1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1271 OF 2004 Rajan Devan Muker ) convict prisoner No. 4499 ) Nashik Road Central Prison, ) Nashik Road 422 101. ) State of Maharashtra. ) .. Appellant (Orig.Accused No.2) Versus State of Maharashtra ) at the instance of Antop Hill Police ) Station. ) Respondent Smt. Nasreen S.K.Ayubi, Advocate appointed, for the appellant. Smt. M.H.Mhatre, APP, for the State. CORAM: J.H.BHATIA, J. DATE : 5th December, 2009. ORAL JUDGMENT 1. The present appellant/accused No.2 has challenged the Judgment and order dated 8.3.2004 passed by the learned 4th Adhoc Assistant Sessions Judge, Bombay at Sewree. In Sessions Case No.818 of 2002 whereby he was convicted for the offence punishable under Section 392 read with Section 397 and Section 34 I.P.C. and was sentenced to undergo R.I. for seven years. 2 2. To state in brief, on 6.3.2002, at 21.45 hrs., one Babulal Samadali Shaikh lodged a report at Antop Hill Police Station, Mumbai to the effect that on earlier day i.e. on 5.2.2002 at 6.30 p.m. after alighting from a local train at G.T.B.Nagar, he was walking down towards Bangalipura. When he was beneath the railway bridge, three persons restrained him. Two of them caught his hands and third person,who was wearing red shirt,pointed a knife on his neck and demanded money. Then that person forcibly took amount of Rs.200/- from the pocket of his pant. He also informed that one Manirule Gayan was also robbed at about 4.30 p.m. and amount of Rs.255/- was taken away by the culprits. Statement of said Manirule Gayan was also recorded at the same time. On 7.3.2002, accused No.1 Chandu Pyarelal Chauhan and the present appellant – accused No.2 Raju were arrested in another case, being Crime No.349 of 2002 under section 379 I.P.C. When they were in the detection room, one P.W.2 Suhas Arjun Kamble came to the Police Station. He was shown both the accused in the detection room and then he stated that he was also robbed of Rs.20/- on 5.3.2002 at about 6.15 a.m. by the persons while he was returning from his duty. The present appellant – accused No.2 was one of them and he was holding a knife. His statement was recorded. On 8.3.2002, accused Nos. 1 and 2 were arrested in the present case i.e. Crime No.76/2002 under Section 392 read with Section 397 I.P.C. On 10.3.2002, on the basis of information given by accused 3 No.1 Chandu, a knife and amount of Rs.200/- were recovered. On 21.3.2002, identification parade was held wherein both the accused were identified by P.W. 2. After investigation, charge-sheet was filed and the case was committed to the Sessions Court for trial. After trial both the accused were convicted and sentenced as stated above. 3. Heard learned Counsel. Perused Record and proceedings. Record reveals that Charge Ex.2 was framed against accused Nos. 1 and 2 under Sections 392 and 397 read with Section 34 I.P.C. Tthe charge was only in respect of robbery from the complainant Babulal Samadali Shaikh. There was no charge in respect of robbery from Manirule Ayub Gayan and Suhas Arjun Kamble. Recording of prosecution evidence was completed on 16.2.2004. Statement of accused under Section 313 was also recorded on 24.2.2004. From the charge Ex.2, it appears that on 4.3.2004, the said charge was amended and it was added that Manirule Ayub Gayan and Suhas Arjun Kamble were robbed of Rs.255/- and Rs.20 respectively. On the next page below the charge Ex.2, there is an endorsement that contents of addition of charge were read over and explained to both the accused in vernacular. That endorsement appears to be of 24.2.2004 and it also appears that the accused had pleaded not guilty of additional charge on 24.2.2004. However, charge Ex.2 does not show that the 4 amendment of the charge was made on 24.2.2004. It appears that the plea of accused about additional charge was recorded on 24.2.2004 while the charge was in fact amended on 4.3.2004. 4. Coming to the evidence led by the prosecution, at the outset, it may be stated that the complainant Babulal Samadali Shaikh and another person, viz. Manirule Ayub Gayan were not examined by the prosecution. An attempt was made by the prosecution to prove the FIR lodged by Babulal Samadali Shaikh through PW.5 - PSI Gopal Mahadu Thakur, who had recorded that report. FIR was marked ex.13. It is settled position of law that FIR itself is not a substantive evidence, though it can be used for the purpose of corroboration if it is lodged immediately after the incident. As Babulal Samadali Shaikh himself was not examined, it cannot be said that the report Ex.13 and particularly its contents are proved. 