1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.655 OF 2000 Rajendra @ Raju Netrapal Walmiki ..Appellant.(Org.Accd.no.1) Convict Prisoner No.C/11309 Yerwada Central Prison, Pune- 411 006. v. The State of Maharashtra ...Respondent. WITH CRIMINAL APPEAL NO.815 OF 2000 Rajveer @ Raju Karansingh Walmiki ...Appellant.(Org.accd.no.3) Convict Prisoner No.C/11311 Yerwada Central Prison, Pune- 411 006. v. The State of Maharashtra ...Respondent. CRIMINAL APPEAL NO.917 OF 2000 Pradeep Dhondiram Salvi ...Appellants(Org. Accused no.4) Convict Prisoner No.C/11310 Yerwada Central Prison, Pune- 411 006 v. The State of Maharashtra ...Respondent. (Org. Complt.) Mr.Arfan A. Sait Advocate Appointed For the Appellants. Smt.R.V.Newton, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : 2nd December , 2009 2 ORAL JUDGMENT: 1 All these three appeals arise out of the judgment in Sessions Case No.965/97 passed by the learned Additional Sessions Judge, Bombay. Said appeals are filed by the original accused nos.1,3 and 4 respectively against the sentences awarded to them. 2 Present appellants, i.e., the accused nos.1,3 and 4 and the accused no.2, were convicted of the offences punishable under Sections 120-B and were sentenced to undergo R.I. for ten years and to pay fine of Rs. 1,000/- each. Accused Nos.1 and 2 were convicted for the offences punishable under Sections 450, 397 and 398 of the I.P.C. and under Sections 37(1-b) read with Section 135 of the Bombay Police Act and awarded sentence of imprisonment for varying periods. Accused no.2 was also convicted and sentenced for the offences punishable under Section 394 and 307 of the I.P.C. Accused no.2 had preferred an appeal which was dismissed long back. Therefore, now we are concerned with these 3 appeals filed by the accused nos.1,3 and 4 only. 3 Prosecution case in brief is that P.W.1 Mrs. Beryl , her husband P.W.2 David and their daughter P.W.3 Dr. Naomi used to reside in flat no.1, ground floor at Jackson House, BPT Colony, Colaba, 3 Mumbai-5. On 21.5.97 at about 5.45 a.m. the door bell of the house rang. Presuming her maid servant Sudha at the door, P.W.1 Beryl opend the door. At that time, a person entered into the house and showed a piece of paper to P.W.1 Beryl and asked whether she had placed an order. She replied in negative but at the same time said person put a knife on her throat and knocked her down. Meanwhile 5 or 6 persons armed with different weapons followed that person and closed the door. She shouted for help and her husband and daughter woke up and came. One of the culprits demanded keys of the cupboard from her husband, who refused to give. On that, said person assaulted David with a chopper on his head and other parts. Their daughter Naomi intervened but she was also assaulted and several injuries were caused on her head, neck and her two fingers, which were cut. At that stage, Mrs. Beryl ran towards the rear door of the house and shouted for help. Due to this culprits ran away from the front door of the house. P.W.2 David and P.W.3 Naomi were taken to the hospital in serious injured condition. After getting telephonic information about the incident P.W.16 PSI Pramod Makeshwar rushed to the spot and then went to the hospital where David was admitted. He recorded F.I.R (Exhibit 10) of Mrs.Beryl (P.W.1). On the spot of the incident besides broken pieces of glass and broken pieces 4 earthern pots, he also found a letter or note, Exhibit 11. That letter was allegedly given by P.W.1 Beryl to their servant accused no.3 Rajveer @ Raju Karansingh Valmiki so that by showing that letter to the security guard he could get entry in the house. Accused nos.1,4 and 5 were arrested on 3.6.97; accused no.3 was arrested on 6.6.97 and accused no.2 was arrested on 8.6.1997. Three more persons, who were allegedly involved in the said incident, could not be arrested. During the investigation a knife was recovered on the basis of information given by the accused no.1 Rajendra @ Raju Netrapal Valmiki and on the basis of information given by the accused no.2 Govind, a chopper was recovered. Clothes of David and the weapons were referred to C.A. C.A.Reports were received. After investigation, police filed chargesheet against the accused nos.1 to 5 and 3 absconding accused persons. 4 On the basis of charge-sheet filed by the police, Sessions Court charged accused nos.1 to 5 for the offences of conspiracy punishable under Section 120-B. Accused nos.1 and 2 were also charged for different offences for which they have been convicted. On behalf of the prosecution, in all 17 witnesses were examined. 