RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No.2040 of 2001 (Old No.2280 of 1988) Faruque alias Munna S/o Zahir Ahmad, R/o Rajpur Estate, Dehradun …….….…. Appellant Versus The State …………… Respondent Dated: April 21, 2008 Sri Bhuvnesh Joshi, learned counsel for the appellant Sri Prabhakar Joshi, learned brief holder for the State/respondent HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 26.09.1988 passed by IIIrd Additional Sessions Judge, Dehradun in S.T. No.73 of 1985 & S.T. No.74/1985, whereby the learned Additional Sessions Judge has convicted the appellant-Faruque under Sections 393 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and also u/s 25 of The Arms Act, 1959 (hereinafter to be referred as the Act) and sentenced him for four years’ R.I. u/s 393 IPC and two years’ R.I. u/s 25 of the Act. Both the sentences were directed to run concurrently. The appellant was acquitted of the charge punishable u/s 307 of IPC. Co-accused Hemraj was also acquitted for the offences punishable u/Ss 307, 393 r/w Section 34 IPC. 2. In brief, the prosecution case is that on 1.4.1985 in the office of DTD&P (Air), Ministry of Defence, Dehradun, at about 2:30 P.M., in the office room of Administrative Officer, the cash, after counting, was being put inside the envelopes. Meanwhile, two persons entered into the office room of administrative officer and out of those two persons, face of one 2 person was covered with a mask (Naqab) and another person was armed with a country made pistol. The accused persons shown the pistol to administrative officer and cashier S.P. Kohli and asked them to hands up. At that time, one other person Pratap Chand was also present in the room for counting of the cash. Then, the accused persons asked to handover the cash to them otherwise they threatened to kill them. As soon as the person wearing the mask moved forward to take the cash money, Pratap Chand opposed to it. On that, the person armed with a pistol, fired but the fire was missed. After that Pratap Chand caught hold the person armed with pistol by pouncing upon him. Another accused person tried to relieve his accomplice, then the person armed with a pistol attacked upon Pratap Chand due to which he received injury on his thigh. After hearing the noise, Tribhuwan Chabra, Jitendra Sharma, Manjit Singh, V.K. Bhatia also reached at the place of occurrence and took one accused person into their possession. However, another accused person was successful in running away. When the name of the person who was caught on the spot was asked, then he disclosed his name as Munna @ Faruqe (present appellant) and also disclosed to be resident of Raipur Estate. The person who ran away from the spot, his name was disclosed as Hemraj. The matter was thereafter immediately informed to the police. From the possession of the appellant, one pistol and two cartridges of 315 Bore were recovered. Out of those two cartridges, one was in the barrel of the pistol which was a missed cartridge and one cartridge of 12 Bore was also recovered from his pocket. From the possession of the appellant, two number plates i.e. one learning plate of the paper and one pant was also recovered. It was also averted in the FIR that appellant Munna @ Faruque had fired with the intention to kill Pratap Chand. It was further averted that the person who ran away from the spot could be identified by the employees’ of the office. With the same averments, the FIR was given by V.K. Bhatia, Senior Scientific Officer on 1.4.1985 at 3 4:30 P.M. to S.O. P.S. Dalanwala, Distt. Dehradun, that FIR is Ex.Ka-1. On the basis of this report, Chik FIR was prepared, i.e. Ex.Ka-14. