1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.269 OF 2006 Mahesh Suresh Shinde Aged 26 years, Occ: Contractor, residing at Room No.1, Rushi Mangal Building, Ground Floor, 108, Valkeshwar, Mumbai 400 006 (At present lodged in Kolhapur Jail) ...Appellant(Org.Accd.No.1) v/s. 1 The State of Maharashtra (At the instance of Malabar Hill Police Station C.R.No.23/04) 2 Smt. Vasumati M. Shah ..Respondents. WITH CRIMINAL APPEAL NO. 204 OF 2006 Rakesh Janardhan Kale Age: 22 years, R/at 56, Shroph Chawl, Khetwadi, 10th Lane, V.P. Road, Girgaon, Mumbai (Kalamba Central Prison) ...Appellant. v/s. 1 The State of Maharashtra (Through Malbar Hill Police Station, Mumbai) 2 Smt. Vasumati M. Shah Age: 64 years, Housewife, R/at: Adarsh Bldg., Block No.2, 94, Walkeshwar Nagar, Mumbai- 6 ...Respondents. 2 None for the Appellant (in Appeal No.269/2006). Shri Niranjan Mundargi, adv. For the appellants. Shri K.V.Saste, APP For the Respondents. CORAM : J.H. BHATIA, J. DATED : AUGUST 18, 2011. ORAL JUDGMENT: 1 Both these appeals may be disposed off by the common judgment as these two appeals were filed by the original accused nos.1 and 2 respectively challenging their conviction for the offences punishable under Sections 450, 394 and 342 r/w Section 34 of the I.P.C. in Sessions Case No.96 of 2005 by the learned IIIrd Additional Sessions Judge, Greater Bombay. Each of them was sentenced to undergo R.I. For 4 years and to pay a fine of Rs.5,000/- each for the offences punishable under sections 450 and 394 r/w 34 of the I.P.C. They were also sentenced to undergo R.I. for six months for the offence under Section 342 r/w section 34 of the I.P.C. 2 Prosecution case in brief is that the P.W.1 Vasumatiben Shah used to reside in flat no.2, Ground Floor, Adarsh Co-operative Housing Society Ltd., Walkeshwar Road, Mumbai-6. On 15.3.2004 at about 15.30 hours, she was alone in her house and it was closed from inside. At that time, two persons, who are said to be accused nos.1 and 2, appeared at 3 the door and rang the bell. After opening the main door, P.W.1 Vasumatiben Shah saw through safety door grill and on enquiry, those two persons told that they had come from courier office to deliver some packet. She accepted the packet and acknowledged the same by putting signature. At that time, one of those two persons demanded drinking water. To serve them drinking water, she went to the kitchen. Those two persons unlatched the safety door by putting hand through the grill and entered into house and followed her towards the kitchen. One of them gagged her mouth with towel. Another person tied her hands and legs with nylon rope. They also banged her head on the kitchen door and shouted that her husband had caused damage to them. Then those persons asked Vasumatiben Shah to hand over whatever cash she had in the house. She replied that there was no cash in the house. Then one of the culprits went to the bedroom, collected the keys of the cupboard and began to take search. While another culprit threatened her under the point of knife not to shout. After some search, culprits took out an amount of Rs.10,000/- kept in the cupboard and also snatched a gold bangle and a diamond ring from the person of Vasumatiben Shah and left the spot with these articles. 3 After the culprits left, the P.W.1 Vasumatiben Shah 4 somehow removed towel from the mouth and shouted for help. Watchman of the society came and rescued her. Then she went to Malabar Hill Police Station where she lodged the report Ex.13 about this incident. On the basis of her report, Crime No.23 of 2004 came to be registered against two unknown persons. For quite sometime, no progress could be made in the investigation. 4 Accused No.1 Mahesh Suresh Shinde was arrested on 5.11.2004 while the accused no.2 Rakesh Janardan Kale was arrested on 10.11.2004. According to the prosecution, on the basis of information given by the accused no.1, an amount of Rs.3150/-, out of the stolen amount, was recovered from his house on 10.11.2004. On the basis of information given by the accused no.2 Rakesh, the stolen bangle was recovered from his house on 18.11.2004 and the stolen ring was recovered from his house on 25.11.2004. These articles were identified by the complainant Vasumatiben Shah. Test Identification Parade was held on 3.12.2004 and during the Test identification Parade, she identified both the accused persons as the culprits. After investigation, charge-sheet was filed against both the accused persons. Case was committed to the Court of Sessions. Accused pleaded not guilty. According to the accused, no recovery was made from them nor they 5 were properly identified as culprits. According to them, prosecution evidence is not sufficient to hold them guilty of the charges. 