JUDGMENT
S.S. Dwivedi, J.
1. The appellants have preferred these appeals under Section 374(2) of the Criminal Procedure Code feeling aggrieved by the impugned judgment dated 15-12-2005 passed by the 20th Additional Sessions Judge, Indore in Session Trial No. 58/ 2004 whereby both the appellants have been found guilty under Section 395 read with Section 397 of the Indian Penal Code and each of them has been sentenced to 10 years’ rigorous imprisonment with fine of Rs. 50,000/-. Similarly, both the appellants have also been found guilty under Section 450, IPC and each of them has been sentenced to 5 years’ rigorous imprisonment with fine of Rs. 5,000/-. Appellant/accused-Pravin further found guilty under Section 25(1-B)(a) of the Arms Act and sentenced to 2 years rigorous imprisonment with fine of Rs. 2,000/- and also under Section 27 of the Arms Act and sentenced to 3 years rigorous imprisonment with fine of Rs. 3,000/-, All the sentences were ordered to run concurrently.
2. Briefly stated facts of the case are that on 8-9-2003 at about 12.25 p.m. in the afternoon some 5-6 persons entered into Dena Bank Branch situated at Bapat Square at Indore committed dacoity. They collected all the persons present in the Bank in a room and some persons covered them by arm, thereafter one person having pistol in his hand asked the Bank Manager for supply of key of the strong room and after opening, the safe in the strong room looted currency, notes of near about Rs. 13 lacs from the cash chest of the strong room and thereafter all these persons ran away from the Bank. Immediately information has been given to the Police Station, Hira Nagar, Indore. Then the Police Sub-Inspector Baldev Singh Thakur (PW-52) reached in the Bank where Bank Manager Ashok Kumar Dube lodged first information report Ex. P/l for bank dacoity, on which basis a case has been registered as “Dehati-Nalishi”. Investigating Officer prepared the spot map Ex. P/2. Bank Manager also submitted the details of the currency notes which were looted from the Bank Chest. Total looted amount found to be Rs. 13,95,720/-. Police has recorded the statement on 9-10-2003. Accused/appellant-Harish Kumar has been arrested and on interrogation, he gave information as per Ex. P/4. Similarly, appellant/accused-Pravin has also been arrested. After his arrest, also given information with regard to seizure of some currency notes, which were being looted by them from Dena Bank, Indore. Appellant/accused-Harish Kumar had been identified by witnesses Surendra Kumar Sahay s/o Nand Sahay and Mahendra Chouhan before the Executive Magistrate in Central Jail at Indore Ex. P/6 and Ex. P/ 22. Similarly, appellants-Pravin and Harish Kumar both had been identified by witnesses Daman Singh is/o Sharda Singh and Ashok Kumar Dube s/o Shivnarayan Dube, Bank Manager as the persons who had committed this dacoity on the date of the incident in the Bank concerned Ex. P/7 and Ex. P/ 42. Identification rnemos Ex. P/6, P/7, P/ 22 and P/42i were prepared by the Executive Magistrate. Other accused persons have not been traced. Shirish Dole s/o Madhukar Dole has identified one bag which was seized from the possession of the accused which has been looted at the time of incident by the dacoits. After investigation charge-sheet has been filed against these two accused together with their unknown companion for the offence punishable under Section 395/397, IPC. Both these accused persons abjured the guilt and their defence is of false implicaton in this case. Learned trial Court, after due appreciation of the entire prosecution evidence on record, held both the appellants guilty for the offence punishable ‘under Section 395/397 and also under Section 450, IPC and appellant/accused-Pravin further found guilty under Sections 25(1-B)(1) and 27 of the Arms Act also and sentenced as stated hereinabove. Feeling aggrieved by which, both the appellants have preferred these two appeals which are being decided by this common judgment.
3. I have heard learned Counsel for the appellants as well as learned Government Advocate for the State and perused the record.
