1 Cri.Appeal 39/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.39 OF 2001 Lina @ Rajni @ Raju Liladhar …… Applicant Mali & Ors. Vs. The State of Maharashtra …… Respondents Mr. S.V. Marwadi a/w Vinayak Katti for appellant. Mrs. V.R. Bhosale, APP for State. CORAM : Smt. R.P. SondurBaldota, J. Date : 3rd March 2011. PC.: 1. Appellant no.1, who is the sole surviving appellant in the appeal herein is seen to be a singularly unfortunate woman for whom everything went wrong from 3rd June 1999, the date of the incident of robbery in the house of her employer. Appellant no.2 is her husband who is untraceable since 24th January 2004. The learned APP has tendered a report in that respect. The report is taken on file. 2. The appellant no.1 along with appellant no.2, her husband and one Ravindra Manik Wayley came to be prosecuted for the offences under Sections 120-B, 448 and 392 Indian Penal Code. 2 Cri.Appeal 39/2001 3. Brief facts of the prosecution case are as follows : On 3rd June 1999, at about 8.30 am., appellant no.1, who was working as maid in the house of Advocate, Mr.Pandit informed Matunga Police Station about the incident of robbery in his house. On the basis of her statement, F.I.R. no.304 of 1999 came to be registered. The material part of her statement which formed the basis of the registration of the offence was that she had been working in the house of Mr. Pandit since more than 13 years. About two weeks prior to the incident, the Pandit family had left Mumbai for vacation. In their absence, the house was to be looked after by Appellant no.1. For that purpose, at the instance of the mother of Mr. Pandit, appellant no. 1 had come to temporarily stay in the house. She was accompanied by her two small children. There were two other servants of Pandit family regularly residing in the house i.e. Tara Jadhav, PW-2 and her sister, Hira. On 3rd June 1999 at about 5.10 am, the door bell of the house rang. Thinking that it must be milkman, appellant no.1 woke up Tara. The children of appellant no.1 and Hira continued to sleep in the drawing room. As the door was opened, appellant no.1 and Tara saw 5-6 persons outside the house, wearing black and white mask. One of them pushed the door wide open and everybody entered the 3 Cri.Appeal 39/2001 house. Appellant no.1 and Tara were threatened that if they made any noise, the children sleeping in the drawing room would be killed and both were pushed into a toilet. Two persons stood guard outside the toilet. After some time they bolted the toilet door from outside and left. Tara and appellant no. 1 somehow managed to open the toilet door and came out. They saw that lock of one of the bedrooms was broken. The cupboards in the room were open and the articles scattered around the room. Appellant no.1, therefore, immediately contacted a relative of Advocate Mr. Pandit and after his arrival, the complaint came to be lodged with the Police. 4. During the course of investigation, the police recovered cash amount of Rs.14,96,700/- at the instance of appellant no.2 the husband of appellant no.1. The amount was recovered from the house of original accused no.3. After completion of investigation, the police filed chargesheet against appellant nos. 1, 2 and original accused no.3. The allegation against appellant no.1 was that she was part of the conspiracy for commission of the offence of robbery. 5. The Sessions Court framed following charges against the three accused persons. 4 Cri.Appeal 39/2001 Firstly : That you accused Nos. 1 to 3 above named between 12.00 midnight and 5.10 am. of 2/6/99 and 3/6/99 at plot No. 710, Vaidya Villa, Parsi Colony, Road no. 4, 4th floor, Dadar, Bombay - 14 agreed to do or caused to be done illegal act to wit (a) to commit house trespass by entering into the house of Mr. Niranjan Pandit (b) to commit robbery of valuable articles belonging to Mr. Niranjan Praful Pandit and said acts namely (a) and (b) were done in pursuance of the agreement, the commission on which acts or offences is punishable with imprisonment for 10 years, 7 years and in pursuance of the said conspiracy, the above mentioned acts were committed by you all, and you all thereby committed offence of criminal conspiracy punishable u/Sec 120(B) of the IPC and within my cognizance. Secondly : That you accused no.2 and 3 above named in between night of 2/6/99 and 3/6/99 at 12 midnight to 5.10 am. (early morning) at Vaidya Villa, Plot no.710, 4th floor, Parsi colony, Dadar committed the offence of lurking house trespass by night by entering into building in the possession