Shivakant alias Bhaiyyan vs State of M.P.

S.K. Pande, J.

Vth ASJ, Rewa vide judgment dated 20-6-2000 in S.T. No. 85/99 recording conviction of accused/appellant u/s 397 of Indian Penal Code, sentenced him to undergo R.I. for a period of 10 years and to pay fine Rs. 5000/-, in default to suffer further imprisonment for a period of six months. Being aggrieved, the accused/appellant has preferred this appeal u/s 374, Criminal Procedure Code.

On 27-7-1998 at about 1 PM, three unknown persons entered into the premises of Union Bank of India, Village Padri Distt. Rewa. One of them using the revolver threatened the Manager and other employees and snatched Rs. 1,83,710/-. The cash from one of the customer also has been taken away. Report (Ex. P/1) was immediately lodged and Crime No. 48/98 u/s 394, Indian Penal Code was registered. Accused/appellant was taken into the custody on 16-5-1999 and on the basis of memorandum statement (Ex. P/5 and Ex. P/7), an amount of Rs. 370/- and few papers were seized vide seizure memo (Ex. P/6 and P/8). The papers slips said to have been seized from accused/appellant were papers of Union Bank Branch Padri. Completing the investigation the accused/appellant has been charge-sheeted u/s 397 Indian Penal Code. The MFC, Teonthar vide order dated 23-9-1999 committed criminal case No. 97/99 to the Court of Sessions. Fifth ASJ, Rewa framing a charge u/s 397 Indian Penal Code, directed trial of the accused/appellant. Accused/appellant abjured the guilt. However, vide impugned judgment dated 20-6-2000 recording conviction u/s 397 Indian Penal Code, he has been sentenced to undergo RI for a period of 10 years and to pay fine Rs. 5000/- in default to suffer further imprisonment for a period of six months.

In fact, there is no evidence at all on record to connect the accused/appellant with the incident dated 27-7-1998. PW/1 Vijay Prasad Adhikari was manager of Union Bank, Branch Padri. PW/2 Rakesh Kumar Shukla, PW/3 Ramlakhan were other employees of the Bank. These witnesses have stated that on 27-7-1998, three unknown persons having a revolver entered into Bank and directed them to hand over the cash. Taking away cash the three unknown persons escaped. Thereafter, PW/1 Vijay Prasad Adhikari reported the matter to the Police vide Ex. P/1. The same day, spot was inspected by the Investigating Officer and map (Ex. P/3) was prepared. The 2 registers were also seized vide Ex. P/4 from the Bank. Besides the aforesaid employees of the Bank, PW/5 Ramnath, PW/13 Ramniwas were also present in the Bank. The aforesaid witnesses have stated that they did not identify the 3 unknown persons taking away the cash from the Bank. PW/1 Vijay Prasad Adhikari, PW/2 Rakesh Kumar, PW/3 Ramlakhan, PW/5 Ramnath, PW/13 Ramniwas did not identify the accused/ appellants even in court during their examination. On arrest the accused/appellant was never put to identification by any of these witnesses. PW/1 Vijay Prasad Adhikari and PW/2 Rakesh Kumar Shukla have stated that the accused/appellant was not present in the Bank at the time of alleged occurrence. He is not one of the three unknown persons who had committed dacoity on 27-7-1998 in the Bank.

PW/ 12 Phool Singh Teekam, Sub Inspector, Police stated that the accused/appellant was taken into the custody on 16-5-1999. He was interrogated and his statements (Ex. P/5, P/7) were recorded on 16-5-1999 and 18-5-1999 respectively. As per these statements cash Rs. 370/- and few forms i.e. the slips of Union Bank, Branch Padri were recovered and seized vide Ex. P/6 and P/8. The aforesaid statement of PW/12 Phool Singh Teekam has not been corroborated by PW/4 Rajeshwar Prasad, PW/9 Vishwanath, PW/10 Ramkishore, PW/11 Bharat Bhooshan and PW/14 Vanshilal. As per the statements of these witnesses, nothing was seized in their presence from the accused/appellant as per Ex. P/6 and P/8. The only witness is PW/6 Kamlesh who supports the statement of PW/12 Phool Singh Teekam to the effect that the memo Ex. P/5 on 16-5-1999 of accused/appellant was prepared by the Police in his presence. PW/6 Kamlesh Kumar has stated that on Ex. P/5 the accused/appellant accepted participation in the dacoity. In this statement there is nothing to lead for alleged recovery of anything. Therefore, the only statement of PW/12 Phool Singh Teekam is to the effect that some forms i.e. slips of Union Bank of India, Branch Padri were seized from the accused/appellant on 18-5-1999 and 19-5-1999 vide Ex. P/8 and P/6. These papers were not put to the witnesses PW/1 Vijay Prasad Adhikari, PW/12 Rakesh Shukla, PW/3 Ramlakhan for identification to state that these are the forms and slips said to have been taken away by 3 unknown persons at the time of snatching the cash from the Bank. There is nothing in the report Ex. P/1 that loose forms i.e. slips were also taken away by the three unknown persons while snatching the cash from the Bank. Therefore, on the basis aforesaid accused/appellant cannot be connected with the incident dated 27-7-1998.

There is no other evidence against the accused/appellant to say or suggest that he is one of the person who was present in the Bank on 27-7-1998 and participated with unknown persons in removing and taking away cash from the Bank. Therefore, the ASJ, erred in recording the conviction of accused/appellant u/s 397 of Indian Penal Code.

Consequently, appeal succeeds. The conviction-sentence as per impugned judgment dated 20-6-2000 passed by 5th ASJ, Rewa are set aside. Instead, accused/appellant is acquitted of the charge u/s 397 of Indian Penal Code.