1 A IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.356 2002 Suresh @ Tekbahadur Lokbahadur Thapa } Age – 26 yeras, } .. Appellant R/at.18/20, Borabazar Street, } (Orig.Accused No.1) Mumbai – 400 001 } Verses The State of Maharashtra } .. Respondents WITH CRIMINAL APPEAL NO. 257 OF 2002 Raghu Chinna Swamulu Kanasani } .. Appellant Yerwada Central Prison, } (Orig.Accused No.2) Pune, Maharashtra. } Verses The State of Maharashtra } .. Respondents Mr.Ganesh Gole for the Appellant in Appeal No.356 of 2002. Mrs.Rocheeta R.Dhuru for the Appellant in Appeal No.257 of 2002. Mr.D.P.Adsule, A.P.P.for the State in both the Appeals. CORAM : A.R.JOSHI, J. DATED : 17th JULY, 2009. ORAL JUDGMENT :- 2 Both the present criminal Appeals are being disposed of by this common judgment as in both the Appeals the same Sessions Court judgment in Sessions Case No.1289 of 1989, is challenged. 2. Said impugned Judgment was passed on 20th April, 2001 by Additional Sessions Judge, Greater Bombay. Appeal No.356 of 2002 is preferred by original accused No.1 and Appeal No.257 of 2002 is preferred by original accused No.2. 3. By impugned Judgment and order appellant accused No.1 was convicted for the offences punishable under section 392, 455, 397 and 394 of Indian Penal Code. For the offence punishable under section 397, he was sentenced to suffer R/i. for 7 years and for other three offences he was sentenced to suffer R/i. for 10 years each and fine of Rs.500/-. 4. Appellant accused No.2 was convicted for the offences punishable under section 392 and 455 of Indian Penal Code and was sentenced to suffer R/i. for 10 years and fine of Rs.500/- on each count. Appellant accused No.2 is acquitted for the offences punishable under section 397 and 394 of Indian Penal Code. 5. Prior to appreciating the rival submissions and mainly the arguments advanced on behalf of the appellants certain factual position as to the happening of the events and the status of the prosecution 3 evidence before the trial Court can be summarized as under : One Parshuram Dandekar has a catering business and his hotel cum stall is opposite V.T. Railway Station, Mumbai and various servants and cooks were employees of him. Apparently, both these accused were also his past employees and according to his case just four days prior to the incident of robbery in his home, accused No.1 was removed from his service. At about 3.00 a.m. to 4.00 a.m. at early hours of 26th June, 1999 when said P.W.No.4 Parshuram Dandekar was out of Mumbai and when his wife (P.W.No.1) his son Abhay and his daughter (P.W.2) were at home alongwith the cousin sister of P.W. No.2, the incident of robbery took place in the house of said Parshuram. At the early hours at about 3.00 a.m. P.W.No.1 i.e. wife of Parshuram, heard the calling of her son Abhay and she went out of her room in order to ascertain as to what happened. She entered the bed room of Abhay which are adjacent to her bed room. She noticed that two persons were present in the room and one person was sitting on the body of Abhay and was pushing him down on the bed. Noticing such commotion she accosted the two persons, however, they threatened her to dire consequences and warned her to keep quite. Similar threats were given to Abhay. It is also the case that Abhay has sustained some stab injuries on his back prior to P.W.No.1 coming in his bed room and it was apparently due to the use of some weapon by present appellant accused No.1. 6. It is also the case of the prosecution that P.W.No.1 and her 4 son Abhay were taken to her bed room and were compelled to keep quite. Their hands and legs were also tied. The keys of the safe and locker were demanded by the robbers and after initial denial P.W.No.1 surrendered and gave the keys. Apparently, both the robbers were in the said house for about an hour and ransacked the articles in various rooms and moved from one room to another. Said house of the complainant was a rather big tenement of about 8 rooms and passages etc. P.W.No.2 daughter of P.W.No.1 was sleeping in another room alongwith her cousin sister. At about 3.30 a.m. or there about she heard some shouts raised by her mother and tried to see as to what had happened, but she could not come out of her bed room as the door latched from outside. According to her she tried to see from the slit in the door and could see two persons moving around in other rooms having some plastic bag in their hands. She also noticed that they had covered their faces with handkerchief. According to said witnesse, when said robbers removed their handkerchief from the faces, she could recognized them and ascertain them as the ex-employees of her father and subsequently gave the names as Suresh and Raghu when her statement was recorded by police on 29th June, 1999. 7. Thus, the case of the prosecution that after taking away various gold ornaments and other articles, the appellants accused tried to escape from the house, however, the main door of the hall leading to exit from the house was locked with a godrej padlock . Thus, locking the main door from inside is narrated by P.W.No.1 complainant when she gave her complaint on the same day of the incident i.e. on 26th 5 June, 1999. when both the robbers could not escape from the flat due to such locking of the door, they again came back and demanded the keys from P.W.No.1 complainant. After obtaining the keys from her, they went out by opening the lock. 8. It is also the case of the prosecution that during the incident of robbery, accused persons took away two swords which were then installed on the wall of the hall by way of a showpiece and used the said sword to cause injuries to Abhay