( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 214 OF 2009 1. Pawankumar s/o. Sibban Kewat .. Appellants Age 21 years, Occ. Business, R/o. Sonuwali, Tq. Nevtermer, Dist. - Maharajgunj (U.P.) 2. Radheshyam s/o. Ramvilas Kewat Age. 24 years, Occ. Business, R/o. Gram Chakra Post Dhoriya Bazar Tq. Chilwantan Dist. Gorakhpur (U.P.) At present – Sainagar, Koliwada, Tq. Vasai, Dist. Thane. 3. Vijay s/o. Ganpat Jadhav Age 25 years, Occ. Business, R/o. Shivtanda, Tq. Kannad, Dist. - Aurangabad At present – Koliwada, Musgali, Vasai, Tq. Vasai, Dist. Thane. Versus The State of Maharashtra .. Respondent Shri N.S. Ghanekar, Advocate for the appellants. Shri B.V. Wagh, A.P.P. for respondent/State. ( 2 ) CORAM : P.R. BORKAR,J. RESERVED ON : 24.11.2009 PRONOUNCED ON : 27.11.2009 J U D G M E N T : 1. This is an appeal preferred by three accused persons who are convicted, in Sessions Case No. 229 of 2006, decided on 10.02.2009, by the Assistant Sessions Judge-4, Aurangabad, of offences punishable under Sections 394 read with 34, 397, 342 read with 34, 365 read with 34 of the Indian Penal Code (for short “I.P.C.”) and under Section 3 (25) of the Arms Act. Each accused/appellant is sentenced to suffer rigorous imprisonment for eight years and to pay fine of Rs. 1000/-, in default to suffer rigorous imprisonment for one year for each of offences punishable under Section 394 read with 34 and 397 of the I.P.C. For offence punishable under Section 365 read with 34 of the I.P.C., each of the accused/appellant is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months. For ( 3 ) offence punishable under Section 342 read with 34 of the I.P.C., each of the accused/appellant is sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 500/-, in default to suffer simple imprisonment for three months. For offence punishable under Section 3 of the Arms Act, each of the appellant/accused is sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for three months. All substantive sentences are directed to run concurrently. 2. Brief facts giving rise to this appeal may be stated as below :- . P.W.18-Sk. Niyaz Mohammad is resident of village Miyagaon Karjan, Tq. & Dist. Baroda, Gujarat State. He was driver on Trax Jeep No. GJ-06-AA-4358, belonging to one Vallibhai Musabhai of village Karjan, Tq. Baroda. On 31.05.2005, he had taken relatives of his master in the Jeep to village Karanja, Dist. Akola. He reached Karanja on the next day. Thereafter, after leaving the relatives at Karanja, he was to return back and came to Khamgaon at about ( 4 ) 5.30 p.m. When he was near Khamgaon bus stand, four unknown boys standing on the road, gave signal to stop. Those boys were of age group of 20 – 22 years. They said that they had missed bus and wanted to go to Nasik and requested for lift up to Nasik. So, P.W.18-Sk. Niyaz allowed them to board the Jeep and they travelled for a distance of about 10 kms. At that time one of the boys told him that he wanted to pass water and he should stop the vehicle. Accordingly, the vehicle was stopped. Thereafter, all those four boys alighted from the vehicle and came back after five minutes. Two of them sat on the back side. One sat on the cleaner seat and forth unknown person came near him and told him that he would drive the vehicle and put pistol on the head of P.W. 18-Sk. Niyaz. Thereafter, that boy dragged P.W.18-Sk. Niyaz to the cleaner seat and then took the vehicle in a field, where hands and legs of P.W.18-Sk. Niyaz were tied with rope and he was kept at the back side of the vehicle. They gave him threats of killing, in-case, he attempted to shout. Then they proceeded in the jeep. It was about 11.30 p.m., when they stopped at a Dhaba. They took dinner in the vehicle itself. ( 5 ) 3. It is further prosecution case that thereafter the Jeep was taken to a petrol pump. There a servant was asked to fill the tank and thereafter that person was assaulted. The persons at the petrol pump were compelled to surrender cash amount. They were locked in the cabin. Thereafter, the jeep was taken to another petrol pump and thus in that night said four boys robbed persons at five petrol pumps and robbed cash amounts in all totalling Rs. 1,20,000/-. Due to continuous running of the vehicle, the engine of the Jeep became hot and the jeep stopped. At that time police jeep came and on seeing the police jeep, the four boys, out of whom three were identified later on as accused Nos. 1 to 3, ran away. P.W.18-Sk. Niyaz was in the jeep. Police arrested him. He disclosed