((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1258 OF 2006 Santosh Kashinath Pujari Appellant versus State of Maharashtra Respondent Jayesh B. Kocheta and Pankaj D. Purway for appellant. J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 25th February 2009 JUDGEMENT : 1. The submissions of the counsel for the parties were heard on the last day. This is an appeal against an order of conviction of the appellant for the offence punishable under section 397 read with section 34 of the Indian Penal Code as well as an offence under section 427 read with section 34 of the Indian Penal Code. For the offences under section 397 read with 34 of IPC, the appellant has been sentenced to undergo simple imprisonment for eight years. For the offences punishable under sections 427 read with 34 of IPC, he has been sentenced to suffer simple imprisonment for one ((-2-)) year. 2. The case of the prosecution in brief is that one Nandu Balasaheb Kadam was selling sandwiches and other eatables on a hand-cart which is normally parked at Apolo Square, Pune. Vishal Kamble and Rahul Baldeva were helping the said Nandu Kadam in the business. On 7th April 2003 at about 4.00 p.m. the said Nandu Kadam was carrying on his business on his handcart when said Vishal and Rahul Baldava were with him. At about 10.00 p.m. Nandu Kadam was busy in preparing sandwiches and Vishal was standing to his left side and the said Rahul Baldava was standing on his right side. At that time the appellant-accused Santosh Pujari and one Rahul Bhatiya came near the handcart. The said Rahul Bhatiya was holding a sword and the appellant was carrying a sickle in his hand. The said Rahul Bhatia demanded a sum of Rs.100/- to the said Nandu Kadam for consuming liquor. When Nandu Kadam declined to pay, the said Rahul Bhatiya started abusing him and threatened to stab him. He snatched the cash from the cash box and put it in his pocket. Nandu and Rahul Baldava tried to resist. At that time Rahul Bhatiya raised ((-3-)) the sword for inflicting a blow on Nandu, however, he could avoid the blow. As a result, the sword hit a glass on the handcart. The appellant started assaulting Rahul Baldava with sickle in his hand. Rahul Bhatiya made second attempts to a hit Nandu by a sword in his hand. However, said Nandu again escaped and the blow injured right side ribs of Santosh Pujari. Third attempt was made by Bhatiya. At that time Rahul Baldava sustained an injury on his palm. By the time Police arrived at the scene. Rahul Bhatiya and the appellant started running in the direction of Madrasi Ganpati. Ultimately, they were caught in a house in the locality by the Police. During the investigation, the Police recorded statements of Vishal Kamble, Badama Chavan and Rahul Baldava under section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The accused Rahul Bhatiya was found to be a juvenile and as per order dated 18th January 2003, his trial was separated and a separate charge sheet was filed against him. 3. The learned counsel for the appellant has taken me through the notes of evidence of the ((-4-)) witnesses. His submission is that all material witnesses including said Nandu Kadam have turned hostile. He submitted that even the identity of the appellant was not proved by the prosecution witnesses. His submission is that on the basis of statements of the witnesses recorded under section 164 of the said Code, the appellant could not have been convicted. His submission is that there was absolutely no evidence on record to establish the guilt of the appellant-accused. He submitted that this was a fit case for acquittal. The learned APP submitted that the entire evidence of the hostile prosecution witnesses cannot be altogether discarded. He submitted that the evidence of the hostile prosecution witnesses sufficiently corroborate the statements of the witnesses recorded under section 164 of the said Code. He submitted that even the reports of the chemical analyser support and corroborate the prosecution case and, therefore, no interference is called for. 4. I have carefully considered the statements. I have perused the notes of evidence and other material documents on record. ((-5-)) 5. A perusal of deposition of witness no.1 Nandu Kadam shows that initially he completely supported the prosecution by narrating the actions of the appellant and the said Rahul Bhatiya. The material part of his examination in chief reads thus :- "1. ... ... Two boys namely Rahul Bhatiya and Santosh Pujari came to my handcart at 9-30 pm at night to eat sandwich They started demanding money from me as they wanted to consume liquor. I refused to pay them money. Then they started quarrelling with me. They assaulted to my labours Rahul and Santosh. One of them was holding sickle. They assaulted us by means of sword and sickle. They also took out cash from the cash box. Firstly Santosh Pujari raised sword for assaulting me, but I missed that blow and the blow of sword hit on my handcart. Rahul Bhatiya gave second blow by said blow could not injure me and it hit to his friend. Name