1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 1215 OF 2003 1. RAMESH KANNAIYALAL JAT ) 2. BHAVARLAL GIRILAL JAT ) Both R/o Mahatma Gandhi ) Nagar Zopadpatti, Behind ) Awanti Bldg. , Antop Hill, ) Mumbai 400 037 ) .. APPELLANTS Vs. THE STATE OF MAHARASHTRA . .. RESPONDENT Mr. Ganesh Gole for appellants Mr. H. J. Dedhia, APP CRIMINAL APPEAL NO. 258 OF 2005 KISHANLAL PYARESINGH JAT .. APPELLANT VERSUS THE STATE OF MAHARASHTRA .. RESPONDENT 2 Mr. D. G. Khamkar appointed advocate for the appellant Mr. H. J. Dedhia, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 23RD JUNE, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 5TH AUGUST, 2010 JUDGMENT: (Per Smt. Ranjana Desai, J.) Criminal Appeal No. 258 of 2005 is filed through jail by one Kishanlal Pyaresingh Jat. Criminal Appeal No. 1215 of 2003 is filed by Ramesh Kannaiyalal Jat and Bhavarlal Girilal Jat. Kishanlal Pyaresingh Jat is original accused 1 and Ramesh Kannaiyalal Jat and Bhavarlal Girilal Jat are original accused 2 and 3 respectively. These three accused were tried in Sessions Case No. 485 of 2000 by the Sessions Court for Greater Mumbai for offences punishable under Section 449, 392, 302 read with Section 34 of the Indian Penal Code (“IPC” for short). Accused 1 Kishanlal Jat was also tried for offence punishable under Section 397 of the IPC. 2. By the impugned judgment and order accused 1, 2 and 3 are 3 convicted for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced to suffer life imprisonment and to pay fine of Rs.2000/- each, in default to suffer further RI for three months. They are also found guilty of the offence punishable under Section 392 read with Section 34 of the IPC and sentenced to suffer RI for seven years each and to pay a fine of Rs.1000/- each, in default to suffer further RI for two months. Accused 2 and 3 are found guilty of the offence punishable under Section 449 read with Section 34 of the IPC and sentenced to suffer RI for seven years and to pay fine of Rs.1000/- each, in default to suffer further RI for 2 months. The substantive sentences are ordered to run concurrently. 3. The prosecution story must be stated in brief. Accused 1 lodged a complaint with Matunga Police Station on 11/2/2000 that he was working with one Desai family as a servant for last about six months. He used to work as a cook. According to him on 11/2/2000 in the morning hours he completed his work and at about 4-50 p.m. He again went to the house of the Desai’s for work. At that time Dadima and Minakshi Desai (the deceased) were present in the flat. After sometime Pushpa, the maid came there. Pushpa went to the flat of Kiranbhai. At about 5-15 p.m., he heard door bell. At that time 4 he was in the kitchen. The deceased opened the door. Two unknown persons entered the flat. One of them pressed the mouth of the deceased and pushed her. The deceased fell down. Second person entered the kitchen and pressed his mouth. He tried to rescue himself but the said person made him lie down on the ground. He tied his hands with yellow plastic rope and also tied a napkin around his mouth. The said person inflicted knife blows on his hands. He also sustained injuries on his chest during the scuffle. At that time the other person was searching for valuables in the said flat. After sometime both of them left the place. Though he was tied by the rope he managed to come to the other room. Meantime Kiranbhai came to the said flat. Kiranbhai untied him and thereafter he took account of the articles in the flat. He found that the deceased was lying on the ground. After sometime the police came there and removed the deceased to the hospital. The police recorded his statement. In this complaint accused 1 gave the description of those who had entered the flat. 4. It appears that thereafter the police prepared spot panchnama and removed accused 1 to the hospital for treatment. The doctor examined him and opined that the injuries on his person were self- 5 inflicted. The police, therefore, arrested him. During the course of investigation involvement of the two other accused came to light. They were also arrested. At their instance the property was recovered. After completion of the investigation the accused came to be charged as aforesaid. 5. In support of its case the prosecution examined as many as 22 witnesses. The defence of the accused was one of denial. The accused, however, did not examine any defence witness. After perusing the evidence on record, learned Sessions Judge convicted the accused as aforesaid and hence this appeal. 6. We have heard at some length Mr. Khamkar, learned counsel appearing for accused 1 and Mr. Gole, learned counsel appearing for accused 2 and 3. We have also heard learned APP. With the assistance of learned counsel,we have gone through the record of the case. 7. Mr. Khamkar, learned counsel appearing for accused 1 stated that learned Judge has wrongly come to a conclusion that accused 1 gave a false and concocted story to the police to save himself. 