the real incident to them. Police took search of the jeep and found one revolver, six cartridges, one mobile phone, one wrist watch, red chilli power, a bag and cash of Rs. 10,550/-. Police attached those articles, recorded statement of P.W.18-Sk. Niyaz. Initially, P.W.18- Sk. Niyaz was also arrested as one of the accused persons, but lateron, after being satisfied with his innocence, he was cited as a witness. On that night robberies were committed at five petrol pumps situated at Khultabad, Deogaon Rangari, ( 6 ) Verul, Galle Borgaon and Hatnoor. All the petrol pumps are on Aurangabad – Kannad road. 4. It is further prosecution case that P.W.4-Ambersing and his son P.W.19-Arjunsing, who are agriculturists having their land at Pachpirwadi, Tal. Gangapur, heard sound of falling something in the well at about 3.00 a.m. on same night. So, both of them went to see what was the matter. In the light of torch, they found one person fallen in the well and begging for help. So, P.W.4-Ambersing and P.W.19- Arjunsing, who were father and son respectively, pulled out that person fallen in the well with the help of rope and stick. He was accused No.1-Pawankumar before the Court. He was injured and therefore he was taken by P.W.4-Ambersing and P.W.19-Arjunsingh to hospital of P.W.5-Dr.Sarla Patni. Accused No.1 told P.W.5-Dr. Sarla Patni that while he was running away on seeing police, he fell in a well and got injured. When P.W.4-Ambersing and P.W.19-Arjunsing had taken out accused No.1, they found few bullets, one mobile phone, and cash of Rs. 1500/- in the pocket of clothes of accused No.1-Pawankumar. When accused No.1 was being treated by P.W. 4-Dr. Patni, police came and P.W.19-Arjunsing told about ( 7 ) taking accused No.1 to hospital of Dr. Patni. Police arrested accused No.1 at the hospital of Dr. Patni. Police attached the mobile phone, bullets and cash amount, which were found with accused No.1 under panchanama. They arrested him. The information given by accused No.1 led to arrest of accused Nos. 2 and 3, who by that time were arrested by Thane Police in another crime. According to police accused Nos. 2 and 3, led police to bank and withdrew cash from bank account and the same was attached as cash from those accused. But, that would not be evidence of commission of crime. 5. Immediately after robberies at first and second petrol pumps, police were informed and police had come in search of the persons. On that night appellant No.1 was arrested. Police recorded statements of the persons who were present at the petrol pumps and who were also witnesses to the incident. After arrest of accused Nos. 2 and 3, identification parade was held. Main evidence in this case is of P.W.14-Sangita Sanap, who was then working as Tahsildar and who had held test identification parades. Police had also drawn spot panchanamas. There is also injury certificate of accused No.1. Finally charge-sheet was sent ( 8 ) to Court. Three accused were put on trial. In all 24 witnesses were examined. Ultimately, the learned Assistant Sessions Judge has convicted and sentenced the accused/appellants as aforesaid and as against the same, this appeal is filed. 6. During evidence the factum of robberies and user of the jeep by the culprits is not seriously challenged. Even during arguments before this Court, it is the identification of the accused as persons involved in the crime that was mainly challenged. It is also argued that the offence punishable under Section 397 of the I.P.C. is individual offence and there is no evidence about the same. 7. Heard Shri N.S. Ghanekar, Advocate for the appellants and Shri B.V. Wagh, A.P.P. for respondent/State. Both have taken me through the entire record. 8. Main evidence is of P.W.18-Sk. Niyaz, who is examined at Exh.98. He has stated the story disclosed in paras 2 and 3 above. It is not case of the accused/appellants that in any way they were knowing P.W.18-Sk. Niyaz prior to ( 9 ) the incident or that P.W.18-Sk. Niayz has any reason to depose falsely against them. P.W.18-Sk. Niyaz is resident of Gujarat State; whereas appellant No. 1 is resident of Maharajgunj district, (U.P.) and appellant Nos. 2 and 3 are resident of Vasai, Dist. Thane. Statement of P.W.18-Sk. Niyaz was recorded by Special Executive Magistrate, when he was under arrest and that statement is proved by him at Exh. 99 and it is consistent with his statement before the Court. It is true that initially police did suspect him as co- accused with the appellants. He was arrested and was