sat 1 crim.appeals 1295, 1222, 1244 & 1231 of 2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1295 OF 2007 Sharad Mahadev Kamble ) Aged about 36 years, ) Residing at New BDD Chawl, ) No.15/46, Mahatma Phule Road, ) Naigaon, Mumbai. ) (presently lodged at Nashik Road ) Central Prison) ) ...Appellant (Orig.Accused No.1) vs. State of Maharashtra ) (At the instance of J.J. Marg ) Police Station in its CR No.232/2002 ) ...Respondent WITH CRIMINAL APPEAL NO. 1222 OF 2007 Mr.Kishor Pundalik Waghmare ) aged 35, years, residing at ) Hutment Room No.B-104, 3/8, ) Indira Nagar Hutment Dwellers ) Co-operative Housing Society, ) Flank Road, Jayshankar Yagnik ) Marg, Sion-Koliwada, Mumbai-37 ). (Original Accused No.2) ) (At present lodged at Nashik ) Road Central Prison) ) ...Appellant (Accused) vs. State of Maharashtra ) (at the instance of J.J. Marg ) sat 2 crim.appeals 1295, 1222, 1244 & 1231 of 2007 Police Station, Mumbai) ) ...Respondent WITH CRIMINAL APPEAL NO. 1244 OF 2007 Kutubuddin Hasan Haju ) Age 60 years, residing at ) Qureshi Nagar, Near Kanchwala ) Masjid, Room No.5, Sirajuddin ) Chatriwala Chawl, Kurla, ) Mumbai-400 011. ) (now confined at Kolhapur ) Central Prison, Kolhapur) ) ...Appellant (Orig.Accused No.5.) vs. State of Maharashtra (At the instance of J.J. Marg Police Station vide C.R.No.232 of 2004) ...Respondent WITH CRIMINAL APPEAL NO. 1231 OF 2007 Smt.Shobha Vasant Gole ) Age:- 45 Years, Occ:-Service, ) Of Mumbai, Indian Inhabitant, ) Residing at Naigaon Police Quarters, ) Naigaon, Dadar (East), ) Mumbai- 400 014 ) (Accused in judicial custody ) at Byculla. ) ...Appellant (Orig.Accused No.6) vs. State of Maharashtra ) sat 3 crim.appeals 1295, 1222, 1244 & 1231 of 2007 The Senior Inspector Police, ) J.J. Marg Police Station, ) J.J. Marg, Mumbai. ) ...Respondent Mr.Arfan Sait and Mr.Aniket Vagal for all the Appellants. Ms.A.T. Jhaveri, APP for the State. CORAM : M.L. TAHALIYANI, J. DECEMBER 2, 2011 JUDGMENT. :- 1 These four appeals are being disposed of by a common judgment and order as they arise out of the same judgment delivered by the Additional Sessions Judge, Greater Mumbai, Shri S.N. Sardesai, on 29th October, 2007. 2 The appellant in Criminal Appeal No.1295/2007 Sharad Mahadev Kamble (original accused no.1) has been convicted of the offences punishable u/ss.392, 365 and 420 of IPC. The appellant in Criminal Appeal No.1222/2007 Mr.Kishor sat 4 crim.appeals 1295, 1222, 1244 & 1231 of 2007 Pundalik Waghmare (original accused no.2) has been convicted of the offence punishable u/ss.392, 365 and 420 of IPC. The appellant in Criminal Appeal No.1244/2007 Kutubuddin Hasan Haju (Original accused no.5) has been convicted of the offence punishable u/s.392 of IPC only. The appellant in Appeal No. 1231/2007 Smt.Shobha Vasant Gole (Original accused no.6) has been convicted of the offence punishable u/ss.392 and 420 of IPC. 3 The case of the prosecution in brief before the trial court was that PW 4 Baleshwar Sitaram Sing (complainant) was an employee of Tulsising Rajput. One Sharad Saroj Sing was his co-employee. The incident in question, had occurred on 29.9.2004. Mr.Gopalsing, younger brother of Tulsising, had given a bearer cheque of ICICI Bank to the PW 4 for withdrawing the said amount from Pratap Co-operative Bank, Kandivali Branch and for depositing the same in Bhuleshwar Branch of the same Bank. Accordingly, the amount was of Rs. 7,22,000/- withdrawn from the Kandivali Branch. The PW 4 and sat 5 crim.appeals 1295, 1222, 1244 & 1231 of 2007 his co-employee Sharad Saroj Sing started their journey from Kandivali in an Indica car to reach Byculla to deposit the said amount in Bhuleshwar Bank. However, they were intercepted near the traffic signal situated at Richardsons and Crudas Company near JJ Hospital. It is the case of prosecution that since parking space was not available at Bhuleshwar, the Indica car was parked somewhere near Byculla and PW 4 and his colleague hired the taxi to go to Bhuleshwar. Their taxi was however, intercepted by accused no.1 and 2. The accused Nos.1 and 2 forcibly boarded the taxi in which PW 4 and his colleague were travelling. They posed themselves to be CBI Officers. After sometime, they inquired about the contents of the bag. The PW 1 disclosed that the bag contained a cash of Rs.7,22,000/-. After sometime, the taxi was stopped near the Byculla Bridge. Another taxi