RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 324 of 2007 Jai Prakash .…. Appellant/Accused Versus State …………… Respondent Mr. MK Agarwal, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. With CRIMINAL APPEAL No. 275 of 2007 Rahul Singh Negi .…. Appellant/Accused Versus State …………… Respondent Mr. Lalit Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. CRIMINAL APPEAL No. 307 of 2007 Raju Pal .…. Appellant/Accused Versus State …………… Respondent Mr. Lalit Sharma, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. CRIMINAL APPEAL No. 325 of 2007 Jai Prakash .…. Appellant/Accused Versus State …………… Respondent Mr. MK Agarwal, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. CRIMINAL APPEAL No. 326 of 2007 Jai Prakash .…. Appellant/Accused Versus State …………… Respondent Mr. MK Agarwal, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. CRIMINAL JAIL APPEAL No. 423 of 2007 Sanjay Kumar .…. Appellant/Accused Versus State …………… Respondent Smt. Gomti Devi, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. June 2, 2010 HON’BLE DHARAM VEER, J. All these appeals, preferred by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the 2 common judgment and order dated 31.5.2007 passed by the Special Judge (Gangsters Act)/Sessions Judge, Nainital in consolidated Special Sessions Trial No. 46/2005, State v. Mohan Singh Paliwal, Special Sessions Trial No. 53/2005, State v. Mohan Singh Paliwal, Special Sessions Trial No. 36/2005, State v. Jai Prakash, Special Sessions Trial No. 55/2005, State v. Raju Pal, Special Sessions Trial No. 56/2005, State v. Jai Prakash, Special Sessions Trial No. 57/2005, State v. Sanjay Kumar and Special Sessions Trial No. 58/2005, State v. Rahul Singh Negi @ Rocky. Vide the aforesaid impugned judgment and order dated 31.5.2007, learned Special Judge (Gangsters Act)/Special Judge, Nainital has convicted each of the accused appellants, viz. Jai Prakash, Rahul Singh Negi @ Rocky, Raju Pal and Sanjay Kumar under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 (for short, Gangsters Act) and sentenced each of the accused appellants to undergo three years’ R.I. along with fine of Rs. 10,000/- each, in default to undergo three months’ simple imprisonment. Each of the accused appellants has further been convicted under Sections 147, 365, 397 and 412 of Indian Penal Code, 1860 (for short, IPC) and each of them has been sentenced to undergo seven years’ R.I. under Section 397 IPC along with fine of Rs. 50,000/-, in default to undergo one year’s simple imprisonment; two years’ R.I. under Section 147 IPC; seven years’ R.I. under Section 365 IPC along with fine of Rs. 25,000/- each and in default to undergo six months’ simple imprisonment and seven years’ R.I. under Section 412 IPC along with fine of Rs. 25,000/- each, in default to undergo six months’ simple imprisonment. Accused appellants Raju Pal, Jai Prakash and Sanjay Kumar have also been convicted under Section 25 of the Arms Act, 1959 and each of them has been sentenced to undergo three year’s R.I. along with fine of Rs. 10,000/- each. 3 Accused appellant Rahul Singh Negi @ Rocky has been convicted under Section 4/25 of the Arms Act along with fine of Rs. 10,000/-. It has further been directed that in default of payment of fine awarded for the offence punishable under Arms Act, each of the accused appellants shall undergo three months’ simple imprisonment. All the sentences have been directed to run concurrently. 2. Since all these appeals relate to one and common incident and trials thereof have been decided by the trial court by a consolidated judgment, therefore, these appeals are being decided by this Court vide this common judgment and order. 3. One accused, viz., Mohan Singh Paliwal died during the pendency of trial and hence, trail against him was abated by the trial court vide order dated 18.7.2006. 