4. It is submitted by the learned Counsel for the appellants that identification of the appellants/accused have not been properly proved by the prosecution. It is also on record that the witnesses have got an opportunity to see the accused persons in the Police Station at Hira Nagar itself, therefore, after that, identification before Executive Magistrate is of having no value. Similarly, no seizure has been proved from the possession of the aforesaid accused persons, therefore, prayed for setting aside of the impugned judgment passed by the trial Court and also prayed for acquittal of the appellants.
5. In reply, learned Government Advocate supported the impugned judgment and submits that the prosecution has fully proved the identification of the accused persons by four eye-witnesses. Incident took place in the afternoon at about 12.15 p.m. and it is also on record that all the accused persons had not covered their face at the time of incident and there is all possibility for identification of the accused persons by Bank Manager and other witnesses and on that basis, they have specifically identified these two accused persons, who had committed dacoity on the date of incident and thus, their statement for the involvement of these two accused cannot be disbelieved and thus, learned trial Court has rightly held the appellants guilty for the aforesaid offences and no substantial grounds are available for any interference in the impugned judgment of conviction, therefore, prayed for dismissal of the appeals.
6. To bring home the charge as levelled against the appellants, first of all with regard to the incident of dacoity is concerned, witness Ashok Kumar Dube (PW-1) who was the Bank Manager at the relevant time in the concerned Dena Bank wherein the incident of the dacoity took place. He clearly stated that 4-5 persons entered into the Bank and started threatening the customers who were present in the Bank and collected them and threatened them to be killed by the gun, which the appellant was having in his hand. Then one person demanded key from Cashier Mahendra Chouhan for safe and after opening the safe, they collected the money in two boxes. Accused persons also taken cell phone from all the customers and after collecting money, they came out of the Bank and shut the door of the Bank from the outside and thereafter ran away. Thereafter Cashier Batham has alarmed the security bell and also informed the Police on telephone. Then Police came there and he lodged first information report Ex. P/1 and after checking the cash, it was found that the accused persons took away currency notes of Rs. 13,95,720/-.
7. The statement of the aforesaid witness Ashok Kumar Dube (PW-1), Bank Manager has got further support by the statement of Surendra Kumar (PW-4), Daman Singh (PW-5), Sirish Dhole (PW-6) and Mahendra Chouhan (PW-10), Bank Cashier, all are Bank employees and Deepak Kumar Kharte (PW-7) and Santosh (PW-11) are the bank customers present at the time of incident. Ajay Kumar Tandon (PW-21), Ashish Goyal (PW-22), Deepak Sompurkar (PW-23), Suresh (PW-24), Nathulal (PW-25), Sangita Silawat (PW-27), Govind Singh (PW-29), Shaifali (PW-30) and Prahlad Kumar Gothwal (PW-44). All these witnesses clearly stated that on the date of incident some 4-5 persons entered into the Bank and committed dacoity. They were armed with weapons and collected all the persons in a hall and also covered them by gun and then few of them forcibly took key and took away the currency notes from the Bank chest. On this point, nothing substantial came in the cross-examination of these witnesses, on which basis, the whole incident of dacoity narrated by the witnesses can be disbelieved.
8. Thus, on the basis of the statement of aforesaid prosecution witnesses, the prosecution has firstly proved the fact that on the date of incident i.e. on 8-9-2003 some 4-5 persons forcibly entered into the Bank situated at Bapat Square, Indore. They were armed with weapons and they committed dacoity by forcibly taking away the currency notes of Rs. 13,95,720/- from the safe of the Bank concerned.
9. Now crucial point arises as to whether these are the accused who were involved in the aforesaid dacoity case. For this, the main evidence brought before the trial Court is identificaton of these two accused persons by the witnesses and employees of the Bank concerned. For this, Surendra Kumar (PW-4) who is the Bank employee who clearly stated that it is the appellants/accused who entered into the Bank with their three companions and committed this dacoity and taken away currency notes after filling it in the bag. He went to jail and identified these two accused persons before Executive Magistrate, for which he signed the identification memo Ex. P/6. In cross-examination, this fact has been brought by the defence that certain photographs were shown to him in the Police Station, but he denied this fact that photographs of the present accused persons have been shown to him in the Police Station. It might be true that after the incident of dacoity, Police tried to show certain photographs for purpose of identification of the various accused persons may be involved in this incident and by this itself cannot be presumed that this witness Surendra Kumar was having an opportunity to see these two accused persons also. Thus, this witness Surendra Kumar (PW-4) clearly proved the fact that he identified these two accused persons who had committed this dacoity in the Bank itself and he also identified these accused persons before the Executive Magistrate in Central Jail also and in cross-examination also, he denied the fact that he had an opportunity to see the accused persons in the Police custody after their arrest.
