The prosecution must prove guilt beyond reasonable doubt; insufficient evidence and unreliable witness identification led to the appellant's acquittal.

JUDGMENT

MANOJ MISRA, J.

1. This appeal impugns the judgment and order of the High Court of Chhattisgarh, Bilaspur [“The High Court”] dated 03.01.2018 passed in Criminal Appeal No.3014 of 1999 whereby the appeal of the appellant against the judgment and order of the Sessions Judge, (Surgujha) Ambikapur (then in Madhya Pradesh) dated 26.10.1999, passed in Sessions Trial No. 292 of 1994, has been dismissed and conviction of the appellant under Section 395 read with Section 397 of the Indian Penal Code, 1860 [“IPC”] and Section 25 of the Arms Act, 1959 [Arms Act] has been upheld.

2. The appellant Vinod @ Nasmulla and Mohd. Kalam Ansari were jointly tried by the Court of Session, (Surguja), Ambikapur (now in the State of Chhattisgarh). Mohd. Kalam Ansari was acquitted whereas the appellant was convicted under Section 395 read with Section 397 of the IPC and Section 25 (1)(b) of the Arms Act. Under Section 395 read with Section 397 of the IPC he was sentenced to seven years rigorous imprisonment along with fine of Rs.2,000/-, coupled with a default sentence of eight months; and for the offence punishable under Section 25(1) (b) (a) of the Arms Act, he was sentenced to one and a half years of rigorous imprisonment along with fine of Rs.500/-, coupled with a default sentence of three months. All sentences were to run concurrently.

Prosecution Case

3. The prosecution case in brief is that while Bus bearing registration No. U.P. 42-A 5406 of Adarsh Transport Bus Service was going to Raipur in the night of 28.09.1993, at about 11:30 p.m., one person, who was sitting behind the driver, put a country-made pistol on the temple of the driver and ordered him to stop the bus. When the bus stopped four persons already travelling in the bus and four other persons, who boarded the bus from where it had stopped, inter alia, started beating the passengers and robbed them of their belongings. A shot was also fired at one of the passengers who sustained injuries. The culprits thereafter escaped with looted articles. The driver took the bus to the Police Station, Ambikapur where First Information Report (FIR) was lodged at about 12:20 a.m. on 29.09.1993. Whereafter the police swung into action, barricades were put to ensure that culprits do not escape and, ultimately, it is claimed, in the night of 29.09.1993 itself, Khemraj Singh (PW-5) arrested the appellant, at about 3:00 a.m., carrying a country- made pistol, which had five cartridges, two live and three empty. On 30.09.1993, the appellant was put to test identification parade (for short TIP) wherein he was identified by the bus driver Ram Sajeevan Sharma (not examined) and Khalasi Ainul Khan (not examined). The other person, who was also there in the bus, namely, Kamal Singh (the Conductor of the bus), though was asked to identify the accused, failed to identify him. Based on the alleged confessional statement made during investigation, Mohd. Kalam Ansari was arrested and put to trial along with the appellant.

Prosecution Evidence

4. Though a number of witnesses were examined by the prosecution but eye witnesses (i.e., passengers in the Bus) examined were only three, namely, PW-6, PW-9 and PW-12. However, none of them had participated in the TIP of the appellant. PW-6, PW-9 and PW-12 proved commission of dacoity whereas PW-9 identified the appellant in Court, during the course of the trial, as the one, amongst those dacoits, who had put the gun on the temple of the driver. PW-5 was witness of appellant’s arrest and recovery of country-made pistol. PW-7 (i.e., the Naib Tehsildar), who executed the TIP of the appellant, proved the TIP and PW-8 (i.e., the Additional Tehsildar) proved the TIP of Mohd. Kalam Ansari.

Trial Court Finding

5. The trial court, inter alia, held that the factum of dacoity is duly proved; PW-9 identified the appellant as one of the dacoits who committed the crime; PW-5 proved recovery of country-made pistol from the appellant and, therefore, the appellant is liable to be convicted. T