JUDGMENT RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1629 of 2001 (Old No. 1385/1995) Balvinder Singh Barar .…. Appellant/Accused Versus State …………… Respondent October 8, 2010 Mr. SK Agarwal, Sr. Advocate assisted by Mr. SS Bh ndari, Advocate for the appellant. a Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the common judgment and order dated 25.8.1995 passed by the Sessions Judge, Dehradun in Sessions Trial No. 154/1994, State v. Balvinder Singh Barar, whereby the appellant has been convicted under Section 392 read with Section 397 of Indian Penal Code, 1860 (for short, IPC) and has been sentenced to seven years RI and a fine of Rs. 5,000/-, in default to undergo further RI for a period of six months. However, the appellant has been acquitted under Section 27 of the Arms Act. The appellant has also been acquitted under Section 25 of the Arms Act in Sessions Trial No. 155/1994 2. The case of prosecution, in brief, is that on 24.9.1993, the accused appellant hired a taxi no. UP08- 0659 of PW3 Gurdarshan Singh for Rs. 120/- for going to Jharipani and return therefrom. At that time, the appellant was bearing a rain coat and a rain cap and was also carrying a green canvas bag with him. At Jharipani, he got the taxi parked about 50 to 60 paces from the branch of State Bank of India and asked the taxi driver to 2 wait there for sometime. He then walked down to the said bank. It was around 10.45 am. There was no consumer in the branch and only three staff members, viz., Sukant Verma, Branch Manager (PW1); SK Sethi, Cash Officer (PW4) and Balbir Kumar, Cashier-cum-Clerk (PW2) were present on their seats. The bank was housed in a single room with a single entry from the road side. The accused appellant entered into the bank and whipped out a pistol from his raincoat and commanded the Bank Manager and the Cash Officer to handover the entire cash to him otherwise he would kill them. He further asked them not to raise alarm and threatened that some of his companions were guarding outside. Keeping in view the seriousness of the situation, the cash box was opened jointly by Bank Manager and Cash Officer and a sum of Rs. 1,52,000/- was handed over the accused appellant on the table of the Cash Officer Mr. Sethi. All the cash was in stapled bundles each of 100 currency notes of different denomination. It contained six bundles of 100 rupees notes, 16 bundles of 50 rupees notes and six bundles of 20 rupees notes. It is further alleged that the accused appellant kept the entire cash in a polythene bag and put this polythene bag into the green coloured canvas bag which he had brought with him. He threatened the bank staff not to follow him and not to raise alarm. He picked up the telephone receiver. The telephone was out of order. Thereafter he left the bank after saying that nobody should come out for at least ten minutes. With these averments, an FIR Ex. Ka-1 was lodged by PW1 Sukant Verma on 24.9.1993 at 12.20 am stating that they can recognize the miscreant by face. 3. The prosecution story further is that the accused appellant after committing the robbery and trying to escape in the aforesaid taxi of PW3 Gurdarshan Singh, 3 asked the taxi driver to drop him at Dehradun instead of Mussoorie and offered to pay a big sum of Rs. 500/- for this. The taxi driver expressed his inability and also was not willing to oblige the accused appellant on account of suspicious circumstances. The taxi then proceeded towards Mussoorie. When it reached near the hotel Slataria Plaza, there was some traffic jam and they could not move further. In the meanwhile, one UP Roadways Bus No. UGY8716 going from Mussoorie to Dehradun arrived there. The accused appellant then left the taxi and boarded the said bus. 4. The conduct of the accused appellant raised suspicion in the mind of the taxi driver Gurdarshan Singh. Therefore, he went to the police station Mussoorie where Bank Manager Sukant Verma’s report was being registered. The taxi driver told the police all that what had occurred between him and the accused appellant. 5. Police immediately came into motion. Messages were flashed on Radio sat and telephone. The police of PS Mussoorie rushed towards Dehradun. At Kolhu Khet, the bus in which the accused appellant was traveling was stopped. The accused was caught from the bus along with the green canvas bag containing the entire amount of Rs. 1,52,000/- in it. He was sitting in the last row of the bus. He was duly identified by the Bank Manager Sukant Verma (PW1) as well as taxi driver Gurdarshan Singh (PW3). The pistol was recovered on the pointing out of the accused appellant. Thereafter the police registered the crime no. 245/93 under Section 392 IPC and crime no. 247/93 under Section 25 Arms Act (acquitted by the trial court). 