5 To prove the evidence, prosecution mainly relied on evidence of P.W.1 Mrs.Beryl, P.W.2 David, their daughter P.W.3 5 Dr.Naomi and also the evidence of P.W.4 Rohit Daniel who resides in the same building. Evidence of these witnesses goes to show that P.W. 1 to 3 were residing in the flat no.4 in Jackson House BPT Quarters while P.W. 4 Rohit was residing in flat no.2 in the same building. Accused No.3 Rajveer @ Raju and accused no.4 Pradeep were previously working as servants at the house of P.W.1 to 3. Accused No.4 Pradeep had left the job 1 or 2 months prior to the incident. Accused no.3 Raju had left their job only one day before the incident. On 21.5.1997 at about 5.45 a.m. door bell of the house of P.W.1 Mrs.Beryl rang and, therefore, presuming that it might be their maid servant Sudha, she opened the door but abruptly one person, who was identified as accused no.1, entered into the house and he was followed by 5 or 6 more persons . All of them were armed with weapons. Accused no.1 who had entered the house first showed a piece of paper to P.W.1 Mrs. Beryl and asked whether she had placed an order. She denied. However, abruptly accused no.1 took out knife and put on her neck and knocked her down. Hearing her shouts, her husband and daughter also came there. One of the culprits, who was identified as accused no.2, demanded keys of the cupboard and on refusal to hand over the keys, said accused no.2 assaulted P.W.2 on his head with the chopper. Their daughter P.W.3 Naomi intervened but she 6 was also seriously injured with the chopper. Several injuries were sustained by P.W.2 and 3. Evidence reveals that P.W.1 Mrs. Beryl went to the backside door and shouted for help and many persons from the same building came out. However, being alarmed, culprits escaped from the front door of the house. P.W.4 Rohit claims to have heard shouts and come to the spot. According to him, he had seen three persons running away from the house of P.W.1. 6 After the said incident, P.W.2 David and P.W.3 Dr. Naomi were taken to the hospital. P.W.7 Dr.Anil and P.W.10 Dr. Sanjay Kalgutkar had examined P.W.3 Dr. Naomi and proved injuries which she had suffered in the said incident. She had suffered number of incised and cut wounds on her head, hands and two of her fingers. All these injuries required suturing. P.W.11 Dr. Vijaykumar examined P.W.1 David and proved injuries suffered by him. P.W.14 Madhavan Menon was clinical assistant of Dr. Bhagwat in Bombay Hosptial. P.W.15 Dr. Rajkumar had also attended P.W.1 David at Bombay Hospital. These three witnesses proved several injuries, which were suffered by P.W.2 David in the said incident. As per the evidence of these doctors injuries suffered by P.W.2 David and P.W.3 Naomi could be caused by sharp and cutting weapons like knife and chopper. Evidence of these witnesses was not seriously 7 challenged as far as the incident is concerned or about the injuries suffered by P.W.2 and P.W.3. 7 From the evidence, it is established that 5 or 6 persons had trespassed into the house of P.W.1 to 3 with intention to commit robbery and they were armed with weapons and they had come prepared to cause injuries to or death of inmates for the purpose of committing offence of robbery. In that attempt atleast one of them had caused injuries to P.W.1 and 3 with sharp and cutting weapons. Therefore, it must be held that the offences punishable under Section 450, 394, 397, 398 and 307 of the I.P.C. were committed. It is also established by the prosecution that the Deputy Commissioner of Police had issued a Notification on 28th April, 2007 published in the gazette on 2nd May, 1997 whereby he had under Section 37(1) and (2) of the Bombay Police Act put a ban on carrying of any arms, weapons, etc. from 3rd May to 2nd June, 1997. It is also proved that besides publication in the Gazette, it was actually given publicity and, therefore, that order under Section 37(1) and (2) was in force when the incident of this case occurred on 21.5.1997. Thus, it is proved that culprits had violated prohibition under Section 37(1-b) punishable under Section 135 of the Bombay Police Act. 8 P.W.5 Manish Sawant, who was Special Executive Officer 8 has proved that he had held test identification parade on 26.7.1997 for identification of five suspects. For that purpose he divided those suspects into two groups. Test Identification Parade was held within the premises of Arthur Road Jail. According to him, firstly three