JUDGMENT J.P. Chaturvedi, J.
1. These are three Criminal Appeals, Criminal Appeal No. 398 of 1977 is by Avtar Singh, Criminal Appeal No. 431 of 1977 is by Dharampal and Criminal Appeal No. 1251 of 1977 is by Vikram. Appellant Vikram. waa convicted of the offences Under Sections 302, 394 and 396, I.P.C and Section 27, Indian Arms Act and he was sentenced to death for the offence Under Section 302, I.P.C, to undergo R.I. for ten years Under Section 394, I.P.C. for two years R.I. Under Section 326 read with Section 34, I.P.C. and for four years Under Section 27, Indian Arms Act. Appellant Dharampal was convicted of the offences Under Sections 302 read with Section 34, I.P.C, 326 read with Section 34, I.P.C. and 394, I.P.C. and was sentenced to death, R.I. for ten years and R.I- for two years respectively. Appellant Avtar Singh was convicted of the offences Under Sections 394, 302 and 326, I.P.C. all read with Section 120B, I.P.C. and he was sentenced to undergo life imprisonment for the offence Under Section 302 read with Section 120B, I.P.C, R.I. for seven years for the offence Under Section 394 read with Section 120B, I.P.C and for two years R.I. Under Section 326 read with Section 120B, I.P.C The sentences were ordered to run concurrently. The learned Sessions Judge also made a reference for the confirmation of the death sentences awarded to appellants Vikram and Dharampal.
2. The prosecution case was that on 16-12-1975, Shri Niwas Gupta (P.W. 2) was the Branch Manager, Central Bank, Khatauli. Ashok Jain (P. W. 3) was the Cashier of the same bank. Gauri Shan-ker was the peon and Budh Prakash was the Guard, Shri Niwas Gupta detailed Ashok Jain, Gauri Shanker and Budh Prakash to bring cash from. Muzaffarnagar. Accordingly, Ashok Jain was given a letter of indent which he presented at the New Mandi Branch o Central Bank at Muzaffarnagar on 16-12-1975 and obtained a cheque (Ext. Ka-1) from there. The three persons went to the State Bank of India, Muzaffarnagar Branch where Ashok Jain presented the Cheque of Rs. 7,00,000 (Seven lacs) before Bhagwan Das Bhatia, Deputy Head Cashier, State Bank, Muzaffarnagar {P. W. 1). After encashing the cheque, Ashok Jain kept the amount in a tin box which he had brought from Khatauli and he locked the box as well as the chain fastened around it. They went to Roadways Bus station, Muzaffarnagar on a rickshaw. They boarded a roadways bus there at 1,30 p.m. They reached Khatauli bus stand at 2.15 p.m. Budh Prakash, Guard, who was armed with a gun, was first to get down from.. the bus. Thereafter Gauri Shanker peon removed the cash box from the bus. Ashok Jain was the last to get down. As he proceeded a few steps in order to engage a rickshaw, he heard reports of gun shots. Turning round he saw Budh Prakash guard falling down and a person armed with a sten-gun firing a shot. The latter fired more shots killing Gauri Shanker peon and injuring Ali Jan (P. W. 4), a passenger in the bus, while he was getting down. A companion of the person armed with the sten-gun picked up the gun of Budh Prakaeh, hung it up on his shoulder and he also picked up the cash box. Both the persons thereafter went away towards Muzaffarnagar on Motorcycle No. USV 2752 Java of black colour. Those very persons had overtaken the bus near octroi out-poet, Khatauli.
3. Ashok Jain conveyed an information of the incident by means of telephone to Shri Niwas Gupta, Branch Manager, Central Bank, Khatauli who in his turn gave information to Police Station, Khatauli by telephone. Shiv Raj Singh (P. W. 12) Head Moharrir, Police Station Khatauli prepared a check report (Ext. Ka-9) on its basis and registered a case.
4. Investigation was immediately taken up by Nand Lai Dixit, S.O., Police Station Kotwali (P. W. ). He along with Sub-Inspectors Horam Singh and Maha-bir Singh reached Khatauli Bus Stand by taxi. He found the dead bodies of Budh Prakash and Gauri Shanker lying there. Injured Ali Jan was also there. Leaving Horam Singh for conducting inquest, Nand Lai Dixit proceeded in the direction in which the miscreants had escaped. While he was going on the canal road in search of the miscreants, he came across Sukhvir Singh Forest Guard who informed him that a motorcycle was lying abandoned on the canal Patri and that he had heard reports of two gun shots. Accordingly, Nand Lai Dixit went to the place and recovered a motor-cycle (Ext. 1) and empty cartridges from there. He packed and sealed the cartridges. On 17-12-1975 he reached village Sarai at 4.00 a. m. He interrogated Kali Ram (P. W. 7) who handed over currency notes for Rs. 50 to him. He packed and sealed the currency notes and prepared a recovery memo (Ext. Ka- 92). These notes are alleged to have been thrown by two persons at him and they bad asked. him not to ; disclose their whereabouts to the police.
5. Horam Singh (P. W. 25) conducted inquest on the dead bodies of Budh Prakash and Gauri Shanker and sent them to the mortuary. He sent Ali Jan injured to the police station and he recovered three 9 MM fired cartridges and a bullet head (Exts. 42 and 43) from the ipktce of occurrence and packed and sealed them and prepared a recovery memo (Ext. Ka-29).
6. Ali Jan was sent to Khatauli Dispensary where his injuries were examined by Dr. a p. Singh, M.O., Khatauli (H.C.W. 1) on 16-12-1975 at 5.30 p.m. Injury report prepare by Dr. B. P. Singh is Ext. K.a-9. As Dr. B. P. Singh had not been examined in the trial court, we summoned: him and recorded his statement. According to Dr. Singh, Ali Jan had a gun shot wound 0.8 cm. X 1.5 cm. near round on front of left thigh .31 cm. above left knee, margins inverted.
7. Post-mortem examinations on the dead bodies of Gauri Shanker and Budh Prakash were conducted by Dr. A. K. Gupta, Medical Officer, District Hospital, Muzaffarnagar (H.C.W. 2) on 17-12-1975. The post-mortem examination reports prepared by Dr. Gupta are Exts. Ka-5 and Ka-6. Dr. Gupta was also not examined in the trial court. We, therefore, recorded his statement which is on record. On the (lead body of Gauri Shanker, the following ante-mortem injuries were found:
(1) A. Gunshot wound of entry 4/lO"X 4/10"X through and through with exit wound on the right side of the upper part of the chest, 3" above the right nipple at 11.00 O'clock position directed backward, downward and towards left side. No blackening, scorching or tattooing.
B. A gun shot wound of exit 1/2" X 4/10" X through and through with wound of entry on the left side back, 2" from the middle of spine 1/2" above the iliac crest.
(2) A. A gun shot would of entry 4/10" X4/ 1&"Xthrough and through with exit wound on the front and middle of the chest, l" above the xiphisternum directed backward, downward and towards left side. Ho blackening and scorching or tattooing.
B. A gun shot wound of exit 1/2" X 4/10" X through end through with entry wound on the outer aspect of the left hip bone at iliac crest with its fracture, 3" behind the left anterior superior iliac spine.
8. On internal examination he found that 4th rib on right anterior side was fractured under injury No. 1. Sternum was fractured under injury No. 2. Pleura was torn under injury No. 1. Right lung was torn through and through under injury No. 1 right chest cavity contained 12 oz. blood. Pericardum was torn under injuries Nos. 1 and 2. Abdomen cavity contained 2 lb. 10 oz. Liver had two tears through and through under injuries Nos. 1 and 2 respectively. Death was due to shock and haemorrhage as a result of these injuries and these injuries were sufficient to cause the death.
