Crl.A. 360/2003 BEFORE HON’BLE MR. JUSTICE P. K. MUSAHARY This is convict’s appeal. The appellant was convicted and sentenced to suffer R. I. for 3 years and fine of Rs. 1,000/-, in default, R.I. for 1 month for offence under Section 395 I.P.C.. vide judgment dated 30.10.2003 passed by the learned Additional Sessions Judge, Jorhat, in Sessions Case No. 24(J-J) of 1995. The app eal is preferred against the said conviction and sentence. 2. The prosecution narrates its case as under : On 31.01.1992, one Sri Bhaba Krishna Bordoloi, Manager of Rajaba ri Tea Estate, filed an FIR informing that he came to Jorhat Town in his officia l vehicle along with some other employees to withdraw money from the Bank for di sbursement amongst the staff and employees of the Tea garden. In the afternoon, after withdrawal of money, while they were returning back and arrived at the pla ce of occurence at about 2.30 P.M., a group of miscreants, numbering 7, halted t hem and looted the money they were carrying in the vehicle by using force. On re ceipt of the FIR, the Officer-in-charge, Borholla Police Station registered a ca se being Borholla P.S. Case No. 11/92 and investigated the case himself and on c ompletion of investigation, laid the charge sheet under Section 395 I.P.C. again st accused Someswar Das, Amrit Bora and Gunin Bora. The accused Someswar Das(pre sent appellant), on being produced before the Magistrate, made a confessional st atement. The case was committed by the Judicial Magistrate to the Court of Sessi ons as the offence under Section 395 I.P.C. is exclusively triable by the Court of Sessions. On such committal, the case was made over to the Court of Additiona l Sessions Judge, Jorhat, for trial and disposal. The learned trial Court framed charge under Section 395 I.P.C. against the aforesaid accused persons and the c harge being read over and explained, they pleaded not guilty and claimed to stan d trial. The prosecution, in order to prove its case, examined 11 witness es, in all. However, the defence examined none. On the basis of evidence and mat erials on record and upon hearing the learned counsel for the parties, the learn ed trial Court found the charge under Section 395 I.P.C. proved beyond all reaso nable doubt against accused Someswar Das only and convicted him as stated earlie r. At the same time, the learned trial court found the other 2 accused persons n ot guilty of the offence they were charged with and hence, acquitted and set at liberty. 3. I have heard Mr. B. D. Das, learned counsel for the appellant an d Mr. B. B. Gogoi, learned Addl. Public Prosecutor, for the respondent State of Assam. 4. The star witness of the prosecution is Md. Mehtab Hussain, a gar age owner. He was examined as PW-3. He deposed that while he was proceeding to h is house, he saw one Ambassador Car bearing Registration No. WME-501 standing ne ar Ambasti. He could see several boys in front as well as at the back side block ing the number plate of the vehicle, yet he could identify the said vehicle as t he said vehicle got repaired earlier several times at his garage. He could also see the Registration No. of the said vehicle from the front side although 2 boys were trying to hide the number plate. The boys standing near the vehicle stoppe d his scooter and requested him to spare some petrol as the petrol in their vehi cle exhausted. PW-3 told that it was not possible to bring out the petrol from h is scooter and saying so, he proceeded to his house. He further stated that out of the said boys standing near the vehicle, accused Someswar Das, driver of the said vehicle, was also present whom he knows even prior to the alleged occurrenc e as the said driver used to drive the said vehicle and he used to get the said vehicle repaired in his garage on several occasions. The defence, inspite of pin -pointed implication, at least against accused Someswar Das, did not cross-exami ne this prosecution witness. So it remains proved that PW-3 knows/knew accused S omeswar Das since before he met him on the day of incident as well as the vehicl e as he(Someswar Das) happened to get it repaired in his garage many a times. Th e evidence of PW-3 stands unimpeached and it can be accepted that PW-3 did not f ail to identify the accused Someswar Das and the vehicle when he came across at the place of occurrence inasmuch as no suggestion was put by the defence on this key prosecution witness that he did not see or come across the accused appellan t and the vehicle on the spot on that particular day and time and he tendered fa lse evidence against the appellant. 