suspects alongwith 13 dummies were put to test identification parade and in second lot two suspects with different sets of dummies were put to test identification parade. In the first lot P.Ws. 1, 2 , 3 and 4 identified the accused nos.3 and 4, who were standing at Sr.Nos. 10 and 13 alongwith the dummies. In the second lot all these four witnesses identified the accused nos.1 and 2, who were standing at Sr.Nos.4 and 10. He clarified that after identification by every witness, he had offered accused persons to change their clothes or their location in the line alongwith dummies but the suspects had refused to change either their clothes or the location. P.W.1 Mrs.Beryl, P.W.2 David, P.W.3 Dr. Naomi and P.W.4 Rohit also proved these facts during their evidence before the Court. While P.W. 2, 3 and 4 identified the accused nos.1 to 4 , P.W.1 identified the accused nos.2 to 4. It is material to note that she claimed to have identified the accused no.1 during the test identification parade but during the evidence before the Court she pointed to accused no.5 as accused no.1. However, as per the Memorandum of Test Identification Parade prepared by P.W.5 9 Manish, she had identified the accused no.1 and not accused no.5 during the test identification parade. Her evidence was recorded before the Court two years after the incident and, therefore, there could be loss of memory due to lapse of long time. Fact remains that P.W.2, 3 and 4 identified the accused nos.1 to 4 not only during the test identification parade but also at the time of the recording of their evidence. 9 It is material to note that accused nos.3 and 4 were in the employment of P.W.1 prior to the incident and, therefore, they were known to them and, therefore, their identification at the time of test identification parade or before the Court does not itself go to establish that they had also participated in the said attempt to commit robbery or in the assault. Infact, none of them deposed before the Court or the Special Executive Magistrate at the time of test identification parade that the accused nos.3 and 4 were present at the time of incident. If they would have been present at the time of incident, these witnesses could have easily given the names of those persons in the F.I.R. and the statements recorded by the police. Fact remains that in the F.I.R. lodged by P.W.1 Mrs.Beryl and the statements made by other three witnesses before the police they had stated that the culprits were unknown persons. It is not the case of the prosecution that the accused nos.3 and 4 had actually 10 participated in the incident. Test identification parade was held to link them with this crime on the ground that there was conspiracy and charge under Section 120-B was framed against all the five persons including absconding accused. I will deal with charge under Section 120-B at the later stage. At this stage it may be noted that it has been proved by the prosecution that the accused nos.1 and 2 were the persons, who were involved in the actual incident and they were identified as such not only during the test identification parade but also during the evidence before the Court. 10 Investigating Officer, P.W.17 PSI Abdul Rauf Mohd. Ismail and P.W.6 Narayan, who was a panch witness, proved that on the basis of information given by the accused no.1, the knife, Article 3 was recovered. In the first part of the panchanama Exhibit 23 circumstances leading to recovery of knife were recorded and Exhibit 23A is the second part of the panchanama whereunder knife article 3 was recovered and seized. P.W.17 PSI Abdul Rauf Ismail and P.W.8 Mohammed proved recovery of chopper article 2 on the basis of information given by the accused no.2 as per the panchanama Exhibit 28 and 28A. Evidence of these witnesses could not be shattered in the cross-examination on behalf of the accused. As per the C.A. Reports, blood group of P.W.2 David 11 and of P.W.3, Naomi was ‘B’ and blood of the ‘B’ group was also found on the chopper. Chopper was recovered on the basis of information given by the accused no.2. Presence of blood group ‘B’ which could be of P.W.2 and 3, on the chopper provides corroboration to the prosecution story that accused no.2 had actually assaulted P.W.2 and P.W.3 with the chopper and caused serious injuries to them. It is proved that the accused no.1 had participated in the incident and recovery of weapon from him, also provides corroboration against him. In view of the evidence on record, it must be held that charges under Sections 450, 397 and 398 of the I.P.C. and under Section 37(1-b) read with Section 135 of the Bombay Police Act were proved against the accused nos.1 and 2. It is not necessary to deal with specific charges only against the accused no.2. 