5 Accused no.2 Rakesh is represented by advocate Niranjan Mundargi. Accused no.1 Mahesh had filed appeal through Ms Faizana Khan and Shri Satish Ajnalkar, advocates. However, on the earlier dates, when the appeal was called for hearing, none appeared, therefore, the Legal Services Authority appointed Ms Rohini Madav Dandekar as advocate to represent the accused Mahesh in the appeal. However, when the appeal was called, she also did not turn up. At the request made by the Court, Mr. Niranjan Mundargi argued the appeal on behalf of the accused no.1 Mahesh Shinde also. Heard the learned counsel for the accused/appellants and the learned APP. Perused the record and proceedings of the case. 6 Prosecution had examined in all 15 witnesses to prove the offences and to bring home guilt to the accused. Basically, prosecution relies on the evidence of P.W.1 Vasumatiben Shah to prove the incident as well as the identity of the culprits. Prosecution also relies upon recovery of the stolen property from the accused persons as circumstantial evidence in support of the direct evidence of P.W.1 Vasumatiben Shah. Therefore, it will be necessary to scrutinise these two 6 parts of the evidence carefully. 7 P.W.1 Vasumatiben Shah deposed in detail as to how the incident had occurred. Her evidence shows that her husband used to leave house in the morning and used to come late. Her maid servant used to come in the morning at 8 a.m. and also used to leave at 3 p.m. Incident of this case occurred on 15.3.2004 at about 3.25 p.m. At that time, she e alone was at her house. She also deposed how the incident had occurred and how two persons made entry in her house after giving packet purporting to have been sent through the courier office and then to have assaulted and robbed her of a gold bangle, a diamond ring and an amount of Rs.10,000/-. This part of the evidence is not much in dispute and there is no reason to disbelieve the same. Therefore, it can be held that two persons had committed criminal trespass in the house with an intention to commit the offence of robbery and having committed trespass, they assaulted her by banging her head against the chair and then committed robbery of the above said articles. Thus, it can be held that the offences punishable under Sections 450, 394 and 342 r/w Section 34 of the I.P.C. were committed by two persons. 8 Question is whether the said offences were committed by the present accused persons. P.W.1 Vasumatiben Shah identified both the 7 accused persons before the Court as culprits. She had also given description of the culprits in the F.I.R. Ex.13 alongwith description of the clothes worn by them at the time of incident. According to the prosecution, test identification parade was held on 3.12.2004 by P.W.4 Narayan Sankhe, who was the Special Executive Officer cum Tehsildar attached to the Collector office and as per his evidence, during test identification parade, both the accused persons were identified by P.W.1 Vasumatiben Shah by touching them while they were standing alongwith dummies. Accordingly, he prepared memorandum Ex.20 about the Test Identification Parade. 9 However, certain admissions by P.W.1 Vasumatiben Shah during the evidence before the Court go to show that even before the T.I. Parade , both the accused persons were shown to her or atleast she had opportunity to see them at the police station. Her evidence shows that she had come to know names of both the accused persons from newspaper on the next day after the incident . In fact, it was impossible to know the names of the culprits on the next day after the incident from any newspaper because she was not knowing the culprits by names nor she had seen them earlier nor she herself could have given their names . It is not clear on what basis names of the present accused persons were 8 published in the newspaper as the culprits of this case. Then she admitted that she was called to the police station twice. Firstly, she was called after Diwali festival after the arrest of the accused persons. As stated above, accused nos.1 was arrested on 5.11.2004 and the accused no.2 was arrested on 10.11.2004. According to her, police had given information on the phone that the accused were arrested and, therefore, she was asked to come to the police station. She also admitted that before she was called to the Arthur Road Jail for the purpose of identification, she was knowing names of both the accused persons and she was also knowing both of them by names. It means before she was called to Arthur Road Jail for the purpose of Test Identification Parade, she was called to