Madhya Pradesh High Court
Vijesh @ Brajesh vs The State Of Madhya Pradesh on 23 October, 2021
Author: Vivek Rusia
1 CRA Nos.114-149/2011
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.114 OF 2011
Vijesh @ Brajesh S/o Dhannalal Raghuvanshi
Age 28 years, Occupation - Labour
Resident of 99/6, Nandbihar Colony,
Narmada Road, Rau, District - Indore (MP)
....Appellant
Versus
The State of Madhya Pradesh
Through Police-Station - Bhanwarkuan
District - Indore (MP)
.....Respondent
And
CRIMINAL APPEAL NO.149 OF 2011
(1) Gourav @ Goldi S/o Sundarlal Jaiswal
Age-31 years, Occupation-Business
Address: Village Bagrod,
District - Ratlam (MP)
A/P-1212, Ram Rahim Colony, Rau,
Indore (MP)
(2) Santosh S/o Manoj Kumar
Age-24 years, Occupation-Service
Address-1212, Ram Rahim Colony, Rau,
District-Indore (MP)
(3) Vipin S/o Dharamnath Sharma
Age-24 years, Occupation-Service
Address-1212, Ram Rahim Colony, Rau,
District-Indore (MP) ....Appellants
Versus
The State of Madhya Pradesh
Through Police-Station - Bhanwarkuan
District - Indore (MP)
....Respondent
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Shri Tarun Kushwah, learned counsel for the appellant -Vijesh @
Brajesh in Cr.A. No.114 of 2011 and for appellant Gourav @ Goldi
in Cr.A. No.149 of 2011.
Shri S.K. Golwalkar, learned counsel for the appellants No.2 and 3
in Cr.A. No.149 of 2011.
Smt. Mamta Shandilya, learned counsel for the
respondent /State of Madhya Pradesh.
2 CRA Nos.114-149/2011
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JUDGMENT
(Delivered on 23rd day of October 2021)
Per Shailendra Shukla, J.
These appeals under Section 374 of Code of Criminal
Procedure, 1973 have been preferred aggrieved with judgment
of conviction and sentence dated 16.12.2010 passed by 16 th
Additional Sessions Judge, Indore (M.P.) in Session Trial
No.830/2008, whereby the appellants have been held guilty
and sentenced as under:-
Conviction Sentence Fine Imprisonment in
lieu of payment of
fine
u/S. 395 IPC Life Imprisonment Rs.5000/- 06 Months RI
u/S. 450 IPC 06 Years R.I. Rs.2000/- 02 Months RI
2. The appellants namely; Gourav @ Goldi, Santosh and
Vijesh have been convicted additionally under Section 25(1)
(b)(a) of Arms Act, 1959 and sentenced to 03 Years RI with
fine of Rs.1000/- and 02 months RI with further default
stipulation. All the jail sentences have been ordered to run
concurrently.
3. The prosecution story in nutshell was that on 08.09.2008
at about 3:35 pm to 3:40 pm, daily banking transactions were
taking place as usual at Prakash Nagar branch of State Bank
of India, Indore. All of a sudden, Branch Manager, Leeladhar
(PW/1), while sitting in his Chamber heard commotion and saw
people rushing around. He saw three miscreants with pistols in
their hands threatening the customers and Bank staff, telling
them to assemble in the Chamber of Bank Manager. The
miscreants were talking in Hindi and were about 25-30 years of
age and had covered their faces with handkerchiefs. They
looted the currency/amount lying in the cash counter of the
Bank and it was found later that the missing currency was to
the tune of Rs.9,68,122/-. The accused confined the Bank staff
and customers in the chamber and locked the chamber from
outside and fled from the spot. Police control room was
informed telephonically. Police team from Bhanwarkuan Police-
Station arrived at the spot and initiated investigation. Sub-
Inspector, Mr. Pratap Singh Ranawat (PW/31) lodged Dehati
Nalishi (Ex.P/1) which was based on the statements of Branch
Manager, Leeladhar (PW/1). On the basis of (Ex.P/1), FIR was
lodged at Crime No.646/08. In the ensuing investigation, spot-
map Ex.P/53 was drawn. The cash-book register from the
Bank was seized from Senior Assistant Girdharilal (PW/10).
Transactions which had been entered in the computer were
also seized vide Ex.P/4. True copy of the counter slips of
money deposited by the customers was seized as per Ex.P/5.
One of the customers who had thrown his mobile which was
later on seized from one of the appellants, submitted the bill of
mobile purchased which was seized from him. The first
accused was arrested barely three days after the incident i.e.
on 11.09.2008 and by 15.09.2008 all the accused had been
arrested. Their memorandum statements were recorded. The
ed cash, pistols with live rounds motorcycle used along with
helmet were seized from the accused persons. The seized
pistols, revolvers and live rounds were sent for mechanical
examination which were found to be in working condition.
Sanction for prosecution under the Arms Act was taken from
District Magistrate, Indore. In all, cash of Rs.8,35,000/- were
recovered from all the accused persons.
4. After investigation, charge-sheet was filed before the
Chief Judicial Magistrate, who committed the matter to
Sessions Judge, Indore, from where the matter was made over
to 16th Additional Sessions Judge (Fast Track Court). Charges
were read over to the appellants who abjured their guilt and
claimed innocence. The prosecution has examined as many as
32 witnesses in support, whereas no evidence has been led by
the appellants in their defense.
5. Out of the witnesses examined by the prosecution, seven
witnesses are the employees of State Bank of India, Prakash
Nagar Branch, Indore who were present at the time of incident
and these are namely; Branch Manager Leeladhar (PW/1),
Deputy Manager, Ajay Kumar Dave (PW/2), Senior Assistant
Chandrakala Rathi (PW/3), Assistant Manager Surendra Vyas
(PW/8), Deputy Manager Rajgopal (PW/9), Relationship
Executive Anchal Jhanwar (PW/11) and Special Assistant Vijay
Singh Bundela (PW/19). The customers of the Bank who were
present at the time of the incident are Satish Kumar Dwivedi
(PW/4), Dharmraj (PW/16), Ranu Jaiswal (PW/17) and Smt.
