JUDGMENT 1. - "The darkness came on roll, The serpents stirred their hoods, Terrorised are the streets, Roaming unabashed are, The swindlers and bandits." Facts of this case depict this scenario. On October 20, 2001 Mathura Road was terrorised in broad day light. However bandits, appellants herein, were nabbed immediately after the incident. Learned Additional Sessions Judge (Fast Track) No.1, Bharatpur convicted and sentenced them vide judgment dated January 27, 2003 as under- Rana & Bittu @ Ravi, Pawan Kumar and Sanjay @ Sanjeev : U/s. 302 IPC: Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer, simple imprisonment for two months.U/s. 394 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. U/s. 397 IPC: Each to suffer rigorous imprisonment for seven years and fine of Rs. 2000/-, in default to further suffer simple imprisonment for two months. U/s. 3/25 Arms Act: Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer simple imprisonment for one month. Ram Charan: U/s. 379 IPC: To suffer rigorous imprisonment for two years and fine of Rs. 1000/-. Substantive Sentences, were ordered to run concurrently. FACTS: 2. The prosecution case in nutshell is as follows- On October 20, 2001 around 10.30 AM a telephonic message was received at Police Station Udyog Nagar Bharatpur to the effect that some miscreants who were sitting in white Maruti van fired shots at two motorcyclists near Ludhwara turn at Mathura road. The miscreants robbed money and ran away towards Bharatpur. The information was entered in Rojnamcha Aam (Ex. P-56) and SHO PS Bharatpur rushed to the spot with police squad. At 12.15 PM on the said day informant Satish (Pw.1) handed over a written report (Ex. P-10) to the SHO at Ludhwara Road itself. It was interalia stated in the report that the informant who was employee of HB Petrol Pump Mathura Road Bharatpur accompanied by Ranveer (since deceased), another employee, proceeded on motorcycle to the Bank along with the bag full of currency notes. Mahaveer was driving the motor cycle and informant was sitting on the rear seat. After the motor cycle had covered distance of 3 kilometers, one white Maruti car bearing No. HR-51 E/5604 came from behind. Mahaveer was driving the motor cycle and informant was sitting on the rear seat. After the motor cycle had covered distance of 3 kilometers, one white Maruti car bearing No. HR-51 E/5604 came from behind. Four boys of 20-22 years of age were sitting in the car. As soon as the car came close to the motorcycle, the boys fired two shots from Kattas (country made gun) that hit Mahaveer (Ramveer?), as a result of which the motor cycle fell down. The car halted for a while and the boys snatched the money-bag, boarded the car and fled towards Bharatpur. Ranveer succumbed to the injuries on the spot. The informant then got lift on a scooter, reached the petrol pump and narrated the incident to Seth ji. On that report a case under - sections 302/394 IPC and 3/25 Arms Act was registered and investigation commenced. Autopsy on the dead body was performed, statements of witnesses under section 161 CrPC were recorded, necessary memos were drawn, the accused were arrested and they were identified as the miscreants in the Identification Parade. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Bharatpur. Charges under Sections 302, 394, 397 IPC and 3/25 Arms Act were framed against Sushil (absconded) Pawan, Rana and Sanjay whereas accused Rajveer was charged under Sections 302, 394, 397 read with 120B IPC and charge under Section 379. In the alternative Section 411 IPC was framed against accused Ram Charan. The accused denied the charges and claimed trial. The prosecution in support of its case examined as many as 48 witnesses and got exhibited 120 documents. In the explanation under Section 313 CrPC, the accused claimed innocence. Two witnesses in defence were examined. Learned trial judge on hearing final submissions convicted and sentenced the accused as indicated herein above. 3. We have heard learned counsel for the appellants and learned public prosecutor and with their assistance scrutinised the material on record. 