10. Similar is the statement of the 2nd witness Daman Singh (PW-5) who is also Bank employee who also identified these two accused persons before Executive Magistrate as the persons who committed dacoity on the date of incident in the Bank concerned, for which he admitted his signature on identificaton memo Ex. P/7. Similarly, witness Shirish Dhole (PW-6) identified appellant/accused-Harish Kumar as the person who had committed dacoity in the Bank. Similar is the statement of Mahendra Chouhan (PW-10) also, who also identified these two accused persons in Central Jail, Indore before the Executive Magistrate as per identification memo Ex. P/22 as the persons who committed dacoity in the Bank.
11. Learned Counsel for the appellant stressed upon the fact that all these witnesses in cross-examination stated that they have an opportunity to see the accused persons in the police custody. In that case, identification parade of the accused persons before the Executive Magistrate is of no value. Similarly identification at the time of statement before Court dock identification is also having no value and on that basis the appellant cannot be held guilty for the commission of the offence of dacoity. Learned Counsel for the appellant placed reliance on the decision of this Court reported in Desraj v. State of Madhya Pradesh 1996 JLJ 21, wherein it is held that “dock identification of the accused persons is of having no value and on that basis, appellant cannot be held guilty for the offence of dacoity”.
12. Similarly, learned Counsel for the appellants also placed reliance on the decision of Reechco Hemraj and Anr. v. State of Madhya Pradesh 1981 MPLJ 457 : 1981 Cri LJ (NOC) 110, wherein it is held that “if identification parade was not held immediately, then on the basis of such delayed identification of the accused, it is not safe to hold the accused guilty for the offence punishable under Section 395, IPC”.
13. The facts of all these two cases are different to the facts of the present case. In the present case, none of the witnesses stated that they had an opportunity to see the accused persons before the identification parade before the Executive Magistrate in Central Jail. Similarly, in the present case, the so-called dacoity took place in the midday at 12.30 p.m. It is also on record that all the accused persons entered into the Bank. They have not covered their face by anything, therefore, witnesses who identified these two accused persons have got full opportunity for identification of the accused persons and on that basis, they have identified these two accused persons before the Executive Magistrate in Central Jail, therefore, identification by these witnesses cannot be disbelieved.
14. Hon’ble Apex Court in Chander Singh v. State of U.P. , held that “if a witness stated about identification of the accused at the time of incident, which took place in the broad daylight and they have an opportunity to mark the faces and the features of the miscreants, then in such circumstances, identification of miscreants could not be said to be unreliable”.
15. Similarly. Hon’ble Apex Court in Shiv Charan v. State of Haryana , held “if one witness is not able to identify each one of the dacoits and other witnesses identified all the accused persons, in such circumstances, the statement of the witnesses with regard to the involvement of the accused persons for the commission of offence of dacoity cannot be disbelieved whereas their testimony is further corroborated by the identification parade before the competent authority”.
16. The identification of the accused persons by the aforesaid witnesses as stated hereinabove has been properly proved by the Executive Magistrate Chand Mohamad Khan (PW-55) who proved the fact that witnesses have identified properly accused/appellants-Pravin as well as Harish Kumar as the persons who committed dacoity in the Bank.
17. Thus, on the basis of the identification of these two accused persons by the witnesses as stated hereinabove, also proved the facts that the appellants are the persons who committed dacoity together with their three other companions and taken away forcibly currency notes of Rs. 13,95,720/- from the Bank concerned.
