* 1 * Cri.Appeal.97 & 180.2008 21.2.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 97 OF 2008 Jagdish Bhavarlal Daya .......Appellant V/S. The State of Maharashtra .........Respondent W I T H CRIMINAL APPEAL NO. 180 OF 2008 James Jefrin Almeda .......Appellant V/S. The State of Maharashtra .........Respondent * * * * * * Mr. M.K. Kocharekar, Advocate for the appellant in Appeal No.97/2008. Mr. Shaunak Mehta, Advocate for the appellant in Appeal No.180/2008. Mrs. V.R. Bhosale, APP for State in both the Appeals. Coram : Smt. R.P. SondurBaldota, J. 21 February, 2011. P.C. : 1. This is a common order on the above two appeals. Appeal No. 97 of 2008 is preferred by original accused no.1 and Appeal No.180 of 2008 is preferred by original accused no.5. Both the appellants will hereinafter be referred to by their original nomenclature. * 2 * Cri.Appeal.97 & 180.2008 21.2.2011 2. Accused nos.1 and 5 and four other persons were chargesheeted and tried for the offences punishable under Sections 392 read with 397, 452 read with 34, 411 read with 34, 414 of Indian Penal Code and Section 3 read with Section 25(1)-(B)(a) of the Arms Act. By the judgment and order dated 21st December, 2007 accused nos.1 and 5 are convicted of the offences 392/397 Indian Penal Code and sentenced to suffer rigourous imprisonment for 8 years with fine of Rs.25,000/-, for the offence punishable under Section 452 Indian Penal Code rigorous imprisonment for 2 years and fine of Rs.5,000/-, for the offence punishable under Section 3 read with 25(1)-(B)(a) of Arms Act rigourous imprisonment for one year and fine of Rs.2,000/- Accused nos.2 and 3 were found guilty of the offence -punishable under Section 411 Indian Penal Code. They were directed to execute a bond of good behaviour for a period of 1 year. The judgment of conviction has been challenged only by accused nos.1 and 5. 3. The case of the prosecution stated in brief is as follows : . Ramashray Prajapati (P.W.3-the complainant) was working as a Salesman in a jewelery shop by name Ashwini Jewelers owned by * 3 * Cri.Appeal.97 & 180.2008 21.2.2011 Vikram Kumar (P.W.4). On 15th April, 2005 P.W.3 opened the shop at about 10.15 a.m. At about 11.00 a.m., the Manager of the shop (P.W.6) came and laid out in the show cases the gold ornaments for display. The watchman, one Lalitram Harijan-P.W.16 was on duty at the door of the shop. At about 1.35 p.m. two persons, wearing black coloured veils from head to toe, suddenly came to the shop, caught hold of Lalitram-P.W.16 and brought him inside the shop. The person who was holding P.W.16 had a country made revolver (Deshi Katta) and the other person was armed with two country made revolvers. Both threatened P.W.3 and P.W.6 with revolver and asked them to put all the ornaments in the bags. When P.W.3 was putting the ornaments in the bag, one of the two robbers started abusing him saying that he was too slow in action and himself started removing the ornaments and putting them in the bag. The other person who was holding the PW 16 went to the basement of the shop. There was sound of firing. After some time, the other person came out of the basement with a bag of the ornaments alongwith the watchman. After completing the robbery when the two persons started going away by a silver coloured car parked * 4 * Cri.Appeal.97 & 180.2008 21.2.2011 outside the shop, P.W.3 came out and raised an alarm. When the persons from the street started running after the car, P.W.3 came back to the shop and called the police. He also called up his employer at his residence. 4. P.W.6-the Manager, continued the chase of the car. He alongwith the other persons chasing the car threw stones at it. The pelting of stones damaged the rear glass of the car. The car turned into a lane with a dead end. The last building of that lane was Manisha building in which PW 4 the owner of Ashwin Jewellers resides. By the time, P.W.6 reached Manisha building chasing the car alongwith other persons, P.W.4 rushed down the building with his licensed revolver. As P.W.6 and P.W.4 came near the car, the robbers had got down from the car and trying to escape on foot. One of them had removed the veil. P.W.4 fired four rounds from his revolver, two were directed towards the wall to scare the robbers and two to at the body of one of the robbers, the one who was without veil. That person dropped the bag and started running. Despite the chase given by the witnesses and the persons in the crowd, the robbers succeeded in escaping. * 5 * Cri.Appeal.97 & 180.2008 21.2.2011 5. On the basis of report of P.W.3 the police registered the crime vide C.R. No.244 of 2005 (Exhibit-75) under Sections 452, 307, 392 read with 397 read with 34 Indian Penal Code and started investigation into the crime. They drew panchanama of the place of the offence, recorded statements of the witnesses and seized the licensed revolver of P.W.4 under panchanama. Accused no.1 was arrested on 19th April, 2005 at Oshiwara Police Station by drawing arrest panchanama (Exhibit-34). He had been brought there, from Goregaon Link Road. On 18th April, 2005 the police received information that one of the suspects was admitted to Nanavati Hospital as he had sustained an injury. Therefore, the police kept a watch and arrested accused no.5 on 29th April, 2005 at the time of his release from the hospital. 