1 cri.appeal 251-2005 and 120-2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 251 OF 2005 Sarbajit Babaram Sharma ) Age 26 years, ) r/o. Chembur Camp, ) Ramtekdi, besides Gurudwara, ) Bombay )...Appellant (Orig.Accused No.1) vs. The State of Maharashtra (at the instance of Wada Police Station and Anr.) ...Respondent WITH CRIMINAL APPEAL NO. 120 OF 2004 Balrajsing Gurubakshsing Brad @ Balli. ...Appellant (Orig.Accused No.3) vs. The State of Maharashtra (at the instance of Wada Police Station and Anr. ...Respondent Shri Y.M. Choudhary for the Appellants. Mrs.U.V. Kejriwal, APP for the State. 2 cri.appeal 251-2005 and 120-2004 CORAM : D.B. BHOSALE AND M.L. TAHALIYANI, JJ. JUDGMENT RESERVED ON : SEPTEMBER 9, 2011 JUDGMENT PRONOUNCED ON : OCTOBER 21, 2011 JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 Both the appeals arise out of the same judgment and order and therefore, they are being decided by a common judgment. Both the appellants have been convicted by the 2nd Ad-hoc Additional Sessions Judge, Thane, by his order dated 29th January, 2003 for the offences punishable u/ss. 302 read with 34 of IPC, 392 read with 34 of IPC, 397 read with 34 of IPC and 342 read with 34 of IPC. The appellants have been sentenced to imprisonment for life and to pay a fine of Rs.25,000/- each, in default, to suffer RI for one year for the offences punishable under Section 302 read with 34 of IPC. Various other sentences have been imposed for the other offences they have been convicted of. They have been 3 cri.appeal 251-2005 and 120-2004 acquitted of the offence punishable u/s. 25(1-B)(a) read with Section 3 of the Arms Act and Sections 37(1) r/w. 135 of the Bombay Police Act. 2 The appellant in Appeal No.251/2005 Sarbajit Babaram Sharma and appellant in Appeal No. 120/2004 Balrajsing Gurubakshsing Brad @ Balli hereinafter will be referred to as ‘appellant no.1’ and ‘appellant no.2’ respectively. 3 Appellant no.1 and 2 were the original accused no.1 and 3 in Sessions Case No.203/2000 of Thane District. Both of them along with accused no.2 (since deceased) were chargesheeted for the abovestated offences by Local Crime Branch, District Thane. 4 In the alleged offence of murder and robbery, driver Anil Shivaji Bhosale (the deceased) an employee of 4 cri.appeal 251-2005 and 120-2004 the complainant PW 5 Dattatraya Baban Wagh, was allegedly killed by the appellant no.1 and 2 in furtherance of their common intention and the common intention of the original accused no.2. A truck loaded with pulses was robbed by the appellants and the said accused no.2 at the point of revolvers. 5 The alleged incident had occurred on 7th December, 1999. It is the case of prosecution that the complainant Dattatray Baban Wagh was in transport business. He was owner of motor lorry no.MH 04/P-9077. The deceased Anil Bhosale was his driver on the said lorry. Atul Roadlines had assigned the job to the complainant for transporting gunny bags containing Masoor to Bangalore. Accordingly, the said truck no.MH 04/P-9077 was loaded with Masoor. On 6th December, 1999, the deceased and the complainant left Mumbai for Bangalore from Cottongreen, Mumbai at about 11 p.m. 5 cri.appeal 251-2005 and 120-2004 and had a short halt at Mankhurd, Mumbai. They left Mankhurd, Mumbai at about 2 a.m. for Bangalore. The deceased was driving that lorry and the complainant was sitting beside him. They reached village Kalamboli at 3.30 a.m. where they went to a petrol pump to fill diesel. Thereafter they went to tea stall (Hotel) for a cup of tea. 6 It is alleged that in the said hotel, the appellants and accused no.2 had inquired from the complainant and deceased as to where the said lorry was to proceed. The complainant told them that the consignment was to be transported to Bangalore. After about 15 minutes, the deceased and complainant boarded the truck to go to Bangalore. It is at the same time that the appellants and accused no2. had also boarded the truck of complainant from both the sides. It is further alleged that both the appellants were holding revolvers. The appellants and the accused no.2 threatened the complainant and the 6 cri.appeal 251-2005 and 120-2004 deceased that in case the complainant or deceased shouted for help, they would be shot dead. It is because of this fear that the complainant and the deceased could not make hue and cry. The accused no.2 forcibly took charge of the steering. The complainant and deceased were blindfolded by the appellants and accused no.2.The truck was driven from place to place. At one place, the truck had halted and the complainant