1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 948 OF 2005 1)Sawalram Arjun Kale ) Convict No.C/12798 ) 2)Dhondiram Arjun Kale ) Convict No.C/12797 ) Presently lodged at Yeravada) Central Prison, Pune-411006) .... .. Appellants. (Org.Accused No.1 & 2) Versus The State of Maharashtra ) .... .. Respondent. -: ALONG WITH :- CRIMINAL APPEAL NO. 56 OF 2006 Natwar Sitaram Chavan ) C. No.12796, 29 years, ) C.G.Barrack, YCP, Pune-411006) .... .. Appellant. (Orig.Accd. No.6.) Versus The State of Maharashtra. .. .. Respondent. -: ALONG WITH :- CRIMINAL APPEAL NO. 6 OF 2008 1)Tulshiram Damu Pimple ) aged 33 years, Occ:Labour, ) Resident of Nimgaon - ) Mhalungi, Taluka Shirur, ) Dist. Pune. ) 2 2)Dada Damu Pimple ) Aged 27 years, Occ:Labour, ) Resident of Nimgaon- ) Mhalungi, Taluka Shirur, ) Dist. Pune. ) 3)Anil Damu Pimple ) Aged 28 years, Occ:Agri, ) Resident of Nimgaon- ) Mhalungi, Taluka Shirur, ) Dist. Pune. ) (At present detained at ) Yerwada Central Prison,Pune).. ...... ... Appellants. (Orig.Accd. No.3 to 5) Versus The State of Maharashtra. .. .. Respondent. Mr. Abhaykumar Apte for Appellant in Cri.Appeal No. 948/2005. Mr. P. V. Dhopatkar for Appellant in Cri.Appeal No. 56/2006. Ms. Sharmila Kaushik for Appellant in Cri.Appeal No.6/2008. Mrs.S. D. Shinde, APP for State in Cri.Appeal No. 948/2005. Mr. P.S.Hingorani, APP for State in Cri.Appeal Nos.56/2006 and 6/2008. CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 15TH JULY, 2008. JUDGMENT (Per Bilal Nazki, J.): The Criminal Appeal No. 948 of 2005 has been filed by accused no.1 and accused no.2; the Criminal Appeal No.56 of 2008 has been filed by accused no.6 and the Criminal Appeal No. 6 of 2008 has been filed by accused nos.3, 4 and 5, against the conviction and sentence passed by the 3 Court of the Special Judge, (under M.C.O.C. Act), Pune in Special Case No. 8 of 2002. All the accused were convicted for the offence punishable under Section 3(1)(i), 3(1)(ii) and 3(4) of the Maharashtra Control of Organized Crimes Act, 1999 (for short “M.C.O.C. Act”). Under the first count they were sentenced to suffer imprisonment for life and to pay fine of Rs.1,00,000/- each, in default of payment of fine, to undergo further rigorous imprisonment for one year. Under the second count they have to suffer rigorous imprisonment for five years and to pay fine of Rs.5,00,000/- each on each count, in default of payment of fine to undergo further rigorous imprisonment for a period of one year for each count. 2. The facts as revelled are thus:- The accused, appellants herein, were tried for having formed an Organized Crime Syndicate and committed various offences jointly or singly as members of an organized crime syndicate or on behalf of such syndicate. Therefore the charges were framed under Sections 3(1)(i), 3(1) (ii) and 3(4) of the M.C.O.C. Act. The accused pleaded not guilty and claimed to be tried. The prosecution examined 8 witnesses. Of those, the P.W.1 to 3 were projected as eye witnesses to three incidents. P.W. 4 has filed F.I.R. P.W.5 is a police constable. P.W. 6 gave approval for initiation of action under M.C.O.C. Act against the accused. P.W.7 gave sanction to 4 the prosecution and P.W.8 was the Investigating Officer. 3. The contention of the learned Counsel appearing for the appellants (accused Nos. 3, 4 and 5) in Criminal Appeal No. 6 of 2008 is that these appellants were not accused in any other cases in which P.W.1 to 3 were the witnesses. Therefore, at no point of time in any case other than the present case P.W.1 to 3 have deposed against the accused no.3, accused no.4 or accused no.5. It is further submitted that sanction for prosecution was granted under Sections 3(1) and 3(4) by the Sanctioning Authority but the charges were framed under Sections 3(1)(i), 3(1)(ii), 3(2) and 3 (4) and as such the whole prosecution is vitiated. 4. The case of the prosecution was that over a period of time in terms of Section 3 of the M.C.O.C.Act the accused committed office as members of the organized crime syndicate and as such they had committed offence under Section 3 of the M.C.O.C. Act. It is not disputed by the learned Public Prosecutor that whether the cases end in acquittal or conviction, in order to prove a charge under Section 3 of the M.C.O.C. Act the prosecution has to independently show that a case is made out under Section 3 of the M.C.O.C.Act. Therefore, this court will have to see independently from the evidence produced in this case whether the charges framed against the accused were proved or not. 5 5. Though it is a fact that the cases to which a reference is made by P.W.1 to 3 all ended in acquittal of the accused, the foremost ground to attack the testimony of P.W.1 to 3 is that all the three incidents to which these witnesses stood witnesses and with respect to which they have testified, happened during night. The accused and the witnesses had no prior acquaintance and they were for the first time identified in the court after more than two years. This is not believable. 6. P.W.1 stated that they have a farm house and all the family members including her husband, his parents, his brother and their children jointly reside in the said farm house. This house has three rooms. In the night in between 23rd December, 2000 and 24th December, 2000, when all the members of the family had slept, at about 2.00 a.m. the thieves entered in their house from the door of the room in which the younger brother of her husband along with his wife and children had slept. As soon as they entered the room, the thieves started assaulting Ramesh, who was the younger brother of her husband. On hearing commotion they woke up and they saw two thieves in their room. There was a connecting door in between the room where P.W.1 and her family members had slept and the room where Ramesh and his family members were sleeping. The thieves, who were in her room did not allow her to go to the adjacent room where 6 the other thieves were assaulting Ramesh and his wife. As soon as her husband woke and stood up, the thieves who were in her room started assaulting her husband. The thieves