5. PW.3 Ashrafali Khan and P.W.4 PSI Rahul Gangurde were examined to prove that on the basis of information given by accused No.1 – Chandu, on 10.3.2002, a knife and amount of Rs.200/- were recovered from him, as per the panchnama Ex.10 and 10/1. That recovery was pertaining the amount of Rs.200/- allegedly robbed from Babulal Samadali Shaikh. As 5 Babulal was not examined and that incident was not proved, the recovery of the knife and amount of Rs.200/- from the accused No.1 was also not sufficient to prove that incident. Anyhow, that recovery of knife and amount had nothing to do with the robbery from P.W.2 Suhas Arjun Kamble. 6. Tthe evidence of P.W.2 – Suhas Arjun Kamble shows that he was on night duty between 4.3.2002 and 5.3.2002. After his duty time, on 5.3.2002 at about 6.15 a.m. he was going to his house from the side of Kane Nagar School. When he came near the corner of that School, he saw three persons standing there. Those three persons restrained him. Out of them, two caught his hands and third put a knife on his chest. Those persons took out amount of Rs.20/- and his identity card from the pocket of his shirt. After that they ran away. Even though he claimed that he went to the police station on the next day to lodge a report, it is proved by P.W.5 PSI Gopal Thakur that P.W.2 Suhas Kamble had come to the Police Station on 7.3.2002. The evidence of Suhas Kamble shows that when he went to the Police Station, two persons i.e. accused Nos. 1 and 2 were already in the police custody at the police station and a police officer asked him to identify them and he identified them as the persons who had robbed him. After that his statement was recorded. P.W.5 PSI Gopal Thakur also confirmed that P.W.4 PSI Rahul Gangurde had shown accused persons to PW-2 6 Suhas Kamble in the detection room and after that his statement was recorded. The accused persons were not known to Suhas Kamble prior to the incident. Therefore, he was not expected to know their names. He did not lodge any report immediately after the incident giving any description of the culprits. Even though he came to the Police Station on 7th March 2002, his statement was not recorded by the police before showing the accused persons to him. In his statement, he has given the description of the culprits, but as that statement was recorded after the accused persons were shown to him at the police station, no importance can be given to the description of the culprits given in the statement. If without showing the accused persons to him, his statement would have been recorded and he would have given the description and then if he would identify the culprits in the test identification parade, the description given by him in the police statement would be important and relevant. Therefore, in view of the facts of the present case, no importance can be given to the description of the culprits given in police statement. 7. The test identification parade was held by P.W.1 Joseph Santimano, who was Special Executive Officer and a private businessman. P.W. 5 Gopal Thakur admitted in the cross-examination that P.W.2 Suhas Kamble had already seen the accused in the Police Station before going for identification 7 parade. It shows that P.W.2 Suhas Kamble had not only seen the accused persons at the Police Station before recording of his statement, but again he had seen them at the Police Station before he was taken for test identification parade. Therefore, identification of the accused persons during the test identification parade also cannot be given any importance. Though in his deposition before the Court PW-2 Suhas Kamble deposed that 2-3 culprits had caught his hands, P.W.5 PSI Gopal Thakur admitted in the cross-examination that P.W.2 Suhas Kamble had not stated before him that two culprits had caught his hands. This is material omission. P.W.2 Suhas identified the accused No.2 Raju @ Rajan as the culprit who had put knife on his chest and robbed the amount. However no knife was recovered from him during investigation. 8. Taking into consideration the evidence on record, and the manner in which the statement of PW-2 Suhas was recorded by police and the manner in which accused persons were shown to him by the police before recording his statement and also before the identification parade, it is difficult to place any reliance on his testimony. It is already pointed out that Babulal Samadali Shaikh and Manirule Ayub Gayan, who were robbed, were not examined before the Court. In view of this, it must be held that prosecution has utterly failed to prove the charge of robbery in respect of Babulal Shaikh and Manirule Ayub Gayan. 8 In view of the nature of evidence on record, the prosecution also failed to prove that the present appellant i.e. Accused No.2 had committed offence of robberty from Suhas Arjun Kamble. Therefore, the present appellant is entitled to be acquitted of the charges under section 392 read with Section 397 I.P.C. 9. For the aforesaid reasons, the Appeal is allowed. The conviction and sentence are hereby set aside. As the accused has been already released on 17.11.2008 after undergoing complete sentence awarded by the trial Court, no order needs to be passed for his release now. (J.H.BHATIA,J.)