Allahabad High Court
State Of U.P. vs Devendra And Others on 14 July, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 44 Case :- GOVERNMENT APPEAL No. - 1075 of 1990 Appellant :- State of U.P. Respondent :- Devendra And Others Counsel for Appellant :- A.G.A.,Rajesh Kumar Pandey Counsel for Respondent :- Y.D. Sharma,Anjaly Rajpoot,Pramod Kr.Rajpoot,Sanjay Srivastava,Sunil Kumar Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
(Per : Hon'ble Umesh Chandra Sharma,J.)
1. This Government Appeal has been preferred by the State to set aside the judgment and order of acquittal dated 30.01.1990 passed by the Additional Munsif Magistrate-IV, Bulandshahar in Criminal Case No.1288 of 1987 (New Criminal Case No.419 of 1989), under Sections 392/411, 120-B IPC, Police Station Kotwali Nagar, District Bulandshahar by which the accused persons (respondent nos.1, 2 and 3) had been acquitted from the charges under Section 392 IPC.
2. In brief, facts of the case are that on 03.10.1985 the informant, Bhagwat Singh from PHC Unchagaon, Bulandshahar took out Rs.29,965.40/- as salary of his departmental employees from the State Bank, Bulandshahar, kept the same in a leather bag and after parking the cycle at Mr. Dalmore's house in Village Hirapur, keeping the alleged bag in his hand walked away towards Bus Stand, Jahangirabad. At about 20-25 steps away from the said house at 02:00 p.m, accused Amarnath @ Pappu, Devendra @ Dablu riding on a Vicky Moped motorcycle without number plate, met with him and snatched the bag from his hand on the gun point in which there were Rs.29,965.40/-, a treasury register and other papers. The informant produced a written complaint Ex.Ka-1 at the Chowki, Nai Mandi, Bulandshahar on which basis chik FIR Ex.Ka-5 was prepared under Section 392 IPC. After investigation charge sheet was submitted, charge was framed under Section 392 IPC against the accused persons who denied the charge and sought for trial.
3. Following witnesses have been examined by the prosecution:-
1
PW-1 Bhagwat Singh (informant) 2 PW-2 Jagroop (independent witness who turned hostile) 3 PW-3 Mahendra Singh Chauhan, Sub-Inspector Police Station Kotwali, Bulandshahar 4 PW-4 Rajendra Singh Chaudhary, Sub-Inspector Police Station Vannadevi, Aligarh.
4. Following documentary evidences have been examined by the prosecution:- 1
Ex.Ka-1 Written Complaint 2 Ex.Ka-2 Chik FIR, recovery memo of Goods and Moped and entries in bill register 3 Ex.Ka-3 Site Plan with Index and list of payment of staff 4 Ex.Ka-4 Site Plan with Index, 5 Ex.Ka-5 Letter to branch manager, SBI, paper regarding payment of pay money to the informant from bank 6 Ex.Ka-6 Chik FIR and charge sheet 7 Ex.Ka-7 Carbon copy GD and pass-book 8 Ex.Ka-8 Notes 9 Ex.Ka-9 and 10 Truss of the clothes
5. Material Exhibits 1 M.Ex-1 Bag 2 M.Ex-2 Treasury register 3 M.Ex-3 Salary particulars 4 M.Ex-4 Letter 5 M.Ex-5 and 18 Moped and paper 6 M.Ex-6-7 Seals 8 M.Ex-8-15 Bundle of notes 9 M.Ex-16-17 Truss made of clothes
6. In brief, oral evidences of the prosecution witnesses are as follows:-
6.1. PW-1, informant - Bhagwat Singh stated on oath that on 03.10.1985 he was posted as Accounts Clerk in Uchagaon PHC. He had gone to the State Bank of India to collect the salary of the employees. He had received salary amounting Rs.30,865.40/- out of which he had deposited Rs.900/- in his and his wife's personal account. Remaining amount Rs.29,965.40/- which was kept in the alleged bag walked through bicycle towards the bus stand and parked it at the house of Dalmor Singh of Village Hirapur and walked back on foot with the alleged bag in his hand towards the bus stand. He would have hardly walked about 20-25 steps, the accused persons namely Amarnath @ Pappu (present in the court), Devendra @ Dablu (not present in the court) and Mahendra Singh (present in the court) met and stopped him and forcibly snatched the bag on the gun point. Thereafter he made-a-noise upon which the witnesses Dalmor Singh, Jagroop Singh, Kailash and Sardar etc. reached there and tried to catch the accused persons. The accused ran away towards Syana Road riding on Vicky brandishing the pistol. Apart from the money in the bag, there was a treasury register in which bills were noted. There were other papers and stamps also. He had himself written the complaint Ex.Ka-1 and produced it at Chowki, Nai Mandi.