of Mr. Niranjan P. Pandit used as human dwelling house, and remaining in possession thereof or having committed an offence therein, quited the house in anyone of the six ways mentioned in Sec. 445 and that you thereby committed an offence punishable under Section 448 of IPC and within my cognizance. Thirdly : That you accused above named at the same time, place and date and in the same course of transaction and in prosecution of criminal conspiracy committed robbery of cash of Rs.14,96,000/- which is the property of Mr. Niranjan P. Pandit, there in his possession at the point of dangerous weapons and thereby committed an offence punishable under Section 392 r/w 397 of IPC and within my cognizance. Fourthly : That you accused persons at the same time, place and date in the course of transaction and in pursuance of criminal conspiracy, committed theft as you intended to take dishonestly a certain movable property i.e. (Rs.14,96,700/-) belonging to N.P. Pandit out of his possession, without his consent and thereby committed an offence punishable u/Sec.379 5 Cri.Appeal 39/2001 IPC and within my cognizance. ” In order to bring home the guilt of accused persons, the prosecution examined in all five witnesses. They are Asha, mother of Advocate Pandit, (P.W. 1), Tara Jadhav (other maid servant of PW1) (PW-2), Abdul Ansari, recovery panch (PW-3), Sachin Gyanba Deshmukh, PSI, (PW-4) and Vishwanath Satam, P.I. (PW-5). With the evidence of these witnesses, the Sessions Court convicted the appellants of the offences punishable under Sections 120-B, 448 and 392 Indian Penal Code. Original accused no.3 was convicted of the offence punishable under Section 411 Indian penal Code. 6. Mr. Marwadi, the learned counsel for the appellant submits that there is nothing in the prosecution evidence to even remotely connect any of the accused persons to the offences alleged. The F.I.R. Lodged was against unknown persons. As per the F.I.R., the robbers were wearing masks and none of them were seen by any of the witnesses. Neither PW-1 nor PW-2 had seen them. PW-2 did not support the prosecution. She was therefore permitted to be cross-examined by the prosecutor. The evidence of recovery at the instance of appellant no.2, the only evidence to connect him to the offence, is not satisfactory. Besides it does not connect appellant no.1 to the offence. As per the 6 Cri.Appeal 39/2001 prosecution case, the only property stolen was large amount of money in cash. It was therefore necessary for the prosecution to establish that such a large amount of cash was in fact kept in the house. P.W. 1 is one Asha Pandit, who stated that she had been staying at the address since the year 1962. She stated that at the end of May 1999, the entire family was out of Bombay and appellant no.1 was asked to stay in the house to look after it, as the other servants, Tara and Hira were too young. On 3rd June 1999, while the family was at Mahabaleshwar, she received a call from a relative informing about the housebreak. The family returned on the same afternoon. P.W.1 found her room open, the cupboards in the room open and the articles therein lying strewn around. She stated that The cupboard contained “ my valuable and cash. The cash was initially felt to be of the tune of Rs.5 to 6 lacs but later on I discovered whatever was kept was lost, that was about 10 to 12 lacs . In the cross-examination, she admitted ” that she did not give the details of her belongings and places where they were kept in her statement to the Police. The evidence of P.W. 1 shows that she did not know what was the amount of cash kept in the house. She did not state that it was kept in the same room that was ransacked. Even if her vague evidence that she had kept Rs. 7 Cri.Appeal 39/2001 12,00,000/- in the house is to be believed, the recovery of a larger amount of Rs.14,96,700/- cannot connected to the robbery in the house. This witness nowhere implicates any of the accused persons. 7. The next witness, PW- 2, Tara also does not directly implicate any of the accused persons. It is not her evidence that appellant no.2 had entered into the house at the date and time of the incident of house breaking and robbery. She deposed that on 3rd June 1999 in the early morning, she was awakened by appellant no.1 and after hearing the door bell, both went to the door. When the door was opened, two persons, entered the house. They pushed PW-2 and appellant no.1 into a bathroom. According to her, she was not able to see neither their faces, nor their clothes. After about 5 to 10 minutes, appellant no.1 was taken out from the bathroom by those two persons and PW-2 was bolted inside. About half an hour thereafter, appellant no.1 freed PW-2. She found that the two persons had gone away and the cupboards were open. Then appellant no.1 contacted a relative of PW-1 to inform him about the incident. Thus, PW-2 is also did not implicate any of the accused persons. 