9. Budh Prakash had following ante-mortem injuries:
(1) A. Four gun shot wounds of entry in an area 3"X1" on the left side back lower part 3" from the mid line, each size 4/10"X4/10"Xthrough and through with exit wound. No blackening, scorching or tattooing.
B. Four gun shot wounds of exit in an area 7"X5" on the front and lower part of the abdomen. Size 3/4"Xl/2" (two), 1/2" X 4/10" (two) each through and through with wound of entry.
10. On internal examination peritonium was found torn under injury No. 1 A and B. Abdomen cavity contained 3 lb. 4 oz. blood. Abdomen aorta was torn through and through. Small intestine had multiple tears through and through under injury No. 1. Death was due to shock and haemorrhage as a result of gun shot injury.
11. On 17-12-1975 the Superintendent of Police directed Baghuraj Singh, Police Inspector, Kotwali, Muzaffarnagar to investigate the case. Accordingly, Raghuraj Singh (P. W. 34) undertook the investigation of the case. He sent the cartridges shells to the Ballistic Expert on 22nd December, 1975. On receiving information that the appellants Dharam-pal and Vikram were seen at Chandigarh, he and Mahabir Prasad, Inspector left for Chandigarh. On 2-6-1976 at 12.30 p.m. they happened tp come across the two appellants Vikram and Dharampal near Pakeeza Pan Bhandar at Chandigarh. There was a scuffle between the appellants and the U. P. Police whb were in plain clothes. In the meanwhile, Kishori Lai A.S.I. Chandigarh (P. W. 14) happened to pass on that side. He stopped seeing tha quarrel between the two parties. On being told that the police wanted the appellants in some case Kishori Lai with the help of Chandigarh Police took both the appellants in his custody. On personal search of the appellant Dharampal a pistol, seven live cartridges, one cartridge loaded in the pistol and a money bag containing Rs. 4,695 and some other articles were recovered. A recovery memo (Ext. Ka-19) was prepared by Kiehori Lai A.S.I. On personal search of Vikram appellant a knife, a loaded pistol, a money bag containing a sum of Rs. 5,265 and some other articles were recovered. Kishori Lai A.S.I, prepared a recovery memo in respect of the recovered articles from this appellant. It is Ext. Ka-17. As both the appellants were found in possession of illicit arms and ammunition reports (Exts. Ka-18 and Ka-20) were sent to Police Station Chandigarh South for registering a case against them Under Section 25, Indian Arms Act. Both the appellants were made baparda on the spot. Both of them and the property recovered from them were entrusted to Gur Bachan Singh S.I. South Chandigarh {P. W. 15). Gur Bachan Singh took them to Police Station Central Chandigarh as there was no lock up at Police Station South Chandigarh reaching there at 5.30 p.m.
12. Investigation of the case under Indian Arms Act against both the appellants was made by Inspector Baikal" Singh (P. W. 19). He interrogated Vikram appellant and from him he came to know that he could point out some incriminating articles. The appellant Vikram took him to a room in the first floor of House No. 1197 in Sector lo-B, Chandigarh and at his instance Balkar Singh recovered a sten-gun (Ext. 36), 163 cartridges loaded in its magazine (Ext. 39), two knives (Exts. 36 and 38) and currency notes worth Rs. 2,61,708 (Ext 4). He prepared a recovery memo (Ext. K.a-25) in respect of these articles. Dha-ramvir (P. W. 29) has also deposed about the recoveries. As the appellant Vikram had no licence for the sten-gun and the ammunition, Balkar Singh sent a report for registering a case against him Under Section 25, Indian Arms Act. He sent the recovered property as well as the appellant Vikram to Police Station Chandigarh with Gur Bachan Singh at 1.00 a. m.
13. Goir Bachan Singh after getting injuries of the two appellants examined at the General Hospital Sector 16, Chandigarh, took them to Police Station Central Chandigarh and got them admitted in the lock up baparda at 2.05 a. m. H took them to court and from thei>e to jail on 3-6-1976 at 2.10 p.m. Sarvan Chand A.S.I., Chandigarh brought the two appellants to Muzaffarnagar on 13-6-1976 and got them lodged in District Jail, Muzaffarnagar on the same day.
14. Identification of the appellants Dharampal and Vikram was held by Sri A. K. Upadhyaya, Magistrate First Class, Muzaffarnagar (P. W. 9) on 17-6-1976. The identification meznos prepared by him are Ext. Ka-21. The appellant Vikram was identified by Ashok Jain, A3i Jan and Kali Ram. Dharampal was identified by Ashok Jain, Sabir, Ali Jan and Kali Ram.
15. On transfer of Raghuraj Singh the investigation was made by his successor Beni Ram Goel (P. W- 35). He investigated the case from 12-2-1976. On coming to know that the two appellants have been arrested, he went to Ohandi-garh and interrogated both of them and other witnesses. He interrogated Satya--wati on 7-6-1976 and recovered a sum of Rjs. 20,000 from her and prepared recovery memo (Ext. Ka-47). On 96-1976 he arrested Deopal and recovered Rupees 14,500 (Ext. 5) and a ring (Ext. 15) from him. He prepared a memo (Ext. Ka-49). He submitted a charge-sheet against both the appellants on 9-7-1976.
16. Hukum Singh, S.I. of Saharanpur arrested Prem Singh on 5-11-1976 and at his instance Raghuraj Singh (P. W. 34) who was at the time Inspector Kotwali, Saharanpur recovered a gun (Ext. 7) and ten cartridges at the instance of Prem Singh. He packed and sealed them and made an entry in the general diary registering a case under Arms Act against Prem Singh.
17. The appellants pleaded hot guilty. They denied that they committed robbery of the bank cash and caused the death of Budh Prakash and Gauri Shan-ker and injury to Ali Jan.
18. Avtar Singh alias Hitler appellant was arrested on 31-12-1975 by S.I. Har Phool Singh. A charge-sheet against him was submitted by Raghuraj Singh on 6-2-1976 after completing the investigation.
19. So far as the appellants Vikram and Dharampal are concerned the pax>se-cution has relied upon the statements of four eye-witnesses, Ashok Jain (P. W. 3), Ali Jan (P. W. 4), Renvir Singh {P. W. 5) and Sabir (P. W. 6). Ashok Jain, as we have already stated, was the Cashier. He was detailed to bring cash from Muzaf-farnagar to the Central Bank Branch, Khatauli on 16-12-1976. He stated that he produced the letter of indent in the New Mandi Branch of Central Bank and from there he obtained a cheque for Rs. 7,00,000 (Seven lacs) (Ext. 1). He presented the cheque at the State Bank Branch Muzaffarnagar and encashed it. Shrinivas Gupta (P. W. 2) has stated that he deputed Ashok Jain for bringing Rs. 7,00,000 (Seven lacs) from Muzaf-farnagar. The witness Ashok Jain is further corroborated by Bhagwan Dass (P. W. 1) Deputy Head Cashier, State Bank, Muzaffarnagar who stated that he made payment of Rs. 7,00,000 to Ashok Jain on the basis of the cheque (Ext. Ka-1). The signatures of Ashok Jain are found on the reverse of the cheque (Ext. Ka-1). Regarding the incident Ashok Jain said that he boarded the bus at Muzaffiarnagar with the cash box which contained the amount of the cheque. The deceased Gauri Shanker and Budh Pra-kash were with him in the same bus. According to him Budh Prakash Guard got down first from the bus and then Gauri Shanker came down. They removed the box while he (the witness) proceeded to engage a rickshaw for taking the cash to their bank. As soon as he turned his back he heard report of the gun shot and on turning back he saw Budh Prakash falling down. When another shot was fired he saw Gauri Shanker also falling down .and Ali Jan being injured. Thereafter he stated that the companion of the person who had been firing from the sten-gun picked up the gun of Budh Prakash and the cash box and both the persons went away towards Muzaffarnagar on a motor-cycle No. USV 2752. The witnesses identified both the appellants in the test identification as well as in the trial court.
