mm (13W) m§§ mwm APPELLANTS (In Jaii) RE5PONDENT Present: Mr. O.P. Vadu, Advoccn‘e f0“ fhe appellanfs. MEI. N.K. Mehfa, Panel Lawy ‘ 1. Jaheer Ansari, S/o Usman @ Ismail Ansar'i, Aged abouf 4O years Occupafion-Tqilor', R/o Khallari, P.5. KhuHar‘i, Mahuva Ghodu (Behind. Bukbuka Masjid), Distric’r Ranchi (Jharkhand) 2. :;Ajay Tirki @ Rajkumar‘ @ Suresh Munda, S/o Husaim’ Munda, lAged abou’r 35 years, Occupation Business, R/o Nagr‘i, P.S. Kake, Dis‘rrict Ranchi (J'har‘khand) 3. Ravindr‘a @ Dharmendra Singh, S/o Ramdev Singh, Aged abouf '26 years, OccupaTion Bus Agem‘, R/o Chaliyo, P.S. Chanho, Disfricf Ranchi (Jharkhand) Vs er' for ’rhe respondent—5mm. ORAL’JuDGMENT / (9” August, 2007) W m m 200 I mms‘wm e awmm CRIMINAI‘ APPEAL NO.767/2004 STaTe of Chhaffisgar'h Thraugh The S.H.O. of P.S. Jhilmili (Bhaiya’rhan), l )isfr'ic’r Surguja. XI—HC—78 WW, m, W3? m a 200 mm (W) amwgs mmm Wmw‘gém $§1¥mm _. Z—’ Per Dhirendra Mishra J; This appeal is direc1 ed againsf fhe judgmen‘r of convic’rion and order of sem‘ence’ da‘re:d 31” Augus’r, 2004 passed by learned 4"“ Addi’rioncd Sessions Jwdge (FTC) Surajpur', Dish‘. Surguja in Sessions Trial No.93/02 whereby Iear'ned Addifional Sessions Judge has convic’red The aapellanTs under Section 395 r'ead wi’rh Sec‘i'ion 397 of The IPC & sen’renced each of The appe RI. for 3 years respecTivei} Case of The prosea complainanT Hashmi Ashraf jeep owned by his maTer whereas, HazraT Khan (PW- said jeep was hired by fiv Pandopara colliery from Vis . Towards Pandopara, The occ1 To Take The jeep Towards passengers alighTed from The jeep on The preTexT of easing hilnself and aT ThaT poinT Ther four occupanTs on The poinT of KaTTa compelled The compla nanT & The driver To come ouT of The SecTion 27 (1) of The Arms AcT and lIanTs To undergo RI. for 10 years and ‘. ”ion, in brief, .s‘i‘hai on 11.10.2001 (PW-2) was looking afTer The Marshall nal grandfaTher Shri Gulam Hassan, l) was The driver of The said jeep. The e persans for the purposes of going 1rampur. While They were proceeding ipanTs of The jeep direcTed The driver Baskar foresT and There one of The / XI—HC—78 WW,W,W W m vi 200 @ mm (W) am$ WWWifg‘am WWW %WW _ 3- jeep, ’rhey were Taken insi The foresf, There They were injecTed some medicine and There fTer, The accused persons Tied Their hands & feeT and gagged T eir mouTh wiTh The help of cloTh, as a V resulT of which They be ame unconscious. When he gained consciousness, he searche for The driver wiTh The help of one DocTor Kushwaha. While Th y were searching The jeep near Temple of Badsara, They saw The e jeep speeding Towards BhaiyaThan road. They Tried To sTop he jeep buT iT did noT sTop. The said jeep was used for The purp ses of CenTral Bank robbery. w j IT is sTaTed ThaT Th accused personsii/ére also prosecuTed in anoTher offence in conn cTion wiTh The bank robbery and They have already been convicTe and senTenced To undergo RI. for 10 years vide judgmenT daTed 4.4.2002. ReporT was lodged b The complainanT in The Police STaTion PaTna, DisTricT Koriya, whie was recorded as DehaTi F.I.R. by PW— .‘22 Shri R.P. Singh, howev r', since ’rhe offence pertains f0 ’rhe Police STaTion Jhimili Bhaiy Than, The same was Transferred To The Police STaTion Jhilmili. On he basis of above reporT, invesTigaTion wgs commenced and afTer compleTing The invesTigaTion, charge sheeT was filed in The Co rT of Judicial MagisTraTe Fhmlass, d m XI-HC—78 WW,W§,W Wm WL 200 Wm (16W) W WWW§‘&@W éwfmm mmm r—L\’_ sumjpur agains? The appallan’rs and also against Two absconding accused persons under Secfion 395/397 of IPC and Sec’rion 27 (1) of The Arms Ac’r. After :ommi‘r’ral, The appéIlanfs were charged under fhe aforesaid sections. Twen’ry Two wi‘rnesses were examined by The prosecu’r on; Learned cour’r below after recording The si’afemem‘ of accused and hearing learned counsel for ’rhe purifies, convicfed di sen’re iced The appellanTs as menTioned in Para 1 of This judgment r The appellanT submiTs ThaT The canyicTion of The appellan s is based on Thes‘sTaTemenTs of alleged