Judgment : PW1 Ajay Sharma wrote a complaint (Ext. Ka-1) to Station Officer, police station, Bhatraujkhan, on 05.04.1999, against four unknown persons, regarding an incident of robbery and murder which took place on 05.04.1999, at 02:00 P.M. Said complaint was registered on the selfsame day, at 06:25 P.M., as case crime no. 02 of 1999, at police station Bhatraujkhan, District Almora, in respect of the offences punishable under Sections 302, 394 of IPC. The distance between the place of incident and the police station concerned was 5-6 kms. The FIR was lodged within a span of six hours and hence there appeared to be no delay in lodging the FIR. After the investigation of the case, a charge-sheet was submitted against accused Kishore Singh Rawat, Rajendra Singh s/o Narain Singh, Rajendra Singh s/o Jaman Singh, Deep Chand Bhatt and Syed Fahim, for the offences punishable under Sections 396, 412 of IPC. The case was committed to the Court of Sessions. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 396 of IPC, in the alternative under Section 302 of IPC and Section 412 of IPC were framed against the accused persons, who pleaded not guilty and claimed trial. 2) PW1 Ajay Sharma, PW2 Umesh Chand, PW3 Suresh Singh, PW4 S.O. J.C. Pathak, PW5 constable Yogesh Chandra and PW6 S.O. Anand Singh Gusain (I.O.) were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. No evidence was given in defence. During the course of trial, the case of accused Rajendra Singh s/o Jaman Singh was separated. After considering the evidence on record, learned Sessions Judge, Almora, vide judgment and order dated 15.05.2002, acquitted accused Rajendra Singh s/o Narain Singh and Deep Chand Bhatt of the charges framed against them. Accused-appellants Kishore Singh and Syed Fahim were convicted under Section 396 of IPC. They were, however, acquitted of the charge under Section 412 of IPC. Both the convicts were sentenced to undergo rigorous imprisonment for a period of ten years under Section 396 of IPC and were also directed to pay a fine of Rs. 10,000/- each. Feeling aggrieved against the impugned judgment and order, present criminal appeals were preferred by the accused-appellants. They were, however, acquitted of the charge under Section 412 of IPC. Both the convicts were sentenced to undergo rigorous imprisonment for a period of ten years under Section 396 of IPC and were also directed to pay a fine of Rs. 10,000/- each. Feeling aggrieved against the impugned judgment and order, present criminal appeals were preferred by the accused-appellants. Since both the criminal appeals have arisen out of same FIR and same judgment under consideration, therefore, they are being decided together by this common judgment and order for the sake of brevity and convenience. 3) Prosecution led the evidence through PW1 (informant as well as the injured driver). In his examination-in-chief, PW1 supported the prosecution story, and proved the contents of his complaint (Ext. Ka-1). According to PW1, about three years ago (from the date of his deposition), more particularly on 05.04.1999, he was the driver of a Maruti van having registration no. UP 21G 2579, which was being run as taxi at Moradabad. On 05.04.1999, Syed Fahim and Kishore Singh came to him and booked taxi. They told him that PW1 has to go from Moradabad to Manila via Ramnagar and back to Ramnagar. The fare was settled. PW1 proceeded at 11:00 A.M. alongwith Fahim and Kishore Singh. Mahesh Chandra Sharma, owner of the taxi, also accompanied them. As soon as PW1 came in the outskirt of Moradabad, Kishore Singh and Syed Fahim told him to stop the taxi because they have to take tea. They reached Ramnagar at 12:30 P.M. Petrol was filled up in the vehicle. When the taxi reached 5-6 kms. ahead of Mohan, they saw a jeep coming from the other side. Kishore Singh and Fahim had a feeling of vomiting. Mahesh Chandra Sharma asked PW1 to stop the taxi. The jeep coming from the opposite side also stopped. Two persons alighted from the jeep. One person pointed a country made pistol on PW1. He fired on PW1, but the same luckily missed the target. Three persons started assaulting Mahesh Chandra Sharma with hammer. One of the accused assaulted PW1 with the butt of country made pistol. The incident happened at around 02:00 P.M. Mahesh Chandra Sharma was killed and his dead body was thrown in a gorge. All the four accused persons, then started assaulting PW1, who resisted the blow of hammer from his hands, as a consequence of which, he sustained injuries. One of the accused assaulted PW1 with the butt of country made pistol. The incident happened at around 02:00 P.M. Mahesh Chandra Sharma was killed and his dead body was thrown in a gorge. All the four accused persons, then started assaulting PW1, who resisted the blow of hammer from his hands, as a consequence of which, he sustained injuries. PW1 was beaten inside the taxi and thereafter was dragged outside the taxi. PW1 jumped into the bush. There was a village situated nearby. An old man was seen by PW1, who told him that he wouldn’t be able to help him. Thereafter, PW1 went to Mohan Chowki police check post and lodged complaint (Ext. Ka-1). PW1 was not acquainted with Kishore Singh and Fahim before this incident. PW1 remained at police station, Bhatraujkhan for next three days. The names of Kishore Singh and Syed Fahim came into light after 6-7 days of the incident. Said names were disclosed by a homeguard. PW1 also said that he did not go to jail for identifying any of the accused person. In his cross-examination, PW1 