11 Now we are left with charge under Section 120-B for which all the present appellants/accused nos.1,3 and 4 alongwith the accused no.2 were convicted. It is settled position of law that charge of conspiracy can be proved by direct as well as circumstantial evidence and most of the times, direct evidence to prove the charge of conspiracy is not available because conspiracy is generally hatched in secrecy and executed in dark. However even when direct evidence to prove the 12 charge of conspiracy is not available, it is necessary for the prosecution to establish the charge beyond the reasonable doubt for which prosecution may rely on the circumstantial evidence. When the prosecution relies on the circumstantial evidence, chain of all the circumstances must be complete to rule out any hypothesis of innocence. In the present case, there is no direct evidence of conspiracy. Prosecution relied only on a letter or note Exhibit 11 which was allegedly given by P.W.1 Mrs. Beryl to the accused no.3 so that he could get entry in the house. She deposed that she had given that letter or note on the letter- head of her husband David to the accused no.3 so that he could show it to the security guard for getting entry. Accused no.3 had left the job day before the incident as per the evidence. However, immediately after the incident, note Exhibit 11 was found at the scene of the offence and it was recovered and seized under spot panchanama. According to the prosecution, the presence of that note, Exhibit 11 on the spot of the incident goes to show that there must have been some conspiracy involving the accused nos.3 and 4, who were previous employees of the P.W.1 and that the note Exhibit 11 was given by accused no.3 to the actual culprits so that they could get entry into the house with the help of that note. The learned trial Court convicted the accused nos.1 to 4 for the 13 offence of conspiracy punishable under Section 120-B only on the basis of recovery of that note, Exhibit 11 from the scene of the offence. Though in the cross-examination on behalf of the accused no.3, it was never suggested by the learned defence counsel that the said note Exhibit 11 was not given to the accused no.3, he pointed out in the cross-examination that on the said note, name of the person to whom it was issued was not written. The learned counsel for the appellants vehemently contended that as per the evidence of P.W.2 number of persons had served at their house at different times and it is possible that this note might have been given to any of them. However, it is material to note that as per the evidence of P.W.1, she had given this note to the accused no.3 and this was not denied specifically during the cross- examination and therefore, it may be held that this note might have been given to the accused no.3. 12 This much evidence, at the most, may lead to suspicion against the accused no.3. The suspicion, howsoever strong it may be, can not be a substitute for the evidence to prove the offence. In the present case, except that, said note Exhibit 11 was previously given by P.W.1 Mrs. Beryl to the accused no.3 and at the time of incident, this note was found on the spot of the incident. There is no other evidence to 14 prove conspiracy or participation of the accused no.3 in the offence. It is material to note that in the statement recorded under Section 313 Cr.P.C., no question was put about the said note Exhibit 11 to any of the accused persons and particularly, accused no.3. In question 2, which is almost common in respect of every accused, complete prosecution story is put and that question itself runs in one page. However, in that question also, there is no reference with regard to the note, Exhibit 11. The trial Court solely relied upon the note Exhibit 11 and on the basis of that document alone, came to conclusion that conspiracy to commit offence was established. It is well settled position of law that any material or circumstance, which may be used against the accused should be put to him in the statement under Section 313 of the Cr.P.C. so that the accused may get an opportunity to explain the circumstances and material against him. It is also well settled that when any material or circumstance is not put to the accused and opportunity is not given to