR 2001 SC 2420 and in number of many other judgments, it has been held by Hon'ble Apex Court that mere fact that a witness is police officer, does not by itself gives rise to any doubt about his creditworthiness. The involvement of accused-Rahul in the dacoity has been fortified by the evidence of Mahesh Otwani (PW43) as well. There is nothing to indicate that Rahul has been falsely implicated by the Investigating Agency. The fact that the motorcycle used by dacoits was recovered from Rahul itself shows his active involvement and presence at the time of commission of dacoity. It has also been mentioned in the written final arguments that no deadly weapon has been recovered from the accused-Rahul (appellant).
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Regarding this submission, it is made clear that Rahul has not been convicted under Section 398 IPC which is applicable only when member of a dacoit is armed with deadly weapon. Thus, it is proved beyond reasonable doubt that Rahul was involved in the dacoity, that he was in conversation with members of the gang and took active part in the dacoity by being present at the time of incident and an amount of Rs.2,40,000/- which was the looted money was also recovered from him.
37. In the case of State of U.P. V/s. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300, it was held that circumstances from which conclusion is drawn should be fully proved; circumstances should be conclusive; all established facts should be consistent with the hypothesis of guilt and inconsistent with innocence of the accused and circumstances should exclude possibility of guilt of any person other than the accused. As regards the case of Rahul, the conditions mentioned in the above citation are fully satisfied.
38. We have seen the involvement of accused Pradeep who had hidden the number plate of Hero Honda Passion Plus belonging to or in possession of Rahul. This apart, as per Mohan Singh (PW-47), on the basis of memorandum of Pradeep, a sum of Rs.2,40,000/- which was his share was also recovered from his possession as per Ex.P/41 and not only this, Pradeep was also having in his possession the share of co-accused Javed which was again Rs.2,40,000/-. Thus, a total sum of Rs.4,80,000/- was seized from the house of Pradeep as per his
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own memorandum. It has already been seen that independent witnesses Satish (PW16) and Mahadev (PW15) of the seizure memo Ex.P/41 have turned hostile but because of the fact that independent witnesses have turned hostile, it cannot be stated that the evidence gathered by Mohan Singh (PW47) has no value. The evidence of Mohan Singh (PW47) in itself is trustworthy. There are no such statements in his cross-examination which make his statements in examination-in-chief to be doubtful. The onus was upon Pradeep to show as to how he came in possession of number plate of a motorcycle with the only two same numbers i.e. 74 which are mentioned in Dehati Nalishi (Ex.P/13). It has already been found that when investigating officer Mohan Singh (PW47) raided the house of Rahul, he found Pradeep also along with him. This also is a relevant evidence proved against him that he was included in the planning of loot along with the co-accused Rahul. It has already been found that there were six persons in two motorcycles who committed dacoity. Appellant Pradeep was found to be staying with Rahul and other evidence against him also shows he being actively involved. Onus was upon him to prove otherwise which has not been discharged by him. No explanation has been submitted by or on behalf of Pradeep and therefore, involvement of Pradeep in dacoity is also proved beyond reasonable doubt.
39. The next case whose case would be discussed is Ankur @ Bunty. This accused as per IO-Mohan Singh (PW47) was found to be
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accompanying accused-Rahul and Pradeep when the house of Rahul was raided.
40. In view of the above discussion, the convictions of Rahul and Pradeep under provisions of Section 396 of IPC are affirmed.
Regarding Ankur @ Bunty:
41. As far as the involvement of accused-Ankur @ Bunty is concerned, we have already seen that none of the eye-witnesses i.e. Ramesh Kumar (PW2), Rekha (PW5) and Vikas Shinde (PW32) have deposed against accused-Ankur and identification of Ankur on the basis of identification parade has also failed. But there is circumstantial evidence against Ankur which shall now be appreciated.
42. Investigating Officer (IO) Mohan Singh (PW47) has stated in para-4 that on 13.04.2008, he received an information through a Mukhbir (informant) that co-accused Rahul has committed bank loot and presently he is present in his home along with two of his partners who were involved in the crime and are about to flee. The said information was recorded in Rojnamchasana which is Ex.P/74. After writing Rojnamchasana (Ex.P74), the Investigating Officer started off towards the house of accused-Rahul along with police force and after determining the exact location of Rahul, the police raided the residence and found Rahul along-with the present appellant-Ankur and one another accused-Pradeep. They were taken to the police station and Rojnamchasana (Ex.75) was recorded. Thereafter Ankur
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was arrested vide arrest memo Ex.P/32. The memorandum statement of accused-Ankur was then recorded in which he had stated that his share was Rs.2,40,000/-. He further informed that the knife and the box which earlier contained the cash money are hidden in a place called ^<+ksj okyk CkkM+k* and in that ^CkkM+k*, beneath the grass, the aforesaid items had been hidden. Memorandum statements are Ex.P/35 and on the basis of these statements, the aforesaid items were seized from the place indicated by Ankur. The seizure memo is Ex.P/40. It was seen that the box which was retrieved had its both locks in its place, however the hooks where the locks were affixed were broken which means that locks could not be opened, however the box was opened up by breaking open the hooks where the locks were fastened.