6. During the course of investigation, the police recovered a revolver and part of the stolen property, i.e. the gold ornaments at the instance of accused no.1 from two places i.e. from the loft of his own house and from the house of one, Saba-accused no.2 who is the sister of accused no.5. On recovery of the stolen property from the house of accused no.2, she was arrested. On her arrest, she * 6 * Cri.Appeal.97 & 180.2008 21.2.2011 volunteered to state that part of the stolen property was kept by her in the house of Tabrej Khan, accused no.3. She led the police and panchas to the house of Tabrej Khan from whom further ornaments were recovered. On recovery of the ornaments, the police immediately arrested Tabrej Khan. He also volunteered to show where further part of the ornaments and the weapons used in the crime were hidden. He led the police and panchas to Sohail Patel- accused no.4. Sohail Patel was also arrested by the police. Then at his instance, two revolvers with live cartridges concealed above an overhead water tank on the terrace of the building, where he resided were recovered. The panchas witnessing the recovery at the instance of accused nos. 1 to 4 are P.W.8- Gajendra Chaudhari and P.W.11-Beer Bahadur Arjun Prajapati. On the arrest of accused no. 5 on 29th April, 2005, he also made a voluntary statement to disclose the place where he had concealed the stolen property and the weapon used in the offence. Accordingly, the police accompanied by the pancha Ramesh Jagatsingh P.W. 13 and Anil Sunz visited the premises of the society by name Dhiraj Residency, where Tata Safari vehicle was seen parked. After obtaining the keys of the car from his residence, accused * 7 * Cri.Appeal.97 & 180.2008 21.2.2011 no. 5 led the police and the pachas to the box fitted at the bottom of the car near the driver’s seat. The box was concealed under the rubber mat. In the box, part of stolen ornaments and country-made revolver along with four live cartridges were found concealed. 7. On 11th June, 2005 the police arranged for identification parade of accused nos. 1 and 5 to be conducted by SEM Dattatraya Kambli P.W. 10. In the identification parade PW 4, PW 5 and PW 6 identified the accused no. 5. Accused no. 1 was not identified by anybody. One Mukund Dattatraya Kurne and one Arvind Kumber had acted as pancha for the identification parade. They have not been examined as witnesses by the prosecution. 8. The oral evidence led by the prosecution at the time of trial consisted of 21 witnesses. Accused Nos. 2 to 5 examined themselves. They also examined Pandharinath Ghorpade, PSI from Kherwadi Police Station as a defence witness. The prosecution witnesses consist of 8 pancha witnesses, 3 police officers, the Doctor who had treated accused no.5, Special Executive Magistrate who conducted the test identification parade and 8 witnesses. 9. Mr. Kocharekar, the learned counsel for accused nos. 1 and 5 submits that the perusal of the evidence recorded by the trial court * 8 * Cri.Appeal.97 & 180.2008 21.2.2011 shows that none of the material witnesses can be said to be a truthful witness since their evidence contains omissions and contradictions in material aspects of the evidence. According to him, the evidence of test identification parade is also not worthy of acceptance by the court because of serious breaches of the procedure to be adopted for holding the test identification parade. Also none of the pancha witnesses is examined to corroborate the evidence of Special Executive Magistrate, P.W.10. The corroboration was necessary because of the omissions in the evidence of P.W.10 as also there is no clarity about the place at which the test identification parade was held by P.W. 10. 10. Taking into consideration the facts and circumstances of the prosecution case, the entire incident alleged by the prosecution can be divided into two parts, the first part relates to the occurrence in the shop of Ashwin Jewelers and the other part is of occurrence outside the shop. At the time of the incident of robbery, the only persons present in the shop were the complainant-P.W.3, Manager- P.W.6 and a watchman-P.W.16 who was attending to the door of Ashwin Jewelers. All these three witnesses are unanimous in their evidence that the two unknown persons entered the shop on the date and time of the incident wearing veils from head to toe of the type * 9 * Cri.Appeal.97 & 180.2008 21.2.2011 worn by Muslim women. The only part of the body of the robbers that could be seen was their eyes. The veils worn by the two robbers were not disturbed in any way until they left the shop. As a consequence, P.W.3, P.W.6 and P.W.16 had no opportunity whatsoever to see the robbers. The only description of the robbers that could be given by them to the police was of their height. Therefore, the evidence of these witnesses coupled with the evidence of P.W.1, the pancha for spot panchanama inside the shop and the evidence of the Investigating Officer, though, establishes the incident of robbery with use of fire arms in the shop, does not help in identifying the robbers. Their evidence does not help the prosecution in connecting the appellants to the incident of robbery. 