2 "1 ,qwl/ HIQ-i CQUQT OF CHHATT ISGATRE-I EELASPém . Pas? for ummouncemem' of judamw‘? or: 0 (4 “S‘epi’embler! 200$ Sdl- ’ T. P. Sharma Judge Criminai Aaneai No.506 of 2004 APPELLANT: Ashis'h 5mm Versus . RESPONDENT: 5+a+e af Chhaff§saar§1 Criminai Aopea! No.5&2 .o‘f 20% APPELLANT: Vijav K. Lakra ‘ Versus RE5PONDENT: Sfafe 0f Chhc-Hisgar'h V f AND Criminai Apneai No.691 o'f' 2904 A APPELLANT/: e Vijay Kumar‘ Bariha Versus RESPONDENT: S‘rafe of C6. W/ 'HigH CQMZT G? CHHAm5§IA5RR E?LA5?U§ {Trimh’mi Annaai N0‘59é S; 2904 >3r‘esen’r: Mr. Dhiraj Kumar Wankhedz, munsei for “the apmilan? in Cr.A.No.506/ZOO4. £32m Arun Kochar! acumei for- The appeliant in Cr'.A.No.562/2004u Mr. ’Ravish Verma, coumsei far ibe appeiianf in Cr.A.No.6G£/ZOO4. Mr. Eushii Dubey. Evovfr. Advocm‘e wifh Mn Ravindm Agrawa? & Ma“. Rajasin D Rargan Sinhag Panei Lawyers far *he SfaTe/r'espondenf. {Criminai aggmais under Sewion 374 {2) of ‘r-‘ne Code of Criminai ?mced‘ur'ei, 1973} 5mqie Sanch: Hm‘bie Mr. TJ’. Shama, J APPELLANT: Ashish Sirs'hu, 5/0 R3; 51mm. agar; abau‘f {in Jai) 22 wars, R/o ?aéiba‘na‘r‘- Néche MehaEia, Ga? Pas? Rampur‘, RS. Kofwaii, Kor=%sa' Digit Karba {Ce-2'.) Versus RESPONDENT: S‘rafe of Chha??§sgar-h, Through OP. Rampur, 9%. KQ?WG§§, Korba, ms‘H. Karim i€.6‘) Crimana; Agaeas Na‘aw m; 2004 AFFELLANT: 13%3c‘y K. Lakr‘a! £10 Wifrus 'Lakra, aged 2Q {In $1? ‘ years, §fa Sem‘e? 4f829, Balm Nagan Korba (CG‘; 1% V Versus :RESPONDENT: 5fmfa of C?1¥1a?fisgwhg Thmugh Om‘past ‘ Emma: RE. Kwwaii, Karbzi, Esft Karba {ca} iéNQ Crimma'a famed Ng‘ém o”? 2994 APPELLANTI: Vijay Kumar‘ Bariha, S/o 225mm LGI, ageé {Accased psi‘sai‘l) abcu’‘u 2G year-s, R/o Bahim’ NiharEka, {Era Kai?) Chowki Rampur, RS. & DEs‘H. Ker-bu (Ca) Versus RESPONDENT: 5mg? of CE” Through RS. Chowki Rampur‘l IEDGMENT {Passed on 9 g *h5ep‘rember, 2008) Cr‘ANoEOéfZOM Wed by Ashish Sinhal Cr'.A.No.562/2004 fiied by Vijay K. Lakm cmd Cr.A.N0.60i/ZOO4 fiied by Vijay Kumar‘ gariha have been preferred againsf ‘rhe common judgmen? dafeo 13-5-2064 gassed in Sessions Triai No.375/20G3, fherefore, {hey are being disposeai mi by ‘3"?3is common Judgmem‘. 7{19512 appaais are direc'iwd against fhe Judqmenf of convic‘ricn and order of i sen'ienoe dafed 13—5‘2904 passed by “ine Addifionai Sessions Judge, Korba in @wgions Trml No.375f2G03; wharaby & whereunder horned Add3?ionai 5ession5 Judge affer- hoidEng fhe accused/oppeiSanfs guiify for commission of offence i under secnons 120-3, 397 me mm Secnan 34 of me ERG” Secfions 25 (2) & u 27 {2) o'F 'Fhe Arms Act, semenced each of Them fo undergo rigorous imprisonmeo? for sevm years £1 my a “fine of §23.3§OO/-, in defauif of paymem‘ of" fine fa furfiaer‘ undergo simple im‘orisommen‘l‘ for one year under Sac'l'iom 120-8 $1 397 read wi?h 3ecfion 34 of fhe I.?.C., and fa undergo rigorous imprisonmen‘x‘ for six momm {St pay a fine of Rs.500!