Radha (PW/20). Police Officers who had recorded the
memorandum statements of the accused and had drawn
seizure memo are Assistant Sub-Inspector B.S. Sikarwar
(PW/29) and Pratap Singh Ranawat (PW/31). Head Constable
Irfan Ali (PW/28) is the Arms Moharir. Investigating Officer
Pratap Singh Ranawat (PW/31) has conducted overall
investigation. Trial Court, after examining the witnesses has
convicted and sentenced the appellants, as mentioned in the
first paragraph of the judgment. Apart from the appellants, one
another co-accused namely; Manoj had also been convicted
who has since expired.
6. In the appeal filed by the appellants namely Gourav @
Goldi, Santosh and Vipin, it has been mentioned that the eye-
witnesses who have deposed have admitted that they did not
know the accused persons and test identification parade has
also not been conducted in this matter and that the witnesses
have given inconsistent and contradictory statements and the
whole case is totally false and fabricated.
7. In the appeals preferred by appellants Vijesh @ Brajesh
and rest of the appellants in their separate appeals, it has been
pointed out that the witnesses have only deposed in a manner
which would not travel beyond conjecturing. They have been
given statements to the effect that it appears that appellants
were the same persons who had committed the loot in the
Bank but none of these witnesses have given a definite opinion
regarding the involvement of appellants in the crime. It is
further stated that it is the case of the prosecution only that all
the accused persons/miscreants who had entered in the Bank
premises had covered their faces with handkerchief/clothes
and therefore it was not possible for them to identify any of the
miscreants but had identified only by height etc which was not
a conclusive proof that the miscreants were the appellants
only. It has been further stated that although the prosecution
has relied upon the memorandum and seizure of looted items
from the appellants/accused but the independent witnesses of
these documents have stated that they were made to sign on
blank papers. It is further stated that none of the employees of
the Bank or the Customers have received any kind of injury
showing that there was no inclination of the miscreants to
cause hurt to any of these persons. Terming the conclusion
drawn by the Trial Court as incorrect, the appellants have
sought acquittal.
8. The main question before us is whether in view of the
grounds contained in the appeals and oral submissions made
on behalf of these appellants, whether the appellants deserve
to be acquitted ?
9. It would be appropriate to revisit the evidence adduced
by the prosecution.
10. Leeladhar (PW/1) has stated that while he was working
on computer in his Chamber at about 3:30 pm on 08.09.2008
in his capacity as Branch Manager in State Bank of India at
Prakash Nagar, Indore, heard sounds of commotion, he saw
miscreants who had tied up their faces with clothes and was
brandishing the pistol and was assembling the customers to
congregate towards the chamber of the witness. One another
person was stationed near the outside door. He was also
possessing the pistol. The miscreant who was pointing the
pistol near the chamber of witness was asking as to who is the
Branch Manager and also asked to hand over the locker keys.
The witness states that he did not give any response. As per
him, all the miscreants were well built. The witness further
states that he only identified the accused from their physical
characteristics which he could not do earlier.
11. Ajay Kumar Dave (PW/2) who was Deputy Manager of
the Bank has stated that on the day of the incident, he had
resumed his work after the lunch time and he heard some
commotion and the voices were coming from the cabin of the
Branch Manager. At that moment, a person pointed a pistol at
him and took him to the cabin where he saw 4 to 5 pistol
wielding persons with covered faces. These persons were of
the same built as those appearing before him at the time of
deposition. He states that he had not gone to a police station
despite receiving a notice Exh.P/10, which was for
identification of the accused. The witness states that due to
being frightened, he had declined to go for identification. In
para 6 he admits that although persons with same faces are
rare to be found but persons with the same height and body
frame can be found. Chandrakala Rathi (PW/3) was Senior
Assistant in Prakash Nagar Branch of SBI. She states that she
was looking after the single window (cash counter) of the bank.
As per this witness, at about 3.00 PM or 3.30 PM while she
was working and a queue of approximately 15 customers was
lined up before her, at that point of time, a person wielding a
pistol came up and shoved the persons standing in the queue
and pointed pistol at her. He asked her to stand up in a hands
up position. The person who had pointed pistol at her was
wearing a helmet. The witness states that she immediately
realized that these persons were looters. She closed the door
of her counter and immediately moved inside the strong room
so that she may push the button which would activate the
siren. The witness states that she again opened up the door for
allowing inside another employee namely Ranu. At that very
moment the helmet wearing person climbed over the counter
and started banging at the door saying that if she would not
open, he would shoot the persons standing outside. As per this
witness, outside strong room, bank employee Mr. A.K. Dave
was sitting on his chair who also possess a key to a safe inside
the strong room. The witness states that fearing that looter
would shoot Shri A.K. Dave, she opened the door of the strong
room. The miscreant put his revolver against her temple and
asked for the keys or else threatened that he will shoot her.
She declined possessing the and miscreant continued to
threaten her. She was then taken to the cabin of the Branch
Manager and asked as to who has the possession of the key to
the locker. Witness replied that none of them had the key to the
locker room. At that point of time, she saw one of the miscreant
collecting the money from the cash counter and putting inside
the white bag. They also tried to open up the bank locker.
Witness states that she was so frightened that she could not
muster courage to even look at the accused persons. Hence,
she does not know as to how these miscreants fled from the
bank. She states that the miscreant who had put the money
inside the white bag was the same who had held his revolver
against her temple. In para 7, she has been asked as to
whether she identifies the accused persons she states that he
can identify appellant Santosh and Manoj, both of whom had
covered their faces and that Manoj was also wearing a helmet.
She states that she has identified both these persons on the
basis of their body built submitting that the miscreant who had
committed the loot have the same body built as these accused.