eyewiTnesses namely Ha raT Khan (PW-1) & Hashmi 'Ashraf Siddique (PW-2) who also ccompanied The accused persons on The daTe of incidenT in The aid jeep. Referring To Para 9 of The sTaTemenT of PW-1 Hazr T Khan‘ iT has been argued ThaT This wiTness was noT acquain ed wiTh The accused persons, he has deposed as per insTrucTio of The police personnel and Therefore, The courT below was nof ‘usTified in basing The convicTion on The basis of sTaTemenT of Thi wiTness. IT is furTher conTended ThaT gW-Z Hashmi Ashraf Sid ique claims To be an eyewiTness of The incidenT, however, in The esT idenTificaTion parade conducTed by Shri S.L. Markam (PW 14), accused persons were noT goT Learned counsel I mm 'anéwamiéaia‘ o WW,W,W mm w 200 mm (Wis!) mwm WWWIWW %3imal%¥r /$"j’ identified by This witness‘r which is indicative of the fact fhai he was not present in The jeep and he is a cooked-up wiiness. On fhe ofher hand, learned Panel Lawyer for the Sfafe supporfed fhe impugned jL dgmenf. I have heard lear1ed counsel for The parTies. I have perused The evidence ava labie on record including fhe impugned judgment Conviciion of ‘ihe c,ppellani is based on fhe sfa’remen‘r of HazraT Khan (PW-1) 6i Hdshmi Ashraf Siddique (PW—2). Hazr‘at Khan‘ (PW-1) has s‘rafed fhh’r The accused per-sons, who are presenT in The courT, had hired Their jeep one year before. They had claimed.Themselves To bei The officers of The SECL before his masTer and said ThaT They ‘were going for The purpose of survey of Pandopara. On The day w en The vehicle was hired, he had Taken The accused persons To I ishrampur, however, afTer some Time ~They sTaTed ThaT They ll be going Tomorrow and also paid Rs.100/- as expenSes Towa ds The journey and asked Them To come in The hexT day morning a 8.00 and he reached in The morning, as asked by The accused rsons. When he reached, he found accused Ajay Tirkey waiTi g for The jeep, he Took him inside The K a e XI-HC '78 mw,m,m mmm ammami‘a? WWW Wm 1a 200 mum; (W) WMifzétm ‘ $3fmamé¥r /é Ho‘re! Anand where ’rhr'ee of Them ’rwo accused per‘ present in The Cour’r’, whe ‘- All The Three accused pei where Two o’rher persons t The jeep. They paid for Towards Pandopqra. On Th‘ Ashraf (PW-2) was also p1 Dhaba. However, before asked Them To Turn Towar¢ were forced To alighT fron were injecTed some medid Their mouTh was also gagg They have Taken The conT leave Their jeep in Manendi When he regained consc meanwhile, Hashmi Ashraf him in freeing his feeT an near a Well They saw The were informed ThaT This pTher accused persons were siTTing, ouT Fons i.e. Jaheer §l Ravindra Singh are "eas, Third is noT presenT in The courT. isons wenT by jeep To Dhaneshri HoTel ccupied The jeep. AfTer filling diesel in diesel and ThereafTer They proceeded ; way, They sTopped for meals. Hashmi pesenT wiTh him. They also dined in The reaching Pandopara, accused persons is Badsara foresT and ThereafTer They 1 The jeep on The poinT of KaTTa. 'They ine, Their hands & feeT were Tied and d. The accused persons Told Them ThaT racT of killing someone and They shall ‘agarh and saying so They lefT The place. iousness he freed himself. di Dr. Kushwaha came There and helped d legs. While They were drinking water same Marshall jeep and laTer on, They jeep was used for bank robbery aT Pandopara. In The cross , In The examinaTion, This wiTness has admiTTed fha‘r he does nof know fhaf The accusad are residem’s of which place, as he did no’r recog iie Them and he has sfafed what has been Told To him by d'he olice. He has furiher s’ra‘red on re- i examination by the prosec tion that he does not recognize them is correct Similar is “the state en’r of Hashmi Ashraf (PW—2), who has also”narra1‘ed The incidem‘ n The same sequence. This wi’rness has admi‘i’fed fha’r he did not pariicipafe in The Tesf iden'i‘ificafion parade, however, he r'ecog ized accused Zaheer by name, as his name was called during ‘rh courT proceedihg‘s and he does noT recognize fhe accused persons personally. He has furfher slated fha‘l The reporf of Ex.P-1 was recorded