43. It has already been seen that the independent witnesses of the memorandum statement Ex.P/35 and seizure memo Ex.P/39 were Satish (PW16) and Mahadev (PW15) and they have turned hostile. Hence the factum of memorandum and seizure hinges only on the evidence of Investigating Officer Mohan Singh (PW47) and it is to be seen as to whether this evidence is reliable or not. One discrepancy occurs in the evidence of Investigating Officer Mohan Singh (PW47) and the discrepancy is that as per the witness, a sum of Rs.2,40,000/- were recovered from the same box which was looted as per the witness whereas in the memorandum statements, Ankur has stated in Ex.P/35 that Rs.2,40,000/- have been kept by him in a box in his house. Barring this discrepancy, there is no other discrepancy in the
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statements of Mohan (PW47). The question is whether this discrepancy strikes at the root of the evidence of Investigating Officer ? The answer is no. There is no contradiction as far as the recovery of money from the box is concerned. The only discrepancy is the money was recovered from the box other than the box which was looted. However, there is nothing to discredit the evidence of Investigating Officer Mohan Singh (PW4) that a sum of Rs.2,40,000/- was recovered in bundles of cash of Rs.100/- and Rs.500/- and the onus now lied upon Ankur to show as to how he came into possession of such huge amount of money. This onus has not been discharged by him. Further, evidence has been collected to prove that the box recovered from the possession of Ankur was the same box which was looted. After seizure of box, the same box was subjected to identification and Narendra Mohan Pant (PW/4) who was the Branch Manager in the Union Bank of India, Rajwada Branch, has stated in para-6 that in the identification proceedings, 3-4 similar boxes were kept in a room which was near the police station and the witness identified the box as per identification memo which is Ex.P/8 carrying the signatures of witnesses from 'A to A' part. Not only the box was subjected to identification, but the keys of locks were also seized by the police from the witness as per his own deposition. This seizure memo is Ex.P/9. A milan punchnama of keys was drawn up by the police as per Ex.P/10. Regarding identification of the box, the witness Narendra Mohan Pant (PW4) has been cross-examined. In
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para-8, he states that he could identify the looted box because it was fastened with two locks. He was asked as to whether other boxes were also locked or not, the witness claims ignorance regarding this question. He is also not able to state whether the latches fastened on the other boxes were in broken state or not. In para-9, he also states that he cannot state as to whether the boxes which were mixed along with the looted box were of other colours or not. He states that none of the boxes including the looted box carried any Company's name.
44. Avadhesh Kumar Choudhari (PW28) is the Tehsildar who corroborates the factum of identification of the box by Narendra Mohan Pant (PW/4) and he states that in Ex.P/8 which is the identification memo of his signatures are from 'B to B' part. In cross- examination, he admits that such boxes are available in the market.
45. Learned counsel for the appellant submits that from the evidence of Narendra Mohan Pant (PW4), it appears that boxes which were placed along with looted box did not have locks fastened on them and that their latches were also not broken and therefore it was easy to identify the concerned box.
46. This submission was considered.
47. Although there may be discrepancy in exactly carrying out the identification parade by not observing minutely that each of the boxes were in the same state however, Narendra Mohan Pant (PW/4) was the Branch Manager in the Union Bank of India, MG Road Branch and he submits that cash used to be sent in the same box to the
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Branch where the chest existed. In para-16, he states that the same box was being used time and again and therefore he was in a position to identify the aforesaid box. Thus, it is quite clear that Narendra Mohan Pant (PW4) was very well conversant with the features of the box which was always used in transporting the cash and, therefore even if no identification parade was carried out, the identification of box could never have been doubted because the same box was being used every time for transporting the cash as per Narendra Mohan Pant (PW4) who was the Branch Manager at the relevant point of time. Thus, the question of identification of box does not remain unsolved question. Moreover, the aforesaid box had two locks fastened on it and the keys of the box was with Mr. Narendra Mohan Pant (PW4). Investigating Officer Mohan Singh (PW7) in para-10 has stated that Narendra Mohan Pant had given him two keys of the locks which were seized as per Ex.P/9 and then Milan Panchnama of the keys and locks was drawn which is Ex.P/10 meaning thereby that these were the keys of the locks fastened on the box and that locks could be opened up by these keys only. Thus, it is found proved that the box which was recovered from the possession of Ankur was the same box which was used for transporting the cash. It is also found proved that both the locks of boxes could not open and the latches in which the locks were fastened were broken and the cash had been taken out. As already stated, the onus was upon Ankur to clarify as to how from the box cash was taken out and this onus has not been discharged by him.
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48. Further, there is yet another piece of evidence collected against Ankur. Ankur's another memorandum was also recorded which is Ex.P/51 in which he proposed to recover the mobile phone of Nokia Company which had been used at the time of incident. The aforesaid mobile phone was sought to be recovered from a bag hidden in the house of Ankur. On the basis of this memorandum, a mobile of Nokia Company was seized from the house of Ankur vide Ex.P/53. The SIM Number in the Mobile Phone was 99260-16102 as per Ex.P/53. Witness Gagan Shastri (PW27) has stated that Ankur @ Bunty is his distant relative and that the witness had a Mobile No.9926016102. The witness states that 2 - 2 ½ years back Ankur had come to his house and he liked the mobile phone of the witness and this witness had handed over the SIM to Ankur @ Bunty which was never given back by Ankur to the witness. These statements have not been properly challenged in cross-examination. Witness Mahesh Utwani (PW43) whose evidence had earlier been discussed and who has exhibited the call details of Ashok Akodia as per Ex.P/72 throws light upon the conspiracy. As per Ex.P/72 there have been phone calls between co-accused Ashok Akodia from his Mobile No.9827385808 to the mobile number of Ankur's number i.e. 9926016102 and these calls have been made on the date of incident i.e. 11.04.2008 at 4:15:27 i.e. evening 4' O' Clock 15 minutes and 27 seconds. This was the time when the incident was about to take place. Further calls have also been made at 17:01:08 and 17:05:37 on the same day and that
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there are many more calls between these two mobile numbers which can be seen at Ex.P/72 which makes it very clear that Ankur had been acting as per plan for committing dacoity along with other co-accused persons. This piece of evidence in relevant under Section 7 of the Evidence Act. He was caught with Pradeep and Rahul which also shows that they were part of a Gang who committed dacoity as narrated in the present case. Further, the knife seized as per Ex.P/40 was also seen to contain traces resembling blood. The signature of Ankur on Ex.P/40 is from 'C to C' part. The knife which was seized from him was also sent for FSL Examination the aforesaid knife is Article-'G' which was found to contain human blood as per FSL report which is Ex.P/78. In the case of Jagroop Singh v/s. State of Punjab, 2012 (11) SCC 768, it was held that as the recovery was made pursuant to a disclosure statement made by the accused and the serological report had found that the blood was of human origin, the non-determination of the blood group had lost its significance. This is also a very relevant piece of evidence against Ankur which also proves not only that the Ankur was present at the time of commission of dacoity but was also involved in inflicting knife injuries on Vikas Shinde and Brij Mohan Gupta who had died later on.
49. In view of the above discussion, conviction of Ankur @ Banti under Section 396 and 398 of IPC is affirmed. No charge was framed under Section 25(1-b)(b) of Arms Act against Ankur @ Banti hence, there is no question of the aforesaid section to be found proved
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against him.