She again reiterates that Manoj is the person who had pointed
a revolver at her and who was wearing a helmet. She
thereafter identifies rest of the accused persons as well, ie.,
Vijesh @ Brajesh, Vipin and Gaurav. In para 8 she admits that
she had received a notice for identifying, but she had declined
because of fear. The notice is Ex.P/11. In para 12 of her cross
examination she states that she had gone to the police station
for identification. She admits further that the looters had
covered their faces with the cloth and therefore, their faces
could not be seen. In para 15, she admits that there are
number of persons who are thin and may have the same height
but faces of persons are not alike.
12. Learned counsel for the appellants submits that the
statements of this witness made in examination in chief that
she had identified the accused persons is not reliable
statement because she has herself stated that the looters had
their faces covered. He submits that just because of body built
being the same it cannot be stated that these were the same
persons because admittedly their can be number of persons
having the same body built and height.
13. There is substance in the submissions of the learned
counsel for the appellant that with the admission that looters
had their faces covered, identifying them only on the basis of
body built may not be a clinching evidence regarding
identification of the persons.
14. Satish Kumar Dwivedi (PW/4) has stated that on the day
of the incident he had gone to the Branch for depositing
Rs.2000/- and was standing in the queue and there were 3 to 4
persons standing in front of him. At that point of time, 4 to 5
persons came wielding revolver and one of whom was wearing
a helmet. One of these two persons pointing revolver asked the
witness and other to go inside the cabin of manager and asked
them to face the wall. At that point of time, due to a call
received, the mobile of the witness started to ring and he was
asked to throw the mobile. The mobile was thrown by the
witness. This mobile belong to his uncle Ratandhan Dwivedi.
The bill of the mobile is Ex.P/15, which was seized as per
Ex.P/14. This mobile has been shown to have been seized
from one of the accused persons by the Investigating Officer
which shall be discussed later on. However, the witness, on
being asked a question as to identification of the accused,
states in para 4 that the looters had covered up their faces a
worn helmet and therefore, their faces could not be seen.
15. Surendra Vyas (PW/8) has stated that he was posted as
Addl. Manager in the State Bank of India, Prakash Nagar
Branch, that on 8.9.2008, while he was on duty at 3.30 PM a
person covering his face with cloth came to him and pointed a
revolver at him and asked him to stand up. He was taken to the
cabin of Branch Manager and the door of the cabin was closed.
All these persons who had come as looters were between 20
to 30 years of age, one of whom was bulky with short height
wearing a helmet and rest were having lean frames. They were
wielding pistols. These miscreants stayed in the bank for 10
minutes and looted a cash from the cash counter. The witness
has pointed at the Gaurav and Santosh stating that the looters
had similar body built as these persons but states that he
cannot for sure state that these were the same accused had
come to the bank for committing loot. The witness states that
he had received notice Ex.P/30 for identifying the accused but
he had replied that due to security reasons he would not
appear for identification proceedings. In cross examination he
admits that there may be many persons with the same body
frame as that of Santosh and Gaurav and further admits that
due to covered faces, he could not see the colour of the skin of
the looters.
16. Raj Gopal (PW/9) states that he was working as the key
manager in Prakash Nagar Branch of State Bank of India, on
that day, he was working as Dy. Manager in Prakash Nagar
Branch of State Bank of India. On the day of the incident, at
about 3.30 PM a person covering his face with cloth and
wielding a pistol came to his table and asked him to stand up
or he will shoot. The witness states that he thought that the
persons is of unsound mind and therefore, he did not comply.
The miscreant again asked him sternly to stand up or he will be
shot. The witness stood up with his hands stretched above his
head. He saw that there were 4 other miscreants one of whom
was wearing helmet. All of whom were about 25 years of age.
The witness states that he was taken to the chamber of Branch
Manager where there were other staff members also and
miscreants locked him inside the chamber. The witness further
states that employee Rathi (PW/3) was threatened to come out
of the strong room and thereafter the miscreant collected the
money kept in the cash counter as they were asking a key of
the locker again and again. The witness in para 3 states that
he can identify Manoj as one of the miscreant who was in the
bank. He states that apart from Manoj he can also identify
accused Santosh and it was Santosh who was giving
instructions to other co-accused persons asking that to take out
cash from cash counter. The witness further states that he had
received a notice Ex.P/31 asking him to joint the identification
proceedings, which he replied by declining for security
reasons. In para 7, he admits that due to covered faces, the
facial features of the miscreants could not be seen. However,
he states that he could identify the accused from their size,
hairs, eyebrows and body frames. He states that different
persons may have different types of eyes. All the persons
generally do not have identical shaped eyes. The witness
admits that in Ex.D/5, he had not stated that one of the
accused was giving instructions to other co-accused persons.
17. Learned counsel for the appellants submits that in fact,
no identification proceedings were carried by the Investigating
Officer and the witness Rajgopal (PW/9) has deposed on
20.5.2019, i.e., 8 months after the incident with the admissions
of the witness that all the accused had their faces covered and
with no identification proceedings carried out, the dock
identification by this witness is not reliable.
18. Considered.
19. The dock identification may be reliable piece of evidence
provided there are no inconsistencies in the statement of the
witness and there is no time lapse between date of incident
and that of deposition. As far as witness Rajgopal (PW/9) is
concerned, not only there is a substantial lapse of time but due
to fact that accused were seen covering their faces at the time
of incident and inconsistencies in her cross examination as to
identification by eyes, body frame etc, his statements would not
conclusively prove that the accused persons who had
committed loot were the same as appearing before the Court
during deposition.
20. Witness Anchal Jhanwar (PW/11) states that she was the
relationship executive posted in the Prakash Nagar Branch of
State Bank of India and at about 3.00 PM in the evening while
she was sitting in the cabin of Branch Manager, 5 persons had
entered into the bank and they scattered themselves in the
premises of the bank. A commotion ensued and the witness
saw that such persons had their faces covered and were
wielding guns. They were compelling the persons inside the
premises of the bank to to to the cabin of Branch Manager. He
states that the accused collected Rs.9,68,122/- from counter
and left. As per this witness he received a notice from Tehsildar
for joining the identification proceedings. The notice is Ex.P/32.