8. The third witness is the panch for recovery of the amount of Rs. 14,96,700/- at the instance of accused no.2. and the only witness who 8 Cri.Appeal 39/2001 could have connected accused no.2 to the offence. He stated in his examination-in-chief that he cannot read or write and that he was told about the contents of documents by P.I., Patil. He identified appellant no.2 as the accused in custody of the Police. This witness did not say why was the panchanama prepared and signed by him. He described the document of panchanama in his examination-in-chief as written document or paper . He then deposed that he along with “ ” “ ” the accused, officers and staff went to Diva by a private vehicle. Accused had asked the vehicle to be stopped at some place and he had taken them on foot to some distance to a house. He did not indicate location of the house. He stated that the accused pointed out a bag of blue colour, which contained cash of Rs.14,96,700/-. This cash was taken in custody by the Police. The witness did not speak about the manner in which the cash was seized. The seized articles were not produced before the court during trial. What was produced was the empty rexin bag in which the currency was allegedly found. The investigating officers PW-4 and PW-5 did not depose about what happened to the currency seized. Apparently the numbers of the currency notes were also not noted. Thus the only evidence to some way connect the accused no. 2 and 3 to the offence alleged was not at 9 Cri.Appeal 39/2001 all satisfactory. As regards appellant no.1, there is no evidence whatsoever to show that she aided or abetted or conspired to commit the offence. She happens to be only the wife of appellant no.2. 9. With such evidence on record, one would have expected acquittal of all the three accused persons, as no conviction could have been possible on this evidence. However astonishingly all the three accused persons came to be convicted of the offences as mentioned above and the reasons given therefor in the impugned judgment and order reads as follows : Prosecution has been able to establish the premises “ as to where the offence took place i.e. the household of Pandit's at 710, Vaidya Villa, Parsi Colony Road No.4, Dadar, Bombay - 400 014. Prosecution has also been able to establish the date, place, time of incident, circumstantially incident itself, robbing the household of the cash, locking of accused no.1 initially and P.W. 2 till the departure of the intruders and PW 2 being relieved by accused no.1. The conspiracy part between accused nos.1 and 2 but not between accused nos. 1,2 and 3. Prosecution has been also able to establish the recovery of Rs.14,96,700.00 at the instance of accused no.2 from the house of accused no.3 and in those circumstances, the case of the prosecution stands established beyond doubt .” Considering the aspects that the date, place time of incident and time of incident is established, household is established, the victim is established, presence of accused no.1 and PW 2 is established in the household, recovery is established through panch. There is no option but to accept the case of of prosecution as proved beyond 10 Cri.Appeal 39/2001 doubt . ” Apart from these observations in the judgment, there is no discussion whatsoever as regards the evidence led by the prosecution before the Court. With the evidence before the Court, the conviction of the accused persons cannot be sustained. Hence, the appeal is allowed. The impugned judgment and order is set aside. The appellants are acquitted of the offences punishable under Sections 120B, 448, 392 and 379 Indian Penal Code. ( Smt. R.P. SondurBaldota, J.) 11 Cri.Appeal 39/2001 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.112 OF 2001 Shri Ravindra Manik Wayle … Appellant Vs. The State of Maharashtra … Respondent Mr. S.V. Marwadi a/w Vinayak Katti for appellant. Mrs. V.R.Bhosale, APP for State. CORAM : Smt. R.P. SondurBaldota, J. Date : 3rd March 2011. PC.: Learned counsel for the appellant tenders certificate of death showing that appellant died on 19th January 2008. The appeal, therefore stands abated. The same is accordingly disposed off. ( Smt. R.P. SondurBaldota, J.)