Regarding Ravi @ Babi
50. We have already seen that Rameshchand (PW2) has not identified any of the accused persons and the statements of Vikas Shinde (PW32) is unreliable when he says that he had identified Ravi. This is because in his police statement Ex.D/4, he had stated that he could not see the physical trades of assailants. It is also clear that no identification parade was carried out for identification by Vikas Shinde (PW32) of the accused. Hence, the dock identification of Ravi by Vikas Shinde (PW32) after a gap of 2 ½ years is unreliable.
51. The third eye witness is Rekha Dubey (PW5) who in para 4 states that out of six dacoits the faces of three dacoits were covered and that of 3 others were uncovered. This witness in the same paragraph identifies accused Ravi as the person who was driving the motorcycle at that point of time. This witness has been declared hostile because she does not state anything regarding identification parade. However, after being declared hostile, she admits that identification parade was carried out and she had identified accused Hemraj @ Sonu. She admits to have signed the identification memo Ex.P/1.
52. Avadesh Kumar Chaturvedi (PW28) is Tehsildar who states that on 23.5.2008, while he was posted as additional Tehsildar at Indore, identification parade was carried out and Rekha Dubey
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(PW5) was asked to identify the accused persons and Rekha Dubey (PW5) could not identify accused Pradeep, Ankur, Rahul and Ashok. However, on that day accused Ravi was not present and therefore, his identification could not be carried out. The identification memo is Ex.P/1 on which the witness's signatures are from 'C' to 'C' part and that of Rekha Dubey (PW5) from 'B' to 'B' part. It thus becomes clear from this witness's evidence that during identification proceeding, accused Ravi was not present and therefore, there was no opportunity for Rekha Dubey (PW5) to identify Ravi at that point of time.
53. Learned counsel for the appellants in his written submissions has submitted that Rekhabai (PW5) did not recognize Ravi during identification parade. Regarding this submission is has become clear that Ravi was absent when identification parade was being carried out. Hence, the above arguments is not acceptable.
54. Rekha Dubey (PW5) has identified Ravi for the first time during her court deposition. The court deposition of Rekha Dubey (PW5) has taken place on 23.12.2008, which is about after 8 months of the incident. The question is whether during this 8 months' period, was Rekha Dubey (PW5) liable to forgot and whether her statements regarding identification of Ravi are prone to suspicion or not ?. It can be seen that Rekha Dubey (PW5) is the person who had recorded her Dehati Nalishi report just about 2 to 3 hours after the incident and in this Dehati Nalishi report she has explained the physical characteristics of the assailants. She states that one of the accused
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was Sawla (darkish) and was Chikna (oily faced). The other accused has been described as 18 to 20 years old thin person. One another accused which has been described to be 18 to 20 years old. One of the accused was on the plump side and had small hair and in Ex.P/13 she categorically states that she would be able to identify the accused persons. As already stated, the deposition of Rekha Dubey (PW5) had been made after 8 months of the incident and it is also seen that in her Dehati Nalishi report she had given the particulars of the physical characteristics of many accused persons with great detail. It is also clear that the incident had occurred in the day light at about 4.30 PM and therefore, identification during the time of deposition cannot be considered to be figment of imagination on the part of Rekha Dubey (PW5). As far as accused Ravi is concerned, Rekha has been asked regarding complexion of Ravi and has been given suggestion that he is dark and not Sawla (darkish). Rekha Dubey (PW5) admits that accused Ravi is dark and not darkish and she states that she had told the police that accused was dark colored person. She also states that while recording her Dehati Nalishi that she had told that the accused was dark colored person with smooth (Chikna) face. Rekha has in fact recorded the word Sawla (darkish) not only in her Dehati Nalishi report Ex.P/13 but also in her police statement Ex.P/3 and she has admitted that Ravi is not darkish but is a dark colored. On this basis, learned counsel has argued that Ravi is not the same whose characteristics have been described by Rekha Dubey (PW5) in her
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Dehati Nalishi and police statement. This submission was considered. There is a thin line between darkish and dark complexion. In India absolutely dark people are hard to find by and mostly the people who are on the dark side are generally darkish (Sanwle) and therefore, this difference may not go completely in favour of the accused. In Hemudan Nanbha Gadhvi v/s. State of Gujarat, 2018 (2) ANJ (SC) (Suppl.) 107, it has been held that generally speaking, dock identification is to be given primacy over identification in TIP. However, in case of failure in dock identification, if other corroborative evidence is available, identification in TIP assumes significance.
55. However due to such differences in court statements, police statement and Dehati Nalishi report, corroborative piece of evidence is needed which shall be discussed next.
56. Now the corroborative evidence which has appeared against Ravi shall be considered. Mohan Singh (PW47) in para 8 has stated that on 30.4.2008, he arrested Ravi. The arrest memo is Ex.P/54 and his memorandum is Ex.P/27A and as per these memorandum statements Ravi has stated that that out of Rs.2.50 lacs which he had received as his share from looted amount, he had kept Rs.2.09 lacs under his bed in his house. Accused Ravi has further stated that the knife which was used and the blood stained shirt were also kept under his bed, which he proposed to recover. This witness further states that on the basis of memorandum statements cash amount of Rs.2.09 lacs
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were recovered under the bed of Ravi. This amount was in the denominations of Rs.100/- and there was 7 bundles of Rs.100/- each and two bundles of Rs.500/- were also recovered.
57. A striped shirt pink colored which was blood stained were also recovered as per Ex.P/30. However, it was not sent to FSL. Apart from these items one spring activated knife was also recovered from same place as per the seizure memo Ex.P/30. The independent witnesses of memorandum and seizure are Gopal (PW19) and Munna (PW13). However both of them have turned hostile. In the cross examination of Mohan Singh (PW47), no specific questions have been asked from witnesses regarding recovery of Rs.2.09 lacs, recovery of knife and recovery of blood stained shirt from the house of Ravi on the basis of memorandum.