20. The defence doubted the presence of the witness. In cross-examination, it was suggested to him that he did not travel by the same bus, that he sent cash with the peon .and the Chowkidar and that he came by a subsequent bus. The witness repelled this suggestion. He could not afford to stay behind at Mu-zaffarnagar because it was his personal responsibility to bring the cash. Moreover, the witness promptly informed the Branch Manager Srinivas Gupta (P. W. 2) and the latter in his turn gave information to Police Station Khatauli at 2.25 P.M. The incident took [place at 2.15 P. M. Considering this corroborative evidence, we are of the view that there is no merit in the suggestion made on behalf of the defence. We hold that Ashok Jain had come by the same bus and that he was present at the time when the occurrence took place.
21. The next witness is AH Jan (P. W. 4). He stated that he travelled by the same bus for Khatauli from Muzaffar-nagar. While he was getting down from the bus, he was also injured in his thigh. His attention was attracted by the report of the gun shot and he saw the armed guard falling down. He also saw peon being injured from another shot. The companion of that person removed the gun belonging to the armed guard and also the cash box and both of them went away towards Muzaffarnagar on a black motor-cycle. He identified both the appellants in the dock and pointed out Vik-ram as the person who had fired the shots and Dharampal as the person who had picked up the gun and the cash box. He identified both of them at the test identification also.
22. There can be little doubt as to the presence of this witness at the scene of the occurrence. He sustained an injury at the hands of the miscreants, the mention of which is to be found in the first information report itself, Horam Singh, who reached the place of the occurrence in pursuance of the first information report, found him on the spot and sent him to the police station from where he was directed to the dispensary. His injuries were examined by Dr. B. P. Singh on the same day at 5.30 P. M.
23. Some doubt was expressed by the learned counsel for the appellants as to his ability to see and recognise the miscreants. In this connection, it was pointed out that the witness himself stated in cross-examination that his left eye was defective, that the visibility from his left eye had been poor since his childhood and that at the time when he appeared as a witness he could not see at all from it. There appears to be no defect with his right eye. Since the incident was at a few paces from him, he could see and recognize the miscreants very easily even if he had only one eye. The witness stated that since the shots were fired from front he saw towards the miscreants and he could very easily see them. He was hit in the front portion of his leg which also indi- cates that the shots were being fired from his front. The peon removed the cash box from the front door of the bus, while the witness got down from the thus from the hind door. The miscreants were also towards the front door and as such the witness had full opportunity to have a view of both the miscreants.
24. The third witness is Ranvir Singh (P. W. 5). He had been knowing both the appellants for three or four years. He used to take petrol from the petrol pump of Madan. The appellant Vikram also purchased petrol for his motorcycle from there and on two occasions he was accompanied by Dharampal. Vikram used to meet him often &t the petrol pump of Madan. The witness also stated that about a year ago he borrowed the motor-cycle of Rampal Singh and that he had gone to his village and on the following day he returned from his village and passed through Khatauli. As a procession of the Sikhs was passing and he had to go to Muzaffernagar, he had to stop. When he was near the liquor shop, he heard reports of gunshots at 2.15 p. m. He -also saw some persons running. He, therefore, stopped his motor-cycle and standing behind a tree he saw a bus. He also saw the appellant Dharampal lifting a gun which was lying near a man and also the cash box. Vikram appellant had a sten-gun and he helped Dharampal in lifting the cash-box from his other hand. Both of them went away on a motor-cycle towards Muzaffarnagar keeping the cash box on the motor cycle. The motor-cycle was of black colour Java. On reaching Muzaffarnagar, he narrated the incident to Rampal Singh and eight or ten days after Rampal Singh called him and took him to Police Station Khatauli where he narrated the incident to the Police.
25. learned counsel for the appellants has criticised the testimony of this witness on two grounds. In the first place he has contended that he was a chance witness inasmuch as he happened to pass through Khatauli while going from his village to Muzaffarnagar at the very moment. No doubt he is a chance witness but his presence cannot be said to be improbable. The incident was on the road and persons passing on the road could be expected to be present and to witness the incident. Secondly, it was pointed out that the witness did not mention about the incident at the place to any one, not even to Sabir who was known to him. Explaining this lapse on his part he said that when he narrated the incident to Bampal Singh he advised him not to mention it to any one otherwise he would be in trouble and he would have to give evidence. As the incident was on his way and Sabir had also seen the incident within his knowledge it was not unnatural for the witness not to make any mention of it to Sabir. We are, therefore, unable to discard the testimony of this witness merely on this ground.
26. The fourth witness is Sabir (P. W. 6). He stated that for the last two years he had ibeen working as an agent at the taxi-stand which was near the Roadways-bus-stand. According to him eleven-and-a-half months ago at 2.00 p. m. or 2.30 p.m. he was at the Idgah which is near taxi-stand. He saw a motorcycle coming from Muzaffarnagar side and stopping at the bus-stand. At the same "time a bus also came from Muzaffarnagar side. One of the passengers of the motor-cycle was Vikram whom he had been knowing from before. The other person was not known to him. Five or six persons got down from the bus, one of them being a peon armed with a gun who removed the cash box from the bus. Ashok Jain cashier also got down from the bus and he called a rickshaw puller. In the mean-while Vikram fired a shot at Budh Prakash and another shot at the other peon. Another passenger of the bus was also injured from the shots fired by Vikram. Vikram's companion lifted the gun of the Chowki-dar Budh Prakash and also the cash box and placed it on the motor-cycle and both the miscreants thereafter went away towards Muzaffarnagar. He also stated that Ranvir was also seen by him near the dead bodies. Explaining as to how he had been knowing Vikram the witness stated that three days before the incident Hitler and Vikram came to the taxi stand. Hitler had been known to him for some time and he was a resident of village Bhainsi. Hitler told him that he would require a taxi within two or three days and that if he (Hitler): did not come personally he (the witness) should give the taxi to Vikram. Hitler also told him that Vikram was his brother and that he resided at Muzaffarnagar. The witness further added that shortly after when the police came to the place of the occurrence he told them that the person armed with sten-gun was Vikram. He identified Dharampal in the dock as well as in the test identification. The witness being a taxi agent his presence was probable for the taxi-stand and the bus-stand are close to each other. learned counsel for the appellants has assailed the testimony of this witness on the ground that he did not mention to any one except the Investigating Officer that he had seen Vikram with the sten-gun. It was also pointed out that although Ashok Jain was known to him he did not make a mention of the name of Vikram appellant to him. The witness stated that immediately after the shots had been fired Ashok Jain ran towards the roadways Bus stand after crossing the road, that he did not return thereafter although he stayed there for four or five minutes. He saw Ashok Jain thereafter at the bus stand at 6M p. m. He had hardly any occasion for a conversation with Ashok Jain. He also stated that he had no talk with Ranvir Singh and that he merely accosted him. He was interrogated immediately after the police had come and as such the mere fact that he did not disclose the name of Vikram to any one on the spo is not enough to discredit him.
27. Out of the four eye-witnesses of the incident Ashok Jain and Ali Jan have identified both the- appellants. Ranvir Singh knew both the accused from before. Sabir knew Vikram from before and he identified Dharampal at the test identification and at the dock.