him to explain that material or the circumstance, that cannot be used against him for the purpose of conviction. In the present case, the note Exhibit 11 was not just one of the so many circumstances to establish the fact, it was solitary circumstance on the basis of which prosecution sought to prove the charge of conspiracy and, therefore, this document 15 and the finding of that document on the scene of the offence was most vital piece of evidence. It was absolutely necessary that to put the same to the accused in the statement under Section 313 of the Cr.P.C. so that he could get opportunity to explain the same. The learned counsel for the accused/appellants vehemently contended that there could be several circumstances in which the note, presuming that it was previously in possession of the accused no.3, could come to the hands of any other person. According to him, once, the accused no.3 had left the job, this note was of no use to him. It is possible that he might have thrown it away and it might have been picked up by somebody else. It is also possible that some person might have mislead him and taken possession of that letter from him or somebody might have snatched away that letter from him and misused the same. It is not that any of these circumstances was infact available but when the possibility of such circumstances can not be ruled out before the said document could be used against the accused to prove the charge of conspiracy, it was necessary to put the facts to him under Section 313 of the Cr.P.C. so that he could explain the circumstances in which document came in possession of the culprit who had been to the spot of the incident. No such opportunity was given to the accused and, therefore, in view of the 16 settled position of law, this document and the circumstances in which it was found at the scene of the offence could not be used against him to prove the charge of conspiracy. For the same reasons, finding of this document could also not be used against any other accused person because none of them was given opportunity to explain the said document or the circumstances. Once the document Exhibit 11 is kept aside and is not taken into consideration, there is no of evidence to prove the charge of conspiracy against any of the accused persons and, therefore, charge under Section 120-B must fail. 13 It also needs to be noted that while the prosecution relied upon said note Exhibit 11 to prove the charge and to implicate accused no.3 in the offence, there was no evidence on record to connect accused no.4 either with the said document or with the commission of the offence. There is no direct or circumstantial evidence against the accused no.4. It is difficult to understand on what basis the learned trial Court came to conclusion that charge of the conspiracy is established against the accused no.4. Taking into consideration the evidence on record, it must be held that even if note Exhibit 11 is taken into consideration, still there is no material or evidence to prove the charge against the accused no.4. 17 14 In view of the aforesaid facts and circumstances, it must be held that prosecution has failed to prove the charge under Section 120-B against any of the accused persons and, therefore, accused nos.1,3 and 4, who are the appellants before this Court, are entitled to be acquitted of that charge. 15 For the aforesaid reasons, Criminal Appeal No.655 of 2000 filed by the Accused/Appellant No.1 Rajendra @ Raju Netrapal Walmiki is hereby partly allowed. While his conviction and the sentence awarded for the offences punishable under Sections 450, 397 and 398 of the Indian Penal Code as well as for the offence punishable under Section 37(1-b) read with Section 135 of the Bombay Police Act are hereby confirmed, conviction and the sentence awarded for the offence punishable under Section 120-B of the I.P.C. is hereby set aside. 16 Criminal Appeal No.815 of 2000 filed by the accused no.3 Rajveer @ Raju Karansingh Walmiki as well as Criminal Appeal No. 917 of 2000 filed by the accused no.4 Pradeep Dhondiram Salvi are hereby allowed and the order of conviction and sentence under Section 120-B of the I.P.C. against them is hereby set aside. 17 As per the statement made by the learned APP on telephonic instructions from Mr.Sorate from Yerwada Central Prison, Pune and 18 Mr.Bohi from Kolhapur jail, taken by Jailor Patil, accused persons have already been released after undergoing complete sentence. Hence, no further order about their release. (J.H. BHATIA,J.)