1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 1 ] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT: 1.Ram Narayan Singh @ Narain Singh Vs. State D.B. CR. APPEAL NO.107/2003 AGAINST THE JUDGMENT AND ORDER DATED 29.11.2002 PASSED BY SHRI GIRISH KUMAR PANDAYA, RHJS, ADDL. SESSIONS JUDGE (FAST TRACK), BHILWARA IN SESSIONS CASE NO.73/2001. 2.Ramanand Vs. State D.B. CR. APPEAL NO.1029/2002 AGAINST THE JUDGMENT AND ORDER DATED 29.11.2002 PASSED BY SHRI GIRISH KUMAR PANDAYA, RHJS, ADDL. SESSIONS JUDGE (FAST TRACK), BHILWARA IN SESSIONS CASE NO.73/2001. 3.Arvind Dubey Vs. State D.B. CR. JAIL APPEAL NO.159/2003 AGAINST THE JUDGMENT AND ORDER DATED 29.11.2002 PASSED BY SHRI GIRISH KUMAR PANDAYA, RHJS, ADDL. SESSIONS JUDGE (FAST TRACK), BHILWARA IN SESSIONS CASE NO.73/2001. <><><> Date of Order : 22nd May, 2008 PRESENT REPORTABLE HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE CHAND MAL TOTLA Mr.PN Mohanani ] Mr.Pradeep Shah ], for the appellants. Mr.Rakesh Arora ] 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 2 ] Mr. VR Mehta, Public Prosecutor. BY THE COURT: (Per Hon'ble Mr. Justice Prakash Tatia) These three appeals have been preferred by the three accused, namely DB Cr. Appeal No.107/2002 by Ramnarayan Singh, DB Cr. Appeal No.1029/2002 by Ramanand and DB Cr. Jail Appeal No.159/2003 by Arvind Dubey, who have been convicted and sentenced by the court of Addl. Sessions Judge (Fast Track), Bhilwara in Sessions Case No.73/2001 as under : - Name of accused Conviction and Sentence Ram Narayan Singh @ Narayan Singh (i) Under Section 302/120B IPC sentenced to imprisonment for life and a fine of Rs.30,000/- and in default to undergo further undergo rigorous imprisonment for 3 months. (ii) Under Section 397 IPC sentenced to 10 years rigorous imprisonment and a fine of Rs.2,000/- and in default to further undergo rigorous imprisonment for 2 months. (iii) Under Section 394 IPC sentenced to 10 years rigorous imprisonment and a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for 2 months. 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 3 ] Name of accused Conviction and Sentence Ramanand (i) Under Section 302/120B IPC sentenced to imprisonment for life and a fine of Rs.30,000/- and in default to undergo further undergo rigorous imprisonment for 3 months. (ii) Under Section 394/120B IPC sentenced to 10 years rigorous imprisonment and a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for 2 months. Arvind Dubey (i) Under Section 302/120B IPC sentenced to imprisonment for life and a fine of Rs.30,000/- and in default to undergo further undergo rigorous imprisonment for 3 months. (ii) Under Section 394/120B IPC sentenced to 10 years rigorous imprisonment and a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for 2 months. (iii) Under Section 3/35 of the Arms Act sentenced to 7 years rigorous imprisonment and a fine of Rs.1,000/- and in default to undergo 1 month's rigorous imprisonment. Brief facts of the case are that a first information report Ex.P/14 was submitted by PW-9 Ashok Kumar Burad, the then Branch Manager, State Bank of Bikaner and Jaipur, Branch Industrial Area, Biliya of District Bhilwara to the SHO, Pratapnagar on 21.4.1997 stating therein that his bank's Chief Cashier, Umeshchandra Sharma, alongwith Guard Samrath Singh Rathore proceeded to deposit Rs.2,70,000/- in the Bhilwara Branch of their bank i.e., 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 4 ] State Bank of Bikaner and Jaipur and they were carrying Rs.2,70,000/- of denomination 500x98, 100x2000, 50x400 and 10x100, out of which currency notes of Rs.500, which were in number 98 were not stitched and rest of the currency notes were stitched in separate packets. When said Umeshchandra Sharma, Chief Cashier and Guard Samrath Singh came out from the bank and sent a Class-IV employee of the Bank Ramchandra Lakhara to fetch a three-wheeler, three persons came on scooter, out of which, two dropped down from the scooter and after showing pistol, snatched the bag of the currency notes from the hands of Chief Cashier Umeshchandra Sharma and both ride over the scooter with other who was already ready on scooter and all three started towards main road on scooter. The Chief Cashier Umeshchandra Sharma and the Guard Samrath Singh shouted and ran after the above three persons and they tried to throw some stones over the accused. While running, the accused persons' scooter collied with one electric pole and because of which all the three fell down. Guard Samrath Singh caught one of the assailants and instantly there were two fires, which hit the Guard Samrath Singh and Gaurd Samrath Singh died there. Because of that, the person who was caught by Guard 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 5 ] Samrath Singh could escape and all three ran on the scooter with the currency notes referred above. It is stated that all three accused were of the age in between 25 to 30 years. On receipt of the written report, FIR No.178/97 was drawn and case under Sections 302, 394, 397, 398 and 34 IPC was registered and investigation was started. During investigation, seizure memo of the body of Guard Samrath Singh was prepared, his body was sent for postmortem and postmortem report was obtained and, thereafter, his body was handed over to his son. The site was inspected and site map and reports were prepared. From the place of incident two cartridges, one empty and one live, scooter mate, one knife with tape on the