4 6. Investigation was entrusted to SI Jagbir Singh (PW7), who along with other police personnel had recovered the looted money and fard Ex. Ka-4 was prepared on his dictation by PW5 SI Satyadev Singh. He also inspected the place of occurrence and prepared the site plan Ex. Ka-6. He also prepared the site plan Ex. Ka-5 of the place of recovery. During the course of investigation, he also recovered the tamanacha and cartridges on the pointing out of the accused appellant and fard Ex. Ka-7 was prepared on his dictation by PW5 SI Satyadev Singh. Site plan Ex. Ka-8 of the said place of recovery was also prepared by the I.O. The recovered money and weapons were deposited in the malkhana of the police station. He also recorded the statements of the witnesses. During the course of investigation, he taken into possession the bank register and prepared the fard Ex. Ka-9. Thereafter investigation was transferred to Station Officer SS Bhandari (PW8), who recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex. Ka-15 against the accused appellant. 7. After the committal of the case, learned Sessions Judge, Dehradun framed the charges on 21.2.1995 against the appellant/accused under Section 397 IPC and in the alternative under Section 411 IPC and also under Section 27 Arms Act. The charges were read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 8. To prove its case, the prosecution has examined PW1 Sukant Verma, Branch Manager and the complainant; PW2 Balbir Kumar, Cashier-cum-Clerk; PW3 Gurdarshan Singh, the taxi driver; PW4 SK Sethi, Cash Officer; PW5 SI Satya Dev Singh, witness of recovery; PW6 Constable 5 Immam Jaidi, witness of recovery; PW7 Station Officer Jagbir Singh, who initially investigated the case and had also led the police team which recovered the looted money and the weapon and PW8 Station Officer SS Bhandari, who subsequently conducted the investigation and filed the chargesheet. 9. Thereafter, statement of the appellant/accused was recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he has been falsely implicated in the case. However, he did not produce any oral or documentary evidence in defence. 10. After hearing learned counsel for the parties and appreciating the evidence on record, the learned Sessions Judge, Dehradun vide his judgment and order dated 25.8.1995 convicted and sentenced to the appellant/accused as discussed above. Against the aforesaid judgment and order dated 25.8.1995, the appellant/accused has preferred the present appeal. 11. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 12. Learned Sr. Counsel for the accused appellant argued that the recovery is planted and prosecution has failed to prove its case against the accused appellant beyond reasonable doubt and the impugned judgment and order passed by the trial court is not correct and justified. I do not find any substance in the argument of learned Sr. Counsel for the accused appellant for the reasons recorded hereinafter. 6 13. PW1 Sukant Verma, Branch Manager of Jharipani Branch of SBI where the robbery was committed has stated that on 24.9.1993, he was posted as Branch Manager, Oak Grove School, Jharipani. PW4 SK Sethi and PW2 Balbir Kumar were also posted in the same branch, which comprised of only one room. There was only entry to the bank from the roadside. As usual, they opened the bank on 24.9.1993 at 10 am. On that day, at about 10.45 am, a man entered inside the branch. He was wearing brown raincoat and rain cap. He took out a pistol from inside the raincoat and pointed towards SK Sethi (PW4) and asked to handover all the cash otherwise he would open fire and shot them. He also commanded not to raise any alarm as his another companion is standing outside the branch. This witness has further stated that they became frightened and, therefore, he told his fellow bank employees to do as he says. He and SK Sethi opened the cash box which contained about Rs. 1,79,000/-. The robber was also having a green canvas bag which he had put on the table of SK Sethi. He took out a polythene bag from inside the said bag and the said polythene bag was layered with another polythene bag. As per the orders of the robber, they brought the money from the chest at the table of SK Sethi. A total of Rs. 1,52,000/- was brought in two times. The robber was asking to hurry up. He kept that money in the said polythene and thereafter put it inside the bag which he had brought with himself. He checked out the telephone which was out of order. He asked not to raise alarm or try to telephone anybody. He took three steps back and left the bank after saying that no one should come out from the bank for ten minutes. This witness has further stated that after about half a minute he came out and saw the robber who was going up above the hill towards Barloganj. SK Sethi and Balbir 7 Kumar also came outside. Sethi shouted to catch the robber. They saw that about 30-35 steps upwards, a taxi (Maruti Van) was standing. The robber sat in the said taxi, which thereafter proceeded towards Barloganj. There were six bundles of 100 rupees notes, 16 bundles of 50 rupees notes and six bundles of 20 rupees notes. He tried to inform the police through telephone but the telephone of office as well as of the nearby shop were out of order. 