JUDGMENT Hon’ble Vinod Prasad, J.—Challenge in these two connected appeals by the three appellants Ravindra(A1), Rakesh @ Ravi(A2) and Anil(A3) are to their conviction under Section 393 IPC and imposed sentence of five years R.I. with fine of Rs. Two thousand each and in default in payment thereof to serve additional one year imprisonment, imposed by Additional Sessions Judge, Hapur, district Ghaziabad vide his impugned judgment and order dated 15.2.2010 passed in S.T. No. 761 of 2002, State v. Rakesh @ Ravi and others, relating to P.S. Simbhawali, District Ghaziabad vide Crime No. 233 of 2001. 2. Eschewing unnecessary details and stated briefly prosecution case against the appellants are that on 20.10.2001 at about 8.30 p.m. A1 to A3 with their another socio criminis companion Manoj (A4) endeavoured to loot transportation Tata truck-608, UMC- 8160 near Buxar while it was transporting fridge and TV from Ghaziabad to Moradabad driven by informant Rajpal @ Pappu P.W. 1, after boarding at it at Hapur by asking for a lift to go to Garh. Written report about the incident Ext.Ka-1 was scribed by informant driver P.W. 1,who after measuring a distance of one and a half kilometres, lodged it at P.S. Simbhawali, District Ghaziabad at 9.15 p.m. as Crime No. 233 of 2001. 3. Constable clerk, Rajesh Jindal prepared chik FIR Ext. Ka-3 and relevant GD entry Ext. ka 4. S.I. Harish Chandra Chaudhary commenced the investigation. According to the prosecution story, S.O. of PS Simbhawali was communicated about the crime through RT set message who started his return journey back to the police station. Subsequent to FIR registration P.W. 2, S.I. Kapil Bhardwaj and P.W. 1 started from the police station in search of the culprits. They met S.O. Arun Kumar at the gate of the police station who also joined them. Near Hussainpur crossing in the head lights of the Jeep and other plying vehicles they spotted four person standing by the road side. Informant P.W. 1 identified them as the malefactors of the loot incident and therefore at his pointing out police party rushed to apprehend them, on which,the culprits fired at the police party in their attempt to escape but the searching police party succeeded in arresting all the four culprits who disclosed their identities as A1 to A4. From the possession of A2 a country made pistol and from A 1 and A4 two knives were recovered. From the possession of A2 a country made pistol and from A 1 and A4 two knives were recovered. Nothing was however recovered from the possessions of accused A3 Anil. Arrest and recovery resulted in registration of another FIR under Section 307/34 IPC and 25 Arms Act against the accused vide crime numbers 234 of 2001( U/S 307/34 IPC) and Cr. Nos. 235 of 2001, and Cr. No. 237of 2001,(Both for offence Under 25 Arm’s Act), in which separate charge-sheets were laid and a separate trial S.T. No. 758 of 2003 connected with S.T. No. 759 of 2003,760 of 2003 was conducted. In that police encounter no body had sustained any injury. 4. After transfer of first I.O. SI Harish Chandra Chaudhari, residue of the investigation was completed by S.I. Devi Ram Gahlaut, P.W. 2, who had interrogated the witnesses, prepared site plan, Ext. Ka-4 and concluding investigation had charge-sheeted all the accused vide Ext. Ka-5. 5. Appellants were summoned and their case was committed to the sessions Court where S.T. No. 761 of 2003, State v. Rakesh @ Ravi and others, under Section 393 was registered against them. 6. Additional Sessions Judge, F.T.C. Hapur charged the appellants on 4.7.2003 for offences under Sections 393, 307/34 IPC. Since the accused persons denied the charge and claimed to be tried, their prosecution commenced. 7. In it’s endeavour to establish guilt of the accused prosecution tendered in all four witnesses out of whom informant driver P.W. 1, Rajpal @ Pappu, cleaner/helper of the Tata truck Jabbar Singh P.W. 3 are the witnesses of the incident. P.W. 2 S.I. Devi Ram Gahlaut, the second I.O. and P.W. 4 S.I. Arun Kumar are the witnesses of arrest of the accused. 8. All the accused persons denied incriminating circumstances appearing against them in the prosecution evidences in their statements under Section 313 Cr.P.C. and raised the plea of false implication. Additional Sessions Judge, Hapur, Ghaziabad believed the prosecution version and placing reliance on the testimonies of the prosecution witnesses find the guilt of the appellants proved to the hilt and therefore, convicted and sentenced them under Section 393 IPC as is already mentioned in the opening para of this judgment. Hence, the two connected appeals by the convicted accused. Additional Sessions Judge, Hapur, Ghaziabad believed the prosecution version and placing reliance on the testimonies of the prosecution witnesses find the guilt of the appellants proved to the hilt and therefore, convicted and sentenced them under Section 393 IPC as is already mentioned in the opening para of this judgment. Hence, the two connected appeals by the convicted accused. Two other important facts