6.2. The sealed bundle was opened before the witness in the court. Seeing which he deposed that this was the same bag which the accused persons had snatched from him. Seeing the register, he deposed that on 03.10.1985, he had received the bills amounts from the bank which were noted at serial nos.123 to 129 in the said register and these entries were signed by him after receiving the bill amount.
6.3. In cross-examination the witness has deposed that on the day of incident he left Village Unchagaon at 07:30 a.m. First of all, he reached the bank treasury at 10:15 a.m. Dalmor was his distant relative where he used to park his bicycle. He had neither dealing with the accused nor he had any enmity with them since before the incident. Being nervous, he could not mention that he had received Rs.30,865.40/- from the State Bank. The Inspector had recorded his statement same day in which also he could not said that fact. It is correct to say that the fact about Rs.30,865.40/- was said for the first time in the court. The fact regarding deposition of Rs.900/- was not mentioned in the FIR. He further deposed that it was wrong to say that he was not knowing the accused persons since before the incident. It is also wrong to say that he had lodged a false report in connivance with the police.
6.4. PW-2, Jagroop has deposed that it was a matter of about five months before when he was tending the potato in the field. He has no knowledge that the accused persons had snatched the bag or not. He did not know the accused persons. He knew Dalmor Singh who was his cousin. He did not know whether Bhagwat Singh comes at Dalmor Singh's house. This witness was declared hostile. In cross-examination the witness denied to give the statement to the IO and deposed that it was wrong to say that he deposed wrongly being warned by the accused persons.
6.5. PW-3, SI Mahendra Singh Chauhan, Police Station Kotwali Nagar, District Bulandshahar deposed that on 04.10.1985 he was posted at Police Station Kotwali Nagar. On that day he alongwith Constable Surendra singh, Constable Pramod Kumar to investigate Case Crime No.595, under Section 379 IPC. When he reached at Chauraha Anoopshahar Adda, SI Rajendra Singh Choudhary Chowki Incharge New Mandi, HC Jai Prakash and Constable Babu Khan and Rishipal met with him and he was told that they have to recover the robbed articles and wished to arrest the accused persons. On this, they made physical search to each other and ensured that no one had any robbed articles. After this, they tried to take public witness but no one was ready to cooperate. When the witnesses were not found, he along with the other policemen reached near the Pyau, Utrawali at Aurangabad Road and sat hiding under its cover and waited for the accused to come. After a while, two men appeared from Aurangabad side coming on Vicky (motor cycle moped). The informer pointed out and left. They were stopped. Mahendra Jatav was riding the vicky and his brother Devendra @ Dablu was sitting behind him. The two were present in the court. Devendra was carrying a leather bag in his hand, when they opened the bag, they found a treasury register of Unchagaon Hospital. A sealed bundle was opened before him upon which he deposed that this leather bag was recovered from the accused Devendra. A register and a file were also recovered from this bag which were before him. From the file two papers related to Unchagaon Hospital were also recovered, the second paper was written by the informant. Apart from that, two seals related to Unchagaon Hospital were also found. Apart from these things, only Rs.3,887/- was recovered from this bag. When physical search of Devendra was made, a country-made pistol and two cartridges of 303 bore were recovered from his person. Details of recovered notes were given in the recovery memo which was prepared by SI Rajendra Singh on which they had signed. Upon being asked about the vicky/moped in question, the accused could not show the papers and no registration was found, thereafter the vehicle was taken into custody. When they were bringing the recovered articles alongwith both the accused, one Durga was seen about whom the accused Devendra told that this is the owner of the moped vicky in question. The accused Durga was also taken into custody by the police and they reached Chowki, New Mandi. After handing over the accused there, the witness alongwith other persons returned to Police Station Kotwali Nagar. SI Rajendra Singh and other police personnel remained at Chowki New Mandi and kept on enquiring.