and the deceased were offered vadapav (eatables) by the appellants and accused no.2. The appellants and the accused no.2 removed cloth strips from eyes of the complainant and the deceased. Cloth pieces stuffed in the mouths were also removed. After consuming vadapav, the truck was taken from the said place by the appellants and accused no.2 and after sometime, the truck had stopped. The complainant at that stage felt that the deceased was being dragged away from the truck. The complainant, therefore, removed the cloth-piece by means of which he was blind-folded. He could see that the 7 cri.appeal 251-2005 and 120-2004 accused no.2 was standing near the truck and the appellants were dragging the deceased by the side of road towards the bridge. 7 It is the case of the prosecution that the deceased was killed by means of knife blows under the bridge. The complainant could not see the incident as he was on the road over the bridge. It is also the case of the prosecution that after five minutes of the deadly assault on the deceased, the appellants (accused no.1 and 3) returned to the place where they had left the complainant. The appellants and the accused no.2 assaulted the complainant also. The complainant tried to ward off the blows of knife. In the process, he had sustained multiple injuries on his palm and chest. It is alleged that after assaulting the complainant, the appellants and the accused no.2 took away the truck with the consignment of Masoor. It was around 6 p.m. and sun was about to set. The complainant 8 cri.appeal 251-2005 and 120-2004 tried to take help from the vehicles passing from the said road. However, nobody had come to rescue of the complainant. Ultimately, it was a police vehicle from Wada Police Station (Thane District) which came to help of the complainant. PW 8 PSI Mohite and his staff were in the vehicle. The complainant was taken to Wada Hospital. His statement was recorded and offence of robbery was registered. It is necessary to state here that by that time nobody knew that the deceased had been assaulted and that he had died due to the assault below the bridge. Section 302 of IPC appears to have been applied by the police later on. 8 After registration of offence, message was given by PW 8 to Bhiwandi Police Station. It is the case of the prosecution that the truck hijacked by the appellants and accused no.2 was intercepted by police officers of Bhiwandi Police Station. Initially, the appellants and 9 cri.appeal 251-2005 and 120-2004 accused no.2 refused to surrender. They did not come out of cabin of the truck. The police were required to break glass pans of window by means of rifle butt. The appellants surrendered before the police. However, accused no.2 attempted to escape from the police custody. This incident had occurred near Amgaon village. It is the case of the prosecution that villagers had apprehended accused no.2 and he was brutally assaulted by the villagers. Due to the said assault, accused no.2 was injured. He was taken into custody and was admitted in the hospital. One knife and one chopper was recovered from the cabin of the truck. They were seized by the police officer Shinde of Bhiwandi Police Station. He intimated PW 8 Mr.Mohite of Wada Police Station that the appellants and accused no.2 had been apprehended and the property allegedly robbed from the custody of the complainant (truck loaded with Masoor) had been seized by Bhiwandi police. PW 8, therefore, visited Bhiwandi 10 cri.appeal 251-2005 and 120-2004 police station. The accused no.2 who was admitted in the hospital was formally taken into custody by Wada Police Station. The appellants were physically handed over to Wada Police Station by Bhiwandi Police. 9 During the course of investigation, clothes of the appellants and accused no.2 were seized by the police. The appellants were in possession of two country made revolvers. They were earlier seized by Bhiwandi Police. One of the revolvers was containing one live cartridge and other revolver was containing six live cartridges. The knife and chopper recovered from the cabin of truck were later on shown seized from the physical possession of the appellants. (Reasons for this type of seizures have been given by the officer in his evidence which will be discussed at later stage.) 