the police station and accused persons were shown to her and, therefore, when she was called to Arthur Road jail for the purpose of test identification parade, she was already knowing both the accused persons by faces as well as by names. By showing accused persons to an important eye witness before holding the test identification parade, the very purpose of the test identification parade was frustrated and it was clear violation of the guidelines given for the purpose of holding test identification parade. Purpose of test identification parade was to ascertain identity of the culprits and to see that investigation was 9 on right track. When an eye witness is not knowing the culprits before the incident, the witness may be called to identify, whether the arrested person was infact the real culprit. During the test identification parade, the witness may be required to identify the culprit from amongst many other. Certain safeguards have to be followed so that the accused persons are not shown to the witness before test identification parade. But if he has already seen the accused before the test identification parade, said identification parade loses all its importance. Therefore, no importance can be given to the identification of the accused by such witness during the test identification parade. This legal position has been settled by the Supreme Court as well as several High Courts. In view of this legal position and the facts of the case, the learned Additional Sessions Judge rightly rejected prosecution evidence in respect of identification of the accused persons by P.W.1 Vasumatiben Shah during the test identification parade. 10 However, the learned trial Court believed the evidence of P.W.1 Vasumatiben Shah that these two accused persons were culprits because she had given the description of the culprits in the F.I.R. However, in the description, she had also stated about the description and the colour of the clothes of the culprits. During the evidence before the 10 Court, she admitted that she had not marked the clothes they were wearing. Therefore, it can be stated that either she had not noted the clothes of the accused and had given wrong information in the F.I.R. or she had forgotten. Her evidence was recorded before the Court on 10.5.2005 while incident had occurred on 15.3.2004. Thus, she was required to identify the accused persons before the Court about 14 months after the incident. Due to lapse of such a long time, it is possible that one may forget colour and description of the clothes of the culprits. Merely on that count, evidence of the witness could not be discarded. The learned trial Court observed that identification of the culprits before the Court is substantive piece of evidence while identification during the test identification parade is only corroborative piece of evidence and when witness had identified culprits before the court that being substantive piece of evidence should be accepted and believed. The learned APP also advanced same arguments before this Court. There can be no dispute about the legal proposition. If accused persons would not have been shown to her at the police station, their identification before the Court on oath, being substantive piece of evidence, could be accepted but by showing the accused persons to her at the police station before the test identification parade and thus, before she was called in the witness 11 box, her evidence was practically tampered and therefore, there is possibility that she might be under the influence created by showing accused persons as culprits to her at the police station. Therefore, it would be unsafe to place reliance on her testimony about the identification of the accused persons before the Court. Once the evidence about the identification of the accused persons by the eye witness as culprits is discarded, prosecution is left with discovery of the stolen property from the accused persons. That evidence will have to be scrutinised carefully. To prove discovery and recovery of an amount of Rs.3,150/- from the accused no.1 Mahesh, prosecution relied upon evidence of P.W.2 Mohan Yadav, P.W.12 Dinesh Yadav and P.W.15 Police Inspector Vilas Gurav, who was the Investigating Officer. As per the evidence of P.W.2 Mohan Yadav and P.W.15 P.I. Vilas Gurav, accused No.1 Mahesh was arrested on 5.11.2004. Accused no.1 Mahesh stated in presence of panchas that he would produce cash and accordingly, Memorandum, Ex.15-A was prepared. Thereafter, the accused no.1 Mahesh took the police and the panchas to his house being to 108, Walkeshwar Road , Rishi Mangal Building, Ground Floor, R.No. 1, Mumbai 400 006. From that house, he produced