IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.213 OF 2000 Gundappa Yallappa Satiyal .. Appellant Versus The State of Maharashtra .. Respondent WITH CRIMINAL APPEAL NO.341 OF 2000 Sau.Shantabai Gundappa Satiyal .. Appellant Versus The State of Maharashtra .. Respondent Mr.Subodh S. Desai for the appellant in both the appeals. Mr.J.P.Yagnik, A.P.P for the respondent-State in both the appeals. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE ON WHICH ON WHICH ON WHICH SUBMISSIONS SUBMISSIONS SUBMISSIONS ARE ARE ARE HEARD. HEARD. HEARD. : 04th February 04th February 04th February 2009. 2009. 2009. DATE DATE DATE ON WHICH ON WHICH ON WHICH JUDGMENT JUDGMENT JUDGMENT IS IS IS PRONOUNCED. PRONOUNCED. PRONOUNCED. : 4th April 2009. 4th April 2009. 4th April 2009. JUDGMENT: JUDGMENT: JUDGMENT: . The Criminal Appeal No.213 of 2000 has been filed by the original accused No.2. Criminal Appeal No.341 of 2000 has been filed by the original accused No.3. (2) 2. The challenge is to the impugned judgment and order dated 17th December 1999 by which the accused No.2 was convicted for the offence punishable under section 397 of the Indian Penal Code and he has been sentenced to suffer rigorous imprisonment for ten years. The accused Nos.1 and 3 have been convicted for the offence punishable under section 394 read with section 34 of the Indian Penal Code and they have been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.5,000/- each. In default of payment of fine, they have been convicted to undergo sentence of imprisonment for three months. The accused No.2 was in jail from 20th December 2000. The perusal of the record shows that the accused No.2 was ordered to be released on bail on 05th September 2000. Time of one year was granted to the accused No.2 to deposit the fine amount from the date on which he is enlarged on bail. By order dated 12th August 2002, the bail granted in favour of the accused No.2 was cancelled as fine amount was not deposited by the accused No.2. Though bail was cancelled, the accused No.2 is absconding. As far as the accused No.3 is concerned, she was also enlarged on bail by order dated 05th September 2000. She was also directed to deposit fine amount within a period of one (3) year. By order dated 02nd December 2002 the bail was cancelled as fine amount was not paid by the accused No.3. By order dated 30th August 2004 this Court directed that the accused should be arrested. 3. After the case was adjourned for judgment, I called for report from registry as to whether the accused No.1 had preferred any appeal. The Court is informed that the accused No.1 has not preferred any appeal. 4. According to the case of the prosecution P.W.No.3 Babasaheb Dattu Patil was the owner of a truck. The truck was attached to Sairaj Transport Company at Shahupuri, Kolhapur. P.W.No.8 Sanjay was working as a driver and P.W.No.14 Pintu was working as a cleaner. 5. One Ketan Sharadchandra Mehta had purchased 200 bags of sugar on commission basis from Jawahar Sugar Factory at Hupari, Taluka Karveer, District Kolhapur. He intended to transport 100 bags out of the said 200 bags to M/s.Mohanlal and Company in Kalikat in Karnataka State. He engaged the said truck. He handed over all the necessary documents relating to the sugar bags to the driver of the said truck on 20th May 1999. (4) 6. After the said truck was engaged by Ketan Mehta, the driver P.W.No.8 and cleaner P.W.No.14 went to the house of P.W.No.3 and informed him about the hiring of the said truck by the said Ketan Mehta. From the house of P.W.No.3 the driver and cleaner proceeded by the truck to Jawahar Sugar Factory. The driver handed over necessary documents to the gate pass office of the said factory. P.W.No.5 Joti Khot who was working as security clerk entered all particulars such as date and time of entry of the truck in a register. He also entered other particulars such as registration number, engine number, chasis number of the truck as well as driving licence number of the driver P.W.No.8. Thereafter, the driver was allowed to take the truck inside the factory area upto a godown. The labourers loaded 100 bags of sugar in the truck. At the main gate, P.W.No.5 made necessary entries of the time of the exit and the truck was allowed to leave the main gate of the factory. It is stated that the truck entered the factory premises at 17.30 hours and left the factory area loaded with sugar bags at 17.40 hours. 