- (1.) CHALLENGE in this appeal is to the judgment and order dated 8.1.1986 passed by Sri Sarnam Singh, the then Special Judge (Anti Dacoity), Etawah in Special Case No. 116 of 1984 arising out of Crime No. 326 of 1986, PS Kotwali, District Etawah whereby the appellant had been acquitted for the offence punishable under section 392 IPC. However, he has been found guilty for the offence punishable under section 411 Cr.P.C and had been sentenced to undergo two years' rigorous imprisonment and fine of Rs. 2,000/ - with default stipulation.
(2.) BRIEF facts germane to the appeal are that the complainant Narain Das submitted a written report at 12.05 PM on 8.6.1986 in Kotwali Etawah wherein he has stated that today he had sent his servant Babu Lal to Punjab National Bank to obtain cash of a cheque of Rs. 18,000/ - at about 10:30 AM. Babu Lal after taking the amount of Rs. 18,000/ - kept the same inside his Kurta and as soon as he came out from the bank at about 11:00 AM two persons - one was armed with open knife and the other was carrying a country made pistol met him in front of Pradhan Machinery Store and in the process of avoiding himself from them he fell down from the cycle and the currency notes fell on the ground from his Kurta and the miscreants picked up the amount and ran away through the side lane. They were chased by Rafiq and Kallu but could not be apprehended. On the basis of this report, case was registered at the police station Kotwali at 12.05 PM on 8.6.1984, investigation whereof was entrusted to S.I. Ajab Singh Yadav. It was alleged that on 11.6.1984 on the information of an informant the Investigating Officer during patrolling duty apprehended accused Gauhar Ali at about 12:30 PM near Deep Cinema in the presence of public witness Raghuveer Singh. On interrogation he confessed his guilt about the robbery of the amount from Babu Lal and further stated that he has received Rs. 5,000/ - from the booty and the remaining amount is with Mukesh Verma. A memo of arrest and interrogation was prepared. Thereafter, accused Gauhar Ali took the police party to his house and from a box kept in Kotha took out a bundle of Rs. 5,000/ - currency notes having a slip of Punjab National Bank pasted thereon in the presence of public witnesses Raghuveer Singh and Durga Prasad. He informed the police that this is the same amount which he has received as his share out of the looted money from Babu Lal. The memo was prepared at the spot. Thereafter, the accused was put up for test identification in district jail, Etawah on 8.8.1984 where he was correctly identified by witnesses Babu Lal and Kallu. The investigation ended in charge sheet against the accused.
(3.) DURING the trial charge for the offences punishable under sections 392 IPC and 411 IPC was framed against the accused appellant who abjured his guilt and claimed the trial. In support of the charges the prosecution has examined Narain Das PW -1, Babu Lal PW -2, Nanak Chand Verma PW -3, Amruddin PW -4, SI Uma Shanker PW -5, SDM Sri Pramanshu PW -6 and SI Ajab Singh PW -7.;