1 Cr.Appeal23.2004.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.23 OF 2004 KJ Bashir Papamiya Sayyed ) Age-39 Years, Occ. Rickshaw Driver ) R/o. Gavar Fata, Tal.Baramati ) Dist. Pune (Yerawada Central Jail, Pune))....Appellant Vs. The State of Maharashtra )....Respondent ---- A N D CRIMINAL APPEAL NO.952 OF 2003 Manoj Dalitchand Jain ) Age-30 Years, Occ. Business, ) Residing at Main Road, Baramati, ) Dist.Pune )....Appellant Vs. The State of Maharashtra )....Respondent ---- Mr. A.P.Kulkarni for the appellant in Criminal Appeal No.23 of 2004. Mr.S.R.Chitnis Sr. Advocate i/by S.S.Kulkarni for the appellant in Criminal Appeal No.952 of 2003. Ms.V.R.Bhosale APP for the Respondent/State. ---- 2 Cr.Appeal23.2004.sxw CORAM : P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ DATE : 28.7.2011 JUDGMENT :- ( PER : MRS.MRIDULA BHATKAR,J) 1 In both these appeals, judgment & order dated 31.7.2003 passed by the Adhoc Additional Sessions Judge, Pune, convicting the appellants is challenged. Accused No.1 is appellant in Criminal Appeal No.23 of 2004 and accused no.2 is appellant in Criminal Appeal No.952 of 2003 (In order to avoid confusion, these appellants hereinafter are referred as accused nos.1 & 2 respectively). 2 Accused no.1 is held guilty for the offences of murder and theft and accused no.2 is held guilty for the offence of receiving stolen property. Accused no.1 is convicted for the offence of murder punishable under Section 302 of IPC and sentenced to suffer life imprisonment and 3 years simple imprisonment under 3 Cr.Appeal23.2004.sxw Section 382 of IPC and also 3 years simple imprisonment for the offence punishable under Section 411 of IPC. Accused no.2 is sentenced to suffer R.I. for 3 years under Section 411 of IPC. 3 In the early morning at around 5.00 A.M on 24.9.2001 at Dengle Bridge, Shivaji Nagar, Pune, deceased Ishwarlal Rana who was a resident of Chalisgaon, boarded. He was a patient of high blood pressure and other ailment for which he used to take treatment of the Doctor in Pune and so used to come once or twice in a month from Chalisgaon to Pune. His married daughter was residing in Pune. On 23.9.2001, he reserved a seat in a bus of Raj Travels and as he wanted to come to Pune to give gift of silver lamp (Niranjan) and gold pendant to his son-in-law and daughter on the religious occasion (Adhik Mas), he along with these valuable articles and cash of Rs.5000/-, brief case and the clothes and his medical papers, boarded, came to Shivaji Nagar, Pune. Bus of Raj Travels which halted at Lok Mangal building at around 5.00 A.M on 24.9.2001. Deceased alighted from the bus, he took one rickshaw and started proceeding towards his daughter’s house. 4 Cr.Appeal23.2004.sxw However, as rickshaw reached at a quiet place, rickshaw driver stopped the rickshaw on the pretext of its non-functioning. Rickshaw driver tried to start rickshaw and requested deceased to help him by applying a chock to rickshaw, so that the driver could start it. As soon as deceased applied chock to the rickshaw, driver i.e accused no.1 took out iron rod which was kept below the seat and hit on the back side of the head of the deceased. He again hit him on his person, so that deceased became unconscious. Accused no.1 robbed gold chain, gold ring on the person of the deceased and took away brief case and the contents therein and fled away in rickshaw. In the morning at around 9.00 A.M deceased was found lying injured on the spot by the passers-by and the shop-keeper and it was immediately reported to the police. Police arrived on the spot and took the deceased to the hospital where he was treated but he succumbed to the injuries on the same day at around 2.00 P.M. 4 It is the case of the prosecution that daughter of the deceased made inquiry with the brother at Chalisgaon as the 5 Cr.Appeal23.2004.sxw father did not reach home. Son of the deceased then made inquiry to the office of the Raj Travels about his father. After few hours, the body of the deceased was identified and son of the deceased was communicated about the incident. The complaint which was given by his son was registered by the police. Police of the Deccan Gymkhana registered offence of murder and theft against the un- known persons. They conducted inquest and spot panchanama, recorded statements of the witnesses. Doctor opined that death was due to “shock and hemorrhage due to head injuries”. 