JUDGMENT The appellant feels aggrieved by the judgment and order passed by learned Ad-hoc Additional Sessions Judge, Chandrapur on 30th August, 2006. The appellant has been convicted for the offence punishable under Section 397 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven yeas and pay fine of rupees five thousand in default to undergo simple imprisonment for six month. He is also convicted for the offence punishable under Section 25(1B)(a) read with Section 3 of the Arms Act and is sentenced to suffer rigorous imprisonment for one year and to pay fine of rupees one thousand and in default to undergo simple imprisonment for one month. 2. The appellant was accused No.1 in Sessions Case No. 38 of 1998. The appellant, along with accused No.2 Ramnaresh, was tried for the said offences. Accused No.2 Ramnaresh was convicted for the offence punishable under Section 392 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years. He was acquitted of the offence punishable under Section 25(1B)(a) read with Section 3 of the Indian Arms Act, 1959. It appears that accused No.2 has not preferred any appeal against the said order. 3. The prosecution case before the trial Court was that complainant Sunil Wamanrao Bangale resident of Trimurti Nagar, Nagpur was working as driver of TATA Sumo vehicle belonging to one Sudhir Dhopte. P.W.11 Ramdas was a travel agent and was running his business under the name and style of Mangal Travels. P.W.14 Vivek Gotmare was also working as Travel Agent. P.W.11 and 14 did not have their own vehicles for running business of their travel agency. However, they used to arrange the vehicles for tours who approached them. 4. It is the case of prosecution that the appellant and accused No.2 had visited the office of P.W.11 and they wanted to hire a TATA Sumo vehicle to visit L & T office at Ballarshah. P.W.11 in turn had made inquiry from P.W.14. P.W.14 had arranged for TATA Sumo belonging to one Sudhir Dhopte. As already stated, complainant Sunil, who has been examined as P.W.15, was working as driver on the said TATA Sumo vehicle. The journey of appellant No. 1 and accused No.2 in the said TATA Sumo vehicle began from Nagpur to Chandrapur. P.W.11 in turn had made inquiry from P.W.14. P.W.14 had arranged for TATA Sumo belonging to one Sudhir Dhopte. As already stated, complainant Sunil, who has been examined as P.W.15, was working as driver on the said TATA Sumo vehicle. The journey of appellant No. 1 and accused No.2 in the said TATA Sumo vehicle began from Nagpur to Chandrapur. It is the case of prosecution that both of them had consumed some liquor at Butibori and had continued their further journey towards Chandrapur. After reaching Chandrapur they had visited Mayur Hotel and thereafter they proceeded to Rajura. Appellant and accused No.2 again consumed liquor in some Bar at Rajura. They had made a phone call from Public Telephone Booth and asked the complainant to drive the vehicle on a kacchha road towards one village. In between there was a nullah which the vehicle was unable to cross. The complainant P.W.15 also got suspicion about the activities of the appellant and accused No.2. The complainant, therefore, told them that it was not possible to cross the nullah. The appellant at this point of time took out a pistol. The appellant and accused No.2 both tried to strangulate the complainant by means of a scarf. The complainant prayed for mercy. However, the appellant and accused No.2 appeared to be determined to kill the complainant. The complainant, therefore, pretended to be dead. The appellant and accused No.2, therefore, left him near the nullah. The appellant and accused No.2 had taken away the said TATA Sumo vehicle and the complainant was left in the nullah. The complainant got up from the nullah and took help from the agriculturists who were working in the agricultural fields adjoining the road. It was around evening time. He reached the nearby village and tried to make a phone call. However, phones were not working. One person took the complainant to Rajura Police Station and the mater was reported to police. Rajura Police flashed a wireless message that one TATA Sumo vehicle has been hijacked by two persons and might have proceeded towards Nagpur. Police Station Deolapar therefore, arranged for Nakabandi and the vehicle was thereafter intercepted. It is the case of prosecution that the appellant and accused No.2 both were found in the vehicle and they were arrested by Deolapar Police and offence was registered against them. Police Station Deolapar therefore, arranged for Nakabandi and the vehicle was thereafter intercepted. It is the case of prosecution that the appellant and accused No.2 both were found in the vehicle and they were arrested by Deolapar Police and offence was registered against them. During the course of their personal search, a revolver was seized from the appellant, three live cartridges and two empty cartridges were found in the revolver recovered from the appellant. At this stage, it may be stated here that the complainant P.W.15 had told Rajura police that a bullet was shot at him which had hit him near waist. P.W.15 was sent for medical examination. The bullet was retrieved from the injury and it was seized by the police. 