28. The identification evidence has been criticised on several grounds. In the first place, the learned counsel for the appellants has contended that the appellants Vikram and Dharampal although arrested at 12.30 p.m. on 2-6-1976 were not taken to police station before 2.05 a.m. on 3-6-1976 and no entry in the general diary as to their having been brought there had been made. No doubt Vikram and Dharampal were arrested on 2-6-1976 by Kishori Lai (P. W. 14) at 12.30 p.m. Kishori Lai stated that both the appellants were entrusted to Gur Bachan Singh (P. W. 15), S.I. South Chandigarh. Gur Bachan Singh also said that he took both the appellants to police station Central Chandigarh as there was no lock up at police station South Chandigarh and that he reached there at 5-30 p.m. Thereafter Vikram was interrogated by Balkar Singh (P. W. 19) and at the instance of Vikram recoveries were made from house No. 1197.
29. Raghuraj Singh stated that soon after their arrest the appellants were made baparda and entrusted to Chandigarh Police. Kishori Lai (P.W. 14), Gur-bachan Singh (P. W. 5) and Balkar Singh (P. W. 19) have also stated that the two appellants were kept baparda throughout. Gur Bachan Singh also stated that after the recovery at the instance of Vikram he took both the appellants to General Hospital for examination of their injuries. He brought them back to Police Station Central and got them admitted in the lock up at 2.05 a. m. He stated that throughout the appellants remained baparda.
30. In his statement before the Magistrate who held identification, the appellant Vikram stated that Chandigarh Police and the S. P. Police took his photograph and that he was shown to the witnesses while being brought to Muzaf-farnagar at itehana Police Out-post and Police-lines, Muzaffarnagar. Dharampal stated that he was shown to the witnesses at Rehana Out-post. They did not say that they were shown to the witnesses at Chandigarh and in the trial court they said so for the first time, in cross-examination of the witnesses Ashok Jain, Ali Jan and Sabir no suggestion was made that they had seen the appellants at Chandigarh. According to Sri Beni Ram Goel, information of the arrest of the appellants was received by him at night of the 2nd June, 1975 and he reached Chandigarh at 3.00 A. M. on 3rd June 1976. Even if an attempt to take the witnesses to Chandigarh was to be made they court not reach before 3.06 A. M. when the appellants were already in the lock-up and baparda. We are, therefore, not impressed by this contention. All necessary precautions to conceal the identity of the appellants had been taken. Merely because no formal entry of the appellants having been brought to Police Station Central Chandigarh had been made, it could not be supposed that they had been seen by the witnesses and the identification was, therefore, without value.
31. All the three witnesses have also denied that they saw the appellants at Rohana outpost or elsewhere. There is no evidence whatever to support this plea.
32. It was next urged that photographs of the appellants were shown to the witnesses and it was on the basis of the photographs that the witnesses had identified the appellants in the test identification as well as in the dock. In this connection, learned counsel for the appellants has relied upon the statement of Satyawati (P. W. 13). Satyawati stated that before the Police came to her, she had come to know from the photographs of Vikram and Dharampal published in some paper, that the person known to her as Raju was Vikram and that the person known to her as Shayamn was Dharampal as the names of Vikram and Dharampal were written in the paper. Pointing out that the recovery from Satyawati was made on 7th June 1976, it was urged that the photographs of the appellants were published in some paper before 7th June 1976 and that Satyawati had seen the same. The trial court has rightly not believed this part of the statement of this witness. The witness admitted that the relationship between her and Vikram was not merely that of Landlord and tenant but she had some other relation with him also. She admitted that Vikram had illicit connection with her as well as with Rooprani She admitted that Vikram had forced her to sexual intercourse with him still she considered him to be a good man and that she had every sympathy with him. It is, therefore, likely that out of the same sympathy she may have made the statement as to photographs having been published in some newspapers. If it were a fact that photographs of the appellants had been published in some newspapers before 7th June 1976, it should not have been difficult for the defence to produce the same. The defence has filed a copy of 'Milap' dated 8th November 1976. Since the identification of the appellants was held on 17th June 1976 these photographs could not be availed of by the witnesses. AH the witnesses in whose custody the appellants happened to be have deposed that no photograph was taken. Raghw-aj Singh has positively stated that no photograph of the appellants was taken. Even if it were a fact that photographs of the appellants had been taken the Police would not publish them. Their purpose would have been served by merely showing these photographs to the witnesses. It would have been against their interest to publish them. It appears that the alleged photographs in Milap of 8th November 1976 were published on behalf of the appellants is order to bolster up their defence against the identification evidence. We are, therefore unable to accept the contention of the learned counsel for the appellants that the photographs of the appellants were taken after their arrest and that they were made available to the witnesses to facilitate identification of the appellants by them.
33. Referring to the identification memo (Ext. Ka-21) it was pointed out that in column No. 3 as many as fourteen distinctive marks were found on his person. The precaution which the Magistrate took in concealing those marks are entered in column No. 4, ac- cording to which nine paper slips were pasted to conceal the marks Nos. 1 to 11. As Vikram had curly hair he and persons mingled were made to put on caps. In order to conceal mark No. 13 he was made to put on a fulleleave shirt and in order to conceal mark No. 14, on his cheeks slight earth was pasted. Thus only nine slips were pasted on the face of the appellant Vikram and it cannot be said that his identity was affected by those slips. Dharampal had thirteen distinctive marks and in order to conceal marks Nos. 1 to 11 and 13 ten slips were pasted. In order to conceal mark No. i2 he and other members of the party were asked to keep their mouths closed. As such, slips on the face of this appellant also did not affect the identification,
34. The incident took place in day light and in an open space. The miscreants mwst have taken sufficient time In causing the death of Budh Prakash and Gauri Shanker and injuring Ali Jan and in lifting the gun and the box. The witness had, therefore, sufficient opportunity to identify them and we find -no reason to disbelieve their testimony.
35. Apart from the above mentioned eye-witnesses there are circumstances which connect Vikram and Dharampal appellants with the crime with which they have been charged. The circumstances are as follows:
1. Motorcycle USV 2?62 Java on which the two appellants escaped from the place end the occurrence along with cash and gun was found .abandoned on 16-12-75 at 3.30 p.m. on the canal Patrl
2. Kali Ram (P. w 7) handed over Bs. 50 to the Investigating. Officer on 16-12-1975. This amouftt is. alleged to have been given to him by the appellants
3. On 2-4-1976 when the appellants were arrested at Chandigarh, appellant Vikram was found in possession of Rs. 5,265 in currecy notes and Dharam-pal of Rs. 4,695. Some of these currency notes had initials of Ashok Jain.
4. On being interrogated Vikram told Balkar Singh (P. W. 19) that he could point out certain property of the case and at his instance the sten-gun {Ext. 36), cartridges and a sum of Rs. 2,61,708 were recovered. Some of the currency notes recovered at the instance of Vikram had signatures of Ashok Jain.
5. Bodul Rai (P. W. 20) Ballistic Expert compared the three cartridges and one bullet recovered from the place of the occurrence and those he fired from the sten-gun (Ext. 36) recovered at the Instance of the appellant Vikram and he found that the markings on both were identical and, therefore, the three cartridges had been fired from the sten-gun (Ext. 36).
6. Satyawati (P. W. 13) handed over Rs. 20,000 to the Investigating Officer on 7th June 1976. This amount was alleged to have been given to her by Vikram and Dharampal appellants.
7. Prem Singh (P. W. 33) was given Re. 6,000 by the appellants for purchase of a motor-cycle and he did purchase a motor-cycle.
8. The gun (Ext. 7) belonging to Budh Prakash and removed by the appellant Dharampal from the scene of occurrence was recovered from Prem Singh. Prem Singh deposed that the gun was given to him by the appellants.