which are required to be mentioned here are one,that A4 Manoj did not compear in Court to face the trial and therefore, his case was separated from the present appellants and two, that rest of the accused, A1 to A3, were tried separately for firing at the police party and recovery of illegal weapons under Sections 307 IPC and 25 Arm’s Act in connected S.T. Nos. 758 of 2003, (State v. Rakesh @ Ravi and others) under Section 307/34 IPC, S.T. No. 759 of 2003, (State v. Rakesh @ Ravi) under Section 25 Arm’s Act, and S.T. No. 760 of 2003 (State v. Ravindra) under Section 25 Arm’s Act, by Additional Sessions Judge, F.T.C., Hapur, Ghaziabad who had acquitted all the three accused for all those charges vide his judgment and order dated 23.12.2004. A certified copy of the said decision has been filed by the accused as a defence paper. 9. In the back drop of such factual matrix I have heard Sri Mohd. Afzal, Advocate appearing on behalf of appellant Ravindra and Sri Pradeep Singh Sisodia, Advocate appearing for the two appellants Rakesh @ Ravi and Anil. Sri. K.N Bajpai, learned AGA was heard in opposition for the appellee State. I have also gone through the entire trial Court record including prosecution evidences. 10. Castigating the impugned judgment, both the counsels harangued that prosecution examined only two fact witnesses PW 1 and PW 3 but their evidences contain irreconcilable contradictions and therefore no reliance can be placed on their testimonies. At the later stage of his examination PW 3 had turned hostile and therefore it will not be safe to sustain a conviction on a single testimony of solitary fact witness PW 1. P.W. 3 did not divulged complicity of the appellants in the crime nor did he identify them. It was submitted that the F.I.R. of the crime was lodged against unknown culprits and, albeit, prosecution alleged apprehension of the appellants soon after registration of Ext. P.W. 3 did not divulged complicity of the appellants in the crime nor did he identify them. It was submitted that the F.I.R. of the crime was lodged against unknown culprits and, albeit, prosecution alleged apprehension of the appellants soon after registration of Ext. Ka-1 by the police party consisting of PW 1 and PW 2 but that fact was found untrue by the trial Court in S.T. No. 758 of 2003 connected with other Session’s trials. Additional Session’s Judge FTC, in those trials did not believe that part of the prosecution case credible and had negated it by acquitting the accused vide its judgment dated 23.12.2004. Hence that part of prosecution case, which had surfaced the complicity of the appellants was found judicially to be untrustworthy and therefore impugned judgment is indefensible. It was further submitted that no identification parade of the appellants was ever got conducted to test the veracity of depositions of PW 1 and PW 3 and their memory quotient. It was further argued that no recovery was made from the possession of the accused of any looted article and the alleged recovery of weapons are also planted. Additionally it was submitted that the F.I.R. Ext. Ka-1 does not mention use of any weapon at all in the crime nor in his statement under Section 161 Cr.P.C. P.W. 1 informant mentioned it to the I.O. and therefore recovery of the alleged weapons country made pistol and the two knives from the accused are planted piece of story to nail in the appellants which mendocity finds corroboration in the acquittal judgment for those offences and therefore there is no evidence against the appellants at all to sustain their conviction. It was also submitted that no independent person or any passer by came forward to corroborate prosecution case, which remains disproved. Concludingly, it was argued that both the appeals deserves to be allowed and appellants deserves to be acquitted of the charge, against them. 11. Learned AGA, conversely, refuted entire appellants submissions and contended that the impugned judgment is well reasoned and trial Court after marshalling of facts and evidences led before it has recorded the same and therefore, it should not be altered at all. 11. Learned AGA, conversely, refuted entire appellants submissions and contended that the impugned judgment is well reasoned and trial Court after marshalling of facts and evidences led before it has recorded the same and therefore, it should not be altered at all. Appellants were apprehended soon after the incident identified by the victim informant and therefore, there is reliable, trustworthy, cogent evidence on record to sustain recorded conviction and the implanted sentence submitted learned AGA. He concluded by replying that both the appeals lacks merits and deserves to be dismissed. 