sat 1 crim.apeal 87-2007, 267-2010, 570-2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 87 OF 2007 Mr.Ganesh Dattu Chopade, ) Age : 20 years, residing at Naygaon, ) Kamsheth, Taluka Maval, ) District Pune. ) (Presently in Yerwada Central Jail, ) Pune. ) ...Appellant/ Orig.Accused No.1 vs. 1. State of Maharashtra . ) (At the instance of Lonawala Gramin ) Police Station). ) 2. Popat Shankar Zaware ) ) 3. Baban Nivruti Kashid, ) ) 4. Sunanda Jagnnath Hojage, ) All r/a Village Takwe Khurd, ) Phangare Colony, ) Tal.Maval, Dist.Pune. ) ...Respondents AND CRIMINAL APPEAL NO. 267 OF 2010 Dashrath Maruti Waghchoure @ Waghmare ) Aged about 26 years, permanently ) residing At Wadhap, Tal-Karjat, ) Dist. Raigad ) sat 2 crim.apeal 87-2007, 267-2010, 570-2007 (and at present in judicial custody ) and lodged at Yerwada Central ) Prison, Pune.) ) ...Appellant/ Orig.Accused No.7 vs. The State of Maharashtra ...Respondent AND CRIMINAL APPEAL NO. 570 OF 2007 1. Maruti Ganesh Waghmare, ) Age 21 years, Occupation: Labour, ) R/at.- Dahiwali, Taluka Karjat, ) Dist. Raigad. ) 2. Mahadu Chima Pawar, ) Age 28 years, Occupation: Labour, ) R/at.- Dahiwali, Taluka Karjat, ) Dist. Raigad. ) 3. Lahu Laxman Pawar, ) Age 22 years, Occupation: Labour, ) R/at.- Dahiwali, Taluka Karjat, ) Dist. Raigad. ) 4. Laxman Ganesh Waghmare, ) Age 21 years, Occupation: Labour,) R/at.- Dahiwali, Taluka Karjat, ) Dist. Raigad. ) 5. Ganesh Shantaram Mukane, ) Age 31 years, Occupation: Labour,) R/at.- Dahiwali, Taluka Karjat, ) Dist. Raigad. ) sat 3 crim.apeal 87-2007, 267-2010, 570-2007 All appellants at present Central ) Jail, Yerwada, Pune. ) ...Appellants (Orig.Accused Nos.2 to 6) vs. 1. State of Maharashtra . ) 2. Popat Shankar Zaware ) ) 3. Baban Nivruti Kashid, ) ) 4. Sunanda Jagnnath Hojage, ) All r/a Village Takwe Khurd, ) Phangare Colony, ) Tal.Maval, Dist.Pune. ) ...Respondents Mr.D.G. Khamkar for the Appellants. Mr.P.S. Hingorani, APP for the State. CORAM : M.L. TAHALIYANI, J. DATED : NOVEMBER 18, 2011 JUDGMENT :- 1 These three appeals arise out of the one and same judgment and order passed by the 11th Ad-hoc Additional Sessions Judge, Pune, in Sessions Case No.377/2005. The appellant Ganesh Dattu Chopade in Appeal No.87/2007, sat 4 crim.apeal 87-2007, 267-2010, 570-2007 appellant Maruti Ganesh Waghmare in Appeal No.570/2007 and appellant Dashrath Maruti Waghchoure @ Waghmare in Appeal No.267/2010 are the original accused nos.1, 2 and 7 in the said Sessions case. The appellants along with the original accused nos.3, 4, 5 and 6 were tried for the offence punishable punishable u/s.397 read with 395 of IPC. It was alleged that the appellants and other accused named in the charge had committed dacoity at the place of complainant Popat Shankar Zaware in the night intervening 16th November, 2004 and 17th November, 2004. It is further alleged that on the same night, they had also committed dacoity at the house of neighbours of the complainant. The total value of the looted property by the appellants and co-accused is stated to be Rs.1,05,400/-. The appellants and the other accused while committing the alleged dacoity had used deadly weapons like sickle and sticks. It appears from the record and proceedings that dacoity was allegedly committed by the appellants and other accused at the place of Popat Shankar Zaware, resident of Takwe Khurd, Taluka Maval and PW 5 Baban Nivrutti Kashid, resident of sat 5 crim.apeal 87-2007, 267-2010, 570-2007 Takwe Khurd, Tal.Maval. 2 I have gone through the chargesheet and the brief charge stated in the chargesheet. I have also gone through the charge framed by the learned trial Judge. It is not clear from the chargesheet and the charge as to which of the articles were looted from which of the witnesses. However, from the description of the property allegedly stolen, it appears that most of the valuable property was gold ornaments of the family members. Apart from gold ornaments, stolen property included cash of Rs.1000/- and one CD player of Sony make. 3 Instead of examining the judgment of the learned trial court, I had preferred to go through the evidence of witnesses, particularly the eye witnesses. I have adopted this course mainly