JUDGMENT
Amareshwar Sahay, J.
1. The appellant, Chandra Kishore Verma along with five others ware put on trial for committing the offence under Sections 395, 397 and 120-B of the Indian Penal Code and under Section 27 of the Arms Act for committing dacoity in the house of the informant, Om Prakash Pacheriwala. The learned trial Court by the impugned judgment dated 20th August, 1993 convicted and sentenced him for the aforesaid offences and directed him to undergo Rl for a period of 7 years under both counts. So far as the other accused who were put on trial along with the appellant, were acquitted from the charges.
2. The prosecution story, in short, is that on 18.9.1991, at about 8.15 pm, while the informant, Om Prakash Pacheriwala along with his son, Bijay Kumar and an employee Bachu Singh were making account of days’ sale in their house, two dacoits armed with pistol entered into the said room and asked for money and other valuables. The informant’s son, Vijay Kumar started put the bundles of the currency notes into the bag of the dacoits and thereafter one of the dacoits asked for the key of the almirah and they took out ornaments from almirah and came down from the room with the looted articles. The informant raised alarm, upon which the brother of the informant, Shyam Sundar Pechriwala came out his room and at that time dacoits started fleeing away. Informant’s brother, Shyam Sundar Pechriwala started chasing the dacoits and the inmates of the house started raising alarm. The informant’s brother, Shyam Sundar Pechriwala could catch hold of one of the dacoits, who was trying to get himself released. The informant also reached there and caught the said dacoit near the betel shop of one Pradeep and brought him near his house. In the meantime, the police arrived there before whom the FIR was lodged. The informant took out a revolver and a cartridge from the possession of the said dacoit, who disclosed his name as Chandra Kishore Verma. The dacoit, Chandra Kishore Verma (appellant) disclosed the name of his associates as Subhash Yadav, Birendra @ Birni Yadav, Arjun Rawani, Barun Rawani and Lakhpati, who allegedly committed dacoity in the house of the informant.
3. The learned trial Court on the basis of the evidence adduced on behalf of the prosecution acquitted the other accused mainly on the ground that they were not put on TI Parade and were identified for the first time in Court.
4. In order to substantiate the charges, altogether seven witnesses were examined on behalf of the prosecution. PW 1 is Shyam Sundar Pacheriwala, he is the brother of the informant who caught the appellant after chasing, near the betel shop. PW 2 is Santosh Kumar who is witness of seizure of pistol from possession of the appellant. PW 3 is Vijay Kumar Pacheriwala, he is the son of the informant, who was also counting the currency notes with his father at the time of occurrence. PW 4 is Balvadra Barnwal, he is another witness of seizure, PW 5 is Vijay Pandey. He is a witness who saw that the appellant was caught by the informant. PW 6 is the informant and PW 7 is the Investigating Officer.
5. Learned counsel appearing for the appellant, has submitted that the conviction of the appellant under Sections 395 and 397 of the Indian Penal Code, is absolutely bad in law, as on the same set of evidence other accused persons have been acquitted whereas present appellant has wrongly been convicted.
Learned counsel further submitted that it is a case of mistaken identification because, as a matter of fact, the appellant was standing near the betel shop and at that time the procession of ‘Viashwakarma Puja’ was passing through that place and the appellant who was simply standing near the betel shop and he was caught hold by the brother of the informant. It is stated that the appellant is a student and was preparing for competitive examination. It is further submitted that so far as the seizure of pistol is concerned, the same has not been proved rather PW 4, who is the witness on the point of seizure of the pistol, has been declared hostile.
6. In order to test the argument of the learned counsel for the appellant let us scrutinized the evidence adduced on behalf of the prosecution. PW 1, Shyam Sundar Pacheriwala, who is brother of the informant, in his evidence in paragraph-2, has stated that when he came down from the stairs he saw a man standing there and he shot fire at him but his pistol misfired and thereafter that person started fleeing away. This witness started chasing him and when he reached near the betel shop, he was caught by this witness. He has further stated that on search of his person, one revolver was recovered from his pant. He has further stated that the appellant disclosed the names of his associates, who participated in commission of the dacoity. In cross-examination this witness has denied that the appellant was caught on suspicion. Nothing has been pointed out by the defence, so as to make his statement unbelievable or unreliable. PW 2, Santosh Kumar is witness of seizure and has stated that in his presence, revolver was recovered from the possession of the accused who was caught after chase. PW 3, who is son of the informant he has corroborated the statement of PW 1. PW 5, Vijay Pandey, has stated that he saw the PW 1, Shyam Sun-dar Pacheriwala catching hold of one person who was trying to get himself released. He has further stated that in his presence the person who was caught by PW 1 disclosed the name of his associates. This witness has also identified the appellant in the dock, as the person who was caught after chase by PW 1. PW 6, Om Prakash Pacheriwala, the informant he has fully supported the prosecution case.
6. From the evidence discussed above, I see no reason to hold that the appellant was arrested on mistaken identity while he was standing near the betel shop.
7. The case of the present appellant cannot be equated with the other co-accused and it stands on different footing altogether. The appellant was caught hold of by PW 1 and PW 6 just after the dacoity and that also on chase whereas the other accused were arrested on the basis of the statement made by this appellant and they were not even put on TI Parade and as such I hold that the learned trial Court has rightly acquitted them.
8. In view of the discussions made above, the submission of the learned counsel for the appellant cannot be accepted and hence it is rejected. Accordingly, I find that the learned trial Court has rightly convicted and sentenced the appellant for the offences under Sections 395 and 397 of the Indian Penal Code. In the result, having found no merit, this appeal is dismissed.