He states that he did not join the identification proceedings for
the reasons expressed in the reply to the notice. The witness
has in para 4 stated that the accused persons were the same
who had committed the loot. He states that he can identify the
accused on the basis of their height and body built. In cross
examination this witnesses admits that there may be many
persons having the same height and the body built can also be
similar in different person. In para 5, he states that he had
gone to the police station when he was asked by SHO to
identify the persons standing their telling him that these are the
same persons who had committed the loot and that he should
identify them. The witness states that he had replied by stating
that the looters had covered their faces and therefore, he
cannot identify them.
21. Learned counsel for the appellants states that the
statements of this witness regarding identification by him of the
accused is also not reliable because of his admission in cross
examination that various persons may have the same body
built.
22. Considered.
23. As is admitted, all the accused had covered their faces
and therefore, there was no way to identify them by their faces
and the body structure was one of the other facets of
identification. However it is true that this alone would not be a
clinching piece of evidence for the identification purpose. There
has to be other corroborative pieces of evidence as well.
Witness Abdul Wasim (PW/15) and Dharampal (PW/16) are the
other witnesses before whom the incident had taken place.
Dharampal (PW/16) states that he is employee of an RTO
agent and looks after the banking transaction of his employer.
His employer has his account in the aforesaid Branch. The
witness states that on the day of the incident he had gone to
the Branch for depositing Rs.1,35,000/- in the account number
of Manjeet Singh Bohara who was his employer. He had filled
up the bank slip and given to the cashier. At about 3.30 to 3.45
PM as soon as he took his hand out of the counter after giving
a money a miscreant came with a revolver and given indication
to him and others to go to the cabin of the Branch Manager.
The person had covered his face along with whom there were
other 4 to 5 miscreants all of whom of age between 20 - 25
years. They were asking for the keys from the bank cashier
and were threatening the persons who were inside the bank.
These persons then collected the money from counter in a bag
and left after 10 minutes. The witness after seeing the accused
states that he cannot identify them as the accused who came
to the bank as looters had covered their faces. He also states
that due to nervousness he could not even grasp the kind of
body structures of the looters. He has been declared hostile
and denies that he had given such statement to the police that
the looters were having lean frames.
24. Ranu Jaiswal (PW/17) has stated that she was employed
in the bank and her hob was to tie up together the cash
received in the bank. She states that the cashier was
Chandrakala Rathi on the date of the incident, ie. on 8.9.2008.
At about 3.30 PM, Rathi madam (PW/3) had closed the cash
counter when some persons arrived who had covered their
faces. These persons had lean frames, but their faces could
not be seen. The witness states that these persons were
wielding small guns. The witness further states that she had
locked herself in a room, the miscreant kicked the door
threatening them that they should come out or else they shall
shoot the persons standing out. As per the witness she opened
up the cash counter gate and immediately the miscreants had
kept guns against temple of the witness and took the witness to
a cabin and locked her from outside. They entered the cash
room and filled up the bag with the cash. The witness states
that she is not in a position to identify the accused because
they had their faces covered. When the witness was
confronted with the accused persons appearing before the
Court, she states that she cannot identify them.
25. She also states that she had declined to attend the
identification proceedings after receiving a notice Ex.P/40. In
cross examination she states that she was appointed as water
woman in the bank and her job was to provide drinking water to
the staff. She however, used to look after other work at the
instructions of the Manager. She has been confronted with the
police statement Ex.D/6 in which there is no mention of a
revolver being pointed at her. There is no mention about the
door of the room being kicked from outside. The question has
been asked from her by the Presiding Officer regarding
identification of accused. She replies that the accused were
having their faces covered and therefore, she cannot identify.
Learned counsel submits that this witness has clearly states in
her examination - in - chief only that she cannot identify the
accused because their faces were covered with clothes. There
is substance in the submissions of the learned counsel. The
witness at no point of time has identified the accused and
therefore her statements are of no help for prosecution as far
as identification of the accused is concerned.
26. The next eyewitness is Vijay Singh Bundela (PW.19) who
states that he was working as Senior Assistant in Prakash
Nagar Branch of State Bank of India and on the date of the
incident at about 3.00 PM to 3.30 PM while he was on duty, 5
to 6 miscreants having their faces covered and wielding pistols
entered into the bank, one of them positioned himself near the
gate. The next came inside and pointing revolver on the
customers and bank staff took them in a room and locked them
in a cabin and started asking for the key to the locker
threatening them that they would be killed if key is not given.
As per this witness one of the bank employees told that they do
not have in their possession the key of the locker then the
accused went to the door of the strong room which had been
locked from inside by cashier Chandrakala Rathi (PW.3). The
miscreants shouted and threatened that she should come out
otherwise she and her other staff colleagues would be shot
dead. Hearing such threats Chandrakala Rathi (PW.3) came
out. The accused then collected money from the cash counter
in a bag and left the bank. The bag in which the money was
kept was having in print of an advertisement of Pan Gutka. The
witness states that miscreants were between 20 to 25 years of
age and were of the similar body frames as that the accused
appearing before the Court. She states that a notice Ex.P/41
had been received by him for requiring him to appear in the
identification proceedings. The witness states that he had
given a reply stating that due to criminal background of the
accused persons, he does not want to run the risk of identifying
the accused. In cross examination he admits that he had been
called to the police station and the accused were taken out of
the lockup room and there were other bank employees with
him and police told him that these are the persons who had
committed loot and from them the police has recovered the
money. In para 10 he admits that persons of similar body
frames are commonly found. However, persons with same
faces are generally not found. Learned counsel for the
appellant submits that this witness although claims to identify
the accused from their body frames had admitted that persons
with similar body frame be generally found and therefore, such
identification would not be a conclusive piece of evidence for
the purpose of identification. This submission is acceptable. It
has already been concluded earlier that identification from
body structure cannot be considered to be conclusive piece of
evidence as far as the question of identification is concerned.