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-15. The report which was received in the police station on telephone on 1.4.1987 at 2:40 P.M., the entry thereof was also made in the G.D., the copy of G.D. is Ex.Ka- 16. The recovered items i.e. one country made pistol 315 Bore, one other country made pistol 12 Bore, one missed cartridge in the country made pistol 315 Bore, one live cartridge of 315 Bore, one live cartridge of 12 Bore, one mask (Naqab) colour blue, one hand bag in which one Khaki pant and three number plates. In one number plate, (L) was printed and that was printed over the number which was read as URM, however the entire number could not be read; in second plate DHX 836 was written and in third one, DHX 836 was printed by white paper. The aforesaid items were sealed after keeping them in the bag and a Fard was prepared, i.e. Ex.Ka-2. The investigation of this case was entrusted to P.W.8 S.I. Sudhir Kumar Tyagi. Injured Pratap Chand was medically examined by Dr. C.J. Singh, Medical In-charge, Coronation Hospital, Dehradun on 1.4.1985 at 4:45 P.M. and an injury report was prepared, the copy of injury report is Ex.Ka-11. During the course of the investigation, the I.O. inspected the place of occurrence and prepared a site plan i.e. Ex.Ka-3. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant/accused u/Ss 393/398/307 IPC, that charge sheet is Ex.Ka-4. During the investigation, co- accused Hemraj was also arrested by the police and against him also, the charge sheet was filed u/s 393/307 IPC, i.e. Ex.Ka-10. The I.O. also taken the sanction to prosecute the appellant/accused Faruque @ Munna u/s 25 of the Act. The said sanction was accorded by Sri Atul Chaturvedi, District Magistrate, Dehradun on 3.7.1985, i.e. Ex.Ka-13. The I.O. after completing the investigation, also submitted the charge sheet 4 against the appellant/accused Faruque @ Munna u/s 25 of the Act, that charge sheet is Ex.Ka-12. 3. Learned Additional Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 5.8.1985 under section 209 Cr.P.C. after complying with the provisions of Section 207 Cr.P.C. 4. On 11.08.1986, IInd Additional District & Sessions Judge, Dehradun framed the charge against the appellant/ accused Munna @ Faruque u/s 393/307 IPC and also u/s 25 of the aforesaid Act. The charge was read over and explained to the appellant/accused who pleaded not guilty and claimed to be tried. On the same day i.e. on 11.8.1986, the charge was framed by IInd Additional District & Sessions Judge, Dehradun against the co-accused Hemraj u/s 393/34 IPC and u/s 307 r/w Section 34 of IPC. The charge was also read over and explained to him who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined P.W.1 V.K. Bhatia who lodged the FIR, P.W.2 K.A. Vishwanathan, eyewitness, P.W.3 Raghunandan, eyewitness, P.W.4 Pratap Chandra, injured eyewitness, P.W.5 Tribhuwan Chhabra, eyewitness, P.W.6 Virendra Kumar, eyewitness, P.W.7 S.P. Kohli, eyewitness, P.W.8 Sudhir Kumar Tyagi, I.O. of the case, P.W.9 Om Prakash Sharma, Inspector who was also posted at that time as Inspector In-charge of the P.S. Dalanwala and P.W.10 Dr. C.J.Singh who had medically examined P.W.4 Pratap Chandra. 6. Thereafter, the statements of the appellant/ accused Faruque @ Munna as well as of accused Hemraj were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against him. However, they had not produced any oral or documentary evidence in their defence. 5 7. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned IIIrd Additional Sessions Judge, Dehradun vide his judgment and order dated 26.9.1988 convicted the appellant-Faruque @ Munna under Sections 393 of IPC and also u/s 25 of the Act and sentenced him for four years’ R.I. u/s 393 IPC and two years’ R.I. u/s 25 of the Act. Both the sentences were directed to run concurrently. The appellant Faruqe @ Munna was acquitted of the charges punishable u/s 307 of IPC. Co-accused Hemraj was also acquitted for the offences punishable u/Ss 307, 393 r/w Section 34 IPC. Feeling aggrieved by the said judgment and order dated 26.9.1988, the appellant has preferred the present appeal. 8. I have heard Sri Bhuvnesh Joshi, learned counsel for the appellant and Sri Prabhakar Joshi, learned brief holder for the State and perused the entire material available on record. 