5 It is the case of the prosecution that during the said period i.e 18.11.2001, number of offences committed in a similar manner were registered with the Crime Branch, Pune and so Investigating officer Mr.Dattatray Shripad Datar PW-27 has started investigation. At that time, he found that accused no.1 was arrested on 18.11.2001 in C.R.No.163 of 2001 by Head Constable of Lashkar police station and during the interrogation it was transpired that the alleged offence was also committed by accused no.1. Police therefore, obtained the custody of accused no.1 in C.R.No. 6 Cr.Appeal23.2004.sxw 387/2001 of Deccan Gymkhana police station. Police thereafter recorded supplementary statements of some witnesses. Police recovered articles pursuant to the panchanama drawn under Section 27 of the Evidence Act. Some gold ornaments which were stolen on the person of the deceased were sold to accused no.2 by accused no.1 and pursuant to the information given by accused no. 1, a gold ingot was seized by the police from accused no.2. Police arrested accused no.2 also. After completion of the investigation, police filed charge-sheet against the accused. Case was committed to the court of Sessions and accused were tried. Accused no.1 was charged for the offences punishable under Sections 302, 382, 379, Section 75 & section 404 of IPC and accused no.2 was charged for the offences punishable under Sections 404 and 411 of IPC. 6 Learned 1st Adhoc Sessions Judge, Pune convicted both the accused. Hence, these appeals. 7 The present case entirely stands on the circumstantial evidence. The prosecution has in all, examined 27 witnesses. 7 Cr.Appeal23.2004.sxw Learned Counsel appearing for the appellants has not challenged that the deceased traveled from Chalisgaon to Pune by Raj Travels and died on 24.9.2001 at around 2.00 P.M due to shock and hemorrhage due to injuries especially the head injury. Thus the evidence of the concerned witnesses on this point is not required to be assessed. Prosecution has proved the corpus delicti. 8 The case of the prosecution against accused no.1 is based on evidence of PW-6 Dilip Sitaram Gujar, a cleaner of the bus of Raj Travels and four discovery panchanamas and four panchas through whom these panchanamas were proved and the evidence of Investigating officer Mr.Dattatray Datar PW-27. Complainant Sanjay Inshwarlal Rana has given the list of the articles which his father Ishwarlal carried along with him when he left Chalisgaon for Pune. One gold chain/neckless and one gold ring with black square stone were on his person. He carried cash of Rs.5000/-. Gold pendant, silver lamp (Niranjan), laboratory cards and other medical papers with him. Inquest panchanama Exh.79 discloses that these all articles including the gold ornaments were not found 8 Cr.Appeal23.2004.sxw on the person of the deceased or near him. Therefore, it is to be safely concluded that the assailants assaulted the deceased in order to rob him and thus the prosecution has also established the motive of the assailants i.e to commit a theft. 9 Learned Counsel appearing for the appellant no.1 submitted that the evidence of the prosecution is shaky and doubtful. Police have arrested and tried the accused only on the basis of suspicion and planted evidence of the recovery of the articles. He argued that evidence of PW-6 Dilip Sitaram Gujar cannot be believed as he had no opportunity to see the face of the accused in the early hours of morning at 5.00 A.M. He pointed out that the evidence of this witness that deceased made query to him about the timing of the return trip of the said bus and so he could see the face of the rickshaw driver in the light of the meter of that rickshaw is not acceptable. He argued that test identification parade is not conducted by the police after the arrest of the accused. The identification of the accused by witness in the Court after one year i.e on 6.11.2001 is highly impossible. Learned Counsel further 9 Cr.Appeal23.2004.sxw submitted that prosecution could not bring any evidence in respect of the identification of the accused though feeble attempt to introduce a theory of last seen together is made. On the point of recovery panchanamas, he submitted that the recovery of gold articles from one dilapidated old house is doubtful as place was accessible to all the public. He pointed out discrepancies in the evidence of the witness PW-19 Vilas Mohite that though said panchanamas Ex.53, 53-A were drawn on 10.12.2001, in the cross-examination, the witness has admitted that after the recovery, the police and all the persons had gone to the Jeweller’s shop for valuation of the seized articles. He pointed out that receipt of such valuation was dated 12.12.2001 and if such valuation was done in the presence of panch on the same day after the recovery and the receipt is of 12.12.2001 then the said receipt falsifies that the recovery has taken place and the panchanama under Section 27 was drawn on 10.12.2001 which is anti-dated. He further argued that recovery of the other gold articles is also not proved by the prosecution. Panchanama Exh.67 of the recovery of gold ingot which was received from accused no.2 is doubtful. 