However, the submission that the accused who had committed
the crime of loot had similar body structure as that of the
appellants cannot be looked over completely.
27. Witness Radha (PW/20) has stated that she had gone to
the bank for depositing money which was Rs.2.00 lacs. She
was to deposit Rs.1.00 lac in her account and Rs.1.00 lac in
her husband's account. She has already deposited Rs.1.00 lac
and was about to deposit Rs.1.00 lac more. She was facing
towards the cash counter at that point of time 7 to 8 persons
came and pointed a revolver on a lady who was working in the
cash counter. One of them pointed a gun at the witness and
gave an indication to her to move aside. She states that she
became extremely nervous and could not see. He states that
Rs.1.00 lac which she was carrying and the ornaments which
she was wearing were shoved by her beneath a sofa set
placed in the bank. Witness states that all the miscreants had
covered their faces and therefore, she could not see any one's
face. She has been declared hostile. She admits that she had
received a notice Ex.P/43 in which she had declined to attend
the identification proceedings due to fear factor. She admits in
para 7 again that she cannot identify the accused persons. The
evidence of this witness is of no help to the prosecution as far
as the identification of the accused is concerned. Thus, it can
be seen that there is no identification.
28. Pratap Singh Ranawat (PW/31) who was SHO at Police
Station Bhanwarkuan has stated that he had given notices to
the banking staff and the customers of the bank who were
present inside the bank on the date of the incident as per
Exhibits P/8, P/11, P/30, P/31, P/32, P/40, P/41 and P/43, but
the recipients of these notices had declined to appear due to
fear. It can be seen that no identification proceedings was
carried out by the Investigating Officer and the reason for doing
so disinclination of the witnesses to attend such proceedings.
Some of the witnesses have already found are completely
hostile as far identification of accused is concerned. Others
have claimed to have identify the accused from their body
structure, height etc as also from their age brackets but none of
the witnesses have claimed to have identified them by their
faces because of the same being covered by the clothes at the
time of incident. It has been found that the doc identification
has been carried out after lapse of about 8 months from the
date of incident. It has also been observed earlier that
identification by body structure is not a conclusive piece of
evidence of identification as the possibility of number of other
persons having the same body structure cannot be ruled out.
However what emerges from the evidence of these witnesses
is that accused who had committed the offence of loot had
similar body structure as the appellants, which cannot be
looked over and would be an admissible piece of evidence.
However, further evidence is required for proving the case
against them. From the evidence of witnesses, it is proved that
an incident of loot in Prakash Nagar Branch of State Bank of
India had indeed taken place on 8.9.2008 at about 3.30 PM
and the looters had taken away cash placed in the cash
counter after threatening the banking staff and the customers
present in the bank at the time of incident.
29. Girdhari (PW/1) has stated that the looted amount was
Rs.9,68,122/- and this amount was determined from tallying
cash book register of the bank and the closing amount
contained in the computer. The copy of the cash book register
is Ex.P/3 and the closing amount is Ex.P/4. The amounts
deposited by customers during the day were contained in
deposit slips which were 67 in numbers. The total amount so
deposited was Rs.12,18,170/-. The aforesaid deposit slips
were seized as per seizure memo Ex.P/5.
30. Pratap Singh (PW/31) has stated that he had seized the
cash book register from Girdharilal (PW/1) and the whole day's
transaction was also determined from the computer which
included the amounts deposited by the customers and
withdrawn by them. The sum of amount thus remaining was
Rs.9,68,122/- and therefore, this was the amount which had
been looted. These witnesses have not been cross examined
in such a manner that their claim may be subjected to any
uncertainty or doubts. Hence, it is found proved that the
amount of Rs.9,68,122/- in fact was looted from the bank.
31. The other piece of evidence is in the form of
memorandum and seizure of cash and other incriminating
items from the accused. The witnesses relevant for the
purpose are ASI B.S. Sikarwar (PW.29) and S.I. Pratap Singh
Ranawat (PW.31), ASI Shri F.M. Qureshi (PW.30).
32. Regarding appellant Vijesh - ASI B.S. Sikarwar (PW.29)
states that he was posted in police station Bhawarkuwa on the
date of the incident. During investigation the memorandum of
accused Brijesh @ Vijesh was recorded by the witness who
had proposed to recover his share of Rs.35,000/- which he had
kept in an iron box in the house of his relative namely Tukaram
Raghuvanshi. The memorandum is Ex.P/45 carrying signatures
of the witness from c to c part. On the basis of this
memorandum a box was taken out by accused from the house
of Tukaram Raghuvanshi on opening which Rs.35,000/- were
recovered which were in the currencies of Rs.50 and Rs.100
denomination. The seizure memo is Ex.P/46. The witness
stated that he has recorded the statement of Tukaram.
33. Tukaram (PW/13) has stated that he knows accused
Brajesh @ Vijesh who resides in his colony only. However, this
witness is hostile as far as the recovery of an independent box
from his house at the instance of Vijesh @ Brajesh is
concerned. After being declared hostile. He admits that Brajesh
@ Vijesh is his cousin brother. However, he denies that in
order to save his brother he is not telling the truth. The
suggestion has been denied by him. The independent
witnesses of memorandum and seizure are Chandan (PW.23)
and Indresh (PW.27). Both the witnesses have turned hostile.
Although the independent witnesses have turned hostile, but it
is a settled principle that just because of this, the evidence of
police officer would not be rendered unreliable unless there are
serious contradictions / inconsistencies in his statement.
34. ASI B.S. Sikarwar (PW.29) has admitted in para 10 of
cross examination that he has not seized the iron box from
which the money was recovered. The witness states that the
seizure of currency was the material piece of evidence and
therefore, the box was not seized. He admits that in the
currency which was seized, there was no bank seal appended
on any of the note. The statement of this witness has been
corroborated by Pratap Singh Ranawat (PW.31) who states in
para 19 that on the basis of memorandum of Brijesh @ Vijesh
an iron box was recovered from his relative as per Ex.P/45.
