-1- bpk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 846 OF 2007 Jaikrushna @ Kisan Chandiprasad Kandiyar, age 33 years, Occ. Service Residing at Janu Pada, Vaibhav Nagar Navdurga Chawl, Room no. 2 Kandivali (East), Mumbai 400 102 : Appellant (Org. Accused no.1) v/s The State of Maharashtra (At the instance of Sr. P.I. Sahar Airport Police Station, Mumbai) : Respondent Mr. S.V. Kotwal with Niranjan Mundargi advocate for appellant Mr. P.P. Adsule A.P.P.for State Coram Coram Coram : A.R. JOSHI,J. : A.R. JOSHI,J. : A.R. JOSHI,J. DATE DATE DATE : 6.4.2009 : 6.4.2009 : 6.4.2009 ORAL JUDGMENT: 1. It is the appeal preferred by the appellant original accused no.1 against the judgment and order dt. 25.6.2007 passed by Sessions Court, Bombay in S.C. no. 670/2005 and 264/2006. It may be noted that out of the said incident of robbery armed with deadly weapon like chopper, initially, present accused no.1 came to be arrested on 25.5.2005 and on completion of investigation against him charge sheet was filed and S.C. no.670/2005 arose out of the same. Subsequently, accused no. 2, who is acquitted by impugned judgment and order came to -2- be arrested and supplementary charge sheet was filed against him wherein he was committed to sessions court and S.C.no. 264 of 2006 arose. As such by clubbing both the S.C. cases impugned order and judgment was passed by which only present accused no.1 was convicted for charge under section 392 r.w. 34 of IPC and sentenced to suffer RI for ten years and to pay fine of Rs. 10,000 in default R.I. for 2 years and 6 months, the appellant was also convicted under section 397 r.w.34 of IPC and sentenced to suffer R.I. for 10 years and to pay fine of Rs. 10,000 in default R.I. for 2 years 6 months. Substantive sentence were directed to run concurrently. By said impugned judgment and order accused no.2 was acquitted. 2. Heard rival submissions at length wherein three main points are raised on behalf of appellant accused by learned advocate Shri S.V. Kotwal as to the identification of appellant in TI parade cannot be held trust worthy and no authenticity can be placed on such identification. Secondly, the recovery of alleged articles against the accused is doubtful and as such the reasonable doubt can be created whether any such articles were recovered at the instance of appellant accused; and thirdly, that though there is a opinion of finger print expert in the present case as to finger -3- prints sent to the expert purported to be finger prints of appellant accused no.1, match the chance print found in the windshield of the car, such opinion cannot be taken as against the appellant mainly in view of the admitted position that there is no authentic evidence of any panchnama, by way of examination of panch as to what was sent to the hand writing expert for comparison with the chance print were the finger prints of the appellant accused. 3. Prior to discussing the main three points raised on behalf of the appellant, the case of the prosecution as unfolded before the Sessions Court can be narrated briefly. On the night between 12.1.05 and 13.1.05 the incident of robbery occurred on the Express Highway when PW1 was driving his vehicle while he was taking PW3 Smt. Pareira from Air port to her destination. On the day at early hours of 13.1.2005 at about 1 a.m. or so the car in which PW1 and 3 were travelling was accosted by another vehicle and from which two robbers got down. According to case of prosecution, allegedly, present appellant accused no.1 was one of the robbers and accused no. 2 was his associate, the 2nd person. Both robbers were armed with choppers and on the point of chopper they gave threat to PW1 and 3. The windscreen of the car in which PW1 and 3 were travelling was broken -4- by using chopper. In the said incident one chopper was fallen on the spot. After breaking the wind shield accused no.1 snatched the gold chain which PW3 was wearing. Keys of the car were taken from driver of the vehicle i.e. PW1 and after opening dickey the baggage of PW3 was taken away. It was containing some clothes, soft toys and reportedly a ring and chain. Reportedly the said incident occurred in very swift manner and after taking out the baggages and snatching chain from PW3 both the robbers flew away in their car. At this juncture it must be mentioned that in the FIR given by PW1 driver of the vehicle in which PW3 was taken from air port to her destination he had mentioned that the car of robber was Hundai make, however subsequently during his evidence he has changed the version and submitted that it was car of Indigo make, as by that time police had accosted one silver coloured Indigo car and it was shown to said witness during investigation. 4. After the robbers flew away with articles and baggage PW1 made a telephone call to no. 100 and after arrival of police PW1 told him the incident and complaint was recorded and further investigation was started. It is a factual position that till arrest of the accused no.1 appellant on 26.5.2006, there was no trace as to who were the robbers and what happened to -5- stolen articles. According to case of prosecution while appellant accused no.1 was involved in other offence with other police station during interrogation he revealed his role in the present matter and as such his custody was taken on transfer warrant and he was interrogated. According to prosecution, appellant accused no.1 made voluntary statement to produce the ring which was allegedly recovered from his wife after visiting his house in the presence of panchas. It is also the case of prosecution that appellant accused no.1 made voluntary statement to produce the gold chain and to show the shop of the jeweller to whom said gold chain and foreign currency was sold. Accordingly memorandum panchnama was conducted and there was allegedly recovery of one gold slab from the jeweller who is PW8. According to the case of prosecution and as per substantive evidence of PW8 said accused no.l gave gold chain and also gave foreign currency and said jeweller has given Rs. 10,000/- towards the chain and Rs. 30,000/- towards the foreign currency, as such gave Rs. 40,000/-. At this juncture it is mentioned that apart from gold slab which was converted by PW8 out of the gold chain given by accused no.1, nothing was seized from said jeweller, much less the total value of gold chain and foreign currency. On completion of investigation as against accused no.1 charge sheet was -6- filed against him and accordingly S.C. no. 670/2005 came to be lodged on committal of the matter before Sessions Court, Bombay. Thereafter there was also arrest of accused no.2 and supplementary charge sheet was filed against him and accordingly S.C. no. 264/2006 arose. 