9. To prove its case, the prosecution has examined P.W.1 V.K. Bhatia who has proved the report lodged by him i.e. Ex.Ka-1 and when the question was put to him, he has stated as under: - “;g lkjk fdLlk vki dks fdl us crk;k”? “;g lkjk fdLlk eq>s Jh fo”koukFk us] Jh ,l ih dksgyh] Jh izrkipUn] Jh j?kquUnu] Jh fcjsUnj oxSjk us crk;k FkkA ogk¡ ls FIR fy[kokus ds fy;s Mkyuokyk Fkkuk x;s Fks] yxHkx fnu ds 4 ct x;s FksA Fkkuk Mkyuokyk ls fjiksVZ fy[kk dj yxHkx N% cts “kke dks ?kj vk;sA 4 cts “kke ls 6 cts “kke rd eSa Fkkuk Mkyuokyk gh es jgkA” This witness has stated that he had not seen the incident and the entire incident was told to him by Vishwanath, S.P. Kohli, Pratap Chand, Raghunandan, Virendra etc. Thus, this witness is the hearsay witness and from his statement, it reveals that he has not seen the incident but he lodged the FIR on the hearsay version and on the information given to him by the above-said persons. 10. P.W.2 is K.A. Vishwanathan who has stated that on 1.4.1985, he was posted as Administrative Officer in DCRI, Dehradun at 9 Cross Road. On that day, at about 2:30 P.M. in 6 his room, he, S.P. Kohli and Pratap Chand were counting the cash and was putting the same into the envelopes. Then two persons had come inside the room. The face of the person who was covered with a mask (Naqab), asked him to hands up and entered into the room. The second person was behind him. Later on, he came to know the name of person who was wearing mask in his face was Faruque. When Pratap had tried to stop the appellant/ accused Faruque, then he fired but the fire was missed. Meanwhile, another accomplice Hemraj caused injury to Pratap on his thigh with a pistol due to which Pratap sustained injuries. After that, co-accused Hemraj ran away from the place of occurrence. S.P. Kohli had come outside the office and cried thieves, thieves. After hearing the noise, V.K. Bhatia and Raghunandan reached on the place of occurrence and so many other persons also reached there. The present appellant/accused was caught hold on the spot. After that M.K. Kulshrestha asked him to go to the room because cash was there, therefore, he came to the room. He further stated that search of appellant/accused Faruque was not conducted before him and whatever the recovery was made from the appellant, that was not made before him. 11. P.W.3 is Raghunandan who has not supported the prosecution case and was declared hostile. 12. P.W.4 is Pratap Chand, who sustained injuries on his thigh, has also not supported the prosecution case and was declared hostile. 13. P.W.5 is Tribhuwan Chhabra who has also not supported the prosecution case and was declared hostile. 14. P.W.6 is Virender Kumar who has also not supported the prosecution case and was declared hostile. 15. P.W.7 is S.P. Kohli who has also not supported the prosecution case and was declared hostile. 16. P.W.8 is S.I. Sudhir Kumar, who is the I.O. of the case, has stated that on 1.4.1985, he was posted in P.S. Dalanwala as Sub-Inspector. The investigation of this case was 7 entrusted to him. During the course of investigation, he recorded the statements of witnesses and inspected the place of occurrence and prepared the site plan i.e. Ex.Ka-3. After completing the investigation, he submitted the charge sheet against the present appellant u/s 393/307 IPC, i.e. Ex.Ka-4. This witness was also recalled and he also stated that he also submitted the charge sheet against the present appellant/accused Faruque u/s 25 of Arms Act. He also took the sanction for prosecution of the appellant from District Magistrate Atul Chaturvedi, i.e. Ex.Ka-13. 17. P.W.9 is Om Prakash Sharma, Inspector who has stated that on 1.4.1985, he was posted as Inspector in P.S. Dalanwala. On 1.4.1985 at 2:40 P.M., he received an information on telephone from 9 Cross Road, Defence Office that two persons entered into the office with the intention of robbery and one person was caught hold on the spot and other had run away. The entry was made in the G.D. No.35 at 2:40 P.M. on 1.4.1985 by Head Moharrir Mohar Singh, the copy of G.D. is Ex.Ka-16. After that, he reached on the spot along with other police officials. He further stated that from the possession of the appellant, one Tamancha 315 Bore Ex.1 and other Tamancha Ex.4, two cartridges 315 Bore Ex.2 & Ex.3 and one cartridge of 2 number 12 Bore Ex.5, were recovered. The cloth which was used for the mask (Naqab) Ex.6 and bag Ex.7, a Pant Ex.8, three paper pins in which two car plates and in one plate ‘L’ was written i.e. from Ex.9 to 11, were also recovered. A Fard in this regard was prepared by Sri Sobha on his dictation and after that he also signed on that Fard, i.e. Ex.Ka-2. 