1 Cri-A-558-512-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 558 OF 2004 WITH CRIMINAL APPEAL NO. 512 OF 2004 CRIMINAL APPEAL NO. 558 OF 2004 1. Gorakh Pandurang Mare ) Age 20 yrs, occ-agriculturist, ) R/o at Shirgaon, Tal.Mulshi, ) Dist. Pune, now at Ramnagar ) Zopadpatti, Warje Malwadi, Pune. ) 2. Lahu Maruti Gaudse, ) Age 21 yrs, occu: Painting and ) Agiculturist, R/o Mohari, ) Tal. Mulshi, Dist. Pune. ).. Appellants both accused in Yerwada Central )(Org.accused Nos. 1 & 2) Prison. ) Versus The State of Maharashtra .. Respondents None for the appellants. Smt. V.R.Bhosale, APP, for the Respondent - State. CRIMINAL APPEAL NO. 512 OF 2004 Anil @ Baba @ Narayan ) Jaywant Kandare, ) Age 28 years, occ: Rickshaw Driver, ) R/o. Kondawale, Tal. Mulshi, Dist. Pune, ) Present address at Shastinagar Sagar ) Colony, Mokate Chawl, Kothrud, Pune. ) (At present detaied at Yerawada Central ) 2 Cri-A-558-512-04.sxw Prison) ).. Appellant (Orig.accused no.4) Vs. The State of Maharashtra Respondent Shri S.V.Kotwal, Advocate for the appellant. Smt. V.R.Bhosale, APP, for the Respondent - State. CORAM: J.H.BHATIA,J. JUDGMENT RESERVED ON 22.6.2010 JUDGMENT PRONOUNCED ON: 16.07.2010 JUDGMENT 1. Both these Appeals may be disposed of by common Judgment as the accused persons have challenged the same Judgment and order whereby the accused Nos. 1, 2 and 4 were convicted for the offence punishable under Section 394 read with Section 397 and Sec. 34 IPC and were sentenced to undergo R.I. for eight years and to pay fine of Rs.5,000/- each by the learned 13th Adhoc Assistant Sessions Judge, Pune, in Sessions Case No.174 of 2001. 2. The prosecution case, in brief, is that PW-1 Dattatraya Shinde was on duty at a petrol pump known as "Poonam Automobiles" situated at Mangadewadi, Katraj, Pune, during the night between 16th and 17th December, 2000. There were several staff members present at the petrol pump. At about 4 or 4.30 a.m., on 17.12.2000, a Tata Sumo of white colour bearing No. 3 Cri-A-558-512-04.sxw MH-15/AH-2345 came to the petrol pump. Besides the driver, two more persons were present in the vehicle. The driver asked PW-1 Dattatraya to fill in diesel of Rs.800/-. Accordingly, he filled diesel. During that time, other two persons also came out from the vehicle and all these three persons, who were identified as accused Nos. 1, 2 and 4, beat PW-1 Dattatraya and asked him as to where was the manager and where were the keys. The accused No.4, who was the driver, assaulted on the back and legs of Dattatraya with a Tommy or an iron rod. They also disconnected telephone lines. Certain other workers, who were sleeping, woke up due to kicking and due to enquiry about the keys of the Chest or treasury. Accused Nos. 1 and 2 were also armed with pistols. The accused persons moved the Chest upto the door of the cabin, but as it was very heavy, they could not move it out and they forced the other workers to help them in removing the Chest and loading in the vehicle of the accused persons. Then the accused persons went away by the vehicle towards Pune side. After the incident, the matter was reported to the police. Exhibit 128 is the FIR lodged by PW-1 Dattatraya. During investigation, in all four persons were arrested by the police. They included accused No.3, who was acquitted by the trial Court. During investigation, accused Nos. 1,2 and 4 were identified by the witnesses from that petrol pump. The Chest was recovered. Different amounts of cash were recovered at the instance of the accused persons. After investigation, charge-sheet was field and then the case 4 Cri-A-558-512-04.sxw was committed to the Court of Sessions. On behalf of prosecution, in all 19 witnesses were examined. Several documents were placed on record. After hearing the parties, the trial Court convicted and sentenced accused Nos. 1, 2 and 4 as stated earlier, while accused No.3 was acquitted for want of any evidence. 3. Accused Nos. 1 and 2 filed Criminal Appeal No.558/2004, while accused No.4 preferred Criminal Appeal No.512/2004. At the outset, it may be stated that Mr. S.M.Suryavanshi, Advocate, through whom the Appeal was filed by accused No.1 and 2 did not turn up at the time of final hearing of the Appeal. However, Mr. S.V.Kotwal, Advocate, for the accused No.4, on request of the Court, argued the case on behalf of the accused Nos. 1 and 2 also. 4. Heard Mrs. Bhosale,the learned APP and Mr. Kotwal, the learned Counsel for the accused. 