—, n dofoui‘f of oovmen‘r of fine fo furfher undergo simpie imprisonmem‘ for fhree mom‘é‘xs under Seci‘ions 25 {2) & 27 {2) of fhe Arms Ac‘r. N25 The impugned Judgmen‘r is chaiienqed on i'he grouno 'i'no‘l' Wifhou‘i any evia‘ience regarding iden'l'ifioofion, memorandum Q seizure and eyewifness, ieorned ‘i’riol Cour? has convic‘red and senfenced The appeiion‘is in The aforesaid manner. I have neard Eearned counsei for fhe porfies and perused The impugned Judgmenf as also fine record of ‘H’ie ‘rrioi Court . Case of fi‘ae .prosecunon; in brief, is fhm‘ Vinod Kumor Dewangan {PW-1) was posfed as Cierk/Assisfanf amide—II in Woman & Chiid 3eveioomenf i’roiecf, Korbo, on 25—6-2903 he wen? fo Sfo‘re Book, III. Rumour Branch, Korba for w%‘%hdmwa§ of paymem of fhe empioyees of his Office aicmg wwh Shyamial Mahan‘i’ (PW-2}, Peon of ‘E‘iae smé Offmq ?hey received paymem' of $25.4‘30f351/~ in +fne demmimiions of Ps.EOQ/-, Qs.‘50/=-i Rs.lO/— & one rupee cams. He ken? fhe said mtmey in fife brJg & resin bag. Thay were coming back in The bicycie whici1 was driven by Shyamiai Mahala? {PW-2) and Vimod Kumar Dewangan (P‘; «Ii was si‘ifing on frag bicycie hoiding The money. When They reacimd near 9WD. Schaai They were resi'rained by one. iaii man on 'iihe pisfoi poim‘, he abused Them and éemanded fina money and aiso fiareaiened To kiii ihem. He pu‘i pis‘ioi over fhe i head af Shyamial and snafched The maney from Vinwi Kumar. Tws o‘i‘iger accused "e f i persens were s‘mnding by fiee side cf “rhe road on a moforcycie which was iii 3 sicmding pcsiiimi Ali fine Three accused ran away from ihe spo‘r by i'irie _ me‘iarcycie. Vinod Kumar Dewanqari <31 .Sisiyamiai Maham s'hcu‘i‘ed and irieci‘ia fciiow ”ran“ even may chase<§ f§1e amusem‘ persans up 1'0 same exi‘em, bu? iihe acauseci persmis abswnded fmm ihe spot ’\ ‘ Vines] iodgeci The EIR. m Poiice Quipes‘i' Rampur, Korba vide EXP-1 and on ihe 1(‘ basis m“ EXP—1 iiumbered FIR. was regisi‘zred virie EXP-23 Sia‘iemen’r of Vinad was recorded an ‘ii’ie same day. During fhe course of invesiigm‘ion, appeiicm‘i Vijay Bariha was faker: ima cusiodv and he made disciosure smiemeni' en l-?—2003 m‘ xi. aisou'i' 9‘15 pm: vide EXP-14 in which he has disciosed fhai’ Rs.50,0Q07— was ken? umjer a pi? in The iam‘ sii‘uaied in backside e‘f Ashish Sinha‘s house and his w cis’mes are ii'i a boxi Affer‘ digging au‘? The iand, money of RsiEOQOO!‘ & (me csun‘rry mede pis‘i‘ci were recovered‘ a? ihe iesi'ance af Vijay Bariha vide EXP—15 and his cia‘ihes were. seizes: vide EXP-1e Abeeiicm‘i Ashish Sinhcx made disciosure saiemeni‘ Vida EXP—18 regarding Rs.1,501OOO/- & his ciai‘hes Thai “ihe same were keg-3‘ under a pi? in i'he iand siiua‘reti a? backside of his house. same were seized a? i‘ais ins’mnee vide EXP—7. Appeiicm? Vijmj Lakm aiso made disclosure si'ai‘emem vide Ex.P-3 regarding RsZ iakhs, counfry maée pis?ol dong wifh car‘iridge é siofhes whE :3’1 were keg Lmdar a gif in The iand simai'ed af bacskside 6f Hqe muse cf Askis§a Siaha, $ame were recovered a? his insfance Vida EXP-4‘ Ofher ca— aacuseé who have been a¢quiffed bv fhe Triai Cour‘r have aiso made clisciosure sTaTemenf and on The‘basis of 'rheir' disciosur‘e sm‘i'emenwLarficies wera r‘ecevered a? 1-heir- insfance. Recovered counfry made pisfds were examined vide ExPwEl. Spa? map was prepared vide Ex.P~22. The accused persoris were iar‘rwwd arm sfammen‘i’s 5f wi‘x‘nesses under Secfion 161 of fine Cr.P.C. were § recorded. 