1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 739 OF 2002 1)Gatrang Kadtu Pawar, Age/36 ) 2)Turuma Kadtu Pawar, Age/41 ) 3)Manju Narayan Pawar, Age/21 ) 4)Dhyaneshwar Shalkya alias ) Shalikram Pawar, Age/23 ) All R/o. Takarekheda Helga, ) Tal.Chikhali, Dist. Buldhana, ) At present in Nashik Road Central ) .. Appellants. Jail. .. .. .. )(Org.Accused No.2,3,4 & 6) Versus 1) The State of Maharashtra ) (Through Lasalgaon Police ) .. Respondent. Station). .. .. )(Orig.Complainant No.1.) -: ALONG WITH :- CRIMINAL APPEAL NO. 1031 OF 2002 Pandurang alias Sanjay Gangaram ) Pawar, Age 22 yrs., Occ: resident of ) Taloda, Tal. Chalisgaon, District : ) Jalgaon. ... ) .. Appellant. (Orig.Accd. No.1.) Versus 2 The State of Maharashtra. .. ) .. Respondent. (Orig.Complainant) Mr. P.S.Dani for the Appellants in Cri.Appeal No.739/2002. Mr.Vinod H. Wagh for the Appellant in Cri.Appeal No.1031/2002. Mrs. V. R. Bhosale, APP for the State. CORAM : BILAL NAZKI and S. A. BOBDE, JJ. DATED : 3RD MARCH, 2008. JUDGMENT (Per Bilal Nazki, J.): These two appeals are heard together and are being disposed of together. 2. The appeal No.739 of 2002 has been filed by accused Nos.2, 3, 4 and 6 and Appeal No. 1031 of 2002 has been filed by accused No.1. 3. The accused were tried for offenses under Sections 395, 396 and 397 of the Indian Penal Code. The allegations against the accused persons were, according to one Laxman Narayan Jadhav, the Informant, who was residing in the farm house in Village Takali, Tal. Niphad, Dist. 3 Nashik that; In the night between 31st August, 2000 and 1st September, 2000 the complainant was sleeping in his house with his family members. At about 2.15 a.m. he heard the noise of barking dog from the side of the temple. His father opened the door to see as to why the dogs were barking. Soon after he opened the door, a person gave a blow of iron bar on his hand. His father closed the door immediately. Thereafter, some persons started knocking at the door and were asking to open it. They broke open the door and entered into the house. The father of the complainant rushed outside the house. The complainant and his wife hid themselves in the porch where it was dark. They saw from the window some 6 to 7 persons assaulting his father with iron bars. His father was seriously injured and fell on the platform in front of the house. The dacoits then entered the house, snatched the ornaments on the person of the women. They also assaulted the women. The dacoits robbed ornaments and also collected about Rs.10,000/- from a box. They dragged the complainant' s brother' s wife and asked her about the wealthy persons in the locality and thereafter left with the booty. The complainant came out and saw his father in an injured condition. His father was unconscious by then. With the help of some persons, he took his father inside the house who succumbed to the injuries. The complainant also came to know, thereafter, that there were 4 dacoities at the houses of Waman Jevughale and Rajaram Khatale. A case was registered on the basis of the complaint under Crime No. 105/2000 and charge sheet was eventually filed. The accused persons pleaded not guilty and claimed to be tried. The prosecution examined 14 witnesses and exhibited various documents. 4. The trial court after the trial convicted accused Nos.1 to 4 and 6 for the offenses under Section 395 read with Section 397 of the Indian Penal Code and awarded sentence to suffer R.I. for seven years and also fine of Rs.1,000/-, in default they have to suffer further R.I. for six months. They are further convicted for offense under Section 396 of the Indian Penal Code and sentenced to suffer life imprisonment. They are also fined Rs.1,000/- each, in default R. I. for six months. Both the sentences have to run concurrently. 5. The learned Counsel for the appellants has submitted that the prosecution has not been able to prove the guilt of the accused and the trial Court has relied on the testimony of witnesses who claimed to be the eye witnesses. But according to him these testimonies should not be believed, in view of the admitted fact that the alleged occurrence took 5 place between 1.30 and 2.30 a.m. in the night when it was dark and the accused persons were not known to the witnesses and as such they could not have identified the accused. The second contention of the learned Counsel for the appellants is that the trial Court has also relied on the alleged recovery of bicycle, knives and jewellery. He further submitted that the recovery itself at the disclosure of the accused persons, is not proved. He also submitted that after the occurrence and arrest of the accused, there was a gap between the arrest of the accused and their identification by the alleged eye witnesses. The occurrence had taken place on 1st September, 2000. The accused No.1 was arrested on 25th September, 2000. The other accused were arrested after 4th October, 2000 and identification parade was carried on 21st October, 2000 and on 10th November, 2000. He submitted that the identification parade itself was conducted in such a fashion that the identification in such parade could not be accepted in view of the law laid down by the Supreme Court of India. In the light of these arguments, the testimony of the witnesses will have to be gone into. 6. P.W.11 and P.W.10 were projected as eye witnesses whereas P.W. 1, 2, 3, 4, 5, 7, 8 and 9 are panch witnesses. Let us first go to the alleged projected eye witness PW 11 Laxman Narayan Jadhav. 