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Judgment
This criminal appeal has been filed on behalf of the appellants being aggrieved with the judgment dated 09.01.2017 passed by the Additional Sessions Judge No.3, Chittorgarh (hereinafter referred to as "the trial court") in Sessions Case No.22/2013, whereby the trial court has convicted the accused appellants for the offence punishable under Section 395 IPC and sentenced them for 10 years' rigorous imprisonment and fine of Rs.10,000/- and in default of payment of fine 3 months' simple imprisonment.
Brief facts of the case are that the complainant PW-3 Rajendra S/o Mohan Lal telephoned at Police Station, Shambhupura, District Chittorgarh in the early morning of 10.01.2010 and informed that some persons committed dacoity at his petrol pump viz. Gunesh India Pvt. Ltd. situated near Arniya Panch, Nimbahera Road, Chittorgarh.
On receiving this information, PW-10 Narendra Jain, Sub Inspector, the then SHO, Police Station, Shambhupura, District Chittorgarh reached at the petrol pump along with police party, where PW-3 Rajendra S/o Mohan Lal submitted a written report (Exhibit-P/2) alleging that today on 10.01.2010 around 05:15 AM, a silver color Innova Car came at the petrol pump and when salesman Bherulal went near that Innova Car to fill the diesel then two persons alighted from the said vehicle and shown pistol and a sharp weapon like parshe (ij''ks) to him and slapped him and thereafter took him into the office, where they assaulted another salesman Iqbal @ Rasul Khan Mohd. and tied them with telephone wire thereafter the other two accused persons went into the nearby room, where the PW-3 Rajendra was slipping with his friends Vinod and Rameshwar Lal, and threatened them with pistol and other sharp weapons and after assaulting them tied their hand and legs and enquired about the money and took the keys
from him and took out around Rs.30,000/- from it and snatched purse of him which contains his Identity Card, IDBI Card, Bank Card, Driving Licence, PAN Card and Rs.5,000/- and Titan Watch, mobile phone of Vinod, friend of PW-3 Rajendra and some money and mobile phone of salesmen Bherulal and Iqbal @ Rasul Khan
Mohd. were also snatched. It was alleged that on account of severe beating, PW-3 Rajendra, his friend Vinod and both salesmen Bherulal and Iqbal @ Rasul Khan Mohd. received injuries. In the complaint (Exhibit-P/2), PW-3 has given description of the accused persons.
On receiving the aforesaid written report (Exhibit-P/2), the FIR No.6/2010 was registered at Police Station, Shambhupura, District Chittorgarh for the offence punishable under Section 394 IPC against the unknown persons and started investigation.
The injured persons got medically examined and their injury and x-ray reports were also prepared, which were exhibited before the trial court.
After some time, the police got a tip that the persons involved in the incident of dacoity at petrol pump of PW-3 Rajendra are arrested in some other case in Mumbai and other places, then the police have procured their custody on production warrants and after keeping them in hiding, got their test identification conducted by salesman PW-21 Bherulal.
After investigation, the police filed charge-sheet against the accused persons for the offene punishable under Section 395 IPC and the trial court also charged them with the aforesaid offence.
To prove the charge against the accused appellants, the prosecution produced as many as 22 witnesses and also got exhibited several documents. The statements of the accused appellants were recorded under Section 313 Cr.P.C. and one document was exhibited by them in defence.
The trial court, after pondering over the evidence available on record, has convicted the accused appellants for the offence punishable under Section 395 IPC and sentenced them for 10 years' rigorous imprisonment and fine of Rs.10,000/- and in default of payment of fine 3 months' simple imprisonment vide impugned judgment. Being aggrieved with this, the accused appellants has preferred this criminal appeal.
Learned counsel for the appellants has submitted that there is no iota of evidence available on record to connect the accused appellants with the commission of crime. It is argued that the investigation agency has not conducted the test identification of accused appellants by the eye witnesses PW-3 Rajendra, PW-5 Vinod and PW-22 Iqbal @ Rasul Khan Mohd. It is further argued that test identification parade of the accused appellants was conducted in respect of only one witness PW-21 Bherualal, but the same cannot be relied upon because the accused appellants were shown to him in advance.
It is also contended that no recovery of looted property was
effected from the accused appellants. It is contended that the accused appellants have falsely been implicated in this case when they were in custody in some other case.
