APPA 794/11 page 1 of 8 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO. 794 OF 2011 IN CRIMINAL APPEAL No. of 2011 STATE OF MAH., THROUGH P.S.O., P.S., DHANTOLI, NAGPUR VERSUS VIVEK MADHUKAR MODAK AND 3 OTHERS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. T.A. Mirza, Additional Public Prosecutor for the applicant/State CORAM : P.V.HARDAS AND P.B. VARALE, JJ. DATE : 12th DECEMBER, 2011. Heard Mr. T. A. Mirza, the learned Additional Public Prosecutor for the State. By the present application, the applicant/ State is seeking leave to file appeal against the judgment and order, passed by the learned District Judge-4 and Additional Sessions Judge, Nagpur, dated 29.08.2011 in Sessions Trial No. 428/2006, thereby acquitting the respondents/original accused for the offence punishable under Sections 395 and 397 of the Indian Penal Code. The brief facts giving rise to the present application are as follows : The complainant Smt. Ratnakala Balraj (P.W.8 ), resides along with her family members at Plot No. 108, Dhantoli Park area, Nagpur. In the late hours on 07.05.2006 i.e. past mid night at about APPA 794/11 page 2 of 8 1.20 a.m., she heard some noise of hitting door of her house. P.W.8 Ratnakala, on sensing some foul play, rushed to the bed room of her husband and found that 6-7 persons had encircled her husband. One person armed with ‘sword’, had pointed the sword on the chest of her husband and other persons were also armed with axe, knives, hammer etc. Those person were threatening “maal nikalo”. In the meantime, on hearing the noise, daughter of Ratnakala, namely Priyanka also rushed there and one person out of 6-7 persons, caught hold her hair, pressed her neck down and by showing knife, threatened her not to speak. Out of those 6-7 persons, two persons who were armed with knives, were speaking in Marathi “cash kadha, tijori khola, aamhala mahit aahe ki tumchyakade khup paise aahe”. Out of those persons, one person raised knife on the neck of the complainant and other held knife on the back of the complainant. They led the complainant to the strong room, where the safe (Tijori) and cupboards were placed. Those persons, by giving threats to the complainant on the point of knives, forced her to open the cupboards. They took away from the said cupboards gold ornaments of Rs.Two lakhs . These gold ornaments included bangles, necklace, chain and biscuits of 3 Kgs. The total worth of the property was approximately Rs.18 lakhs. While taking out the ornaments from the cupboards, one person dealt blow of knife on the shoulder of the complainant. Those persons had covered their faces with cloth. On collecting the gold ornaments, those persons left the APPA 794/11 page 3 of 8 house of the complainant P.W.8 Ratnakala and while leaving, they took away with them mobile phones and cameras of the complainant. P.W.8 Ratnakala rushed to Dhantoli police station on the same day and lodged the complaint. On the basis of said complaint, Crime No. 121/2006 came to be registered and the same was investigated through P.W.20, 22 and 24. During the course of investigation, the Investigating Officers recorded the statements of the witnesses and the property was recovered at the instance of the accused persons. Test Identification Parade was arranged and upon completion of the investigation, charge-sheet was filed. On committal of the case to the Court of Sessions, Charge at Exh. 40 was framed against the accused persons for the offence punishable under Sections 394 and 397 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined in all 24 witnesses, whereas the defence chosen not to lead the evidence by examining any witness. On appreciation of the evidence, the trial Court arrived at a conclusion that the prosecution has failed to prove the offence against the accused persons beyond reasonable doubt and as such acquitted the respondents /accused persons. As per the judgment and order, the complainant Ratnakala (P.W.8) was to retain the muddemal property, already returned to her. APPA 794/11 page 4 of 8 Mr. Mirza, the learned Additional Public Prosecutor for the applicant/State, vehemently argued that the respondents/accused were armed with deadly weapons, they looted the property worth Rs.18 lakhs and also made an assault on the complainant Ratnakala and they have committed a serious crime. He further submitted that the trial Court has erred in acquitting the accused and prayed for grant of leave to file this appeal. With the assistance of the learned A.P.P., we have gone through the evidence of the prosecution. The prosecution has examined 24 witnesses. The witnesses can be grouped such as P.W.8 Ratnakala Balraj, the complainant and other witnesses namely P.W.4 Manoj Nichwani, P.W.13 Danial Sanmugam, P.W.14 Paresh Meshram, P.W.15 Vinod Khera, P.W.17 Anil Kale. Apart from the complainant P.W.8 Ratnakala, the other witnesses are on the point of purchase of gold articles etc. P.W.2 Harish Karwade, P.W.3 Bobby Petric, P.W.5 Jatin Kale, P.W.6 Jatashankar Mishra, P.W.7 Rajesh Mohane, P.W.9 Ganesh Jadhav, P.W.10 Ajay Bajpayee, P.W.11 Manish Wankar, P.W.12 Vikas