9. Beni Ram Govil (P. W. 35) took search of the house of Deopal on 9th June 1976 and recovered Rs. 14,500 and a ring. Among currency notes there were notes initialled by Ashok Jain.
10. Recovery of amounts from the appellants, at their instance and from their relations disproportionate to their means and the appellants were lavishly spending money.
11. Extra-judicial confession made by the appellants to Prem Singh (P. W. 33).
36. We shall deal with the evidence regarding the above mentioned circumstances in the order in which they have been mentioned above.
37. Regarding the first circumstance the prosecution ease is that the appellants came from Muaaffarnagar side on a motor cycle, They overtook the bus by which Ashok Jain, Budh Prakash and Gauri Shanker were travelling with the cash near Khatauli Octroi Out-post and after the incident they escaped on the same motor-cycle. Ashok Jain stated in his statement in court that the miscreants went away on the motor-cycle USV 2752 Jawa of black colour. He was corroborated by the first information report which was made by Shriniwas Gupta at his instance. Ali Jan, Ranvir Singh and Sabir have also stated that the miscreants went away towards Muzaffar-nagar on a black motor-cycle. Nand Lai Dixit stated that he came to know from Sukhvir Singh Forest Guard that a motor-cycle was lying abandoned on the canal patri and accordingly he went to the place and took motor-cycle (Ext. 1) in his custody. The motor-cycle recovered by him was USV 2752 Jawa. This recovery was made at 3-30 p. m. i.e. soon after the incident which took place at 2.15 P. W. This shows that the miscreants ran away in that direction.
38. Regarding the second circumstance, the evidence is of Kali Ram (P. W-7). He stated that his field was at a distance of fifty or sixty yards from the left side bank of the canal; that eleven and a half months ago at 3.00 or 4.00 (p. m., while he was ploughing his field, two persons came from the canal side. They had two guns and a box. Both of them took out currency notes of Rs. 10 from their bag and threw five such notes at him. They went away towards village Bhainsi saying that he should not inform the police about their whereabouts. On the following morning he was called by the Investigating Officer at Prakash Crusher through the Chowkida"r and he gave the money to him and told him the features of the miscreants. The witness identified both the appellants at the test identification as well as in the dock. He also stated that while returning home in the evening he had told at the Prakash Crusher what had happened to him. The witness has no grounds "against -the appellants and We see no reason to disbelieve him. The prosecution has, therefore, successfully made out this circumstance also.
39. Regarding the third oircumstance, the prosecution has relied upon the statements of Raghuraj Singh (P. W. 35), Kishori Lai (P. W. 14), Gurbachan Singh i(P. W. 15) and Rajendra (P. W. 18), Raghuraj Singh stated that on 2nd June 1976 he and Mahabir Prasad, Inspector of Police of Dehradun and other police men of U. P. were passing near the crossing of Pakeeza Pan Bhandar in Sector 22 Chandigarh at 12.30 P. M. They were pointed out Vikram and Dharampal. When they tried to catch hold of them there was scuffle. In the meanwhile, Chandigarh Police also came and they were arrested. Kishori Lai (P. W. 14), Gurbachan Singh (P. W- 15) and Rajen-dra (P. W. 18) have also corroborated them. All these witnesses have deposed that persons of the two appellants were searched then and they were found in possession of illicit fire-arms and ammunition as well .as currency notes. These articles were taken into possession and recovery memos were prepared. Vikram appellant was found in possession of Rs. 5,265 while Dharampal had Rupees 4,-695 with him. Some of these notes had initials of Ashok Jain. In this connection, Ashok Jain stated that he had made initials on the packets of hundred rupees notes. He pointed out his initials on two currency notes (Exts. 2 and 3) one recovered from each of the appellant. learned counsel for the appellants pointed out that these currency notes were not sealed immediately after the recovery and in the memos no mention of the initials is made and as > such their recovery has no evidentiary value whatsoever. The recovery of currency notes bearing initials of Ashok Jain from the custody of the appellants would have been a very important evidence against them if the currency notes had been sealed. But in the absence of their having been sealed, in our opinion, the recovery of currency notes bearing initials has little evidentiary value apart from the circumstance that a huge amount was recovered from the .possession and at the instance of the appellants which by itself may be a circumstance against them, if not explained.
40. We may now consider the further and the fifth circumstances. The prosecution case is that the appellants, Vikram and Dharampal were taken to police station Central Chandigarh and in, connection with the offence under the Arms Act Balkar Singh (P. W. 19) interrogated Vikram. appellant. In the course of his statement Vikram told Balkar Singh that he had kept a sten-gun, currency notes worth Rs. 2,60,000, 163 cartridges and two knives in a black bag with zips on both sides and that he kept the bag concealed on the Chatti in the southern wall of Kitchen in the first floor, of house No. 1197 in Sector No. 15B which . was in his possession and that he could point out the same. The appellant Vikram accordingly took Balkar Singh (P. W. 19) and others to house No. 1197 and pointed out the above mentioned articles. In this connection the prosecution examined Balkar Singh (P. W. 19) who testified to the accused having made the above mentioned statement as also to his leading to house No. 1197 and pointing out the place. The house was found locked. Its lock was broken and a bag containing a sten-gun, 163 cartridges loaded in its magazine and a sum of Rs. 2,61,708 and odd worth currency notes and two knives were found in it. The witness also stated that he packed and sealed the currency notes and sten-gun separately and prepared a recovery memo Ext; Ka-25. The sten-gun according to him was Ext. 36, knives were Exts. 37 and 38 and cartridges Ext. 39. The currency notes were Ext. 4. He sent a report to the police station for registering a case against Vikram under the Arms Act as he had no licence for the sten-gun and ammunition. Dharam-vir (P. W. 29) was also present at the time of the discovery of the above mentioned articles. He stated that on 2nd June 1976 he was going to Sector No. 22 with' Generail Singh. When he happened to pass in front of the police station Central Chandigarh Generail Singh noticed Sagar Chand Dy. S. P- He too stopped there as Sagar Chand Dy. S. P. was known to him for he wanted to talk to him. From police station Central he was taken by Balkar Singh for witnessing the recovery. He also stated that Vikram was interrogated by Balkar Singh in his presence at the Police Station and Vikram told Balkar Singh in his presence that a sten-gun, 163 cartridges, currency notes worth Rs. 2,60,000 and too knives were kept on the parchatti of the Kitchen of first floor in house No. 1197, Sector B and. he could point out the same. At 6.30 PM. they accompanied the accused to the house and from there the above articles were recovered. The articles were packed and sealed in his presence and the recovery memo was prepared. As the recovery memo was a long document they .could not be free before 1.00 A.M. when the appellant Vikram- was sent to the police station along with Gurbachanj Singh.
41. learned counsel for the appellant Vikram disputed the presence of the witness and in this connection it was pointed1 out that he had no business to come to, the police station Central and to go with the (police. The witness admitted in cross-examination that he had taken his lunch at 1.30 P.M. and that thereafter he was relieved to go to his house only after the recovery proceedings were completed at 1.30 A.M. in the night and that he had to remain hungry. Explaining his visit to the police station he stated that Generail Singh being the President of the District Congress Committee had friendly relations with Sagar Singh Dy. S. P. and, therefore, he (Gene-rail Singh) stayed for sometime at the police station when he found Sagar Chand there, and as he (the witness) was with General Singh he also stopped there. The explanation of the witness as to his presence at the police station and hiis remaining present at house No. 1197 throughout the recovery proceedings is satisfactory, and we find nothing improbable or unnatural in his conduct. ' We, therefore, hold that the prosecution has successfully proved the recovery of the currency notes worth Us. 2,60,000 and odd from house No. 1197 and also of the sten-gun and ammunition.