6.6. In the cross-examination this witness deposed that at about 04:00 p.m. he alongwith three other policemen went for investigation of Case Crime No.595, under Section 379 IPC which belonged to Devi Pura Mohalla. When he reached at Chauraha Anoopshahar Adda, SI Rajendra Singh alongwith other policemen met there and they sought for help regarding the robbery in question. On being asked the witness replied that in this case they have no order of CO. At the behest of SI Rajendra Singh, they reached immediately at Anupshahar Adda by cycles which would have taken about one and half an hour from the police station to reach there. They left Anupshahar station at about 5-1/2 hour. Two Sub-Inspectors, one HC, 5 Constables and one informer were there. They all had separate cycles. No one from the public was ready to be a witness. Village Utrawali would be about 3-4 kms away from Anupshahar station. The informer was with SI Rajendra Singh. The accused were coming from Aurangabad side. The way which turns to Utrawali, they ambushed near a Pyau. In the fard, the information of the informer or the fact that the informer went with the policemen to the spot and pointed out at the accused are not mentioned. All these facts are in GD. The fard was not signed by the accused. As long as the accused were in the police custody, the copy of the fard given to them was not deposited at the police station. He further stated that on 11.10.1985 at about 09:30 p.m. near Uday Talkies his statement under Section 161 CrPC was recorded in which he stated about the other investigations. He further stated that neither Durga Prasad gave his moped nor they got the same before him. The witness denied that the accused persons were falsely implicated.
6.7. PW-4, SI Rajendra Singh Chowdhary Police Station Bannadevi, District Aligarh has deposed on oath that on 03.10.1985 he was posted as SI at OP New Mandi, Police Station Kotwali Dehat, Bulandshahr. Next day on 04.10.1985, he was appointed as IO of the case. HC Jaiprakash, Constable Babu Khan, Constable Rishipal were also with him. When they came to Anupshahar station at 05:15 p.m, they received an information from the informer that two miscreants of this robbery were returning from Aurangabad on vicky moped alongwith the robbed articles and an illegal firearm was also with them. On this information, he tried to take witnesses from the public but no one was ready. Meanwhile, SI Mr. S.S. Chauhan Police Station Kotwali Nagar alongwith Constable Surendra, Devendra and Pramod met at the same place who were assigned some investigation. The witness told them the whole story and asked for help. On this, Sri Chauhan agreed, he also tried to take public witnesses but no one was ready. Then the policemen after their personal search went to Aurangabad Road to arrest the accused persons. After reaching near Utrawali Pyau they hid there. After about 5-7 minutes, 2 persons were seen coming on a vicky from Aurangabad side. The informer went away after pointing out upon them, the policemen stopped those persons. They tried to run away but by using usual force they were arrested. During their physical search all the robbed articles as mentioned above as well as a country-made pistol alongwith two cartridges of 303 bore were recovered and the motorcycle in question was also taken into custody. After completing the proceedings, they returned. On the way, the accused Devendra told that the motorcycle in question belonged to Durga who also met on the way and was also arrested there. The accused as well as the robbed articles were presented at OP New Mandi. During the investigation, statement of the witnesses were recorded. On inquiry, the accused persons confessed the offence and the act of conspiracy done in connivance with another accused Durga. He further deposed that the site plan was prepared and signed by him. He inquired the Branch Manager who had given details of the money. He further stated that it is wrong to say that the accused persons were falsely implicated due to old enmity with them.
7. Heard Sri N.K. Srivastava, learned counsel for the State, Sri Sanjay Srivastava, learned counsel for all the accused respondents and perused the records.
8. The learned trial court has acquitted the accused persons on the following grounds:-
8.1. That no public witness had been taken by the IO during the course of arrest and recovery from the accused persons.
8.2. That the informant Bhagwat Singh has not given any explanation regarding visit of the house of Dalmor.
8.3. That it was the duty of the informant to go to PHC, Unchagaon directly with the salary amount rather to go to the house of Dalmor. Thus, the informant has committed negligence with regard to his duty.
8.4. Dalmor was the best witness who has not been examined while as per the informant on his hue and cry Dalmor reached on the spot within 5-6 seconds.
8.5. That the prosecution has examined only Jagroop as PW-2 out of Jagroop, Sardar Singh, Kailash and others who has been declared hostile, why rest of the witnesses had not been examined, has not been explained.
8.6. That there is no averment of the informer in the recovery memo. It has also not been mentioned that the informer accompanied the police upto the place of recovery and had also pointed out towards the accused persons.
8.7. That it is not proved that copies of the recovery memo were provided to the accused persons, as the same were not with them at the time when they were admitted to the lock-up of the police station.