because the whole case is based on the evidence of eye witnesses. The evidence of witnesses in respect of recovery may need discussion in case some material is found in the evidence of eye witnesses to proceed further. sat 6 crim.apeal 87-2007, 267-2010, 570-2007 4 The first victim of the alleged offence is PW 1 Popat. He has stated that he was residing at village Takwe Khurd. He was running a nursery in the said village. He was staying with his wife and other female family members of his family. About 9 p.m., on 16th November, 2004 when PW 1 and other family members were watching television, 7 to 8 persons entered the house of PW 1 and threatened him that he should not raise voice and should surrender his valuables before them. The 7 to 8 persons had also assaulted PW 1. Since they started to beat him, he gave all his belongings to them. It is stated by PW no.1 that he himself and other family members were threatened at the point of sickle by the said 7 to 8 persons. They opened the cupboard and took away all the valuables. The valuables included a pair of gold earrings, a mangalsutra and cash amount of Rs.400/- to Rs.500/-. They had also snatched pair of earrings and mangalsutras from the persons of wife of complainant, his aunt and his sister-in-law. They had also taken away necklace, one Nokia make mobile phone and cash amount sat 7 crim.apeal 87-2007, 267-2010, 570-2007 of Rs.1000/-. After completing the loot, the said persons left the house of PW 1. PW 1 along with his friends came on the main road to seek help. In the meantime, police patrolling jeep came there. Matter was reported to police and offence was registered vide FIR (Exhibit 17). 5 It appears that on the same night, there were other dacoities also committed by the same group. PW 5 Baban Kashid was staying at Takwe Khurd, Maval. On the same night, around same time, when he was at home, 6 to 7 person entered his house. They were armed with sickle, koyta and sticks. PW 5 was asked to keep quiet. As PW 5 and his family members were threatened by the said group of 6 to 7 persons, it appears that daughter of PW 5 removed their gold ornaments and mangalsutras and handed over the same to the alleged dacoits. The dacoits had allegedly taken away the T.V. and CD player. 6 The case is mainly based on the evidence of PW 1 Popat and PW 5 Baban whose property was allegedly taken sat 8 crim.apeal 87-2007, 267-2010, 570-2007 away by the appellants and other accused. I have already discussed the evidence of both the witnesses in respect of the incident. It is clear that none of the alleged dacoits were known to the witnesses. FIR was, therefore, registered against unknown persons. It was, therefore, necessary to decide the identity of the persons involved in the alleged offence. In view of this, let me examine the evidence of PW 1 and 5 in respect of identification of the appellants and other accused. PW 1 in his evidence has stated that the accused who were present in the Court on the date of recording of his evidence had committed dacoity at his place. No other details are given by this witness with regard to the identification of the accused. As far as identification during the investigation is concerned, it is said by him that after 8 days of the incident, he was called at Lonawala Police Station for identification of the accused. He was again called at Vadgaon Maval for identification of the accused. He had identified the accused. That is how evidence in respect of identification is concluded. sat 9 crim.apeal 87-2007, 267-2010, 570-2007 7 Let me now examine the evidence of PW 5 in respect of identification. This witness has stated that he was called by police for identification of the accused at the police station after the arrest of the accused. He had identified only one accused. However in the same breath made, he later on stated that he had identified all the accused. He has stated that the accused who were present before the Court including the appellants were the same persons who had committed the offence. It is very interesting to note that this man in his examination-in-chief itself has stated that out the said 6 to 7 persons, one person was of whitish complexion and all other persons had covered their faces with handkerchiefs. Therefore, it is obvious that the evidence of this witness with regard to the identification needs to be thrown away without any further consideration. 