of his friend is Rahul Baldeo. Rahul Bhatiya again raise second blow, but it hit on ribs of Santosh Pujari. Meanwhile police arrived on the spot. On seeing that police have arrived, they both ran away with their weapons by Mangal Murti road. Police apprehended them. ... ..." In the further part of his examination-in-chief he proved the complaint filed by him and stated that he was in a position to identify the persons who assaulted him. He, however, stated that the accused (appellant before the Court) was not the person who assaulted him. He was unable to identify the weapons which were ((-6-)) allegedly used by the accused in the assault. The Court allowed the learned Public Prosecutor to put questions to the said witness in the nature of cross examination. In examination-in-chief PW-1 Nandu stated that even the appellant Santosh was holding a sword. In the cross examination he stated that Rahul Bhatiya was holding a sword and the appellant was holding a sickle. He stated that he personally knew both, Rahul Bhatiya and Santosh Pujari by their names as they had created a terror in the locality. In response to a specific question he stated that the person present in the Court as accused was neither Rahul Bhatiya nor Santosh Pujari. 6. PW-2 Vishal Kamble stated that he was serving with PW-1 Nandu Kadam who is doing the business of selling sandwiches. In the examination-in-chief he stated that on 7th April 2003 he was working on the handcart. He stated that PW-1 Nandu had not come to the place and Rahul Baldava had gone outside to purchase something. He denied the incident. He was, however, cross examined by the Public Prosecutor. He admitted that he had given a statement before the Magistrate but he was ((-7-)) unable to remember the contents of the statement. After the said statement was read over to him he denied the correctness of the suggestion that the statement was correctly recorded by the Magistrate. He stated that in his statement his age, place of parking of the handcart, owner of the handcart and time of the business has been correctly recorded. In the cross examination by the advocate for the appellant he stated that the contents of statement recorded on 29th April 2003 were not read over to him. He denied any knowledge about the incidence. 7. PW-3 Ramesh Khude is a Panch witness to the seizure of sickle and sword. However, he did not identify the sword and sickle produced before the Court. The said witness was also declared as hostile and was allowed to be cross examined by the prosecution. He denied all the suggestions made to him in the cross examination by the public prosecutor. 8. PW-4 Rahul Baldava stated that at the time of incident he was serving in Fair Deal Company. He stated that on 7.4.2003 at 9.00 a.m. he had gone to handcart of Nandu. At ((-8-)) that time Nandu and one of his servants were present. The relevant part of his examination in chief reads thus:- "... ... When I had reached handcart of Nandu Kadam, the quarrel had over. Glasses of handcart were broken. Two three persons were present there, when they were to assault Nandu Kadam, I sustained injury to my left hand. Out of three persons one of the person was holding iron weapon. That time I was standing near handcart of Nandu. Those persons were assaulting Nandu with weapon. Said blow hit on my hand. My friend Vinod Nimbalkar was with me, he took me to Sassoon Hospital. ... ..." The said witness was also declared as hostile. In the cross examination he admitted that his statement under section 164 of the said Code was recorded before the Magistrate. However, his version is that he was unable to remember as to what he stated before the learned Magistrate. 9. PW-5 Badama Chhotu Chavan is the material witness. In the examination-in-chief he has stated thus :- "1. ... ... I go to vegetable market from quarters from the road known as Apolo Chowk. Nandu Kadam is having handcart of selling sandwich in Apolo Square. On 7.4.2003 at about 9 PM I had gone to bring vegetable. When I was returning from vegetable market, I saw crowd near handcart of Nandu Kadam. ((-9-)) Scuffle was going there. Bharti was assaulting with sword to Nandu Kadam. Nandu avoided said blow. Said blow was hit on handcart thereby glasses of handcart were broken. Santosh Punjari came there with sickle. During scuffle one boy sustained injury on his chest and one boy sustained injury on his left hand. Police arrived on the spot. On seeing them, Bhati and Santoshy Madrasi ran towards Ganpati. I have stated police that I want to give statement on oath. ... ..." He admitted that his statement was recorded before the learned Magistrate on 25th April 2003. However, he was unable to identify the weapons used by the accused. He did not identify the appellant and stated that he was not able to tell whether the person sitting in the box was Pujari or not. 10. It will be necessary to refer to the evidence of PW-6 Iliyas Shahabuddin Shaikh who was working as a Police Constable. He stated that he was on night patrolling duty on the relevant day within the limits of