8.8. That according to the witnesses there were seal of SBI upon the notes but the same has not been proved by any officer of the bank.
8.9. That PW-1, Bhagwat Singh has not stated either in the FIR or in his statement under Section 161 CrPC regarding deposit of Rs.900/- in the bank.
8.10. That generally a person would not carry the robbed goods on the next day of the incident particularly when the robbed money belonged to a bank with a seal.
8.11. That no person would carry the robbed money in the same bag which had been robbed alongwith the money.
8.12. That the informant has not given any statement against the accused Durga Prasad. He has been made accused only on the basis of use of his moped by the other accused persons. It is noteworthy that PW-4 Rajendra Chaudhary has accepted in his cross-examination that none of the witnesses had given statement that the offence was conspired by the accused Durga Prasad. Hence, no charge under Section 392 IPC is proved against him.
9. On the basis of above grounds, the trial court has acquitted the accused persons.
10. The State appellant has taken grounds in appeal that the order of acquittal is wholly erroneous and illegal, against the weight of evidence on record, the trial court has erred in law by not placing implicit reliance on the testimony of PW-1, Bhagwat Singh. From the recovery of the vehicle, the money i.e. cash amount and the pistol and cartridges, the case was fully established and proved and there was no legal justification to disbelieve the evidence of Mahendra Sing and Rajendra Chaudhary. The evidence of police witnesses has been quite illegally disbelieved. The prosecution story inspires confidence and the contrary view is wholly erroneous. Hence, the appeal be allowed and the order of acquittal of the accused be set aside and the accused be convicted and sentenced in accordance with law.
11. This appeal is decided as under discussing the grounds taken by the trial court to acquit the accused persons.
12.(i) The learned trial court has taken ground that no public witness had been taken by the IO during the course of arrest and recovery from the accused persons.
13. In this regard it would be proper to evaluate and peruse the evidence available on record. The incident had occurred on 03.10.1985. It was not a simple and not noticeable offence as the huge government money had been robbed. In the year of 1985 about Rs.30,000/- was a big amount. The FIR had been lodged soon after the incident and from the evidence it is proved that after the incident the police had become active as the government money had been robbed and the informers were directed to give the clue. There was no dispute regarding the identity of the accused persons as their names had already been mentioned in the FIR, hence the police had only to search and arrest the accused persons alongwith the robbed items.
14. PW-3 and PW-4 have deposed unanimously that the whereabouts of the accused persons had been given by the informer. Since the communication made by the informer is a privileged communication, hence PW-3 and PW-4 could not be compelled to say about this in view of Section 125 of The Indian Evidence Act. PW-3 had deposed that they tried their best to take public witnesses but no witness was ready to testify. In the cross-examination a question was asked about this fact on which the witness replied that any person from the public was not ready to be a witness. In this regard no suggestion has been given from the side of the accused persons that the police did not try properly to procure any public witness. PW-4, SI Rajendra Singh Chaudhary has also deposed that in the course of search of the case property and the accused persons when reached Anoopshahar Adda at about 05:15 p.m. he got an information from the informer that two accused persons are coming on the same vicky used in commission of crime with robbed materials from the side of Aurangabad alongwith illegal weapons. On this information he tried to take witnesses from the public but no one was ready. Meanwhile, the SI of Kotwali Nagar Mr. SH Chauhan alongwith Constable Surendra, Devendra and Pramod met at the same place. He told them the whole story and asked them to come for help. Sri Chauhan agreed on this and also tried to take public witnesses but no one was ready then the police personnel became witnesses and took each others' personal search and convinced that no one had any goods related to the case and went towards the Aurangabad road with the informer and hid under the cover of pyau.
15. In this regard, this witness has also been cross-examined on which he replied that even on the place of recovery he waited for 5-6 minutes and tried to get the witnesses but no one was ready to be a witness. At that time there was not enough time to take action against the witnesses who did not turn up to testify. No suggestion has been given to the witness that he did not try his best to procure the public witness for recovery.
16. It would be proper to discuss the law regarding non-availability of a public witness in a criminal case.
17. In Muksh Vs. State of NCT of Delhi and others, AIR 2017 SC 2161 (three Judges Bench), Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Sadhu Saran Singh Vs. State of UP, (2016) 4 SCC 357 it has been held that it is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with stroke of pen. Court can convict an accused on the statement of a sole witness even if he is a related witness. Non-examination of independent witness could not be fatal to the case of prosecution.