18. With regard to the seizure of the looted property is concerned. Baldev Singh Thakur (PW-52) who is investigating officer who proved the fact that after the arrest of 12 bore country-made pistol has been seized from the possession of the appellant-Pravin and also seized Rs. 40,000/- currency notes from his possession in an iron box kept in his house, Similarly, this witness alto proved that a black colour bag hat been seized from the possession of the co-accused Harish Kumar, which hat been identified by Cashier Shlrish Dhole (FW-6) as the bag which the accused persons took from him forcibly for keeping money in that bag which were looted from the Bank. Identification memo Ex. P/15 has been proved by witness Shirish Dhole (PW-6) as well as village Sarpanch Narmadabai before whom this identification took place. This has been identified by the witnesses. Thus, by the statement of the Seizing Officer Baldev Singh Thakur (PW-52), it is proved that a country made pistol and currency notes of Rs. 40,000/- has been seized from the possession of the appellant/ accused-Pravin and one black colour bag has been seized from the possession of the accused-Harish Kumar which has been, identified by Shirish Dhole (PW-6) also.
19. The country-made pistol has been examined by Irfan (PW-53) Head Armour of DRP Lines and found it to be in a fit condition for fire, for which proved, report Ex., P/ 41. The prosecution has also proved circumstances with regard to the presence of accused persons at Indore on the date of incident and before it. Admitted, both these accused persons belonged to Uttar Pradesh and thus, their presence before the incident at Indore is also a material circumstances to be looked into. Their presence at Indore has been proved by the statement of Prashant (PW-9) who proved the presence of the appellant/accused-Pravin since June 2003 at Indore who took a room on rent at Pardeshipura and he also proved the presence of one more companion with accused Pravin for near about 20 days in the same room.
20. Other seizure witnesses examined by the prosecution are Shivsagar (PW-14), Shyambahadur Yadav (PW-15), Jagdish Singh (PW-16), Puroshattam Gupta (PW-17), Saroj Kumar Singh (PW-18), Sunil (PW-20), Abdul Qayyum (PW-28) and Yudhisthir Maharaj (PW-31) have not supported the seizure from the possession of the accused persons or their statement with regard to the seizure, All these witnesses have been declared hostile by the prosecution. They have admitted their signature on the various memos prepared by the Police on the basis of the statement of this hostile witnesses. The statement of the Seizing Officer Baldev Singh Thakur (PW-52) cannot be disbelieved, who clearly, stated and proved the seizure of the articles from the possession of these accused persons.
21. Thus, on overall reappreciatlon of the entire prosecution evidence on record, in my considered opinion, the prosecution has fully established the fact that Bank dacoity took place on 8-9-2003 at Dena Bank Branch situated at Bapat Square, Indore where in Rs. 13,95,720/- has been looted by the miscreants. The prosecution has also proved the identification of these two accused persons by Bank employees and other witnesses as the incident took place in the broad day light and it is also on record that the accused persons had not covered their faces by something, by which their identification can be disbelieved. It is also proved by the statement of the Seizing Officer that bag had been seized from the possession of Harish Kumar and Rs. 40,000/-cash as well as country-made pistol had been seized from the possession of the appellant/accused-Pravin and it is also proved that before the incident both the accused persons were also residing at Indore and their presence at Indore is also a material circumstances whereas both these accused persons are not the resident of Indore itself. Thus, on overall discussion, it is proved that the appellants/accused had committed dacoity on the date of incident and at that time they were armed with deadly weapon and unlicensed country-made pistol had been seized from the possession of the appellant/accused-Pravin which is an offence punishable, under Sections 25 and 27 of the Arms Act and thus, the act of the dacoity committed by the appellants is also punishable under Sections 395/397 and 450, IPC. Thus, learned trial Court has rightly found them guilty for the aforesaid offence.
22. With regard to the sentence is concerned, looking to the nature of the incident, the sentence as awarded by the trial Court is not said to be excessive and no grounds are available for any reduction in the sentence.
23. Resultantly, both these appeals (Criminal Appeal No. 58/2006 preferred by the appellant/accused-Harish and Criminal Appeal No. 113/2006 preferred by appellant/accused-Pravin) being devoid of any merits are dismissed accordingly.