This witness has not been asked any specific question
regrading Exhibits P/45 and P/46.
35. The currency of Rs.35,000/- has been recovered on the
basis of memorandum of the appellant Vijesh @ Brajesh
Raghuvanshi from inside the house of Tukaram (PW/13).
Tukaram is the relative of Vijesh @ Brajesh Raghuvanshi.
Although, he has turned hostile but there is no reason for doubt
as to the veracity of B. S. Sikarwar (PW/29) and Pratap Singh
Ranawat (PW/31).
36. All these notes were in the denominations of Rs.100/-
and Rs.50/-. In general search, notes of particular
denominations in bundles would be generally found when the
amount is withdrawn from a bank. Further, such comparatively
substantial amount could have been obtained in a commercial
transaction. However, the appellant has neither shown any
commercial transaction nor any banking transaction hence, he
has not shown the source of money recovered at his
insistence. This is a corroborative piece of evidence against
him.
37. Further on 11.09.2008, on the basis of memorandum of
the appellant Vijesh @ Brajesh Raghuvanshi, the currency
note bundles of Rs.500/- and Rs.100/- denominations, in total
Rs.1,80,000/- was recovered from the cloth bag carrying
advertisement of "Vimal Gutka" along with a pistol loaded with
magazine containing two live cartridges. The seizure memo is
Exhibit P/23, which is dated 11.09.2008.
38. Thus, it can been seen that while memorandum Exhibit-
P/45 in respect of Rs.35,000/- was given on 21.09.2008, the
memorandum Exhibit-P/21 in respect of recovery of pistol and
Rs.1,80,000/- has been given at an earlier date i.e. on
11.09.2008 at 7.45 AM and the recovery of pistol and
Rs.1,80,000/- on the basis of this memorandum has been
made at 11.50 AM from inside the house of the appellant.
39. The independent witnesses of the memorandum and
seizure memo (Exhibits-P/21 and P/23) are Mohd. Aslam (PW-
5) and Vinod (PW-7). Both these witnesses have turned
hostile and not supported the prosecution story of seizure on
the basis of memorandum and they deny that the appellant
was questioned before them and recovery was also made. In
cross-examination, B. S. Sikarwar (PW-29) has admitted that
he had not seen the ownership documents of the house of the
appellant and neither he had given any notice to the
neighbours of the appellant. He states that the witnesses were
accompanying him and therefore he did not consider any
necessity to issue notice to any neighbours.
40. The statements of these witnesses have been
corroborated by Pratap Singh Ranawat (PW-31), who has
stated that Rs.1,80,000/- was recovered from the house of the
appellant situated at Nand Vihar Colony, Rau on the basis of
his memorandum and these notes were in the denominations
of Rs.500/-, Rs.200/- and Rs.100/-. This amount was seized
along with a pistol carrying two live bullets and these items
were contained in a bag of "Vimal Gutka". The cloth bag which
is Article-E has been identified by this witness. This witness in
para-42 denies that independent witnesses i.e. Mohd Aslam
and Vinod were not present when he was recording the
memorandum statements of the appellant. In para-48, he
states that he had taken Mohd. Aslam and Vinod himself when
proceeding for recovery of the looted amount. He has
exhibited Rojnamchasanha Exhibit-P/16 in which it has been
mentioned that Mohd. Aslam and Vinod were hamrah. He
admits that he did not give any notice to the accused before
searching the house of the accused. He however states that
the house was in possession of the accused only.
41. From perusal of the statements of Pratap Singh Ranawat
(PW-31), it does not appear that there is any substantial
lacuna/inconsistency in his deposition. His statements have
duly been corroborated by B. S. Sikarwar (PW-29). Although,
the independent witnesses have turned hostile but there is no
rule of law that evidence of police officers cannot be relied
upon unless and until corroborated by independent witnesses.
The aforesaid amount of Rs.1,80,000/- has been shown to be
seized from the house of appellant Vijesh @ Brajesh
Raghuvanshi.
42. As per seizure memo Exhibit-P/23, the present address
of the appellant is 99/6, Nand Vihar Colony, Rau and this
address has been shown in the arrest memo as well, which is
Exhibit-P/17. The same address has been given by the
appellant in his accused statements. The appellant has not
given any evidence to show that he does not reside at the
aforesaid address. The currency, which has been seized from
him is in bundles of specific currency denominations of
Rs.500/-, Rs.200/- and Rs.100/-. Such huge amount of money
can either be found in a house in a recent commercial
transaction or by way of withdrawal from the bank. However,
no aforesaid situation has been shown to have existed. One of
the witnesses namely, Vijay Singh Bundela (PW/19) has stated
that the looted amount was being kept in a cloth bag on which
words "Vimal Gutka" were printed. This evidence shows that in
all probability, the amount recovered was in fact the same
amount looted from the bank and was kept in a bag carrying
the same print i.e. "Vimal Gutka", which has been seen by an
eye-witness. Further, from the same bag, a pistol with two live
cartridges have also been recovered at the insistence of the
appellant. This fact further substantiates the prosecution story
that the amount was part of the looted amount, which was
looted at the point of gun.
43. Regarding appellant Santosh - The Investigating
Officer Pratap Singh Ranawat (PW/31) has stated that on
11.09.2008, the memorandum statements of appellant Santosh
was recorded in which he proposed to recover the mobile
allegedly snatched from a person in the bank along with looted
Rs.50,000/- and a pistol which had been used in committing
the offence. The memorandum statement is Exhibit-P/22
which has been signed by Mohd. Aslam (PW-5) and Vinod
(PW/7). On the same day in presence of the same witness,
Rs.50,000/- cash containing notes of Rs.500/- and Rs.100/-
denominations, a pistol with four live cartridges and a Nokia
mobile model No.1200 carrying IMEI No.35953401973051 was
seized vide seizure memo Exhibit-P/24 carrying signatures of
the witness and independent witnesses. B. S. Sikarwar (PW-
29) has corroborated these statements submitting that from
appellant Santosh he had recovered Rs.50,000/- cash, a pistol
with live cartridges and Nokia mobile phone in his presence
and in the presence of the Investigating Officer Pratap Singh
Ranawat (PW/31). The witness also states that on 10.09.2008
under the direction of the Investigating Officer, cash memo of
the mobile purchased was seized from Kirti Dwivedi and the
seizure memo is Exhibit-P/14 which carries signatures of the
witness from C to C part and also of the Investigating Officer
from D to D part. Pratap Singh Ranawat also corroborates
these statements in para-4 of his examination-in-chief and the
bill is Exhibit-P/15.
