High Court
Legal Reasoning
{1} CRI APPEAL 106 OF 2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 106 OF 20041)Lahu S/o Bhaurao More Age: 27 yrs., Occu.: Labour2)Kailas S/o Kachru MoreAge: 23 yrs., Occu.: Labour.Both R/o. Dhoregaon,Tq.Gangapur,Dist.Aurangabad...Appellants Versus.The State of Maharashtra ..Respondent …..Advocate for Appellants : Mr. A.R.BorulkarAPP for Respondent : Mrs.Ashlesha S.Deshmukh….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 15 OCTOBER, 2024 PRONOUNCED ON : 23 OCTOBER, 2024 JUDGMENT :- 1. In this appeal, there is challenge to judgment and order ofconviction dated 21-04-2003 rendered by IInd Additional SessionsJudge, Jalgaon in Sessions Case No.177 of 2002 holding appellantsguilty for offence under Sections 392 read with 34 of the Indian {2} CRI APPEAL 106 OF 2004Penal Code (IPC). PROSECUTION CASE IN BRIEF 2.It is the case of prosecution that informant Komalsing wasreturning from Chalisgaon on Motorcycle with his wife on09-06-2000 at around 08:30 p.m. to 08:45 p.m.. Three yearsdaughter was also accompanying the couple. When Motorcyclereached vicinity of village Bhortek Phata, informant noticed a personand one Motorcycle lying on the road and one old person sitting nearthe Motorcycle. When Motorcycle of the informant reached 10 feetaway from the said Motorcycle, the person sitting near theMotorcycle, stood up with a stick. Informant halted his motorcycle.Then 4-5 persons hiding around joined the said person. Informantand his wife got down from the Motorcycle. Then on knife point,ornaments on the person of informant’s wife and his own walletcontaining cash were taken away. Occurrence was reported at NagarDeola Police Station, on the strength of which, crime was registeredand investigated by PW13 Joshi, who after gathering evidence,chargesheeted accused and they were made to face trial vide SessionsCase No.177 of 2002 for offence under Section 395 of the IPC. Vide judgment and order dated 21-04-2003, on appreciation of
Legal Reasoning
{3} CRI APPEAL 106 OF 2004evidence, learned trial Judge has convicted appellants (accused nos.2and4) for offence under Section 392 read with 34 of the IPC. Hence,instant appeal. SUBMISSIONSOn behalf of appellants :3. Learned Counsel for the appellants would plead innocenceand alleges false implication. At the threshold, taking this Courtthrough the charge, he pointed out that same was framed underSection 395 of the IPC. According to learned Counsel, for attractingsaid charge, strength of accused should be five, but here there wereonly four persons allegedly robbed informant and his wife andtherefore, according to him, chargesheet itself was misplaced. His second attack is on identification. He pointed out thatalleged incident had taken place in the dark and outside village andonly source of light was headlight of Motorcycle. Therefore,according to him, it is difficult to identify faces of accused at suchplace at such time. He further pointed out that detail physicaldescription was not given while filing the crime. Here T.I. parade hasnot been conducted immediately, rather it is after more than twomonths and therefore, he questions the credibility of identification. {4} CRI APPEAL 106 OF 2004According to him, both Police Station and Tahsil Office, where T.Iparade was conducted, are in the same premises and therefore, thereare bright chances of confrontation of arrested accused to the victimand on such count also he questions their identification. He pointedout that there are allegations of taking away articles but its receiptswere not placed on record. Therefore, it is his submission thatprosecution could not cogently establish that the belongings allegedlyseized were of informant and his wife only. Hence, learned Counselpoints out that entire evidence of prosecution is not free from doubtand so, he questions judgment of conviction and prays to set asidethe same. On behalf of State :4. Per contra, learned APP supported the judgment by pointingout that informant has clearly identified accused persons. That thereis prompt lodgment of complaint. According to him, there is nothingto suggest that accused were confronted to witnesses. That there isno cross-examination on the point of identification and moreover,according to her, articles robbed are seized at the instance of accusedand therefore, according to her, guilt is proved. That there is noexplanation from accused for possession of articles belonging to {5} CRI APPEAL 106 OF 2004informant and his wife. She would strenuously submit thatprosecution has examined witnesses, who were earlier robbed bypresent accused and as such accused are habitual criminals.Therefore, she supports the judgment and prays to dismiss theappeal.SUM AND SUBSTANCE OF PROSECUTION EVIDENCE In support of its case, prosecution has examined as many asthirteen witnesses. 