11. In order to connect accused no.1 to the incident of robbery, the only evidence available on record, is the evidence of recovery of stolen ornaments at his instance. As regards accused no.5, the evidence available against him is the deposition of P.W.4, P.W.6 and P.W.14 who claimed to have seen him and the evidence of recovery at his instance. There are two more witnesses i.e. P.W.5-watchman of Manisha building and P.W.17-the driver of a car parked near the shop of Ashwin Jewellers who had witnessed the incident of escape by the * 10 * Cri.Appeal.97 & 180.2008 21.2.2011 robbers. These witnesses, however, do not claim to have seen the robbers. The further evidence relevant for connecting accused no.5 to the offences, is the evidence of identification in the identification parade conducted by P.W.10-Special Executive Magistrate. It is therefore to be seen now whether the above evidence available against accused nos.1 and 5 sustains their conviction. 12. Since the main prosecution armour against accused nos.1 and 5 is of recovery of the ornaments stolen from the shop of Ashwin Jewellers, I will first consider that evidence. In order to connect both the accused to the robbery, it was imperative for the prosecution to establish that the ornaments recovered at their instance were the ornaments stolen from Ashwin Jewellers during the incident of robbery. This could be established only through the evidence of P.W.4, the owner of Ashwin Jewellers. The deposition of P.W.4 relevant for that purpose reads as follows : Examination in chief : “ After 3 to 4 days of the alleged incident, police had called me in the police station and that time police had shown me ornaments. I identified those ornaments. Those ornaments were belonging to me. The articles were consisting of bangles, chains, ear-rings, finger rings and other varieties of ornaments. I submitted application in Andheri Court for getting these ornaments and as per order of the court I received ornaments on executing the bond. I have not brought * 11 * Cri.Appeal.97 & 180.2008 21.2.2011 today those ornaments. Cross-examination : I have maintained account of every articles in my shop. I have produced the registers in respect of gold, diamonds and cash before police. Police have not seized those registers. However, I have given statement to them in that respect. I have given roughly statement of stolen articles on that day to the police. I told the police about the details of ornaments and about its weight. Police have not recorded my statement in that respect. Details of ornaments is not mentioned in my statement. It is not true to suggest that, that since I have no details of these ornaments they have not mentioned it in my statement. Police have not seized registers at that time. Today, I have not brought the registers before the Court.” 13. The evidence of this witness shows that the ornaments recovered at the instance of both the accused were not even brought before the court for the purpose of their identification. Therefore, infact there is no evidence before the Court of actual recovery of the ornaments. The prosecution has also not given any explanation whatsoever for not producing the ornaments before the Court at the time of trial. The cross-examination of P.W.4 shows that though he claimed to have in his possession the register regarding each gold and diamond jewellery stolen from his shop, surprisingly the police had not even seized the registers. P.W.4 stated that he had produced the registers before the police. P.W.4 also claims to have told the police about the details of * 12 * Cri.Appeal.97 & 180.2008 21.2.2011 the ornaments and their weight but the police did not record his statement in that reply. P.W.19-the Investigating Officer, however, denied that any register of ornaments were produced. He also stated that P.W.4 had not given the number of articles stolen from his shop. It is not the case of the prosecution or evidence of P.W.4, that the ornaments from his shop carried any specific mark of identification special to his shop. P.W.4 admitted in his cross-examination that the articles of the type recovered at the instance of accused nos.1 and 5 are available in jewellers shop. In the absence of evidence of specific identification of ornaments on record, there is no way in which the court could have said that there was recovery of ornaments stolen from the shop of Ashwin Jewellers at the instance of accused no.1 and 5. The non-production of the documents relating to the ornaments is deposed by P.W.6-the Manager of Ashwin Jewellers also. He stated that the police did not demand for the documents. He did not give the number of articles stolen from the shop. He had not given the number of bundles of notes that were stolen away. The prosecution has not recovered any cash at the instance of either of the accused. 