4. Death of Ramveer was undeniably homicidal in nature. As per Post Mortem Report (Ex. P-16) following ante mortem injuries were found on the dead body- 1. Punctured lacerated wound 1.5 x 1.25 x chest cavity club with collar of abrasion & tattooing in 5" x 4" area around wound directing Rt. to Lt. 4. Death of Ramveer was undeniably homicidal in nature. As per Post Mortem Report (Ex. P-16) following ante mortem injuries were found on the dead body- 1. Punctured lacerated wound 1.5 x 1.25 x chest cavity club with collar of abrasion & tattooing in 5" x 4" area around wound directing Rt. to Lt. below wound with 33 cm of blood over Rt. lower shoulder area mid part with skull inverted edges suggestive wound entry caused by firearm. 2. Punctured lacerated wound 2-1/2 x 1.5 cm x bone deep over Lt. shoulder joint antero about with cerotid margin 0.33 x blood suggestive of wound of exit injured by one firearm. 3. Abrasion 5 x 2cm over mast joint red. 4. Abrasion 3 x 2cm over lower lid chin. 5. Abrasion 2 x 1cm on It. forehead red. 6. Abrasion 3 x 1.5cm It. forearm upper ⅓ red. 7. Abrasion 7 x 1cm on It. thigh lower 1/2 lateral 8. Abrasion 2 x 1cm on It. knee joint lateral 1 x 1cm ant. red. 9. Abrasion 2 x 1/2 cm rt. elbow joint lateral red. In the opinion of Dr. B.L. Meena (Pw.7) the cause of death was acute hemorrhagic shock brought about as the result of antemortem injuries to both lungs due to firearm injury sufficient to cause death in the ordinary course of nature. 5. Informant Satish (Pw.6) in his examination in chief deposed that while he and Mahaveer were going to Bank to deposit money on motor cycle driven by Ramveer, shots were fired at them near Ludhwara Road as a result of which they fell down. Two persons with covered faces got down out of the car and took away the money bag. Satish was declared hostile since he refused to identify the accused present in the trial court. In his cross examination Satish however admitted that he correctly identified accused Sushil, Rana @ Bittu, Pawan and Sanjay in the identification parade held before the Magistrate and put his signatures on identification memos Ex.P-12 to Ex.P-15. He further deposed that once he appeared before the trial court in police protection because of fear from the accused. 6. It is vociferously canvassed by learned counsel for the appellants that since Satish, the star witness of the prosecution, was declared hostile, his entire evidence should be rendered unworthy of consideration. He further deposed that once he appeared before the trial court in police protection because of fear from the accused. 6. It is vociferously canvassed by learned counsel for the appellants that since Satish, the star witness of the prosecution, was declared hostile, his entire evidence should be rendered unworthy of consideration. In order to appreciate this contention, it is necessary at this juncture to refer to the case law related to 'hostile witness'.HOSTILE WITNESS : 7. A witness is hostile if he tries to injure a party's case by prevaricating or suppressing the truth. The term 'hostile witness' comes from English Law. Linder the Common Law a 'hostile witness' is described as one who is not desirous of telling the truth at the instance of the party calling him. 8. Hon'ble Supreme Court in Sat Paul v. Delhi Administration [ AIR 1976 SC 294 ] had occasion to resolve the controversy over the meaning of the term 'hostile witness' and it was indicated as under- "To steer clear of the controversy over the meaning of the terms 'hostile' witness, 'adverse' witness, 'unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross- examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath V. Parasannamoyi), AIR 1922 PC 409 . The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts. (Emphasis Supplied) 9. In Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 , the Apex Court observed that declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the court should be extremely cautious and circumspect in such acceptance. 10. In Anil Rai v. State of Bihar (2001) 7 SCC 318 , the Apex Court held that merely because a witness has been declared hostile in not mentioning the name of one of the accused, his entire evidence cannot be wiped out. If his testimony is corroborated by other reliable evidence conviction can be based thereon. 11. In Gura Singh v. State of Rajasthan (2001)2 SCC 205 , the Apex Court indicated that it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. 12. From the above conspectus, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. 