6 7. PW 11 has stated that he was residing in Takali Vinchur with his family members. His family consisted of his wife, brother, daughter, brother' s wife and his parents. At the time of occurrence they were, however, residing at their farm house. In the night between 31st August, 2000 and 1st September, 2000 at about 2.15 a.m. they heard barking of dog. His father opened the door. As soon as his father opened the door, a person of blackish colour gave a blow of iron bar like weapon causing injury to his finger. He closed the door. When the door was closed they started abusing them and were asking to open the door. The family members requested them not to beat them and they could take whatever they want. Then the accused persons broke open the door. They also pelted stones from the window. His father went to the court yard, when some 6 to 7 persons rounded him up. They had assaulted him with stick and iron bars. In order to save himself the witness went into the porch where it was dark. PW 11 stated that he saw through window. They were assaulting his father mercilessly. There was tube light in the house and a bulb of 200 k.w. outside the house. There was light at the top of the temple. He saw them with the help of the light. When his father became unconscious, they entered the house, assaulted his grand mother and 7 snatched her necklace and ear tops. They also snatched necklace of his brother' s wife and damaged box and cupboard and took out an amount of Rs.9,000/- to Rs.10,000/-. His wife threw her necklace towards them out of fear. They assaulted witness' s grand mother, his mother and his brother' s wife. They dragged the daughter of his brother to a distance and asked his brother's wife as to who was the wealthy person in the area, otherwise they threatened to kill her daughter. The daughter of his brother was 9 months old. Thereafter, they ran away. He came out of the porch and saw his father lying in the pool of blood. Thereafter, the police party taking round heard the hue and cry and came to them. Next day morning police prepared spot panchanama and inquest panchanama. Dead body of his father was sent for postmortem and report was given by him to the police. He identified the F.I.R. which bore his signature. It is exhibited as Exh. 60. Next day morning, he heard that the similar incidents had taken place at the houses of Wamanrao Jevughale and Khatale. On 21st October, 2000 they were called at Tahsil Office at Niphad. All family members of the witness and of Jevughale and Khatale were also called. They were told to go to Zilla Parishad Rest House as they had been called 8 for identification parade. They were asked to sit in one room. After some time, one Pancha called the witness. Some 5 to 6 persons were standing in the row and the witness was asked to identify the culprit. Two culprits were identified by him. Then he was sent to another room. After some time, he was called again and he identified two more accused who were standing in the row of seven persons. On 10th November, 2000, he was called at Tahsil Office again. They were sent to Z.P. Rest House for participating in an identification parade. During this parade, he identified one accused standing in a row of five persons. The accused were present in the Court. He stated that he could not forget the persons who have killed his father. Pair of tops, article No.4, belonged to his grand mother. Article No.9, then shown to him, was necklace of his brother's wife. Article No.7 was the necklace of his wife. Article 10, torch, was taken away by the culprits and was thrown near Ranwad Sugar Factory. In his cross-examination, he accepted that he has not stated before the police that there was tube light inside the house as well as there was light at the top of the temple as his mental condition was not good as 9 he had lost his father in the incident. He could not, therefore, give the said details. Even in his supplementary statement he had not stated that there were tube light and 200 w. bulb outside the house and there was light on the temple near his house, as he was in a shock due to a loss of his father. He denied the suggestion that there was no light either in the house or outside the house and at the temple. The accused persons had tied handkerchief at their head. He denied that they had tied handkerchief on their faces as well. The house of Khatale was more than 1000 ft. from his house. The house of Jevughule was ahead of it. The incident was going on for about 45 minutes. They shouted after the accused ran away. There was one Vasti (Basti) at a distance of about 500 ft. from his house. After the culprits left their house, they shouted and the persons from Vasti came to their house. He admitted that when they gave first blow on the hand of his father, they did not make hue and cry. They were requesting them not to beat anyone. The witness stated that the accused asked in “medium” voice to open the door. The police came at their house at 3.30 a.m. and four police persons stayed with them till morning. They did not, however, try to search the culprits. At the time of identification parade, nobody had tied anything over their head. No panchanama of a box and cupboard was prepared by the police. He denied the suggestion that he had not seen 10 anybody on the spot of incident and that he had not identified the accused in the identification parade. On further cross-examination by advocate for some other accused, the witness stated that Pralhad Borade is from his village. He stated that it was not true that Tanaji Gunja, Fakira Kanade and Keshav More were from his