7. :Em‘ri'?icafian parade wes conducfea‘ inside “ihe jaii vide Ex.Pn2 in which d3 We lfhree appeiian‘fs were Eéen+€féed by Vinod Kumcr Dewanga‘n (PWnL) & SWamiai nain‘m (PW—2).“ $ 8. ‘Af‘ier com'pienon of invesngm‘ion, charge shee’r was fiied before fine Chief: ‘Eudiciai Megisfm’re; Korba! who in Turn commi‘h‘ed The case To fhe Com"? of Sessions Judge.) Korba from w%ere §earned Addh‘ianai Sessions Judge, Korba received i‘he case on Transfer for friai. 9. in order “h: es‘i'abiisé’i i'he guéi‘i' againsf fhe aecused persons. The prosecui'ion has examined as many as 14 wEi.esses. Ste?emenfs of fhe occusea‘ pereons were. recerded Lmder 5ec1’ioa 313 of fhe CrRC. in which “:‘hey have denied ihe circumsmmes apeearing agains‘i‘ ‘ihem and fiqey pieaded innocence éi feise implied-ion. .x” e" 10. Z? is argued on benaif of ‘ihe appeiian'rs Thai- ?heir names have no? been memioned in The FIR. whieh was regisi'ered wifhin haif an hour o‘F ‘ihe incident The inciden‘i has no? been wi‘inessed by any person. The appeiiun‘is have been renown ‘i’o ‘ihe wifnesses prior +0 {he iaem‘ificaiion parade. Memorandum a: seizure have no? been supporfed by fine Pcnch wi‘i'nesses. Ocuiar evidenee adviuced by "r‘ne prosecution does not? worranf convic‘iion agains‘i ihe oppeilonfs and convic‘Hon under Secfion 397 read wi“?‘n See'fia‘n 34 of €‘he IP‘C. is m? susfaimbie m iaw. The prosecufmri hag no? adduce& any evidenca 1‘0 canned" fhe aygzeiian‘irs wi??? irha: crime in quesfitm. Thar-e is no evidence fa fine effecf fha+ ou‘? of The fhr‘ee appeihnfs who had used ‘a‘ha dea§iy weapons. In absence of; sbecific e¢lrier1ce The appei ems nre ac? Imbte for conwchow uneer Sechon 397 read mirth Sad-ion 34 of fhe EPL‘. Learned counsei for i'he appeiian‘is pieced reiiance in the maii‘er of Narsi v. 1 gigi'e 9f Hgrygml in whmh H hes been ‘ nffany independent wifness a? fhe fimef an fhe basis of recovery of weapons, ‘ offence under Sec‘don 25 of The Arms Ac? is noi‘ proved Learned counsei aiso 1 pieced s reiiance in fhe ma'Her of $1‘a‘ie of Modhya Prodesh vi Chainru @ Bhagwgndgg gi’c ei‘r m wmnh :1- hgs been held Kw 14m Anex Court flan? absema 1 ‘ oz .i any cfescripi‘ion 9f The misareanfs whose names are no? men'i‘ioned in fine F.I.R. ‘ is fetai ‘ro fhe orcsecufion. ‘ e id by '?he Apex, 59m”? mat in absence ;w 12. Learned counsei for ‘ihe aopeiianis have furiioer piaced reiionce in ihe mai‘ier of ?omm§ee? $ingh vV 5%e?e of Regegeees in wh€oh +he Qejee'nnan High C.oum‘ held ifi'mi' Seciion 397 of The IRC. neia‘i‘es oniy 'i‘o offender who Gc‘i'ualiy uses deadly weapon himseif