( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 901 of 2007 CRIMINAL APPEAL No. 901 of 2007 CRIMINAL APPEAL No. 901 of 2007 WITH WITH WITH CRIMINAL APPLICATION No. 347 OF 2008 CRIMINAL APPLICATION No. 347 OF 2008 CRIMINAL APPLICATION No. 347 OF 2008 IN IN IN CRIMINAL APPEAL No. 901 of 2007 CRIMINAL APPEAL No. 901 of 2007 CRIMINAL APPEAL No. 901 of 2007 Madhukar Parshuram Khot. Age 36 years, residing at Narli Agripada, 18th road, Room No.16, Vavekar Chawl, Khar, Mumbai - 400 052. .. Appellant. (Original Accused No.3) versus. versus. versus. The State of Maharashtra. .. Respondent. Mr P.R. Dave with Sachin Dalvi for the Appellant. Mr Prakash Naik for the Applicant in Appln.No.347 of 2008. Mr S.R. Shinde, A.P.P. for the State. WITH WITH WITH CRIMINAL APPEAL No.976 OF 2007 CRIMINAL APPEAL No.976 OF 2007 CRIMINAL APPEAL No.976 OF 2007 WITH WITH WITH CRIMINAL APPLICATION No. 348 of 2008 CRIMINAL APPLICATION No. 348 of 2008 CRIMINAL APPLICATION No. 348 of 2008 IN IN IN CRIMINAL APPEAL No. 976 OF 2007 CRIMINAL APPEAL No. 976 OF 2007 CRIMINAL APPEAL No. 976 OF 2007 ( 2 ) Sunil Tukaram Dhepale. Adult, residing at Lalabhai Compound, Room No.15, Near Sadiwala Company, Achole Road, Nallasopara (East), District Thane. ..Appellant. (Original accused no.1) Mr H. E. Mooman with Mr R.G. Gadgil for the Appellant. Mr S.R. Shinde, A.P.P. for the State. Mr Ganesh Bhujbal with Prakash Naik for the Applicant in Appln.No. 348 of 2008. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. DATED : 16TH APRIL,2009. DATED : 16TH APRIL,2009. DATED : 16TH APRIL,2009. JUDGMENT: JUDGMENT: JUDGMENT: -------- -------- -------- 1. Both the criminal appeal Nos. 901 of 2007 and 976 of 2007 are being disposed of by this common judgment, as they are arising out of the judgment and order of conviction, dated 22.8.2007, passed by the learned 7th Ad hoc Additional Sessions Judge, Sewree, Mumbai is challenged in both these appeals, whereby original accused Nos. 1 and 3 are convicted for the offence punishable under Sections 341, 392, r/w sec.34 of the Indian Penal Code and ( 3 ) under Section 392 r/w sec. 397 of the I.P.C. and sentenced to suffer rigorous imprisonment (R.I.) for seven years each and to pay fine of Rs. 1000/- each, in default to suffer further R.I. for three months each. 2. By the said judgment, the appellant accused nos. 1 and 3 were, however, acquitted for the offence punishable under Section 4 read with Section 25 of the Indian Arms Act and under Section 37 (1)(a) r/w sec. 135 of the Bombay Police Act. By the said judgment and order original accused no.2 was acquitted. Criminal Appeal No. 901 of 2007 is preferred by original accused no.3, whereas criminal appeal No.976 of 2007 is preferred by original accused no.1. 3. Heard the learned Advocates for the respective appellants and the learned A.P.P.for the State. Perused R & P and the evidence led before the Trial Court. 4. Prior to discussing the rival submissions, the case of the prosecution, as ( 4 ) unfolded before the Trial Court, can be summarised as under:- . The complainant, a business man, doing money lending business by way of mortgaging gold and silver ornaments has his office situated at Chetna building, Ville Parle (West), Mumbai. On 7.12.2005 at about 11.00 a.m. he opened office. His office is having a cabin with automatic door. His office staff consists of one clerk Sachin Bagwe (P.W.3), one watchman Yashwant (P.W.4) and driver Rajesh Chavan (P.W.2). After the day’s work of the office was over, at about 7:00 p.m., two persons i.e. present appellant accused Nos. 1 and 3 entered his cabin by forcibly pushing the watchman (P.W.4) inside the cabin. The said accused persons took out a knife and chopper from the black colour rexin bag and they were demanding ornaments from the complainant (P.W.1). They threatened him on the point of weapons. Watchman was made to sit inside the cabin. One of the robbers took out 3,4 envelopes containing the ornaments from the drawer and also took out cash Rs. 50,000/-. ( 5 ) One of the robbers i.e. accused no.3 left the spot and fled away by taking watchman along with him outside the cabin. However, accused no.1 remained inside the cabin as the door of the cabin became locked automatically when he forcibly pushed the door due to such locking of the cabin door and the key of the lock from inside the cabin, accused no.1 caught trapped alongwith the complainant P.W.1. Accused no.1 