12. I have considered the entire argument and perused the record in the light of tendered submissions. It is an admitted fact that no accused is named in the FIR by PW1. He relied upon his identification memory to recognise the culprits, which he utilised by getting the appellants apprehended by the police in a very close proximity of time after registration of his FIR. However, that part of arrest and recovery of weapons from the appellants was disbelieved by Additional Session’s Judge, FTC, Hapur, Ghaziabad in Sessions Trial No. 758 of 2003 conneected with two other Session’s Trials who acquitted all the accused in respect of those charges vide his judgment dated 23.12.2004. Though that decision was rendered in another Sessions Trials on the basis of evidences led in that trial and it’s admissibility is not covered under Sections 40 to 44 of the Evidence Act but the said decision has been rendered in the sequences of issues involved in the instant appeal,therefore that decision is relevant as an exonerating evidence favourable to the appellants. It is part of the record of a Court so connected and interwoven with facts in issue in the instant appeal that it’s admissibility under Sections 6 and 9 of the evidence Act as piece of evidence regarding arrest and seizure of weapons from the appellants cannot be denied. Even otherwise also, the Court can take judicial notice of a decision of a Court of law deciding some of the facts in issue involved before it. This fact erodes the credibility of the prosecution case irreparably. P.W. 2 and P.W. 4, who were the arresting witnesses have been disbelieved by the trial Judge in those trials and therefore, it is difficult now to believe their depositions and place reliance on them by recording a divergent contradictory finding. This fact erodes the credibility of the prosecution case irreparably. P.W. 2 and P.W. 4, who were the arresting witnesses have been disbelieved by the trial Judge in those trials and therefore, it is difficult now to believe their depositions and place reliance on them by recording a divergent contradictory finding. The judgment in that S.T. No. 758 of 2003 was rendered six years prior to the impugned judgment and therefore, findings in that decision, which had attained finality, as it was not assailed in any higher forum, must be attached with due weight and approval. Holding a contrary view now is neither judicious desirable and therefore in escapable conclusion is that P.W. 2 and P.W. 4 are not reliable witnesses. 13. Turning towards the depositions of P.W. 1, the same is found to be full of unnaturality, embellishment and irreconcilable contradictions. First of all this witness has not mentioned any weapon being carried by the accused in his FIR Ext. Ka-1 nor did he intimated it to the I.O. in his statement under Section 161 Cr.P.C. The only allegations in his F.I.R. is that the accused persons attempted to strangulate him with the belt by wrapping it around his neck. After arrest of the accused no attempt was made by this witness to get the belt seized by the I.O. He did not know the accused from before and had seen them only during the incident. Though he claims to have identified them in the head lights of the police jeep and running vehicles but prosecution made no endeavour to get his observation faculty tested by holding of an identification parade. This lapse on the part of the prosecution is a serious defect in the investigation more so when P.W. 3 was required to identify the accused persons, as he was not present at the time of their arrest but has seen them only during the incident. Offered explanation by I.O that intervening period between arrest and incident was so neglegible that there was no requirement of holding of such a parade does not go down well in judicial scrutiny. Observation memory of PW 3 was atleast required to be tested to nail in the culprits. It seems that because of this reason that PW 3 did not identify any of the accused in the Court and turned hostile. Observation memory of PW 3 was atleast required to be tested to nail in the culprits. It seems that because of this reason that PW 3 did not identify any of the accused in the Court and turned hostile. Identification parade, if conducted would have credited veracity of the depositions of P.W. 1 and that of his memory affirmatively or negatively. That having not been done, it is difficult to rely upon truncated solitary evidence of PW1 to uphold the conviction of the appellants especially when observation memory of P.W. 1 was found uncreditworthy by a Court by rendering a decision against it and not placing any reliance on such an identification. The view of the trial Court that even though PW 3 turned hostile but since he has corroborated PW 1 in the manner of happening of the incident and hence appellants are guilty is not certifiable because complicity of the accused has to be proved affirmatively beyond all reasonable doubt and not on conjectures and surmises. What was to be judged by the trial Court was as to whether appellants are malefactors of the incident or someone else had committed the crime and they have been falsely implicated. Establishing happening of the occurrence ipso facto does not establish participation of charged accused in the crime. Happening of the incident is one thing and participation of the accused in that incident is quite another. They are two different facets of a criminal trial and both these facets have to be proved to the hilt clear of all reasonable doubts by the prosecution to succeed. 