18. From the perusal of the evidence of both the above witnesses it is very much clear that they tried their best to take a public witness but since none was ready to cooperate with the police, they could not do so. Generally, it is seen that due to fear of enmity independent person do not come forward to be a witness in a criminal case. It is seen that offences are committed in public places but people do not intervene to save the life and personal liberty of the victim. Even in civil cases people avoid to be witness from either side as it develops enmity for future. In such condition if only police witnesses are there who are deposing in favour of the prosecution in absence of the public witness what would be the evidentiary value of the police witness has been discussed by the Apex Court in several cases.
19. In Pramod Kumar Vs. State NCT of Delhi, AIR 2013 SC 3344; Govind Raju @ Govinda Vs. State and another, AIR 2012 SC 1292 it has been held that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses, the testimony of police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good reasons. As a rule it cannot be stated that police officer can or cannot be sole eye-witness in a criminal case. Statement of police officer can be relied upon and even form basis of conviction when it is reliable, trustworthy and preferably corroborative by other evidence on record.
20. In Sandeep Vs. State of UP, (2012) 6 SCC 107 the conviction was upheld by the Apex Court which was solely bases upon the evidence of police personnel. In this case only police parties were examined as prosecution witnesses and the labourers/independent witnesses were not examined as witnesses.
21. In this case the accused were named in FIR, the informant was recognizing them prior to the incident, the part of money having seal of State Bank of India and other materials which the informant had at the time of incident, were recovered and proved beyond reasonable doubt in the court. Thus, the evidence of police personnel finds support from the evidence of PW-1 and the items recovered from the accused persons for which no explanation has been given from the side of the accused persons. Thus, this ground taken for acquittal by the learned trial court is not tenable and is accordingly rejected.
22.(ii) The learned trial court had taken ground that the informant Bhagwat Singh has not given any explanation regarding visit of the house of Dalmor.
23. According to this court probably the learned trial court has not gone through the FIR and the evidence. In the FIR it is clearly mentioned that he parked his cycle at the house of Dalmor Singh and went towards Jahangirabad Bus Stand when this incident took place. PW-1 has given similar evidence on oath and on being cross-examined he has deposed that Dalmor is his distant relative and he used to park his cycle there. Whenever he come to collect salary from Unchagaon, he used to park his cycle at Dalmor's house. In this regard no suggestion has been given to the witness that he was telling a lie and he had not parked his cycle at Dalmor's house on the day of incident. Hence, this Court comes to the conclusion that the finding recorded by the learned trial court in this regard is baseless and, therefore, rejected.
24.(iii) The learned trial court has also concluded that it was the duty of the informant to go to PHC, Unchagaon directly with the salary amount rather to go to the house of Dalmor.
25. According to this Court, it has been proved from the evidence of informant PW-1 that it was his common practice to park the cycle at the house of Dalmor and to ride on bus with salary for going to PHC, Unchagaon. On the fateful day, the informant adopted the same practice. It cannot be said that it was an unusual behaviour of the informant as it was done by him since long. It cannot be said that by visiting the house of Dalmor to park the cycle, the informant has committed negligence with regard to his duty. According to this Court such act cannot be made a ground for acquittal.
26.(iv) The learned trial court has concluded that Dalmor was the best witness which has not been examined by the prosecution.
27. Certainly Dalmor Singh is mentioned as witness at serial no.2 in the charge sheet but he has not been examined. Jagroop Singh witness at serial no.3 in the charge sheet has been examined but he has not supported the prosecution version. Probably in apprehension of hostility of Dalmor Singh, he would not have been examined. There might be some other reasons such as illness, absence or reluctance of Dalmor Singh on account of terror of the accused persons. This court has already discussed this point earlier.
28. In Dharnidhar Vs. State of UP, (2010) 7 SCC 759; Dalbir Kaur Vs. State of Punjab, (1976) 4 SCC 158 it has been held that non-examination of independent eye-witnesses is inconsequential if the witness was won over or terrorised by the accused.
29. In Sandeep (supra) and Hukum and others Vs. State of Rajasthan, 2001 CrLJ 511 it has been held that the public prosecutor is not bound to examine such witnesses which are not supportive of prosecution's case. It has also been held that public prosecutor is not bound to examine all witnesses of a particular fact.