tried to escape, sensing that he was trapped and his associate accused no.3 had already left. He gave threats to the complainant of killing and asked him to open the door. However, it was not possible without the key. 5. In an attempt to escape accused no.1 broke the glass partition of the cabin with the help of chair, however, prior to that he had taken the revolver of the complainant from the drawer and by that revolver he gave threat to the complainant to open the door. Due to such commotion and noise people gathered outside. Police persons who were patrolling in the area also arrived. Watchman, driver and clerk were also outside the office. They were also ( 6 ) gathered. Police entered the cabin by using the key from the outside and could apprehend accused no.1 only and took him to the police station. Complaint was lodged by Dinesh Bhailal Choksy, (P.W.1 complainant) and investigation was started. As such, it is the case in which as per the case of the prosecution, accused no.1 was found on the spot with a revolver along with some articles owned by the complainant. During the investigation, trace of accused no.3 was found and he was subsequently arrested on 12.12.2006. It is significant to note that the incident of robbery took place on 7.12.2005, whereas almost after one year accused no.3 was arrested. Also during the investigation the role of accused no.2 was also found as being the associate of accused nos. 1 and 3, he came to be roped in the case. However, for want of sufficient evidence he was acquitted by the Sessions Court. Herein the present appeals, this Court is concerned with the conviction of accused nos. 1 and 3. 6. During the arguments, learned Advocate ( 7 ) for accused no.3 submitted that the evidence of P.Ws. 1, 4, 6,7 and 11 is against accused no.3, however, it is required to be carefully scrutinized considering the deficiencies in the prosecution evidence, mainly as to non-examination of the Special Executive Magistrate who has conducted test identification parade. It is further submitted that the alleged recoveries at the instance of accused no.3 cannot be held as proved so as to link him with the offence of robbery. In order to appreciate these arguments broadly, the evidence of the prosecution witnesses led during the trial is being scrutinized. 7. P.W.1 is the complainant. He deposed as to the events occurred on the spot and as to lodging of the complaint. P.W.2 (Rajesh Chavan) is the driver of the complainant. Admittedly, he is not the eye witness of the actual incident of robbery, but has deposed as to finding of accused no.1 inside the cabin and detention of accused no.1 by the police. P.W.3 (Sachin Bagwe) is the clerk of the complainant, whose evidence is also on the same line as that ( 8 ) of P.W.2. P.W.4 Yashwant Mhaskar is the watchman, who deposed as to the arrival of accused nos. 1 and 3 and pushing him inside the cabin and thereafter committing the robbery and fleeing of accused no.3 from the spot and trapping of accused no.1 inside the cabin and his subsequent arrest by the police. P.W.5 is Harish Joshi, a witness of spot panchnama during which accused no.1 was also arrested. It appears that P.W.5 Harish Joshi has not supported the case of the prosecution, inasmuch as happening of the events on the spot. However, his evidence is to be viewed considering his answers given when questions in the nature of cross-examination were put to him by the learned A.P.P. on the permission of the Trial Court. P.W.6 Kailash Gupta is the panch witness concerning to three panchnamas conducted on 18.12.2006, 19.12.2006 and 25.12.2006, during which three different gold bars were recovered from different jewellery shops and this was happened at the instance of accused no.3. At this juncture, it must be mentioned that the same panch was used by the police for three different panchnamas. P.W.7 ( 9 ) is one of the police officer who reached the spot of incident immediately and took the accused no.1 into custody and thereafter called other police force. P.W.8 Shaikh is the Police Officer who also reached the spot on intimation from other police officers. P.W.9 Ashok Kalambkar is the Investigating Officer who conducted the investigation and filed charge sheet. P.W. 10 Mahesh Damankar is the another panch regarding spot panchnama and P.W.11 Lalitkumar Ashok Jain in whose presence gold bars were recovered at the instance of accused no.3. 