Pooran Singh Latwal And Another ... vs State Of Uttarakhand on 12 July, 2022

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Uttarakhand High Court

Pooran Singh Latwal And Another ... vs State Of Uttarakhand on 12 July, 2022

Instant appeal is preferred by the appellants Pooran Singh Latwal and Ramesh Kharwal against the judgment and order dated 09.01.2004, passed in Sessions Trial No. 1 of 2002, State Vs. Pooran Singh Latwal and another under Sections 147, 148, 307, 149 IPC (based on Case Crime No. 1873 of 2001, Police Station Haldwani, District Nainital), Sessions Trial Nos. 2 of 2002, State Vs. Pooran Singh Latwal and another, under Sections 395, 397, 412 IPC, (based on Case Crime No. 1872 of 2001, Police Station Haldwani, District Nainital), Sessions Trial No. 3 of 2002 State Vs. Ramesh Kharwal, under Section 25 Arms Act, 1959 ("the Act") (based on Case Crime No. 1877 of 2001, Police Station Haldwani, District Naintial) and Sessions Trial 2 No. 4 of 2002, State Vs. Pooran Singh Latwal, under Section 25 of the Act (based on Case Crime No. 1875 of 2001, Police Station Haldwani, District Nainital), by the court of Additional Sessions and District Judge/1st Fast Track Court, Haldwani, District Nainital. By the impugned judgment and order, the appellants have been convicted under Sections 395 IPC and Section 25 of the Act and sentenced as hereunder:-

(i) Section 395 IPC - Rigorous imprisonment for a period of ten years and a fine of Rs. 4,000/-. In default of payment of fine, further imprisonment for a period of two months.

(ii) Section 25 of the Act - Rigorous imprisonment for a period of one year.

2. Prosecution case, briefly stated, is as follows. On 07.08.2001, at about 1:45 PM, three miscreants entered into the Bank of Baroda, Branch Kunwarpur, Golapar, District Haldwani ("the Bank"). On gunpoint, they looted Rs.32,995/-. They also attacked the Branch Manager with the butt of the country-made pistol ("CMP"). The miscreants had looted Rs.32,995/- and when the Bank Manager came outside the Bank, he saw the miscreants fleeing away in a Maruti Van bearing No. 3 UP02D/4926 ("the car"). The Bank Manager immediately telephonically informed the police about it. This report was lodged at 2:00 PM as FIR No. 1872 of 2001, under Section 395/397 IPC at Police Station Haldwani, District Nainital. After the incident, when the Bank Manager came out side the bank, he stopped a Jeep and informed about the incident to its driver. The Jeep driver PW2 Aman Deep Singh followed the car, intercepted it and hit it. In that process, the miscreants ran towards the field, while firing. They fired at the police. Some of the police personnel were injured. With the help of police and public, four miscreants were apprehended. Two of them are the appellants. From the possession of the appellant Pooran Singh Latwal, three cartridges of 12 bore and from the possession of appellant Ramesh Kharwal, three cartridges of 315 bore were allegedly recovered. PW2 Amandeep Singh also gave a report to the Police about the incident, based on which, Case Crime No. 1873 of 2001, under Sections 147, 148, 149, 307, 412 IPC against the appellants and others: Case Crime No. 1875 of 2001, under Section 25 of the Act against the appellant Pooran Singh Latwal; Case Crime No. 1877 of 2001 under Section 25 of the Act against the appellant Ramesh Kharwal and cases against the other accused were also lodged. This FIR was lodged on 07.08.2001 at 6:30 PM. The Investigation was carried out. 4 After investigation, charge sheet under Section 25 of the Act was submitted against both the appellants separately. Separate Chargesheets were filed against the appellants under Sections 147, 148, 149, 307 IPC and under Sections 395, 397 and 412 IPC, which are the basis of the above Sessions Trials.

3. According to the prosecution case, the other three persons who were apprehended died due to the injuries sustained by them at the time of their arrest, as they were grossly beaten up by the public. The appellants were charged under Section 25 of the Act and separately they were charged under Sections 147, 148, 307 read with 149 IPC and Sections 395 and 397 IPC. But, on 03.09.2002, an order was passed in Sessions Trial No. 02 of 2002. According to it, charges were amended and it was directed that the appellants would be charged under Sections 395, 397 and 412 IPC. That is how the appellants were charged under Sections 395, 397 and 412 IPC on 03.09.2002.