10 It is the case of the prosecution that the 11 cri.appeal 251-2005 and 120-2004 complainant was admitted in Wada hospital and on the same day, he was shifted to Civil Hospital. It is also the case of the prosecution that the complainant was hospitalised for a very long time and that after the discharge, he had gone to his native place at Goregaon in Satara District (Maharashtra). The identification parade was held after about six months when the complainant had come to Wada. During the course of identification, the appellants and accused no.2 were allegedly identified. Identification memo was accordingly drawn. It appears from the record and proceedings that the charge-sheet could not be filed within 90 days of recording of the FIR. The appellants and accused no.2 had applied for bail under Section 167(2) of Cr.P.C. The learned Magistrate had granted them bail of Rs.75,000/- each. The appellants and accused no.2 however could not avail the said bail. 12 cri.appeal 251-2005 and 120-2004 11 During the course of investigation, spot of the incident was also visited by PW 8 Police Officer Mr.Mohite. One broken handle of knife was seized from the spot. The stone allegedly stained with blood was also seized. Four bullets lying on the spot were also seized by PW 8. Spot panchnama was drawn on the spot on 8th December, 1999. It could not be drawn in the earlier on 7th December, 1999 as it was night time. During the course of day, PW 8 came to know that dead body of the driver of the complainant (the deceased) was lying on the spot below the bridge from where the complainant was rescued by the PW 8 and his staff members. 12 At this stage, it may be stated here that the truck was allegedly hijacked on 7th December, 1999 at about 4 a.m. The incident had occurred on 7th December, 1999 at about 7 p.m. The lorry was intercepted by Bhiwandi police at about 9.30 p.m. on 7th December, 13 cri.appeal 251-2005 and 120-2004 1999. The inquest panchnama of the dead body was drawn on 8.12.99 and dead body was sent for post mortem examination. During the post mortem examination, the Medical Officer found that there were in all 23 external injuries and there were some corresponding internal injuries also. After examination of dead body, he had come to the conclusion that the deceased had died due to shock and haemorrhage due to injuries to vital organs. 13 One black jeans (trouser) was seized from the spot (below the bridge). It is not clear from the record and proceedings as to who was the owner or user thereof. The seized property including clothes of the appellants and accused no.2, the complainant and the deceased were sent to Forensic Science Laboratory. The revolvers (country made), bullets and cartridges seized by the police during investigation were also sent to Forensic Science Laboratory. After completion of investigation, charge- 14 cri.appeal 251-2005 and 120-2004 sheet was filed in the court of Magistrate and the case was committed to the court of Sessions. It is seen from the record and proceedings that the reports of the Chemical Analyzer were not produced at the time of filing of charge-sheet nor the same were produced during the course of recording of evidence. It is further seen that the reports were taken on record by the learned trial court after conclusion of statements of the appellants u/s. 313 of Cr.P.C. There does not appear to be any prayer on the part of prosecution for introduction of those documents nor any witness was examined who could produce the reports of the CA. 14 The learned trial Judge had, on 7th April, 2001, framed charge against the appellants. The accused no.2 was reported dead. Both the appellants had pleaded not guilty to the charges framed against them. The appellants were tried for the offences punishable u/ss. 302 15 cri.appeal 251-2005 and 120-2004 read with 34 of IPC, 392 read with 397 read with 34 of IPC, 342 read with 34 of IPC and 25(1-B)(a) read with 3 of the Arms Act and 27 read with 4 of the Arms Act. They were also tried for the offence punishable under Section 135 read with 37(1)(a) of Bombay Police Act. At the conclusion of trial, the appellants have been acquitted of the offences under Arms Act and Bombay Police Act. They have been convicted for other offences stated hereinabove. 15 During the course of hearing of appeal, the learned Counsel Mr.Y.M. Choudhary was heard on behalf of both the appellants and learned Additional P.P. Mrs.Kejriwal was heard on behalf of the State. 