58. In para 10 the witness again states that on the basis of the memorandum of Ravi, the motorcycle passion plus bearing registration No. M.P. 09 MN 7790 was recovered from Ankit. This memorandum in Ex.P/18. A perusal of this document shows that Ravi had stated that motorcycle of Rahul and Banti were used and motorcycle of Banti is hidden by Banti's brother Ankit and he proposed to recover it. Thereafter, the motorcycle, along with its registration No. was recovered from the house of Ankit, as per Ex.P/19. The seizure memo of motorcycle is Ex.P/19. These statements of the witness have also not been challenged appropriately in his cross - examination. Another witness regarding memorandum
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and recovery of motorcycle from Ankit on the basis of memorandum of Ravi is Kailash (PW16). This witness states that Ravi had told the police before him that the motorcycle red colored passion plus belongs to Banti (another accused) and the motorcycle has been hidden by Ankit who is the brother of Banti and Ravi proposed to get the motorcycle recovered from Ankit. The memorandum is Ex.P/18 on which signatures of Kailash is found on 'A' to 'A' part. The witness further states that on the basis of this memorandum a motorcycle passion plus was seized from the possession of Ankit along with its registration card. The seizure memo is Ex.P/19 on which the signatures of witness is from 'A' to 'A' part. In his cross examination Kailash (PW10) admits that he has cycle shop near the police station and whenever T.I. requires him for appending signatures he complies with the directions of the T.I. he becomes the witness. However even though this witness may be a pocket witness of the police but he very explicitly narrates the incident regarding memorandum given by Ravi and recovery of motorcycle and its registration card from Ankit who is the brother of Banti. The aforesaid evidence is in consonance with the evidence of Rekha (PW5) who has identified Ravi as one who was driving the motorcycle. It also shows close association of Ravi with Ankur @ Bunti. Statements regarding memorandum and recovery of motorcycle as narrated by Investigating Officer Shri Mohan Singh (PW47) have not been challenged in cross examination. This apart the witness Kailash (PW10) cannot also be termed to be
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unreliable. Thus, there is reliable corroborative evidence available against Ravi that he used a motorcycle belonging to co-accused Banti, from Ankit, the brother of Banti.
59. This apart, it is already been found proved beyond reasonable doubt that an amount of Rs.2.09 lacs was recovered from Ravi and this amount was in bundles of Rs.100/- and Rs.500/-, the explanation of which has not been given by Ravi. As already found, the bundles of notes seized were wrapped in a slip of Union Bank of India along with Bank's seal. Onus was now upon Ravi to explain as to how he came in possession of such huge amount which was drawn from Union Bank of India and why it was hidden by him under his Bed ?. The onus has not been discharged by Ravi. Thus following evidence is available against Ravi :-
(1) His dock identification by eye-witness Rekha (PW5) as one who was riding one of the two motorcycles.
(2) Questioned motorcycle has been recovered as per memorandum of Ravi from Ankit who is brother of accused Banti.
(3) The motorcycle was owned by Banti and its whereabouts were known to Ravi. This proves not only close association between Banti and Ravi, but also proves that it was given by him to Ankit for hiding after using the vehicle.
(4) The recovery of Rs.2,09,000/- hidden by Ravi and notes was property of Union Bank of India and its possession and purpose of hiding has not been explained by Ravi.
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60. The knife which has been recovered from Ravi has not been found to carry any blood stain. This knife is Article 'I' and 'I' has not been found to carry any blood stain. Learned counsel in her written submission has stressed upon the fact that no trace of blood on a knife which was recovered from Ravi shows his non-involvement in causing injury to Vikas Shinde (PW32) and Mr. Brij Mohan Gupta.
61. This submission was considered.
62. It has clearly been found that identification of Ravi by Rekhabai (PW5) in her dock identification is reliable and it has also been found proved that it was Ravi who was driving the motorcycle. Therefore, it is only natural that being on the driver's seat, he did not get down and inflict blows on Vikas Shinde and Mr. Brij Mohan Gupta and therefore there was no blood stains on his knife. There being no blood stains on the knife thus supports the evidence of Rekhabai (PW5) that Ravi was driving the motorcycle.
63. As already stated earlier, some inconsistency was of-course present in the evidence of Rekha Dubey (PW5) while identifying Ravi. Therefore, corroborative evidence was required in this matter against Ravi which is proved as already described and therefore it is conclusively proved that Ravi was one of the dacoits who had committed dacoity by looting Brij Mohan Gupta for sum of Rs.19.50 lacs. The onus was on Ravi to explain how he came in possession of Rs.2.09 lacs in bundles of Rs.100/- and Rs.500/- denominations. Ravi has offered no explanation and therefore, the prosecution has been
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able to prove its case beyond reasonable doubt against Ravi.
64. It is proved that Ravi was one of the decoits and was one of the member of the gang of decoit who had committed loot on the date of incident. It is also found proved that Ravi was carrying a deadly weapon knife at the time of commission of decoity.
65. Thus, conviction of Ravi under Section 396 and 398 of IPC and Section 25(1-b)(b) of Arms Act by trial court is affirmed.
Regarding involvement of accused Hemraj
66. Regarding involvement and identification of accused Hemraj @ Sonu the witness Rekha Dubey (PW5) has stated that out of six accused persons, the faces of 3 were covered and 3 were uncovered. In court deposition, this witness had identified accused Ravi. However, she has been declared hostile as she states nothing about the identification parade carried out during the investigation. After being declared hostile, she recalls and states that she had been able to identify Hemraj @ Sonu in identification parade and her signatures on Ex.P/1. The identification memo has been identified by her. No question has been asked in her cross examination on behalf of Hemraj @ Sonu. Avdesh Kumar Chaturvedi (PW28) is Tehsildar who had conducted identification proceedings on 23.5.2008 at the Central Jail, Indore and this witness states that Rekha Dubey (PW5) had correctly identified Hemraj @ Sonu and the signatures of witness from 'C' to 'C' part on Ex.P/1 have been identified by the witness. In his cross examination he admits in para 4 that it has not been described in
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identification memo as to how, ie., in what manner the witness has identified the accused ie., by placing her hand on head or by merely indicating with hand. He states that Rekha was already present when he went inside the jail for identification proceedings. Although the manner of identification has not been described in Ex.P/1, identification memo, but this is not a major lacuna as to render the whole identification proceedings unreliable. Looking to the fact that no cross examination of Rekha (PW5) has been conducted regarding identification of Hemraj by her and further that the statements of Avdesh Kumar Chaturvedi (PW28) Tehsildar have also not been challenged appropriately, it is found proved that Rekha had correctly identified Hemraj as one of the dacoits. It may also be seen that Rekha Dubey (PW5) in her Dehatinalishi report Ex.P/13 has given the physical characteristics of the various robbers involved in the incident and Dehatinalishi report has been recorded barely 2 hours after the incident and further that the incident has occurred in day light and the statements of Rekha Dubey (PW5) that 3 of the accused persons had their face uncovered at the time of incident had also been not challenged. Thus, on the basis of evidence of Rekha Dubey (PW5), it is found proved that Hemraj was one of the robbers who had committed the robbery. This eye witness apart, there is corroborative evidence also available against Hemraj which shall be discussed in the following para.