4. It may be noted that prior to 03.09.2002, four witnesses, namely, PW1 Rajeev Mishra, PW2 Rajendra Prasad, PW3 Aman Deep Singh and PW4 Harish Singh had already been examined.

5. On 03.09.2002, the court had directed that after amendment of the charge, the witnesses may further be cross examined by the defence. In fact, thereafter, the witnesses were re-examined. PW1 Rajeev Mishra's statements were recorded on 21.12.2002 and thereafter, the statements of other witnesses were recorded.

6. In order to prove its case, the prosecution examined nine witnesses, namely, PW 1 Rajeev Mishra, PW 2 Aman Deep Singh, PW 3 Vikram Singh, PW 4 Balkar Singh, PW 5 Pramod Kumar Sah, PW 6 Harish Mehra, PW 7 Dr. Shakeel Anwar, PW 8 Chandra Singh Bisht, the Investigating Officer and PW 9 Sultan Singh, another Investigating Officer.

7. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to them, they have been falsely implicated. By the impugned judgment and order, the appellants have been acquitted of the charge under Sections 397 and 412 IPC, but they have been convicted and sentenced under Sections 395 IPC and 25 of the Act.

8. Heard learned counsel for the parties and perused the record.

9. Learned counsel for the appellants would submit that no case is made out against the appellants. They have been falsely implicated. The appellants have not been identified. The car driver has not been examined. The Jeep and car were not inspected. The details of other three persons, who died in the incident, have not been proved. It is also argued that there is no evidence, even to suggest that the appellants were in the Bank. Therefore, it is argued that prosecution has utterly failed to prove its case. The appellants ought to have been acquitted of the charge. The court below did commit an error in convicting and sentencing the appellants.

10. Learned counsel appearing for the State would submit that it appears that the Jeep Driver PW2 Amandeep Singh is implanted; there has been no test identification parade conducted; the currency details is not mentioned anywhere. It appears that the prosecution has, in fact, not been able to prove its case.

11. At the very outset, the Court deeply appreciates the independent opinion given by the learned State counsel. The Court may not pass order on mere submission of either of the parties. But, the independent 7 opinion of learned counsels appearing for the parties always helps the course of justice.

12. As stated, before the charge was amended on 03.09.2002, four witnesses had already been examined. They were Rajeev Mishra, Rajendra Prasad, Aman Deep and Harish Singh as PW1 to PW4. But, subsequent to the amendment of the charge, PW2 Rajendra Prasad and PW4 Harish Singh were not cross examined further.

13. PW1 Rajeev Mishra is the Bank Manager. He has stated about the incident. According to him, on 07.08.2001, at about 1:45 PM, three miscreants entered in their Bank. They took him and other Bank employees on gun point. One of them took Rs.22,395/- from the cash counter. Thereafter, they shoved all three, namely, PW1 Rajeev Mishra, Rajendra Prasad and Nari Ram Arya in the cash room, asked them to open the safe and took Rs.10,600/- from the safe also. When this witness tried to resist , he was hit on his head with the butt of the CMP. The miscreants locked PW1 Rajeev Mishra and his colleagues, Rajendra Prasad and Nari Ram Arya in the cash room. Subsequent to it, this witness and others, who were confined in the cash room, broke open the door. They came out of the Bank and saw the car, in which, the 8 miscreants were moving towards Chorgalia. PW1 Rajeev Mishra has said that he had seen the car moving from the Bank. There were 5-6 persons sitting in the car. According to PW1 Rajeev Mishra, the miscreants had already taken telephone from their Bank, therefore, , he went to the house of a Pathak Ji, and telephoned the police about the incident. It is this telephone report, based on which, Case Crime No. 1872 of 2001 under Section 395 and 397 IPC was lodged against the unknown persons. According to PW1 Rajeev Mishra after it when he came outside on the road, he saw the Jeep approaching him. He signalled the Jeep to stop and narrated the incident to its driver, PW2 Amandeep Singh. PW2 Aman Deep Singh, thereafter followed the car. PW1 Rajeev Mishra has stated that thereafter, he came inside the Bank and counted the money. Then he learnt that, in fact, Rs.32,995/- was looted by the miscreants.

14. As stated, before modification of the charge, Rajendra Prasad was examined as PW2, but after modification of charge, he was not produced for cross examination. His evidence has not been taken into consideration.