village. He did not know whether they were from Lasalgaon. They were in the Z. P. Rest House between 3.00 to 4.30 p.m. It required about ten minutes for identification of the accused at each time. 8. Analyzing the testimony of this witness, the learned Counsel for the appellants submitted that the conduct appears to be unnatural and the testimony itself is unnatural as when the father was being attacked the complainant was himself hiding in a porch, which was dark, so he could not have seen the accused. There were many persons in the house according to this witness and nobody had shouted which is an unnatural behavior and only after the accused left the place, these persons started shouting and went to see the plight of his father. He further submitted that the complainant admitted that he made two statements before the police and in none of the statements he had stated that there was a lamp of 200w. in his house and there was a light in the temple by which he could 11 see the accused persons. He submits that this was an omission and, of course, an improvement made in the statement to hide the fact that during pitch dark night he could not have identified the accused persons. Learned Counsel for the appellants made certain submissions, which would be discussed later when the testimony of other witnesses pertaining to identification parade is analyzed. 9. Now let us go to another projected eye witness i.e. Chhaya Ramnath Jadhav, PW10. She stated that she resides at Takali Vinchur. Her family includes her husband, in laws and their children. On 1st September, 2000, they were sleeping in their house. At about 2.15 a.m. they heard barking of dogs from the side of temple. Her father-in-law opened the door. Soon after he opened the door, one person in black cloth gave a blow of iron bar at his hand. They pulled her father-in-law out of the house and assaulted him with iron bar. They also entered in the house and assaulted her with the iron bar. They also assaulted her grand mother-in-law with iron bar. They took out cash and ornaments from her house and dragged her upto road and asked her about the wealth of neighbors. They also tried to snatch her daughter. They took away her necklace as well as necklace of her husband's brother's wife and pair to tops of her mother-in- 12 law and cash of Rs.10,000/-. Thereafter, they left the place. On the same night, police came to her house. Her father-in-law sustained injury to his brain and his body was lying on the platform in front of the house. On 21st October, 2000 they were called for identification parade. They were called one by one. She identified six persons out of eight. The accused before the court were the same who she had identified. Article No.4, the pair of tops, which were shown to her in the court, belonged to her mother-in-law. Article No.9 was her necklace. In her cross-examination by the learned advocate for some of the accused, she has stated that it was dark in the night when incident took place. She denied that there were any other houses adjacent to their house. There were houses far away from her house. She could not, however, say the distance between other houses and her house. It had rained that night. She did not hear any noise. Next day morning she came to know about the theft at the houses of other people. She denied that their houses were at a short distance from her house. She denied that they could hear hue and cry from their houses. She also denied that other houses are at a short distance and they could hear the noise. She denied the suggestion that she had not seen the offenders as it was dark. In cross- 13 examination by the learned advocate for some other accused, she stated that Baliram Jadhav was from her village. She denied that PSI had called them to Tahsildar office for identification parade. She also denied that police was with her when she identified the accused. She could not say the time when identification parade was arranged. She also denied that the police had shown her the accused. 10. Before going to the witnesses relating to the alleged recoveries made as a result of the disclosure made by the accused, a look at the testimony of PW 13, who conducted the identification parade. He stated that he was attached to Niphad Tahsil and on 17th October, 2000 he received a letter from Lasalgaon Police Station for arranging `Test Identification Parade' of four accused. He fixed the parade on 21st October, 2000 and asked the police to produce the accused. He produced the letter of the police and also the letter written by him to the police and identified them. He asked the police to bring the accused persons at Zilla Parishad Rest House. He also directed to call witnesses at Tahsildar's Office. He asked the police to call five dummies, who would be similar in physic and age group of the accused. The witnesses were called in his office and the dummies were called at the Rest House. Two panchas were also called at 14 rest house. Then the witnesses were asked to go to the rest house. The witnesses were asked to sit in a separate room and the dummies were kept in a separate room. Thereafter, the police brought the accused, who were also kept in a separate room. Two panchas and two of his staff members were with him. He called two of the accused in the hall and asked them to stand in the row of dummies at the number of their choice. Then he asked Panch witness to call witness Laxman Jadhav for identification parade. He asked Laxman whether he can identify anybody. He identified the accused No.1, Pandurang Pawar, who