67. Witness Mohan Singh (PW47) in para 9 states that he had
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arrested Hemraj son of Rajendra vide Ex.P/55 and had obtained his memorandum statement under Section 27 of Evidence Act in which he had stated that out of his share of Rs.2.50 lacs, he had kept Rs.1.55 lac with his father Rajendra and rest of the amount he had already spent. He further proposed to recover one knife from below an Almirah. The memorandum statements are Ex.P/26, which carry the signatures of the witness from 'D' to 'D' part. The witness states that on the basis of this memorandum statements, a sharp edged knife which was spring activated carrying blood stains was seized vide Ex.P/29 which carries his signatures from 'C' to 'C' part. The witness further states that on the basis of memorandum of Hemraj Rs.1.55 lacs were recovered from father of Hemraj, ie., Rajendra and these Rs.1.55 lacs were in the form of one bundle of Rs.500/- and 10 bundles of Rs.100/-. All of those carry Union Bank of India seal and slips. The arrest memo of Rajendra is Ex.P/25, which carry the signatures of witness from 'C' to 'C' para. In his cross examination no questions have been asked on behalf of Hemraj so as to controvert statement made in examination in chief. The two witnesses of memorandum and seizure are Gopal (PW19) and Munnalal (PW13). However both of them have turned hostile but as already seen, the statement of Mohan (PW47) has not been challenged appropriately in cross examination. The knife which was seized on the basis of memorandum of Hemraj has been sent to the FSL and this article is Article 'H' and as per the FSL report Ex.P/78 human blood stains
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have been found on this knife and the onus was upon Hemraj to show as to how the human blood was found present on the knife recovered on the basis of his memorandum.
68. In the written submissions, it has been stated that FSL report states that "result so obtained is inconclusive". Therefore, the opinion of Article 'H' so recovered from Hemraj cannot be relied upon.
69. The aforesaid submission was considered.
70. A perusal of Ex.P/78 very clearly shows that Article 'H' which is knife recovered from Hemraj carries human blood. The inconclusive report is regarding the blood group. Even though blood group could not be determined, however it is proved that knife carries traces of human blood and no explanation has been given by Hemraj regarding the same.
71. It has further been mentioned that seizure memo was prepared after the delay of 3 weeks after the registration of the offence and no explanation for as such delay has been mentioned. Regarding this submission, it has to be mentioned that this is a case involving number of accused persons and dozens of pieces of evidence were required to be collected and therefore, it cannot be stated that there was unusual delay. Further no question regarding the delay has been asked from Mohan Singh Pant (PW47). Hence, conviction under Sections 396 and 398 of IPC and Section 25(1-b)(b) against Hemraj is affirmed.
Regarding involvement of accused - Ashok:
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72. Now the evidence pertaining to involvement of accused Ashok shall be considered. As already seen earlier, none of the eye-witnesses in the case have been able to identify the accused Ashok. In the identification parade which was held, the witness Rekha (PW5) has been able to identify only the accused Hemraj. In such scenario, the circumstantial evidence which is available shall be considered to conclude as to whether the trial court has rightly convicted Ashok or not. It has already been seen that the deceased Brij Mohan Gupta had died due to gun shot injury and the doctor had taken out the bullet which has pierced the vital organ of Brij Mohan Gupta. It is quite clear from the evidence of eye-witnesses that one of the accused persons had taken out the fire arm and fired at Brij Mohan Gupta. As per prosecution story, the person who had fired at Brij Mohan Gupta was none other than accused Ashok. The circumstantial evidence pertaining to such story shall now be considered.
73. Mohan Singh (PW47) states that when he came to know about the incident he reached the spot which was in-front of old revenue building. He found blood splattered on the road. He also found one empty cartridge fired from fire arm and at the back of the cartridge numeral 7.65 had been written. The cartridge was seized and sealed and Ex.P/15 is the seizure memo. The spot map which has been prepared is Ex.P/14. The other witness of seizure memo Ex.P/15 are Chelaram (PW6) and Mohammed Raees (PW11), both of whom have stated that at the back of the cartridge words ES 7.6 had been written.
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These witnesses have not been cross examined so as to challenge their statements made in examination in chief. Witness Mohan Singh (PW47) in para 6 states that on 15.4.2008 he had arrested Ashok Akodiya vide arrest memo Ex.P/19 and had prepared his memorandum given under Section 27 of the Evidence Act. In the memorandum Ashok had stated that he had got Rs.2.50 lacs as his share of the loot and out of this amount Rs.1.50 lacs he had given to Shivraj Singh, Rs.40,000/- to Arun and Rs.60,000/- to Mahesh for keeping the amount with them. Ashok further gave the statement that a pistol which he had used along with the magazine containing 3 live cartridges is kept inside Almirah and he proposed to recover the same. The memorandum Ex.P/23 on which the signature of the accused is from B to B part. The same was, ie., the pistol and 3 rounds were thereafter seized as per Ex.P/24 on which there are signatures of witnesses from C to C part. He further states that on the basis of memorandum of Ashok Rs.1.50 lac were seized from the possession of Shivraj Singh. These are 29 bundles each bundle containing Rs.100/- note and each note denomination was Rs.50/-, the seizure memo of which is Ex.P/25. The witness states that he thereafter seized Rs.60,000/- from the house of Mahesh and he recovered a bundle of Rs.500 notes and another bundle of Rs.100/- notes. Rs.60,000/- were recovered and seized vide seizure memo Ex.P/27 on which the signatures of the applicant witness is from C to C part. After this, as per the witness he went to the house of accused
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Arun and seized Rs.40,000/- from him which were 8 bundles of 100 notes each and each note denomination was Rs.50/-. The seizure memo was Ex.P/56 and the signature of the applicant is from C to C part. Thereafter Shivraj Singh, Arun and Mahesh were arrested vide arrest memo Ex.P/20, Ex.P/21A and Ex.P/22 respectively. The witness of memorandum and seizure from Ashok are Sachin (PW8) and Ghanshyam (PW14) both of whom have turned hostile and thus prosecution story hinges only on the basis of evidence of Investigating Officer Mohan (PW47). The aforesaid seized pistol and live cartridges and empty cartridges have been produced before the court and while pistol has been marked as Article A, the three live cartridges are shown as Article A/2 and the empty cartridges have been shown as Article A/3.