4. The case of prosecution, in brief, is that on 9.8.2005 JS Bhandari (PW1), Branch Manager, Kamola Branch, Bank of Baroda lodged a written report Ex. Ka-1 with PS Kaladhungi with the averments that on that day at about 12.30 pm, three miscreants entered inside his branch. At that time, he was talking to Block Development Officer, Kotabag and his subordinates. One of the miscreants came near him and said “hands up” by pointing the pistol. At the same time, two other miscreants passed behind him and gone towards the cabin of Cashier. One miscreant covered the Daftary and another miscreant entered inside the cabin of Cashier and asked him to stand-up by saying “hands up” and after putting the pistol on the neck of Cashier, he looted all the cash from the drawer and gave it to his another associate who was outside the cabin and was covering the Daftary. At the 4 same time, the fourth miscreant covered the customers outside the cabin. At the time of leaving the bank, these miscreants disconnected the telephone by cutting the telephone wire. They also looted Rs. 4000/- from the pocket of Daleep Singh, Daftary. They also snatched the purse of Cashier, Block Development Officer, ADO Sri Mewari and also looted the mobile phone from the BDO and thereafter went outside the bank. Soon after leaving the miscreants, the alarm was raised. When the complainant came outside, he came to know that one more miscreant, who was an associate of these dacoits had covered the Painter (PW4 Sandeep Kumar) who was working outside the bank. That Painter told him that all the miscreants had gone towards Naya Gaon by a vehicle. Thereafter the complainant informed Kaladhungi police station and subsequently to Nainital Police Department from a nearby PCO. He also informed the higher authorities of the bank. After comparing all the cash, he found that those miscreants had looted Rs. 2,41,405/-. With these averments, PW1 JS Bhandari lodged the report Ex. Ka-1 with PS Kaladhungi on 9.8.2005 at 1.05 pm also stating therein that he could identify all the miscreants. On the basis of this report, chick FIR Ex. Ka-12 was prepared by PW7 Head Moharrir Madho Ram. Necessary entries were also made in the GD by him. Copy of GD is Ex. Ka-13. The investigation of this case was entrusted to PW3 Station Officer Ravi Tyagi. Subsequently, the investigation was transferred to PW9 Om Prakash Rajpoot. 5. On the same date i.e. on 9.8.2005, another FIR Ex. Ka-10 was lodged by PW6 Nadir Miyan with PS Kaladhungi at 8.15 pm with the averments that on the previous day i.e. on 8.8.2005 at 1.30 pm, accused appellant Rahul Singh Negi @ Rocky booked his car bearing registration no. DL-6CD-7916 for Rudrapur in Rs. 5 400/-. He was accompanied by Mohan Paliwal, Jai Prakash, Sanjay Kumar and Raju Pal. As soon as the said car reached in the forest area about 5 kms from Haldwani, these miscreants pointed a tamancha on his head and forced him to stop the car. They asked him to do whatever they direct and threatened that if would not do so, he would be killed. He was handcuffed and his mouth was also tied with a clothe and thereafter he was made to sit on the rear seat of the car. Mohan Paliwal drove the car to forest and spent the night in the forest. Thereafter on the next day i.e. on 9.8.2005 at about 12.30 pm, after looting the bank at Kamola Dhamola, they drove the said car to the forest outside Kotabagh, where Raju Pal fired on him with intention to kill him but he managed to escape and informed the nearby police chowki at Kotabagh. Earlier in the day, they had also planned to commit dacoity in a bank at Bajpur at 11 am on that day, but due to presence of police in the said bank, they dropped their idea. On the basis of this report, chick FIR Ex. Ka-16 was prepared by PW7 Head Moharrir Madho Ram. He also made the necessary entries in the GD, copy of which is Ex. Ka-17. Since this incident related to PS Kotwali Haldwani, therefore, the investigation of this case was transferred to PS Kotwali Haldwani. 6. After receiving the information about this incident of bank dacoity, Circle Officer CD Pant (PW8) reached at the Kamola branch of Bank of Baroda. Station Officer Ravi Tyagi (PW3), the I.O. of the case was also present there along with police force. SSP Alok Sharma also reached there. SSP was giving the directions for the search of dacoits. When they were at the triangle of Naya Gaon, Constable Rajendra Singh informed on mobile from the Kotabag police chowki that the driver of the vehicle used in the crime and who was with those bank dacoits had 6 come there and told that those bank dacoits were in Kotabag. The driver somehow managed to escape from them. The driver named himself as Nadir (PW6) and further told that his Maruti Car No. DL-6CD-7916 had broke down in the way. On this information, they came at Kotabag as per the directions of SSP and met Constable Rajendra Singh and driver Nadir in the market, who told that the bank dacoits were staying in the hotel of Rana situated in the main market and they had also divided the looted amount among them. On this, two police parties were formed to cover the bank dacoits. First party