44. As already stated, the independent witnesses have
turned hostile however, there is no law that the evidence of
police officers cannot be relied upon unless and until
corroborated by the independent witnesses. It has been
shown that there has to be material discrepancy in the
statements of such police officers before doubting the
credibility of such evidence. On perusal of Exhibit-P/15 shows
that the mobile bill bears IMEI No.35953401973051, which is
same as that of the mobile number seized from appellant
Santosh. It has already been stated by Satish Kumar Dwivedi
(PW/4) that the mobile phone of Nokia company with the same
IMEI number was taken from him by one of the miscreants.
There is no discrepancy in the statements of this witness so as
to discredit them hence, the onus was upon the appellant
Santosh to show as to how this mobile phone belonging to
Satish Kumar Dwivedi (PW/4) had come in his possession. It
was further required to show the source of Rs.50,000/- cash
recovered from his house. No explanation has come forth from
the appellant Santosh and therefore, there is no escaping
conclusion that appellant Santosh who was present in the bank
on the date of the incident with a pistol had taken the mobile
phone of Satish Kumar Dwivedi hence, there is strong
corroborative evidence against appellant Santosh who was
involved in committing loot in the bank.
45. Regarding apellant Gaurav @ Goldi - Shri B.S.
Sikarwar (PW/29) states that while he was posted as ASI in
Police Station Bhanvarkua, two lac rupees cash were seized
from the house of Gaurav @ Goldi containing currency notes of
denominations of Rs.1,000/-, Rs.100/- and Rs.50/- as also
Bajaj Discover motorcycle bearing No. MP09-M.B.-8671 along
with a helmet and a country-made revolver of 32 bore as per
Ex.P/26.
46. Pratap Singh Ranawat (PW/31) has stated that he had
interrogated appellant Gaurav on 11.9.2008 at Police Station
Bhanvarkua, who had revealed that out of the looted amount
from the State Bank of India, Palda Road, his share of Two
Lakh Rupees were hidden in an almirah at his residence, the
motorcycle which was used in committing the offence, the
revolver and the black helmet are also placed in his house. The
memorandum is Ex.P/20 carrying signatures of the witness
from D to D part and that of the accused from E to E part. The
witnesses were Aslam and Vinod.
47. Witness Pratap Singh Ranawat (PW/31) further states
that from the house of Gaurav situated in Ram Rahim Colony,
Rau, the aforesaid items were seized as per seizure memo
Ex.P/26.
48. The statements of this witness have been supported by
Shri B.S. Sikarwar (PW/29), as already mentioned earlier.
Independent witnesses Aslam and Vinod i.e. PW/5 and PW/7
have already turned hostile as has been referred to earlier.
Ex.P/26 shows that 91 currency notes of denomination of
Rs.1,000/- each, 1038 currency notes of denomination of
Rs.1,00/- each and 104 currency notes of denomination of
Rs.50/- each have been recovered from the appellant. The
onus was upon the appellant Gaurav to show as to how such a
huge amount was kept by him in his house. Whether they
pertain to any commercial transaction entered into by him or
whether he had withdrawn the aforesaid amount from Bank,
has not been explained. Seizure of country-made revolver
along with the currency notes also needed to be explained,
which has not been done by him. The seizure of these
incriminating items was made three days after the incident. The
proximity of time between the incident and the seizure creates
a presumption against the appellant, which has not been
discharged by him and, therefore, strong corroborative piece of
evidence linking the appellant with the incident is proved.
49. Regarding appellant Vipin - Pratap Singh Ranawat
(PW/31) has stated that on 15.9.2008 appellant Vipin was
arrested vide Ex.P/36. He was arrested from the house of
Wasim from Ram Rahim Colony, Rau. On interrogation, the
appellant gave his memorandum statements as per Ex.P/37, in
which he had stated that one lac rupees of the looted amount
has been kept by him in his house hidden in a wooden box,
which he had proposed to recover. Subsequently the recovery
of the aforesaid amount was made as per Ex.P/38. A perusal of
Ex.P/38 shows that 100 currency notes of Rs.500/- amounting
to Rs.50,000/- and 500 currency notes of Rs.100/- amounting
to Rs.50,000/- (in all Rs. 1 Lakh) were recovered from him. The
independent witnesses are Mohd. Shakil and Abdul Wasim.
Mohd. Shakil is PW/14 and Abdul Wasim is PW/15. Both these
witnesses have turned hostile and not supported the
prosecution story. Further, as already stated earlier, that if the
police officer's evidence is reliable, the same can be
considered even though the independent witnesses have
turned hostile. No specific questions have been asked from
Shri Pratap Singh Ranawat (PW/31) who is the IO, apart from
the fact that two independent witnesses have turned hostile.
The witness in Para-51 has admitted that these witnesses i.e.
Mohd. Shakil (PW/14) and Abdul Wasim (PW/15) have turned
hostile. Incidentally Abdul Wasim (PW/15) has admitted that
Vipin is his tenant and at present also the father of Vipin stays
in the same house. He states that police had come to the
aforesaid tenanted premises and had told him that Vipin has
been arrested and asked him to append his signatures in the
memorandum and seizure memo. Further, he has stated that
these proceedings were not carried out before him. Thus, it is
found proved that substantial amount of one lakh rupees was
seized from the house of appellant Vipin from a wooden box as
per his own memorandum. The onus was upon Vipin to show
as to how he came in possession of this amount, which has not
been explained by him. Thus, it is a corroborative piece of
evidence available against him.