13. Bearing these principles in mind we proceed to consider the testimony of Satish (Pw.6) in the light of other evidence on record. Sh. Anoop Kumar Saxena (Pw.47), who was posted as Additional Chief Judicial Magistrate No.1 Bharatpur, in his deposition stated that on October 29, 2001 identification parade of accused Sushil, Rana @ Bittu @ Ravi, Pawan and Sanjay was held. Witness Satish correctly identified all the accused. Identification memos Ex.P-12, Ex.P-13, Ex.P-14 and Ex.P-15 were drawn by him on which Satish and accused persons put their signatures. 14. Conjoint reading of the statements of Satish and Sh. Anoop Kumar Saxena demonstrates that at the time of incident Satish had seen the faces of the accused and that is why he could identify them from amongst the many persons assembled with them in the identification parade. Contention of learned counsel for the accused that since Satish turned hostile, the credibility of his testimony is doubted, has no substance. It is clearly apparent as a witness before the trial court in police protection since he had fear of his life from the accused persons. But on May 13, 2002 when statement of Satish was recorded by the trial court Satish was fearless and did not require police protection. It clearly appears that Satish was won over by threat or intimidation. But on May 13, 2002 when statement of Satish was recorded by the trial court Satish was fearless and did not require police protection. It clearly appears that Satish was won over by threat or intimidation. In his cross examination Satish deposed as under " eSa vkt c;ku nsus vk;k gwWa vkSj Lora= :i ls vk;k gwWaA blls iwoZ ,d ckj iqfyl lqj{kk esa c;ku ds fy, vk;k FkkA ;g lgh gS fd eqyfteku ls esjs dks Mj Fkk fd eqyfteku esjs dks ekj nsaxs blfy, iqfyl lqj{kk esa vk;k FkkA ;g lgh gS fd vkt esjs dks eqyfteku ls dksbZ [krjk ugha gS blfy, Lora= :i ls c;ku nsus vk;k gwWaA " (I have come today independently to depose. Earlier also I came to depose in the police protection. It is correct that I had fear from the accused persons that they would kill me, therefore, I had come in the police protection. Today I have no fear from the accused persons, therefore I have come independently to depose.) 15. In Nisar Khan v. State of Uttranchal (2006)9 SCC 386 eye witnesses supported prosecution case consistently. About one year after their examination they were recalled and re-examined by the defence. All of them then turned hostile and resiled from their previous statements only with regard to identify of the accused. It was held by the Supreme Court that by the time the eye witnesses were recalled, they were won over either by money, by muscle power, by threats or intimidation, therefore testimony of these eye witnesses cannot be rejected on the ground that they had turned hostile. 16. In this backdrop we find that credit of testimony of Satish has not been completely shaken. Satish admitted in his cross examination that he correctly identified the accused in identification parade before the Magistrate and this part of his evidence is found acceptable.ARREST OF THE ACCUSED IMMEDIATELY AFTER THE INCIDENT : 17. Coming to the evidence of Surendra Sharma SHO (Pw.8), who nabbed the accused persons with the looted money Immediately after the incident, Surendra Sharma deposed that on October 22, 2001 he was posted as SHO Police Station Mathura Gate. Around 11.45 AM on the said day while he had gone to the office of Circle Officer (for short 'CO') Bharatpur, he found CO going out of the office. Around 11.45 AM on the said day while he had gone to the office of Circle Officer (for short 'CO') Bharatpur, he found CO going out of the office. CO told him that in the area of police station Udyog Nagar Dhormui petrol pump a robbery was committed and four accused persons were coming towards Bharatpur in a Maruti car. CO asked him to follow the police squad. Surendra Sharma then proceeded in a jeep with CO. While they were passing in front of Krishna Colony they found one Maruti car having dented number-plate coming with very fast speed towards them. Car was indicated to stop, but it made attempt to flee. CO then dashed his Gypsy at the back side of Maruti Car. Jeep of police station Mathura Gate again dashed Maruti Car and got it halted. Four accused persons, who were sitting in Maruti Car, made attempt to run away, but they were surrounded and nabbed. One person was successful in breaking the circle but he was also nabbed after some distance. On being enquired by CO the miscreants gave their names as Pawan Yadav, Rana @ Ravi @ Bittu, Sanjay and Sanjeev. The accused were kept baparda. One 315 bore Katta (country made gun) with one live cartridge and bag full of currency notes was got recovered from accused Pawan vide memo Ex.P-21. One 315 bore Katta (country made gun) with one empty was got recovered from accused Rana vide memo Ex.P-22. One deshi Katta (country made gun) was recovered from accused Sushil vide memo Ex.P-23. One live cartridge was recovered from accused Sanjay vide memo Ex.P-24. A black bag containing sum of Rs. 9,53,000/- lying on rear seat of Maruti car 800 cc HR51E-5604 was recovered vide memo Ex.P-26. The car was seized vide memo Ex.P-27. Surendra Sharma identified all the four accused in the trial court,. 