10 Cr.Appeal23.2004.sxw 10 Accused no.2 is charged for receiving the stolen property. Learned Counsel for the accused no.2 has submitted that in fact, there is no evidence against accused no.2. Evidence of PW-24 Eknath Nikam panch is a sole witness against accused no.2. Learned Senior Counsel Mr.Chitnis while relying on number of rulings, has submitted that the learned Judge of the Sessions Court has unfortunately relied on the evidence of the witness which is in fact inadmissible as per the provision of Section 27 of the Evidence Act. He submitted that evidence of PW-24 Eknath Nikam even as it is accepted, it only proves the fact of the knowledge of accused no.1 of the place where the ornaments were found. In order to support his case, he relied on following rulings. Kottaya Vs. Emperor (AIR (34) 1947 Privy Council 67), Ramkishan Mithanlal Sharma Vs. State of Bombay (AIR 1955 SC 104), Prabhoo Vs. State of U.P (AIR 1963 SUPREME COURT 1113), Bheru Singh Vs. State of Rajasthan (1994) 2 Supreme Court Cases 467) & Pandurang Kalu Patil Vs. State of Maharashtra (2002) 2 Supreme Court Cases 490). 11 Cr.Appeal23.2004.sxw 11 He further pointed out that the police recovered a gold ingot and thus the identification of the article which is alleged to be stolen from the person of the deceased i.e. Gold ring with square black stone is not possible. He therefore, submitted that the prosecution could not prove the offence that accused no.2 has received stolen property and has committed offence under Section 411 of the IPC. 12 Learned Counsel appearing for accused no.1 adopted the arguments of learned Counsel for accused no.2 on the point of recovery under Section 27 of the Evidence Act. He pointed out that though prosecution has tendered evidence of recovery of weapon i.e iron rod at the instance of the accused, and the rod was found blood stains, the report of the blood stains was not specific for want of grouping of the blood stains found on the weapon. He further submitted that the place from where iron rod was recovered, it was accessible to the police. He submitted that prosecution could not prove the case against the accused and the 12 Cr.Appeal23.2004.sxw conviction against the accused is illegal and deserves to be set aside. 13 Per contra, learned APP Mrs.Bhosale for the State, has submitted that though the case is based on circumstantial evidence, Court is required to take into account the cumulative effect of circumstantial evidence against the accused. She submitted that accused is a habitual offender. He had a history of committing offences of the similar type. He was arrested in C.R.No.163 of 2001 and thereafter the investigating officer obtained his custody in the present C.R No.387 of 2001. She relied on the evidence of PW-27 Dattatray Datar and pointed out that nearly, 13 crimes were committed in the same manner and were reported to the police during the relevant period. PW-27 Dattatray Datar was entrusted all these matters for the investigation and he himself was investigating two cases including the present one. She submitted that in the course of investigation of all these crimes, it was transpired that accused no.1 has a role in the commission of the present offence and so his custody was 13 Cr.Appeal23.2004.sxw taken. Learned APP further submitted the background deposed by PW-27 Dattatray Datar is an incriminating circumstance against the accused. She submitted that prosecution has examined PW-6 Dilip Gujar and proved all the recovery panchanamas through the panchas and also produced seized articles before the Court. She heavily relied on the evidence of PW-6 Dilip Gujar. She argued that PW-6 Dilip Gujar has an opportunity to see the face of the accused in the light of rickshaw meter and he has deposed that at the time PW-6 Dilip Gujar when walked upto the rickshaw with the deceased, deceased made query about the return trip of the bus. This is the reason of PW-6 Dilip Gujar identifying the accused in the court. She submitted that on the basis of the evidence of PW-6, prosecution has proved the identification of the accused. She further argued that recovery of the stolen articles i.e. Gold chain, niranjan from dilapidated old house is a material circumstance. She pointed out that panch witness PW-24 Eknath Nikam has deposed that he had gone to Baramati and gold ingot was recovered from accused no.2 She also submitted that panchanama of the recovery of the clothes i.e article-14 is proved 14 Cr.Appeal23.2004.sxw by PW-25 Mr.Prakash Dhakane and the white shirt which is marked at article-14 of having a label of a Tailor from Chalisgaon and this shirt was recovered on 19.11.2001 from the hut of the accused. Prosecution has proved that shirt article-14 belongs to the deceased and it was stitched by Tailor from Chalisgaon. She further pointed out that iron rod article-10 was recovered under recovery panchanama which is marked as Exh.65 and it was proved through PW-23 Maruti Gaikwad. 