16 Learned Counsel Mr.Choudhary has assailed the judgment of the learned trial court on various grounds. At the outset, it was submitted that the learned trial court 16 cri.appeal 251-2005 and 120-2004 has erred in applying Section 34 along with Section 397 of IPC. In this regard, we agree with the learned Counsel that Section 34 cannot be applied to Section 397 of IPC. It is well settled that the offence punishable u/s. 397 of IPC is the offence committed by the individual accused during course of robbery or dacoity as the case may be. The other accused who had not used weapon cannot be held responsible vicariously for the act of one of the accused punishable u/s. 397 of IPC. Section 397 of IPC in fact does not create any independent offence. It is aggravated form of offence committed by one or more members of the group of robbers or dacoits. It prescribes minimum punishment for the accused who committed any act as prescribed in Section 397 of IPC. However, that issue in detail may come up for discussion, if necessary, in later part of the judgment. 17 The prosecution case is mainly based on 17 cri.appeal 251-2005 and 120-2004 evidence of three witnesses i.e. PW 1 Balu Vinayak Avasare, PW 5 complainant Dattatraya Baban Wagh and PW 8 The Chief Investigating Officer who was then attached to Wada Police Station. Of course, the evidence of other witnesses also will be discussed while examining the evidence of these three witnesses. 18 The learned Counsel Mr.Y.M. Choudhary for the appellants has submitted that the whole case is manipulated against the appellants. It was submitted that the appellants were not at all involved in the alleged offence of robbery and murder. It was submitted that both the appellants were apprehended much earlier to the time of incident and they were brutally assaulted by the police. Since the original accused no.2 (who died later on) was seriously injured, the police have falsely implicated the appellants and the accused no.2 in this case. 18 cri.appeal 251-2005 and 120-2004 19 It was submitted that the story narrated by PW 5 to PW 1 with regard to the incident is altogether different from the prosecution case revealed from the original FIR. Mr.Choudhary has, therefore, submitted that the so called FIR has been manipulated. It is his contention that the story narrated by PW 5 to PW 1 on the spot from where the PW 5 was allegedly rescued was the information first in time given to the police by the victim of the offence. According to Mr.Choudhary, it was the FIR though not reduced to writing. Our attention was drawn to the fact that the allegations made in the oral information given to PW 1 by PW 5 are at great variance from the written FIR which was reduced to writing after the PW 5 was admitted in the hospital. As such according to Mr.Choudhary, there was more than sufficient scope for the prosecution to manipulate a case against the appellants. Since the appellants have already been apprehended and brutally assaulted, the safest way 19 cri.appeal 251-2005 and 120-2004 adopted by the police was to put them in some or other false case. 20 Mr.Choudhary has submitted that the information given by PW 5 was the FIR and goes contrary to the prosecution case and therefore, the whole prosecution case has become doubtful and this Court may grant both the appeals. It is submitted that since the appellants and accused no.2 were apprehended much earlier in some other connection, the police had ample opportunity and time to put the appellants in a false case already registered and not detected by the police. PW 1 in his cross-examination has admitted that the PW 5, at the initial stage had revealed that the truck in question was intercepted by another truck and thereafter three Sardarjis took charge of the truck in question. 21 Mrs.Kejriwal, learned Additional PP 20 cri.appeal 251-2005 and 120-2004 appearing on behalf of the State, on the other hand, has submitted that the information given by PW 5 to PW 1 where PW 5 was rescued was not an FIR. It was submitted that the FIR is not the cryptic information given first in time. Mrs.Kejriwal has submitted that FIR must disclose the minimum details of the alleged offence so that the investigating agency can investigate the case if it is of cognizable nature. 22 Mr.Y.M. Choudhary, on the other hand, has submitted that in view of the fact that PW 5 in writing had narrated the incident in detail to PW 1, the so called FIR of PW 5 will be hit by Section 161 of Cr.P.C. It cannot be used for corroboration. 23 Apart from the contention that the FIR of PW 5 by the police was not an FIR under Section 154 of Cr.P.C, but was a statement under Section 161 of Cr.P.C., 21 cri.appeal 251-2005 and 120-2004 the learned Counsel for the appellants has submitted that the analysis of whole evidence of main prosecution witnesses will clearly show that the case has been manipulated against the appellants and the evidence of prime witness i.e. PW 5 is absolutely false. 