and no person can be oonvicfed' wifh fine aid of Seciion 34 of The I.P.C. for offence under Seci'ion 397 of: fiae I.P.C. w 13. Learned counsel for fine appeiian‘is have aiso piaced reiiance in ihe mai‘rer of Phooi Kumor v; Deihi Admioisi’re‘iim" in whioi-i i’r has been held by the Aeex Cour? The? “Where an accused a? ‘i'i'ie “iime of commi‘i‘i‘inq robbery, carries in his hand a knife open ‘i'o ‘ii’ie View of ‘Hqe vioi‘ims ii‘ is sufficienf To friqhi'en or r ‘ierrorize 'i'hem and he can be convic‘redtunder Secfion 397‘ Any o'i‘her overi‘ ac‘i' *A ‘? 33 LR 1999 Sf, d$4 4F» ' T'?E—’ Q 1975 SC 905 007 (3’) (‘rimes 241 (SC) v x l vi l i. kl l .21 f\ ’ ‘ such as! brandishing of fhe knife of musing grievous mr‘r wifh if is no? necessarv ’m bring The offender wi‘rhm *rhe ambit of Secfion 397". 14. On fhe of‘ner‘ hunt}, fha Judgmem‘ is suppor‘red' on behaif of fine Side! i~e$por1dent )\"/ i5. The prosecu?ion has adduced ocuiar {direcf} evidence arid circumsfam‘iai evitienca ‘ To prove The guih‘ againSi‘ ihe appeiian‘rs. In “ii‘ie insinn? case, Vihe pmsecufion is ‘ raquired fa esmbii$h ‘ihe faiiowing ingredien'is: — A .L, i (I) The appeiianfs had sm‘ichw ‘H’ze momy ”from \a’inorj Kumar Dewangan (PW—1): :(‘E‘Vfhe apgeiicmi‘s had useiii criminai fo‘rce againsf Vinad Kumar' Dewangm (PW—13' & Shyamia‘i Makari‘i' {PW—2) a? ‘ii‘ig fime of snaichim ihe monev; i (iii) 'gii‘e appeiianjs had usw cieadiy weapons wi'iiie commiir‘iing The aforesaid aci‘; § (iv) ‘i‘he a9pe§iani$ haci pu‘? camelaimn‘i Vinod Kumaa"! Dewanqan (PW-1) & Shyambi Mahan‘i {WV-2) in fear of death a? the fime of commission 0‘? offence; (v) i‘he. aopeiion‘is were found in possession of fire arms; and itgvij *r'hz Disi'r-ici' Mogisi'r‘o‘i'e has accordeo sami'ion for prosecufioa of fhe accused persons os required Wider Secfion 39 of fhe Arms Ada 16. In order fo appreciafe fine confenfions of fhe por'i-ies, E have examined fhe evidence adduced' by {he prosecufiom. Vinod Kumar‘ Dewcmgan (PW-1) who is compiainanf has sfo‘fed in his evidence fi'iof on f‘me d'afe of incidenf he aiom wif3a 5hyamiai Maham (PW-2} wen'r fa S‘i‘afe‘f£unk for encashmenf of The amounf of ‘ '\ gay of the empioyees, he received Rs430,351/— from fhe Bank, kep‘i‘ fhe some in jufe boo (Se resin bog, when fhey were coming book fo fheir Office by ‘i'he cycie (and whey; fi1ey reached near PENDA school. fhev were restrained bv one foii man who was having, counfry mode oisfoi, he abused fiaem and poim‘ed' fhe pis‘i'oi on fhe head of Shyomiai and fhreo’iened To kii! fhen‘i. Ofher fwo accused persons were v‘ fending by 'i'he side of road on a mofor‘cycie which They had aiready s'iorfed'. On ’ i i ‘ ’r'ne oisfoi point fi‘ie said Toii man snafched the fwo bogs from fhe compiainanf. ’ The compioinon? and his associoi‘e feii eown from fi‘ie cycle. Thereaf‘i'er, oii ’rhe 4 ;4.