7. After the truck was brought out of the main gate, P.W.No.8 driver stopped it for fixing tarpauline (5) sheet by ropes on the sugar bags. While he alongwith the cleaner P.W.No.14 were fixing tarpauline by ropes, the accused No.2 came upto P.W.No.8 and enquired about the place of destination of the truck. When P.W.No.8 disclosed to accused No.2 that he was proceeding towards Uchgaon, the accused No.2 represented that his relative was ill at Shiroli and therefore he alongwith his wife and brother were proceeding towards Shiroli to meet the ailing relative. The accused No.2 requested the said P.W.no.8 Sanjay to allow them to travel by the said truck. P.W.No.8 acceded to the said request. Thereafter the accused No.2 entered the cabin of the truck. Accused Nos.1 and 3 also entered the cabin of the truck. Accused No.3 was carrying a bag with her. 8. At about 19.00 hours, P.W.No.8 started driving the truck by Hupari-Kolhapur road towards Uchgaon, Kolhapur. The accused No.2 informed P.W.No.8 that he was working as a driver of the jeep of a Sugar Factory and was drawing monthly salary of Rs.2,000/-. The accused No.2 was occupying the seat behind the driver’s seat, next to him accused No.1 was sitting and next to accused No.1, the accused No.3 Shantabai was sitting. The accused No.3 was sitting behind Pintu, the cleaner (P.W.No.14). While the truck was passing through (6) village Kodoli, the accused Nos.3 and 1 exchanged their seats. While the truck was passing near MSEB sub-station situated near village Mudshingi, the accused No.2 got up from his seat and threw acid on the driver i.e P.W.No.8 Sanjay over his head. He pushed P.W.No.8 out of the running truck and started driving the truck. At that time the accused No.1 threw chilli powder on the face of the cleaner and pressed the said Pintu down on the floor of the cabin and he totally immobilised the said Pintu. After about half an hour, the accused pushed P.W.No.14 from the running truck while the truck was on Vasagade-Sangavne road and drove away the truck with the sugar bags loaded therein. 9. The P.W.No.8 Sanjay sustained acid burns on left side of his face, left side of his body, both arms, both eyes and on his head. His clothes were burning. After he was thrown out, the P.W.No.8 removed clothes on his person which were burning. He also removed wrist watch which had sustained damage by acid and threw the said articles at the spot. He ran towards the MSEB sub-station and started shouting. P.W.No.1 was on duty at the said sub-station as a watchman. P.W.No.8 informed P.W.No.1 Vijay about the incident and requested P.W.No.1 to allow him to contact his employer on (7) telephone. The P.W.No.1 called other persons working in the sub-station and in their presence allowed the P.W.No.8 to enter the sub-station. He narrated the entire incident to the persons present there. A telephone operator working in the said sub-station secured telephone number of his employer Babasaheb and gave the message. The message was received by P.W.No.2 Anil who is the brother of Babasaheb. Anil went to the house of one Raghunath where Babasaheb was sitting and informed him about the incident. Thereafter, P.W.No.3, Anil and Raghunath rushed towards the sub-station by a jeep owned by Raghunath. They noticed that P.W.No.8 was present at the sub-station who had sustained burn injuries over his entire body. P.W.No.3 Babasaheb took him to C.P.R. hospital and got him admitted. 10. P.W.No.14 after he was thrown out walked towards village Vasagade. He met a person who was plying a moped. After he narrated the incident to the person, he brought Pintu at village Vasagade. He narrated the incident on telephone to P.W.No.2 Anil who had just returned from C.P.R hospital. Thereafter, P.W.No.2 visited village Vasagade. After reaching the village he learnt that the villagers had already sent P.W.No.14 at his home at Uchgaon. P.W.No.2 Anil went back to his (8) house where P.W.No.14 Pintu had already reached and took Pintu to police station at Gandhi Nagar where complaint was lodged. 11. The offence was registered and investigation was started. On 20th May 1998 the police received a telephone call from one Mrs.Seema that 5 to 6 persons have thrown acid on person employed on her truck and have taken away the truck. 