was standing at serial No.4 in the row of dummies. Then he changed the statement and stated that he was standing at serial No.5. Thereafter the said witness was sent back and the accused were also sent back to their rooms. Then he called other two accused. They were accused No.2, Gatrang Pawar and accused No.4, Manju Narayan Pawar. They were asked to stand in the row at the number of their choice. They stood at serial Nos.3 and 5. Then he again called witness Laxman Jadhav through the panch. He asked him whether he can identify the accused. He identified accused No.2, who was standing in the row at serial No.3 and accused No.4, who was standing at serial No.5. Then he asked witness to go out of rest house as his role was over and both the accused were sent back to their room. 15 This is a pattern which is followed in the case of each of the witnesses in order to get the accused identified by the witnesses. The dummies remained the same, the accused were changed. In the first parade the witness identified one accused and he removed that accused and put other two accused with the same dummies. Therefore, it was evident that the persons could have identified accused persons as those were the only persons added to the parade. Therefore, this whole thing appears to be sham and does not inspire confidence of the court that they were all identified in a parade which was not conducted fairly. 11. Coming back to the testimony of P.W. 10, 11, 12 and 14, it may again be reiterated that there was complete darkness and the offense had taken place during the night. The so called eye witnesses had hidden themselves somewhere in the dark and it might have not been possible for them to see and identify the accused. One of the witnesses had stated that the accused had knocked at the door and the deceased had opened the door. Then he hide himself, door was again closed and then the door was broken open. Then they entered the house. The other witnesses did not corroborate this statement, neither any evidence was produced to show 16 that the door had actually been broken. Therefore, on the basis of the testimony of eye witnesses and on the basis of the identification parade conducted by P.W.13, it cannot be safely said that the guilt against the accused has been proved. P.W.14 stated in his statement that when the accused came inside the house they gave a stick blow to the electric bulb. 12. Now let us come to the testimony of other witnesses including the witness who were witness to the recovery made at the disclosure of accused persons. P.W.1 was a witness of spot panchnama. He stated that he was called to the house of Bhaskar Pundalik. He saw brown coloured cloth strip. He saw several articles lying uneven. The contents of panchanama were read over to him and then he signed it. It is exhibited at Exh.19. Thereafter, they went to the house of Waman Vishwanath Jevughale. There were scattered articles in the house. A bottle of liquor was also found there. Panchanama is signed by him and it is exhibited at Exh.20. On 2nd September, 2000 he was called to Police Station. Witness Baliram Waman Jadhav was also present in the Police Station. He produced the battery. This panchanama is exhibited at Exh.21. P.W. 2 was at a tea stall at Pimpalgaon. In the morning when he opened his tea stall, three bicycles were lying behind the stall. The neighboring fruit stall owner 17 informed the police about the same and the police came and seized the cycles under panchanama. P.W.3 was attached to Civil Hospital at Nashik. He stated that one Daddu Pundlik Khatale was referred from rural hospital in Niphad for examination and treatment. He had given history of assault and he found certain injuries on his body. P.W.4 is Dr. Saket Subhash Junagade. He was attached to Rural Hospital, Nimgaon. Tal. Niphad. On 1st September, 2000 one Dattu Khatale was referred to him by police. He gave history of assault and he found certain injuries, which he stated in his statement. P.W.5 is Dr.Ramesh Tukaram Walunj, attached to Government Hospital, Niphad, who conducted post-mortem of Narayan Parwad Jadhav, the deceased and found following injuries: "1) Incised wound with sharp cutting edged and compound fracture with cutting edge on left temporal and frontal bone, verticle, 6 x 1 x ½ inch. Bleeding present. 2) Incised wound on left temporal bone and lower end of pinna of ear 3 x ½ x ½ inch (tear of pin) Bleeding present. 3) Abrasion on left cheek near eye 1 x ½ inch. 4) Imprint abrasion on right scapular region 4 x 1”. 5) Contusion on left scapular region oblique 8 x 1” 6) Contusion on back on spinal verticle from TH vertebra 8 x ½ inch. 18 7) Contusion on chest on left side oblique 7 x 1”. 8) Abrasion on left foot near middle malluous 2 x 1/2”. 9) Contusion and fracture of let humerus – contusion 4 x 3 inch. 10) Abrasion on left shoulder 2 x ½ inch. 11) Contusion imprint abrasion on abdomen on left side below umbilicus transversed 5 x 1 inch. 13. PW 6 stated that he was dealing in jewelry business and has a shop at Chalisgaon in the name and style of “Kashinath Dashrath Saraf”. On 2nd September, 2000 he was at his shop and the police had come to him once for inquiry. He told them that two customers from Chalisgaon Town had been to his shop. The police asked him whether anybody had come to his shop to sell the ornaments. He told them that nobody had come to his shop and nothing had happened in his shop. This witness was one of the witnesses who was produced as prosecution witness and was declared hostile. He did not support the case