“ i‘L ?"m~ee appaiianfs ran away in ‘E‘he mator'cycie. This wifness & Shyamiai fried To ci'1a$e Them cmé fhey shou‘red, IGS‘iiy; “they weni‘ 'to iodge ‘i‘he reporf a? Poiice Chowki Rampur vide FIR. Ex.P~l and on The basis cf EXP-1, numbered FIR. was regis‘rered Vida EXP-23. He has also s‘rafad Thar;- af‘rer few days he was caiied by #3 Poiice Officer, than he was? insise The Ja§i dong wi‘l‘h Shyamaai whera he idenfified The Three ameiiams name§v. Vijmi Lakr‘a, As‘nish Sinha 5L Vijay Bariha who had commif‘i‘ed offeme agains? ”them vide idenfi‘fica‘fio‘n garade EXP-2. v l 17: 5hyamiai Maham {PW-2) has s‘x‘afed in his evidence The? he was wi‘l’h Vined Kumar " §e€vungan (PW—1) a? we Time Qf The incieem‘ and Wkiie They were refurning from ; “rhe aank wifh money a‘? Rs.4:30,351/—, he was driving The bicycie Vinoci Kumar s Dewangan was sgTTing on The bicycie hoiding money in his hands He has fur-Ther sTaTed in his evidence ThaT appeilanT Vigay gariha poinTed counTry made pisToi upon him and afTer abasing Them; he snafched The money from Them and ran away in The maTorcycie. They Tried To chose The accuseti persons and IasTiy They wen? Te- The Poiice STc‘Tion To hepom‘ The moTTer‘. He has fur‘Ther sTaTed ThaT he has ideyzTiTied The anpeiian‘i‘ inside The jail. l \ L ‘ 18. 5ukuisoi Toppo {PW—3) & Jéikumar Shukia {9W4} are Panch wiTnesses. They have mT supaorTed The case of The @iosecuTion, buT They had admiTTed Thein ségnm‘ur‘es over The disciosure sToTemenTs anci recovery of arTicies. They have been cross-examined oT iengTh by The oi‘TosecuTEonl buT They have noT supsorTed The Case OT The prosecuTion and They have noT exoiained as To why They have signed on The documems of disciosure sTaTemenTs and seizures. i J 19‘ B.K. tokr‘a (PW-7)! Ad'diTionai Tahsiidar, Jaijaipur, hos sTaTeoi in his evidenoe ThaT V he has conduc'Teti idenTificoTion in which Vinod Kumar Dewangon {PW-1) & Shycmiai MohanT (PW—2) have idenTiTied The oppeiianTs by saying ThaT These z :oensons have oommiTTed The robbery. V '\ 41f; 20. Sunii Kumar Pandey {PW-S), Cons‘rabie, has sfafed irs his evidence 'i'ha‘r §we has gsrezz'ucad ”me firm arms for examina‘i’ioa vide EXP-20 and rebor‘r of fE’m same is EXP—21. Likewise, 6ra§1an Singh Rafhore {PW-9), A.5.‘I., has sfm‘ed in hi's evidence ‘%ha‘? he has regisfereé ‘rhe FIR. EXP—1 and prepared The si'fe map EXP— 22. Head Consfabie Jugai K§shore (PW/~10) has sfm‘ed in his evidence fha? he has examiaed ?§ae pisfois and preparee fhe report ExP-Zl. Vidhan Dave (PW- 1) has inc? suppom‘ed fhe case of 1‘he prosecu‘rion. v W f 21. (1?. BhcrH (PW-14), Inspecfor, §s The 1nves?iga?ing Officer of fhe case. He has lg rafi'é‘garicaiiy sm‘red in his evidence f'ha‘r afa‘er #aking The accused persons info cusi‘edy, he has inferroga‘red fhem. Appeliam Vijm/ Lakm has made disclosure sfm‘emenf vide ‘E$x.P-3 a'nd' on fhe basis of fhe said disciosur‘e sia‘iemeni. Rs.2 iaki'is. coun‘ir‘y made pis‘ioi aiang wi’rh car‘fridge & cioi'hes were recovered fmm fhe pi‘i si‘iuai'ed in ihe baakside oi; iiie Muse af apeeiiani Ashisfn. Sinha vide ExsP—4 & P47, af