50. Thus, from the perusal of the evidence of all the
witnesses, the following chain of events and circumstances are
found to be proved:-
(i) That, on 11.9.2008 loot was committed in the State
Bank of India, Branch Pratap Nagar, Indore, whereby
Rs.9,68,122/- were looted by miscreants, who had
committed loot with their faces covered.
(ii) That, the appellants were having similar body built
as that of the miscreants.
(iii) That, the appellants were in similar age (as
apparently that of the appellants).
(iv) That, from each of the appellants substantial
amount of currency notes in different bundles of specified
denominations were recovered.
(v) That, no explanation could be given by the
appellants regarding such substantial amount of currency
recovered as per their memorandum.
(vi) The notes were well arranged in bundles of
separate denominations of currencies, which is specific
trait and pattern adopted in banking institutions.
(vii) That, along with the currency notes, firearms were
also recovered from appellants, excepting Vipin, which
corresponds with the prosecution story that the recovery
of currency and firearm was made soon after the
incident.
(viii) That, from appellant Vijesh currency and firearm
were recovered from a bag with the words of "Vimal
Gutka" imprinted on it, which corresponds with the
evidence of Vijay Singh Bundela (PW-19), who had
stated that the looted amount was being kept in a cloth
bag on which words "Vimal Gutka" were printed.
(ix) That, from appellant Santosh, the same mobile has
been seized which belong to Satish Kumar Dwivedi (PW-
4), who was the account holder in the same branch and
who in his evidence has stated that one of the miscreants
had asked him to throw his mobile phone and when he
threw it, the miscreant picked it up and kept it with him.
(x) It has also been found proved that the staff of the
Bank and the customers were subjected to threat of life
by pointing firearms at them and the amount was taken
away by the miscreants.
(xi) That, all the appellants are from Rau, Indore,
moreover from one particular locality called Ram Rahim
Colony, which shows high probatility of being acquainted
with each other.
(xii) That, the onus which have shifted on the
appellants, has not been discharged by them.
(xiii) From the statements of witnesses it has been found
proved that there were at least five miscreants who had
committed the loot. It has also been found proved that
one of the accused namely Manoj had died during the
course of the appeal and thus, it was indeed a case of
loot committed by five persons, meaning thereby that
dacoity was committed.
51. Thus, even though the appellants have not been
subjected to identification parade and even though dock
identification parade is also not found to be reliable as far as
their facial recognition is concerned, however various
substantial pieces of evidence which have been found proved
against the appellants, form a complete chain specifying the
standards as laid down in the Apex Court judgment of Sharad
Birdhichand Sarda Vs. State of Maharashtra [1984(4) SCC
116] relating to proving of case based on circumstantial
evidence. Hence, no impropriety has been committed by the
trial Court in convicting the appellants under Section 450 and
395 of IPC.
52. As far as the offence relating to Section 25(1-B)(a) of
Arms Act is concerned, it has been found proved that from
each of the appellants i.e. Gaurav @ Goldi, Santosh and
Brajesh @ Vijesh, country-made firearms have been
recovered, for which they did not have any licence. These
firearms and the live bullets have been examined by Irfan Ali
(PW/28) who was the armourer/Head Constable and who has
found semi-automatic pistol, 32 bore pistol and 32 bore
revolver in working condition from which bullets could be fired.
Pradip Sahukar (PW/32) has given statements regarding
obtaining sanction to prosecute the appellants Santosh,
Gaurav @ Goldi and Vijesh from ADM vide Ex.P/54, P/56 and
P/55. Statements of these witnesses are also reliable as
nothing substantial has been reflected in the cross-examination
so as to discredit them. Thus, the aforesaid offence under
Section 25(1-B)(a) of Arms Act has also rightly been found to
be proved by the trial Court against these appellants. Thus,
these appeals fail on the point of conviction.
53. Learned counsel for the appellants has drawn Court's
attention to certain citations in the case of Debasish Sarkar
Vs. The State of Tripura [2012 Cri.L.J. 418], Girdhari Vs.
State (NCT of Delhi) [2012 Cri.L.J. 984], Noorahammad and
others Vs. State of Karnataka [2016 Cri.L.J. 1232] and Hari
Nath and another Vs. State of U.P. [1988 Cri.L.J. 422].
54. The same were perused. As the identification parade has
not been carried out, these citations have no relevance in the
matter.
55. Adverting to the quantum of sentence, the facts reveal
professional manner in which the banking institution was
subjected to threat and loot was committed putting the lives of
scores of persons at risk on gun points. The sense of insecurity
and fear which must have gripped the banking staff, cannot be
considered to be limited for that particular day but would
obviously be haunting them for rest of their carrier, as their
duties required them to deal with money transactions and
handling of currency on daily basis. Such incidences have
cascading effect on security concerns of banking employees in
other banking institutions, whether private or public. Financial
institutions need to be insulated from any such misadventures
on the part of rogue elements, as the health of the financial
institutions and consequently the economic robustness of the
State depends upon their unhindered functionality without
being bogged down by acts of daredevilry as exhibited by the
appellants in the present case. Ensuring secure and safe
environment in financial institutions is must for their smooth
functioning, in particular and economic well being of the country
in general. Not only the security concerns of banking staff but
that of the customers also has been impacted by the act of the
appellants. The appellants have been convicted for the similar
bank dacoity in another matter i.e. S.T. No.228/09. Thus, no
case of leniency is made out.
56. Consequently, the sentence imposed upon the appellants
by the trial Court is also affirmed. All the jail sentences shall run
concurrently.
57. The appeals on the point of conviction and sentence stand
dismissed in aforesaid terms.
58. A copy of this judgment along with record of trial Court be
sent to the trial Court for compliance.
59. The disposal of the property shall be as per the order of
trial Court.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by ARUN
NAIR
Date: 2021.10.23 18:20:45
+05'30'