74. Irfan Ali, Head Constable (PW33) is Arms Mohrrir who states that on 19.5.2008 he was posted as Arms Mohrrir in police line at Indore and on that day a pistol and 3 live cartridges were sent to him in connection with crime No.201/08. The items were sealed which was opened up and as per the witness he found that the fire arm was a 25 bore pistol which was semi automatic and in working condition. The three live cartridges and 25 bore pistol were inspected and a report Ex.P/67 was given by the witness which carries his signature from A to A part. The pistol and live cartridges have been shown to the witness in the course of his deposition and he identifies them as the same articles, which he has inspected. In cross examination, he
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reiterates that the pistol and 3 live cartridges were brought to him in sealed condition and the seal was a wax seal which was embedded on the paper slip on these articles. A perusal of the seizure memo of the pistol and the 3 live cartridges which is Ex.P/24 was perused. In this document it has been shown that the words KF 7.65 has been written on the 3 live cartridges. Similarly on perusal of Ex.P/15 which is a seizure memo of the empty cartridges it has been shown that behind the cartridges the words KE 7.65 has been written. There is one difference ofcourse between Ex.P/15 and Ex.P/24 and the difference is that while Ex.P/15 the words inscribed on the empty cartridges has been shown to be KE 7.65 whereas the words shown in Ex/P24 are KF 7.65. Thus, there is a difference of E and F. However, the difference cannot be termed to be vital because there can be mistake in reading either E as F or F as E with very minute difference between the two letters. Thus, it can be seen that the cartridges which were found on the spot were the empty cartridges which were the same type of cartridges which were found to be live. It has already been found that Arms Mohrrir has found the pistol to be in working condition.
75. Witness Pradeep Sahukar (PW35) submits that on 31.5.2008, he was posted as arms clerk in the court of ADM Indore. The case diary of Crime No.201/08, Arms Mohrrir's report and the seized country made pistol and the cartridges were sent for inspection and these items were physically verified by ADM and thereafter
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permission for prosecution was given by him under Section 39 of Arms Arms Act vide Ex.P/69. These statements have not been challenged in the cross-examination.
76. In written submissions submitted on behalf of accused Ashok, it has been stated that there is discrepancy regarding the type of pistol which was seized from Ashok. As per arms report the gun confiscated has been shown to be of 25 bore whereas in the seizure memo which is Ex.P/24, the pistol is shown to be a 3 bore pistol. A perusal of the evidence of a Mohan Singh (PW47) who has exhibited Ex.P/4 wherein it has been stated that the pistol had a magazine with 3 live cartridges round. In his examination-in-chief, he does not say that the pistol was a 3 bore pistol. However, the word 3 bore is written in Ex.P/24. It can be seen that Ex.P/24 is drawn by Mohan Singh (PW47) who is not an expert as far as fire arms are concerned. It is a common knowledge that a fire arm does not have a 3 bore specification. What one generally knows is that fire arms are of .22, . 25, .32 and 0.38 calibre specifications. Thus, the evidence of arms Mohrrir - Irfan Ali (PW33) would be relied upon and the pistol which was seized had a barrel of .25 bore calibre. It is further stated that the pistol which was seized was shown to be in working condition even though it was not tested by firing. Regarding this submission, it can be stated that it is not mandatory to fire from a gun to prove that it is in working condition. The live cartridges which were found in pistol were required to be preserved. Hence, they could
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not have been fired. Ifran Ali (PW33) was expected to know as to whether the pistol was in working condition or not because he was an expert and he has given his opinion which cannot be faulted with. The bare fact that there were 3 live cartridges inside the magazine of the pistol itself shows that the pistol was in working condition.
77. Thus, no doubt remains that the same pistol was used to fire at Brij Mohan Gupta and a conclusion can safely be given that the accused who had fired and shot dead Brij Mohan Gupta was none other than accused Ashok. It has also been found that the evidence of Mahesh Utwani (PW43) that there were call records between Ashok and other co-accused persons. To recapitulate, Mahesh Utwani (PW43) was the Assistant Manager in Reliance Smart Mobile Company and he was asked to provide the call details of the Mobile No.9827 85808. This is the mobile number of accused Ashok. The witness has given the call detail records as per Ex.P/72 which runs in three pages. A perusal of the call records shows that accused Ashok had used this mobile number to contact co-accused Rahul and Ankur at just about the time of the incident and even after the incident was over which shows that Ashok was in constant touch with other co- accused persons and which displays a well laid out plan by the accused persons to loot the bank money. This evidence is admissible under Section 6 and 7 the Evidence Act. There is nothing in the cross examination of Mohan Singh (PW47) so as to create a suspicion in the statement made by him in the examination in chief and thus, it is
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found beyond reasonable doubt that Ashok was the person who had shot from his pistol resulting in death of Brij Mohan Gupta and thereafter the box was looted by the accused persons.
78. In the written synopsis, it has been mentioned that the Arms Moharir - Irfan (PW/33) has given no report as to whether the empty cartridge was fired from the pistol recovered from the accused- Ashok. Ex.P/68 is the report of Moharir-Irfan (PW33) and a perusal of which shows that three live cartridges were sent to him and he has given a report that these live cartridges could be fired from the pistol which was sent to him. It has been found that live cartridges contained markings which were identical to markings found at the back of spent cartridge. The pistol was also found to be in working condition. Ofcourse, the empty cartridge ought to have also been sent to the arms Moharir. However, not doing so does not weaken the prosecution story. The empty cartridge had identical markings as the live cartridge. The looted money was recovered from accused-Ashok and from Ashok only, the pistol was also recovered and the cartridge found at the spot had identical markings to as were on the live cartridges seized from Ashok. This evidence cumulatively proves that the empty cartridge was fired from the same pistol which was seized from the possession of Ashok.