his insiance. Anpeiianf Vijay Bar-iha has made disclosure sfai‘emeni vide EXP—l4 and on Tne basis of ihe said discicsure sfa‘iemem‘, Rs.50_,000/—, ciofhes <Si munir‘y made pis'ioi have been recovered vide ExsP-E & P—lé! a’r his insfance,’fr‘om a pi‘i' a? backside of- ‘i‘he house of apoeiiani Ashish 5mm. Appeiiam‘ Ashish Sinha ims made disciosur-e s-iai'emeni vide EXP-18 and'on V ihe basis of The said disclosure siai'emen‘id money & cloii‘ies have been recovered A vide EXP—7, a? his insiance. 2.2. In ihis case, Panch wi'inesses have no'i supporied fine case cf ’rhe orosecu‘iion. Nei‘iner ‘i‘ney are s’rock wi‘inesses nor fhey have chalienged ‘i'iae case Thai They have signed The paper's under ihreai or pressure or o'i'her'wise. This shows Thai i‘hev have concealed ihe fru‘l’h. 5 AER i996 3C 2943 " AIR 2001 SC 2420' Z3. Now, fie-e evidence of CAP. Bho‘l‘f (PW-14), Envesfigo‘l'ing Of§§ceri oniy remains for consideration on 'f'he pom? of ‘iisciosurz sfafemen'rs and recovery of ar'iicies on fhe basis of fhe disc§0$ure sfafemen'§‘s; aiapreciafe fhe evidehca of PoHce Officers, some corroborafion is necessary from independenf soumes. CJP. Show? {WV—14) has sfa‘fed ir: his evidence Tho? ‘rhe ‘ r Hz§1e no? suppormc‘i fhe case of fha orosecu‘rion. The Poiice Officer has ”Med his A corrobora‘tion 23v iadzpenden‘!‘ $ourcas: his evioence canno‘r be discarded m ‘i‘he §lf i around fho‘i' he is a Police Officer and inferesfed in “the ou‘i‘come of fhe case In i fhe mg‘h‘er of Anii giies Améye gaseshiv Neadesker v; Sfe‘é'e of Moheroehi‘rsb, i‘he Apex Courf has heid The? “more is no ruie of iaw The? ?if:e evidence of goiice efficiais has "ro‘rbe digcardeo or Thm‘ if suffers from some inheren? infirmi‘ry. Prudence: however! requires ’rhof fhe evidence of fhe poiice officiais, who are interesfed in fhe oufcome of a‘ine resuif of ‘ihe caseJ needs io be carefuliy scru‘i’inized ono independenfiv oopreciofeo‘. The poiice officiais do no'r soffer V. from any disabiii‘iy 1'0 give evidence \and ‘rhe mere ‘Fac? fine? They are poiiee officiais does no? by ifseif give rise *i'o any ooub‘? abom' 1'heir cre&i?wor+hiness". x Fur+her in the mower of RP. gee-mo w $€ote in? Kemioi’ ‘ihe Apex Cour? has gaioced' reliance on 'B'he'uncorrobora‘red ‘i‘esi‘imony of fhe Poiice Inspecfon in fine case of possession of drug of smaii quanfify underkhe Narcofic Drugs and Psyeho‘iropic Subsmnces Ad, 1985. I 24. Corroboro‘i‘ion is no? a ruie of iow, buf if is a ruie of prudence. In order 'i'o i appeiionfs have mooe disciosure sfo‘femenfs before fhe independenf wifnesses i {mo orogier‘iies have been recovered a? fheir insfance. Bu‘i' f‘ne ?anch wifnesses ' ievei besf for caiiinq fhe wifnesses of fiqe iocaiify, bui- in absence of 25' CP. BM‘f? fin/’44} has cafegor'icaliy s‘rafed' in his avidenca ‘Fnaf me appeiianw have made tiisciosur-e sfawmen‘i's and am *r'ha basis of Their disclosure s‘mi‘emerfrs, money, ciO‘rhes & counfry made ‘pis‘rois were recovered from fhe anpeliants. M} The ‘g‘hree appeiian?s are’sfuden‘k. They have no? smi'ed any‘rhing in ?