18. Mukut Singh (Pw. 21), constable who was accompanying Surendra Sharma, deposed that on October 22, 2001 he was on patrolling with Surendra Sharma SHO. Around 11.45 AM while they reached the office of SR they met with CO City, who informed that robbery was committed. CO asked them to accompany him. They followed the vehicle of CO. On the way they found a white Maruti car coming from the side of Zila Parishad. Around 11.45 AM while they reached the office of SR they met with CO City, who informed that robbery was committed. CO asked them to accompany him. They followed the vehicle of CO. On the way they found a white Maruti car coming from the side of Zila Parishad. CO and his driver Bachchu Singh switched indicator to stop the car, but the car was not stopped. Driver Bachhu then dashed Gypsy at the car and the car got stopped in front of medical store. Three accused were nabbed immediately from the car, but one accused was successful in fleeing. He (Mukut Singh) and Surendra Sharma chased him and nabbed him near the crossing behind multipurpose school. The accused, who was having 315 bore loaded Katta (country made gun), disclosed his name as Pawan Yadav. 19. Ashok Kulsreshta (Pw.28) in his deposition stated that on October 22, 2001 he was posted as Dy.SP City. Around 11.50 AM his driver Bachchu Singh communicated wireless message to him regarding robbery on Mathura Road near Ludhwara village by four miscreants travelling in white Maruti car who fired at a motorcyclist and robbed a sum of Rs. 10 lacs. On receiving the message he along with his commando driver proceeded in his Gypsy RJ05/2122. Finding SHO Police Station Mathura Gate coming towards him, he informed the SHO about robbery and asked him to follow. In front of Krishna colony he saw a white Maruti car coming. Indicator of Gypsy was flashed to stop Maruti car, but the driver of Maruti car instead of stopping the car accelerated the speed. The Gypsy was then dashed at the Maruti Car and it got halted. Three accused were nabbed and one made attempt to flee but he was chased and nabbed. All the four accused viz. Sushil, Pawan, Rana and Sanjay were arrested, weapons and bag containing a sum of Rs. 9,53,000/- were recovered and the Maruti car was seized. From the possession of Pawan one 315 bore loaded Katta was recovered and sealed vide memo Ex.P-21. Live cartridge was also recovered. From the possession of Rana one Katta (country made gun) 315 bore and empty were recovered vide memo Ex.P-22. From the possession of Sushil one Katta' (country made gun) was recovered vide memo Ex. P-23. From the possession of Sanjay one live cartridge of 315 bore was recovered vide memo Ex.P-24. Live cartridge was also recovered. From the possession of Rana one Katta (country made gun) 315 bore and empty were recovered vide memo Ex.P-22. From the possession of Sushil one Katta' (country made gun) was recovered vide memo Ex. P-23. From the possession of Sanjay one live cartridge of 315 bore was recovered vide memo Ex.P-24. Recoveries were effected in presence of Surendra Sharma Cl and Bachchu Singh Driver. From the possession of Pawan and Rana black bag containing a sum of Rs. 9,53,000/- were recovered vide memo Ex. P-26. He also stated that bundles of notes were having yellow and pink slips of HP Centre. Car HR-51 E-5064 was seized from Sanjay vide memo Ex. P-27. The accused were arrested vide memos Ex.P-17 to Ex. P-20. At the place of incident the motorcycle of deceased was lying and the deceased was already removed to hospital by police of PS Udyog Nagar. The witness correctly identified the accused in the trial court. 