in police custody. Thereafter, he was in jail along with accused/appellants. So, identification by P.W.18-Sk. Niyaz in the identification parade has no much value as it is rightly stated that as admitted by P.W.18-Sk. Niyaz in his cross-examination, he was in jail for 2 to 2 ½ months. Police had arrested appellant No.1 – Pawankumar on the next day of the incident. Both were in the police custody. Police arrested accused Nos. 2 and 3 and they were also in custody with him. P.W.18-Sk. Niyaz was with all three appellants in jail for about 2 months and thereafter he was exonerated from the crime. So, the identification parade has no value, but this witness has stated that all the three ( 10 ) accused before the Court are same. He did identify accused No.3-Vijay as the person who had given him threat with pistol and who was driving the jeep. His cross-examination shows that he was also knowing accused Nos. 1 and 2. Absolutely, there is no reason to disbelieve evidence of P.W.18-Sk. Niyaz. He had opportunity to see all the three accused persons, that too for a considerable period in the jeep. Not only that, he was with them even after arrest. So, absolutely, there is nothing in the deposition of this witness, which raises any doubt regarding his evidence. 9. So far as accused No.1 is concerned, there is also evidence of P.W.4-Ambersing and P.W.19-Arjunsingh at Exhs. 34 and 100 respectively. Both of them have identified accused No.1. Both of them stated that they had taken accused No.1 out of well. Accused No. 1 was having bullets, mobile phone and cash amount with him. Accused No. 1 was injured. Evidence of P.W.5-Dr. Sarla Patni clearly shows that accused No.1 was also brought to her. He had sustained injury on head due to fall in the well and the patient had disclosed her that police were chasing him and while he was running, he fell into the well. While giving treatment police came to ( 11 ) the clinic and took him away. P.W.5-Dr. Patni said that she cannot identify the patient to whom she gave treatment and refused to identify accused No.1, may be because she is a lady doctor and does not want to incur wrath of criminal, but P.W.5-Ambersing and P.W.19-Arjunsing have identified accused No.1 as the very person to whom they had taken to P.W.5-Dr. Sarla Patni and who was arrested by the police. Finding of bullets with accused No.1 clearly links him with the crime. It is not say of accused No.1, if not in present crime, he was involved in any other crime and so he was running away on seeing police at that night. It may be noted that he is the person who is from Uttar Pradesh and he is taking defence of total denial. It is for him to explain why he ran away on seeing police and what he was doing at Panchpirwadi near house of P.W.5-Ambersing. So, the above said evidence clearly establishes complicity of accused No.1 in the crime. Evidence of P.W.18-Sk. Niyaz, P.W.4-Ambersing, P.W.19- Arjunsing and P.W.5-Dr. Sarla Patni has connected accused No. 1 with the crime. However, there are also other eye- witnesses, who have identified all the three accused persons and who have spoken about the robberies committed at the various petrol pumps. ( 12 ) 10. P.W.3-Murlidhar Kadam, examined at Exh.31, stated that he was working as a Manager at Pralhad Auto Petrol Pump, situated at Khultabad, on Aurangabad-Dhule highway. On 01.06.2005 at about 3.00 a.m. he was sleeping. He was accompanied by Ganesh Dalal, Bhagchand Atre and Santosh Wagh, who were his co-employees. On earlier day he had handed over cash collected till 9.00 p.m. to the owner of petrol-pump and thereafter in between 9.00 p.m. to 12.30 a.m., amount of Rs. 27,364/- was received. The amount of Rs. 350/- was with Santosh Wagh. It was to be handed over to the owner on the next day. At 3.00 p.m. a white jeep arrived at the petrol pump. There were six persons. One of them alighted for getting diesel. He woke up Dnyaneshwar. Dnyaneshwar woke up P.W.3-Murlidhar. Others from jeep also got down. They assaulted the persons at the petrol pump with kicks and snatched Rs. 350/- from Santosh and threatened P.W.3- Murlidhar with revolvers in their hands. Three of them had revolvers and remaining had choppers. They compelled Santosh Wagh to open door of the cabin. They snatched keys of drawer from P.W.3-Murlidhar, and took cash therefrom. While going away, they cut off telephone connection and threatened them ( 13 ) that if they shout, they would fire. Then they closed door of the cabin and left confining them in the cabin. They