%1e.ir= smfemenfs recorded under Sec?ion 313 Qf The Cr'.P.C. i'haf “fhey were having any scarce of income Q‘F such a hage amoun‘i of Rs.50,GOO/’—, Rs.l,50,000/— & Rs.2,0Q,OOQ/-. They have aiso no+ efai‘ed anyi'hing ‘i‘hai‘ as is why {he huge ztmzsunf of money was under ihe hiivin The iand7 sii‘ua‘ie& ai‘ backside of i'he hcuse (if appeiiani‘ Aehish Sihha or how fhey came fa know iha? such a huge ameun? of i‘k’f‘. i money was keg? under ‘i'he 3%? In frhe absence of (my exbianai’ion Offered on i bfehaif of ‘ihe ameiian‘is arid an i'he basis of ‘ihe evidence of CP. Bha’rf {PW-14) g viihich is frusi'wor‘rhy and inspires comiidence, ’r'ne oniy inference can be drawh fhcd' fhe appeiiams were in possession at? huge amoun‘r 01‘ money wi‘ihoui‘ (my expianai‘ion. According i0 Vises Kumar‘ Dewcmgan {PW-1) & Shyamiai Mahan‘i‘ {PW—2) fhe robbery has been commif‘ree on 25-6-2003 and fhe recovered amoun‘i‘ was found in possession of ‘ihe appeiian?s on 1-7-20Q3 wi‘ihin seven days of fhe insiders-o The appelian‘is have nof offered any expianai‘ion i0 ihe some. Wine demmii’io'rions of ihe currency oo‘i‘es si'ai‘ed by Vinod Kumor Dewangon {PW—1) x: oiso faiiied wii‘h ihe money recovered froni fhe possession of The appeiian‘is. 26. As regards fhe question of ideniifioafion, Vinoo Kumar Dewangan (PW—1) oi Shyamioi Mohoni‘ {PW-2) have cafegoricaiiy sfo‘i‘ed in ”(heir evidence i‘ho‘i‘ ihey have idenfi’fied 'i'he apoeiion‘l's in Joii and Drior 'Iro ideni‘ifica‘rion ‘rhey have nof seen +he appeilcmis except a’r The Time of incident Defence has cross-examined fhese D wiinesses ai' ieng‘ih and fried i0 show some discrepancy in fheir evidence, bu‘i’ defence has no? been obie +0 eiicif anvihingaon fhe poini‘ of ideniifica‘iion in fheir evidence. 'Idenfi‘Ficai-ion parade is aiso supporied by B.K. Lakra (PW-7), Addii‘ionai Tahsiidar, Jaijaipur who has caieqoricaiiy sfai-ed in his evidence fhai 11 he has conduc‘red 'rhe identificafion parade in which Vinod Kumar- Dewangan (PWm 1) & Shyamial Mahcmf (PW-2) 3'1ave idemified ‘rhe appeilanfs by saying ‘i'haf Jrhasz are f§1e yersons who have commif‘i-ed The robbery. Shyumiai Mahani— (PW-2) has soecificaliy sfafad Thaf’rhese fhr'ee appeiianfs have commi‘Hed fhe robbery and out of f31e Three apneilun’rs, anpellanf Vijay Bar-iha; who is a fuii man, has poinmd pisfoi on him, snatched fhe money and ran away wh‘h o’rher Mo oppeiiarrm Defence has no? been abie ‘ro eiicif any circumsfance from fhe‘evidence of Vinod § Kumor Dewonqan (PW—1) & SHyamiai Manon? (PW-2), which discredifs Their evidence on fhe poin‘l‘ Tho? fhe presenf appeiion‘l‘s are no? ”:he accused and fhey "e ’5 ‘ are giving si’a‘remenfs on {he basis of assump‘iion. The evidence of Vinooi Kumar‘ Deévonqan (PW-1), Shyomiai Mahanf (PW-2) & C.P. Bhafi' (PW—14) inspires confidence Thai ’rhe appeliani-s are ‘rhe persons who have commii‘red The robEery 1 in quesiion. Af ‘fhe Time of commission of robbery, appeiiam‘ Vijay Bariha has used The counTry made pisToi which is o aeadiy weapon. ;a 27. AfTer ooyreciaTing The enTire evidence available on record, ieor‘ned Triai CourT has convicTed The apoeilanTs for commission of offence under SecTions 120-3, 397 read wiTh SecTion 34 of The I.P.C.l SecTions 25 (2) & 27 (2) of The Arms AcT and senTenced each of Them in The aforesaid ,V manner. 