15. Aman Deep Singh was examined as PW3 prior to modification of charge. Subsequent to modification of charge, he was again examined. He is referred to as PW2 Aman Deep Singh. PW2 Aman Deep Singh has stated that on 07.08.2001, he was driving a Jeep bearing Registration No.UP02/0156. According to him, on that date, as soon as, he reached near the Bank of Baroad, Kunwarpur, he was signalled to stop by the Bank Manager. The Bank Manager then revealed to him that some miscreants had looted the Bank and they had moved in the car. This witness followed the car. On the way, he met two Police Constables also. He narrated the incident to them and asked them to follow. Nearly 1 Km before the Ranibagar, according to PW2 Aman Deep Singh, he overtook the car and at Ranibangar, he hit the car. According to him, as soon as, he hit the car, five miscreants alighted from the car and while firing, ran towards the west of it, in the fields. Police also reached at the spot. The miscreants were surrounded by Police and other people from the public and thereafter, according to this witness, the appellants and others were apprehended. From the possession of the appellant Pooran Singh Latwal, three cartridges and from the appellant Ramesh Kharwal, also three cartridges were recovered. This witness has also stated about the recovery from other miscreants. According 10 to him, the miscreants were grossly beaten by the public with the lathi and danda. According to him, he gave a report of the incident to Police which he has proved as Ex. A2.

16. PW3 Vikram Singh, has stated about the whole incident, but he is not witness to any of the documents.

17. PW4 Balkar Singh is the person, in whose fields, according to the prosecution, four of the miscreants were surrounded and captured. He has stated about it. According to him, when the miscreants were surrounded, they fired at the Police. He also fired at them with his licensed gun. PW4 Balkar Singh has named the appellant Pooran Singh Latwal. He could not name the appellant Ramesh Kharwal. He has proved his signatures on the recovery memo.

18. PW5 Pramod Lal Sah, has also stated about the incident. According to him, when the miscreants were surrounded by the police and public, four of them were apprehended. After his arrival fifth miscreant was also arrested. He has stated about it.

19. PW6 Harish Mehra has stated as to how the appellants and others were arrested. According to him, 11 from the possession of the appellant Pooran Singh Latwal, three cartridges were recovered and from near him and a CMP of 12 bore, which had fallen down from him, was also found. According to this witness, from the possession of the appellant Ramesh Kharwal, three cartridges of 315 bore were recovered. According to him, the appellant Ramesh Kharwal had told that his country-made pistol had fallen somewhere. He has proved the cartridges as Ex. 1 to Ex. 6, which were allegedly recovered from the appellants. But, PW6 Harish Mehra did not prove any CMP, which was allegedly found from near the appellant Pooran Singh Latwal.

20. PW7 Dr. Shakeel Anwar was posted at Base Hospital, Haldwani on the date of incident. On that date, he examined PW1 Rajeev Mishra and found found the following injuries.

"Abraded traumatic swelling of 3cm x 2 cm scalp formation, present over the upper part of fore head left side, lying 4 cm above the left eyebrow colour Red.

According to him, the injuries could be caused by blunt hard object. He proved the report Ex. A4.

21. PW7 Dr. Shakeel Anwar has also examined Constable 378 Ramesh Chandra Tiwari on the date of incident and found the following injuries:-

"(i) Traumatic swelling of 2cm x 1 cm present over the lateral aspect of right elbow.

Colour-red.

(ii) Traumatic swelling of 3 cm x 2 cm present over the medial aspect of right knee.

Colour-red.

(ii) Traumatic swelling of 2cm x 1cm present over the lateral aspect of right hip.

Colour-red.

According to him, the injuries were caused by blunt hard object and fresh in duration. He proved the report Ex. A5

22. PW7 Dr. Shakeel Anwar also examined A.P. 252 Ramendra Singh on the date of incident and found following injuries:-

"(i) Abraded traumatic swelling of 3cm x 2cm present over upper posterior aspect of scalp left side lying 12cm above the lower hair line and 1/2 cm away from the midline. Colour-red."

According to him, the injury was caused by blunt hard object. He proved the report Ex. A-6.

23. PW7 Dr. Shakeel Anwar also examined A.P. 247 Ramveer Singh on the date of incident and found following injuries:-

"(i) Traumatic swelling of 3cm x 2cm present over the nape of the neck. Colour red.

(ii) Abrasion of 3cm x 1/4 cm present over the anterior aspect of middle part of right leg.

Colour red.

According to him, the injuries were caused by blunt hard object. Nature of injury no.1 under observation, referred to ENT surgeon for expert opinion. The injury no.2 was simple in nature. He proved the report Ex. A-7.

