skt/- 1 cri.appeal no.331.05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 331 OF 2005 1. Satish @ Raju Waman Koli Age 38 yrs., r/at Veer Savarlar Nagar. Vangani, Tal. Ambernath, Dist. Thane 2. Ramesh Ganpat Mundhe Age. 27 yrs., r/at Jeejamata Nagar, Vangani, Tal. Ambernath, Dist. Thane 3. Somveer Mukhtyar Bhagvane, Age 25 yrs., r/at Boudha Nagar, Zopadpatti, Vitthalwadi, Tal. Ulhasnagar, Dist. Thane 4. Baliram Vithal Zomate, Age 32 yrs., r/at Davalegaon, ... Appellants Tal. Ambernath, Dist. Thane (Orig. Accused Nos.1 to 4.) Vs. The State of Maharashtra ... Respondent WITH CRIMINAL APPEAL NO. 344 OF 2005 Ashok Raghuveer Gupta, Age 24 yrs., r/at Opp.K.T.Steel Company, ... Appellant Tal. Ambernath, Dist. Thane (Orig. Accused No.5) Vs. The State of Maharashtra ... Respondent skt/- 2 cri.appeal no.331.05.sxw WITH CRIMINAL APPEAL NO. 347 OF 2005 Ramesh Ganpat Mundhe, Age 27 yrs., r/at Jeejamata Nagar, Vangani, ... Appellant Tal. Ambernath, Dist. Thane (Orig. Accused No.2) Vs. The State of Maharashtra ... Respondent ...... Mr.R.D.Suryawanshi, Advocate for the appellants. Mr.Manoj J. Bhatt, Advocate for the appellant (in Appeal No. 347/2005). Ms.A.A.Mane, APP for the respondent – State. ...... CORAM : J.H. BHATIA, J. DATE : 21st JULY, 2010. ORAL JUDGMENT : 1 All these three appeals may be disposed of by common judgment as they arise out of the same trial and the judgment. 2 The appeal No.331/2005 is filed by original accused nos. 1 to 4 in Sessions Case No.190 of 2003 before the Sessions Court, Kalyan. Appeal No.344/2003 is filed by accused no.5 in the same Court. Appeal No. 347/2003 is filed on behalf of accused no.2 by a different lawyer while he is also appellant in appeal No.331/2003. All these 5 accused persons along with accused no.6 Ashok Sheshrao Lingate were put to trial for the skt/- 3 cri.appeal no.331.05.sxw offences punishable under Section 395 of Indian Penal Code as well under the provisions of Indian Arms Act. After trial, accused no.6 was acquitted and accused nos. 1 to 5 were convicted for the offence of dacoity punishable under Section 395 of Indian Penal Code and were sentenced to undergo RI for 7 years and to pay fine of Rs.2,000/- each. By these appeals, they have challenged the judgment and order of conviction and sentence. 3 The prosecution case in brief is that PW-1 Arun Bhide was a Manager of Jasmine Co-operative Credit Society having office at Allarakha Building at Kalyan. PW-5 Meenakshi Nikam was a Cashier, PW-6 Kishan Sharma was a Peon and one Bharati was another staff member working in the said Society. On 12-05-2003, all these four staff members were working in the office of the Society. A customer namely Jairam Shetty, had deposited an amount of Rs.1,50,000/- with the Manager PW-1 Arun and went away. Amount of Rs.72,000/- were deposited with the Cashier PW-5 Meenakshi by one of the Agent of the Society. At about 12.30 p.m. or so, 5 unknown persons entered in the office of the Society and one of them inquired with PW-1 Arun as to who was the Seth. Thereafter, one of the said culprits pointed out a revolver towards PW-1 Arun and another demanded cash. That person took out amount of Rs.1,50,000/- from the skt/- 4 cri.appeal no.331.05.sxw drawer of PW-1 Arun and also snatched a gold chain, weighing about 20 gms. from his neck. One of the culprits went to the Cashier Meenakshi- PW-5 put her under threat on the point of knife and snatched an amount of Rs.72,000/- from the drawer. One of the culprits went to Bharati and threatened her on the point of knife. PW-6 Kishan was caught hold of by two persons and threatened with a revolver. At the time of the incident, telephone wires were disconnected. The culprits threatened for dire consequences if anybody chased them. Thereafter, all the five culprits fled from the spot with the cash and the gold chain. According to the prosecution, PW-1 Arun rushed after those culprits for some distance but in vein. At about, 14.10 hrs. he lodged a report at the police station and Crime No.39/2003 under Section 395 of I.P.C. and under the Indian Arms Act came to be registered against five unknown persons. During the investigation, spot panchnama was prepared and a knife, which was left by one of the culprits on the table in the office, was seized. Statements of all the staff members were recorded on the same day. Accused nos. 1 to 4 were arrested and were in police custody from 21-05-2003. During the investigation, on the basis of information given by accused no.1 Satish, accused no.2-Ramesh, accused no.3-Somveer and accused no.4-Baliram, cash and different other articles were seized. The gold chain of PW-1 Arun was seized from accused no.2-Ramesh. The amount seized from the skt/- 5 cri.appeal no.331.05.sxw house of accused no.4-Baliram consisted of two bundles of notes having labels and seal of Jasmine Co-Operative Credit Society. A knife was recovered from the house of accused no.5-Ashok. During the Test Identification parade, accused nos.2-Ramesh, 3-Somveer and 5-Ashok were identified. After the investigation, the chargesheet was filed against all six accused persons and the case was committed to Sessions Court for trial. 