5.PW1 Komalsing Gansing Pawar is informant. He deposed atexh.13 that while he was proceeding with his wife and daughter onMotorcycle, he was robbed of his belongings. Therefore, he lodgedreport. That he was called for identification parade, where heidentified accused Lahu and Kailas. He also identified articlesrecovered from accused. 6.PW2 Dattatraya Dhanaji Kokande is Pancha to spotpanchanama exh.18. 7.PW3 Dadasaheb Julal Patil identified accused and he is secondpancha to spot panchanama. {6} CRI APPEAL 106 OF 20048.PW4 Jaishri w/o. Komalsing Pawar is the wife of informant.She also stated that while she was proceeding with her husband onMotorcycle, 3-4 persons encircled them and on point of knife, theytook away her ornaments. That her husband lodged report. 9.PW5 Ashok Julalgir Gosavi stated that about 1-2 months ago,Tahsildar, Pachora, called him to his office for identification and hehad identified accused Kailas.10.PW6 Tulshiram Shivlal Gaikwad stated that he knewinformant. He had seen wrist watch of informant as he had given thesame to him and the said watch was given to this witness by son ofhis brother-in-law. 11.PW7 Raosaheb Bhagwan Patil deposed that one year agowhen he was going from Kajgaon to Bhortek Phata, two personsrobbed him of his money and he identified accused no.2 Lahu to beone of them. 12.PW8 Ishwar Budha Patil also claims that he was robbed sixmonths ago while he was proceeding from Bhortek Phata after beingassaulted by stick. He also identified accused no.4 to be the person {7} CRI APPEAL 106 OF 2004amongst those persons. 13.PW9 Manoj Ananda Patil also claims to have been victimizedby Lahu six months back and there was attempt to rob him.14.PW10 Gautam Dharma Nikam is the pancha to panchanamaexh.30. 15.PW11 Subhash Ragho Patil is pancha to memorandum ofdisclosure and seizure of wrist watch.16.PW12 Bhimrao Abhiman Shinde is Tahsildar, who hadconducted T.I. parade on 03-08-2002 on request of Police and hedrew panchanama exh.30. 17.PW13 Chandrakant Vishwanath Joshi is the InvestigatingOfficer. ANALYSIS18.Admittedly, charge at exh.7 framed by learned trial Judge is foroffence under Section 395 of the IPC. Crucial evidence is of PW1 Komalsing, informant and his wifePW4 Jaishri, as they together, while undertaking journey on {8} CRI APPEAL 106 OF 2004motorcycle, were allegedly intercepted and robbed. 19.At exh.13 PW1 Komalsing gave evidence that about 200-300feet away after crossing Bhortek Phata, he saw a motorcycle lyingdown and an old person sitting near Motorcycle. That whileinformant was 10 feet away from said motorcycle, said person stoodup with a stick and therefore, motorcycle was halted by informantand at that time, 4-5 persons hiding around came towards him. Thatwife of informant got down. Informant pointed out to accused Kailasfor pointing knife on his chest. That all persons asked them to givewhatever they have. That his wife gave away ornaments like Mani-Mangalsutra, ear rings and from his wallet. That they removedRs.250/- from his pocket and took away wrist watch from his hand.That his wife’s ornaments were 11 gm. gold. That those persons left.According to him, accused no.2 Lahu was also one of the abovepersons. Then he lodged report at Nagar Deola Police Station.According to him, after two and half months, he was called byPachora Police Station for identification parade and he identifiedaccused no.2 Lahu and accused no.4 Kailas. In examination-in-chiefitself he stated that he was called at Police Station 2-3 times foridentification parade. He identified accused nos.2 and 4 in T.I. {9} CRI APPEAL 106 OF 2004parade conducted by Tahsildar. He answered that he saw faces ofaccused Lahu and accused Kailas in the light of Motorcycle, but couldnot see faces of others as they were in dark. He identified wristwatch article A. He further deposed that he found this watch in thehand of father of his one student while said person was causingsignature in the token receipt of rice packet distributed by the Schooland therefore, he asked him where he brought it from and wasallegedly told that it was brought from Aurangabad one year back.He testified about telling that person that it was his watch, whichwas stolen and that person gave back the watch to him and hehanded over it to Police. While under cross-examination informant is unable to statewhether panchanama was drawn after he gave watch at PoliceStation. He stated that he did not have receipt of the watch asaccording to him it was given by his father-in-law. There is omissionas regards to alphabet “K” on the backside of the wrist watch. Headmitted that in the report there are some mistakes. He answeredthat he deposed in examination-in-chief that old person was sittingbecause he was short person. It was written in his statement thatthere were four persons. He admitted that in report he gave ages ofthe accused to be of 20-25 years old. He admitted that lock up of {10} CRI APPEAL 106 OF 2004accused persons was in the same campus. 