handle of the knife were recovered and their seizure memos were prepared. The blood soil and sample control soil were taken and were sealed. All the articles were sent to the FSL. Total five accused were arrested, who are (i) Laxman Rai on 2.5.1997, (ii) Smt. Chandra on 3.5.1997, (iii) Arvind Dubey on 3.5.1997 (iv) Ramanand on 4.5.1997 and (v) Ramnarayan on 5.5.1997. In furtherance of the information given by Laxman Rai scooter was recovered and its seizure memo Ex.P/54 was prepared and at that time the mate of 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 6 ] the scooter was not found on the scooter. On the basket of the scooter there was white paint of the same nature and colour, which was on the scooter's mate found on the spot. Accused Ramanand's house was searched before Ramanand was arrested for which memo Ex.P/57 was prepared and from his house a PVC tape was recovered. The said tape and tape which was on the knife, which was recovered on the spot both were sent for chemical examination for obtaining report from the FSL, Jaipur. On the information of Smt. Chandra Ex.P/59 some cloths, attache and one cartoon were recovered. In furtherance to the information given by Arvind Dubey Ex.P/62 from a plot, which was near to his residential room under some stones two local made “Katta” ( pistols), which were kept in hide were recovered, which were sealed. The said two pistols alongwith cartridges, which were recovered from the site were sent to the FSL to obtain opinion whether those cartridges were fired from same pistols or not. On the basis of information given by Ramnarayan, from the house of Laxman Rai, a pent and one bundle of note of denomination of Rs.100 each in total Rs.10,000/- were recovered from bathroom of Laxman Rai. During investigation, information was obtained from Ramnarayan about the route, which they 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 7 ] have taken for committing above offence and that information was recorded. On the basis of his information, one bundle of Rs.50/- in total Rs.5,000/- were recovered, which he kept hiding in an under construction shop. The accused Ramnarayan was taken for test and identification parade where he was identified by witness Ran Singh, Umeshchandra Sharma, Heera Lal. The statement of witnesses were recorded under Section 161 Cr.P.C. And thereafter, challan was filed against above five accused. After committal in the court of Addl. Sessions Judge No.2, after hearing arguments, the trial court framed the charges against all five accused persons under Sections 397, 394, 402 and 120B IPC. Arvind Dubey had one more charge against him, which was under Section 3/25 of the Arms Act. All the accused denied the charges and sought trial. After evidence, when case was fixed for final arguments, the trial court found that against these five accused charge under sections 396 IPC and 302/120B is made out, therefore, by order dated 12.8.2002 in addition to previous framed charges, charge under Sections 396 and 302/120B IPC were also framed, which were denied by the accused and they sought trial. Under Section 217 Cr.P.C. 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 8 ] opportunity was given to the prosecution and to the accused for re-examination/cross-examination of the witnesses. On 9th Sept., 2002, on behalf of the accused Ramnarayan and Arvind Dubey, an application was submitted for cross-examination of witnesses Umeshchandra Sharma, Ranjeet Singh, Heeralal and Shyam Sunder Lata . On this request, above witnesses were summoned, who were cross-examined by the accused except witness Ranjeet Singh, who was not found and not produced by the prosecution and, therefore, his evidence was closed. On 10th Oct., 2002 counsel for the accused stated on behalf of the accused that the accused do not want to cross-examine any more witnesses. Accused statements were recorded under Section 313 Cr.P.C. wherein they denied all the allegations and stated that they have been wrongly implicated in the false case. The trial court after hearing the arguments of the Public Prosecutor and the counsel for the accused, acquitted accused Laxman Rai and Smt. Chandra W/o accused Ramanand from the charges referred above and convicted the above three appellants and sentenced them to undergo imprisonment as awarded and mentioned above. Being aggrieved against the judgment and order of the conviction 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 9 ] and sentence dated 29.11.2002, all the three accused have preferred three separate appeals. Learned counsel for the appellant Shri PN Mohanani submitted that initially no charges under Sections 302/120B IPC and 394/120B IPC were framed against the accused and as per the fact mentioned in para no.4 of the impugned judgment, at the time of final arguments, new charges under Sections 396 and 302/120B IPC have been framed. It is submitted that the trial court could not have framed the charge at the time of final arguments and the trial court has convicted the appellants under Section 302/120B IPC, which is illegal. The trial court acquitted the appellants from the charge under Section 396 IPC and convicted under Section 394 IPC. It is also submitted that for charge for decoity all persons who conjointly committed decoity may be punished even if only anyone of them has committed crime of murder and the accused may be convicted for the act committed by other. But under Section 394 IPC individual act can make