was being led by CO, CD Pant and second party was being led by SSP Alok Sharma. As per the plan, when the police parties reached near the hotel of Rana, the bank dacoits became aware of the police and they started to flee towards the forest. They were chased by the police parties. The bank dacoits fired on the police parties with intention to kill them. For the safety of police party, Constable Chandan Singh, Gunner of CO, CD Pant fired twice on the bank dacoits and one bullet hit one of the miscreants. Being perturbed and nervous by this, the miscreants started running away but they were chased by the police party and after using the necessary force, they were arrested. They disclosed their names as Mohan Paliwal, Raju Pal, Jai Prakash, Sanjay Kumar and Rahul Negi @ Rocky. From the possession of Mohan Paliwal (trial against whom was abated), one tamanach of 12 bore loaded with a khoka was recovered and from the right pocket of his pant, two live cartridges and from the left pocket of his paint, one bundle each of Rs. 500 and Rs. 100 notes having the seal of Bank of Baroda were recovered. From the possession of Raju Pal, one tamancha of 315 bore loaded with one live cartridge was recovered. Rs. 45000/- were also recovered from both the pockets of his pant. From the possession of third miscreant Jai 7 Prakash, one tamancha of 315 bore with one loaded cartridge. Rs. 45000/- were also recovered from both the pockets of his pant. From the possession of fourth miscreant Sanjay Kumar, one tamancha of 315 bore with one loaded cartridge was recovered. Rs. 45000/- were also recovered from inside his shirt. From the possession of fifth miscreant Rahul Singh Negi @ Rocky, one iron khukhri was recovered. One bag was also recovered from him and from inside the said bag, Rs. 43,365/- were recovered. From the said bag, one purse containing the name chit of Rajendra Singh Adhikari, Gram Panchayat Development Officer, Kotabag containing three notes of Rs. 50/- and five notes of Rs. 10/- as well as driving license of Rajendra Singh was recovered. Another purse containing some papers and one note of Rs. 100, Rs. 50, Rs. 20 and Rs. 10 each, total Rs. 180/- along with driving license of Rahul Singh Negi was also recovered from the said bag. Driving license of Alam Singh Mewari was also recovered from the said bag. All the five accused confessed their guilt and they were arrested at about 3.45 pm. The right leg of accused appellant Rahul Singh Negi was found to be injured on account of hitting the bullet which the police had fired in self-defence. He was given the first aid on the spot. All the recovered articles were sealed on the spot and specimen of seal were also prepared. Being notorious criminals, all the accused were made ‘baparda’. They had made an organized gang for the illegal monetary benefits of the members of gang and used to spread terror and committed bank dacoity on the point of arms. Driver Nadir (PW6), who was abducted by the aforesaid miscreants was sent along with Head Constable Sunder Singh for the recovery of the vehicle used in the said crime. A fard Ex. Ka-5 with these averments was prepared by Head Constable Lal Singh Kera on the dictation of CO, CD Pant (PW8). The said Maruti Car was recovered and it 8 was towed away by the police with the help of another vehicle to the Kaladhungi police station. 7. The investigation of this case was entrusted to Station Officer Ravi Tyagi (PW3), who during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka-6. He also prepared the site plan Ex. Ka-7 of the place where the accused appellants were arrested by the police. Sanction of District Magistrate, Nainital to prosecute the accused appellants Raju Pal, Jai Prakash and Sanjay Kumar under Section 25 of the Act were also obtained which are Ex. Ka-21, Ka-22 and Ka-23 respectively. Site plan of the place where the Maruti Car of PW6 Nadir was parked is Ex. Ka-27, site plan where the said car was taken over by the accused persons from PW6 Nadir after making him handcuffed is Ex. Ka-28 and the site plan of the place from where the said car was recovered is Ex. Ka-29. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex. Ka-18 against the accused appellants under Section 395/397/412 IPC. He also filed separate chargesheet Ex. Ka-19 under Section 147/148/149/307 IPC and Section 2/3 of the Gangsters Act. Separate chargesheets under the Arms Act were also filed against the accused appellants. Chargesheet Ex. Ka-20 under Section 4/25 of the Arms Act against the accused appellant Rahul Singh Negi @ Rocky, chargesheet Ex. Ka- 24 under Section 25 of the Arms Act against the accused appellant Raju Pal, chargesheet Ex. Ka-25 under Section 25 of the Arms Act against the accused appellant Jai Prakash and chargesheet Ex. Ka-26 under Section 25 of the Arms Act against the accused appellant Sanjay Kumar were filed by the I.O. All the chagesheets were submitted in the trial court. 9 8. On 1.3.2006, all the trials being part of the same transaction were consolidated and ordered to be tried jointly as per the provisions of Section 223 CrPC and Special Sessions Trial No. 46/2005 was made the leading case. 9. Learned Special Judge (Gangsters Act)/II FTC, Nainital framed the charges on 16.3.2006 against each of the accused appellants and the co-accused Mohan Paliwal (trial against whom was abated) under Sections 147, 365, 307, 397, 412 IPC and Section 2/3 of the Gangsters Act. On the same day, charge under the Arms Act was also framed against each of the accused appellants. The charge were read over and explained to each of the accused appellants, who pleaded not guilty and claimed to be tried. 10. To prove its case, the prosecution has examined PW1 JS Bhandari, the complainant; PW2 Pooran Chand Pandey, an eyewitness; PW3 Station Officer Ravi Tyagi, the I.O. of the case; PW4 Sandeep Kumar, Painter & an eyewitness; PW5 Leela Dhar, Special Executive Magistrate, who conducted the identification parade in sub-jail, Haldwani; PW6 Nadir Miyan, the driver of the Maruti car used in the said crime and who also informed the police about the whereabouts of the accused; PW7 Madho Ram, Head Moharrir who prepared the chick FIRs and made the necessary entries in the GD; PW8 Circle Officer CD Pant, who was leading one of the police party and was also present at the time of arrest of the accused and at the time of recovery of looted money & articles; PW9 Om Prakash Rajpoot, to whom the investigation was transferred from PW3 Ravi Tyagi; PW10 SS Samant, SO and the I.O. of the case reported by PW6 Nadir Miyan and PW11 Dr. US Adhikari, who had medically examined PW6 10 Nadir Miyan on 10.8.2005 and prepared the medical report Ex. Ka-31. 11. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in the case. However, they did not produce any documentary or oral evidence in defence. 12. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Special Judge (Gangsters Act)/Sessions Judge, Nainital vide his common judgment and order dated 31.5.2007 convicted and sentenced to each of the accused appellants as discussed above. Against the aforesaid judgment and order dated 31.5.2007, the accused appellants have preferred the present appeal. 13. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 14. To prove its case, the prosecution has examined PW1 JS Bhandari, Branch Manger who has reiterated the version made by him in the report Ex. Ka-1 lodged by him with PS Kaladhungi. He has also stated that he had identified the accused appellants in sub-jail, Haldwani when the identification parade was held on 5.10.2005 as he had seen them at the time of dacoity in the bank on 9.8.2005 and in between this period, he had not seen the accused persons anywhere. 11 15. PW2 Pooran Chand Pandey has stated that on 9.8.2005, he was posted as Head Cashier in the Kamola Branch of Bank of Baroda and on that day, Branch Manager JS Bhandari (PW1) and Daleep Singh, Daftary were also working with him in the said branch. Before the said incident, the Branch Manager JS Bhandari was talking to BDO and three other persons and two customers were also sitting. At about 12.30 pm, four miscreants entered inside the bank. One of them, said to the Branch Manager “Hands up” and positioned himself there. Two miscreants came from the back side of his cash counter. Out of these two miscreants, one covered Daleep Singh, Daftary while second miscreant entered inside his cabin and asked him to remain hands up! All the four miscreants were armed with pistols. Fourth miscreants covered the customers outside the counter. The miscreant who entered inside his cabin pointed a pistol on his head and looted all the cash amount from the drawer and gave it to his another companion who was with him at the back side of the cabin. The miscreants also looted his purse, rupees four thousand from Daleep Singh, purses and mobile of BDO and his subordinates. At the time of leaving, the miscreants disconnected the telephone line and broke the telephone set. When the miscreants