1 apeal.1144-2011.sxw acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1144 OF 2011 WITH CRIMINAL APPLICATION NO. 1168 OF 2011 IN CRIMINAL APPEAL NO. 1144 OF 2011 Rohidas Anna Jadhav ..Appellant. Vs. The State of Maharashtra ..Respondent. ----- Mrs. Sulbha A. Dhamale, for the Appellant. Mr. Y.S. Shinde, A.P.P. for the State. ---- CORAM: M.L. TAHALIYANI, J. DATED: SEPTEMBER 19, 2011. P.C.: 1. Heard Mrs. Dhamale, learned counsel for the appellant and Mr. Shinde, learned A.P.P. for the State. 2. Admit. 3. By consent, the appeal is taken for final hearing. 2 apeal.1144-2011.sxw 4. The appellant along with other two accused were charge sheeted by Yawat Police Station for the offences punishable under Sections 399 and 402 of I.P.C. 5. It was alleged that the appellant-Rohidas Jadhav, accused no.2 Balu Mohan Dikole and accused no.3-Raosaheb Laxman Jadhav, in the intervening night on 11th and 12th August, 2008, had made preparation for committing dacoity, and at the same time they had assembled for the purpose of committing dacoity. It was alleged that the appellant, accused nos.2 and 3 along with some other associates of the appellant were apprehended by police in Scorpio vehicle at Toll check post at Solapur- Pune highway. The police had kept watch near Kasrudi check post on the basis of certain information that some persons were likely to commit dacoity at Kale Petrol Pump situated at Choufula chowk on Solapur-Pune highway. During the course of checking a Scorpio vehicle bearing registration no. MH-12-AC-2137, was intercepted. As soon as the said vehicle was intercepted, the persons occupying the vehicle started running away from the vehicle. The appellant was apprehended on the spot, however, the other accused succeeded in running away from the spot. It is 3 apeal.1144-2011.sxw alleged that they were about five to six persons. The police officers who had kept watch on the spot, had tried to chase them. However, they could succeed to apprehend one Mr. Rohidas Jadhav the appellant herein. Other culprits had managed to run away taking advantage of darkness. Thereafter, the said Scorpio vehicle was taken into custody. During the course of search, the police had recovered three wooden logs, one steel pipe, one knife, one torch, one plastic bag containing chilly power and one map of petrol pump. All articles were seized under panchanama, and the appellant was arrested on the spot. During the course of investigation, the names of accused nos.2 and 3 were disclosed by the appellant. And therefore, accused nos.2 and 3 were also arrested. The investigation also revealed that Scorpio vehicle belonged to one Mr. Dasharath Dikole a resident taluka Barshi, district Solapur. The statement of said Dashrath the owner of the vehicle was also recorded. He had stated before the police in his statement that the said Scorpio vehicle belonged to him. The appellant-Rohidas was working as a driver on the said vehicle. The native place of the driver was 10 kms away from the native place of the owner of the Scorpio vehicle. It was stated by him that on 10.8.2008 as usual the said vehicle was taken by the appellant on the ground that it was to be plied on hire. Mr. Dikole played ignorance of the incident in question, and stated that he came to 4 apeal.1144-2011.sxw know about the incident only when the police visited his house. 6. On completion of the investigation, a charge-sheet was submitted in the court of the J.M.F.C. The case was committed to the Sessions Court. The learned Additional Sessions Judge, Baramati had framed the charge against the appellant-Rohidas, accused no.2 Balu Mohan Dikole and accused no.3-Raosaheb Laxman Jadhav, for the offences punishable under Sections 399 and 402 of I.P.C. All of them had pleaded not guilty and had claimed to be tried. 7. During the course of trial in all seven witnesses were examined by the prosecution. The panch-witnesses, in whose presence a search of the Scorpio vehicle was taken, had not supported the prosecution case. However, two of the employees working at the check post had supported the prosecution case. 8. PW-1 Shri Bharat Holka, who was working as the Police Head Constable attached to Yawat Police Station, had stated before the learned trial court that he along with A.P.I. Mr. Mohite and other police personnel were on duty at Kasurdi check post at Pune-Solapur highway. A.P.I. Mr. 5 apeal.1144-2011.sxw Mohite had received information that some persons travelling in Scorpio vehicle were likely to commit dacoity at petrol pump owned by Mr. Kale. Therefore, vigil was kept on all the vehicles passing through the said check post. PW-7 Shri Rajendra Moite, A.P.I. has also more or less given similar evidence with regard to deployment of the police personnel at the said check post. Both have stated that Scorpio vehicle was intercepted and the appellant was apprehended from the said vehicle. During the course of search, three wooden logs, one steel pipe, one knife, one torch, one plastic bag containing chilly power and one map of petrol pump were recovered and seized under panchanama. The names of accused nos.2 and 3 were disclosed by the appellant. Both the witnesses have stated that there were five to six persons in the said vehicle. However, as soon as the vehicle was intercepted by the police all the accused had tried to run away, and only appellant could be apprehended. 