42. When Ashok Jain (P. W. 3) was in the witness box the sealed .packet of 2& packets of 100 rupees notes was opened and the packets of the currency notes were shown to him. He stated that all the packets except the one in which there were only 99 currency notes had his initials. He also stated that immediately after he encashed the cheque he put his initials on each of the packets of the currency notes. Discovery of cur-cency notes, therefore, assumes a great importance to connect the appellant VLkrawi with the crime. It was suggested to Ashok Jain in cross-examination that the currency notes were shown to him at Chandigarh and his initials were obtained at Chandigarh. So far as the recovery of the currency notes is concerned we have not been able to find anything in cross-examination showing that the appellant challenged the recovery of the currency notes from house No. 1197 nor are we impressed by the suggestion on behalf of the appellants that Ashok Jain initialled the currency notes at Chandigarh. The currency notes were sealed immediately after their recovery near about 6-30 p.m. and Ashok Jain could hardly be available at that time at Chandigarh.
43. The sten-gun Ext. 36, according to Balkar Singh (P. W. 19), was sealed immediately after the recovery at the very place. Sheesh Pal Singh Tomar de posed in his affidavit that on 12th June, 1976 he accompanied J. C. Tatwar D.S.P. to Chandigarh and from there he brought the packets containing the sten-gun, pistol, currency notes, cartridges and other properties. He deposited the sealed packets of the articles in police station. Kotwali on 13th June 1976 and made an entry in the General Diary. He also stated that so long the property remained in his custody its seals were intact. Ram Mool Singh stated that he took the packet of the sealed cartridges on 22nd December, 1975 to the ballistic expert and gave it to him on 23rd December, 1975. Brijendra Singh S.I. took the sealed packet of the sten-gun on 20th June, 1976 and handed over the same to the ballistic expert Bodul Rai. Bodul Rai (P. W. 20) also stated that he received the .packet of the cartridges on 23rd December, 1975 from Ram Mool Singh constable and the packet containing the sten-gun on 21st June, 1976, from Brijendra Singh S.I. He also stated that he fired six cartridges from the sten-gun and he compared the firing marks on them with the disputed cartridges and the bullet and he came to the conclusion that the marks found on the test cartridges and on the disputed cartridges and the bullet were identical and that they had been fired from the sten-gun Ext. 36.
44. The discovery of the sten-gun at the instance of the appellant Vikram is of great evidentiary value. Asholt Jain pointed out Vikram as the person who had fired from the sten-gun. Ali Jan-placing his hand on Vikram stated that he had fired shots. Ranvir Singh who knew the appellant Vikram also said that he had a sten-gun in his hand. Sabir also knew Vikram from before and he also stated that Vikram had the sten-gun. Prem Singh (P. W. 33) stated that in February 1976 he tdok Vikram and Dha-rampal on his motor-cycle from Bhokar-heri to Saharanpur and at that time Vikram had a sten-gun and cartridges and packets of currency notes. This evidence shows that the sten-gun remained in possession of the appellant Vikram from the time of the occurrence until his arrest and its discovery by the police on the night between 2nd and 3rd of June, 1976. The discovery coupled by the evidence of the ballistic expert Bodul Rai is enough to connect the appellant Vikram with the crime.'
45. learned counsel for the appellant contended that the prosecution has not examined the landlady of house No. 1197 or any resident of the neighbourhood to show that the house was in occupation of the appellant Vikram. We do not think it was necessary for the prosecution to produce any such evidence. The discovery of the currency notes and the sten-gun was made at the instance of the accused and his statement leading to the discovery is admissible under the provisions of Section 27, Indian Evidence Act.
46. There is, however, evidence on record to prove that house No. 1197 was in occupation of the appellants Vikram and Dharampal. Prem Singh (P. W. 33) stated that he lived with Vikram and Dharampal at Chandigarh for sometime. He stated that when he visited Vikram and Dharampal at Chandigarh they resided in Sector 22C in the house belonging to Pratap Singh Rana. There was a quarrel between Pratap Singh Rana, Vikram, Dharampal and the witness Prem Singh. Pratap Singh Rana made a report against the three persons. The report is Ext. Ka-23. The dispute was, however, settled amicably and after paying the dues of Pratap Singh Rana, Vikram, Dharampal and Prem Singh vacated his house. Prem Singh further stated that after leaving the house of Pratap Singh Rana they took two houses, one in Sector 37 where he and Dharampal resided and the other in Sector 15B in which Vikram resided. The illicit firearms and the currency notes were kept in house No. 15B and a separate house in Sector 37 was taken so that people may not come to know of the house in Sector 15B. The prosecution also examined Pratap Singh Rana and A.S.I. Jas-bir Singh (P. W. 1-6) in order to prove that the appellants and Prem Singh resided in the house belonging to Pratap Singh Rana and that there was a dispute between the two parties and a report Ext. Ka-23 had been made against Prem Singh, Vikram and Dharampal. This evidence also goes to prove that the appellants had been for sometime residing at Chandigarh. Prem Singh also stated that house in Sector 15B had been taken and that cash and illicit firearms were kept therein. In the circumstances, therefore, the objection raised by the learned coun-eel for the appellant is untenable. The prosecution has by unassailable evidence established both these circumstances.
47. We may now consider the next circumstance that is recovery of Rupees 20,000 from Satyawati. Satyawati (P. W, 13) is a resident of Saharanpur. She stated that she had been knowing Prem Singh from before. About one and half years ago Prem Singh brought two persons named Raju and Shy-ama to her and on the recommendation of Prem Singh she let out a room in her house to Raju and Shyama on Rs. 45 per month. Both these persons occupied the room for one month ten days. They, however, paid rent only for one month, and the rent for ten days was paid by Prem Singh. About ten months after when her father-in-law died the two persons, whose names she came to know subsequently were Vikram and Dharampal, came for condolences and stayed in the same room for two or three days. (Raju) gave her Rs. 10,006 for getting some ornaments made for his brother-in-law Deoraj and her husband made one pair of gold Karas and a ring for Raju (Vikram) and a ring for his brother-in-law Deoraj for Rs. 6,225 and she returned the balance. She further stated that she accompanied both the appellants to Chandigarh with her relation Jahangiri Lai and on their recommendation Pratap Singh Rana let out his house to the appellants. Eight days before their arrest Raju (appellant Vikram) came on a motor-cycle to her house and he deposited Rs. 20,000 with her. After their arrest the police came and recovered the amount from her. She identified the currency notes Ext. 6 as those which had been recovered from her by the police. Beni Ram Govil (P. W. 35) and Raghuraj Singh (P. W. 34) also testified to the recovery of Rs. 20,000 from Satyawati. Ashok Jain (P. W. 3) identified his initials on two currency notes in this packet. Thus this evidence proves beyond reasonable doubt that the currency notes which were recoverd from Satyawati were the stolen property, as from the statement of Satyawati it is clear that these currency nates were given to her by Vikram Appellant. As such this circumstance also connects VJkram appellant with the crime.