left the bank, the Branch Manger immediately rang up the siren. This witness has further stated that when he came out the branch after leaving the miscreants, he came to know that fifth associate of the miscreants covered the Painter (PW4 Sandeep Kumar) who was painting near the board gate and this fifth miscreant was the last person to leave the place of occurrence. The Painter told that the miscreants had gone by a Maruti Car towards Naya Gaon. The Branch Manager JS Bhandari (PW1) informed about this incident to PS Kaladhungi and other authorities. Thereafter cash was compared in the branch and Rs. 2,41,405/- were 12 found to be short, which were in the denomination of 2 notes of Rs. 1000/-, 151 notes of Rs. 500/-, 1063 notes of RS. 100/-, 1082 notes of Rs. 50/-, 107 notes of Rs. 20, 79 notes of Rs. 10/- and 115 notes of Rs. 5/-. The Branch Manager wrote the report in the bank and thereafter lodged the same with the police station. This witness has further stated that on 5.10.2005, he had gone to sub-jail, Haldwani for the identification of the accused, where he ideintifed all the accused and identification memo was also prepared there on which he had also signed. He has further stated that he had not seen the accused persons between the date of occurrence and the date of identification parade. This witness has also identified all the accused persons in the trial court and described the specific roles performed by each of them at the time of dacoity. He stated that co-accused Mohan Paliwal (trial against whom was abated) had pointed the gun on the Branch Manager while accused appellant Rahul Singh Negi had come to his cabin and looted the cash money, accused appellant Jai Prakash covered the Daftary while accused appellant Raju Pal covered the customers and accused appellant Sanjay Kumar remained near the Painter outside the bank. One sealed bundle related to accused appellant Jai Prakash was opened in the trial court which contained four packet of Rs. 100/- and one packet of Rs. 50/-. All these packets except one packet of Rs. 100/- were having the slip of Bank of Baroda. This witness after comparing slip and the details of notes has stated that all these notes were issued to his branch from Bank of Baroda, Haldwani. In the same manner, this witness has identified all the notes related to accused appellants Raju Pal, Rahul Negi and Sajay Kumar and the co-accused Mohan Paliwal (trial against whom was abated) which were looted from the bank. This witness has also proved the copy of receipt and payment register as 13 Ex. Ka-4. Despite searching lengthy cross-examination, the defence Counsel has failed to elicit any material to shatter and discredit the testimony of this witness. His statement is reliable, believable and inspire the confidence. 16. PW3 Ravi Tyagi has stated that on 9.8.2005, he was posted as Station Officer in PS Kaladhungi. On that day, at about 12.39 pm, PW1 JS Bhandari had telephonically informed him about the said dacoity in his branch by five armed dacoits. On this information, he came at the said branch along with the police force. Branch Manager and the Cashier of the branch also returned to the branch after lodging the report. Circle Officer, Ramnagar and SSP also came at the place of occurrence along with the police force. He has further stated that he started the investigation immediately on the spot. On the directions of higher authorities, they came towards the triangle of Naya Gaon at about 3 pm in search of the looted cash and articles and the accused persons. Constable Rajendra Singh from Kotabag police chowki informed on mobile that the driver of the vehicle which was used in the said crime had come to that police chowki and told him that the bank dacoits were located in Kotabag. Thereafter they went to Kotabag where Constable Rajendra Singh met them and told that those bank dacoits were staying in the hotel of Rana. Driver Nadir (PW6) was also with him. Thereafter two police parties were formed on the directions of SSP. One party was being led by CO, CD Pant (PW8) while second party was being led by SSP Alok Sharma. When the police parties reached near the said hotel, the dacoits became alert having came to knew about the presence of police and ran away from the said hotel towards the forest. They were chased by the police parties. The dacoits fired from the tamancha. Thereafter Chandan Singh, the 14 Gunner of CO, CD Pant fired twice from his carbine on the miscreants and one bullet hit one