14 Learned APP on the point of appreciation of evidence under Section 27, further relied on Bhavsingh Vs. Keshar Singh (AIR 2003 SUPREME COURT 3199), Earabhadrappa Vs. State of Karnataka (AIR 1983 SUPREME COURT 446), Sanatan Naskar Vs. State of West Bengal (2010) 8 Supreme Court Cases 249), C. Muniappan Vs. State of Tamil Nadu (2010) 9 Supreme Court Cases 567, head note-C, on the point of absence of test identification parade is not necessarily fatal. She relied on Haribhajan Singh Vs.The State of J & K (AIR 1975 SUPREME COURT 1814). On the point of admissibility of the evidence of identification in the court 15 Cr.Appeal23.2004.sxw and is not affected for want of evidence of earlier identification in test identification parade, she relied on George Vs. State of Kerala (AIR 1998 SUPREME COURT 1376). 15 She submitted that on article-10 iron rod, as per C.A report human blood was found though the C.A could not give specific opinion about its grouping. The finding of human blood on the weapon itself is an incriminating circumstance. In support of her submission, she placed reliance on Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh (1991) 3 Supreme Court Cases 627. 16 The important and main question is whether the finding given by the Sessions Court that accused no.1 was the assailant and has committed the crime, is correct or not, is to be answered. 17 PW-6 is the only witness on the point of identification of the accused. This sole witness says that he had seen the accused and the deceased going together in a rickshaw at around 5.00 A.M. He neither claims previous acquaintance with the accused nor did he 16 Cr.Appeal23.2004.sxw say that he knew him by face. As per his evidence when he looked at the deceased to answer the question of the deceased about the return trip of the bus, he had an opportunity to see the face of the deceased in the light of the rickshaw meter. We do not find any falsity in the evidence of this witness so far as his evidence in respect that on 12.1.2004 deceased boarding rickshaw and he while answering the question, could see the face of the accused in the light of the rickshaw meter. We accept his evidence because his statement was recorded by the police on the same day i.e 12.1.2004 at night and it appears that he has stated all these facts and so he has deposed in the Court and therefore, no omission or contradiction are seen in his cross-examination. However, 2nd part of his testimony is required to be scrutinized as it is on the point of identification of the accused. We question ourselves, is it possible for any person to remember the face of the person, one year after the date of seeing the face. 18 If the witness has chance to look at the accused not for long time but it was just a glance or sweeping look, then witness may 17 Cr.Appeal23.2004.sxw not remember the person’s face after lapse of time. The impression of that face will remain in his memory definitely for some time but it will fade soon. If special incident takes place related to that face and it is immediately known to the witness, then witness will definitely try to recall that face of the accused which he had seen. He will try to remember and that impression may remain in his memory for a longer period. However, how long a person may remember again depends on the facts and circumstances of the case. When it is said facts and circumstances of the case, then on the point of identification the factors involved are :- (a) Opportunity to see (b) The length of period of the said opportunity (c) Any special mark on the face (d) Special incident happened related to the face of that person (e) Ability of the witness to perceive (f) Retaintion power to remember the face (g) Second opportunity to refresh his memory 18 Cr.Appeal23.2004.sxw 19 In the present case, a question was put by the deceased to the witness regarding the return trip. Naturally, the witness was answering to the question put by the deceased and therefore, he was definitely attentive to the deceased and not the accused. Accused did not make any query. Therefore, the degree of the perception of the face of the accused to the witness was definitely not higher side but it was lower side. Therefore, the impression of the face in his memory also cannot be deep. There was no special reason for the witness to make a