5. As such, the TATA Sumo vehicle was intercepted by Deolapar Police and the complaint was registered at Rajura Police Station on the statement made by P.W.15. The complaint registered at Deolapar Police Station was also transferred to Rajura Police Station for further investigation. During the course of further investigation statements of P.W.11 and 13 were recorded. The statements of the agriculturist who had seen the appellant and accused No.1 hijacking the TATA Sumo vehicle and throwing the complainant in nullah were also recorded. Panchnamas in respect of the seizure of vehicle, seizure of number plate, seizure of firearm and cartridges were drawn. Panchnamas in respect of seizure of clothes of appellant and accused No.1 were also prepared. The revolver was sent to Forensic Science Laboratory along with the bullet retrieved from the injury sustained by P.W.15. The Forensic Science Laboratory had opined that the bullet retrieved from the injury sustained by P.W.15 tallied with the test fired bullet from the revolver seized from the appellant. After completion of investigation charge-sheet was filed against the appellant and accused No.2. Both were tried and the order passed by the learned Ad-hoc Additional Sessions Judge after conclusion of trial has been reproduced by me herein above. 6. Learned counsel Mr. Daga is heard on behalf of the appellant and learned Additional Public Prosecutor Ms. Deshpande is heard on behalf of the State. 7. Learned counsel Mr. Dagahas submitted that the judgment of the learned trial Court cannot be sustained inasmuch as there is no evidence to establish that the appellant was one of the two persons who had been travelling in the TATA Sumo vehicle driven by the complainant. Deshpande is heard on behalf of the State. 7. Learned counsel Mr. Dagahas submitted that the judgment of the learned trial Court cannot be sustained inasmuch as there is no evidence to establish that the appellant was one of the two persons who had been travelling in the TATA Sumo vehicle driven by the complainant. It is not established beyond reasonable doubt that the appellant was one of the two persons who had assaulted P.W.15. P.W.11 is the only person who had identified the appellant and accused No.2 in the Court. Mr. Daga has invited my attention to the cross-examination of P.W.11 in which he has stated that he had visited Deolapar Police Station and he had seen the appellant and accused No.2 in the Police Station. The identification parade was held after about two months of the incident. Mr. Daga has submitted that since P.W.11 had occasion to see the appellant and accused No.2, the identification parade had lost its value. As such, according to Mr. Daga, there is no satisfactory evidence that the appellant was one of the two persons who had assaulted P.W.15. 8. Before I proceed, it will be necessary to state briefly the evidence adduced before the trial Court by the prosecution in support of its case. The prosecution had examined in all 28 witnesses in support of its case. P.W.1 was panch witness in whose presence the revolver and ammunition were seized. P.W.2 is panch who was present at the time of spot panchnama. P.W.3 and 4 were panchas who were present at the time of seizure of bullet retrieved from the injuries sustained by P.W.15. P.W.5 is also panch witness in whose presence number plate was seized. P.W.6 was present when the identification parade was held. He is also one of the panch witnesses. Out of these six witnesses only P.W.2, who had signed the seizure panchnama of one footwear seized from the spot, has supported the prosecution case. Rest of the witnesses were hostile to the prosecution. P.Ws.7 and 8, who were eyewitnesses to the hijacking of the TATA Sumo vehicle, had also not supported the prosecution case. 9. P.W.12 and 13 are the panch witnesses, in whose presence receipt book of Mangal Travel belonging to P.W.11, was seized. P.W.14 is travel agent who had procured TATA Sumo vehicle of Mr. Dhopte. P.W.15 is the complainant and star witness of this case. 9. P.W.12 and 13 are the panch witnesses, in whose presence receipt