4 The charges were framed against all the accused persons punishable under Section 395 of the I.P.C.and under the Indian Arms Act. They pleaded not guilty. On behalf of the prosecution, in all 12 witnesses were examined. Several documents were also placed on record. The Trial Court convicted accused nos. 1 to 5 and sentenced them as stated above while accused no.6 was acquitted for want of any evidence. 5 At the outset, it may be stated that accused nos. 1 to 4 were not granted bail and as per the statement made by the learned APP, on the basis of the report from the Jail Authority, they have been released from jail after undergoing complete sentences awarded by the Trial Court. However, accused no.5-Ashok Gupta was granted bail after conviction. skt/- 6 cri.appeal no.331.05.sxw 6 Heard the learned counsel for all the accused persons and also learned APP. Perused the record and proceedings, the evidence lead by the prosecution and the impugned judgment. 7 About the incident of dacoity, the prosecution relied upon three witnesses : PW-1 Arun, PW-5 Meenakshi and PW-6 Kishan, who were eye witnesses of the incident. Presence of these three persons in the office of the Jasmine Cooperative Credit Society at the relevant time was never disputed, nor it could be. The evidence of PW-1 Arun, who was the Manager and PW-5 Meenakshi, who was the Cashier show that on 12-05-2003, one customer had deposited amount of Rs.1,50,000/- and that amount was lying in the drawer of PW-1 Arun. Another amount of Rs.72,000/- was deposited by one of the Agents of the Society with PW-5 Meenakshi and that amount was lying in her drawer. The evidence of these three witnesses reveals that at about 12.15 to 12.30 p.m., five unknown persons entered into the office of the Society. One of them was holding a revolver and others were held knife. One of them closed the door after entering into the office and pointed a revolver towards the head of PW-1 Arun. Two of them caught hold of PW-6 Kishan. One of them took out the amount of Rs.1,50,000/- from the drawer of PW-1 Arun and also snatched the gold chain from his neck. One of the culprits skt/- 7 cri.appeal no.331.05.sxw snatched amount of Rs.72,000/- from the drawer of the Cashier- PW-5 Meenakshi. They cut the telephone wires and gave threats while leaving the spot. As per the evidence of PW-1 Arun, those culprits picked up an autorickshaw and fled away from the spot. After that, PW-1 Arun went to Police station and lodged a report Exh.49 about the incident. His evidence is fully corroborated by PW-5 Meenakshi and PW-6 Kishan. The learned counsel for the accused-appellant did not dispute the prosecution case of dacoity in the office of Jasmine Co-operative Credit Society. Question is about the identity of the culprits. 8 The evidence of PW-11 Police Inspector Dilip Jagtap shows that on 25-05-2003, accused no.1, Satish, no.2- Ramesh and no.3-Somveer were arrested while accused no.5-Ashok was arrested on 13-05-2003 and their police custody remand was obtained. The evidence of PW-12 Pramod Badigi shows that he was Special Judicial Magistrate and on 16-06-2003, he received a request letter from Bazarpeth Police Station to hold Test Identification parade and accordingly on 26-07-2003, he arranged Test Identification parade for the accused persons in Adharwadi Jail. In all three rows of dummies were made and the accused persons were required to stand in different rows. They were also given choice of their location and also choice to change the clothes etc. One after another, the skt/- 8 cri.appeal no.331.05.sxw prosecution witnesses were called for identification. PW-7 Arjun Sharma was a Panch witness for the said Test Identification parade. About the T.I. parade, a memorandum-Exh.66 was prepared by PW-12 Pramod and it was signed by the Panch witness. 9 During the evidence before the Court, PW-1 Arun identified accused nos. 1 –Satish and 2 - Ramesh. According to him, accused no.2-Ramesh had pointed a revolver towards him and had snatched the gold chain from his neck. According to him, accused no.1 Satish was also one of the culprits. The evidence of PW-5 Meenakshi shows that she identified accused no.2 Ramesh during the trial but could not identify any other accused. She also deposed that accused no.2-Ramesh had pointed revolver towards PW-1 Arun. PW-6 Kishan identified accused nos.2- Ramesh and 3-Somveer as the culprits during his evidence before the Court. It is material to note that as far as PW-1 Arun is concerned, he was not present at the time of T.I. parade and therefore, it appears that he identified accused nos. 1 –Satish and 2- Ramesh for the first time before the Court. The evidence of this witness was recorded about 1 / ½ year after the incident. PW-5 Meenakshi had identified accused no.2 –Ramesh and accused no.5- Ashok during the T.I.parade, but she could not identify accused no.5-Ashok during her evidence before the Court. PW-6 Kishan skt/- 9 cri.appeal no.331.05.sxw had identified accused no.2-Ramesh and 3-Somveer during the T.I.parade and he also identified them before the Court. Thus, it appears that accused no.1-Satish was identified by PW-1 Arun alone. Accused no.2- Ramesh was identified by all the three witnesses and accused no.3 was identified by PW.6-Kishan alone. 