20.PW4 Jaishri, wife of informant, who is examined at exh.22,also stated that 200-300 ahead of Bhortek Phata, one Motorcycle waslying by the side of the road and one person sitting near it. Thatperson stood with stick, therefore, her husband halted Motorcycle.According to her, 3-4 persons encircled them. Then accused Kailas,who was sitting before the Court, showed knife to her husband andsaid in “Ahirani” language to give away whatever they have. Thepersons removed money from her husband’s pocket alongwith wristwatch and she handed over 4 gm. gold marriage string and 7 gm.gold ear-rings. She identified the wrist watch.While under cross-examination, she admitted that they had noreceipt of the watch. Rest is all denial.21.Another important witness for prosecution is PW6 Tulshiramand according to him, he knew informant, he is Teacher in the schoolof which his son was a student. He deposed that he had been toreceive rice packet distributed by School and at that time, whilemaking signature, complainant asked about wrist watch in his handand he gave him that watch. According to him, this watch was givento him by his brother-in-law’s son namely Nathu Laxman Surase 2-3 {11} CRI APPEAL 106 OF 2004weeks ago. That Nathu Laxman was absconding. 22.PW7 Raosaheb, PW8 Ishwar, PW9 Manoj are examined byprosecution to demonstrate that one year back and six months agorespectively, they three were robbed on the road from Kajgaon toBhortek in three distinct instances. PW7 Raosaheb and PW8 Ishwaridentified accused no.2 Lahu and accused no.4 Kailas respectively. All these witnesses PW7 Raosaheb, PW8 Ishwar, PW9 Manojhave apparently not lodged any report of they being robbed at anyPolice Station, but merely gave statement recorded by PW13 Joshi,Investigating Officer in this case. PW12 Shinde is Tahsildar.PW10 Gautam is pancha to T.I. parade conducted by PW12Shinde (Tahsildar). PW11 Subhash is pancha to seizure of wristwatch. 23.Therefore, on appreciating the above evidence, here it isnoticed that PW1 informant and his wife PW4 are not consistentabout strength of robbers, who allegedly intercepted them. PW1informant deposed about coming across Motorcycle lying and an oldperson sitting there and he subsequently standing up by means ofstick. Admittedly, all accused who are arrested, are in the age groupof 20-25 years and as such there is no old person. PW1 Informant {12} CRI APPEAL 106 OF 2004deposed about 4-5 persons, whereas his own wife PW4, who wasallegedly accompanying him, deposed about 3-4 persons encirclingthem. Evidence of PW1 informant discussed above goes to showthat his testimony is full of material omissions, contradictions andimprovements. He had lodged report at Nagar Deola Police Stationbut according to him T.I. parade was conducted by Pachora PoliceStation. Both husband wife i.e. PW1 and PW4 identified accusedLahu and accused Kailas. Admittedly, as per informant himself, T.I.parade was conducted after two and half months. Informant himselfdeposed about he being called by Police Station twice and thrice. Prosecution own witness PW12 Bhimrao admitted that PoliceStation and Tahsil Office are in the same campus. As stated above,PW1 informant himself speaks of being called for identification twicethrice. In above situation and circumstances, as pointed out bylearned Counsel for appellants, there is possibility of arrested accusedshown to witnesses. Admittedly, T.I. parade was conducted after twoand half months. Another noteworthy feature is that accused Lahu was shown tobe arrested on 31-08-2002 whereas PW12 Tahsildar deposed aboutconducting T.I. parade on 03-08-2002. How can there beidentification post arrest. {13} CRI APPEAL 106 OF 200424.PW13 Joshi (PSI), Investigating Officer, who is examined atexh.35 deposed about entertaining complaint, conductinginvestigation. In paragraph 6 of his examination-in-chief he statedthat he sought permission of Superintendent of Police and tookTulshiram Gaikwad in search of Nathu Laxman Surase, who allegedlyhanded him the watch. Investigating Officer’s evidence shows thatthey went to Gangapur, Dhoregaon, in search of Nathu Laxman, buthe could not be found. However, Investigating Officer claims thatPolice Patil of Dhoregaon revealed the names of persons, who werecompanions of Nathu Laxman and based on such names, he arrestedthree accused i.e. Kailas, Sheshrao and Latif that too on 19-07-2002.Apparently, such version of Investigating Officer shows that accusedare arrested on information given by Police Patil of villageDhoregaon. Merely receiving information about companions ofNathu, present appellants appeared to be taken in custody byInvestigating Officer. So called Police Patil is no examined. Arrest isshown to be made on 19-07-2002, but admittedly T.I. parade isconducted on 03-08-2002. Investigating