20. Bharatpal Singh (Pw.24) in his deposition stated that on October 22, 2001 he was posted as gunman of CO. On the said day around 11 AM Driver Bachchu Singh received message on wireless about the robbery. The message was communicated to the CO and he along with CO and driver Bachchu Singh proceeded in Gypsy 2122. On the way in front of the office of SP, Surendra Sharma SHO Mathura Gate met them and he also accompanied them. Behind muti-purpose school in front of Zila Parishad a white Maruti car was seen coming. CO indicated the car to stop, but the car did not stop. Thereupon Bachchu hit the car and got the same to stop. Three miscreants were nabbed at the same place but one fled away, who was chased and nabbed by Surendra Sharma and Mukut behind multipurpose school. 21. Bachchu Singh (Pw.16) deposed that on October 22, 2001 he was posted as Driver of CO City at Gypsy No. RJ-05C- 2122. At that time Tara gunman. Bharatpal, Mukut constable, Ramcharan accused, Cl Mathura Gate were present. Miscreants in maruti car were present. Miscreants in maruti care were found in front of Zila Parishad. CO tried to get halt the car, but the same was not stopped, thereafter as per direction of CO he hit the car with Gypsy and got the car halted. Miscreants were arrested. Bharatpal, Mukut constable, Ramcharan accused, Cl Mathura Gate were present. Miscreants in maruti car were present. Miscreants in maruti care were found in front of Zila Parishad. CO tried to get halt the car, but the same was not stopped, thereafter as per direction of CO he hit the car with Gypsy and got the car halted. Miscreants were arrested. Three kattas (country made guns) were recovered from accused. 22. Having carefully scanned the afore quoted testimony we find that the accused Rana @ Bittu, Pawan Kumar, Sanjay @ Sanjeev and Sushil were arrested immediately after the incident by the police and sum of Rs. 9,53,000/- was got recovered from the Maruti car in which the accused were travelling. Country made pistols were also recovered from their possession. The witnesses identified the accused in the trial court. The testimony of witnesses could not be shattered even after searching cross examination.DEFENCE WITNESSES : 23. We now proceed to consider the testimony of defence witnesses. Roshan (Dw.1), who is the maternal grand father of accused Pawan, deposed that Pawan was involved in the business of selling silver coins of Laxmi-Ganesh. On October 22, 2001 Pawan had gone to Mathura from where he purchased the coins and then went to Bharatpur for selling those coins. On receiving information that Pawan was arrested by police station Mathura Gate Roshan Jiimself had gone to the SHO and requested him to release Pawan, but the told him that Pawan would be handed over to custom authorities since he was in possession of silver weighing five kilos. According to this Pawan was falsely implicated in the case. 24. Brijesh (Dw.2), a wrestler, was examined on behalf of accused Rana. In his deposition Brijesh stated that on October 15, 2001, Rana came to Bharatpur to witness 'Dangal'. On October 21, he left Rana around 1.30 PM at Hiradas bus-stand Bharatpur from where Rana left for his village. 25. We have considered the evidence of defence witnesses and we find that it does not absolve the accused from the crime in view of the fact that they were nabbed by the police with the looted money immediately after the incident when they were fleeing in a Maruti Car.OTHER SUBMISSIONS ON BEHALF OF ACCUSED PERSONS : 26. 25. We have considered the evidence of defence witnesses and we find that it does not absolve the accused from the crime in view of the fact that they were nabbed by the police with the looted money immediately after the incident when they were fleeing in a Maruti Car.OTHER SUBMISSIONS ON BEHALF OF ACCUSED PERSONS : 26. Learned counsel for the accused appellants also criticised the impugned judgment of learned trial court on the following grounds- (i) In the FIR it was not disclosed as to how much amount was being carried by deceased Ramveer. From the evidence of Rakesh, owner of petrol pump, this fact is also not disclosed as to how much amount was being carried and how any bundles of notes were in the bag. There were discrepancies regarding details of the notes deposited in Malkhana. (ii) According to statements of witnesses Arun Kumar and Rakesh had signed on slips of notes, but the slips produced before the court were without any signature. (iii) When accused Pawan fled away from the car, the recovery of black bag containing money from his possession cannot be believed. (iv) Identification of notes was not conducted to prove that the notes belonged to petrol pump. (v) Recoveries of