48. We may now take up circumstances mentioned at serial Nos. 7, -8 and 11. In this connection reliance has been placed on the testimony of Prem Singh (P. W. 33). Prem Singh stated that he had been knowing Vikram and Dharampal. He (Vikram) was introduced by Sompal in June, 1976 as a student of LL. B. and bm friend Sompal also told him that he (Vikram) was in need of zoom for his residence. Accordingly the witness introduced him {Vikram) to Satyawati .and Satyawati let out a room in her house to Vikram. Dharampal also resided with him. Vikram disclosed hie name as Rajendra Singh while Dharam-ipal disclosed his name as Shyama Singh but later on when they became friends he came to know their real names as Vikram and Dharampal. These two persons remained at the house of Satyawati for one and a half months. They pledged a ring and a watch with Satyawati as they were short of money and they left the house of Satyawati without paying rent for ten days. In January 1976 Vikram called him in the Jungle of Bhokar-heri. He met Vikram and Dharampal there and Vikram gave him Rs. 6,000 and asked him to purchase a Java motorcycle. On being asked he '(Vikram) also told him that they had robbed the Khatauli Bank of its cash amounting to Rs. 7 lacs after killing two persons. He had done so with the help of his cousin Hitler who informed him the day, the time and the bus by which the Bank cash was being brought. On 26th January, 1976 the witness purchased a Java motor-cycle from Saharanpur. In February, 1976 he met Vikram and Dharampal in Bhokarheri Jungle and from there all the three of them went to Saharanpur on the same motor-cycle. Vikram had packets of currency notes, sten-gun and cartridges in two bags and Dharampal had a gun. They stayed at the house of Satyawati for some days and then they (Vikram and Dharampal) along with Satyawati went to Punjab. While leaving they (Vikram and Dharampal) gave him (the witness) gun Ext. 7. They also told him that the gun was also booty of the bank dacoity. They directed him to keep it concealed and not to disclose about it to any one. Fifteen days after he and Satyawati went to Chandigarh and he stayed with the appellants at Chandigarh at the house of Pratap Singh Rana for some days. He also referred to the dispute between Pratap Singh Rana, Vikram, Dharampal and himself. He finally stated that he, Vikram, Dharampal thereafter shifted to house No. 1197 in Sector 15-B. Vikram retained his driving licence. Driving licence was recovered from Vikram on his personal search and it was identified by the witness.
49. learned counsel for the appellants has assailed the testimony of this witness mainly on the ground that he was an accomplice and as such he was not worthy of any credit. There is no evidence on record to prove that the witness was in any way concerned with the robbery of the Khatauli Bank money.. He appears to have come in contact with the appellants before the occurrence and his contact with the appellants also continued thereafter. Appellant Vikram gave him Rupees 8,000 and the gun Ext. 7 was recovered from his (possession. It may be said that the witness was unlawfuly in possession of the gun but he stated that he had to keep the gun out of fear. Even if the witness may be treated as an accomplice his testimony is corroborated by independent evidence in all important particulars. Satyawati stated that the two appellants were introduced to her by Prem Singh. This shows that Prem Singh was friendly with the appellants and that he enjoyed their confidence. The appellants gave Rs. 6,000, to the witness for the purchase of a motor-cycle. In this respect the prosecution has produced the cash memo Ext. Ka-50 in the name of Prem Singh in respect of Yezdi motor-cycle. .Ext. 93 is the certificate of registration dated 27th February 1976 in the name of Prem Singh in respect of Yezdi motor-cycle. Ext. Ka-17 recovery memo shows that driving licence No. P4841 dated 30th March 1976 in the name of Prem Singh was recovered from the personal search of Vikram appellant. Prem Singh visited Chandigarh and resided with Vikram and Dharampal in the house of Pratap Singh Rana for some days. In this respect he is corrobci-rated by the statements of Pratap Singh Rana and Jasbir Singh, A.S.I. as well as the first information report made by Pratap Singh Rana Ext. Ka-23. This evidence, therefore, gives credence to the testimony of Prem Singh and we find no reason to disbelieve him.
50. It was next pointed out that Prem Singh himself was a man of doubtful character and that he belonged to the gang of Bhartu a dacoit who operated in district Dehradun. This suggestion was repelled by the witness. In cross-examination he was confronted with his statement to the investigating officer that he had friendship with Bhartu of iDehradun and Prema Punjabi of Jwala-pur. On the basis of this statement it may be assumed that the antecedents of the witness are such that he may not claim respectability. This by itself will not establish that the gun Ext. 7 was, handed over to the witness by the gang of Bhartu .particularly when there is evidence that it was Dharampal appellant who removed the gun of the Guard who had been killed by the miscreants at the bus stand. Thus the prosecution has established by means of the statement of this witness that the gun Ext. 7 which belonged to the Guard Budh Prakash had been given to the witness by the appellants and that it had been recovered from the custody of the witness. This circumstance also goes against the appellants.
51. The next circumstance is that a sum of Rs. 14,500 was recovered from Deopal, brother-in-law of Vikram appellant. In this connection the prosecution has relied upon the statements of Beni Ram Govil (P. W. 35) who stated that on 9th June 1976 he recovered Ru- ' pees 14,500 Ext. 5, a ring Ext. 15 from Deopal in Railway Workshop Colony, He prepared a recovery memo Ext. Ka-49. Ashok Jain was shown the currency notes in that packet and he stated that two of them had his initials. Deopal is brother-in-law of the appellant Vikram but there is no evidence that Vikram gave this money to Deopal. In the circumstance this recovery has little evidentiary value.
52. Lastly the prosecution has contended that the'' amount recovered from the appellants or at Vikram's instance and from their relations are disproportionate to their means. This circumstance, therefore, was itself against them, Appellant Vikram was found in possession of Rs. 5,000 and odd. Appellant Dharampal was found in possession of Rs. 4,000 and odd. A sum of Rs. 2,61,000 and odd was recovered at the instance of Vikram from house No. 1197 in Sector 15B Chandigarh. Vikram paid Rupees 6,000 to Prem Singh for the purchase of motor-cycle. He paid Rs. 10,000 to Satyawati for ornaments. He deposited Rs. 20,000 with Satyawati. Thus a sum of Rs. 3 lacs can be traced to the credit of the appellants. The appellants have not given any evidence that their circumstances warranted their possession of so much money. Satyawati and Prem Singh stated that in July 1975 when the appellants occupied the house of Satyawati on Rs. 45 per month they could not pay rent for ten days, and the amount had to be paid by Prem Singh. He also said that Vikram had to pledge his ring and watch to meet his expenses. It in- dicates that the appellants were of narrow means. But immediately after the incident in January they basked in affluence so much so that they spent lavishly and became bountiful to their friends and relations.
53. The eye-witnesses and the above-mentioned circumstances, therefore, 'prove beyond reasonable doubt that in furtherance of their common intention the appellant Vikram caused the death of Gauri Shanker peon and Budh Pra-kash Guard and injured AH Jan by gun shots and that Dharampal removed the cash box belonging to the Bank containing Rupees Seven lacs and the gun belonging to Budh Prakash Guard and thereby Vikram committed an offence Under Sections 302, 394, 326, I.P.C. and 27 Indian Arms Act and that Dharampal committed an offence Under Sections 302 read with Section 34, I.P.C 326 read with Section 34, I.P.C. and 394, I.P.C.
54. Lastly we may consider the question of sentence. learned counsel for Dharampal tried to distinguish his case from that of Vikram inasmuch as it was Vikram who by means of gun shots caused the death of Gauri Shanker and Budh Prakash and Dharampal was not directly responsible for their death. We do not find .any distinction between the cases of the two appellants. There is no mitigating circumstance in favour of either of them. The entire incident was an outcome of a well chalked out and preconcerted plan in which each of the two participants was to play 'a definite role. The primary object was to rob the cash of the Bank which was being brought from MuzarTarnagar to Khatauli. In order to achieve this object Vikram used his sten-gun to kill the Guard and the peon so that they could easily take hold f the cash box. Dharampal in pursuance of the same plan removed the cash box and also the gun belonging to Budh Prakash Guard so that while they were escaping no one might pick up and use' it. The part played by each of them was equally important to achieve the object. In a way the more important palrt of the plan was the removal of the cash and this was done by Dharampal. The crime was committed in a most outrageous manner, the Guard and the peon were killed in ruthless and cold blooded manner .and there is hardly any extenuating circumstance to mitigate the offence justifying the lesser penalty of life imprisonment.
