Barin Ghosh, J. -
(1.) HEARD learned Amicus curiae as well as learned Additional Government Advocate. A First Information Report, which was registered under Sections 457, 380, 382, 307 and 401 r/w Section 34 of the Indian Penal Code and also under Section 25 of the Arms Act, resulted in filing of a charge -sheet against the appellant alone under Sections 457, 380 and 307 of the Indian Penal Code and a separate charge -sheet under Section 25 of the Arms Act. While charge was framed, the same was framed under Sections 392 and 397 of Indian Penal Code and a separate charge was framed under Section 25 of the Arms Act. The arm, in the instant case, was a country made pistol. Neither the said country made pistol, nor the bullet/cartridge, stuck therein, was sent to appropriate authority for the purpose of ascertaining whether the pistol was in working condition or whether the stuck bullet/cartridge was in working condition. In that view of the matter, there was no evidence before the court that the subject 'pistol' was in working condition or that the bullet/cartridge, stuck inside the pistol, was a live bullet/cartridge. In those circumstances, the court below exonerated the appellant of the charge under Section 25 of Arms Act following the judgment of the Hon'ble Supreme Court rendered in the case of State of U.P. versus Anil Singh, reported in AIR 1988 SC 1998. The State has not preferred an appeal against the said conclusion. The trial Court, however, convicted the appellant for offences punishable under Sections 392 and 397 of Indian Penal Code and sentenced the appellant for seven years' rigorous imprisonment. Against the said conviction and sentence, the present appeal has been preferred.
(2.) THE principal contention in the present appeal is that a false case had been made out to implicate the appellant, and that, there are discrepancies in the evidence tendered by prosecution witnesses. In the First Information Report, Deepu Mehra, who came as P.W.1 in course of trial, had alleged that at 11.00 P.M. of 9th July, 1998, he alongwith Ashwani and Pawan Mehra, who came as P.W.4 in course of trial, reached his shop situate at Mehragaon and found that the window on the back side of his shop is open. He immediately felt that there has been a theft in his shop and expressed his suspicion to his companions. It was stated in the First Information Report that at about that time, two men ran towards upward from the side of the shop and one towards downward. It was alleged in the First Information Report that P.W.1 chased two people, who ran towards upward and caught hold of the appellant. The other fled. Appellant, at that time, called the name of Veeru and informed him that he has been caught. At that juncture one fired, which missed its target. It was then alleged that the appellant, who also had a country made pistol, put the same on the chest of P.W.1 and pressed the trigger, but the gun did not fire. Appellant was then overpowered and was taken to the control shop and tied there with a rope. With all these noise, the First Information Report reported, that the villagers gathered, when the appellant disclosed the names of his other companions and, by that time, it transpired that before committing theft at the shop of P.W.1, appellant and his companions had also stolen a Maruti Van. It was alleged that a sum of Rs. 5,000/ - in cash and other items in the form of biscuit packets and cartoons of cigarettes worth Rs. 700/ - alongwith a wall -clock were stolen from the shop of P.W.1. In course of trial, P.W.1 held out what he had stated in the First Information Report. With that he stated that the First Information report was lodged at around 01.00 A.M. of 10th July, 1998 and in the night the Investigating Officer had visited the place of occurrence. P.W.2 was a villager, who deposed that after hearing the noise, he came to the control shop and found number of villagers have gathered there and the appellant, he found, was at the control shop bounded. P.W.3 is the owner of the stolen Maruti Van. He deposed that he had parked his Maruti Van at a particular place, and that, later on it transpired to him that the same is not there and some broken glasses are lying scattered around where the Maruti Van was parked and he reported the matter to the police and also identified the Maruti Van, which was found in the locality on the basis of the First Information Report lodged by P.W.1, as his Maruti Van. P.W.4 is Pawan Mehra. He repeated what was stated by P.W.1 in course of examination. With that he stated that he went to the Police Station on 10th July, 1998 at 07.00 A.M., when his statement was recorded by the Investigating Officer. The Investigating Officer stated that he went to the place of occurrence on the next day morning, when it was still dark and had not become clear. In answer to questions put under Section 313 of the Code, appellant denied material allegations against him. In addition to that he had stated that he wanted to establish his tea -stall in the vicinity of the shop of P.W.1, but P.W.1 did not want the appellant to install that stall. It was insinuated that insistence on the part of the appellant to install that tea -stall resulted in enmity and because of that enmity he has been implicated. He did not say that he is a resident of the selfsame village. He did not indicate the reason for his desire to set up a tea -stall at the said village. That he was really interested to set up a tea -stall and that too at the said village was not attempted to be established. In course of argument before the court below as well as in support of the appeal, it was contended that while it was reported that a clock was stolen, a wrist watch was found from the appellant. It was stated that P.W.4 did not say anything about theft of Rs. 5,000/ - or of the wall -clock. It was stated that while, according to P.W.1, the Investigating Officer came to the place of occurrence in the night, according to Investigating Officer, he came in the morning of the next day. It was stated that these are the discrepancies and taking note of the fact that there was some enmity in between the parties, benefit of doubt should have been given to the appellant.
(3.) THE fact that since 11.00 P.M., appellant was at Mehragaon should be accepted on the evidence tendered. What the appellant was otherwise doing at 11:00 P.M. at Mehragaon, has not come on evidence. While P.W.1 said that the Investigating Officer came in the night of the date of the occurrence, i.e. in the night of 9th July, 1998. The fact remains that the First Information Report was lodged at 01:00 A.M. of 10th July, 1998 and the Investigating Officer, in his evidence, said that when he had come to the place of occurrence, it was still dark and it had not become bright. It was only a matter of perception. Therefore, the witnesses said what they perceived, and accordingly, there was no contradiction, at all, in regard to the Investigating Officer coming to the place of occurrence, as deposed by the Investigating Officer and as deposed by P.W. 1. It is true that on the person of the appellant, nothing was found, but it has come on evidence that it was not the appellant alone, but he was accompanied by three others, who carried out the robbery. It is true that P.W.4, who accompanied P.W.1 at the time of apprehending the appellant, stated that he knows nothing about theft of money and the items stolen, but the fact remains that in the normal and natural circumstances, he is not supposed to know either of the theft of the quantum of money or of property stolen, as he had no connection with the affairs of the business of P.W.1 carried out from his shop. It was the shopkeeper -P.W.1, who alone could depose, what he lost. It was nobody's case that the money and the other goods stolen were with the appellant. The case, as made out, was that those were stolen and four people were involved with the same, of whom one had been apprehended from the spot.;