as per information given by him. PW-12 Gulam Hassan is the registered owner of the jeep and he has stated that PW—l Hazrat Khan is the driver, on 10.10.2001 he had gone w th the said jeep to Vishrampur and thereafter on the next day also his jeep had gone on hire. After a week the driver had told him that five persons had taken the jeep on‘the pretext of survey ahd on way he and his grandson Hashmi Ashraf were left in the fotrest after tying them and the vehicle , W’WX XI—HC——78 mw,m,m ‘ W m f Wt 200 Wm (W) a§1ma11§§qm§ WWW Wmfgm _7- XI—HC—78 F: /%‘r was Taken. He was informed by The police fhaf his vehicle was used for The purposes of dacoify. Thus, from fhe sfafemen‘r of Hazra‘r Khan (PW—1) & Hashmi Ashraf (PW—2), if is e idenf that They have iden’rified ’rhe appellanfs during frial, fh have specifically s’ra‘red ’rhe par’ricul'ar acfs of fhe appellanfs du ing fhe incidenf and fhere is no cross examination of these wifn sses from fhe defence side regarding their par’ricipa’rion. Even o suggesfion has been made ‘fhaf ’rhe accused persons were nof resenf in The jeep, as alleged by These witnesses, and as such th statement of these witnesses in the examination—invchief stan un—rebutted. Therefore, only on the i basis of the admission of Hazrat Khan (PW-1) that he does not recognize the appellants c nnot be construed that this witness did not see what he has stated in his examination-in-chief. It is an admitted fact that the appellants and the above witnesses were not acqua nted to each other since before and therefore, the admission ’ of the witness that they did not recognize may be construed that he did not recognize them since before. The statement ol' these witnesses is duly corroborated by Dehati Nalishi of Ex.l’-1, which has been proved by PW-Z 17”{ Wm m 200 mum (W) 'mwm mmm WWW mw§wm $aimm XI—HC—78 mW,§m,W Wm in 200 mm (W) mwm r WWW . Wm§wm WWW ‘ *WW ,—%V Hashmi Ashraf as well as PW-ZZ R.P. Singh, who has recorded fhe same. The facf fhm‘ fhe f‘asT idenfificafionpar‘ade was conducted by PW—14 has also been pw‘oved by fhis wifness Though PW-Z has nof par-Ticipafed in fhe TeS'L identificafion parade. Nevertheless, ’rhe .s’ra’remenf of These wimesses inspire confidence of ’rhis CourT "egarding parTicipaTion of The accused persons in fhe crime in question'and fhis Cour? is of fhe considered opinion Thai fhere is no infirmiiy or illegality in fhe impugned judgmen’r wherelJy The appellan‘l’s have been convicted andsenl’enced under Section 395/397 of Il;C & Secfion 27 (1) ‘of The Arms AcT. Learned counsel f r The appellanTs submiTs ThaT The appellanTs were arresTed n 24.10.2001, as is evidenT from The _ charge sheeT, however, T e Trial courT has direcTed ThaT The appellanTs shall noT be enTi led for seT off from The jail senTence imposed upon Them for Th period from 24.10.2001 To 24.4.2002, which is noT proper parTicu ’arly in The lighT of The facT ThaT boTh The offences i.e. dacoiTy o jeep and bank robbery; forms parT of The same prosecuTion an commiTTed by The same persons. XI-HC 78 3a W¢W, ‘55, E3: ./ ku- Ther'efore, fhe period fro been sef off ogains’r fhe se Buf I am unable ’n I before fhe judgmem‘ of n which They were in jail oughT To have m‘ence imposed upon The appeilanTs. ‘ K J accepT ThisargumenT because even passed iri The presenf co :onvicTion and order of senTence was connection wifh S.T. No.62‘ ' in *rhe said judgment fhe’; 24.4.2002 was sef off and has direcfed Thaf Senfence of The provisions of $e< obsef'vofion of ‘ihe frial co same does noT call for any imTerference by This CourT. Vln The result, The apl To be dismissed and iT is her Roshan/— { , se,' The appellanTs sfood convicTed in ’02 vide judgmenT daTed 24.4.2002 and teriod of senTence from 24.10.2001 To in These circumsTances, The Trial courT shall commence from 25.4.2002 in view non 427 of The—enncJThe above urT is in accordance wiTh law and The >eal being devoid of subsTance is liable ‘eby dismissed. gee. sal— rrr/ -‘ Dimming}. msm ‘ Judge re. ’m wt 200 imam (W) mgg . . ‘ mmm mum—aiwm i agamm.