on his back and also to P.W.No.1 complainant on her back. Also according to the case of the prosecution P.W.No.2, daughter of P.W.No.1 could come out of her room only when her mother somehow managed to come out of her bed room and opened the door of the bed room of P.W.No.2 and which was latched from outside. P.W.Nos. 1 and 2 then immediately come back to the bed room and P.W.No.1 freed Abhay who was found lying in the room in tied condition and that time it was noticed by P.W.No.1 and 2 that he had sustained sever bleeding injury on his person, it was injury of something like incised wound. Preliminary measures were taken by P.W.No.1 by applying turmeric powder on that place and he was taken to the hospital after the police arrived as P.W.No.2 went to police station and hurriedly narrated only regarding some incident of theft and called police party. Detailed panchanma was drawn at the house and complaint of P.W.No.1 was recorded. It is an admitted position that in the complaint name of applicant accused No.1 Suresh was mentioned without giving his full name. So also the name of one Vinod was mentioned as his associates and one of the robbers. 6 9. It is also the case of the prosecution that on the same day of the incident P.W.No.1, complainant and her son Abhay were treated at the hospital and she was in hospital since 26th June, 1999 till 29th June, 1999. However, Abhay was hospitalized for about 15 days as his injury was rather grievous nature and was required some operation. 10. It is also the case of the prosecution that complaint was lodged immediately after the incident of robbery on 20th June 1999 at about 5.55 a.m. and F.I.R. came to be registered and in which the names of the robbers were given as Suresh and Vinod. Subsequently, by further statement of P.W.No.1 recorded on 29th June, 1999 after she came out from the hospital, she disclosed to the police that she had erroneously named one Vinod as robber and instead of that it was the act of one Raghu i.e. accused No.2. According to her, when her husband Parshuram showed her one photo apparently one photo of both accused Nos. 1 and 2, she identified the person in the photo as Raghu and thus, clarified the position by giving statement to the police that not Vinod but Raghu was the associate of Suresh. 11. It is also an admitted position that statements of Parshuram P.W.No.4, Abhay and one Kumari Anuja cousin sister of P.W.No.2 and also the statement of P.W.No. 2 were recorded on 29th June, 1999. It is significant to note that according to the case of the prosecution, P.W.No.2 had witnessed the part of the incident of robbery and had in fact identified the robbers as an ex-employee. However, her statement 7 came to be recorded by the police on 29th June, 1999 and not prior to that. This aspect has been much emphasized on behalf of the applicant in order to raise doubt on the trustworthiness of said P.W.No.2 and consequently, the authenticity of the entire case of the prosecution. 12. According to the case of the prosecution, interrogations were made of various employees of the catering shop of P.W.No.4 and name of Suresh and Raghu i.e. present appellants were reveals and it was ascertained that they were not in Mumbai but had gone to their respective native places i.e. accused No.1 Suresh at Bihar and accused No.2 Raghu at Hydrabad. Consequently, the trace of accused No.1 was known first and police party lead by P.W .No.8 P.S.I. Shankar Mane went to the native place at Bihar in search of accused No.1. According to the case of the prosecution, from the house in the native place on 18th July, 1999, accused No.1 was apprehended. That time, according to the police, he was standing in the door of his hut and when his search was conducted in presence of two local panchas, he was found in possession one pouch in his waist side pant pocket. The pouch was containing six finger rings, two broken necklaces, two chains and three Mangalsutras i.e. total 13 items. It is admitted position that both the panchas of said panchanma were not examined by the prosecution for want of their whereabouts. In fact said panchanama was produced by P.S.I.Mane P.W.No.8. Alongwith the muddemal articles accused No.1 was brought back to Mumbai. Again, it must be mentioned that, admittedly, such investigation of Mumbai Police was not made aware to the local police of the place of the accused and as such without there 8 being any entry in the register of local police station and without there being any transit remand from the local Magistrate, accused No.1 was taken to Mumbai and then was put under arrest in the present case. Admittedly, said accused No.1 was arrested after about 22 days of the incident of robbery. Again according to the prosecution on 23rd July, 1999 accused No.1 made a voluntary statement in the presence of panch witnesses including one panch Laxmikant Mhatre P.W.No.5, relative of P.W.No.4 and after such memorandum panchanama there is allegedly a recovery of two swords at the instance of appellant accused No.1. At this juncture, it is significant to note that such recovery of two swords is from the house of the complainant herself, and from one of the bed rooms. It happened on 23rd July, 1999 as mentioned above when accused No.1 lead police party and panchas to the house of the complainant and procured two swords from under the mattresses kept on the bed. According to the case of the prosecution, one of the swords was having some blood at the tip and no where else, however, it is significant to note that in the C.A. report concerning said two swords, it appears that there was blood on both the swords and on one sword the blood was also on the handle. However, the blood group on the said swords could not be determined and as such it is not an incriminating circumstance so far as use of the swords in the offence of robbery. 