14. Perusal of the panchanama recorded on recovery of the ornaments shows that the description of the ornaments given therein * 13 * Cri.Appeal.97 & 180.2008 21.2.2011 consists of the broad description of the type of ornaments and the number of pieces of the type of ornaments with the collective weight of each type of ornaments. This basic lacuna in the evidence of the prosecution, entitles accused nos.1 and 5 with acquittal. 15. This brings me to the evidence of identification of accused no.5 by P.W.4, 6 and 5. Before referring to the evidence of test identification parade in respect of accused no.5, it would be necessary to ascertain that these witnesses had an occasion to see accused no.5 while he was trying to escape. It has already been noted above that the two robbers who had entered the shop of Ashwin Jewellers, were covered with veils from head to toe. According to the prosecution, P.W. 6 had followed both the robbers as they got out of the shop and ran towards a car. It is the evidence of P.W.17 that he had parked his car infront of Anna Shopping center and was sitting inside the car waiting for his owner to return from shopping. There was another Honda City car of silver colour parked in front of his car. He stated that the two veiled persons had initially come towards his car. Their attempt to open his car failed, but as the car was locked. Then, they got into the Honda City car and sped away. After that he heard shouts of the alarm. This shows that P.W.17 has also not seen the persons with * 14 * Cri.Appeal.97 & 180.2008 21.2.2011 veils who had got into the Honda City car and escaped. This also shows that atleast until the robbers got into the Honda City car, their veils were in place. 16. P.W.6 claims to have followed the robbers from the shop. He has not made any reference in his evidence to the robbers trying to enter into another car and after failing to get into that car, taking Honda City car to escape. It appears that for some duration of time, he was not looking into the direction of the robbers which can be seen from his following evidence I lifted the stone and I saw that those persons “ were coming towards me. I was scared and I ran away. Again I took a turn and that time I saw that those person sat in the Honda City car. The car had started but they could not get way to go on the road. The car took a left turn. I lifted the stone and threw a stone on the glass of the car.” As per his evidence, the car entered the lane at the end of which was Manisha building, where P.W.4 resides. Since it was a dead end, the car had to be stopped. P.W.6, then states We went “ towards the place where the car was standing. As soon as we went near that car, we saw that the person who was veiled was unveiled. He was not having burkha. But I saw the colour of T-shirt, pant, shoes of that person which I had seen in the shop.” This would mean that, * 15 * Cri.Appeal.97 & 180.2008 21.2.2011 all that P.W.6 was able to see of accused no.5 was the clothes and the accessories worn by him. It is not the evidence of P.W.6, that he had seen the face of the robber who was unveiled at the time of getting out of the car. 17. P.W.4 also has not stated in his evidence that he had seen the face or physical features of accused no.5. He stated that on being confronted, the robber had immediately fired at him from his country made revolver. Then, P.W.4 fired four rounds from his revolver. He had targeted two bullets into a wall and then two bullets directly into the body of accused no.5 as by then he had come very near and was within the range of fire. None of these statements find mention in the statement of P.W.4 recorded by the police. The defence has brought this omission on record which is unexplained. Even if we accept this evidence by ignoring the material omissions, it is obvious from the facts of the prosecution case that there was hardly any chance for P.W.4 to see the face of accused no.5. The robbers being on the run after commission of robbery, everything must have happened at some speed. In the circumstances, identification of accused no.5 by P.W.4 and P.W.6 * 16 * Cri.Appeal.97 & 180.2008 21.2.2011 cannot be believed. 18. As regards P.W.5-the watchman at Manisha building, the third witness identifying P.W.5 in the identification parade, as well as, in the Court, he has in terms admitted in his cross-examination that he had not seen the face of accused no.5. Therefore, identification by this witness must also not be disbelieved. 19. There are several other infirmities in the prosecution case and the evidence pointed out by Mr. Kocharekar, the learned counsel for the appellants. However, in my opinion, it is not necessary to consider all of them here in view of the above two major infirmities, each of which is sufficient by itself to upset the judgment of conviction. The conviction of the appellants cannot be sustained. Hence, the Appeals are allowed. Both the appellants are acquitted of the offences punishable under Sections 392 read with 397, 452 read with 34, Indian Penal Code and Section 3 read with Section 25(1)-(B)(a) of the Arm[s Act. Their bail bonds are discharged. [SMT. R.P. SONDURBALDOTA, J]