14. The defence theory of false implication is also plausible on the depositions of P.W. 1 himself. In one breath this witness has said that after the incident he had gone to the barrier/check post and from there while he was proceeding for the police station accompanied by two or three constables that two accused persons were apprehended while they were standing on the road side is not only negated by the I.O. PW 2 and also by PW 4 but PW 1 himself contradicted his that stand in another breath by deposing that while he was returning from the police station that the two accused persons were apprehended after firing was made by them and two others had escaped from the place. According to PW 2 and PW 4 all the four accused were arrested at the same time in one sequence of events of police encounter. Thus PW 1 and PW2 does not support each other at all. This raises a doubt as to the genuineness of the prosecution case and it probablises false implication atleast on preponderance of probabilities. Another significantly striking feature of the prosecution story is that the accused appellant were apprehended in the vicinity of the place of the incident within half a k.m. radius standing on a road side, which is a vary weird conduct not easily acceptable to inquisitive judicial mind. Coupled with acquittal judgment adage prosecution version on this score remains a disproved fact. Further, conduct of the police party in not exchanging fire when it was fired upon by the accused, when it had attempted to apprehend them in the darkness, is also a very surreal story totally at variance with the police psyche which does not satiate the test of judicial scrutiny. P.W. 1 further contradicts himself by embellishing his version that he was attempted to be strangulated by a string which fact he eschewed mentioning either in his F.I.R. or statement under Section 161 Cr.P.C. where in only belt was mentioned as setup to strangulate him. PW1 is further contradicted by PW 3 as the later denied that he had any browl with the appellant accused. Testimony of P.W. 1 also looses it creditworthiness because according to him at the time of arrest of two of the accused no weapon was recovered from them which fact is interdicted with the recovery memo and depositions of PW 2 and 4. Testimony of P.W. 1 is also contradicted by P.W. 2, as according to the latter’s on averments there was no Check Post or Barrier near or at the place of the incident although the claim of P.W. 1 is that the incident occurred near the Barrier /Check Post and after the incident he had gone there to seek police help and two constables had accompanied him from there for the police station. 15. In view of above discussion it is very difficult to rely on the testimony of informant P.W. 1. 15. In view of above discussion it is very difficult to rely on the testimony of informant P.W. 1. So far as P.W. 3 is concerned, he had completely denied the participation of the appellant in the crime, although he has testified regarding happening of the incident, but that fact alone is not sufficient enough to conclude that it was the appellants, who had participated in the crime. What is being judged in the case is whether the appellants are the perpetrators of the incident or not and whether their complicity is established beyond any shadow of doubt? Thus prosecution has failed to satisfy that the testimony of prosecution witnesses is worthy of credence. Reason by the trial Judge that falsus in uno, falsus in omnibus does not apply in India, does not mean that incredible and unworthy evidences be coalescenced in bits and pieces, of otherwise truncated prosecution evidence, to record a conviction. The dynamics of false implication are nuanced in dexterity of prosecution witnesses, I.O. and prosecutor and the Courts cannot abjure its duty by separating the grain from the chaff by lifting veil of those nuances. 16. In view of what I have discussed above, I find that the conviction of the appellants cannot be sustained, as the witnesses are wholly unreliable, major part of prosecution story regarding the presence of accused has already been disbelieved, and therefore, all the three appellants are entitle to acquittal. 17. Summing up both the appeals are allowed. Conviction of all the three appellants Ravindra, Rakesh alias Ravi and Anil, recorded by Additional Sessions Judge, Hapur, district Ghaziabad, in S.T. No. 761 of 2002, State v. Rakesh @ Ravi and others, for the charge under Section 393 IPC, is hereby set aside and they are acquitted of that charge. Appellant Ravindra is in Jail. He is directed to be set at liberty forthwith unless he is wanted in any other crime. Other two appellants Rakesh alias Ravi and Anil are on bail. Their personal and sureties bonds are discharged. They need not surrender. Let a copy of this judgment be certified to the trial Court. ————