amount of Rs. 3,150/- consisting of 31 currency notes of Rs.100/- each and one 12 currency note of Rs.50/-. The amount was found kept in tin box on wooden shelf in the house. This cash was seized under the panchanama Ex.15B. It appears that P.W.2 Mohan Yadav was not sure if the accused no.1 Mahesh Shinde was the same person, on whose information, the amount was recovered. He deposed “Said Shinde is probabaly same person who is in the Court at Sr.No.2 from the right side.” It appears that as this witness was not sure about identity of the accused, the prosecution felt it proper to examine P.W.12 Dinesh Yadav, who was another panch witness. P.W.12 Dinesh Yadav deposed that in the evening of 10.11.2004, he was called to the Malabar Hill Police Station, where one person was sitting. Police asked P.W.12 Dinesh to put signature on a piece of paper. Then police asked him to accompany them to one lane in Walkeshwar area. There police showed an amount of Rs.3,150/- to him and told that cash was recovered at the instance of that person, who was at the police station and accordingly, his signatures were obtained on memorandum and panchanama being Ex.15-A and 15-B. Thus, P.W.12 Dinesh Yadav does not depose that accused no.1 Mahesh stated that he had hidden, concealed or kept the said amount at his house and that he would produce the same nor he deposed that accused no.1 wanted to point out that amount and the amount was produced by him from his 13 house. Even though this witness identified the accused no.1 Mahesh as the same person, who was shown to him at the police station, he does not give any evidence leading to the discovery at the instance of the accused no.1. 11 P.W.1 Vasumatiben Shah admitted that she could not identifiy the amount of Rs.3,150/- recovered from the house of accused no.1 as her stolen property. Amount of Rs.10,000/- was stolen away from cupboard in her house. Normally one does not note down the serial numbers of the currency notes with oneself or in the cupboard. Therefore, it was impossible for her to state whether currency notes, which were seized from or at the behest of the accused no.1, were infact same currency notes, which were stolen away from her house. The accused no.1 Mahesh denied that such amount was recovered from the house. Even if for the sake of arguments, it is believed that an amount of Rs.3,150/- was recovered from his house, the amount is not such a big amount, which could not be found at the house of the person, therefore, merely because an amount of Rs.3,150/- was recovered from the house of the accused no.1, it cannot be held that it was stolen property. Particularly, in view of the given circumstances, when the prosecution could not establish that the said amount was a part of the stolen property, 14 it is difficult to hold the particular recovery as a circumstantial evidence of the commission of the offence by the accused no.1. Therefore, I find that there is no evidence on the basis of which accused no.1 Mahesh could be convicted for any of the charges. Hence, the order of conviction and sentence in respect of the accused no.1 is liable to be set aside. 12 Prosecution relies on discovery and recovery of the bangle and the diamond ring on the basis of information given by the accused no.2 Rakesh and from his house. The said properties, being Article nos. 1 and 2, are said to be stolen property. In respect of the recovery of the bangle Art.1, prosecution relied upon evidence of P.W.3 Mishrilal Yadav, P.W.14 Kundansingh Manral and P.W.15 Police Inspector Vilas Gurav. Evidence on record shows that the accused no.2 Rakesh Kale was arrested on 10.11.2004. P.W.15 Vilas Gurav deposed that on 18.11.2004, he interrogated the accused no.2 Rakesh in presence of panchas and he agreed to produce the gold bangle. Evidence of P.W.3 Mishrilal Yadav and P.W.14 Kundansingh Manral shows that the both of them were called at Malabar Hill Police Station in the morning. Accused no.2 Rakesh was present at the police station. He was interrogated and he stated that he would point out the spot where he had kept the bangle that 15 information was reduced into writing as per Memorandum Ex.18A. After that both the panchas, police and the accused went to Shroff Chawl in Khetwadi. Accused took them in one room, which was closed from inside. One lady opened the door and accused no.2 Rakesh informed that she was his mother. After entering into the room, accused no.2 Rakesh went to the mezzanine floor and brought one box from which he took out one golden bangle. That golden bangle Article 1 was seized under the panchanama Ex.18B. All the three witnesses supported the prosecution in this respect. It appears