30. In the above circumstances if Dalmor Singh had not been examined, the same is not fatal for the prosecution.
31.(v) The learned trial court has concluded that only Jagroop has been examined out of Jagroop, Sardar Singh, Kailash and others. The trial court has also based his judgment of acquittal on the ground that rest of the witnesses named in charge sheet were not examined. According to this Court this question has already been answered. Due to the same and similar ground and circumstances, rest of the witnesses would not have been examined. Hence, there is no need to explain this point any more. The reason given by this Court with regard to the non-examination of Dalmor also applies to this ground taken by the learned trial court.
32.(vi) The learned trial court had concluded that there is no averment of informer in the recovery memo and it has also not been mentioned that the informer accompanied the police to the place of recovery and that he had also pointed out towards the accused persons.
33. According to this Court the fact regarding the information given by the informer is a privileged communication which is protected from disclosure in view of Section 125 of The Indian Evidence Act. According to this Court there was no need to mention the above facts in the recovery memo. These facts were foreign and irrelevant to the recovery memo. So far as the recovery memo is concerned, it is exhaustive and comprehensive and it contains all the elements necessary with regard to the arrest and recovery. So far as the information given by the informer and reaching on the place of recovery and pointing out towards the accused are concerned, these facts are already mention in case diary and has also been deposed on oath by PW-3 and PW-4. Therefore, this Court is of the view that the learned trial court has made it a ground of acquittal without any basis and cogent reason.
34.(vii) The trial court has also concluded that if the copies of the recovery memo would have been provided to the accused persons, the same would have been with them when they had been admitted to the lock-up of the police station.
35. In this regard, the recovery memo Ex.Ka-2 is to be seen where it has been written by SI that copies of the recovery memo were provided to the accused persons. It is true that there are only the signatures of the police personnel as witness of the recovery memo and it has not been signed by the accused persons. According to this Court there is no rule of law that a recovery memo would necessarily be signed by the persons whom any recovery has been made. In this regard it has been deposed by PW-3 that accused persons did not sign the recovery memo. There is no rule of law that a copy of the recovery memo has to be submitted by the accused persons at the police station. It is also noteworthy that in this regard no suggestion has been given from the side of the accused persons that the copies of the recovery memo were not provided to them. Hence, such plea could not be taken by them and it was not available to the learned trial court for making it a basis of acquittal.
36.(viii) The learned trial court has concluded that though there was seal of the State Bank of India on the notes recovered during the course of recovery but no officer of bank had been examined to prove it.
37. According to this Court, even a layman recognizes the seal/stamp of the bank. It was found on the notes recovered from the possession of the accused persons. For this there was no need to call for an officer from the concerned bank. The particulars of the notes are on record which show that out of Rs.30,865.40/- Rs.900/- of the informant were deposited by him in his and his wife's account and rest Rs.29,965.40/- were in the leather bag of the informant out of which only Rs.3,887/- were recovered from the accused persons and rest of the money were spent. In this regard evidence of PW-3 is material who has given description of the recovered notes that three bundle of 10-10 rupees total Rs.3,000/-, one bundle of 5 rupees total Rs.500/-, one bundle of two rupees total Rs.200/-, one note of Rs.100/-, eight notes of 10 rupees total Rs.80/- and seven notes of one rupees total Rs.7/- gross total Rs.3,887/- were recovered. The bundle of notes of Rs.10/- Rs.5/- and Rs.2/- were bearing the seal of State Bank of India Bulandshahar. There were chits of bank dated 03.10.1985 on all three bundles of Rs.10/-, chit of 30.09.1985 on the bundle of Rs.5/-, chit of 11.04.1985 on the bundle of Rs.2/- were also found. According to this Court such evidence already present on the money recovered from the accused persons clearly established that the money recovered from the possession of the accused persons was the part of the money withdrawn from the State Bank by the informant. Therefore, this Court is of the considered view that there was no need to summon any officer of the State Bank of India, Bulandshahar Branch to prove the seal present on the alleged notes. In this regard this Court has scrutinized the evidence of PW-3 and PW-4. The learned counsel for the accused persons have not cross-examined these witnesses on this point that the money recovered so was not the money withdrawn from the said bank by the informant on the day of occurrence. Therefore, there was no occasion for the learned trial court to concoct and imagine such ground to pass an order of acquittal.
38.(ix) The learned trial court has concluded that PW-1 Bhagwat Singh has not stated either in the FIR or in his statement under Section 161 CrPC that out of total amount he had deposited Rs.900/- in the bank.