8. Firstly,while dealing with the arguments advanced on behalf of accused no.3, it must be mentioned that admittedly the Special Executive Magistrate is not examined regarding test identification parade conducted at the jail, in which allegedly accused no.3 was put to test identification conducted on 3.12.2006 and much is argued on such delay, as accused no.3 was arrested on 12.12.2006. That too after the lapse of one year from the date of incident, though allegedly P.W.1 and P.W.4 ( 10 ) identified accused no.3 in the test identification parade, though mentioned that such parade was conducted in a room in the jail premises. It is significant to note that nowhere in the substantive evidence I.O. P.W.9 mentioned as to putting accused no.3 to test identification parade after such a long period, was brought on record only through court question and when the I.O. answered to the court questions and then produced the memorandum of test identification parade and it was taken on record as Exh.39 by the Trial Court without examination of the author of the said panchnama. In the opinion of this Court, such type of procedure and acceptance of such memorandum of test identification parade is not correct and legal procedure adopted by the trial Court and as such it must be said that there is no any substantive evidence as to actual conduct of test identification. Considering the factual position that incident of robbery was committed in a swift manner without wasting any time by the robbers, definitely, there was no much opportunity for P.W. nos. 1 and 4 to notice the identifying ( 11 ) features of accused no.3 so as to subsequently identify him in the T.I. parade after the lapse of one year. In the opinion of this Court, this is mitigating circumstance to the case of the prosecution and for which benefit must go to the accused no.3, as argued. 9. So far as recovery of gold bars is concerned, at the cost of repetition, it must be mentioned that same panch P.W.6 is used by the police on three different dates when allegedly accused no.3 took the police and panchas to different shops i.e. Chirag Jewellers, Prabhu Jewellers and Dipak Jewellers. Admittedly, only one jeweller P.W.11, Shri Jain, was examined and there is no evidence regarding earlier two recoveries of the dates 18.12.2006 and 19.12.2006. Further more, panch witness P.W.6 had identified not accused no.3 but accused no.2 during his evidence before the Court. Further more, P.W.11 had mentioned that he went to police station and gave the gold bars and that no such recovery occurred at his shop. Cumulative effect of the substantive evidence of P.W.11 ( 12 ) goes to show that there is a doubt as to whether accused no.3 had showed the jewellery shop and also there is a doubt as to whether at his instance there was a recovery, which can be linked to the stealing of the ornaments in the present matter. In view of such evidence as against accused no.3 in the opinion of this Court, the learned Trial Judge has not appreciated the said evidence in proper manner and in that event benefit of doubt must go in favour of accused no.3. 10. So far as involvement of accused no.1 is concerned, the learned Advocate Shri Mooman, appearing for accused no.1, vehemently argued, mainly mentioning, that if the cabin of the complainant had auto lock door, then, how the robbers at first instance entered the cabin and how accused no.3 could escape from the cabin when according to the case of the prosecution accused no.1 was trapped inside, due to auto locking of the cabin door. By pointing out this, it is submitted on behalf of the accused no.1 that the story of the prosecution as to apprehending the accused inside the cabin along ( 13 ) with the complainant cannot be believed. Secondly, it is argued that no any independent witnesses were examined from the crowd or from the neighbouring shops. 