reached the spot and a woman (original accused no. 6) got down from the second taxi. Accused Nos.1 and 2 introduced the accused no.6 to be their boss to the PW 4 and his colleague. Accused no.6 directed that the amount be seized as it was ill-gotten money. On the pretext of seizing the amount, she sat 6 crim.appeals 1295, 1222, 1244 & 1231 of 2007 took away the bag containing the cash amount. The accused nos. 1 and 2 took the PW 4 and his colleague to Clare Road. The colleague of PW 4, Sharad Sing was directed to sit in the taxi. PW 4 was taken to parking area where his car was parked and from there they proceeded to Wadala in another taxi. PW 4 was pushed out of the taxi near I-Max Theatre, Wadala and accused nos.1 and 2 fled from the spot in the same taxi. As such, colleague of PW 4 Mr.Sharad Sing was left at some place in Byculla area only and PW 4 was pushed out of the taxi at Wadala. PW 4 gave intimation to his employer and thereafter, matter was reported to police. After registration of offence at J.J. Marg Police Station, investigation was taken up by the same police station. 4 During the course of investigation, accused nos.1 and 2 were arrested on 12.10.2004 and accused nos.3, 4 and 5 were arrested on 24.11.2004. Accused no.6 was arrested on 3.12.2004. It is the case of prosecution that an amount of Rs. 95,000/- was recovered from one Mohite on 17.10.2004 on the sat 7 crim.appeals 1295, 1222, 1244 & 1231 of 2007 statement made by accused no.1 Sharad Kamble when he was in police custody. An amount of Rs.20,000/- was recovered at the instance of accused no.3 Kalim Mulla Sadik Kadiria on 27.11.2004. A cash amount of Rs.15,000/- was recovered on 28.11.2004 on the statement made by accused no.5 Kutubuddin Haju. This amount was seized from Mrs.Habiba, wife of accused no.5. An amount of Rs.30,000/-, it is the case of prosecution, was produced by PW 2 Rajesh Jumledar before the Investigating Officer and the same was seized. It is the case of prosecution that Rajesh Jumledar had assisted the accused without knowing that the accused were to commit the offence. PW 2 was given remuneration of Rs.30,000/- by the accused. He had produced the said amount voluntarily before the police and therefore, it was seized. As such, the police had seized and recovered Rs. 1,60,000/- during the course of investigation. 5 Identification parade was held. It is the case of prosecution that accused nos.1, 2 and 6 were identified in the identification parade. As such, on the basis of identification of sat 8 crim.appeals 1295, 1222, 1244 & 1231 of 2007 accused nos.1, 2 and 6 and recovery of property at the instance of accused nos.1, 3 and 5, all the accused were chargesheeted for the offences punishable u/ss. 395, 420, 174 and 365 r/w. 34 of IPC. They were also chargesheeted for the offence of conspiracy. It was the case of prosecution that all the accused had conspired to commit the abovestated offence and in pursuance of the conspiracy, they had posed themselves to be CBI Officers, cheated the PW 4, committed dacoity and also abducted the PW 4 and his colleague with intention to secretly confined them. The charge for the abovestated offences was framed. The appellants and other accused had pleaded not guilty and had claimed to be tried. 6 During the course of trial, ten witnesses were examined by the prosecution. 1. PW 1 is the Police Officer, who had recorded complaint of PW 4. 2. PW 2 is the person, who had allegedly assisted the accused and who had got Rs.30,000/- as remuneration, is sat 9 crim.appeals 1295, 1222, 1244 & 1231 of 2007 a witness. This witness has not supported the prosecution case. 3. PW 3 is the panch witness in whose presence an amount of Rs.95,000/- was recovered at the instance of accused no.1. 4. PW 4 is the complainant. 5. PW 5 and 6 are another panch witnesses. 6. PW 7 is the Special Executive Officer, who had conducted the identification parade during the course of investigation. 7. PW 8 and 9 are panch witnesses, and 8. PW 10 is the Investigating Officer. 7 The learned trial court has stated in its judgment that accused nos.1, 2 and 6 had been identified in the identification parade. Some of the property was recovered at the instance of accused no.1. Some of the property was also recovered at the instance of accused no.5. As such, the learned trial Court has convicted accused no.5 only on the basis of evidence in respect of recovery of amount of Rs.15,000/-, allegedly on the basis of his own statement, from the possession sat 10 crim.appeals 1295, 1222, 1244 & 1231 of 2007 of his wife Habiba. 