39. According to this court it is also an imaginary and concocted ground concocted by the learned trial court without any basis. It is very much clear from the FIR that the informant had Rs.29,965.40/- in leather bag when he left the premises of the State Bank. From the documentary evidence Ex.Ka-3 it is fully established that virtually Rs.30,865.40/- had been withdrawn. From the original pass-book of the informant and his wife available on record it is established that out of the above amount the informant had deposited Rs.900/- in his and his wife's account. Therefore, at the time of incident he had only Rs.29,965.40/- in his leather bag which was robbed. Therefore, there was no need to give the description of the whole amount which had been withdrawn by him from the bank. It is not a case of accounting. The FIR must be concise, it is not an encyclopedia in which all the facts must be mentioned. It is an instrument only to accelerate the police machinery, therefore, non-mentioning the fact regarding deposition of Rs.900/- in the bank in the FIR or not giving statement in this regard under Section 161 CrPC is not fatal for the prosecution. (See Bable Vs. State of Chhattisgarh, AIR 2012 SC 2621, Bhagwan Jagannath Markad (supra); Jarnail Singh Vs. State of Punjab, 2009 (6) Supreme 526.
40.(x-xi) The learned trial court has concluded that generally a person would not carry the robbed goods on the next day of the incident particularly when the robbed money was bearing a seal of bank.
41. According to this Court one cannot imagine human behaviour of another person. Different human being behave differently. In several cases it has been held that even devil does not know what is going on in the mind of an accused. It depends on the personality of the person concerned. The reaction, conduct and behaviour of the person cannot be similar and equal. Thus, it cannot be said that when such miscreants known to the informant are robbing him in a day-light, they cannot move with the robbed items in the same bag in a day hour. Hence, this ground taken by the learned trial court is not sustainable.
42. Earlier it has been made clear that several grounds taken for passing an order of acquittal by the learned trial Magistrate have no legs and basis as no proper cross-examination have been done from the side of the accused persons. In Mahaveer Singh Vs. State of Haryana, (2014) 6 SCC 716; Atluri Brahma Nandam Vs. Anne Sai Bapuji and Laxmibai Bhagwant Buva, AIR 2013 SC 1204 it has been held that it is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said facts/issue could not be raised.
43. According to this Court on the basis of the principles laid down in the above precedents it can be said that since no proper cross-examination have been made and no proper suggestions have been given to the witnesses, therefore, the evidence of the witnesses is not liable to be questioned.
44.(xii) The learned trial court has taken ground that the informant has not given any statement against the accused Durga Prasad. He has been made accused only on the basis of use of his moped by the other accused persons. PW-4, Rajendra Chaudhary has admitted in his cross-examination that none of the witnesses had given statement that the offence was conspired by him. Hence, no charge under Section 392 IPC is proved against him.
45. In this regard the evidence of witnesses of fact i.e. PW-1 and PW-2 is immaterial and it is not expected from them to know regarding any conspiracy occurred among the accused persons. In this regard only the statement of PW-3 and PW-4 are relevant. PW-3 has deposed that accused Devendra had confessed that moped belonged to accused Durga Prasad. This witness has not given any evidence regarding conspiracy occurred among the accused persons about the commission of crime. This witness has been examined from the side of accused Durga Prasad in which he had replied that before him neither the moped was provided by the accused Durga Prasad to the rest of the accused persons nor they had taken it. According to this Court, this cross-examination was very much irrelevant as it is not the case of the prosecution that the alleged moped was provided by Durga Prasad to the rest of the accused persons before this witness. However, it is very much clear that no evidence of conspiracy between the accused Durga Prasad and rest of the accused persons could be produced by this witness.
46. Similarly, PW-4 has deposed that the moped belonged to the accused Durga Prasad was recovered on the pointing of the accused Devendra. This witness has written the confession of accused Devendra that accused Durga Prasad had informed them that the informant would come to the state bank for receiving the salary of the employees of Unchagaon Hospital. Durga Prasad is also an employee in PHC, Sayana. Hence, he was aware about this fact and he was also knowing that the informant would park his cycle in village Hirapur and thereafter would go to Unchagaon. He had also confessed that Durga Prasad had pointed out the informant at the bank and after giving his moped he had left.
47. Except this confessional statement to the police there is no iota of evidence of conspiracy among the accused Durga Prasad and rest of the accused.