24. PW7 Dr. Shakeel Anwar also examined Pramod Kumar Sah, on the date of incident and found following injuries:-

"(i) Multiple rounded abrasion of 1/2 cm diameter spread in an area of 7cm x 5cm, extending from the anterior aspect of lower left arm. Left antecubital fossa and left upper part of forearm. Colour-red.

          (ii)   Punctured would of 1/2           cm diameter
                 present   over    the   middle   part   of   left

antecubital fossa. Margin- lacertated According to him, the injured was kept under observation and X-ray advised. He proved the report Ex.

A8. Subsequently, according to this witness he found injuries on the person of Pramod Lal Sah which could have been caused by firearm. It was simple in nature. He proved supplementary report, Ex. A9.

25. PW8 Chandra Singh Bisht is the Investigating Officer of Case Crime No. 1873 of 2001 to 1878 of 2001. He prepared site plan, took prosecution sanction and submitted charge sheet. He has stated about it. He proved prosecution sanction Ex. A15 and charge sheet under Section 25 of the Act, Ex. A16 against the appellant Pooran Singh Latwal.

26. He also proved prosecution sanction Ex. A17 & charge sheet under Section 25 of the Act, Ex. A-18 against the appellant Ramesh Kharwal.

27. PW8 Chandra Singh Bisht also investigated Case Crime No. 1873 of 2001. He proved charge sheet Ex. A19 under Sections 147, 148, 149, 307 IPC against the appellants. He has also proved other police documents. 15

28. PW9 Sultan Singh has investigated the offence under Sections 395, 397 and 412 IPC in Crime No. 1872 of 2001. He also proved the site plan, charge sheet and other police documents.

29. The appellants have been convicted under Section 395 IPC and Section 25 of the Act. The charge under Section 395 IPC has been framed on the ground that on 07.08.2001, at about 1:45 PM, they entered into the Bank and looted Rs. 32,995 /-, a telephone set and a calculator.

30. PW1 Rajeev Mishra is the Bank Manager. He has been examined twice. First before modification of charge, on 08.03.2002 and thereafter, after modification of charge on 21.12.2002. The charge was modified on 03.09.2002.

31. PW1 Rajeev Mishra has not identified the witnesses. He has categorically stated that three persons entered in the Bank on that date, who looted cash and other articles. PW1 Rajeev Mishra has also stated that after the incident, when he came out, he saw the car moving from the place of incident, in which, there were five or six persons seated. But, in his last but one paragraph of cross examination recorded on 21.12.2002, PW1 Rajeev 16 Mishra has said that the appellants did not enter the Bank. He also expressed ignorance, as to whether, the appellants were sitting in the car or not. Even otherwise, he did not see the person, who were sitting inside the car. According to him, he simply counted the heads, from outside, when the car was moving. No test identification parade was done.

32. Before modification of charge, PW2 Rajendra Prasad, another Bank employee was examined. But, he is not examined post modification of the charge. Even, he had not identified the appellants. The statement of PW1 Rajeev Mishra requires little scrutiny.

33. PW1 Rajeev Mishra has proved a report Ex. A1. Ex A1 cannot be read into evidence because it is hit by Section 162 of the Code, because PW1 Rajeev Mishra had already given a report to the Police telephonically about the loot. Based on which, Case Crime No. 1872 of 2001, under Section 395 and 379 IPC was lodged at the Police Station Haldwani against 5-6 unknown persons. It was so lodged on 07.08.2001 at 2:00 PM. Ex. A1 records that information had already been given to the police. This is a written statement of the witness given during investigation. It falls under Section 162 of the Code. It cannot be taken 17 into consideration except for the purpose of contradiction of its maker as per the proviso to Section 162 (1) of the Code.

34. In his statement PW1 Rajeev Mishra states that when he and other Bank employees were locked in a room by the miscreants, they broke open the door and it is at this stage, according to PW1 Rajeev Mishra, he saw the miscreants fleeing away in the car. In his examination recorded on 21.12.2002, PW1 Rajeev Mishra at Page 2 has stated that as soon as he saw the car, taking away the miscreants, he also noticed a jeep. He signalled the jeep to stop. The jeep stopped. He told the jeep driver about the incident. Thereafter, PW2 Rajeev Mishra, informed the police about the incident telephonically.