8 At the outset it may be stated here that some of the statements made by the learned Judge in his judgment are absolutely incorrect. The judgment is absolutely superficial and does not indicate that the learned Judge has seriously applied his mind to the evidence. The learned Judge has stated in his judgment that the whole amount of Rs.7,22,000/- had been recovered and that it was one of the strong circumstances against the appellants. This statement on the part of learned trial Judge is absolutely wrong. The chargesheet itself shows that the recovered amount was Rs.1,60,000/-. Another wrong statement made by the learned Judge in the judgment is that the accused nos.1, 2 and 6 were identified by the PW 4. I have carefully examined the evidence of PW 4. PW 4 had identified accused no.1 only in the identification parade. One more serious infirmity found by me in the judgment is that the learned trial court has been absolutely casual in passing order in respect of disposal of property. The cash amount, according to evidence of sat 11 crim.appeals 1295, 1222, 1244 & 1231 of 2007 PW 4, belonged to Tulsising. From the final order, it appears that the cash amount recovered by the police had been returned to one Sharad Dattatray Patil on execution of his bond. The learned Judge has referred Sharad Dattatray Patil as the complainant. In fact, the complainant is PW 4 and his employer is Tulsising. There is no reference to Sharad Dattatray Patil anywhere in the judgment. It is, therefore, not clear as to how the property was released to said Sharad Dattatray Patil. 9 It is noted that while recording the evidence of PW 1, the learned Judge has allowed the PW 1 to reproduce the whole FIR of PW no.4. In fact, the evidence so recorded was hearsay and it was sheer waste of time on the part of learned Judge. It shows that the learned Judge was lacking even elementary knowledge of law of evidence. 10 Coming to the merits of the case, it may be stated here that the only eye witness examined by the prosecution is PW 4. His colleague Sharad Saroj Sing had not been examined. sat 12 crim.appeals 1295, 1222, 1244 & 1231 of 2007 There is no explanation as to why he had not been examined as prosecution witness. From the evidence of PW 4, it is absolutely clear that the Sharad Saroj Sing was left in the taxi near Byculla and PW 4 was taken in another tax to Wadala. The evidence of Sharad Saroj Sing was very vital, particularly when the case of the prosecution was based on the evidence of PW 4 and Sharad Saroj Sing. Sharad Saroj Sing had taken part in the identification parade also. In the circumstances, it was incumbent on the part of prosecution to examine him. In such a case, the court should have drawn adverse inference for non-examination the said witness. 11 Apart from this, careful examination of evidence of PW 1 shows that his evidence is full of embellishment and cannot be accepted to come to the conclusion that the accused nos.1, 2 and 6 (appellants in Appeal Nos.1295/2007, 1222/2007 and 1231/2007) were identified by him in the identification parade. Since the appellants were strangers to the PW 4, the evidence in respect of their identification during the course of sat 13 crim.appeals 1295, 1222, 1244 & 1231 of 2007 investigation was very vital piece of evidence. Though the evidence given by the witness regarding identification of accused in the court is a substantive piece of evidence, the importance of evidence in respect of identification parade cannot be ignored in a case like the present case. In my considered opinion, the learned trial court has committed error in placing implicit trust on the evidence of PW 4. 