28. The prosecuTion has noT been abie To adduce evidence To The effecT ThaT There was any conspiracy for commission of‘The offence. CounTry made pisTois have been recovered from The aopeiionTs and They have been convicTed & senTenced for commission of offence under SecTions 25 {2) & 27 (2} of The Arms AcT. Possession or iiieaai use of arms is punishabie under SecTions 25 & 27 of The Arms AcT, buT for prosecution under The Arms AcT reiaTing To fire arms, previous sancTion of The DisTricT MagisTraTe is The condiTion precedent In This case, The prosecuTion has noT adduced any evidence To The effecT ThaT The DisTricT MogisTraTe'ha’s accorded any saneTion for prosecuTion of The offence reiaTing To i A fire arms. In fhe absence of any sandion from ‘the Dis‘h'icf Maqisfrme, convicficn 64 senfences imposed upon fhe appeihn‘rs under- Sac‘i‘ions 25 é: 27 of; fhe Arms Ac? are no? susfainabie. . For The foregoing reasons, conviction & serrfences imposed upon a‘hz appeilan‘m under Sec+ions 251231 27 (2) cf fhe Arms Aci- & 120—8 of fiwe I.P.C. are nof susfainabie. Similarly, convicfion & sem‘ences impased upon 'fhe appeiian'rs uncfer Seci‘ion 397 read wifh Secfion 34 of The I.P.C‘ are aiso no? susfairiabie. Howevar, on fhe basis of fhe evidence adduced by The proseou‘iionl fhe aci‘ of appeiian‘i‘s ‘ Viiav Lakro & Ashish Sinha is ounishable under Seci‘ion 392 {if The I.P.Ci and “i‘he ac‘i' of appeiian'i‘ ViJoy Bariha is punishobie under Secfion 397 of 'i'he I.P.C. s . Consequen‘riy, fine appeals (Cr.A.Nos.506/ZOO4, 562/2004 & 601/2004) are porfiy aiiowed. Convicfion & sem‘ences imposed upon ‘ihe appeiian‘is under Secfions IZO— i 3, 397 read wii‘h Seci'ion 34 of The I.P.C., See'i'ions 25 (2} dz 27 (2) of fhe Arms Ac? are sef aside and The appeiian‘is are acquified of The said charges! insfead ‘ihereof, appeiianis Vijay Lakra 61 Ashish Sinha are convici‘ed under Sec‘iion 392 of fhe I.P.C. and appeiian? Vijay Bariha is canvicied under Seci‘ion 397 of 'i‘he I.P.C. Taking in‘i'o considerafion, The manner in which fhe appeiiani's had commif‘i‘ed i‘he robbery in question and‘ioofed huge amouni' of Rs.4130,351/—1 each of “ihem are sen‘i‘enced 'i'o undergo rigorous imprisonmenf for seven years & pay a fine of Rs.3,000/-, in defauh‘ of payrr‘fem- of fine fa fur‘iher undergo simple imprisonmenf for one year. The amoun? of fine deposi‘ied by each of fhe appeiianfs for convic‘rion & senfence in resf of ‘ihe offences shaii be refunded To fhem forfhwi‘rh. ‘ T. P. Sharma i Judge a ‘4 ‘9-2G68' ‘ l Sdl-