Officer has categoricallydeposed that on 31-01-2002 accused Lahu was arrested by seekingtransfer warrant from other case. Again he got T.I. parade conductedon 13-09-2002. Very Tahsildar PW12 has admitted in para 11 of the {14} CRI APPEAL 106 OF 2004cross-examination that his Office and Police Station are located in thesame premises. Therefore, again there are brighter chances ofconfrontation of arrested accused to the witnesses. Coupled with thefacts of delayed arrest, delayed T.I. parade, the identification has lostits significance. Even otherwise, PW1 Komalsing, informant and hiswife PW4 Jaishri could identify only two accused. Therefore, withsuch quality of evidence, prosecution version is shrouded withserious suspicion. 25.Here there was charge for Section 395 of the IPC, but fouraccused persons were made to face trial even when requirement wasof five or more persons. Guilt is recorded for Section 392 of the IPC,which provides punishment for robbery. Out of alleged 4-5 persons,who stripped PW4 Jaishri of her ornaments and who took out cashfrom wallet of accused is not clarified by PW1 Komalsing and PW4Jaishri, who are said to be victims. Apparently, except wrist watch,ornaments or cash is not recovered. Accused Nathu is said to beabsconding. Prosecution version is that, Nathu handed over wristwatch to PW6 Tulshiram and according to this witness, watch wasgiven to him by son of his brother-in-law. If it was so, then it wasinfact easy for investigating machinery to lay hands of Nathu. So {15} CRI APPEAL 106 OF 2004called brother-in law of PW6 Tulshiram is also not examined.Though only on the basis of wrist watch, other accused are shown tobe arrested, father-in-law of PW1 Komalsing, who allegedly gave himwatch, is also not examined. Therefore, there is no corroboration toPW1 informant’s version regarding the watch belonging to only andonly him. Said recovery is caused on 17-07-2002 by way ofpanchanama exh.33 in presence of PW11 Subhash, but his signatureis not obtained on seized packet. PW1 informant claims that heidentified the watch in the hand of Tulshiram because alphabet “K”was embossed on the watch, but he himself has admitted that there isomission to this extent. Consequently, mere recovery of watch that too at the instanceof PW6 Tulshiram at the belated stage and without there being anyreceipt or in absence of evidence of father-in-law of PW1 informant,it cannot be said that the recovery is of the same wrist watch, moreparticularly, when PW1 informant has categorically admitted thatthere are several such watches available in the market. Even circumstance of seizure of wrist watch is doubtfulbecause on one hand PW1 informant, in his evidence in paragraphno.6, deposed about he himself handing over wrist watch to Police,but PW17 Investigating Officer, in his evidence in paragraph no.3, {16} CRI APPEAL 106 OF 2004deposed that he has seized wrist watch from PW6 Tulshiram videpanchanama exh.33. Therefore, prosecution witnesses are notconsistent as regards to seizure of wrist watch is concerned. 26.For all above reasons, prosecution version is surrounded byseveral suspicious circumstances. If Nathu Laxman was son ofbrother-in-law of PW6 Tulshiram, then atleast his photograph oughtto have been confronted to PW1 informant and his wife PW4 to get itconfirmed that he was amongst the accused persons, who took awaythe watch. Though PW1 informant identified accused Kailas andLahu, it is merely deposed that Kailas kept knife on his chest. Knife isadmittedly not seized. Accused Lahu though is identified by PW1informant, what role he played and for what he was identified as hashappened against Kailas, is also not clarified. Out of four accused,who were chargesheeted, only accused nos.2 and 4 i.e. Lahu andKailas are convicted, remaining two are acquitted by the learned trialJudge without assigning sound reasons as to why only two deservesconviction and two deserves acquittal. Same evidence has beenapplied to hold only two persons guilty. Resultantly, learned trial Judge has failed to appreciate theevidence as required. Therefore, it being case of benefit of doubt {17} CRI APPEAL 106 OF 2004coupled with serious doubts about identification, conviction cannotbe allowed to be sustained. Accordingly, I proceed to pass followingorder : ORDERI)Criminal Appeal No.106 of 2004 is allowed. II)The conviction awarded to appellant nos.(1) LahuBhaurao More and (2) Kailas Kachru More in Sessions CaseNo.177 of 2002 by IInd Additional Sessions Judge, Jalgaon on21-04-2003 for the offence punishable under Section 392 readwith 34 of the Indian Penal Code, stands quashed and set aside.III)The appellants stand acquitted of the offence punishableunder Section 392 read with 34 of the Indian Penal Code.IV)The bail bonds of appellants stand cancelled. V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE SPT