8 There is one more victim of the offence i.e. Smt.Sunanda Jagannath Hojage - PW 6. She was also resident of the same village. She has stated that on the night of 16th sat 10 crim.apeal 87-2007, 267-2010, 570-2007 November, 2004, there were guests at her place. It was around 10 p.m. when some unknown accused numbering six had entered her house with weapons like Koyta and sickles. They asked PW 6 and her guests to handover the gold ornaments. Accordingly, gold ornaments and silver ornaments were handed to them. Thereafter, the said six person left the house of PW 6. This witness has also stated that the faces of four out of six were covered. However during the course of trial she had identified all the accused. 9 It is, thus, clear that the three eye witnesses whose evidence was recorded during the course of trial have identified the accused only under the belief that unless they identify the accused, the accused would not be punished. It does not appear that the witnesses have identified the appellants and other accused because they could really identify them. It is difficult to accept the evidence of PW 5 and 6 for the obvious reasons. The evidence of PW 1 is also not free from doubts. It appears that the police had recovered some of the property taken away sat 11 crim.apeal 87-2007, 267-2010, 570-2007 allegedly by the appellants and the other accused persons. It further appears that the property was recovered and produced in the Court and it was shown to the witnesses. It is not clear from the evidence as to which of the article belonged to a particular witness and which article was identified by the particular witness. As far as PW 1 is concerned, he has stated “I can identify muddemal property if shown to me.”. There is nothing more than this in the evidence of this witness. PW 5 has identified one mangalsutra and one CD player. PW 6 has identified article 7. It can been be seen from the evidence of these witnesses that the valuable articles seized by the police did not necessarily belong to PW 1, 5 and 6. There were family members and guests at the places of all the victims. Therefore, an identification of valuable property is also not properly done by the witnesses. In brief, the evidence with regard to identification of the appellants and identification of the property both suffer from serious infirmities. In the circumstances, the appellants need to be acquitted of the offence of dacoity. As far as charge u/s. 397 of IPC is concerned, it appears to have been sat 12 crim.apeal 87-2007, 267-2010, 570-2007 mechanically applied by the police. The learned trial court has also mechanically convicted the appellants for the offence punishable u/s. 397 of IPC. None of the witnesses have specifically stated as to which type of weapon was held by a particular appellant. At least, it would be necessary for the witnesses to state that the appellants were holding a weapon of a particular description which could be deadly. This evidence is missing from the testimony of all the three witnesses. 10 In the circumstances, I do not find it necessary to examine rest of the evidence which mainly pertains to recovery of weapons and ornaments. As such, the judgment and final order of the learned trial court convicting the appellants for the offence punishable u/s. 397 read with 395 of IPC needs to be set aside. As far as the order in respect of disposal of property is concerned, it does not need to be disturbed. Hence, I pass the following order :- : ORDER : 1. All the appeals are allowed. sat 13 crim.apeal 87-2007, 267-2010, 570-2007 2 The appellants are acquitted of the offences punishable u/s. 397 read with 395 of IPC. The appellants who are in prison shall be released forthwith if not required in any other case. 3 The fine, if any, paid by the appellants be refunded to them. The seized property be disposed of in accordance with the order passed by the trial court. 4 All the appeals are disposed of, accordingly. (M.L. TAHALIYANI, J)