said that he and deceased were mohallites (belonging to same locality). When the taxi was not plied, the same used to be parked at Mahesh Chandra’s residence. PW1 went to taxi stand at 07:00 A.M. Two persons came for booking of taxi at 11:00 A.M. PW1 and Mahesh Chandra were present at the taxi stand at that time. Report was lodged against four unknown persons, in as much as, four persons committed the crime, i.e., two persons, who were sitting in the taxi and the other two, who came subsequently in a jeep. PW1 denied the suggestion that he was not the taxi driver. He also denied the suggestion that he was not having valid driving licence to run the taxi. PW1 was not the relative of the deceased. Deceased was his mohallite. PW1 returned from police station, Bhatraujkhan to Moradabad. He denied that no such incident took place. 4) Thus, nothing worth substance came in the cross-examination of PW1, which might be of some benefit to the accused-appellants (except doubt on identification). Infact, there was no cross-examination of PW1 on material points. The testimony of PW1 could not be doubted otherwise. The only question which is left for consideration of this Court is whether PW1 was able to correctly identify the accused-appellants or not? Infact, there was no cross-examination of PW1 on material points. The testimony of PW1 could not be doubted otherwise. The only question which is left for consideration of this Court is whether PW1 was able to correctly identify the accused-appellants or not? The accused-appellants met PW1 at Moradabad, booked the taxi, accompanied him upto Mohan Chowki, committed the crime and killed the owner of the taxi. PW1 jumped into the bush in order to save his life. In other words, PW1 remained with the accused-appellants for a considerable period of time. Right from Moradabad to Mohan Chowki, he had every opportunity to identify the accused-appellants. PW1 was the most natural witness, as nothing has come in his cross-examination to suspect that he was telling a lie, but unfortunately, PW1 was not taken to the District Jail, Almora for identifying the assailants. PW1 has nowhere stated that the accused persons-appellants were present in the court, when he came to depose before the trial court on 14.03.2002 and 20.03.2002. Even if he would have said so, the inefficiency of the Investigation Officer has created serious inroads into the prosecution story. 5) PW2 was the brother of the deceased. PW2 stated in his examination-in-chief that on 05.04.1999, at 11:00 A.M., he came to taxi stand, where many taxis were parked. Two persons were talking to his brother Mahesh Chandra (since deceased) and taxi driver Ajay Sharma (PW1). PW2’s nephew Lucky Sharma was also present there. The taxi was booked for Rs. 1,500/-. Thereafter, driver (PW1), his brother Mahesh and those two persons, who booked the taxi, proceeded for onward journey. Subsequently, PW2 was informed on telephone that his vehicle met with an accident near Mohan Chowki. The said information was given to him by the police personnel. PW2 further stated that he saw those persons, who came for the booking of taxi. PW2 was summoned in jail for identifying those persons. According to PW2, he correctly identified those persons. He also identified those persons in the trial court. PW2 pointed out towards Syed Fahim (appellant) and Rajendra Singh (non-appellant) in the trial court and said that they were seen by him at the taxi stand. They were seen by PW2 for the first time in the taxi stand and subsequently in the jail (for TIP). He also identified those persons in the trial court. PW2 pointed out towards Syed Fahim (appellant) and Rajendra Singh (non-appellant) in the trial court and said that they were seen by him at the taxi stand. They were seen by PW2 for the first time in the taxi stand and subsequently in the jail (for TIP). 6) In his cross-examination, PW2 denied the suggestion that by the time he reached taxi stand at Moradabad, his brother (since deceased) had already taken the taxi for onward journey. PW2 stated that victim had conversation with the accused persons and thereafter PW1 and the victim sat in the taxi and proceeded for onward journey. PW2 gave a clue of the faces of the accused persons. Lucky Sharma was also present at the taxi stand. PW2 brought Lucky alongwith him in the court. Test Identification Parade was conducted after a period of two months of the incident. In the cross-examination, PW2 stated that he correctly identified Syed Fahim and Rajendra Singh in the TIP. When accused persons were arrested, PW2 did not go to the police station. Lucky Sharma also did not go to the police station. PW2 was not aware whether PW1 went to the police station or not? 7) PW3 was the owner of the jeep no. UP28 0016. PW3 hired Deep Chand Bhatt as driver of the said jeep, which was being run between Haldwani to Almora-Bageshwar. On 04.04.1999, driver Deep Chand Bhatt told PW3 that the jeep was booked for carrying passengers to Purnagiri. Deep Chand took the jeep at 6:00-7:00 A.M. On 04.09.1999, police informed PW3 that some persons sitting in the jeep committed loot. PW3 did not know as to who committed the loot? This Court need not discuss the evidence of PW3, in as much as, accused Deep Chand Bhatt was already exonerated of the charges framed against him by the trial court. 