Samarth Police Station. He stated that at about 9.00 p.m. he alongwith other Constables started patrolling duty. He has further stated in his deposition viz. :- "1. ... ... At about 22 hours we were coming near Apolo talkies. That time the accused Rahul Bhati who was on record of ((-10-)) Samartha police station and his friend Santosh Pujari were seen present on snacks handcart near Apolo talkies. that time Rahul was holding sword in hand and he was inflicting blows on handcart. Santosh Pujari was holding sickle in hand and he was inflicting blows on handcart. The handcart was owned by one Kadam. On seeing us those two persons started running. Myself, PC Gosavi, PC and Kamble chased them. They both running towards of Madrasi Ganpati. While they were running they were holding weapons as stated above with them. They both went to the house no. 143, 144 and went to terrace of said building by climbing stair case. That time we all police were behind them. Police constable Kamble and PC Kedari caught hold Bhati and I took out sword from hand of Bhati. PC Gosavi and PC Kamble caught hold Santosh Pujari and I took out sickle from the hands of Santosh. I apprehended both of them and brought them alongwith weapons, to police station. ... ..." He identified the appellant in the Court. He also identified the weapones used by the appellant and the juvenile accused. A perusal of the cross examination shows that there is hardly challenge to his version in the examination-in-chief. He has denied the suggestion that he was on patrolling duty at the relevant time. PW-7 Rajesh Gosavi stated that under the orders of Police Head Constable Shaikh he alongwith other Police Constables started patrolling at 9.30 p.m.. In the deposition he has stated thus :- "1. ... ... At about 22 hours we all ((-11-)) reached in Appolo talkies square. We saw that two persons inflicting blows on sandwich cart one of them was having sickle in his hand and other was having sword in his hand. To apprehend them we all rushed towards the sandwich cart. On seeing them they started running towards Madrasi Ganpati alongwith weapons. We started chasing them. We saw them entering them inside the house no.143, 144, Rasta Peth. By climbing staircase of said building we went up to terrace and saw that they both had concealed themselves. I caught hold Santosh Pujari and Rahul Bhati was caught by PC Kedari and PC Kamble. That time Santosh Pujari was having sickle in hand and Rahul Bhati was having sword in his hand. On inquiry with the person holding sickle in his hand, we came to know that his name is Santosh Pujari. PHC Shaikh took in possession of sickle in hand of Santosh Pujari, and sword in hand of Rahul. The person who was caught by me whose name is Santosh Pujari, had sustained injury near right ribs. ... ..." He was cross examined by the advocate for the accused. The witness denied the correctness of the suggestion given in the cross examination. He, however, admitted that he was unable to tell who was the owner of house nos.143 and 144 where the appellant was caught. 11. PW-8 Vinod Nimbalkar was declared as hostile. All that he stated was Rahul Baldava was his friend and at about 10.00 p.m. he saw that blood was coming out from his hand and he was holding his hand. He took Rahul Baldava to hospital. He did not enquire as to how he ((-12-)) suffered the said enquiries. The said witness was declared hostile. PW-9 Ajgar Kasam Meman is a Panch witness to the arrest panchanama of the appellant. PW-10 is also a panch witness to the seizure panchanama of sword, sickle and other articles. PW-11 Shrirang Langhe was at the relevant time serving as API with Samarth Police Station. He described as to how Head Constable Shaikh brought the appellant to the Police Station. 12. PW-12 Dr.Bhagwan Andhare is the medical officer who examined Rahul Baldeva. He described two injuries on his person. 13. PW-1 Nandu has described the incident and the role played by Rahul Bhatiya and the appellant, however, he could not identify the appellant in the Trial Court and stated that the accused person present before the Trial Court was not the person who assaulted him. In the cross examination he reiterated that the accused present in the Court is neither Bhatiya nor Santosh Pujari. PW-2 has turned hostile and did not support the prosecution. The same is the case with PW-3 Ramesh. PW-4 Rahul Baldava, the injured witness in his deposition ((-13-)) has disclosed the incident of assault. However, he has not named the accused. He was declared as hostile. PW-5 supported the prosecution by narrating the activities on the part of the appellant and the other juvenile accused. However, he did not identify the appellant as Santosh Pujari. PW-8 Vinod has not supported the prosecution as regards the assault by the appellant by using a sickle. Thus, the material witnesses have not supported the prosecution. Insofar as the allegation of commission of robbery by the appellant is concerned, the witnesses have not supported the prosecution in establishing the case of the prosecution that the appellant used a deadly weapon like sickle and caused a grievous hurt to the prosecution witness Rahul Baldava. 