5. Mr. Kotwal mainly contended that identification is not beyond suspicion and, therefore, cannot be relied. He also contended that the accused No. 2 was found in possession of a plastic pistol which cannot be treated as a deadly weapon. Similarly, accused No.4 had allegedly used a tommy or a rod for assaulting on the legs and lower part of the body and the manner in which it was 5 Cri-A-558-512-04.sxw allegedly used could have never caused death or grievous hurt. Therefore, accused Nos. 2 and 4 could not be convicted with help of Sec. 397. He contends that at the most, the accused Nos. 2 and 4 could have been convicted for the offence punishable under Section 394 read with Sec.34 IPC and the sentence awarded by the trial Court is very heavy. According to him, if sec. 397 could not be invoked, the trial Court could not have awarded such heavy sentence. 6. On the other hand, the learned APP contended that the accused Nos.1, 2 and 4 have been duly identified not only during trial before the Court, but also during test identification parade and this has been proved by the Special Executive Magistrate PW-3 Kantilal. She also contended that the tommy i.e. iron rod in the hands of accused No.4 could be treated as a deadly weapon which could cause death of a person and, therefore, Sec. 397 was rightly invoked by the trial Court. 7. Out of the 19 witnesses examined by the prosecution, PW-1 Dattatraya Shinde, PW-2 Ramesh and PW-17 Gorakh Hargude are the eye- witnesses about the incident. Evidence of these witnesses reveals that they were working on the petrol pump known as "Poonam Automobiles" at Katraj. PW-1 Dattatraya deposed that on 16.12.2000 at about 3.30 to 4 a.m. he woke up. At that time, a Tata Sumo Jeep came from Pune side to the petrol pump. He identified 6 Cri-A-558-512-04.sxw accused No.4 as driver of the Jeep. According to him, the driver came out from the Jeep and asked him to fill diesel of Rs.800/-. As per the instructions given by him, he filled diesel in the Jeep. While PW-1 Dattatraya was filling diesel, accused No.4 - the driver was standing just near his right side and two persons, who were sitting in the Jeep, got down from the Jeep and went to the back side of Dattatraya. One of those two persons pointed a revolver at the back side of PW-1 Dattatraya and the Jeep driver caught his waist. He was holding a tommy or an iron rod. They asked him as to where is the key of the treasury box or Chest. Dattatraya told him that key of the treasury box was not with him. On this, the jeep driver assaulted on the rear side of his legs and back with the said tommy and took him to the office. The other two persons, who had caught him, also led him towards the office. They asked PW-1 Dattatraya as to where the manager was. Accordingly, PW-1 Dattatraya showed him the place where the manager and the billing clerk were sleeping. The accused, who was holding a revolver, pushed him in the corner of the office and made him to stand there. . The jeep driver, who was inside the counter, disconnected the telephone wire and also assaulted near the ear of the billing clerk Santosh. One of them beat the manager and the billing clerk and two culprits made them stand by the side of Dattatraya. According to him, the treasury box or the Chest contained amount of Rs.1 lakh to Rs.1,25,000/-. The size of the box was 3 ft. in height and 4 ft. in width. The 7 Cri-A-558-512-04.sxw Treasury box could be removed by at least two persons. The person who was holding revolver was standing while the two other culprits, including the jeep driver, tried to move the treasury box and took it upto the door of the office. However, they could not take it out and therefore, he forced the two workers of the petrol pump to help them to take the treasury upto the jeep and then it was loaded in the jeep. He gave the number of the Sumo Jeep as MH-15 AH-2345. After that, the jeep went away towards Pune side. Dattatraya and other workers took the billing clerk to Katraj for medical aid, while the Manager Dhumal went to the police station which was 5 kms. from the petrol pump. PW-1 Dattatraya identified accused No.1, 2 and 4 before the Court as the culprits. According to him, accused No.2 Lahu was armed with revolver, while accused No.1 Gorakh was also present along with accused Nos. 2 and 4. 