11. Thirdly, it is submitted that during substantive evidence of P.W.2 and P.W.3, they did not identify accused no.1 in the Court. Fourthly, it is submitted that if glass pieces and leather case of the revolver were seized by the police during panchnama when allegedly accused no.1 was arrested inside the cabin,the said articles were not produced before the Trial Court and as such it raises a doubt whether, in fact, accused no.1 was found on the spot. Fifthly, it is argued that senior P.I. Shri Shinde who conducted the arrest panchnama of accused no.1 is not examined and which is also fatal to the case of the prosecution. Apart from the above, main argument brought to the notice of the Court that according to P.W.8 P.I. Shaikh, F.I.R. was recorded on the spot, whereas according to P.W.1 said F.I.R. was recorded at Juhu police station. ( 14 ) 12. In dealing with the above arguments, it must be said that definitely there is substantive evidence of P.W. Nos. 1, 2 and 3 as to apprehending of accused no.1 on the spot due to his trapping in the cabin. Other attening circumstances as to substantive evidence of P.W.4 watchman and the factual position as to broken glass panel of the cabin corroborate the story of the prosecution as to there was some attempt for escape and then it must be accused no.1 who was trapped inside, tried to escape from the spot when due to his misfortune the door of the cabin was locked and he could not escape and could not follow the route of his associate. Considering the substantive evidence of P.Ws. 1 to 4 it must be said that their evidence has reached to that standard which is sufficient to prove the guilt of accused no.1 by way of his presence during the incident of robbery, beyond reasonable doubt. Needless to mention that hundred percent proof as to the guilt of the accused is not contemplated by law, as what is contemplated is the proof which is beyond reasonable doubt. As such, in order to ( 15 ) ascertain whether the prosecution has proved the case against accused no.1, it must be said that non-examination of any person from the crowd gathered outside the cabin is not of much significance. So far as the arguments as to non identification of accused no.1 by P.Ws. 2 and 3 in the Court it must be said that it is not the case in which they failed to identify accused no.1 but there was no such question posed to them whether said accused no.1 is the same robber who was trapped on the spot. In the cross-examination also there was nothing suggested to P.Ws. 2 and 3 that accused no.1 was not present on the spot, who was allegedly trapped in the cabin. In the opinion of this Court, mere silence of P.Ws. 2 and 3 as to mentioning that accused no.1 was the person who was trapped in the cabin is not of much significance and cannot be treated as mitigating circumstance to the case ofthe prosecution. 13. So far as non-examination of Senior P.I. Shri Shinde is concerned, it must be mentioned that had he been examined, it would ( 16 ) have been added advantage to the case of the prosecution. But his non examination cannot be treated as mitigating circumstance so as to establish the involvement of accused no.1 in the matter. 14. Considering the merit of substantive evidence of prosecution witnesses and mainly that of P.Ws. 1 to 4, the finding of accused no.1 trapped in the cabin and his attempt to escape by breaking the glass of partition, go to show that the prosecution has established the involvement of accused no.1 for the offences charged and as such there is nothing to set aside the impugned judgment and order as against accused no.1. 15. In the result, Criminal Appeal No. 976 of 2007 filed by accused no.1 must fail, while the criminal appeal No.976 of 2007 filed by accused no.3 must succeed. Hence, the following order is passed. ORDER. ORDER. ORDER. ----- ----- ----- 1. Criminal Appeal No.901 of 2007 is ( 17 ) allowed. The impugned judgment and order dated 22.8.2007 as against appellant - original accused no.3 Madhukar Parshuram Khot is set aside. He be released forthwith, if not required in any other case. 2. Fine amount,if any, paid by accused no.3, shall be returned to him. 3. Criminal Appeal No. 976 of 2007 stands dismissed and impugned judgment and order as against accused No.1 shall sustain. 4. Criminal Application No. 347 of 2008 in Criminal Appeal No. 901 of 2007 and Criminal Application No. 348 of 2008 in Criminal Appeal No. 976 of 2007 filed by the original complainant for disposal of the muddemal property in both the appeals, are disposed of in view of this judgment. 5. The order of disposal of muddemal property, as passed by the Sessions Court, Mumbai shall stand and will be effective. Hence, both these applications for disposal of ( 18 ) property are, accordingly, disposed of. The learned Sessions Judge to give effect to the order of disposal of muddemal property as per the judgment and order of this Court. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)