car and notes were effected in the presence of police personnel and no independent person was associated with the recoveries. (vi) Recovered notes were released to the owner of petrol pump along with the slips, but identification memo of the slips was kept on the record. (vii) It could not be proved by the prosecution that the slips returned by the owner of petrol pump to place the same on record, were the same which were attached with the recovered notes. (viii) No identification of black bag, which contained robbed money, was conducted. (ix) In the site plan the number of Gypsy of CO was mentioned as RJ-05C-0841, while according to witnesses the number of Gypsy was RJ-05C-2122. (x) According to witnesses the accused Pawan fled away from the car and he was nabbed at a distance but no site plan of the said place was prepared. (xi) There are discrepancies in evidence of witnesses about possession of loaded gun in the hand of accused Pawan. (xii) The prosecution failed to prove as to whether Kattas (country made guns) were sent to FSL. (xili) According to FSL report (Ex. (xi) There are discrepancies in evidence of witnesses about possession of loaded gun in the hand of accused Pawan. (xii) The prosecution failed to prove as to whether Kattas (country made guns) were sent to FSL. (xili) According to FSL report (Ex. P-118) all three kattas were .303 pistols, while according to witnesses the same were .315 bore. (xiv) Black bag was not recovered from the possession of Rana and Pawan, because they were not inside the car at the time of recovery. (xv) From the possession of accused Sanjay recovery of live cartidge was shown while he was not having any katta. This circumstance is improbable. Sanjay was also not seen driving the car or sitting on the seat of driver. (xvi) According to evidence of Arun Kumar identification of accused was conducted along with 40-50 persons, while according to ACJM Anoop Kumar Saxena 7-7 persons were assembled with the accused. Thus identification proceeding was not conducted according to rule. (xvii) One Mohan Singh informed the police about the incident and fire was also opened at him but he was not made witness by the prosecution. (xviii) According to FIR the incident took place at 12 Noon on October 22, 2001, the report was lodged at 12.30 PM but the name of car and number of accused was not mentioned in the report, though this fact was known to police. (xix) In fact according to Rojnamcha the miscreants who shot Ramveer were traveling in Maruti Van, but they could not be nabbed and the appellants were implicated falsely. 27. The discrepancies pointed out by the learned counsel for the appellants are insignificant, not material and hence not fatal to the prosecution case. In Surendra Singh v. State of Haryana (2006)9 SCC 247 it was held that every discrepancy cannot be treated as fatal to the prosecution case. The discrepancy which does not affect the prosecution case materially, does not create infirmity. 28. There is nothing on record to show that the police had enmity with the accused and police officers foisted false case against the accused. The accused were apprehended along with incriminating materials while fleeing and we see on reason to disbelieve the testimony of police officers. The Supreme Court in a similar situation observed in Surendra Singh v. State of Haryana (Supra) thus- (Para 9) The testimony of an injured witness has its own relevancy and efficacy. The accused were apprehended along with incriminating materials while fleeing and we see on reason to disbelieve the testimony of police officers. The Supreme Court in a similar situation observed in Surendra Singh v. State of Haryana (Supra) thus- (Para 9) The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes. Curiously enough even the injured witness PW-2 has turned hostile. Learned counsel for the appellants strenuously urged that PW-2 Baldev Raj stated that the accused were not the persons who attacked him and, therefore, the appellants are entitled to the benefit of doubt. This submission was considered by both the Trial Court and the High Court and rejected, in our view, rightly. Although PW-2 was declared hostile, he has categorically stated that he had gone to Oriental Bank of Commerce, Gannaur, to deposit the amount. He has also stated that 4-5 persons attacked him. He has also stated that they gave knife blows to him and snatched the bag from him. This statement is well corroborated