35. In his statement recorded on 21.12.2002 at page 6, PW1 Rajeev Mishra has stated that after he had informed the police, the Cashier had told him as to how much money was looted. But, chick FIR Ex. A25 which is based on the telephonic information given by PW1 Rajeev Mishra records that the police was informed that Rs.32,995/- were looted by the miscreants. If PW1 Rajeev Mishra was subsequently told by the Cashier about the money looted by the miscreants, how did he inform the 18 police immediately after the incident, about the amount which was allegedly looted?

36. There are contradictions in the statement of PW1 Rajeev Mishra recorded on 08.03.2002 prior to the modification of charge and in the statement recorded on 21.12.2002 after the modification of charge. Because in his statement recorded on 08.03.2002, PW1 Rajeev Mishra has stated that after breaking open the door of the cash room, where they were confined by the miscreants, he immediately came out and telephoned the police and thereafter, he noticed a jeep and narrated the incident to the Jeep Driver. On the other hand, in his statement recorded on 21.12.2002, PW1 Rajeev Mishra had told that when he came out of the cash room, he first signalled the Jeep to stop and thereafter, telephoned the police. This is, in fact, major contradiction. It somehow doubts the credibility of the statement of PW1 Rajeev Mishra.

37. The fact remains that PW1 Rajeev Mishra has not identified the appellants. He has not stated that the appellants entered inside the Bank. He categorically stated that the appellants did not enter inside the bank and he did not notice them, while sitting in the car. 19

38. PW2 Aman Deep Singh was also examined twice. Firstly, before modification of the charge and secondly, after modification of charge. He has proved his report Ex. A2, which is about the incident as to how he was stopped by PW1 Rajeev Mishra. How did he follow the car? How he spotted to policemen, who were coming from the opposite direction and how he requested the police personnel to follow them? And how thereafter, the miscreants, including the appellants were surrounded, beaten up and arrested? Based on this report of PW2 Aman Deep Singh, Case Crime No. 1873 of 2001, under Sections 147, 148, 149, 307 and 412 IPC, Case Crime No. 1874 of 2001, Case Crime No. 1875 of 2001, Case Crime No. 1876 of 2001, Case Crime No. 1877 of 2001, Case Crime No. 1878 of 2001 were lodged at 6:30 PM on 07.08.2001 at Police Station Haldwani. Chik FIR is Ex.A25. It has been proved by PW9 Sultan Singh.

39. PW2 Aman Deep Singh has in his statement stated that as soon as he hit the car at Rani Bangar, the miscreants ran away from the car firing indiscriminately. PW2 Aman Deep Singh was not holding any gun or was not asking the occupants of the car to stop. He simply overtook the car and thereafter, at Ranibangar according to him, he hit the car. Why did the miscreants start 20 running away and firing indiscriminately? PW2 Aman Deep Singh also states that those miscreants were apprehended with the help of public and police. Why the public had already gathered there? How did police reach there?

40. In the report Ex. A2, PW2 Aman Deep Singh had written that Balwant Rai S/o Teeka Ram, Veer Ram S/o Hari Ram, Vikram Singh S/o Gurbachan Singh, Balkar Singh S/o Mota Singh, Gurpreet Singh S/o Balkar Singh, Pushkar Singh S/o Jawahar Singh and other people chased the miscreants. Then he writes that Daroga Ji from Chorgalia, R.L. Ganwar, Constable Ramveer and others also reached there. He also writes in Ex. A2 that Dileep Singh S/o Chandan Singh, Gurmail Singh S/o Gurjan Singh, Gurtej Singh S/o Gurbachan Singh, Yogendra Singh S/o Jeewan Singh, Gurdev Singh S/o Sukhtar Singh and other people also chased and beaten up the miscreants. How did PW2 Aman Deep Singh know all these peoples? and the question to be answered it, as to why these people had already gathered there? Were they waiting for the car and the jeep to come and to see the incident? Who had inform them? He also writes in Ex. A2 and tells in the court that Balkar Singh fired at the miscreants from his licensed gun. He also tells that police also fired in self defence. How can PW2 Aman Deep Singh 21 write all these things? How could he say that Balkar Singh had a licensed gun? PW2 Aman Deep Singh says at one stage of his statement that he has written the report at the spot itself (Page 3 at paras 2 and 3) and thereafter, he went at the Police Station. But, at other stage, he had told that his family members had told him about the report and thereafter, he had lodged the report (Page 5, third line from the top). He has not signed the recovery memo prepared by the police.

41. PW3 Harish Singh is the occupant of the car. He was alleged sitting alongwith PW2 Aman Deep Singh. He has also tried to support the statement of PW2 Aman Deep Singh.