18. P.W.10 is Dr. C.J. Singh who has stated that on 1.4.1985, he was posted as Physician in Coronation Hospital, Dehradun. On that day, at 4:45 P.M., he had medically examined the injuries on the person of Pratap Chand and he found following injuries on his person: - 1. Abrasion 0.5 cm x 0.5 cm on base of right thumb dorsal surface. Oozing of blood on skin surface. 8 2. Abrasion 0.25 cm x 0.25 cm on back of right thumb in distal inter pharyngeal joint. Oozing of blood on skin surface. 3. Abrasion 0.5 cm x 0.5 cm on back of left index finger at 1st inter pharyngeal joint. Oozing of blood on skin surface. 4. Abrasion 0.25 cm x 0.25 cm back of left middle finger at 1st inter pharyngeal joint. Oozing of blood on skin surface. 5. Contusion 3 cm x 2 cm in front of left thigh. 2 cm above left knee joint, reddish in colour. 6. Multiple abrasions in an area of 4 cm x 2.5 cm in front of right left just below right knee joint. Oozing of blood on skin surface. It was stated that injury no.5 could be caused by blunt object. He also proved the injury report prepared by him i.e. Ex.Ka-11 and he stated that injuries could possibly be caused at 2:30 P.M. on the same day. 19. Sri S.B. Bisht was examined as Court Witness (C.W.1) who has stated that on 24.5.1985, he was posted as Deputy Collector, Civil Defence. On that day, identification parade of co-accused Hem Raj was conducted by him in District Jail, Dehradun. Identification memo was also prepared i.e. C-1. 20. Thereafter, the statements of the appellant/ accused Faruque @ Munna as well as of accused Hemraj were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to them in question form, who denied the allegations made against him. However, they had not produced any oral or documentary evidence in their defence. 21. Sri Bhuvnesh Joshi, learned counsel for the appellant submitted that P.W.1 V.K. Bhatia is the hearsay witness and he had not seen the incident and he had lodged 9 the FIR on the facts told to him by P.W.2 K.Vishwanathathan, P.W.3 Raghunandan, P.W.4 Pratap Chand, P.W.6 Virendra Kumar and P.W.7 S.P. Kohli. However, P.W.3 Raghunandan, P.W.4 Pratap Chand, P.W.5 Tribhuwan Chhabra P.W.6 Virendra Kumar and P.W.7 S.P. Kohli have been declared hostile as they have not supported the prosecution case. In this way, the only evidence of P.W.2 K.Vishwanathan is there against the appellant who has also stated in his examination in chief that the items shown to be recovered from the possession of the appellant/accused Faruque @ Munna were not recovered in his presence. Hence, learned counsel for the appellant submitted that P.W.2 K.Vishwanathan is also not the eyewitness of the incident. He further submitted the only evidence against the appellant is the solitary evidence of PW.2 and on the basis of the evidence discussed above, it does not inspire any confidence. In support of this argument, he has cited a judgment reported in 2003 (1) Supreme Court Cases, 465 “Joseph Vs. State of Kerala”. He has relied upon para 13 of this judgment which is reproduced as under :- “13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable.” 22. Learned counsel for the appellant further submitted that the evidence of the solitary witness should be accepted 10 with caution. He further submitted that it is permissible to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. 