5. The other important witness is one Sri Ganesh Bora who was exami ned as PW-1. He is the owner of the vehicle bearing Registration No. WME-501. He deposed that accused Someswar Das was the driver of his aforesaid Ambassador ca r at that relevant time. The accused Someswar Das used to drop him at his office by the aforesaid vehicle and the vehicle was being kept parked near his office. On the day of occurrence, his vehicle was not seen in the usual parking place. When he returned home, he found his vehicle parked in his house but the driver w as not available. He was informed by his family members that his driver(present appellant) brought the vehicle home early and left depositing Rs. 200/- with Smt i. Rosemani Bora @ Jone, daughter of PW-1. The police, during investigation, sei zed the aforesaid vehicle from the residence of PW-3 who put his signature on th e seizure list. The aforesaid amount of Rs. 200/- deposited by the accused appel lant was also seized by the police. The defence, for reasons best known to it, c hose not to cross-examine PW-1 to demolish his evidence. There is no suggestion from the defence to this prosecution witness that on the day of occurrence, the accused appellant was on duty for the whole day and he dropped his employer(PW-1 ) back at his residence after the office hours, the evidence of PW-1 remains uns hattered. The evidence of PW-1 is corroborated by PW-6 Sri Prasanta Bora. He is the son of PW-1. According to PW-6, they had an Ambassador car bearing Registrat ion No. WME-501 and the said vehicle was driven by accused Someswar Das at the r elevant time. The accused driver used to take his father to his office and bring him back home in the said vehicle. However, on the day of occurrence, the accus ed came back to their home before office hours at about 4 P.M. and gave his sist er some money which he reportedly earned as fare from the passengers. He further deposed that accused Someswar Das left their home early on the day of occurrenc e on the pretext that his mother was not keeping well. From the evidence of PW-1 and PW-6, the facts that accused Someswar Das was the engaged driver and he was driving the said vehicle at the relevant point of time and that he used to drop PW-1 at his office and bring him back home in the said vehicle after office hou rs, have been proved. It has also been proved that on the day of occurrence, som ething unusual happened as he did not park the vehicle at the usual parking plac e and he did not pick up PW-1 from his office after office hours for returning h ome. It has also been proved that accused Someswar Das used the said vehicle for carrying passengers and collected fare in an unusual manner and deposited some cash amount with the daughter of PW-1. Mainuddin Ahmed, PW-9, was the Officer-in -charge of Borholla Police Station who took up the investigation of the case him self. According to him, he visited the place of occurrence and found the vehicle used by the informant and he examined the persons who were accompanying the inf ormant in the vehicle and also the persons who claimed to have seen the Ambassad or car waiting at the place of occurrence since before the alleged incident took place. He seized the vehicle used by the informant. The I.O. came to know that the vehicle used by the miscreants was bearing Registration No. WME-501 and the same belonged to a person of Jorhat. He traced the owner of the vehicle used by the miscreants and accordingly, he visited the house of PW-1 and took the statem ent of the owner of the said vehicle. He also seized the said Ambassador car and cash amount of Rs. 200/- which was deposited by accused Someswar Das. The said I.O., with the help of PW-6, visited the house of accused Someswar Das and seize d an amount of Rs. 221/- from him in presence of eye-witnesses. He arrested the accused who was then produced before the Judicial Magistrate on 06.02.1992 for r ecording his confessional statement. Surprisingly, the defence declined to cross -examine this important witness. The consequence of declining cross-examination and not putting suggestion is that evidence and materials placed by PW-1 have be en accepted. 6. The informant Sri Bhaba Krishna Bordoloi was examined as PW-10. As per his evidence, on 31.01.1992, in the afternoon, he along with some other e mployees of his Tea Estate was coming from Jorhat town in a vehicle carrying cas h amount of Rs. 80,000/- withdrawn from the Bank. At 3.30 P.M., when he reached the place of occurrence, his vehicle was stopped by some miscreants. As he arriv ed the place of occurrence, he saw a vehicle which was being parked at the place of occurrence since before and the miscreants pushed the said vehicle in the mi ddle of the road so that his vehicle could not pass through. At first 2 persons from the vehicle came and asked him for petrol. His driver told that there was n o extra petrol and so they returned to the vehicle but at that very moment, 3 mo re persons emerged from the vehicle who demanded money from him and later, they forcefully took the money and left the place in their vehicle. According to this witness, all the miscreants took active part in the act of looting and robbing the money. The defence declined to cross-examine this witness also. The defence took the stand of innocence and total denial to his involvement in the alleged i ncident. There is no evidence against the other 2 accused persons inasmuch as th ey were not seen or identified by any witness although the present accused appel lant, as co-accused, implicated them. In fact, accused appellant, in his confess ional statement, stated that it was accused Amrit Bora who came to him to hire t he vehicle and it was Amrit Bora and his friends who were actually involved in t he alleged robbery. The evidence and material against accused Amrit Bora and Gun in Bora was not sufficient to hold them guilty for which the learned trial court acquitted them of the charge. The acquittal so ordered in favour of the said 2 accused persons is not liable to be interfered with by this court. 