that P.W.3 Mishrilal Yadav was not very sure about the identity of the accused and, therefore, he stated that accused no.2 was probably the same person. That is why second panch witness, P.W.14 Kundansingh P. Manral was examined and he supported the prosecution story. Accused denies that said bangle was seized from his house. Even though all these three witnesses deposed that the bangle Art.1 was seized from the house of the accused, P.W.1 Vasumatiben Shah admitted that the said bangle art.1 was not similar to another bangle of the pair, which she was wearing. Therefore, the prosecution could not establish that the bangle Art.1 , which was allegedly seized from the accused no.2 was actually the stolen property of Vasumatiben Shah. In view of this, the discovery of the bangle Art.1 also does not support the 16 prosecution story that the accused no.2 had committed the offence. 13 According to the prosecution, the diamond ring, Art.2, which was stolen property of Vasumatiben Shah, was also recovered from the house of the accused no.2 Rakesh on the basis of information given by him. For this purpose, the prosecution relied upon the evidence of P.W.11 Tejbahadur J. Singh and P.W.15 Police Inspector Vilas Gurav. P.W.11 Tejbahadur Singh deposed that on 25.11.2004 at about 9 to 9.30 a.m., he was called to Malabar Hill Police Station. At that time two persons were pointed out to him as the accused. He identified accused nos.1 and 2 as the same persons. According to him, on interrogation, the accused no.2 Rakesh stated that he had kept the bangle and the ring at his house. After that statement, accused no.2 Rakesh, panchas and the police went to one room in Shroff Chawl at Khetwadi. One old lady opened the door of that house and these persons entered into the house. Then accused no.2 Rakesh took out the ring folded in piece of cloth and kept in tin box kept in the mezzanine floor. That ring, Art.2 was then seized under the panchanama Ex.34. This witness fully supported the prosecution. P.W.15 Police Inspector Vilas Gurav also deposed all these facts about the statement of accused no.2 Rakesh leading to the discovery of the Article 2 ring from his house. Accused no.2 however, 17 denied that any such ring was seized from his house. 14 P.W.2 Vasumatiben Shah identified the ring, Art.2 as her stolen property. In the F.I.R., it was clearly stated that it was gold ring with four diamonds studded in it. In the seizure panchanama, the ring is described as gold ring with diamonds. The learned counsel for the accused/appellants vehemently contended that in the F.I.R., value of that ring was shown as Rs.15,000/- while in the seizure panchanama, Ex.34, value of that ring is not given but it is only described as diamond studded yellow metal ring. It is generally observed that when such seizure panchanama is prepared, the concerned police officer, being not sure about nature of the metal of ornament, words ‘Yellow Metal’ for the gold articles and later on , it is ascertained from the valuer whether it is in fact the gold ornament. Therefore, merely because in the seizure panchanama, it is not mentioned that it was the gold ring or because it’s value was not given, much importance can not be given. In the list of Exhibits, Ex.44 is the ASSAY Certificate issued by the official valuer, it shows that it was gold ring , weight of gold ring was 3 gms. , its quality was 18 carrots and as per the then rates of 18 carrot gold, it’s value was shown as Rs.1496/-. Incidentally, in its valuation report, there is no mention about the diamonds. In her oral evidence, Vasumatiben Shah 18 stated that the ring was worth Rs.1 lac while in F.I.R., value is shown as Rs.15,000/-. In view of this discrepancy about the valuation, the learned counsel for the accused/appellant contended that from the evidence, it can not be safely held that the ring, Art.2 was in fact the stolen property. I am unable to accept this argument. In the F.I.R., it is clearly stated that it was gold ring studded with four diamonds. In the seizure panchanama, it is shown as diamond studded ring and the list of the property filed with the muddemal properties shows that it was gold ring with four diamonds and that property was produced before the Court . That ring, which was seized from the accused, was identified by P.W.1 Vasumatiben Shah as her stolen ring. A person may give different value of such an ornament at different times for different reasons. It is possible that when she lodged report, she might have given price of the ring as Rs.15,000/- as she might have purchased it for that amount. We do not know when that ring was purchased by her. No question was put to her either by