by the injuries suffered by him on his person, which is proved by PW-5 as well as seizure of the bag along with the money. PW-2 even denied that he had gone to the bank with PW-9 Ramesh Batra. The statement of PW-2 was belied by the statement of PW-9 who categorically stated that he had gone to the bank along with RW.2 Baldev Raj. The next submission of the counsel for the appellants is that the allegation of snatching of Rs. 62,000/- by the accused Is not proved inasmuch as only Rs. 15,000/- has been recovered from the bag. This contention in our view has also no substance. The factum of recovery of pistol along with cartridges and the currency notes of the denomination of Rs. 50/-amounting to Rs. 5000/- from the possession of Surender and the currency notes of the denomination of Rs. 50/- each amounting to Rs. 10,000/- from the bag which was being carried by Vikas is proved. The factum of recovery of pistol along with cartridges and the currency notes of the denomination of Rs. 50/-amounting to Rs. 5000/- from the possession of Surender and the currency notes of the denomination of Rs. 50/- each amounting to Rs. 10,000/- from the bag which was being carried by Vikas is proved. The other contention of the learned counsel for the appellants that the money so recovered from the accused Vikas and Surender was not the amount, which is stated to have been snatched away from PW-2 as the whereabouts of rest of Rs. 47,000/- has not been explained by the prosecution but it was implanted by the police for false implication. It is nobody's case that the accused and the police had any previous enmity. It is also nobody's case that the complainant PW-9 and the injured PW-2 had any previous enmity with the accused which would warrant for foisting a false complaint against the accused. While it is true that the prosecution has failed to explain the whereabouts of rest of the amount, this itself would not vitiate the factum of recovery of Rs. 15,000/- from the possession of the accused along with other incriminating materials. It must be grasped that the two appellants herein were apprehended along with the incriminating materials while fleeing and the accused No. 2 Dharmender was apprehended on the spot." (Emphasis Supplied)ALLEGATIONS AGAINST ACCUSED RAMCHARAN CONSTABLE 29. That takes us to the finding of conviction under Section 379 IPC rendered against appellant Ram Charan, who was constable on the date of offence. Ashok Kulsreshta (Pw.28) although did not see Ram Charan committing theft but deposed thus- " ywVh xbZ jde esa ls ipkl gtkj :i;s flikgh jke pj.k }kjk fudky yh xbZ pqipkiA " (Out of the looted money sum of Rs. 50,600/- was removed silently by Ram Charan constable) Ram Charan was arrested and at his instance sum of Rs. 50,000/- was got recovered vide recovery memo Ex.P-8 in the presence of Hari Singh (PW. 39) and Ram Babu (Pw.4). Ram Babu (Pw. 4) did not support the prosecution case and was declared hostile. Ram Babu categorically deposed that sum of Rs. 50,000/- was never recovered in his presence and police persons got his signatures at his shop. Hari Singh (Pw. 39) although admitted to have signed over Ex.P-8 but deposed that he put his signatures at Police Station Mathura Gate. 4) did not support the prosecution case and was declared hostile. Ram Babu categorically deposed that sum of Rs. 50,000/- was never recovered in his presence and police persons got his signatures at his shop. Hari Singh (Pw. 39) although admitted to have signed over Ex.P-8 but deposed that he put his signatures at Police Station Mathura Gate. It is no doubt true that from the evidence of Mukut Singh (Pw. 21), Man Singh (Pw. 22) and Umesh Singh (Pw. 23) presence of Ram Charan is established at the time of apprehending the accused, but it could not be established beyond reasonable doubt that Ram Charan had committed offence of theft and he deserves to be acquitted of the said charge. From the order sheet drawn on September 17, 2007 it appears that Ram Charan died on July ' 24, 2007 and this court granted leave under Section 394 CrPC to his wife Shanti Devi to continue the appeal. 30. On analysis of factual scenario and on applying the principles of law stated above, the inevitable conclusion is that appeals of Pawan Kumar, Sanjay @ Sanjeev and Rana @ Bittu @ Ravi are without merit, deserve dismissal, which we direct. We however allow the appeal of Ram Charan and acquit him of the charge under Section 379 IPC. *******