liable to that individual for the commission of offence and there cannot be jointness or common responsibility in a case under Section 394 IPC. Learned counsel for the appellant Shri Mohanani also submitted that there is no evidence for the charge under 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 10 ] Section 120B IPC and, therefore, the conviction of the accused under Section 302 and 294 with the aid of Section 120B IPC is absolutely illegal as is not supported by any evidence. It is also submitted that in the act of robbery unless there is overt act of a person in the commission of offence of robbery, he cannot be convicted because of his presence with the person, who in fact, and actually committed offence of robbery. It is submitted that in the case of State (NCT of Delhi) VS. Navjot Singh Sandhu reported in 2005 Cri. L.J. 3950 the Hon'ble Supreme Court while considering the scope of Section 121A IPC held that those who committed offences pursuant to conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy, but the non-participant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. According to learned counsel for the appellants the Hon'ble Apex court in the above judgment held that there is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them. It is also held that the offfender will be liable only if he comes within the plain terms of the penal statute. The criminal liability 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 11 ] for an offence cannot be fastened by way of analogy or by extension of a common law principle. With the help of above judgment, learned counsel for the appellants vehemently submitted that the act of commission of robbery completed with the snatching of the bag by the person and act of firing and killing one person is an act done after the completion of the act of robbery or snatching of bag containing the currency notes. The killing of Guard Samrath Singh is not part and parcel of the act of robbery and, therefore, the appellants could not have been convicted under Section 302 IPC with the aid of Section 120B IPC. Learned counsel for the appellant Shri Mohanani relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Subash Vs. State of Harayana reported in 2008 Cri. LJ 693 wherein, in a case of robbery and murder the fact revealed that accused person allegedly threw deceased and other person into canal after committing robbery of money and tractor. In the said case, the Hon'ble Supreme Court held that no specific overt act has been attributed to the appellant. In the said case, the accused started robbery of money from the pocket of the deceased and when he resisted, the accused caught him and pressed 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 12 ] his neck and thrown him into the canal. The victim tried to catch hold of grass grown on the bank of the canal, but accused gave blows on his face and was again thrown into the water by which the victim died. In that situation, the Hon'ble Apex Court held that the evidence available on record does not suggest the death of victim. The case falls under Section 304 Part II IPC and the accused was convicted under Section 304 Part II IPC and sentenced to undergo seven years RI. Learned counsel for the appellant also relied upon another judgment of the Hon'ble Apex Court delivered in the case of Ajit Singh Vs. State of Haryana reported in 1996 (1) Crimes 146 (SC). In the said case, the accused, who did not use the weapon for robbing was held not liable to be convicted under Section 397 IPC and has been convicted under Section 392 IPC. In view of the above reasons, according to learned counsel for the appellant, in the present case, it is not known, who fired and the trial court in para no.15 of the judgment held that Ramnarayan Singh accused-appellant was one of the persons, who came on scooter and committed robbery, but the other accused were not involved in the commission of the said crime. It is also submitted that Ramnarayan fired the gun shot, is not the 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 13 ] case of the prosecution and none of the accused has been found responsible for firing, then conviction of any of the accused under Section 302 read with Section 120B IPC cannot be sustained. Learned counsel for the appellant Shri Pardeep Shah and learned counsel for the appellant Shri Rakesh Arora vehemently submitted that in view of the trial court's finding as recorded in para no.15, it is clear that the trial court specifically held that the appellants Ramanand and Arvind Dubey were not involved in this crime. Contrary to its own finding, the trial court convicted Ramanand merely on the basis of the recovery of Rs.5,000/- from a place, which was an open place and was not the place of appellant Ramanand. No money was recovered from the house of Ramanand is the finding of the trial court. The trial court also considered the recovery of PVC tape from the house of the appellant Ramanand as material evidence ignoring this fact that the PVC tape is an article, which is found in almost every house and it is used over electric wire etc and is also used for very many domestic purposes. According to learned counsel for the appellant Shri Shah not a single witness has identified the accused Ramanand during investigation or in the trial. It is also submitted that though 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 14 ] the prosecution tried to show that accused was not on his