book of Mangal Travel belonging to P.W.11, was seized. P.W.14 is travel agent who had procured TATA Sumo vehicle of Mr. Dhopte. P.W.15 is the complainant and star witness of this case. P.W.16 is also one of the panch witnesses in whose presence number plate had been seized. P.W.17 is Police Officer who had recorded first information report of P.W.5. P.W.18 was present when the clothes of appellant No.2 were seized. P.W.19 was present when the revolver, live cartridges and empty cartridge were seized by the police. P.W.20 is Police Officer who had seized the receipt book of Mangal Travels in presence of panch witnesses P.W.12 and 13. P.W.11 is Police Constable who carried the seized articles to Forensic Science Laboratory. P.W.22 is panch witness who was present at the time of identification parade. P.W.23 is again panch witness who was present at the time of seizure of the revolver. P.W.24 is an agriculturist who has his agricultural field near the spot and to whom P.W.15 had approached for help. P.W.25 is Investigating Officer. P.W.26 is Medical Officer in whose presence bullet was retrieved by the surgeon. P.Ws.27 and 28 are doctors who had identified the signatures of the Medical Officer who had prepared the certificates as the Medical Officer, who prepared the certificates, was not available for giving evidence in the Court. 10. It can be seen from the description of the witnesses examined by the prosecution mentioned herein above that majority of the panch witnesses were hostile to the prosecution case. The prosecution case is mainly based on the evidence of P.Ws.11 and 15 and also P.W.9 the Police Officer who had intercepted the TATA Sumo vehicle in which appellant and accused No.2 were allegedly travelling. P.W.11 is travel agent who was approached for hiring the TATA Sumo vehicle and P.W.15 was driver of the said vehicle from whose possession the vehicle was allegedly hijacked by the appellant and accused No.2. 11. Let me first examine the evidence of P.W.9. P.W.9 has stated that he was attached to Deolapar Police Station. He had received a wireless message from Control Room that a TATA Sumo vehicle bearing No. MH-31-H-201 had been hijacked from Rajura from the possession of the driver and that it was to be intercepted wherever it was found. Nakabandi was therefore, arranged. P.W.9 has stated that he was attached to Deolapar Police Station. He had received a wireless message from Control Room that a TATA Sumo vehicle bearing No. MH-31-H-201 had been hijacked from Rajura from the possession of the driver and that it was to be intercepted wherever it was found. Nakabandi was therefore, arranged. However, the vehicle while crossing the road from Deolapar did not stop and jumped the Nakabandi. The vehicle was chased and brought to the Police Station. P.W.9 had described as to how he had intercepted the vehicle. He had also stated that one revolver, having two empty cartridges and three live cartridges, was seized by him. But, P.W.9 has not identified the appellant and accused No.2 in the Court. What he has been stated in the evidence is "I can identify the person to whom I had arrested and registered the offence vide 4/97." This obviously, is not an identification. This only indicates that P.W.9 could have identified the person intercepted by him. 12. Let me now go through the evidence of P.W.11 who was approached for hiring the TATA Sumo vehicle. This witness has stated that the appellant and accused No.2 had approached him for hiring TATA Sumo vehicle and that TATA Sumo vehicle was arranged for them. What is interesting to note here that this witness was unable to tell the number of the TATA Sumo vehicle given to the appellant and accused No.2 on hire. In his further examination-in-chief this witness had stated that he had called TATA Sumo vehicle from one Dhopte of Shrikrupa Travels. The said Dhopte has not been examined. However, one Vivek Gotmare (P.W.14) who had worked as intermediary or mediator between P.W.11 and Mr. Dhopte has been examined. He had stated that the TATA Sumo vehicle provided to P.W.11 for his customers was bearing No. MH-31-201. This is not a complete registration number of the vehicle. In any event, what is to be noted is that this witness has neither seen the appellant nor he had seen accused No.2. The evidence of P.W.11 is incomplete. As such joint reading of evidence of P.W.11 and 14 does not prove beyond reasonable doubt that the TATA Sumo vehicle bearing Registration No. MH-31-H-201 was given to the appellant and accused No.2 on hire by P.W.11. The evidence of P.W.11 is incomplete. As such joint reading of evidence of P.W.11 and 14 does not prove beyond reasonable doubt that the