6 Counsel submitted that PW 3 Kiran Sheth the neighbour of the deceased who went to the flat of the deceased after Pushpa, the maid told him that something was amiss in that flat, has clearly stated that when he went to the flat he found one man with his hands tied with a rope from the back. According to PW 3 his legs were also tied with a rope and his mouth was tied with a napkin. It is PW 3’s case that he untied the rope and freed the man. According to him the man told him that he was a cook. Counsel pointed out that even PW 5 Devesh Sharma, the pancha to the spot panchnama has stated that there was a rope lying at the scene of offence. Counsel submitted that PW 6 Dr. Damawale who had examined accused 1 has stated that accused 1 stated that he was injured by a knife by unknown persons who had entered the said flat. Counsel pointed out that Dr. Damawale’s evidence shows that accused 1 had received as many as 20 injuries. Counsel drew our attention to the complaint of accused 1 recorded by the police. He submitted that the account given by accused 1 of the incident in question is consistent with the evidence of PW 3, with the spot panchnama and with the injuries suffered by accused 1. Counsel submitted that PW 6 Dr. Damawale has given wrong opinion that the injuries suffered by accused 1 were self inflicted. Counsel submitted that it is highly improbable that a 7 man would cause so many injuries to himself. 8. Counsel further submitted that learned Judge has rightly discarded the prosecution case that the dog brought by the police went to accused 1 and started barking and, therefore, involvement of accused 1 is proved. Counsel further submitted that it is the case of the prosecution that at the instance of accused 1 a knife was discovered from the flat in which the incident took place. Counsel pointed out that PW 9 Raj Modi, who is pancha to the panchnama Exh.-28 under which the knife was allegedly taken charge of at the instance of accused 1 has stated that on this knife no blood was found. Counsel further submitted that PW 8 Chetan Momaya, who is a pancha to the panchnama under which accused 1 is stated to have led the police to the place where accused 2 was present and from where accused 2 is stated to have handed over the bag containing gold ornaments, has admitted that he was knowing Desai family for 40 years. Counsel submitted that since the pancha was known to the family of the deceased no reliance can be placed on his evidence. Counsel further submitted that in any case PW 8 Chetan Momaya has stated that accused 1 led the police to a jhopada (hut) on which there was a lock. According to PW 8 accused 1 went to mezzanine 8 floor by the staircase. Accused 2 was present there and at his instance gold ornaments were recovered. Counsel submitted that PW 19 the investigating officer Yasin Ali has stated that accused 2 and 3 were arrested on the basis of information given by accused 1. He has stated that accused 2 was interrogated and he showed willingness to make a voluntary statement about the gold ornaments which were kept in his house and thereafter he produced the gold ornaments. Therefore, this discovery is not at the instance of accused 1. Counsel submitted that evidence against accused 1 is not sufficient to convict him. Counsel submitted that, therefore, benefit of doubt be given to accused 1 and he may be released by quashing and setting aside the order of conviction and sentence passed by the trial court against him. 9. We have also heard Mr. Gole, learned counsel appearing for accused 2 and 3. Mr. Gole submitted that the prosecution has not been able to establish that accused 2 and 3 were seen near the house of the deceased at the relevant time. He took us to the evidence of PW 2 Pushpa, the maid. Counsel pointed out that Pushpa has stated that when she went to the house of the deceased she saw one person standing at the door. She identified accused 2 in 9 the court as the same person. Counsel pointed out that in the cross- examination Pushpa has admitted that she had not stated before the police that accused 2 was standing at the door when she went to the house of the deceased. 10. Counsel then took us to the evidence of PW 10 Rajiv Mehta. He submitted that PW 10 resides in the building which is opposite Shree Niketan building where the incident took place. He has stated that on the date of incident at about 2-45 p.m., he was waiting on the road. At that time he saw two persons coming out of Shree Niketan building. According to him they were not normal people. They were looking here and there and they were having bags in their hand and they went towards King Circle. PW 10 has identified accused 2 and 3 in the court as the persons whom he had seen on the date of incident coming out of Shree Niketan building. Counsel submitted that in the cross-examination of this witness he has admitted that he did not tell the police that he saw two persons coming out of Shree Niketan building in a suspicious manner. Counsel submitted that PW 10 noticed accused 2 and 3 because they were moving in a suspicious manner. If in his police statement he has not referred to the said two persons moving in a suspicious manner then his identification in the 10 court becomes suspect. This omission is a vital omission. 11. Counsel then took us to the evidence of PW 14 Nanda Shah. She has stated that on the relevant day when she returned home after taking a walk at about 5 to 5-30 p.m. she saw two persons hurriedly going outside the compound. Those persons were carrying bags with them and after looking at their faces she felt that they were under tension. She identified those two persons in the court as accused 2 and 3. Counsel pointed out that in the cross-examination she admitted that she has not stated before the police that the said two persons were going out of the building in a suspicious manner. The omission is regarding the word ‘suspicious manner’. Counsel submitted that PW 14 remembered the said two persons because they were moving in a suspicious manner. If she has not stated to the police that those two persons were moving in a suspicious manner then her identification of accused 2 and 3 in the court becomes suspect. Counsel submitted that the police have not held identification parade and, therefore, in the above circumstances identification in the court after so many months from the date of incident must be kept out of consideration. 