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2019 DIGILAW 2035 (RAJ)

Satpal v. State of Rajasthan

2019-07-24

GOVERDHAN BARDHAR, SABINA

body2019
JUDGMENT 1. Vide this order above mentioned five appeals would be disposed of. 2. Appellants had faced trial in FIR No.146 dated 08.06.2012 registered at Police Station Udhyog Nagar, District Bharatpur for the offence punishable under Sections 395 and 397 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). 3. Prosecution story, in brief, was that on 08.06.2012 at about 12.40 p.m., 8/10 persons entered the State Bank of Bikaner and Jaipur, Branch Udhyog Nagar, District Bharatpur. The said persons snatched the rifle from the guard and started beating him. They snatched cash lying in the cabin from the cashier Vivek Anand. They also then entered the strong room and took away Rs.4,28,195/- lying in the strong room. 4. After completion of investigation and necessary formalities, challan was presented against the appellants and Manoj Thakur and Pankaj @ Bhoja. So far as accused Rajkumar is concerned, he was declared an absconder. Accused Pankaj @ Bhoja died during the pendency of the trial. 5. Charges were framed against the appellants under Sections 395/120-B and 397 IPC. Charge under Section 3/25 of Arms Act, 1959 (hereinafter referred to as 'the Act') was also framed against accused Sandeep @ Nikki. 6. Accused did not plead guilty to the charges framed against them and claimed trial. 7. In order to prove its case, prosecution examined twenty eight witnesses during trial. Accused when examined under Section 313 Code of Criminal Procedure, 1973, prayed that they were innocent and had been falsely involved in this case. 8. Accused examined two witnesses in their defence. 9. Trial court vide judgment/order dated 22.05.2017 ordered the conviction and sentence of the appellants under Sections 395 and 397 read with Section 120-B IPC. Appellant Sandeep @ Nikki was acquitted of the charge framed against him under Section 3/25 of the Act. Accused Manoj Thakur was acquitted of the charges framed against him. Hence, the present appeals by the appellants. Accused Raj Kumar was later arrested and has been acquitted by the trial court vide judgment dated 13.03.2019. 10. Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove that the offence-inquestion had been committed by the appellants. PW-3 Vivek Anand cashier and PW-10 Shailesh Kumar bank employee have failed to identify the appellants during trial. No reliance could be placed on the testimony of PW-1 Narendra Kumar Vaswani and PW-2 Parasram. 10. Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove that the offence-inquestion had been committed by the appellants. PW-3 Vivek Anand cashier and PW-10 Shailesh Kumar bank employee have failed to identify the appellants during trial. No reliance could be placed on the testimony of PW-1 Narendra Kumar Vaswani and PW-2 Parasram. From the cross-examination of PW-2, it was evident that all the accused had been shown to the PW-1 and PW-2 in the police station before their identification parade. PW-1 has stated that some of the accused had covered their faces with a cloth. PW-4 Ram Singh, Assistant Manager did not support the prosecution case, during trial. 11. Learned State counsel has opposed the appeals. 12. Present case relates to bank robbery committed on 08.06.2012 at about 12.40 p.m. Material witnesses in the present case would be complainant-Narendra Kumar Vaswani (PW-1), guard Parasram (PW-2), cashier Vivek Anand (PW-3) and bank employee Shailesh Kumar (PW-10). So far as PW-3 Vivek Anand is concerned, he failed to identify the accused during trial. Similarly PW-10 Shailesh Kumar also failed to identify the accused during trial. 13. Complainant-Narendra Kumar Vaswani while appearing in the witness box as PW-1 deposed as per the contents of the FIR. He further deposed that he had identified accused Arun @ Fauji @ Anil @ Gudda, Shyam Pathak @ Shyam Kishore Pathak, Satpal, Sandeep @ Nikki and Raju @ Rajkumar in an identification parade conducted druing investigation. In his cross-examination, he deposed that the person who had entered his room, had covered his face. Some of the persons had covered their faces. He could not tell as to how many of the accused had covered their faces and how many of them were with uncovered faces. None of them had made any effort to remove the cloth from the face of the accused. He could not tell as to whether the persons, who had covered their faces were supporting beard or not. He could not tell after how many days, he had gone to jail for identification of the accused. He further stated that it was correct that he could not correctly identify the accused as they had covered their faces. 14. PW-2 Parasram has corroborated the statement of PW-1 with regard to the incident. He could not tell after how many days, he had gone to jail for identification of the accused. He further stated that it was correct that he could not correctly identify the accused as they had covered their faces. 14. PW-2 Parasram has corroborated the statement of PW-1 with regard to the incident. He further deposed that he had identified accused Arun @ Fauji @ Anil @ Gudda, Shyam Pathak @ Shyam Kishore Pathak, Satpal, Sandeep @ Nikki and Raju @ Rajkumar during identification parade. In his cross-examination, he deposed that he knew before he had gone for identification parade that accused have been arrested. He had seen the accused, who had been arrested in the police station. He had identified those persons in jail whom he had seen in the police station. He also admitted that he had gone to the police station along with manager Narendra Kumar Vaswani and bank employees Ram Singh and Shailesh Kumar. 15. Thus, from the statement of PW-2, it transpires that the accused were arrested and witnesses had seen them in the police station before their identification in the jail. From the statement of PW-1, it transpires that the accused had covered their faces and the said witness has admitted in his cross-examination that due to this reason, he could not properly identify the accused. Thus, the statement of PW-1 and PW-2 fail to connect the appellants with the crime-in-question as the identification of the accused in the present case by the said witnesses is rendered doubtful. 16. PW-14 Atar Singh deposed that during investigation, Rs.1,56,000/- were recovered on the basis of disclosure statement suffered by accused Sandeep @ Nikki. He proved Exhibit-P-19, Seizure memo in this regard. PW-14 has further deposed that Rs.45,000/- were recovered on the basis of disclosure statement suffered by accused Sandeep @ Nikki and the same were taken in possession vide memo Exhibit-P-23. However, PW-1 has deposed in his cross-examination that he had never been called for the purposes of identification of the recovered cash. Thus, conviction of the accused Sandeep @ Nikki cannot be based on account of recovery effected from him. 17. Thus, in the present case, appellants are liable to be acquitted by giving them benefit of doubt as their participation in the crime is rendered doubtful on account of their lack of identification. 18. Thus, conviction of the accused Sandeep @ Nikki cannot be based on account of recovery effected from him. 17. Thus, in the present case, appellants are liable to be acquitted by giving them benefit of doubt as their participation in the crime is rendered doubtful on account of their lack of identification. 18. It is settled proposition of law that the prosecution is required to prove its case beyond the shadow of reasonable doubt by leading cogent and convincing evidence and an accused is to be presumed innocent till proved guilty. However, in the present case, prosecution has failed to prove its case against the appellants beyond the shadow of reasonable doubt. 19. Accordingly, appellants are acquitted of the charges framed against them by giving them benefit of doubt. Appeals filed by the appellants are allowed. Impugned judgment/order passed by the trial court dated 22.05.2017 are set aside. Appellants who are in custody, be set at liberty forthwith, if not required in any other criminal case. 20. In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants namely Satpal S/o Sh. Baldev Singh, Shyam Pathak alias Shyam Kishore Pathak S/o Shri Roopkishore Pathak, Arun @ Fauji @ Anil @ Gudda S/o Harisharan @ Haricharan, Harendra @ Guddu @ Virendra S/o Jawahar Singh @ Ramveer and Sandeep @ Nikki S/o Shri Pratap Singh are directed to furnish a personal bond in the sum of Rs.25,000/- each, and a surety in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.