conscious effort to store the said face in his memory. Definitely, the witness tried to recollect the face of the rickshaw driver at night when police told him that the said passenger was found injured and succumbed to death and so his statement was recorded. In examination-in-chief, the witness has not stated that he gave any specific description about the looks of that rickshaw driver to whom he had seen going with the deceased. If the accused would have been arrested within couple of days and identification parade would have been taken, then his evidence would have definitely found credible. However, after the arrest of the accused, no TIP was conducted. Identification of the 19 Cr.Appeal23.2004.sxw accused in the dock is also to be given weightage. However, it depends on facts of each case. In the present case, we do not find any good reason for the witness to remember the face of the rickshaw driver i.e of the accused and therefore, his evidence on the point of identification of the accused as a rickshaw driver is doubtful. Possibility of mistaken identity cannot be over-ruled and hence his evidence is not believable. 20 Learned Sessions Judge has committed gross error in appreciating evidence of this witness. If this evidence fails, then the chain of the circumstantial evidence of the prosecution gets un- connected. 21 Prosecution has proved the recovery of some articles of the deceased i.e Niranjan from the dilapidated house though it was accessible to the public. Articles were taken out from a secret place as they were hidden. The prosecution has proved that Niranjan belonged to the deceased and accused had knowledge of the place where this Niranjan was secretly kept. Panchanama was 20 Cr.Appeal23.2004.sxw drawn on 10.12.2001 and thereafter they went to the valuer a jeweler shop to value the articles and the Jeweler gave receipt of 10.12.2001. This fact does not dislodge in the panchanama because the witness was quite consistent in his examination-in- chief and also in cross-examination about the actual discovery at the instance of the accused. There might be a wrong date on the receipt and the receipt might have been subsequently obtained by the police. 22 Similarly the discovery of shirt of the deceased having label of Chalisgaon Tailor is also proved by the prosecution. Recovery of the steel rod and a gold ingot from accused no.2 is also found reliable. 23 Learned Advocate of both sides have relied on the landmark judgment of Kottaya (supra) on the point of discovery. We have also considered the view taken by the Apex Court in the Judgment of Sanatan Naskar (supra) wherein while interpreting section 27 of the Evidence Act, Apex Court has held that not only the 21 Cr.Appeal23.2004.sxw knowledge of the place from where the articles are discovered can be proved but the object discovered is also a fact to be proved under Section 27. Thus even though we accept that all the panchanamas were proved by the prosecution and the fact of discovery of these articles is also proved, yet prosecution failed to establish the case of murder or even the culpable homicide amounting to murder against the accused. In the present case, discovery panchanamas do not complete the chain of the circumstantial evidence. It leaves room for the possibility that other than the accused, someone might have committed murder of the deceased. Hence accused is entitled to benefit of doubt for the offence under Section 302 of the IPC. 24 Apart from Section 302 of the IPC, accused is charged and convicted under Section 382 of IPC and sentenced to suffer simple imprisonment for three years. Section 382 of IPC speaks of extortion. In the present case, the prosecution has proved the recovery of stolen article i.e. silver lamp (Niranjan) from the dilapidated house, which is proved through PW-19 Vilas Mohite. 22 Cr.Appeal23.2004.sxw The said recovery of silver lamp (Niranjan) is from Baramati. The place from which the silver lamp (Niranjan) was recovered was exclusively within the knowledge of the accused. On the basis of the evidence of the Complainant, the prosecution has established that the deceased was carrying that silver lamp (Niranjan) before he was killed. However, prosecution could not bring the evidence to show that the accused has put intentionally the person in fear and thereby compelled him to deliver silver lamp to him and therefore, accused cannot be held guilty for extortion under Section 383 of the IPC. 25 The accused Nos.1 & 2 are punished under Section 411 of the IPC which section states that whoever dis-honestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, he shall be punished. There is no evidence to show that accused no.2 had knowledge or reason to believe