48. According to Section 25 of The Indian Evidence Act no confession made to a police officer shall be proved as against a person accused of any offence. The accused Devendra is a co-accused who has not accepted the fact of confession made by him to the IO and the same is not proved by any independent evidence. Accused Durga Prasad has stated in his statement under Section 313 CrPC that after parking the moped he had gone to his duty. Thus, according to this Court there is no iota of evidence or evidence to prove the charge under Section 392 read with Section 120-B IPC against the accused Durga Prasad. Hence, this Court is of the view that the findings recorded in favour of accused Durga Prasad by the learned trial court is correct and is not liable to interfered with.
49. Since none of the public witness has been examined from the side of prosecution except PW-2 Jagroop who has turned hostile, the only witness of fact remains informant PW-1. It has been proved from his evidence that he was knowing the accused persons prior to the incident. He has given all particulars of the case such as when he came to the house of the Dalmor after withdrawing the salary amount of the employees of Unchangaon PHC and how when he would have gone only 20-25 steps from the house of Dalmor, he was robbed by the named accused persons at gun point.
50. In this case the FIR was lodged promptly without any unreasonable delay. The accused persons are named in the FIR. The manner of occurrence and the amount robbed from the informant have been mentioned in the FIR and in the statement of the informant. Just after one day the accused persons had been arrested with the leather bag, seals, other relevant papers and amount of Rs.3,887/-. No explanation could be given by the accused persons as to how these materials were with them. It has not been proved that there was any enmity or reason to the informant to falsely implicate the accused persons.
51. In this regard Section 134 of The Indian Evidence Act is relevant according to which no particular number of witnesses shall in any case be required for the proof of any fact. According to this Section quality of evidence of witnesses is important to prove the fact and not the number of the witnesses.
52. It has been held in several cases that testimony of solitary witness can be sufficient to convict the accused if he is wholly reliable. In Sudip Kumar Sen Vs. State of West Benal, (2016) 3 SCC 26; State of UP Vs. Satveer, (2015) 9 SCC 44; Prithvipal Singh Vs. State of Punjab, 2012 (76) ACC 680 (SC) it has been held that quality of evidence and not the quantity matters in a criminal trial. Plurality of witnesses in a criminal trial is not the legislative intent. If the testimony of the sole witness is found reliable on the touchstone of the credibility, accused can be convicted on the basis of such sole testimony.
53. According to this Court, the informant PW-1 had neither any ill will, malice or conspiracy with any enemy of the accused persons to falsely implicate them. The fact of the case and charge under Section 392 IPC has been fully proved from the evidence of the informant PW-1. The recovery of the robbed items has been proved in accordance with law from the evidence of PW-3 and PW-4. All the documents produced by the prosecution have been proved by PW-1, PW-3 and PW-4 and the prosecution has been successful in proving the case against the accused Devndra @ Dablu and Mahendra beyond any reasonable doubt.
54. So far as the case of Durga Prasad is concerned the prosecution could not prove the factum of conspiracy against him. Generally, in village, kasba and city people take the vehicles of others on the pretext of any work. It appears that the moped of accused Durga Prasad would have been taken by the rest of the accused persons in the same manner. Hence, this appeal is liable to be dismissed in respect of accused Durga Prasad.
55. So far as the rest accused persons - Devendra @ Dablu and Mahendra are concerned, the appeal preferred by the State is liable to be allowed. The case is proved against them beyond reasonable doubt under Section 392 IPC and they are liable to be convicted and sentenced in accordance with law.
ORDER
56. The appeal is partly allowed in respect of the accused Devendra @ Dablu and Mahendra and is partly dismissed with regard to the accused Durga Prasad and the judgment and order of acquittal passed by the learned trial Magistrate with regard to him is upheld.
57. Since accused Devendra @ Dablu and Mahendra are not present in the Court in person, hence they are ordered to be taken into custody. They shall be heard on the quantum of sentence. FURTHER ORDER
58. The accused though were directed to remain present but they are absent. Their advocate is also absent. Hence, we have no other option but to issue non-bailable warrants on the accused - Devendra @ Dablu and Mahendra, returnable on 04.08.2023, to be served through CJM, Bulandshahar. On the said date they shall be brought before this Court.
59. List for hearing the accused on the quantum of sentence on 04.08.2023. Order Date :- 14.7.2023 Shahroz (U.C. Sharma,J.) (Dr. K.J Thaker,J.)