8. According to PW-2 Ramesh , there were 7 or 8 persons were on duty at the petrol pump. At about 4 to 4.40 a.m. he woke up due to dash given to him and he saw three persons; one was holding an iron rod and two were armed with pistols. One of the persons, holding pistol, asked him about the key of the treasury box. PW-2 told him that the key of the treasury used to remain in the adjacent hotel. After that, the person armed with the iron rod tried to push the treasury and brought it upto the door of the office. One of the persons having 8 Cri-A-558-512-04.sxw pistol cut the telephone wire. The person, armed with iron rod, assaulted him on his left arm with the rod and forced other two workers Hridyanath Nagvekar and Dilip Rau to lift the treasury and carry it to the jeep. As the treasury could not fit in the rear portion of the jeep, it was put in the open portion in the front or middle bench in the jeep and those 3 persons plied the jeep and ran away towards Pune Side. He also deposed that Santosh Bhondge, who was working as billing clerk, had sustained bleeding injury on the left ear due to assault. According to him, one of the workers, viz. Dhumal informed the owner of the petrol pump by telephone. PW-2 Ramesh identified the accused Nos. 1 and 2 as the persons who were armed with pistols and accused No.4 as the person who was armed with iron rod. He also identified the treasury box which was later on seized. According to him, after the incident, he went to the Police Chowky and then the injured persons were taken to the hospital for treatment and then they were taken back to the petrol pump. Police recorded the statements of the workers. 9. The evidence on record shows that accused Nos. 1 and 2 were arrested on 30.12.2000 and the identification parade was conducted on 16.1.2001 in the Yerwada Jail premises. PW-3 - Kantilal, who was working as senior Clerk in the Small Causes Court, was also appointed as Special Executive Magistrate since the year 1999. As per the evidence of PW-3 Kantilal, on 12.1.2001, a 9 Cri-A-558-512-04.sxw requisition letter was given to him by API Bere of Sahakar Nagar Police Station to conduct test identification parade for two accused persons. Accordingly, on 16.1.2001, he arranged the test identification parade, wherein accused Nos. 1 and 2 were required to be identified in presence of panch witnesses. He deposed about the procedure followed by him, which was also noted down in the form of memorandum Ex.47. As per the memorandum prepared by him, PW-1 Dattatraya did not identify the accused Nos. 1 and 2 during the identification parade. However, PW-2 Ramesh identified both of them and also explained the role played by them at the time of the incident. The evidence of PW-3 Kantilal shows that one witness Nagvekar had also identified accused No.1 from the identification parade, but said Nagvekar was not examined as a prosecution witness during trial. It is settled position of law that the evidence of identification before the Court is the substantive evidence while the identification during the test identification parade during investigation may be used as corroborative piece of evidence, but is not substantive evidence. However, where the accused was not known to the witness prior to the incident, identification of the accused by such witness for the first time before the Court without identification during T.I. parade, may not be safe to rely upon. Therefore, prior identification during T.I. parade lends an assurance that the witness has correctly identified the accused before the Court during trial. It appears that out of the 3 eye-witnesses, viz. PW-1 Dattatraya, 10 Cri-A-558-512-04.sxw PW-2 Ramesh and PW-17 Gorakh, only PW-2 Ramesh had identified accused No.1 and 2 during the T.I. parade as well as before the Court. PW-1 Dattatraya claimed that he had identified accused Nos. 1, 2 and 4 during T.I. parade and he also identified them before the Court. However, his evidence about the identification of accused Nos. 1 and 2 during T.I. parade is not corroborated by the evidence of PW-3 Kantilal and the memorandum Ex.47. From his admission, it appears that PW-1 Dattatraya had seen accused persons in the Court before he was called to give evidence. He also admitted that while standing outside the Court Room, he could see the accused persons sitting in the Court Room. As he could not identify accused Nos. 1 and 2 during T.I. parade, which was held within short period of 17 days after the incident, he could not have identified them in the Court after a period of more than one year. Therefore, much importance cannot be given to the evidence of PW-1 Dattatraya as far as identification of accused Nos. 1 and 2 is concerned. 