3-4 people gathered there after hearing the noise. His own maruti car was also parked near the bank. He along with those people as well as SK Sethi tried to chase the robber in his car and came very near to the taxi in which the robber was going and also read the number of that taxi. But the taxi of the robber became very speedier and became out of sight. They informed at the police chowki of Barloganj. Meanwhile, he also informed the main branch of his bank at Kikreg which comes in the way to the police station, where he also written the report Ex. Ka-1 and thereafter lodged the report at PS Mussoorie at 11.20 am. The driver of the taxi used by the robber also came in the police station. The Station Officer (Jagbir Singh) also enquired from him and thereafter he immediately brought his Gypsy and proceeded towards Dehradun along with him, SK Sethi, taxi driver (Gurdarshan Singh) and the police force. Thereafter the accused was arrested by the police at Kolhu Khet check post from a bus in his presence and the entire amount of Rs. 1,52,000/- was recovered from him from inside the bag, which the robber had brought along with him when he came to commit the robbery. He identified the accused appellant as the robber at the time of his arrest and recovery and also before the trial court and also stated that he was the same person who committed the robbery in his branch on 24.9.1993 at about 10.45 am. He also identified the money which was looted by the accused appellant. Thus, this witness has 8 fully supported the prosecution version. This witness was cross-examined at length by the defence counsel but nothing has come out in his statement which may discard his testimony. Statement of this witness is reliable, believable and inspires the confidence. 14. Statement of PW1 Sukant Verma is fully corroborated by the statements of PW2 Balbir Kumar and PW4 SK Sethi, Cashier-cum-Clerk and the Cash Officer respectively. They have also identified the accused appellant before the trial court and stated that it is the same person who had committed robbery in his branch on 24.9.1993 at about 10.45 am. PW4 SK Sethi is also the witness of arrest and recovery. 15. PW3 Gurdarshan Singh is the taxi driver whose taxi was used by the accused appellant in commission of the crime. This witness has also supported the prosecution case and has stated that on 24.9.1993 at about 9.45 am, the accused appellant hired his taxi no. UP08-0659 for Rs. 120/- for going to Jharipani and return therefrom. At that time, the appellant was bearing a rain coat and a rain cap and also carried a green canvas bag with him. At Jharipani, he got the taxi parked about 50 to 60 paces from the branch of State Bank of India and asked the taxi driver to wait there for sometime. He then walked down to the said bank. It was around 10.45 am. The accused appellant after committing the robbery and trying to escape in his aforesaid taxi asked to drop him at Dehradun instead of Mussoorie and offered to pay a big sum of Rs. 500/- for this. This witnessed expressed his inability and also was not willing to oblige the accused appellant on account of suspicious circumstances. The taxi then proceeded towards Mussoorie. When it reached 9 near the hotel Slataria Plaza, there was some traffic jam and they could not move further. In the meanwhile, one UP Roadways Bus No. UGY8716 going from Mussoorie to Dehradun arrived there. The accused appellant then left the taxi and boarded the said bus. The conduct of the accused appellant raised suspicion in the mind of this witness. Therefore, he went to the police station Mussoorie where Bank Manager Sukant Verma’s report was being registered. The taxi driver told the police all that what had occurred between him and the accused appellant. This witness has also identified the robber at the time of recovery and arrest as well as in the trial court. He was cross-examined at length but nothing has come out in his statement which may create any doubt about his testimony. His statement is reliable, believable and inspires the confidence. 16. PW5 SI Satya Dev Singh is one of the witnesses of arrest of the accused appellant and the recovery of Rs. 1,52,000/- from him on 24.9.1993 and he has also fully supported the prosecution case. 17. PW6 Constbale Imam Zaidi was posted at Kolhi Khet check post on 24.9.1993. He has stated that a message was received on wireless that a person after committing bank robbery was running in a taxi no. UP08-0659. About 15 minutes after this a telephone message was received that the robber has left the taxi and had boarded a roadways bus and is going towards Dehradun. Thereafter they started checking the vehicles passing from Kolhu Khet. Meanwhile, the UP Roadways bus in which the accused appellant was travelling was stopped at the barrier. Simultaneously, Jagbir Singh, Station Officer, Mussoorie along with police force also arrived there and 10 on the pointing out of the driver Gurdarshan Singh, the accused appellant was caught from the said bus. A bag was recovered from him in which currency notes of robbery wrapped in polythene bag were kept. Thus, this witness has also fully corroborated the prosecution version. He was examined at length by the defence counsel, but he could not be shaken in his cross- examination. Statement of this witness is believable, reliable and inspires the confidence. 