9. PW-2 Shri Bapu Thombre, was one of the employees at the check post. He has stated that Scorpio vehicle bearing registration no. MH-12/AC-2137 was intercepted by the police and search was taken. However, he had not identified the appellant to be the person who has been apprehended by the police. During the course of recording of evidence, 6 apeal.1144-2011.sxw PW-3 has given more or less similar evidence. This witness, however, had identified the appellant when the evidence recording was in progress. He identified the appellant as the same person who was apprehended by the police. As stated earlier, both the panch-witnesses have not supported the prosecution case. 10. Mrs. Dhamale, learned counsel for the appellant has submitted that no case is made out, as alleged by the prosecution. It is submitted that all the articles which were found in the vehicle were planted. The prosecution story itself, without cross-examination of the witnesses, does not inspire confidence to say that the appellant and others had assembled to commit dacoity or had made preparation to commit dacoity. It was submitted by her that the owner of the Scorpio vehicle has not been examined. It is her contention that had the owner of the vehicle been examined, the appellant would have got an opportunity to place his case before the trial court. It is her contention that non examination of the owner of the vehicle had adversely affected the interest of the appellant. In brief, she has submitted that the trial court should have drawn adverse inference of non-examination of owner of the vehicle. In addition, it is further submitted that it is not believable that such big pose of the police officers 7 apeal.1144-2011.sxw could apprehended only one person out of five to six persons. According to her, it is unbelievable that the persons who wanted to loot the petrol pump in the same locality would be carrying the vehicle registered in the same area and owned by the person in the same area. 11. Mr. Shinde, learned A.P.P. for the State, however, vehemently submitted that in the case of preparation for committing dacoit, the prosecution could produce only weapons found in the possession of the persons who had assembled and had made preparation for committing dacoit. It is further submitted by Mr. Shinde that it is for the appellant to explain as to how the weapons like wooden logs, steel pipe and knife were found in the vehicles, which he was driving. 12. Though the learned A.P.P. has argued the case on behalf of the State with great vehemence, I am not in agreement with the learned A.P.P. that evidence of witnesses examined by the prosecution inspiredconfidence. However, I am in agreement with Mrs. Dhamale, learned counsel for the appellant that the trial court should have drawn adverse inference for non prosecution of the owner of the vehicle. It may be noted here that if the appellant and the others wanted to commit dacoit, 8 apeal.1144-2011.sxw they would not have used the vehicle which the appellant has been regularly driving on behalf of the owner. At the same time, the evidence given by two police officers that the other associates of the appellant ran away taking advantage of the darkness is not acceptable. The learned trial should have noted that PW-7 Mr. Mohite, AP.I. claimed to have advance intimation of the alleged preparation of committing dacoit. In the circumstances, the police should have taken necessary precaution to ensure that nobody could escape from the check post. I have taken note of the fact that sufficient light was available in the ordinary course at the check-post. It is not the case of the prosecution that the light was not available on the check post on the date of incident. 13. The learned A.P.P. has submitted that it was for the appellant to explain as to how the wooden logs, steel pipe and chilly powder were found in the Scorpio vehicle. In this regard, it is needless to state that the prosecution has to stand on its own legs. The appellant was under no obligation to explain the circumstance which was not specially within his knowledge. The Scorpio vehicle belonged to one Mr. Dikole. Statement of Mr. Dikole was recorded during the police investigation. 9 apeal.1144-2011.sxw 14. The prosecution has failed to give any explanation as to how the said Dikole has not been examined during the course of trial. The Scorpio vehicle was always lying in the custody of the said Mr. Dikole. The appellant was only employee and was having possession over the vehicle only when the same was hired. In the circumstances, it was necessary for the prosecution to examine the said witness viz. Mr. Dikole. 15. From the narration of the incident by the prosecution witnesses, including the police officers what appears to me is that the possibility of false implications cannot be ruled out. A packet of chilly powder and all these minor articles can be easily planted. Since the evidence of the prosecution witnesses do not inspire confidence at all, I hold that learned trial court should not have accepted the evidence of such doubtful charater and should have rejected the case of the prosecution. 16. Apart from doubtful character of the evidence in respect of seizure of the articles from the Scorpio vehicle it is pertinent to note is that neither the police officer nor any other witnesses has stated that they had heard appellant and others discussing their plan to commit dacoity 10 apeal.1144-2011.sxw at the petrol pump. It was, therefore, erroneous on the part of the learned trial court to come to the conclusion that the appellant was guilty of the offences punishable under Sections 399 and 402 of I.P.C. only on the basis of the alleged recovery of wooden logs, steel pipe etc from the Scorpio vehicle. 17. For all these reasons, I have come to the conclusion that the appeal must succeed, and the order of the trial court needs to be set aside. 18. Hence, I pass the following order: (i) The appeal is allowed, and the judgment and order dated 30.8.2011 passed by the learned Additional Sessions Judge, Baramati in Sessions Case No.27 of 2010 convicting the appellant for the offences punishable under Sections 399 and 402 of I.P.C. is set aside. (ii) The appellant is acquitted of both the offences. The appellant shall be set at liberty forthwith, if not required in any other case. 11 apeal.1144-2011.sxw (iii) Consequently, the criminal application no.1168 of 2011 for bail does not survive and the same is disposed of accordingly. (M.L. TAHALIYANI, J.)