10. PW-17 Gorakh Hargude was also one of the workers at the petrol pump. He also deposed that at about 4 a.m. he had woken up after hearing the hue and cry and he had seen 3 persons and the cashier and a helper from the petrol pump were taking away treasury and keeping the treasury in the white coloured Sumo Jeep. Thereafter Sumo Jeep went away towards Pune side. Gorakh also 11 Cri-A-558-512-04.sxw deposed that accused Nos. 1,2 and 4 before the Court were the same persons who had taken away the treasury in the Sumo Jeep, but the identification by this witness does not appear to be reliable. He admitted in the cross-examination that he had stated before the police that he could not give the exact description of those 3 persons who had taken away the treasury as he was in sleep at the time of the incident. He was not called to identify the accused persons during T.I.parade. Therefore, while the evidence of PW-17 Gorakh is useful only to prove that the offence of robbery was committed at the petrol pump, his evidence does not help the prosecution to fasten the liability on the accused persons. 11. The evidence on record shows that accused No.4 was arrested on 17.1.2001 and he was required to be identified during T.I. parade held on 1.2.2001 in the Yerwada Jail premises. The T.I. parade was held by PW-3 Kantilal. During the T.I. parade, PW-1 Dattatraya as well as PW-2 Ramesh identified accused No.4 - Anil @ Narayan J. Kandare. Both the witnesses also gave specific role played by the accused No.4 during the incident. 12. The learned Counsel for the accused persons pointed out that as per the evidence of PW-1 Dattatraya, he had identified all the 3 accused persons during T.I. parade which is not correct. Secondly, he deposed that accused No.4 12 Cri-A-558-512-04.sxw was shown to him during first identification parade and this is also not correct as per the report. He also pointed out that PW-2 Ramesh had deposed that accused Nos. 1 and 4 were together shown to him during T.I. parade which is also not correct. I have already pointed out that as far as the PW-1 Dattatraya is concerned, his evidence in respect of identification of accused Nos. 1 and 2 during T.I. parade cannot be believed because that part of evidence is contrary to the memorandum Ex.47. PW-2 Ramesh had identified all the three accused persons during T.I. parade and this is supported by the evidence of PW-3 Kantilal and memoranda of T.I. parades Exs. 47 and 48. Only because he deposed that accused Nos. 1 and 4 were shown together in the T.I. parade, his evidence cannot be discarded. The accused Nos. 1 and 2 were arrested on 30.12.2000 and the first T.I. parade was held on 16.1.2001. while the accused No.4 was arrested on 17.1.2001. Therefore it was impossible to show accused No.4 during first T.I. parade along with accused No.1. In my considered opinion, this inconsistency in the evidence of PW-2 Ramesh is due to the lapse of memory because of the gap of more than one year between T.I. Parade and recording of evidence. The evidence of PW-2 Ramesh is otherwise consistent. There is nothing on record to show that he had not identified any of them. Therefore, much importance cannot be given to such minor inconsistency in that evidence. It may be noted that during arguments, the learned Counsel contended that accused persons were taken out 13 Cri-A-558-512-04.sxw from the police custody on 4 occasions and therefore there was possibility that they might have been shown to the witnesses. However,this will be merely surmise which is not supported by any evidence. The Investigating Officer as well as the witnesses specifically denied that the accused persons were shown to them before T.I. parade. Therefore, I am convinced that while PW-2 Ramesh had identified all the three accused persons PW-1 Dattatraya had also identified accused No.4 who was the jeep driver and who had assaulted with iron rod or tommy. 