watched the accused going away from the window. Thereafter, P.W.3-Murlidhar lodged complaint with police, which is proved at Exh.32 and it is treated as F.I.R. in this case. 11. Said F.I.R. is consistent with his evidence. It is specifically stated in the complaint that there were no masks or covering of faces and therefore it was possible to identify culprits. It is stated that the person with revolver was having age of 25-30 years. He was slim with greenish eyes. He was fair by complexion, having height of 5’5”, wearing sky blue half shirt and black jean pant. Person with knife was about 45 years, who was also slim. His left eye was bigger. He was wearing lining shirt and blue pant. He was speaking in Hindi. Other three were in white clothes between 25-30 years and fat and dark. Out of them two had revolvers. P.W.3-Murlidhar further stated that he was called in Harsool jail for identification parade on 01.09.2005 i.e. after three months. At that time he had identified accused No.1. Accused No.1 was holding revolver at the time of incident and he had given threats to them. He ( 14 ) proved panchanama of identification at Exh.33 and his signature thereon. It is argued before this Court that test identification parade was held after three months and prior to that accused No.1 was shown to him in police stated as admitted in the cross-examination. Police had also brought accused No.1 to the petrol pump. So, it is argued that value of test identification parade is nil. 12. The learned A.P.P. has cited certain authorities, which show that merely because there is no identification parade, there is no reason to disbelieve witness and secondly the substantial evidence is one which is recorded before the Court and not the test identification parade which has more or less corroborative value and it all depends on facts of the case, whether the witness should be believed regarding identification. In this case there is other corroboration regarding complicity of accused No.1 in the crime. 13. Evidence of P.W.6-Dnyaneshwar Surase is at Exh.57. He was working at Sai Petrol Pump at Deogaon Rangari. He stated that on 01.06.2005, he was on duty at night. His duty hours were from 6.00 p.m. till next day 6.00 a.m. The cash ( 15 ) collected till 12.00 mid night was kept by him in the locker and at about 12.00 mid night he and his colleagues went to sleep near the cabin. At about 2.00 a.m. when he was in the sleep, three persons came to the petrol pump and woke him up. There was white Trax Jeep. Said three persons were between 20 – 25 years of age. They told him to fill diesel in the tank. As he was about to become ready, those persons started demanding money and assaulted him. They carried him into the cabin. One of them was holding a small gun. Said persons forcibly took key of the locker from his possession and took the cash. They confined P.W.6-Dnyaneshwar and others in the cabin and latched it from outside and went away. Thereafter, one of them went out through window and opened the cabin. P.W.6-Dnyaneshwar identified accused No.1 as the person who demanded money and assaulted him. He could not identify other two. Absolutely, there is no cross-examination why this witness should be disbelieved. It is argued that there was no test identification parade. He identified accused No. 1 after 13 months in the Court, but no question was put to this witness to doubt his identification of accused No.1. There is no omission on record that P.W.6-Dnyaneshwar has not stated features of the accused in his statement before ( 16 ) police. So, the argument before this Court has no basis in the evidence. 14. At Exh. 62, there is statement of P.W.9-Balasaheb Ghadge. He was working as servant at Jai Shriram Petrol Pump at village Verul. He stated that at about 2.30 a.m. one jeep of white colour bearing registration No. GJ-06-AA-4358 came on the petrol pump. Five persons got down from the jeep. Two of them were holding revolver. They gave threats of killing. The owner of the petrol pump was present there, but he was under threat. Due to the threats, he ran on the back side of the pump. After departure of those unknown persons, P.W.9-Balasaheb came back. By that time the owner of the pump was confined in the store room by locking the door. So, he broke glass of the window and the owner came out. The owner disclosed him that said unknown persons by giving threat to him, had taken away cash of Rs. 30,000/- and confined him in the store room. Thereafter, the owner gave intimation to police on mobile phone. 