Mohammad Rafiq, J. - (1.) This appeal has been filed by accused Vinod Sharma against judgment dated 15.10.2009 passed by learned Judge, Special Court (Fake Currency Note Cases), Jaipur City, Jaipur, whereby he has been convicted for offence under Sections 394 and 302 of the Indian Penal Code and sentenced to undergo life imprisonment on both counts with fine of 5000/- on each count, and in default of payment of fine, to further undergo rigorous imprisonment of one year for each offence. Accused-appellant was tried along-with four other accused. However, learned trial court acquitted all four of them by same impugned judgment. The State has, on grant of leave, filed Criminal Appeal No.815/2014 against their acquittal, who were initially summoned by bailable warrants. Service on three of the accused-respondents was affected therein, except accused-respondent Sarvesh Yadav. Since he was avoiding service, this court, by order dated 21.09.2015, issued non-bailable warrant for his arrest. Prayer of learned counsel for accused-appellant Vinod Sharma for early hearing of the appeal in view of the fact that accused-appellant had already served sentence of ten years, was granted as it was ordered that the State Appeal, filed against acquittal of four accused, be detached and listed separately and appeal filed by the accused-appellant be heard.
(2.) Facts, in brief, giving rise to this appeal are that on 23.08.2005 informant Bhagwan Sahai submitted a written report (Exhibit P-7), to the Station House Officer, Police Station Sadar, Jaipur, sating that in the morning of that date, as per the daily routine, he went to the head branch of the State Bank of Bikaner and Jaipur behind Collectorate to collect the keys of the extension counters and on that day at about 10.30 in the morning, Shri Sunit Kumar Dutta, cashier of the bank, came to their counter. He was having cash to be distributed amongst four extension counters. They came in Ambassador car and reached the extension counter at about 10.35 AM. The informant was sitting in left side whereas Shri Sunit Kumar Dutta was sitting in right side of the back seat of the car. While Bhagwan Sahai Gurjar was driving the car, Kanhaiya Lal, peon of the bank, was sitting on front seat of the car. When the car reached in front of the extension counter, they got down from the vehicle. The informant went inside the extension counter but suddenly he heard the sound like cracker. When he came out, he saw a person having pistol in his hand open fire at Kanhaiya Lal second time, as a result of which Kanhaiyalal fell down. Kanhaiyalal was carrying suitcase of VIP make. The said person, who fired at him, took the suitcase, which had about twenty two lacs in cash. This incident was witnessed by Shri Sunit Kumar Dutta, driver of Ambassador car Shri Bhagwan Sahai Gurjar and gate-keeper. The person, who opened fire at Kanhaiyalal was of strong built and tall with round face. His colour was fair. He was about 40 years of age and wearing a T-shirt of lining and half pant of peanut colour. The informant immediately came inside the extension counter and informed the police control room on telephone and also Shri Kapoor, Bank Manager. Kanhaiyalal was taken to hospital in car by Shri Sunit Kumar Dutta. Later, the informant learnt that the person, who fired at Kanhaiyalal, ran away on motorcycle with someone who was waiting for him on the main gate of the power house. The police, on the basis of aforesaid written report, registered regular FIR for offence under Sections 397 IPC and commenced investigation. On completion of investigation, the police on 07.04.2006 filed charge-sheet against accused-appellant and four accused under Sections 396 and 120B of the IPC and under Section 4/25 of the Arms Act, and also kept investigation pending under Section 173(8) of the Cr.P.C. Case was committed for trial to the court of Special Judge, (Fake Currency Note Cases), Jaipur City, Jaipur. The police thereafter filed supplementary charge-sheet on 14.05.2007 for offence under Section 3/25 and 27 of the Arms Act against accused Vinod Sharma and Sarvesh Yadav and for offence under Section 396, 120B r/w Section 75 of the IPC against accused Radhey Shyam. The prosecution, in support of its case, examined 98 witnesses and got 221 documents exhibited. The defence produced one witness and got 26 documents exhibited. Learned trial court, on conclusion of trial, convicted and sentenced the accused-appellant in the manner indicated above and acquitted other co-accused. The trial court has acquitted accused-appellant for offence under the Arms Act and even for offence under Section 396 r/w Section 120-B IPC. Aggrieved thereby, the appellant has preferred the present appeal.
(3.) Shri Suresh Sahni, learned counsel for appellant, argued that impugned judgment is legally not sustainable being contrary to provisions of law as also material on record. Learned trial court, while passing impugned judgment, did not consider the fact that there are serious contradictions in statements of prosecution witnesses recorded in court and statements recorded by the police under Section 161 Cr.P.C. They had improved upon first version given by them to the police under Section 161 Cr.P.C. Learned trial court at page 29 of its judgment itself agreed that it is a case based on circumstantial evidence and direct evidence both. While, on one hand, the trial court totally denied circumstantial evidence, on other hand, it accepted direct evidence as true, whereas in this case direct evidence is intermingled with circumstantial evidence. In such a situation, if the circumstantial evidence is not believed, then no value can be attached to other evidence.;