12. On 21st May 1998, a police constable attached to police station at Kurundwad, Taluka Shiroli, District Kolhapur received a wireless message about the incident. On the very day at about 10.30 a.m. the Head Constable Patil received a phone call from an informer that in village Abdullat 20 sugar bags have been unloaded from red colour truck at the house of Mhasu Kamble at about 2.40 a.m early in the morning. Head Constable visited the said village. Head Constable Patil alongwith other Constables started proceeding towards Patil Nagar area. When they reached S.T. bus stand the informant pointed out towards one person and stated that the said person was amongst the persons who was involved in the offence. Head Constable Patil apprehended the said person who disclosed his name as Bassappa (accused No.1). The case (9) of the prosecution is that he admitted his involvement in the offence and therefore he was arrested. At the instance of accused No.1, 20 bags of sugar kept in the house in village Abdullat was recovered. At the instance of accused No.1, 80 bags of sugar were recovered from a house at Ichalkaranji. A truck was parked near the northern wall of the said house. It was found that the registration number of the said truck was changed. The inspection of the cabin of the truck showed the stains of acid. 13. P.W.No.14 Sanjay had sustained 70% superficial deep burn injuries. From C.P.R hospital he was transferred to the Mission hospital at Miraj. He remained as indoor patient in the said hospital for two and half months and underwent various surgeries. 14. On 13th June 1998 identification parade was conducted where the witnesess identified accused No.1. On 20th December 1998, the accused Nos.2 and 3 were arrested. Test identification parade was held thereafter where P.W.No.14 and P.W.No.8 identified the accused persons. 15. It appears that the defence of the accused was (10) simply of denial. The learned counsel for the appellant who has been appointed to espouse the cause of the appellant in these appeals has taken me through notes of evidence and other material on record. He submitted that the prosecution has not established their case. He submitted that going by the evidence of P.W.8 Sanjay, it is very difficult to accept that P.W.8 Sanjay and P.W. 14 were in a position to see the persons sitting in the cabin of the truck. He submitted that the medical evidence does not corroborate the evidence of P.W.8 Sanjay. He submitted that even according to P.W.19 Chougule one Seema Patil informed him on telephone that about 5 to 6 persons were sitting in the cabin of the truck. He submitted that in the prosecution has not ruled out the possibility of eye witnesses getting an opportunity to see the accused before the identification parade. He submitted that the newspaper photographs of the accused were published before the date on which the identification parade were held and therefore the evidence of test identification parade is meaningless. He submitted that the material witnesses have not been examined. He submitted that the entire prosecution case is doubtful. He submitted that this was a case where serious doubt was created regarding the identity and consequently the involvement of the accused in the case (11) and they were entitled to benefit of doubt. The learned A.P.P has supported the impugned Judgment and order by pointing out that the evidence on record clearly establishes the guilt of the accused. 16. I have carefully considered the submissions and perused the notes of evidence. 17. It will be necessary to refer to the evidence of P.W.8 Sanjay. He stated that incident took place on 20th May 1998. He was working as a driver on a truck bearing no.MH-09-Q-5662 which was owned by Babasaheb Dattu Patil. On 20th May 1998 the said truck was attached to one Sairaj Transport Company. On the relevant day, the said company had handed over the relevant documents to him and had directed him to load 100 bags of sugar from Jawahar Sugar Factory and to carry them to Calicut in Kerala State. He then went to the owner of the truck and informed him that he has received a fare to Calicut. He therefore proceeded with the truck to the Jawahar Sugar Factory and got the bags loaded in the truck 18. Thereafter, he has referred to incident in paragraph 3. The relevant part of the paragraph 3 reads (12) thus : "3. After bringing the truck out of the factory premises I stopped it and started tying the tarpauline and the ropes etc. over the sugar bags. At that time, the person sitting in the accused’s dock (the witness points out the accused no.2 Gundappa) came to me and say to me that his grand-father is ill at Shiroli and requested me to take him to Shiroli and also told me that his wife and brother are also accompanying him. The accused Gundappa then sat in the cabin of my truck and thereafter, the accused Basappa and accused Shantabai came to my truck