13. It is also the case of the prosecution that after finding the whereabouts of accused No.2 Raghu, police party and one panch from Mumbai i.e. Kuldeep Singh P.W.No.6 went to Hydrabad to the native place of Raghu and it happened on 18th August, 1999 i.e. after about a 9 month and 20 days of the incident of robbery. Again according to the case of the prosecution, said accused No.2 Raghu was found at his native place house and that time he was having possession of one pouch in the right side hip pocket of pant he was then wearing. During the panchanama it was revealed that said pouch was containing 27 ornaments i.e. various finger rings, chains, broken necklaces etc. Detailed panchanama was drawn and accused No.2 Raghu was also taken back to Mumbai and put under arrest in the present case. This time also admittedly there is no intimation given to the local police station so also there is no any arrest at the native place and no transit remand obtained from the local magistrate. In fact, all such investigation was apparently done by Mumbai police without their being any knowledge to the local police of Hydrabad. 14. Also according to the case of the prosecution there was no any test identification parade, however, after the arrest of both the accused they were shown to P.W.No.1 at the police station and in which she allegedly identified them as the robbers. 15. In order to have a proper prospective of the matter as to the evidential value of the prosecution witnesses, a summary as to how many witnesses were examined and on what count, can be given as under:- P.W.No.1 is the complainant Smt.Manisha Dandekar, sustained injury during the incident and who identified accused No.1 as 10 robber and gave the name of second robber as Vinod and then changed her versions that instead of Vinod, one Raghu was the robber. She filed F.I.R.Exh.7. P.W.no.2 is Manjiri, young girl of aged about 17 years, daughter of P.W.No.1. According to her she witnessed the part of the incident that also from the slit in the door of her bed room and noticed that the robbers were accused No.1 Suresh and accused No.2 Raghu and gave her statement only on 29th June, 1999. P.W.No.3 is one panch for the spot panchanama Exh.11. It is significant to note that in the said spot panchanama and also thereafter subsequently 23rd July, 1999 there was no trace of the two swords, however, it was noticed by the complainant and other members of the family that the two covers in which the swords were earlier kept, were empty and that the two swords were then missing since the incident, till they were recovered allegedly at the instance of accused No.1. P.W.No.4 is Parshuram Dandekar who had employed accused Nos. 1 and 2 for his catering work and prior to the incident they were removed from the service. P.W.No.5 is Laxmikant Mhatre, a panch and also the relative of P.W.No.4, who took the part in the panchanama of recovery of swords as mentioned above. P.W.No.6 is another panch Kuldeep Singh regarding recovery of ornaments at the instance of accused No.2 at the native place at Hydrabad under the panchanama Exh.16. P.W.No.7 is Dr.Shitole who examined both the injured i.e. P.W. No.1 and Abhay and also deposed as to the nature of the injuries. P.W.No.8 is P.S.I. Shankar Mane who visited the native place of Accused No.1 at Bihar and conducted the panchanama were allegedly 11 ornaments were found as mentioned above. P.W.No.9 is another Investigating Officer 11 Shri.Dumbare and last prosecution witness is P.W.No.10 Shabir Ahmed who happened to visit native place at Hydrabad of accused No.2 and brought the accused alongwith 27 ornaments to Mumbai. 16. It appears that the trial court was influenced with mainly the recoveries of the ornaments from both the accused and also the trial court was influenced with the reasoning given by the prosecution for not examining the important witness injured Abhay as to his alleged mental disturbance. It also appears that though trial court had raised certain doubt as to how the robbers had entered the flat of the complainant on the fateful early hours still the court concluded that substantive evidence of P.W.No.1 and 2 coupled with the recoveries and also mainly the recover of two swords at the instance of accused No.1, established the case of the prosecution beyond reasonable doubt and accordingly convicted both the appellants accused for the respective offences as mentioned above. 17. During the arguments main thrust of the arguments on behalf of the appellants accused is that of non examination of Abhay, though apparently, only through his evidence the position would have been clear as to how the robbers entered in the house and whether they were Suresh and Raghu or someone else. It appears that said Abhay is a well gown up person and then aged about 30 years and apparently of sound health mentally and physically, however, according to the prosecution only because of such incident of robbery and sustaining of injury on his back, he lost the balance of his mind and could not give 12 any evidence before the court. In the opinion of this Court, such reasoning given by the prosecution appears to be far-fetched for the reason that recording of evidence before the court started much after the incident i.e. started in February, 2001 i.e. after about 1 year and 8 months. It cannot be accepted that said Abhay was still under trauma of the incident after such a long period and could not come before the Court for giving evidence though, admittedly his statement was recorded on 29th June, 1999 i.e. after four days of the incident. In the opinion of this Court, this circumstance should have been taken in proper prospective by the Trial Court while deciding the matter. 