10 days after the incident, he was called in Harsool Jail for identification. He identified accused No.2-Radheshyam and accused No.3-Vijay. He also identified them before the Court. It appears that ( 17 ) the witness has wrongly stated that identification parade was held after 10 days. He proved signature on the panchanama of identification. In cross-examination he stated that he had not given any description of these persons in his statement, nor he described any clothes on their persons. It was suggested to him that police had shown him to the accused out of the Court and therefore he could identify them, but he denied the same. The fact remains that this person has identified accused Nos. 2 and 3 before police during test identification parade. 15. It is argued before this Court that P.W.9-Balasaheb has stated that accused Nos. 2 and 3 were standing at Sr.No. 1 and 3, which is not so as per panchanama Exh.66. In my opinion, that will not raise doubt about actual identification. At the most, it would be error in remembering at what serial number the accused identified by him were standing and that fact is not material fact. A witness is not expected to remember such minute details as to at what serial number person identified by him was standing. So, that is not reason to disbelieve evidence of the witness. It is also argued that no role of accused Nos. 2 and 3 was ( 18 ) stated. It is true that this person has not given details, but he has stated that he had seen the persons with revolvers in their hands and they had given threats, but he had ran away to save himself and later on came back. 16. P.W.12-Vishnu Gore is examined at Exh.74. He stated that he was working as a Salesman at Ram Automobile Petrol Pump at village Galle Borgaon. According to him, when he was on duty from 6.00 p.m. on 01.06.2006 to 6.00 a.m. on the next day. At about 2.00 a.m. one Trax Jeep came to the petrol pump. One person got down and came to him. Four other persons from jeep also got down and followed him. They showed him revolver and asked him to give cash. He was frightened and gave Rs. 4750/-. Thereafter, these unknown persons carried him and his colleague Shivaji in the cabin. They demanded key of the cabin to Balu, who gave it and thereafter they took cash amount from cabin and confined the persons working at petrol pump in the cabin, locked the door and went away. After they went away, P.W.12-Vishnu gave telephone message to police, so also to the owner. On 01.09.2005, he was called at Harsool Jail, where Executive Magistrate arranged identification parade. He identified ( 19 ) accused No.1-Pawankumar. The panchanama is proved at Exh.70. In cross-examination P.W.12-Vishnu admitted that after revolver was pointed on his head, he was frightened and as he was frightened he had not properly observed faces of the culprits and their wearing clothes. So, it is argued that the identification of this witness is of doubtful nature. 17. At Exh.75 there is statement of one Balu Aher. P.W.13. He was working as a Salesman at the petrol pump at Galle Borgaon along with P.W.12-Vishnu. He also stated same story. He stated that he and other persons on the petrol pump were given threats at the point of pistol and cash amount was robbed from them. Amount of Rs. 4750/- was taken from Shivaji & Vishnu and remaining amount was taken from cabin. This witness further stated that he was called for test identification parade and he identified accused Nos. 2 and 3. The witness proved panchanama Exh.68. He was again called for identification parade on another occasion and he identified accused Nos. 1 and the panchanama of identification parade is at Exh.71. He signed on both panchanamas. He stated in his statement before police that he had not given description of thieves. He also stated that ( 20 ) he learnt about police having arrested one thief. Police had shown photograph of the accused, may be to ascertain whether it was the same person. It is argued before him that it is not stated which of the appellant had possessed pistol and who assaulted him with iron bar. It may be noted that this witness had sustained injury on his leg due to assault with iron bar and the doctor has proved the injury on his leg. So, he was the man who had better opportunity to identify the person and merely because photograph of one of the accused was shown to him by police, that is no reason for disbelieving identification by him. 18. Then there is evidence of P.W.15-Rajaram Bodkhe. He stated