TATA Sumo vehicle bearing Registration No. MH-31-H-201 was given to the appellant and accused No.2 on hire by P.W.11. P.W.9 the Police Officer who had intercepted the TATA Sumo vehicle had not identified either the appellant or accused No.2 in the Court. However, P.W.11 had occasion to see the appellant in the police station before test identification parade was held. 13. Let me now go to the evidence of P.W.15 who is star witness of this case. Learned Additional Public Prosecutor has heavily banked upon the evidence of P.W.15. P.W.15 had described the story as stated by him in the first information report. He had narrated the incident as to how the vehicle started from Nagpur, halted at Butibori, Mayur Hotel at Chandrapur and Rajura Bar. He had also described as to how he was threatened by two persons who were travelling in the TATA Sumo vehicle. He had further narrated as to how he was forcibly removed from the vehicle and was attempted to be killed. In his further evidence this witness had also stated that he pretended to be dead and therefore, was thrown away by the said two persons in a nullah. Any how, he reached Rajura Police Station and lodged report. Identity of the said two persons could not be established by the prosecution by evidence of P.W.9, 11 or 14. It is, therefore, necessary to see whether the identity of those two persons could be established by the evidence of P.W.15. I have carefully examined the evidence of P.W.15. It appears that both, the appellant and accused No.2, were not present when P.W.15 was examined in the Court. It is further noted at page No. 134 that the learned counsel for the appellant anti accused No.2 had suggested the Court that witness No.15 had to be recalled for identification of the persons involved in the alleged incident. The said prayer of the learned counsel for the appellant and accused No.2 was kept pending. It was never addressed by the learned trial Judge again. However, a fresh prayer was made by the appellant and accused No.2 themselves on 17.07.2006 to recall the witness. Summons was issued by the Court. The witness could not be traced. The said prayer of the learned counsel for the appellant and accused No.2 was kept pending. It was never addressed by the learned trial Judge again. However, a fresh prayer was made by the appellant and accused No.2 themselves on 17.07.2006 to recall the witness. Summons was issued by the Court. The witness could not be traced. It appears from the roznama that the said witness could not be brought before the Court again and as such the identification by P.W.15 could not be completed. As such, there is no sufficient evidence to fix the identity of the persons who were involved in the alleged offence. 14. The only evidence, which requires consideration, is report of Forensic Science Laboratory in which it is stated that the characteristic feature of the indentation on the cap of country-made brass cartridge seized by the police after retrieval from the injury of P.W.15 tallied with the cartridge test fired from the revolver Exh.1. The revolver Exh.1 is alleged to be the same revolver which was seized from the possession of the appellant. In this regard, in the first place, it may be stated here that the independent panch witness had not supported the prosecution case. Even if the evidence of P.W.9 is accepted to be true and correct and it is accepted that one revolver was seized by P.W.9. The fact remains that P.W.9 has not been able to identify the person from whose possession revolver was seized. I have already stated that P.W.9 has neither identified the appellant nor had he identified accused No.2. Apart from this, the Chemical Analyzer who had examined the revolver and the cartridges has not been examined as a witness. 15. It is thus, clear that the judgment of the learned trial Court convicting the appellant for the offences punishable under Section 397 of the Indian Penal Code and 25(1B)(a) read with Section 3 of the Arms Act cannot be sustained. Hence, I pass the following order. i) The appeal is allowed. ii) The judgment and order passed by learned 5th Ad-hoc Additional Sessions Judge, Chandrapur on 30th August, 2006 in Sessions Case No. 38 of 1998 is set aside. iii) The appellant is acquitted of the offences punishable under Section 397 of the Indian Penal Code and Section 25(1-B) (a) read with Section 3 of the Arms Act. iv) His Bail Bonds shall stand cancelled. iii) The appellant is acquitted of the offences punishable under Section 397 of the Indian Penal Code and Section 25(1-B) (a) read with Section 3 of the Arms Act. iv) His Bail Bonds shall stand cancelled. The appeal, accordingly, stands disposed of. Appeal allowed.