assaulted her husband with iron rod and wooden stump. They snatched ornaments i.e. Dorale, ear-rings, anckle-chains from her person. The thieves also snatched a gold ring from the finger of her husband and a wrist watch of Titan company. P.W.1 stated that at the same time they also snatched same type of ornaments from the wife of Ramesh. Thereafter, one of the thieves broke the burning electric bulb which was in her room by giving a stick blow. Then the thieves ran away. Thereafter they went outside their house. Ramesh and his wife had sustained bleeding injury. Her husband had also sustained bleeding injury. On hearing commotion, the persons from the adjoining localities came and carried all injured to the hospital at Pargaon. Thereafter, they were referred to Sassoon Hospital and admitted there. In the morning, Police visited their house and recorded her complaint. At the time of incident, she had seen four thieves. She was then called to the Police Station, Shirur, to identify the thieves and there she identified two thieves, to whom she had seen at the time of incident in their house. She identified two persons in the Court as Sawalaram and Tulshiram, who are accused nos.1 and 3. 7 In cross-examination, she stated that she had seen the accused Tulshiram thrice; firstly on the date of occurrence, secondly in the police station and thirdly in the Court. She did not know the accused prior to her statement having been recorded in the police station. 7. It is submitted by the learned Counsel that it is even a case of the prosecution that the witness did not know the accused prior to the occurrence. But from the statement of P.W.1 it appears that the accused were shown to the witness in the police station for the first time i.e. After the occurrence as she has stated in her statement, “Prior to the date of incident, I was not knowing any of the accused. My statement pertained to this case was recorded in police station, Shirur”. In any case this witness has claimed only to have seen two accused and identified two accused. Identification of the accused persons in the open court after two years of occurrence, when the occurrence had taken place, according to P.W.1, at 2.00 a.m. there had been no acquaintance between the accused and witness becomes doubtful. 8. Similarly, P.W.2, Pushpa Sambhaji Gund, has stated in her statement after narrating as to what had happened after her husband fell unconscious, she was raped and how her husband died. She stated that occurrence had taken place at night at about 9.00 or 10.00 p.m. She was 8 called for identifying the ornaments. Thereafter, she was called for identification parade. This identification parade was held at Police Station, Shirur. During identification parade she identified eight thieves. She identified three accused viz. Sawalaram, Dhondiram and Natwar in the court. She identified the ornaments which were stolen but nobody was examined by the Police concerned as to from where these ornaments were produced. 9. P.W.3, Jayashree Deepak Ranpise, is another witness, who stated that the occurrence took place on 23rd December, 2000 in the night at about 11.30 p.m. She gave the account of the occurrence. When she, her mother-in-law and other members were sleeping, somebody opened the door of her bedroom. As soon as the door was opened, she woke up and saw six persons entering in her room. As soon as they entered her room, one of them gave a stick blow on her back and one of them dealt knife blow on her head. The persons, who assaulted her, snatched Mangalsutra and ear-rings fro her person. Thereafter, they left her room and went to the room where the wife of the brother of her husband had slept. Then she heard the shouts of Swati, who is the wife of the younger brother of her husband. At that time she heard commotion of assaulting Swati. Therefore, she rushed towards the house of Shivaji, who is cousin brother of her 9 husband, where her husband had gone to see T. V. programme. The house of Shivaji was beyond the road in front of their house. She informed the incident to her husband and along with her husband and others returned back to their house. By that time, the thieves had left their house taking away a suitcase containing ornaments. That time Swati had sustained bleeding injury due to assault by the thieves. Thereafter, the injured were taken to Pargaon hospital by her husband and Shivaji. Swati was admitted in the hospital for one day and was shifted to the hospital at Wanawari. In the next day morning, police visited their house and recorded her statement. After 8 days, she herself as well as Swati were called to Police Station, Shirur for identification parade. This identification parade was conducted in the office at Shirur. During identification parade, she identified six thieves, who had committed dacoity at their house. In the Court, she could identify four thieves. 10. The proceedings relating to the identification was not produced before the Court. It is admitted that there was no acquaintance between the accused and the witness prior to the occurrence. The occurrence had taken place at mid-night and therefore the identification of the accused by the witness after two years in the court creates its own doubt whether the witness had actually seen some persons committing offence in their house, 10 who were produced before the court as accused. Since we have not found any material connecting the accused with the crimes, we are not going into the other issues and allowing the appeals on this ground alone. 11. For the reasons afore stated, we feel that the prosecution has not been able to prove the guilt of the accused beyond shadow of doubt. Therefore, all the aforesaid three appeals are allowed. The order of conviction and sentence passed by the Learned Special Judge, (Under M.C.O.C. Act), Pune, by his Judgement and Order dated 28th April, 2005 in Special Case No. 8 of 2002 is set aside. All the accused are acquitted of all the charges and it is directed that they be released forthwith if not required in any other case. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)