and sat in the cabin (witness points towards the accused no.1 Basappa and accused no.3 Shantabai sitting in the accused’s dock). It was a truck of LP-1613 model. The accused Gundappa was sitting by my side next to him accused no.1 Basappa was sitting and after him the accused Shantabai was sitting and lastly the cleaner of the said truck namely Pintoo was sitting in the said cabin. Thereafter, I started my truck and started driving it towards Kolhapur via Hupari road. It was 7.00 p.m. at that time. The accused persons and I were talking with each others while I (13) was driving the truck. The accused no.2 Gundappa told me that he is working as a driver of the jeep of the said Sugar Factory. We reached near village Kodoli. After we reached near village Kodoli, the accused Shantabai sat near accused Gundappa and accused Basappa sat near the cleaner of the said truck. They shifted their places while the truck running. After I pass the Electric Sub Station, the accused Gundappa threw acid on me. After he threw acid on me, I jumped out of the truck. The accused persons took away my truck, I started running towards the sub station of M.S.E.B. I sustained acid-burn injuries over the left side of my face, my left eye, the left side of my body, both the arms and hands and over my head. Due to the acid, my cloths were also burning. I removed my clothes including my banian and then ran towards the sub station of M.S.E.B. After reaching near the main-gate of the said sub-station, I started shouting. On hearing my shouts, the watchman of the said sub-station came and asked me as to what has happened. I narrated the incident to the said watchman. I requested the said watchman to telephone my master. Thereafter, the watchman went running and called his officers. I gave the (14) telephone number of my master and thereafter, the telephone number of my master and thereafter, those persons telephoned my Master. I was made to sit there. Within 10 to 15 minutes my Master came there alongwith his brother and friend in one jeep. They took me to C.P.R.Hospital, Kolhapur. I was admitted in C.P.R. Hospital, Kolhapur and there I was treated. I was kept in the C.P.R. Hospital, Kolhapur throughout the said night. At about 1.00 a.m. in the night, my statement was recorded and on the next day, I was shifted to the Mission Hospital, Miraj. Two or three days thereafter some officers from Gandhinagar Police Station came to the Mission Hospital, Miraj and they recorded my statement. I was admitted in the Mission Hospital, Miraj for three months. At Mission Hospital, Miraj, I underwent plastic surgery at the places of acid-burn injuries. Thereafter, I was discharged from the said hospital." 19. He thereafter proceeding to state that identification parade was held in Bindu Chowk Sub Jail wherein he identified accused nos.2 and 3 (appellants in these appeals). He stated that in a separate identification parade in Kalamba Central Jail, he (15) identified accused no.1. He stated that accused no.2 had thrown acid over his person. He identified the pieces of shirt on his person at the time of accident. In the cross examination he admitted that on right side of the cabin of the truck there was a driver’s seat and next to it on the left side, there is a gear box and engine bonnet and beyond it, there is a cleaner’s seat. Behind the driver’s and cleaner’s seat, there is a long bench for carrying passengers. He admitted that when there is darkness, the drivers put off the lights in the driving cabin. He stated that if the driver wants to talk with the persons sitting on the backside bench, he has to turn towards his back side. He admitted that at the time of darkness if the light in the cabin is switched off, the persons sitting on the back side bench in the truck-driver’s cabin cannot be recognized. He admitted that all three of them sat on the back side bench in the cabin. He stated that it took about 7 to 8 minutes to reach Pattankodoli. He admitted that it was 8.00 p.m. when he reached near the Mudshingi sub station, one bicycle rider came from the opposite direction. He admitted that after the said bicycle rider passed his truck, he had bent out of the cabin to see whether the said bicycle rider had passed his truck or not. He admitted that the persons who sat in the (16) cabin disclosed their surname as "Koli". He stated that he was unable to recollect whether he had given the description of the of the persons who had climbed in his truck. He stated that he had given the description of the woman sitting in his cabin as wearing a white saree and having tied a white handkerchief over her head. In the cross examination made by the Advocate for the Respondent nos.2 and 3, he admitted that after reaching Bindu Chowk for the purpose of test identification parade, he noticed that there was one officer sitting there. He was not aware whether the said officer was from jail or from any other department. 