79. In the written submission, a citation has been putforth by learned counsel which is Mahavir Singh vs State of Madhya Pradesh 2016 10 SCC 220 in which it has to be proved that the death
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of victim occurred from the bullet released from the seized gun. Learned counsel has submitted that the aforesaid condition has not been satisfied in the present case. However, as discussed earlier, the only conclusion which can be drawn is that the empty cartridge was the same cartridge which was fired from the pistol seized from the possession of accused-Ashok and therefore no breach of aforesaid citation has been made. Some other citations were also submitted by learned counsel which are Kailash Dynaneshwar Tonchar vs State of Maharashtra (2015) SCC 3314, Pradip Sarkar vs State of Tripura (2011) Gauhati Law Reports 539 and Musheer Khan vs State of Madhya Pradesh (2010) 2 SCC 748. The aforesaid citations were perused and we are afraid that these citations also do not come to the rescue to accused-Ashok. The aforesaid evidence, recovery of looted money from Ravi and his constant touch on mobile phone with co-accused persons cumulatively prove his involvement in dacoity and committing same with deadly weapon.
80. In view of the above discussion, conviction of Ashok under Sections 396 and 398 of IPC and under Section 25(1-b)(a) of Arms Act by the trial Court is affirmed.
Regarding Ghanshyam and Rajendra
81. Regarding Ghanshyam, Investigating Officer Mohan Singh (PW47) has stated that he had arrested Ghanshyam from the house of Rahul on information received from a Mukhbir. An Ex.P/47 is the arrest memo. He states that on the basis of memorandum under
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Section 27 of the Evidence Act, which is Ex.P/50, which was executed on 14.6.2008 at 3.05 PM, Rs.90,000/- were recovered from below the cot from the house of Ghanshyam situated at Rau, Indore vide Ex.P/49 at 3.20 PM on the same day, ei., on 14.6.2008. The witness further states that Ghanshyam gave another memorandum which is Ex.P/48 on 15.6.2008 at 11.40 AM on the basis of which Rs.60,000/- were recovered from his rented house at Omkareshwar vide Ex.P/44. In his cross examination, this witness denies the suggestion that all the proceedings pertaining to Ghanshyam were executed in the police station. The independent witness of memo and seizure of Rs.90,000/- from his house are Sanjay (PW21) and Roop Singh (PW20) and both of whom have turned hostile and do not support the prosecution story apart from the fact that they identified their signatures on the memorandum and on seizure memo.
82. Regarding the evidence that Ghanshyam had rented the house at Omkareshwar from where Rs.60,000/- recovered, the relevant witnesses are Chintaram (PW36) who states that he had gone to the field of Ghanshyam for cutting Soyabean crops. This witness is resident of Omkareshwar. He states that at the instance of Ghanshyam, he had managed to get a house on rent. The house owner at Omkareshwar who had rented out his house to Ghanshyam is Madanlal Kushwah (PW17). He states that his wife had rented his house to Ghanshyam at Rs.800/- per month. However, he denies seizure of money from the house stating that he was not present at
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that time. This witness has been declared hostile. In cross examination, he states that Ghanshyam had taken the house for religious purposes but does not support the prosecution story regarding seizure of Rs.60,000/- from his house at Onkareshwar. The other witness of seizure of Rs.60,000/- from Onkareshwar house is Mahesh (PW35) who states in examination in chief that Rs.70,000/- was recovered by police from the house of Madan Kushwah. His signature in seizure memo Ex.P/44 from B to B part. In cross examination he states that he works as labourer (coolie) at Onkareshwar bus stand and police had called him to witness the seizure proceedings. In cross examination however he states that he was standing outside the house of Ghanshyam and police had gone inside and police told him that a plastic bag was recovered containing Rs.70,000/- but he never saw the money nor the plastic bag. This witness thus although in examination-in-chief supports the prosecution story regarding recovery of money from the house at Omkareshwar but in cross examination he submits that he did not see the money or the bag containing the money and in view of cross examination it cannot be stated that this witness had himself seen seizure of money from the house at Onkareshwar. However, from the statement of Mahesh (PW35), it becomes clear that police had indeed gone to the house of Madanlal Kushwah, the owner of the house who had rented out his house to Ghanshyam and police told Mahesh that they have recovered money from the house. Even though independent
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witnesses have not fully supported the prosecution story, the evidence of Mohan Singh (PW47) has remained unimpeached through out. It can be seen that the share of Ghanshyam was almost equal to the other main co-accused persons and the prosecution story is that Ghanshyam was chiefly involved in the conspiracy and planning to commit loot.
83. Section 412 provides for the punishment of offence to any person who dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of decoity, or dishonestly receives from a person, whom he knows or has reason to believe to belonging or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen.
84. As far as Ghanshyam is concerned, the manner in which he had hidden Rs.90,000/- a huge sum compared to his ordinary means of living and further the manner in which he had diverted Rs.60,000/- to another house at Omkareshwar from clearly shows that not only he knew that it was stolen money but also he knew it or had reason to believe that the money had been transferred by the commission of decoity. Thus, his conviction under Section 412 of IPC was absolutely appropriate.
85. Learned counsel for the appellant/accused in her final arguments has submitted that there must be some evidence that the accused was having knowledge or reason to believe that the amount
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was related with dacoity and it would not be sound to draw presumption beyond that the accused were the receivers of stolen property. The citation of Nethraj Singh vs State of Madhya Pradesh 1997 3 SCC 525 has been relied upon, as also the citation of Bhaskar Chandra Nayak and Another vs State of Orissa 2010 Vol.-1 CRIMES 256 (Orissa).
86. In the judgment of Bhaskar Chandra Nayak (supra), it has been held that mere possession is not sufficient to convict a person under Section 412 IPC and onus on prosecution to prove that the properties were stolen.