18. Secondly, it is argued on behalf of the accused appellants that the substantive evidence of P.W.No.2 Manjiri cannot be accepted as there was in fact very little or even no scope for her to identify the robbers as Suresh and Raghu. This is more so as according to her she saw the part of the incident through the slit in the door of her bed room and could see both the accused. It is significant to note that according to her they were moving in the rooms holding the plastic bags in their hands and they had concealed their faces by means of handkerchief. Further, she came with the story that she identified them when they removed their veils. On this aspect, there is nothing brought on record by the prosecution that at what point of time she recognized them after they removed the handkerchief from their faces. If at all it is accepted that she had identified them as Suresh and Raghu, it would have been natural conduct to immediately disclose their names to the police at the earliest opportunity and not for the first time on 29th June, 1999. Such 13 delayed disclosure has not been properly explained by the prosecution and in the opinion of this Court, it is also the another mitigating circumstance to the case of the prosecution doubting the involvement of the appellant accused. It is also significant to note that there is no evidence of any witness as to who caused injury to Abhay. What is brought on record through substantive evidence of P.W.No.1 is that Abhay told her regarding assault by Suresh. On this aspect substantive evidence of Abhay is lacking and as such again another mitigating circumstance to the case of the prosecution. 19. Further more, it is a factual position that in the F.I.R. there is a mention that Abhay took the name of one Vinod as his assailant. Though, such fact is denied by P.W.No.1 during her substantive evidence, it is in fact a contradiction brought on record on behalf of the accused and again in the opinion of this Court, it is still another mitigating circumstance so far as the real identity of the another assailant either Vinod or Raghu. In the opinion of this Court, it must be said that here it is a case in which there was definitely a confusion as to the real identification of accused Nos. 1 and 2 as the assailants and robbers and that said confusion was not clarified by way of substantive evidence of P.W.No.1 and 2, however, this aspect has not been properly appreciated by the trial Court. 20. Apart from the above, considering the substantive evidence as to the recoveries of ornaments from respective appellants, the circumstances raise doubt as to the happening of such events and in fact 14 really having any such recoveries at the instances of the appellants. At the cost of repetition, it must be mentioned that for the alleged recovery of about 13 items from the waist side pocket of accused No.1, there was no any panch examined, so also there was no any record with the local police of Bihar. So also is the case of raising doubt against the recovery of 27 ornaments from the hip pocket of accused No.2 from his native place at Hydrabad. As such it must be said that said recoveries are shrouded in mistry and under such circumstances the benefit of doubt must go in favour of the appellants accused. Lastly, also the recovery of two swords from the house of the complainant himself is a mysterious circumstance and still if it is accepted it cannot link the present appellants with the offence of robbery and assault for want of proper establishment of identity of the said appellants at the robbery. 21. It must be mentioned that considering the cumulative effect of the case of the prosecution, there could be a grave doubt as against the appellants, however, the said doubt cannot be equated with the proof of that standard which is required to establish the guilt of the accused beyond reasonable doubt. In the result, it must be said that the substantive evidence of witnesses warrant interference with the impugned Judgment and order and the same is required to be set aside, holding both the accused not guilty of the offence and benefit of doubt must go in their favour. 22. Prior to parting with the present Judgment, it must be mentioned that by efflux of time now the substantive sentence awarded 15 against appellant accused No.1 i.e. maximum period of 10 years has already been over and reportedly he has been already released from jail after completion of his entire sentence and he has been so released on 30th June, 2007, however, this information could not be available to this court except for today. Though, such is the situation, still allowing the appeal and acquittal of the accused from the charges will have the effect as to his exoneration from the charges and if he had paid the fine, the same is to be reimbursed back to him. So far as accused No.2 Raghu is concerned, it is found out that after the filing of the appeal, he was released on bail by another Bench of this Court and till that time he had already undergone about 5 years of imprisonment. 23. Considering the above reasoning and considering the arguments advanced on behalf of the appellants, it must be said that the Trial Court had erred in convicting the appellants accused for the offences and as such said conviction is hereby set aside and both the present appeals are allowed as per the following order : :: O R D E R :: i. Criminal Appeal No.356 of 2002