13. The learned Counsel for the appellants contended that the lapse of period of 16/17 days from the date of arrest till identification parade was long enough and therefore, the identification of the accused persons during T.I. parade cannot be given much importance. For this purpose, he relied upon State of Andhra Pradesh vs. Dr. M.V.Ramana Reddy and Ors. AIR 1991 SC 1938. In that case, accused persons had surrendered on May 13, 1975. Identification parade was held on May 23, 1975. The Supreme Court held that there was no valid explanation for the delay. In that case, the said accused Nos. 3 and 5 were acquitted by the High Court on several grounds. The Supreme Court refused to interfere in the said order of acquittal. The unexplained delay was one of so many reasons for their acquittal. The learned APP on the other hand contended that the 14 Cri-A-558-512-04.sxw period of 16/17 days could not be treated as very long period and, according to her, there can be no fixed rule regarding period within which T.I. parade must be held. She relied upon Pramod Mandal vs. State of Bihar 2005 SCC (Dri) 75 wherein the Supreme Court observed thus in para 20 :- "20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness ? Prudence therefore demands that these 15 Cri-A-558-512-04.sxw matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification." Taking into consideration the facts and circumstances of the present case and the period taken for purpose of arrangement to hold T.I. parade, in my considered opinion, there was no unjustifiable delay in the present case. 14. Besides the identification of the accused persons, the prosecution also relied upon certain recoveries and discoveries made on the basis of information given by the accused persons. As per the evidence of PW-4 Avinash Supekar, a panch witness, on 1.1.2001, he was called to Sahakarnagar Police Station. The accused No.1, who was in the police custody, made a statement that he would show the place where the treasury was broken open. That information was reduced to writing as a memorandum Ex.64 by the police and it was signed by the panch witnesses. Thereafter, accused No.1 led the police and panchas to Village Mulshi. He also showed the place where the treasury was kept hidden. Though it was in the forest area, the treasury was not easily visible. The accused No.1 pointed out the same and produced. The said treasury was covered with a black cloth. It was seized under a panchnama ex.64. The said Chest or treasury was identified by PW-1 and PW-2 as the same which was stolen from the petrol pump. 16 Cri-A-558-512-04.sxw 15. The evidence of PW-9 Shankar Dhade reveals that on 3.1.2001, he was called at Sahakarnagar Police Station. Accused No.1 Gorakh Mare was present at the Police Station. He stated before the police and panchas that he had concealed the clothes and a revolver and he would show the same. Accordingly, a memorandum Ex.86 was prepared which was duly signed by the panchas. After that, the accused led the police and the panchas to Ramnagar. The accused took the police and panchas to his house and produced a cloth bag containing a shirt, a pant and a pistol. The said bag consisting of these articles was lying under a cot in the house. The said clothes and the pistol were seized under a panchnama Ex. 87. The pistol is Article 8. It is material to note here that this pistol was referred by the Investigating Officer API Navnath Bere (PW-19) to Ballistic Expert along with his covering letter dated 7.3.2001. The report Ex.153 from the Forensic Science Laboratory (Ballastic)revealed that the said pistol was .22" air pistol and was in a working condition. It was successfully test fired in the laboratory. This goes to show that the accused No.1 was found in possession of a pistol, which was in working condition. 16. PW-13 - Chandrakant deposed that on 8.1.2001, he was called as a panch witness at Sahakarnagar Police Station. There accused No.1 made a 17 Cri-A-558-512-04.sxw statement that he had concealed amount of Rs.9,000/- in a cloth bag near his house at Warje Ramnagar and he would show that place. About that information, a memorandum Ex.103 was prepared and signed by the panch witnesses. Thereafter, accused No.1 led the police and panchas to Ramnagar. Police jeep was