87. The aforesaid citations whether would be applicable in case of accused Ghanshyam and Rajendra is to be seen.
88. As far as accused-Ghanshyam is concerned, it is found proved that he had received an amount approximately equivalent to other main perpetrators of the dacoity. He had hidden Rs.90,000/- below his Cot at his house and further kept Rs.60,000/- in a rented house at Omkareshwar. The accused-Ghanshyam has been termed by the prosecution as one of the main conspirators for committing loot. The manner in which he had hidden the sums of money as aforesaid very clearly shows that he was having the requisite knowledge or had the reason to believe that the money was obtained by commission of dacoity or he knew that the money was received by him from a member of a gang of dacoits. Therefore the charge under Section 412 IPC has rightly been proved against him.
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89. As far as accused-Rajendra is concerned who is the father of Hemraj and Hemraj had taken active part in the commission of dacoity. The prosecution case is that it was Hemraj who had given Rs.1,55,000/- to his father i.e. accused-Rajendra. The memorandum of Hemraj is Ex.P/26-A. On the basis of this memorandum Rs.1,55,000/- were recovered from accused-Rajendra vide Ex.P/28. As already described, these bundles had a seal of Union Bank of India also contained a slip. As per Ex.P/28, the accused-Rajendra had taken out the aforesaid amount from an 'Almirah' and the accused- Rajendra being the father of Hemraj, it is inconceivable to believe that Rajendra had bonafidely received huge amount from his son- Hemraj believing that it is obtained by Hemraj in legal and proper manner. Rajendra puts up no such defence in his accused statements. However, it is far-fetched to presume that Rajendra knew that this money is the result of commission of dacoity or that Hemraj was one of the member of gang of dacoits who had looted this money and had given to his father i.e. accused-Rajendra. It can only be found proved that accused-Rajendra had reason to believe that the amount of Rs.1,55,000/- were the stolen property and therefore accused- Rajendra would be held guilty for committing offence under Section 411 IPC and not under Section 412 IPC. To that extent the appeal of accused-Rajendra is allowed in part. His sentence from seven years of RI along with fine of Rs.1000/- is reduced to three years of RI with no change in fine amount.
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Regarding accused-Shivraj, Arun and Mahesh.
90. All the three accused persons have been convicted under Section 412 IPC as per Mohan Singh-IO (PW47) on the basis of memorandum of accused-Ashok, Rs.1,50,000/- was recovered from Shivraj as per seizure memo Ex.P/25, Rs.40,000/- was recovered from Arun as per Ex.P/26, Rs.60,000/- were recovered from Mahesh as per Ex.P/27. The amount which was recovered from Shivraj were denomination of notes of Rs.50/- and there being 29 such bundles. Rs.40,000/- which were recovered from accused-Arun were also Rs.50/- denomination notes and there were 38 such bundles. Rs.60,000/- which were recovered from Mahesh were denomination of Rs.500/- notes and there were 100 such notes and further denomination of Rs.100 notes in one bundle was recovered.
91. No memorandum statements of accused-Shivraj Singh, Arun and Mahesh have been recorded. There is no evidence to show that these accused persons knew that accused-Ashok has committed dacoity/loot and the aforesaid property was the looted property. But of-course they had reason to believe that the aforesaid property was the stolen property. These accused persons in their accused statements or in the cross-examination of IO-Mohan Singh (PW/47) have not given statements that they believed that the aforesaid property was given to them by accused-Ashok for a legal purpose. A recovery has been made barely four days after the incident and in that case, provisions of Section 114-a of Evidence Act, 1872 would get
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attracted under which the Court may presume that a person who is in possession of stolen goods soon after the theft, is either thief or has received goods knowing them to be stolen, unless he can account for his possession. This presumption, applies against all the three accused persons and these accused persons have not rebutted the presumption by offering any satisfactory reason for possessing such substantial quantity of money with them. Hence all the three of them (all three accused) are liable to be convicted and sentenced under Section 411 IPC. However, for the reasons stated earlier, they could not have been convicted under Section 412 IPC. The appeal filed by accused- Shivraj, Mahesh and Arun, thus, partly allowed to the extent that instead of Section 412 IPC they are liable to be convicted and sentenced under Section 411 IPC and instead of sentence of 7 years of RI with fine of Rs.1000/- to each of them is sentenced to 3 years RI with no change in fine amount.
92. Thus, after duly considering the appeals filed by the appellants, we are of the considered opinion that the appeals filed by appellants Pradeep, Ankur, Ravi, Hemraj, Rahul, Ashok and Ghanshyam be dismissed and the convictions and sentences imposed on them by the trial Court be affirmed.
Question No.7 was as follows :- Whether accused Arun, Mahesh, Rajendra, Ghanshyam and Shivraj Singh dishonestly received cash amounts from the members of the gang of decoits and were they liable under Section 412 of IPC ?
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93. From the discussion already gone into, it has been found proved that out of the above appellants only Ghanshyam has been found guilty under Section 412 of IPC. Rest of them, ie., Arun, Mahesh, Rajendra and Shivraj Singh are guilty under Section 411 of IPC.
94. The appeals filed by appellants Rajendra, Shivraj, Arun and Mahesh are partly allowed and they stand convicted under Section 411 IPC instead of Section 412 IPC and their jail sentences are reduced from 7 years RI each to 3 years RI each with no change in fine amount of Rs.1000/- on each of them with further default sentences of one month in respect of each of the above appellants.
95. Appellant Ravi in Cri.Appeal No.1070/2011, Appellant Mahesh in CRA.No.994/2011, Appellant Arun in CRA.No.953/2011, Appellant Rahul @ Vijendra in CRA.No.1081/2011, Appellant Pradeep in CRA.No.1205/2011, Appellant Shivraj Singh in CRA.No.1123/2011 and Appellant Rajendra @ Manju in CRA.No.1071/2011 have been released from jail after their suspension of jail sentence during the pendency of their appeals. Suspension of jail sentences of these appellants are revoked and they shall be sent to jail for serving the residual jail sentences as per this judgment by the trial court. The record of the trial court be sent back for due compliance.
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96. With the aforesaid, these appeals stand disposed of in above terms.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
ss/- Arun, gp.
Digitally signed by
Shailesh Sukhdev
Date: 2020.07.10
16:27:19 +05'30'