11 12. Counsel then took us to the evidence of PW 8 Chetan Momaya and pointed out that the police had recorded the panchnama pursuant to the statement made by accused 1. PW 8 has stated that accused 1 took them to the place where accused 2 was found and at the instance of accused 2 a bag containing ornaments was allegedly found. Counsel submitted that it is further clear from the evidence of the investigating officer that accused 1 was arrested on 12/2/2000, thereafter accused 2 and 3 were arrested on the basis of information provided by accused 1. Thereafter accused 2 was interrogated and he showed willingness to give voluntary statement about the gold ornaments kept in his house. At the instance of accused 2 gold ornaments were recovered. Counsel submitted that, therefore, accused 2 made the statement when he was under arrest and hence it was necessary for the police to record his statement under Section 27 of the Indian Evidence Act. Inasmuch as the police have not recorded such a statement, the alleged discovery of ornaments cannot be used against accused 2. It would be hit by Section 25 and Section 26 of the Indian Evidence Act. The alleged recovery is not a voluntary recovery. The statement made by accused 2 would be a confession made to a police officer. 12 13. Counsel then took us to the evidence of PW 12 Divyesh Vora, who is a pancha to the panchnama Exh.-33. According to him on 12/2/2000 accused 2 made a statement and led the police to Sion- Koliwada. He stopped them near Building No. 1. He showed them Room No. 7 which belongs to one Mr. Vora. The police then asked Mr. Vora as to where his servant Bhavarlal i.e. accused 3 was. Mr. Vora called his servant Bhavarlal. Bhavarlal then took them towards a staircase near Room No. 6 and from there he took out one bag. When the bag was opened they found that it contained one V C R and one camera. Counsel submitted that this discovery cannot be used against accused 2 because it is not at the instance of accused 2 and it cannot be treated as a discovery at the instance of accused 3 because no statement of accused 3 is recorded under Section 27 of the Indian Evidence Act. 14. Counsel took us to the evidence of PW 13 Mavji Vora with whom accused 3 was working. Counsel pointed out that this witness has stated in his examination-in-chief that accused 3 used to serve with him as domestic servant. According to him he used to go to his house in the evening. According to him on the date of incident accused 3 informed him that he would not come to cook food. He 13 came for work on 12/2/2000 and on that day the police came there, inquired about him and he handed over camera and V C R to the police which he had kept in Room No. 6. However, in his cross- examination this witness has stated that the police slapped accused 3 and thereafter accused 3 told them where he had kept the stolen goods. Counsel submitted that, therefore, this statement is not a voluntary statement. It is a statement made under pressure and coercion. It would be hit by Section 25 and 26 of the Indian Evidence Act. 15. So far as the discovery of gold ornaments is concerned, counsel took us to the evidence of PW 15 Archana Desai, daughter- in-law of the deceased. Counsel pointed out that PW 15 has stated that on 15/2/2000 police called her to the police station to identify articles. They showed her ornaments, camera, video and bags and she identified the said articles. Counsel then took us to the evidence of PW 18 Jagdish Desai, the husband of the deceased who has stated that next day of the incident the police brought the ornaments to his house for identification purpose and his daughter-in-law identified them. Counsel submitted that, therefore, the identification of ornaments is doubtful. 14 16. Counsel then took us to the evidence of PW 19 Yasin Ali, the investigating officer. Counsel submitted that it is evident from the evidence of this witness that statements of accused 2 and 3 were not recorded under Section 27 of the Indian Evidence Act. Counsel pointed out that according to PW 19 on 12/2/2000 clothes of accused 1, 2 and 3 were attached under Panchnama Exhibit-45. However, Panchnama Exh.-45 is not proved as no panchas have been examined. Counsel submitted that PW 19 Yasin Ali has admitted that panchas to Exh.-45 were not examined and he has stated that he cannot give any reason as to why they were not examined. Counsel further submitted that there were no bloodstains on the clothes of accused 2. So far as accused 1 and 3 are concerned their blood group is ‘O’ and the blood group of the deceased is also ‘O’. Counsel submitted that accused 2 and 3 were not medically examined, therefore, it is not known whether they had injuries on their person. Bloodstains if any found on their clothes, therefore, cannot be used as a circumstance against them. Counsel pointed out that besides, in this regard no question was asked to the accused under Section 313 of the Code of Criminal Procedure. 17. Counsel then submitted that the constable who had taken the 15 samples to the chemical analyzer has not been examined. Therefore, it is not clear as to how and from whose custody and in what condition the samples were taken to the chemical analyzer. 