10 Besides, the identification there is evidence about the recovery of the property also. PW-9 Rajendra Vaidya is the important Panch witness about the recovery of the property. Evidence of PW-9 Rajendra Vaidya and PW-10 PSI Chandrakant Jadhav shows that on 26-05-2003, accused no.5 Ashok Gupta stated that he had concealed a knife at his house that information was reduced to writing at Exh.70. Thereafter, he took the police and panchas to his house at Ambernath. He took out a knife kept behind a photo frame. That knife was seized under seizure panchnama at Exh.70-A. 11 As per these two witnesses, on the same day, PW-3 Somveer informed that he had kept a pistol, a cartridge and cash amount of Rs. 1,900/- at one pant piece and he had given an amount of Rs.5000/- to one Raju Mohnani. That information, was reduced to writing as per memorandum Exh.71-A. He took the police and panchas at his house and skt/- 10 cri.appeal no.331.05.sxw produced an amount of Rs.19,00/- and a pistol and a cartridge and a pant piece. These articles were seized under panchnama Exh.71-A. He also led the police and panchas to one Raju Mohnani at Shivam Housing Agency. Raju Mohnani produced an amount of Rs.5,000, which was seized. 12 The evidence of PW-9 Rajendra and PW-10 PSI Chandrakant Jadhav, shows that on 27-05-2003, accused no.2-Ramesh told the police in presence of panchas that he had concealed the gold chain at his house and that information was recorded as per memorandum Exh.72. He took police and panchas to his house at Jijamata Nagar, Vangani, where his mother and wife were present. He went inside the house and produced the gold chain from a bag. This chain was seized under panchanama Exh. 72-A. 13 The evidence of these witnesses shows that on 27-05-2003, accused no.1 Satish told the police and panchas that he had concealed a pant, sura i.e. a long knife and cash of Rs.7,850/- at his house and he would produce the same. It was reduced to writing as per memorandum Exh.73. Thereafter, he took police and panchas to his house, which was found locked. The key of the house was taken from the owner of the chawl, skt/- 11 cri.appeal no.331.05.sxw door was opened and the accused no.1 Satish produced amount of Rs. 7,850/-, a pant, a shirt and a Sura. These articles were seized under panchanama at Exh73-A. 14 The evidence of PW-9 Rajendra Vaidya and PW-11 Police Inspector Dilip Jagtap reveals that on 30-05-2003, accused no.4 Baliram was arrested and on the same day, he revealed that he had given an amount of Rs.4,000/- to his sister Jayashri. The amount of Rs.4,000/- was produced by his sister Jayashri and it was seized under panchanam Exh.74. As per the evidence of PW-11 P.I. Dilip Jagtap, on 31-05-2003, accused no.4- Baliram stated before the police and panches that he had purchased gold chain, clothes and he had kept the cash and gold chain at his house. He would produce the same. That information was reduced to writing as memorandum Exh.75. Thereafter, he took the police and panchas to his house at Davlewadi, Ambernath. From his house he produced the amount of 22,650/- and a gold chain, clothes and shoes. The amount consisted of two bundles of Rs.10,000/- each. Each bundle consisted of notes of denomination of Rs.100/- each. Both the bundles were having seal and label of Jasmine Cooperative Credit Society. Allarakha. The amount also consisted of 26 notes of Rs.100/- each and one note of Rs.50/-. Besides this, a bentex watch worth Rs.2,200/-, a gold chain weighing of 10 gms., skt/- 12 cri.appeal no.331.05.sxw shirt, pant and a new pair of shoes were recovered and seized under panchnama Exh.75-A. 15 The gold chain recovered from accused no.2-Ramesh was identified by PW-1 Arun, as his chain. which was snatched away. Accused no.2- Ramesh was identified by PW-1 Arun, PW-5 Meenakshi & PW-6 Kishan before the Court. As PW-1Arun had not participated in the T.I.parade, he identified accused nos. 1-Satish & 2-Ramesh for the first time before the Court. However, the identification of accused no.2, by two other witnesses and seizure of the gold chain of PW-1 Arun from him, are sufficient evidence to hold that accused no.2-Ramesh