55. We may now take up Criminal Appeal No. 398 of 1977 by Avtar Singh. The prosecution has relied upon the statements of Nemchand Bharadwa] (P. W. 21), Ishtiyaq (P. W. 10), Mohammad Shahid (P. W. 11), Shanti Prasad (P. W. 8), Satya Prakash (P. W. 24), Ram Kishan (P. W. 27), Madan Lal(P. W. 26) end Prem Singh (P. W. 33), Nemchand Eharadwaj (P. W. 21) is the owner of the motor-cycle Ext. 1. He purchased it from Shri Krishna Malhotra and its registration No. was DHW 581. A theft of this motor-cycle was committed on 17th March, 1974 when some miscreants forcibly snatched it from the witness. He made the first information report of the incident which is Ext. Ka-28. There is. however, no evidence on record to prove that Vikram, Dharampal or Hitler were responsible for the theft of this motorcycle.
56. Ishtiyaq (P. W. 10) stated that on 11th of December, 1975 Hitler appellant came with a letter from Vikram asking him to come to Khatauli to repair a Jawa motor-cycle. Accordingly he and Hitler came to Khatauli by taxi and both of them went to Dak Bungalow on a rikshaw on the bank of canal where they met Vikram and Dharampal. There. was a Jawa motor-cycle which the witness identified as Ext. 1. He stayed at night in the Baithak of Hitler in Khatauli. He took the motor-cycle to Meerut next morning and repaired it there, and handed it over to Hitler.
57. Mohammad Shahid (P. W. 11) stated that on 13th December 1975 Hitler came to him with a Jawa motor-cycle and got the number USV 2752 inscribed on its mud-guard.
58. Shanti Prasad (P. W. 8) stated that he was employed at the Petrol pump of Gokul Chand Sheel Chand at Khatauli, that Avtar Singh alias Hitler was resident of. village Bhainsi, that he used to purchase petrol and diesel from the petrol pump sometimes in cash and sometimes on credit and that according to the entries in the account books on 13th December 1975 the appellant .purchased five litres of petrol for motor-cycle USV 2752 and that he paid Rs. 3.35 Paise in cash and a sum of Rs. 14 remained outstanding as due to them. He proved the credit memo Ext. Ka-7 bearing the -signatures of the appellant.
59. There is no evidence that the motor cycle USV 2752 by which the appellants Vikram and Dharampal came to the scene of occurrence and by which they escaped after the incident was snatched by them or by Avtar Singh alias Hitler appellant. Hitler alias Avatar Singh purchased petrol for it and got it repaired and its number inscribed. It appears that somehow the motor-cycle belonging to Nemchand Bhardwaj came into possession of this appellant. Appellant Vikram is a cousin of Avatar Singh alias Hitler. If the latter lent the motorcycle to him it would not follow that he knew that the same will be used for the purposes of robbery.
60. The other set of witnesses comprises of Satya Prakash, Ram Kishan and Madan Lai. Satya Prakash (P. W. 24) stated that on 16th December 1975 he was going to court when at 12.00 in the day Hitler met him in front of the State Bank of India, Muzaffarnagar. He had a motor-cycle of black colour Jawa. He gave Hitler Rs. 500 to pay to Chandra-bhan. The prosecution has inferred from the testimony of this witness that inasmuch as the appellant was seen in front of the State Bank of India, Muzaffar-nagar it was he who collected information as to when and by which bus cash was being taken from Muzaffarnagar to Khatauli but such an inference from mere presence of the witness in front of the Bank does not appear, to be warranted. The appellant was neither seen entering the Bank premises nor was he seen collecting any information about the cash.
61. Ram Kishan (P. W. 27) stated that he saw the appellant Hitler alias Avatar Singh coming on a motor-cycle and entering the Company Bagh, Muzaffarnagar on 16th December 1975. He (the witness) had come there to take seeds. He also stated that shortly after the appellant Avatar Singh was seen entering the Company Bagh the appellants Vikram and Dharampal came out on the same motor-cycle and proceeded towards Meerut. The prosecution has contended that this appellant furnished information regarding cash to the appellants Vikram and Dharampal inside the Company Bagh and he also gave them his motor-cycle on which the appellants Vikram and Dharampal proceeded to Khatauli. Even if what the witness had stated is believed there is nothing on record to show that Avatar Singh alias Hitler met appellants Vikram and Dharampal inside Company Bagh. Although in the trial court the witness stated that Vikram and Dharampal came out of the Company Bagh on the same motor-cycle as was seen with Avatar Singh alias Hitler while he was entering the Company Bagh, in his statement to the Investigating Officer, however, he did not say so. He merely said that they were seen coming out on a black motor-cycle. He has also not been able to explain as to how the police had come to know that he had seen Avatar Singh entering the Company Bagh and Vikram and Dharampal coming out of it on the same motorcycle. He did not tell any one what he had seen. He was interrogated by the police 15 or 16 days after. There is no explanation as to how the police came to know that the witness was conversant with the facts narrated by him. The testimony of this witness is, therefore, unworthy of credit.
62. Madan Lai (P. W. 26) stated that on 16th December 1975 at 12.30 in the day Hitler came to his hotel on a motorcycle and he took his tea in his hotel. His testimony has no bearing on the prosecution case. He merely proved that the appellant Avatar Singh alias Hitler was seen at Muzaffarnagar on 16th December 1975 at 12.30 p.m. but that by itself does not prove that the appellant Avatar Singh was involved in any conspiracy.
63. The above analysis of the prosecution evidence goes to show that ther is hardly any evidence to prove that the appellant Avatar Singh alias Hitler was a conspirator with Vikram and Dharampal. .He could lend his motor-cycle to his cousin without any knowledge that the same will be used in the commission of a crime. The prosecution has failed to establish that Avatar Singh alias Hitjer procured the information regarding removal of the cash from the State Bank of India, Muzaffarnagar and furnished the same to Vikram and Dharampal at Company Bagh and that the motor-cycle USV 2752 was also given by him in the Company Bagh to the appellant. On the basis of the evidence on record the appellant Avatar Singh alias Hitler could not be convicted of the offences with which he had been charged.
64. Criminal Appeal No. 431 of 1977 Dharampal v. State of Uttar Pradesh and Criminal Appeal No. 1251 of 1977 Vikram v. State of Uttar Pradesh have, therefore, no force and are dismissed. The conviction of the appellant Vikram for the offences Under Sections 302, 394 and 326, I.P.C. and 27 Indian Arms Act and sentences of death Under Section 302, I.P.C, rigorous imprisonment for ten years Under Section 394, I.P.C, for two years Under Section 326 and four years Under Section 27 of the Indian Arms Act are maintained. The conviction of the appellant Dharampal Under Sections 302 read with Section 34, I.P.C., 394 and 326, I.P.C. read with 34, I.P.C. and sentences of death, ten years rigorous imprisonment and two years rigorous imprisonment respectively are also maintained. We accept the references and confirm the sentence of death awarded to the appellants Vikram .and Dharampal. The appellants are in jail. The sentences shall be carried out according to law.
65. Criminal Appeal No. 398 of 1977 Avatar Singh v. State of Uttar Pradesh is allowed. His conviction for the offences Under Sections 394 read with Section 120B, 302 read with Section 120B and 326 read with Section 120B, I.P.C. and the various sentences thereunder are set aside. He is on bail to which he need not surrender. His bail bonds are cancelled and sureties discharged.