14. Reliance was placed by the advocate for the appellant on the decisions of Apex Court in the case of State of Delhi Vs. Shri Ram Lohia (AIR-1960-SC-490) and Ram Kishan Singh Vs. Harmit Kaur and another ([1972]3-SCC-280). The law laid down by the Apex Court is that the statements recorded under section 164 of the Code are not substantive evidence and cannot be made use of except to corroborate or contradict ((-14-)) the witness. The Apex Court held that an admission by a witness that a statement of his was recorded under section 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case. As stated earlier, the material witnesses have not identified the appellant- accused sitting in the Trial Court as the accused Santosh Pujari. In the circumstances, insofar as offence under section 397 is concerned, the appellant could not have been convicted on the basis and testimony of the said witnesses and/or on the basis of their statements recorded under section 164 of the said Code. 15. PW-6 Iliyas Shaikh and PW-7 Rajesh Gosawi have been very consistent about their version that the appellant and the accused Rahul Bhatiya were present at about 22 hours on 7th April 2003 by the side of the sandwich handcart near the Apollo Square. Both of them have stated that Rahul Bhatiya by a sword in his hand and Santosh Pujari by a sickle in his hand were inflicting blows on the handcart which was owned by Nandu Kadam. Both the witnesses ((-15-)) identified the appellant who was present in the Court. A perusal of the cross examination of the said two witnesses shows that apart from few suggestions given to the said witnesses, the aforesaid version of the said witnesses is not at all shaken in the cross examination. 16. The spot panchanama at Exhibit-17 has been admitted by the appellant which shows that the glass of the handcart were broken into pieces and the cash box was lying in open condition. The said two witnesses have proved that due to blows given by the appellant and other accused, the glasses of the handcart were broken into pieces. Therefore, the learned Trial Judge has rightly convicted the accused for the offence punishable under sections 427 read with 34 of Indian Penal Code. The substantive sentence for the offence under section 427 read with section 34 of Indian Penal Code is simple imprisonment for one year. The said sentence has already been undergone by the appellant. 17. There is another aspect of the matter. PW-2 and PW-4 admitted before the Court that their statements u/s 164 of the said Code were recorded by the learned Magistrate. In my ((-16-)) view, in a case like this, the learned Sessions Judge ought to have taken recourse to the provisions of section 340 of the said Code by holding an enquiry and by proceeding further in accordance with law. It is not open to make a mockery of the statements recorded by the learned Magistrate under section 164 of the said Code of 1973. This Court as an Appellate Court could have always issued directions for holding an enquiry under section 340 of the said Code. However, the statements of the concerned witnesses have been recorded way back in the year 2003. Now, it is too late in the day to direct holding of an enquiry and consequential lodging of the complaint by the concerned Court. Therefore, considering the peculiar facts I do not propose to issue any directions in that behalf. 18. Hence, I pass following order :- (a) The conviction and sentence of the appellant for the offence punishable under section 397 read with section 34 of Indian Penal Code is quashed and set aside; (b) The conviction and sentence of the ((-17-)) appellant for the offence punishable under section 427 read with section 34 of Indian Penal Code is confirmed; (c) As the appellant has already undergone the substantive sentence for the aforesaid offence, he shall be forthwith set at liberty, if not required in any other case; (d) Rest of the impugned order is confirmed; (e) The appeal is partly allowed in above terms. (A.S.OKA, J.) ((-18-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1258 OF 2006 Santosh Kashinath Pujari Appellant versus State of Maharashtra Respondent Jayesh B. Kocheta and Pankaj D. Purway for appellant. J.P.Yagnik, APP for State. CORAM : A.S.OKA, J. DATE : 25th February 2009 JUDGEMENT : 1. For the reasons recorded separately, following order is passed :- (a) The conviction and sentence of the appellant for the offence punishable under section 397 read with section 34 of Indian Penal Code is quashed and set aside; (b) The conviction and sentence of the appellant for the offence punishable under section 427 read with section 34 of Indian Penal Code is confirmed; ((-19-)) (c) As the appellant has already undergone the substantive sentence for the aforesaid offence, he shall be forthwith set at liberty, if not required in any other case; (d) Rest of the impugned order is confirmed; (e) The appeal is partly allowed in above terms. Sd/- (A.S.OKA, J.)