7. It is to be noted that confessional statement has been retracted by the accused Someswar Das while he was examined under Section 313 of the Code of Criminal Procedure, 1973. The Magistrate who recorded the aforesaid confessi onal statement was not examined by the prosecution. In such circumstances, the a foresaid confessional statement cannot be accepted as a piece of legal evidence and the same may be ignored although no objection has been raised by the defence about the admissibility of the same. It is necessary to discuss whether, even e xcluding the confessional statement from the evidence or material on record, the accused appellant could be convicted and sentenced. 8. It is already indicated that defence declined to cross-examine P W-1, 3, 6, 9 and 10. It failed to take the opportunity of demolishing the eviden ce of aforesaid important witnesses and thereby, failed to disprove the evidence against accused appellant. The defence also did not make any endeavour to dispr ove the most vital evidence against the accused appellant that he was found or s een at the place of occurrence along with other accused persons or miscreants in volved in the robbery. The evidence of PW-3 that he saw and could identify the a ccused appellant on the day of occurrence, has not been disproved by producing a ny witness and evidence by the defence. PW-3 is not an eye-witness to the commis sion of alleged robbery but he has clearly deposed that accused appellant was fo und along with other miscreants in the Ambassador car he was driving at the rele vant point of time. PW-10 and other witnesses who travelled in his vehicle also testified that the miscreants used an Ambassador car and the said car blocked th e road. 9. The circumstances in so far as the accused appellant was found j ust near the place of occurrence on the day and just before the time of alleged incident and that he was seen and identified by PW-3 and that he was not found w ith the vehicle by the owner, PW-1, at the parking place and that he did not tur n up to pick up PW-1 as usual from his office to drop him back home after office hours and that he unusually gave Rs. 200/- to PW-1’s daughter, as fare collecte d from some passengers, go against the accused appellant. These circumstances le nd support to the oral evidence of PW-3 which could not be dislodged or impeache d either by cross-examining the concerned prosecution witnesses or by adducing i ts evidence by the defence. 10. As per the settled law, no particular number of witnesses is req uired to prove a fact. In the present case, it is only PW-3 who deposed clearly that he could identify the present accused appellant amongst other miscreants. I t is to be considered whether PW-3 is a reliable witness. There again, the court is to consider whether PW-3 is a wholly reliable, wholly unreliable or neither wholly reliable nor wholly unreliable witness. It is often observed that there a re 3 categories of witnesses. They are categorized on the basis of their oral te stimony, as - (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. Going by the oral testimony of PW-3, he cannot be treated as wholly unreliable witness and as such, he cannot be placed in the category of wholly reliable or wholly unreliable inasmuch as his oral evidence w as not demolished by cross-examination by the defence. It can, therefore, be sai d that PW-3 is a wholly reliable witness so far as his deposition is found clear and categorical. After all, why should PW-3 speak against the accused appellant ? There is no allegation of enmity between PW-3 and the accused appellant. So al so, no reason or motive has been alleged for deposing against the accused appell ant. I am satisfied that the evidence of PW-3 is wholly reliable and free from a ll taints which may tend to render his oral testimony open to suspicion. In my c onsidered view, there is no infirmity or illegality in convicting the accused ap pellant on the basis of corroborated evidence of PW-3 and the circumstances lend ing support to his evidence. In this regard, it may be appropriate to cite the c ases of Marwadi Kishor Parmanand -vs- State of Gujarat, reported in (1994) 4 SCC 549 and Lallu Manjhi -vs- State of Jharkand, reported in (2003) 2 SCC 401. 11. For the aforesaid discussions and reasonings based on appreciati on of evidence and materials on record, I find no ground for interference by thi s court with the impugned judgment dated 30.10.2003 passed by the learned Additi onal Sessions Judge, Jorhat, in Sessions Case No. 24(J-J) of 1995, convicting an d sentencing the accused appellant Someswar Das to undergo R.I. for 3 years and fine of Rs. 1,000/-, in default, R.I. for 1 month for offence under Section 395 I.P.C. and the same is accordingly upheld. 12. In view of the above findings, this appeal fails and stands reje cted. The accused appellant Someswar Das is directed to surrender immediately to serve the sentence as ordered by the learned trial court and if he fails to do so, the learned trial court shall take necessary steps in accordance with law. T he bail bond(s) stands cancelled. 13. Send down the LCRs to the court concerned below forthwith.