23. For the discussion made above, the evidence of PW.2 K.Vishwanathan does not inspire any confidence and hence, his evidence is not reliable and believable evidence. Therefore, no reliance can be put on the statement of P.W.2 K.Vishwanathan, as his statement is not supported by the statements of P.W.3 to P.W.7 and even the statement of P.W.2 K.Vishwanathan is self contradictory because if the he was present on the spot and the appellant/accused was arrested before him, then it was not possible that the items shown to be recovered from the possession of the appellant/accused were not recovered before him. This factual position creates a doubt in the evidence of P.W.2 and it does not inspire implicit confidence. Therefore, the conviction of the appellant Faruque @ Munna on the basis of statement and evidence of P.W.2 K.Vishwathan is also not justified and as per law. 24. Learned counsel for the appellant further submitted that in the FIR, one pistol was shown to be recovered from the possession of the appellant, however in the recovery memo, two pistols were said to be recovered from his possession and the I.O. also taken the sanction from the District Magistrate against the appellant for two pistols and therefore, the offence u/s 25 of the Act is not proved against the appellant. I find force in this argument of learned counsel for the appellant and this fact creates a doubt in the prosecution case. In the FIR, only one pistol was shown to be recovered from the possession of the appellant, however in the recovery memo, two pistols were shown to be recovered from his possession which creates a reasonable doubt in the prosecution case. 11 25. Learned counsel for the appellant further submitted that the injured Pratap Chand P.W.4 was shown to be an injured witness, however he had not supported the prosecution case and was declared hostile. I find force in this argument advanced by learned counsel for the appellant. This fact also creates a doubt in the prosecution case. In the present case, injured Pratap Chand P.W.4 was medically examined by Medical Officer, Coronation Hospital, Dehradun and an injury report Ex.Ka-11 was also prepared, however he was declared hostile, as such the prosecution story, on this point also, seems to be doubtful. 26. Learned counsel for the appellant further submitted that on the basis of same set of facts and evidence, when the co-accused Hemraj has been acquitted by the trial court, then the benefit of acquittal of co-accused should also be extended to appellant/accused. He cited a judgment of Hon’ble Supreme Court in the case of Deepak Rajak v. State of West Bengal reported in 2007 AIR SCW 5740. He relied on para 2,3,5 and 6 which read as under: - “2. The factual details need not detain us as undisputedly the co-accused have been acquitted by this Court in Mousam Singa Roy and Others v. State of W.B. [2003 (12) SCC 377]. The effect of such acquittal vis-à-vis similarly situated co-accused has been considered by this Court in several cases. 3. Learned counsel for the appellant placed reliance on various decisions of this Court contending that the benefit of acquittal should be extended to the appellant. 5. The position in law as to what happens in case of acquittal of similarly placed co-accused on the same set of facts and on similar accusations has been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present 12 case, after surrender, the benefit of acquittal in case of co- accused on similar accusations can be extended.” 27. In view of the above-said dictum of Hon’ble Apex Court, the Court is of the view that the benefit of acquittal of co-accused on the same set of facts and evidence be given to the present appellant. 28. After considering all the facts and circumstances of the case and in view of the aforesaid judgments of Hon’ble Supreme Court quoted above, the prosecution has not proved its case against the appellant u/s 393 IPC and also u/s 25 of the Arms Act beyond reasonable doubt and the learned trial court was not correct and justified in convicting the present appellant Faruque @ Munna under the above-said sections. As such, the judgment and order dated 26.9.1988 passed by the trial court deserves to be set aside. 29. For the reasons recorded above, the appeal preferred by appellant Faruque @ Munna is allowed. The judgment and order dated 26.9.1988 passed by learned IIIrd Additional Sessions Judge, Dehradun is set aside. The appellant is on bail. He needs not surrender. His bail bonds are cancelled and sureties are discharged. (Dharam Veer, J.) Rajeev Dang