18. PW7 Jagbir Singh, S.O. Mussoorie has stated that FIR of this incident was registered in his presence investigation of this case was entrusted to him. PW3 Gurdarshan Singh has also narrated the happenings which took place between him and the accused appellant. Thereafter he along with other police personnel, the bank officers and taxi driver Gurdarshan Singh proceeded towards Dehradun and at the barrier of Kolhu Khet, the accused appellant was arrested from the UP Roadways bus and the entire looted amount of Rs. 1,52,000/- was recovered from his possession which he had kept in a bag and fard Ex. Ka-4 was prepared on his dictation by PW5 SI Satyadev Singh. He also inspected the place of occurrence and prepared the site plan Ex. Ka-6. He also prepared the site plan Ex. Ka-5 of the place of recovery. During the course of investigation, he also recovered the tamanacha and cartridges on the pointing out of the accused appellant and fard Ex. Ka-7 was prepared on his dictation by PW5 SI Satyadev Singh. Site plan Ex. Ka-8 of the said place of recovery was also prepared by the I.O. The recovered money and weapons were deposited in the malkhana of the police station. He also recorded the statements of the witnesses. During the course of investigation, he taken into possession the bank register and prepared the fard Ex. Ka-9. Thereafter investigation 11 was transferred to Station Officer SS Bhandari (PW8). This witness has also proved the chick FIR Ex. Ka-10 and copy of GD Ex. Ka-11, Ex. Ka-12, Ka-13 and Ka-14 and stated that the same were prepared by Head Moharrir Bharose Lal Chandola and he is well acquainted with his handwriting. Since he became a witness of arrest and recovery, therefore further investigation was entrusted to PW8 Station Officer SS Bhandari. 19. PW8 Sation Officer SS Bhandari recorded the statements of the witnesses during the course of investigation and after completing the investigation, he filed the chargesheet Ex. Ka-15 against the accused appellant. 20. Thus, the prosecution has examined as many as eight witnesses in support of its case. All of them have fully corroborated the prosecution story. Three of them, viz., PW1 Sukant Verma, PW2 Balbir Kumar and PW4 SK Sethi are eyewitness of the incident of robbery. They are the bank officers and their presence at the place of occurrence was natural. All these witnesses have fully corroborated the prosecution version. 21. Moreover, there is an independent witness Gurdarshan Singh (PW3), the taxi driver whose vehicle was used by the accused appellant in the said crime. When he suspected something dubious about the accused appellant, then he himself went to the police station and narrated the entire incident which happened between him and the accused appellant. This witness has also identified the accused appellant at the time of his arrest and recovery as well as before the trial court. This witness has fully supported the prosecution story. 12 22. Furthermore, PW7 S.O. Jagbir Singh which led the police team which arrested the accused appellant and recovered the entire amount of robbery has also supported the prosecution version. PW6 Constable Immam Jaidi, who was posted at the check post of Kolhu Khet and who stopped the said UP Roadways bus from which the accused appellant was arrested has also supported the prosecution case. 23. The prosecution story is also supported by the fact that the robbery in the bank took place at about 10.45 am on 24.9.1993, the FIR was lodged on the same day at 11.20 am, the distance between the place of occurrence and the police station is seven kilometers and these are the hilly areas. Hence, FIR was also prompt. The accused appellant was also caught at 12.05 am on the same day from inside a bus at the barrier of Kolhu Khet and entire amount of robbery of Rs. 1,52,000/- which was kept in a bag was recovered from his possession. 24. Thus, in view of the aforesaid discussion of evidence and for the reasons recorded above, the whole prosecution story is proved beyond any shadow of doubt and, therefore, the conviction and the sentence awarded to the accused appellant is correct and justified and it requires no interference by this Court. 25. In the result, the appeal being devoid of merit is hereby dismissed. Judgment and order dated 25.8.1995 passed by the Sessions Judge, Dehradun in Sessions Trial No. 154/1994, State v. Balvinder Singh Barar is hereby upheld. Conviction of the accused appellant Balvinder Singh Barar under Section 392 read with Section 397 of IPC is upheld and sentence awarded to him to undergo RI for seven years along with fine of Rs. 5,000/-, in default to 13 undergo further RI for a period of six months is affirmed. Appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the sentence. 26. A copy of this judgment and order be sent to the trial court for its compliance. Let the trial court record be also sent back. (Dharam Veer, J.) 8.10.2010 PRABODH