42. As stated, the statement of PW2 Aman Deep Singh is not reliable. There are many discrepancies in his statement. He is not a natural witness. The report, which was purportedly given by PW2 Aman Deep Singh as Ex. A2 does not inspire any confidence. He gives such minor details, which only a person in command could have known. He was a chance witness, who happened to drive the Jeep near the Bank after the incident. How could he identify the people from the public? The statement of PW3 Harish Singh also does not inspire any confidence. 22

43. PW4 Vikram Singh has stated about the incident. But, he is not a witness to any document. He could not name the appellants in the court when asked in his cross examination. In his statement at page 3, PW4 Vikram Singh would submit that from the possession of the appellants, a country made pistol, 315 bore and 2-3 cartridges were recovered. In the same sequel, he would submit that he cannot say as to whether any firearms were recovered from the appellants or not. His statement does not help the prosecution case. It is not a reliable evidence.

44. PW5 Balkar Singh would submit that he also fired from his gun and apprehended the miscreants. In Page 4 second line, he said that three miscreants had died at the spot due to injuries inflicted by the public. He would submit that on the date of incident, he had seen some persons holding the country-made pistol in their hands and they being chased by the public; by PW2 Aman Deep Singh and the police personnel. The statement itself is not reliable. As stated, if PW2 Aman Deep Singh had intercepted the miscreants, why should they run away firing or holding country-made pistol in their hands? There was no occasion to do so. This witness would also submit that he had also fired at the miscreants. According to him one of the persons apprehended was the appellant 23 Pooran Singh Latwal and another was Pappu Tiwari. According to him, he does not know the other miscreants. In para 7 of his statement PW5 Balkar Singh would submit that he cannot identify the appellants due to time gap.

45. PW5 Pramod Lal Sah has told that the appellants did not fire. He did not catch them. In fact, according to him, he caught hold of the fifth person Pushkar Gandhi.

46. PW6 Harish Mehra has stated that from the possession of the appellants cartridges were recovered, which he proved as Exs. 1 to 3 allegedly recovered from the appellant Pooran Singh Latwal and Exs. 4 to 6 allegedly recovered from the appellant Ramesh Kharwal. According to him, three cartridges of 12 bore were recovered from the appellant Pooran Singh Latwal and three cartridges of 315 bore were recovered from the appellant Ramesh Kharwal. He has also told that the car driver had told them that the appellants and others had committed dacoity. The car driver was never questioned. He was not made an accused. He is not a witness. The best person to identify the miscreants would have been the car driver.

47. It is the case that 12 bore and 315 bore cartridges were recovered from the possession of the 24 appellant. Why were they carrying those cartridges? It is not the case that any country-made pistol was recovered from them. Although PW6 Harish Mehra has stated that a CMP of 12 bore was found from near the appellant Pooran Singh Latwal, but no such CMP was produced by PW6 Harish Mehra. Even the cartridges case of 12 bore and 315 bore were not recovered from the place of incident, as admitted by PW8 Chandra Singh Bisht in his cross examination para 1. The appellants did not fire. They had no CMP to use the cartridges. They were not identified by PW1 Rajeev Mishra. They did not enter into the Bank. Why were they in the field carrying three cartridges? As stated, the best person to identify the assailants would have been the car driver, who has not been examined.

48. In fact, there is no evidence that the appellants entered into the Bank. There is no evidence with regard to the charge under Section 395 IPC against the appellants. The witnesses have stated about the recovery of cartridges from the appellants. But the statements of alleged recovery are unreliable. Therefore, this Court is of the view that the prosecution has utterly failed to prove the charge under Sections under Sections 395 IPC and 25 of the Act against the appellants. The court below has committed an error in 25 convicting and sentencing the appellants. Accordingly, the Court is of the view that the appeal deserves to be allowed.

49. The appeal is allowed.

50. The judgment and order dated 09.01.2004 is set aside insofar it convicts and sentences the appellants under Section 395 IPC and Section 25 of the Act.

51. Appellants Poran Singh Latwal and Ramesh Kharwal are acquitted of the charge under Sections under Section 395 IPC and 25 of the Act.

52. Appellants are in jail. They be released forthwith, if not wanted in any other case, subject to their furnishing personal bonds and two sureties by each one of them, each of the like amount to the satisfaction of the court below, under Section 437 A of the Code.

53. Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.

(Ravindra Maithani, J.) 12.07.2022 Jitendra

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