Learned counsel for the appellants has, therefore, argued
that when there is no evidence available against the accused appellants, the trial court has grossly erred in convicting and sentencing them for the offence punishable under Section 395
IPC.
Learned Public Prosecutor has supported the impugned
judgment and argued that the prosecution has proved the case against the appellants beyond reasonable doubt by producing cogent and reliable evidence, therefore, the trial court has not committed any illegality in convicting and sentencing the accused appellants for the offence punishable under Section 395 IPC.
Heard learned counsel for the appellants and carefully
scrutinized the record of the case.
PW-3 Rajendra, in his statement, has stated that he had
informed the police soon after the incident on telephone and the police had also reached the scene of crime immediately. He has also stated that on reaching the police, he submitted a written report (Exhibit-P/2) narrating the incident of dacoity.
PW-10 Narendra Jain, the then SHO, Police Station,
Shambhupura, District Chittorghar, has verified that on receiving a telephone call from a petrol pump, the police had immediately reached there and rescued the injured persons PW-3 Rajendra, PW-5 Vinod, PW-21 Bherulal, PW-22 Iqbal @ Rasul Khan Mohd.
PW-19 Darshan Singh, who was posted as SHO, Police
Station Shambhupura, District Chittorgarh on 27.03.2010, in his statement, has stated that one of the SIM looted by the accused persons was activated in Mumbai and on the basis of information received from Mumbai Police, the Rajasthan Police procured the custody of accused appellants, who were in custody in relation to some other criminal case in Mumbai, Udaipur and other places. He has further stated that after the arrest of the accused persons, they were kept in hiding and put to identification parade by one of the injured PW-21 Bherulal.
PW-16 Prakash Krishna Pasalkar the then Sub Inspector,
Mumbai Police, has stated that the accused appellant No.5 Rajendra Pandey @ Raju Pandey @ Kaptan was arrested by him in connection with two other criminal cases, wherein during the course of investigation, he revealed that he has committed dacoities on highway petrol pumps at Rajasthan, Gujarat and Uttar Pradesh States and other places. On receiving this information, he sent a wireless message to all the States. The documentary evidence of this effect is exhibited by the prosecution.
PW-20 Laxmikant Vaishnav, the then Judicial Magistrate,
First Class, Chittorgarh, has stated in his statement that the test identification parade by PW-21 Bherulal was conducted under his supervision and the test identification parade proceedings were prepared by him, which was Exhibited as Exhibit-P/30 to Exhibit-P/34. He was subjected to long cross-examination, however, the defence failed to impeach his testimony.
PW-21 Bherulal has stated in his court's statement that he
has identified the accused appellants during the course of test identification parade conducted in front of Magistrate. He has also stated that while identifying each of the accused appellants, eight to ten similar looking persons were present and out of which he identified the accused appellants. Apart from that the witnesses PW-3 Rajendra, PW-5 Vinod and PW-22 Iqbal @ Rasul Khan Mohd. have also identified the accused persons in the Court. All the above prosecution witnesses have stated that at the time of incident none of accused appellants had hidden their face and they had seen them clearly. The defence has failed to demolish testimonies of all the four above mentioned witnesses during their cross-examination.
It is true that none of the looted property was recovered from the accused but that cannot be sole ground to absolve the accused appellants when other credible evidence is available on record to connect them with the commission of crime.
As observed earlier, after the arrest of the accused appellants, they were kept in hiding and put to test identification parade by one of the injured/witness PW-21 Bherulal, in the presence of the Magistrate PW-20 and he had identified the accused appellants during that test identification parade.
The allegation of causing injuries by the accused appellants to the PW-3 Rajendra, PW-5 Vinod, PW-21 Bherulal and PW-22 Iqbal @ Rasul Khan Mohd., is corroborated with the injury report, which has been verified by the PW-18 Dr. Ritesh Kumar Jain.
Having carefully scrutinized the entire prosecution evidence, this Court is of the opinion that the trial court has not committed any illegality in convicting and sentencing the accused appellants for the offence punishable under Section 395 IPC as the prosecution has proved the case against the accused appellants beyond reasonable doubt.
In view of the above discussions, I don't find any merit in this criminal appeal and the same is hereby dismissed.
The impugned judgment dated 09.01.2017 passed by the Additional Sessions Judge No.3, Chittorgarh is hereby affirmed.
Record of the trial court be sent back immediately.