18. Counsel submitted that fingerprint expert’s opinion has rightly been discarded by learned Judge. Counsel submitted that the evidence of PW 7 Mr. Chandanshive clearly indicates that he did not have the necessary expertise to give opinion as regards fingerprints. He has admitted that he does not have any special qualification. Counsel submitted that there is nothing on record to suggest that specimen fingerprints of the accused were taken for comparison. There is no evidence that the fingerprints found at the scene of offence were compared with any specimen fingerprints of the accused. No photographs are on the record. Neither the positives nor negatives of the photographs are on record. Counsel submitted that the fingerprint expert’s opinion is signed by the Director who has not stepped in the witness box. He has blindly signed the opinion and there is, therefore, no application of mind. Counsel submitted that, therefore, fingerprint expert’s opinion ought not to be taken into account. 16 19. Counsel submitted that the prosecution has miserably failed to prove its case against the accused and hence the order of conviction and sentence be set aside and the accused be set at liberty. 20. On the other hand Mr. Dedhia, learned APP submitted that the prosecution has proved its case to the hilt and, therefore, it is not necessary to interfere with the impugned order of conviction and sentence. Learned APP submitted that accused 1 lodged a false complaint to hoodwink the police. His complaint does not tally with the evidence on record. According to him unknown persons who entered the flat injured him, tied him with a rope so that he would not create any obstacle in their plan to commit robbery. According to him the intruders caused injuries on his chest. If this story was true he would have raised cries and people would have gathered at the scene of offence. Counsel submitted that the fact that accused 1 did not raise cries disproves his case. Learned APP submitted that accused 1 claims that the unknown persons caused injuries on his chest with a weapon, however, the panchnama Exh.-5 under which clothes of accused 1 were taken charge of does not show that there were any cut marks on his shirt. This story is, therefore, false. Learned APP submitted that the doctor has clearly stated that the 17 injuries suffered by accused 1 were self inflicted and there is no reason to disbelieve the doctor who is an independent witness. 21. Learned APP submitted that PWs 2, 10 and 14 are independent witnesses. They had seen accused 1 near Shree Niketan building on the relevant day and time. They have identified the accused in the court. Learned APP submitted that their evidence goes a long way in proving the prosecution case. Learned APP submitted that in the circumstances of the case it was not necessary to hold identification parade because the evidence of these witnesses shows that when they came to the police station the accused were present. In this connection learned APP relied on the judgment of the Supreme Court in Jarnail Singh & Ors. v. State of Punjab, (2009) 9 SCC 719. Learned APP also relied on the Supreme Court’s judgment in Ramanbhai Naranbhai Patel v. State of Gujrat, (2000) 1 SCC 358. 22. Learned APP submitted that daughter-in-law of the deceased and the husband of the deceased have identified the gold ornaments recovered from the house of accused 2. Learned APP submitted that the discrepancy in the evidence of the daughter-in-law of the deceased and the husband of the deceased as to whether the 18 ornaments were shown to them at the police station or at their house is not a very material discrepancy. Learned APP submitted that huge quantity of gold was recovered and it is impossible for the police to plant such gold. Learned APP submitted that it is natural for a daughter-in-law who was staying with the deceased to identify the ornaments. In this connection learned APP relied on the judgment of the Supreme Court in Gade Lakshmi Mangaraju @ Ramesh v. State of A.P., (2001) 6 SCC 205. Learned APP submitted that PW 15 Archana Desai has stated that the ornaments were in use for more than 10 years and, therefore, she could identify them. Learned APP also pointed out that all the necessary procedure was followed by the police while sealing and re-sealing of the deceased’s ornaments. He drew our attention to the evidence of PW 19 Yasin Ali, the investigating officer to the effect that after the ornaments were identified by Archana Desai they were sealed under the panchnama dated 15/2/2000. The said panchnama is at Exh.-49. Counsel drew our attention to the judgment of the Supreme Court in Rajendra Kumar v. State of Rajasthan, (2003) 10 SCC 21 where the Supreme Court has observed that in view of the consistent evidence as to the identification of bangles importance cannot be attached to the fact that the bangles were not sealed at the time when the 19 recovery was made from the shop at the instance of the accused. 23. Learned APP submitted that the trial court erred in rejecting the evidence of the fingerprint expert. The fingerprint expert’s evidence clearly establishes the complicity of accused 3 in the incident in question. Learned APP submitted that learned Judge also did not discuss the evidence of chemical analyzer. He pointed out that human blood was detected on the full pant and half shirt of accused 1, on the full shirt of accused 3 and on the knife recovered at the instance of accused 1. This is an incriminating circumstance as against accused 1 and 3. Learned APP submitted that all the circumstances make a complete chain and no other hypothesis but that of the guilt of the accused is possible on the basis of evidence adduced by the prosecution. Learned