Gujwar and P.W.16 Babarao Salurkar are the panch witnesses. P.W.18 Prakash Somkuwar is the Special Executive Magistrate, whereas P.W.19 Amol Ramteke is the panch on Test Identification Parade and P.W.20 Ashok Dhanokar, API, P.W.22 Kawadu Uike, ASI, P.W.23 S.R. Palandurkar, S.D.P.O. and P.W.24 Arvind Saraf, PSI are the Investigating Officers, who played their APPA 794/11 page 5 of 8 respective role in the investigation. Most of the panch witnesses turned hostile and the prosecution case rests on and revolves around the evidence of P.W.8 Ratnakala, the complainant. On the incident of dacoity in the house of the complainant Ratnakala, there is nothing to discredit her version as she stood firm on the aspect of dacoity. The crucial question is as to whether the prosecution was successful in establishing the complicity of the respondents/ accused through P.W.8 Ratnakala ? On appreciation of the evidence of P.W.8 Ratnakala, it is revealed that P.W.8 Ratnakala has stated that those persons had closed their faces. The Test Identification Parade was carried out so as to establish the identity of the accused persons. P.W.8 Ratnakala claims that she had identified accused no.2, 3, 4, 5 and 8. On careful scrutiny of the evidence of P.W.8 Ratnakala, it has been observed by the trial Court that though P.W.8 Ratnakala claimed that she had identified accused nos.2, 3, 4, 5 and 8, the identification of these accused by P.W.8 Ratnakala, is shrouded in doubts. At the time of Test Identification Parade, P.W.8 Ratnakala identified 4 suspects i.e. accused nos.2, 3, 4 and 5. As per her own version, accused no.1 assaulted her on the shoulder at the time of the incident, but she was unable to identify him at the time of identification parade. In the process of identification parade, accused nos.2 and 3 were paraded along with dummy witnesses and P.W.8 Ratnakala identified APPA 794/11 page 6 of 8 accused no.2 and at the same time she wrongly identified dummy witness Shaikh Jakir. In the third round of identification parade, P.W.8 Ratnakala identified accused no.4 Sandeep and again identified dummy accused Shaikh Jakir. It also reveals from the evidence of P.W.8 Ratnakala that she was unable to identify accused no.8 Ajay Uike in the Test Identification Parade, but identified him in the Court. P.W.8 Ratnakala has specifically stated in her testimony as well as in the cross-examination that when the accused had come to her house, they had covered their faces up to mouth. Therefore, as those persons had covered their faces, it was difficult to accept the evidence of P.W.8 Ratnakala that she was able to identify those accused persons in the identification parade, which was conducted nearly after three months from the date of the incident. It is also revealed that the police authorities used to show computerized photographs of the suspects and as such the possibility was not ruled out as to showing of the photographs of the suspects to P.W.8 Ratnakala prior to test identification parade. It is revealed from perusal of the evidence of P.W.8 Ratnakala that she require spectacles for reading purposes. In the cross- examination, P.W.8 Ratnakala had admitted that at the time of the incident, she was searching for her spectacles as she wanted to see from the close distance. It shows that the ability of identification of Ratnakala through normal vision was certainly affected because of her weak eye sight. Furthermore, as per her own admission those persons APPA 794/11 page 7 of 8 had covered their faces and in such a situation, so called identification by P.W.8 Ratnakala is certainly shrouded in doubts. It is also revealed from the examination of P.W.8 Ratnakala that whenever she used to attend the identification parade, one watchman Kawadu Sarate used to call her for identification parade and prior to that all the arrangements of parade were complete. As such the possibility of Kawadu telling the numbers of accused/suspects in the row to P.W.8 Ratnakala, was not ruled out. The incident in question took place on 08.05.2006, the accused nos. 1 to 5 were arrested on 10.07.2006 and/or 13.07.2006 and the identification parade was conducted on 12.08.006 i.e. after three months of the incident. The said delay of three months is not at all explained by the investigating officers. In view of the above mentioned facts, it was rightly observed by the trial Court that the evidence that P.W.8 Ratnakala identified the accused/suspects in Test Identification Parade, is unworthy of credence and as such not believable being shrouded in doubts. In so far as the other evidence in respect of sale and purchase of looted property, that evidence also falls too short. The evidence of recovery of gold ornaments at the instance of accused also falls too short. In our opinion , therefore, the trial Court has appreciated the evidence in its proper perspective and arrived at a just conclusion, which needs no APPA 794/11 page 8 of 8 interference. The application is, therefore, devoid of merit and deserves to be rejected. In the result, the criminal application is rejected. Leave refused. JUDGE JUDGE Diwale