IMPORTANT POINT
No one can be convicted without adequate incriminatory evidence.

JUDGMENT

Ravindra Maithani, J.—Instant appeal is preferred by the appellants Pooran Singh Latwal and Ramesh Kharwal against the judgment and order dated 09.01.2004, passed in Sessions Trial No. 1 of 2002, State Vs. Pooran Singh Latwal and another under Sections 147, 148, 307, 149 IPC (based on Case Crime No. 1873 of 2001, Police Station Haldwani, District Nainital), Sessions Trial Nos. 2 of 2002, State Vs. Pooran Singh Latwal and another, under Sections 395, 397, 412 IPC, (based on Case Crime No. 1872 of 2001, Police Station Haldwani, District Nainital), Sessions Trial No. 3 of 2002 State Vs. Ramesh Kharwal, under Section 25 Arms Act, 1959 (“the Act”) (based on Case Crime No. 1877 of 2001, Police Station Haldwani, District Naintial) and Sessions Trial No. 4 of 2002, State Vs. Pooran Singh Latwal, under Section 25 of the Act (based on Case Crime No. 1875 of 2001, Police Station Haldwani, District Nainital), by the court of Additional Sessions and District Judge/1st Fast Track Court, Haldwani, District Nainital. By the impugned judgment and order, the appellants have been convicted under Sections 395 IPC and Section 25 of the Act and sentenced as hereunder:-

(i) Section 395 IPC – Rigorous imprisonment for a period of ten years and a fine of Rs. 4,000/-. In default of payment of fine, further imprisonment for a period of two months.

(ii) Section 25 of the Act – Rigorous imprisonment for a period of one year.

2. Prosecution case, briefly stated, is as follows. On 07.08.2001, at about 1:45 PM, three miscreants entered into the Bank of Baroda, Branch Kunwarpur, Golapar, District Haldwani (“the Bank”). On gunpoint, they looted Rs.32,995/-. They also attacked the Branch Manager with the butt of the country-made pistol (“CMP”). The miscreants had looted Rs.32,995/- and when the Bank Manager came outside the Bank, he saw the miscreants fleeing away in a Maruti Van bearing No. UP02D/4926 (“the car”). The Bank Manager immediately telephonically informed the police about it. This report was lodged at 2:00 PM as FIR No. 1872 of 2001, under Section 395/397 IPC at Police Station Haldwani, District Nainital. After the incident, when the Bank Manager came out side the bank, he stopped a Jeep and informed about the incident to its driver. The Jeep driver PW2 Aman Deep Singh followed the car, intercepted it and hit it. In that process, the miscreants ran towards the field, while firing. They fired at the police. Some of the police personnel were injured. With the help of police and public, four miscreants were apprehended. Two of them are the appellants. From the possession of the appellant Pooran Singh Latwal, three cartridges of 12 bore and from the possession of appellant Ramesh Kharwal, three cartridges of 315 bore were allegedly recovered. PW2 Amandeep Singh also gave a report to the Police about the incident, based on which, Case Crime No. 1873 of 2001, under Sections 147, 148, 149, 307, 412 IPC against the appellants and others: Case Crime No. 1875 of 2001, under Section 25 of the Act against the appellant Pooran Singh Latwal; Case Crime No. 1877 of 2001 under Section 25 of the Act against the appellant Ramesh Kharwal and cases against the other accused were also lodged. This FIR was lodged on 07.08.2001 at 6:30 PM. The Investigation was carried out. After investigation, charge sheet under Section 25 of the Act was submitted against both the appellants separately. Separate Chargesheets were filed against the appellants under Sections 147, 148, 149, 307 IPC and under Sections 395, 397 and 412 IPC, which are the basis of the above Sessions Trials.

3. According to the prosecution case, the other three persons who were apprehended died due to the injuries sustained by them at the time of their arrest, as they were grossly beaten up by the public. The appellants were charged under Section 25 of the Act and separately they were charged under Sections 147, 148, 307 read with 149 IPC and Sections 395 and 397 IPC. But, on 03.09.2002, an order