was one of the culprits in the offence and in fact the evidence of PW-5 Meenakshi shows that accused no.2 had pointed a revolver towards PW-1 Arun. 16 Accused no 1-Satish was identified by PW-1 Arun and also an amount of Rs.7,850/- along with a pant and a knife were recovered. Recovery of pant may not be relevant. However, the knife along with the big amount of cash, which has gone unexplained by him provides corroboration to the evidence of PW-1 Arun. Therefore, his evidence can be believed. skt/- 13 cri.appeal no.331.05.sxw 17 Accused accused no.3-Somveer was identified by PW-6 Kishan and as per the evidence on record, beside the amount of Rs.1,900/-, a pistol and a cartridge were also recovered from him at his house. The recovery of a pistol and a cartridge along with the cash goes to provide the corroboration to the testimony of PW-6 Kishan. Besides this, it is also revealed that he had given an amount of Rs.5,000/- to one Raju Mohnani and that amount was also recovered from Raju Mohnani. In view of this evidence, there could no doubt about the complicity of the accused no.3- Somveer in this crime. 18 Accused no.4-Baliram was not identified by any of the witnesses before the Court. However, an amount of Rs.22,650/- was recovered from his house and as stated above this amount consisted of two bundles of Rs.10,000/- each and each bundle had notes of denomination of Rs. 100/- each and those two bundles were found with the seal and label of Jasmine Co-operative Credit Society, which clearly indicated that this was the money, which was taken away from the said Society at the time of this crime. As per Section 114 of the Evidence Act, when the stolen property is recovered from a person, soon after the commission of theft or dacoity, a presumption can be raised that either he has himself committed the offence of theft or he has received the stolen property. However, in the skt/- 14 cri.appeal no.331.05.sxw given circumstance, he could not be mere receiver of the stolen property. The bundles of notes with the seal and label of the Jasmine Co-operative Credit Society clearly connects him with the commission of the crime. Therefore, in my considered opinion, it would be justified to raise a presumption that he himself was one of the culprits, who had committed dacoity. 19 In view of the evidence on record, five persons were involved in the commission of the offence. At least one of them was armed with a revolver or pistol and some of them had knives and after putting the staff members of the Society under the fear of death, they took away the amount of Rs.2,22,000/-. Thus, the offence of dacoity punishable under Section 395 of I.P.C. was committed. However, a question arises about accused no.5-Ashok Gupta. No stolen property was recovered from him. Only one knife was recovered from his house. Even though, he was identified by PW-5 Meenakshi during the T.I.parade, she could not identify him before the Court. She also did not depose that she had identified one more culprit during the T.I.parade, but due to lapse of time, she could not identify him before the Court. It is settled position of law that the identification of the accused persons before the Court by a witness is substantive piece of evidence while the identification during the skt/- 15 cri.appeal no.331.05.sxw T.I.parade is only the corroborative piece of evidence. If a witness identifies the accused before the Court and also during the earlier T.I.parade, that provides necessary corroboration to his testimony. However, when the witness fails to identify the accused before the Court, identification during the T.I.parade cannot be used as a substantive piece of evidence and conviction cannot be based on the same. As such, except the recovery of a knife from the house of accused no.5-Ashok, there is no evidence to connect him with the commission of offence of dacoity. Therefore, mere recovery of a knife is not sufficient to hold him guilty for the offence of dacoity. 20 In view of the facts and evidence discussed above, I find that the learned Trial Court was right in passing the order of conviction and sentence as against accused nos. 1 to 4, but the evidence was not sufficient to establish that accused no.5-Ashok Gupta was also one of the culprits in the commission of offence of dacoity. Therefore, his order of conviction and sentence against him cannot be sustained and is liable to be set aside. 21 For the aforesaid reasons, criminal appeal Nos.331/2005 and 347 of 2005 stands dismissed. However, criminal appeal No. 344/2005 filed skt/- 16 cri.appeal no.331.05.sxw by Ashok Gupta is hereby allowed and the impugned order of conviction and sentence against accused no.5-Ashok Gupta is hereby set aside. His bail bonds stands cancelled. The order passed by the Trial Court in respect of muddemal property is confirmed. [ J.H. BHATIA, J.]