24 Before we advert to the arguments of learned Counsel Mr.Choudhary and the learned Additional PP Mrs.Kejriwal, we find it necessary to state the evidence of PW 1, 3 and 5 briefly. 25 PW 5 has stated that he was owner of the truck No.MH-04/P 9077. While narrating the incident, this witness has stated that the truck left Mankhurd at about 2 a.m. and reached Kalamboli petrol pump at about 3 a.m. After filling diesel in the fuel tank, the PW 5 and the deceased had gone to nearby hotel for a cup of tea. It is stated by him that while he and the deceased were sitting 22 cri.appeal 251-2005 and 120-2004 in the hotel, the appellants accompanied by one more person (according to prosecution case, it was accused no. 2) were also sitting in the same hotel. The appellants and the said person inquired from the PW 5 as to where the truck was headed for. The PW 5 informed the appellants and the accused no.2 that the truck was destined to go to Bangalore. After about 15 minutes, PW 5 and the deceased boarded the truck. It is alleged that the appellants and the said accused also boarded the said truck without the permission of the PW 5. The appellants were talking in Punjabi. It is stated that both the appellants were holding revolvers and the third person was holding a knife. All of them threatened the PW 5 and the deceased. PW 5 and the deceased were made to sit on the back seat of the driver’s cabin. The said person who accompanied the appellants and was holding a knife took charge of steering of the truck. They proceeded to Shilphata (junction of two roads on Kalyan road). PW 5 23 cri.appeal 251-2005 and 120-2004 had inquired from the appellants and the said person as to why the direction of the truck was changed. However, the appellants and the said person tied eyes and mouths of PW 5 and the deceased. PW 5 and the deceased were made to sit on the back side of the driver’s cabin. After driving lorry for about 4 to 5 hours, it halted at a place where the PW 5 and the deceased were offered wadapav. The truck was halting at the said place for about 4 to 5 hours and thereafter, the truck was again driven away from the said place. The appellants, PW 5 and the deceased were in the said truck. After sometime, the truck had stopped at one place. The PW 5 and the deceased were blind-folded. However, PW 5 heard the noise as if somebody was being dragged away from the truck. He, therefore, untied the cloth piece tied around his eyes. He had seen that the appellants were dragging the deceased Anil Bhosale away from the driver’s cabin. Associate of appellants was sitting on the driver’s seat. The deceased 24 cri.appeal 251-2005 and 120-2004 was dragged below the road near the bridge. It is stated by PW 5 that he had heard screams of the deceased which had emanated from the side of road. He had also heard noise of firing of 2-3 rounds. Thereafter, he did not hear anything from the deceased. 26 After assaulting the deceased, the appellants had come back to the truck and had removed the PW 5 from driver's cabin. The appellant no.1 caught hold of the PW 5 and started inflicting blows by knife on his chest and back. The appellant no.2 had inflicted 14 blows on his chest and back. The PW 5 had also received 4 to 5 blows on his left palm while defending himself from the attack. It is recorded in the evidence that the marks of healed injuries were shown to the learned trial judge by PW 5. The PW 5 has stated that he had sustained severe bleeding injuries. Presuming him to be dead, the appellants left him on the spot and boarded the said truck. The PW 5 came on 25 cri.appeal 251-2005 and 120-2004 the road and was seeking help of the vehicles passing from the said road. At least 14 to 15 vehicles passed away from the road and nobody came to his rescue. Ultimately one police vehicle reached there. PW 5 was shifted to hospital. His FIR was recorded in the hospital and his thumb impression was put on the FIR. The FIR was exhibited in the trial court as Exhibit 43. PW 5 was indoor patient in the said hospital for a few days. The PW 5 also tells about the identification parade held in the office by Tahasildar at Wada. He has also stated having identified the appellants. He had identified the revolvers shown to him during the course of recording of his evidence. According to this witness, the revolvers Article A and B were held by the appellants. The accused no.2 was holding a knife which was marked as Article C. 27 PW 1 was the the police constable attached to Wada Police Station. It is stated by this witness that on 7th 26 cri.appeal 251-2005 and 120-2004