8) PW4 found the taxi near Bhikiasain trisection. Registration no. of the said taxi was UP 21G 2579. It appeared to PW4 that the said taxi was used in robbery, which took place near Mohan Chowki. He made an entry to this effect in the G.D. (Ext. Ka-2). PW4 brought the taxi with the help of a mechanic in the police station and entered the same fact in the G.D. (Ext. Ka-2). It appeared to PW4 that the said taxi was used in robbery, which took place near Mohan Chowki. He made an entry to this effect in the G.D. (Ext. Ka-2). PW4 brought the taxi with the help of a mechanic in the police station and entered the same fact in the G.D. (Ext. Ka-2). 9) PW5 was the member of the police party, who apprehended five miscreants on 11.04.1999 and recovered a 32 bore revolver, four country made pistols, three prohibited knives and some live cartridges from their possession. A Maruti van (taxi) was recovered on their pointing. The vehicles used in the alleged crime were taken to the police station and recovery memos of recovery of such vehicles were prepared. Accused persons were arrested. A hammer was recovered at the instance of accused Rajendra Singh. Accused persons disclosed their names as Kishore Singh, Rajendra Singh s/o Narain Singh, Rajendra Singh s/o Jaman Singh, Deep Chand Bhatt and Syed Fahim. When his testimony is examined with vehemence, the evidence tendered by PW5 does not inspire confidence in the prosecution story. In other words, on a closer scrutiny, the evidence tendered by PW5 was not acceptable. According to PW5, everything happened in one go, as if the stage was all set for PW5 and PW6 to come and do the needful. 10) PW6 was the I.O. of the case as well as the witness of recovery of incriminating articles from the possession of the accused persons and their arrest. 11) No independent witness was examined in support of the testimony given by PW5 and PW6. Two witnesses, namely, Umesh Chand Sharma (PW2) and Lucky Sharma (not examined) were summoned at District Jail, Almora for TIP of Rajendra Singh (non-appellant) and Syed Fahim (appellant). Accused-appellant Kishore Singh was not put up for TIP. Accused Syed Fahim was correctly identified by Umesh Chand Sharma and Lucky Sharma. PW2 Umesh Chand Sharma also correctly identified Syed Fahim before the trial court. Why accused-appellant Kishore Singh was not put up for TIP, is beyond ones’ imagination? The fact remains that although PW1 could be the best witness to identify the accused-appellants, but he was not summoned as a witness for TIP. PW2 correctly identified appellant Syed Fahim, but Kishore Singh (another appellant) was not put up for TIP. Lucky Sharma was not examined as prosecution witness. The fact remains that although PW1 could be the best witness to identify the accused-appellants, but he was not summoned as a witness for TIP. PW2 correctly identified appellant Syed Fahim, but Kishore Singh (another appellant) was not put up for TIP. Lucky Sharma was not examined as prosecution witness. 12) Non-production of PW1 (as witness) for TIP of the accused persons / assailants proved fatal to the prosecution story. It was PW1, who was present at Moradabad taxi stand, when the accused-appellants came there to book the taxi and paid the fare. Accused-appellants accompanied PW1 upto Mohan Chowki. There must have conversation with PW1 on the way. They also took tea on way to Ramnagar. They spent considerable time with each other while travelling from Moradabad to Mohan. PW1 could have been the best witness to identify the assailants when they were put up for TIP, but unfortunately, PW1 was not given the opportunity or PW1 did not come to identify the assailants. Further, only accused Rajendra Singh and Syed Fahim were put up for TIP and not the appellant Kishore Singh. Although appellants Kishore Singh and Syed Fahim were identified by PW1 in the trial court, but the same was not enough. Thus, non-production of PW1 for TIP proved fatal to the prosecution story. Still further, Kishore Singh was not put up for TIP at all. Syed Fahim was although correctly identified by PW2 and Lucky Sharma, but Lucky Sharma was not examined before the trial court. It will, therefore, not be safe to convict appellant Syed Fahim on the basis of single identification of PW2, whose presence at Moradabad taxi stand was not free from doubt. PW1, nowhere in the FIR written by him, indicated the presence of PW2 at taxi stand Moradabad. It appears that PW2 was a got up witness. Deceased Mahesh Chandra Sharma could not have been brought by the prosecution to depose. PW1 did not come forward to identify the assailants in the TIP and, therefore, it appears that the I.O. had no option but to introduce PW2, who had little scope of correctly identifying the accused persons at Moradabad taxi stand. This fact has not been brought on record that PW2 was a keen observer. 13) In the circumstances, will it not be proper to give the appellants benefit of doubt? This fact has not been brought on record that PW2 was a keen observer. 13) In the circumstances, will it not be proper to give the appellants benefit of doubt? In a nutshell, prosecution was unable to prove the case against the appellants beyond a shadow of reasonable doubt and, therefore, the impugned judgment and order, as also the conviction and sentence awarded to the appellants, is liable to be set aside. 14) Criminal appeals preferred on behalf of appellants Syed Fahim and Kishore Singh Rawat are allowed. Conviction and sentence awarded to these appellants is, accordingly, set aside. They are acquitted of the charges framed against them. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. 15) Let a copy of this judgment alongwith the lower court records be sent to the Court below for compliance.