5. During the recording of evidence before the Sessions Court, Bombay total 14 witnesses were examined. A brief reference as to the role of each witness can be given in order to have proper perspective of the matter and in order to ascertain as to evidence of which witness is allegedly incriminating against accused no.1 and which evidence is required to be scrutinized with due core while deciding the present appeal. PW1 is original complainant driver of the vehicle in which PW3 was being taken from airport to her destination on the fateful night. PW2 is panch witness. According to the case of prosecution panchnama was done during which the ring and also subsequently the cash were recovered at the instance of accused no.1. According to police the ring was recovered from wife of the accused on 28.5.2005. At this juncture it must be mentioned that said panch has not supported the case of accused and on permission from session court questions were put to him in the nature of cross examination by the prosecutor and -7- certain answers were tried to be taken from him. PW3 is Olega Pareira. According to her during the incident of said robbery she was very frightened and could only say that the wind screen of the car was broken by two robbers and one of them snatched gold chain and in doing so she suffered minor injuries, probably the nail injuries. PW4 is the panch for the scene of offence and during which some chance finger prints were recovered by the police. PW5 is doctor who examined the injuries which were found around neck of PW3, PW6 is panch for the finger prints which were taken from the car, PW7 is the owner of the car which was accosted and which was ransacked by robber, PW8 is jeweller who allegedly converted the gold chain into slab and also purchased said gold chain and foreign currency from the appellant accused no.1, PW9 is Special Executive Officer who conducted test identification parade on 8.6.2005 putting appellant accused no.1 for identification and in which PW1 and 3 were the identifying witnesses, PW10 is the finger print recorder who took the chance finger prints from the car which was ransacked. PW11 is the photographer recording chance finger prints on the car, PW12 is finger print expert who gave his opinion at Ex. 47, PW13 is the police officer who received the intimation on telephone regarding the happening of the incident on that night and last prosecution witness PW14 -8- is investigating officer. 6. Main crucks of the argument on behalf of the petitioner accused no.1 is 3 fold as to identification of accused no.1 is not trustworthy, recovery is not to be believed and thirdly that report of the finger print expert cannot be taken as incriminating. While dealing with such three objections raised on behalf of the appellant accused attention of this court is drawn towards the substantive evidence of PW1 and 3 so far as T.I. Parade evidence and as to identification of accused no.1 as one of the robbers, is concerned. Apart from their evidence, it is submitted, that the evidence of PW9 is also required to be taken into consideration. While dealing with such substantive evidence it must be stated that factually PW3 had not identified appellant accused no.1 in T.I. parade and only before court during her substantive evidence she had stated that probably the accused no.1 might be one of the robbers and that she was not sure about accused no.2. So far as substantive evidence of PW1 is concerned he had specifically agreed that he had not given description of the accused persons to the police and that very material answer is given by him during his cross examination in para 12 of notes of evidence as to accused no.1 was shown to him at Andheri police station prior to TI -9- parade. Apart from this he further stated that TI parade was conducted at the open space in the jail premises. On the value of the TI parade evidence following authorities are cited on behalf of the appellant accused. (1) 1995(1) ALL MR 122 Ramcharan Bhudiram Gupta and other vs The State of Maharashtra, (2) (1998) 6 Supreme Court Cases 609, Ravindra alias Ravi Bansi Gohar vs State of Maharashtra. Ratios propounded by the said authorities if taken into consideration then in the opinion of this court the evidence of PW1 as to identifying the appellant accused no.1 cannot be believed as trustworthy. More so when PW3 had not at all identified accused no.1 either in TI parade or before the court. 7. So far as alleged recovery at the instance of appellant accused no.1 is concerned firstly it must be said that the hostility shown by PW2, recovery panch, is vital blow to the case of prosecution and as such considering the substantive evidence of PW8 and as to the factual position that apart from the gold slab nothing else was recovered from the said jeweller PW8, in the openion of this court a reasonable doubt is created as to whether any articles were recovered at the instance of the accused as to the ring and whether infact the gold chain was sold by him to the jeweller -10- PW8. More over substantive evidence of PW8 shows that at the time of giving gold slab to the police only police persons were present and as such it can be construed that there was no any panch present though it was the case of the prosecution that such recovery was in presence of two panchas witnesses including PW2. Again at the cost of repetition it must be mentioned that such PW2 had disowned the case of prosecution. In the result the arguments on this second point, advanced on behalf of the appellant accused no.1 are required to be accepted. 8. Thirdly so far as the report of finger print expert is concerned no much importance can be given to said piece of evidence for the simple reason that there is no any authenticity as to what was sent to the finger print expert for comparison with chance print or infact the finger prints of appellant accused as admittedly there is no any panch examined on that count. 9. Finding out the above mentioned deficiency in the case of prosecution in the opinion of this court it must be said that the Trial court i.e. Session court Bombay had fallen in an error in holding appellant accused no.1 guilty under the offence charged, in other words it must be said that considering the effect of -11- substantive evidence of said prosecution witness mentioned above and which are allegedly as against appellant no.1 according to the case of prosecution, the benefit of doubt must go in favour of the appellant and as such the present appeal must succeed and accordingly disposed of as under. ORDER . Criminal appeal 46 of 2007 is allowed. Impugned judgment and order of Learned Session Judge, Bombay dt. 25.6.2007 is set aside. . Appellant accused no.1 be released from jail custody if not required in any other matter. If fine amount is already paid it shall be returned back to him. . Appeal is allowed. (A.R. Joshi, J)