duty during relevant period where he was doing the job work, but in fact, from the same evidence produced by the prosecution itself, it is proved that accused was on duty in the factory. Therefore, accused Ramanand could not have been with any of the accused, who might have committed crime referred above. Learned counsel for the appellant Shri Rakesh Arora also submitted that in view of the trial court's finding recorded in para no.15 the appellant Arvind Dubey was not on scooter on which three accused might have come to the place of occurrence and might have snatched the bag of currency notes and might have fired. The appellant Arvind Dubey has been convicted merely on the basis of recovery of two pistols (Deshi Katta), which were lying in an open place where anyone could have placed those articles. The appellant has wrongly been connected with the recovery of those pistols. Apart from above recovery, there is no evidence against the appellant and more important is that there is neither circumstantial nor ocular evidence about the presence of appellant on spot at the time of commission of offence or even thereafter. In view of the above reasons, apart from the grounds submitted by learned counsel for 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 15 ] the appellant Shri Mohanani, the appellant Arvind Dubey is entitled to be acquitted. Learned Public Prosecutor vehemently submitted that so far as happening of unfortunate event of robbing bank persons and in that consequence killing of Guard of the bank, there cannot be any dispute. The written report was given by the Branch Manager of the bank to the police station. The prosecution produced Chief Cashier of the State Bank of Bikaner and Jaipur -Umeshchandra Sharma as PW-8 who stated that he took the currency notes of Rs.2,70,000/- of Rs.500, 100, 50 and 10 on 21.4.1997 at about 3.00 PM and came out from the bank with Guard Samrath Singh. When they reached out side the bank, three persons came on scooter where two persons dropped from the scooter and snatched the currency note bag from him and ride the scooter. He and Samrath Singh ran after them and also threw stones towards them. Scooter of the accused collided with electric pole and fell down. Samrath Singh caught one of the accused and immediately thereafter, bullets were fired, which hit the Guard Samrath Singh and he died there on spot. He stated that on the bundle of notes there was seal of the bank with sign of the witness PW-8 – Chief Cashier and of the Cashier Ajay 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 16 ] Gupta. He identified the accused Ramnarayan in the Central Jail in front of Judicial Magistrate on 28th May, 1997 and also identified the accused in the court during his statement. His statement is fully corroborated by the other witnesses PW-4 Ranveer Singh and PW-6 Heera Lal. PW-7 Mohan corroborated the statement of PW-6 Heeralal. However, PW-6 Heeralal could not identify the accused and PW-11 Banshilal proved the fact that while running on scooter three persons fell down because of colliding of scooter with the lamp post and one of the persons was caught by the Chowkidar (Samrath Singh) and another person, who was also sitting on the scooter, fired on the Chowkidar and the shots hit the Chowkidar. In addition to the above, the recovery of the currency notes from the accused in the facts of the case, cannot be considered to be an insignificant recovery because of the reason that it was a case of robbery of currency notes of the bank known as State Bank of Bikaner and Jaipur. The bundle of notes recovered from the accused had seal of the bank and none of the accused gave any explanation how those currency notes were lying at the place from where recoveries were made. It is also submitted that the recovery from Arvind 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 17 ] Dubey of the pistols and pistols' connection with the cartridges, empty and fired found on the spot, proved by the FSL report, which fully establishes Arvind Dubey's inflicting injury by those cartridges through the recovered pistols. It is also submitted that this event cannot be dissected in two parts, one of snatching of currency notes and another killing the Chowkidar, who tried to caught one of the accused. The clear aim, object and intention of the three accused were premeditated and, therefore, they proceeded with the knife and pistols on one scooter to rob the victims and to take the currency notes and in case, there is resistance then they may use the deadly weapons to kill anybody and they in fact, have given effect to their intention. It is not a case where gun was not fired to save one himself, but was fired to save co-accused. Therefore, the judgments relied upon by learned counsel for the appellants have no application to the facts of this case. It is also submitted that for conspiracy there may not be a direct evidence and normally it is difficult to collect evidence about hatching a conspiracy by the accused. It is required to be inferred from the manner in which the individual acted with common intention. In view of the above, all the three accused have rightly been convicted 1. DBCr Appeal No.107/03-Ramnarayan Singh Vs. State,2. DBCr Appeal No.1029/02-Ramanand Vs. State and 3. DBCr Jail Appeal No.159/03-Arvind Dubey Vs. State [ 18 ] under Section 302/120B IPC as well as under Section 394/120 IPC . The appellant Arvind Dubey was rightly convicted under Section 3/25 of