12 Secondly, it is not explained as to why PW 2 Jumledar was not made accused in the present case. He has not supported the prosecution case. He obviously was an accomplice and should have been arraigned along with the appellants and other accused. If that was not done by the police, the prosecution owed satisfactory explanation to the trial court. There is no explanation in this regard at all of any nature. The accused nos.3 and 4 have not preferred the appeals. As far as accused no.5- appellant in Appeal No.1244/2007 is concerned, his conviction is mainly based on the recovery of Rs.15,000/-. I think this is very fragile piece of evidence. The learned trial court could not sat 14 crim.appeals 1295, 1222, 1244 & 1231 of 2007 have convicted the accused no.5 on the basis of such piece of evidence, particularly when the cash amount was seized from his wife. There is no evidence that it was part of the amount allegedly robbed from the PW 4 and his colleagues. The panch witness in whose presence the amount of Rs.15,000/- was allegedly recovered from Mrs.Habiba has not identified the accused no.5. 13 Apart from this, there is no explanation as to why the employer of PW 4 had not been examined. There is no evidence as to what happened to the Indica car. It is not clear whether it was seized from the spot. It is also not clear as to who was the registered owner of the said car. In the ordinary course, non-examination of the employer and failure to seize the car would not have been of much importance. However considering the facts of this case, to my mind, evidence on these two aspects was very much necessary. In the absence of such evidence, the whole case appears to be mysterious. What is further noted is that the accused nos.1, 2 and 6 have been convicted of the sat 15 crim.appeals 1295, 1222, 1244 & 1231 of 2007 offence punishable u/s.392 of IPC for having allegedly committed robbery in respect of cash amount of Rs.7,22,000/- by forcibly removing from the possession of PW 4 and at the same time, they have been convicted of the offence of cheating for having dishonestly induced PW 4 to part with some of the amount of Rs.7,22,000/-. In my opinion, these two charges in the present set of circumstances could not have gone simultaneously. For all these reasons, I have come to the conclusion that all the appeals need to be allowed and the appellants need to be acquitted of all the charges framed against them. At the same time, I have also come to the conclusion that the order in respect of disposal of property is also without application of mind. It is not clear from the judgment as to who is the said Sharad Dattatray Patil to whom the cash amount had been returned on execution of bond. It is, therefore, necessary that the learned trial court shall hold inquiry to determine as to who was entitled to get the said amount of Rs.7,22,000/- at the conclusion of trial. Hence, I pass the following order :- sat 16 crim.appeals 1295, 1222, 1244 & 1231 of 2007 14 Criminal Appeal Nos.1295/2007, 1244/2007, 1222/2007 and 1231/2007 are allowed. The judgment and order passed by the learned Sessions Court dated 29th October, 2007 in Sessions Case No.440/2005 is set aside. 15 The appellant Sharad Mahadev Kamble in Appeal No.1295/2007 and the appellant Kishor Pundalik Waghmare in Appeal No.1222/2007 are acquitted of the offences punishable u/ss. 392, 365 and 420 of IPC. 16 The appellant Kutubuddin Hasan Haju in Appeal No.1244/2007 is acquitted of the offence punishable u/s. 392 of IPC. 17 The appellant Shobha Vasant Gole in Appeal No. 1231/2007 is acquitted of the offences punishable u/ss. 392 of IPC and 420 of IPC. 18 The order in respect of disposal of property i.e. sat 17 crim.appeals 1295, 1222, 1244 & 1231 of 2007 cash amount allegedly recovered at the instance of appellant Sharad Mahadev Kamble and original accused no.3 and the appellant Kutubuddin which was returned to one Sharad Dattatray Patil shall be deposited by Sharad Dattatray Patil in the trial court within thirty days from the intimation given to him by the trial court. The trial court shall take necessary steps to intimate the said Sharad Dattatray Patil to deposit the said amount. As soon as the said amount is deposited in the trial court, the trial court shall hold a brief inquiry as to who is entitled to possess the said amount and dispose of the same accordingly u/s. 452 of Cr.P.C. 19 The appellants who are in jail shall be released forthwith, if not required in any other case. The bail bonds of the appellants who are on bail shall stand cancelled. Fine amount paid by the appellants shall be refunded to them immediately. 20 The inquiry to be held by the trial court for disposal of property shall be completed within three months from the sat 18 crim.appeals 1295, 1222, 1244 & 1231 of 2007 date of receipt of this Order. 21 The appeals are accordingly disposed of. (M.L. TAHALIYANI, J)