20. At this stage, it will be necessary to go through the evidence of P.W.14. P.W.14 Pintoo Popat Mane was working as a Cleaner at the relevant time. He also described as to how 100 bags of sugar were loaded in the truck. He described the sequence of events after truck came out of the sugar factory. He stated thus : "....It took about half an hour to 45 minutes to cover the sugarbags. Thereafter, the driver of the said truck started the truck. After we drove the truck for short distance, one person came towards our truck. The said person came near our truck when it (17) reached near a canteen which is situated inside the last main-gate of the said sugar factory. He asked the driver Sanjay as to where the truck was going. Sanjay told him that the truck is going Uchgaon. The said person said that his relative is ill and therefore, he has to go to Shiroli. Thereupon the said person climbed in the cabin of the said truck. He told us that his wife and brother are also standing outside the said factory area and they also have to travel. Thereafter, we cross the gate of the said factory. We stopped the truck outside the factory area and there, one more person and a woman climbed in the cabin of the truck. The first person sat behind the driver’s seat. The next person sat near him and the woman sat on the seat behind my seat. Said woman was carrying a bag. Then the driver started the truck and started driving towards Kolhapur side. The driver Sanjay asked those persons as to what work they are doing. Thereupon the person sitting behind the seat of the driver said that he is working as a driver on the jeep of the said sugar factory. He also said that he is getting salary of Rs.2000/- per month. In this manner, driver and the said person were talking with each others when our truck was going (18) on. After our truck proceeded for some time the said woman and the person sitting in the middle exchanged their seats. We crossed one electric sub station at village Mundshingi. At that spot, the person sitting behind the seat of the driver got up. Thereupon, my attention was attracted to him. I heard the shouts of driver Sanju as "Aai gan melo". After Sanju shouted, the person who got up pushed Sanju outside the truck. The person sitting behind my seat, threw chilly power over my face and pushed me down on the floor of the truck cabin. The person who pushed the driver outside the truck, started driving the said truck. At that time, the truck was going on but it had slowed down. After sometime, the said woman tied handkerchief over my face. I was kept in this position for about half an hour, during which the truck was going on. Thereafter, the speed of the truck was reduced and I was also thrown out of that truck and the said truck went away further. It was Vasagade road where I was pushed out of the truck. After the truck went ahead I started walking towards village Vasagade. When I walked half the distance, one person on M-80 Moped came and took me to Vasagade. I narrated him the incident..." (19) 21. He identified the the person who was sitting on the rear side of the driver as accused No.2 sitting in the Court hall. He stated that it was was the accused no.1 who was sitting in the dock who threw the chilli powder on his face. He identified the accused no.1. He also identified the accused no.3. Thereafter, he deposed about the identification parade held in Sub-Jail, Bindu Chowk, Kolhapur. He stated that he identified the accused no.1 who had thrown chilli powder on his face. He stated that he was again called upon to identify the accused persons 3 to 4 months prior to recording of his evidence. His evidence was recorded on 10th August 1999. He stated that during the identification parade, he identified the accused Shantabai. This witness was also cross examined on the aspect of loading 100 bags of sugar. In the cross examination, he admitted that the talks were going on between the driver and the accused persons. He stated that he has not stated in the F.I.R. that the truck came near M.S.E.B sub-station at 8.30 p.m. 22. On the background of this evidence, it will be necessary to refer to the evidence