MP 1 APEAL592_08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 592 OF 2008 IN SESSIONS CASE NO.1020 OF 2006 IN C.C.NO.636/PW/2006 Vikas @ Chandya @ Pandit Gulab Vhaval presently in Nashik Road Central Jail, Nashik ... Appellant Versus The State of Maharashtra Through Goregaon Police Station ... Respondent Mr. P. V. Dhopatkar, appointed Advocate for the Appellant. Smt. G. P. Mulekar, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 18TH OCTOBER 2011 ORAL JUDGMENT : The accused has preferred this appeal through jail against the judgment and order passed by 5th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No. 1020 of 2006, whereby he was convicted for the offence under Sections 392, 397 and 506-II of the Indian Penal Code and under Section 3 r/w. Section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for two years with fine of Rs.500/-, rigorous imprisonment for seven years with fine of Rs.500/-, rigorous imprisonment for two years and rigorous imprisonment for one year with fine of Rs.500/- respectively. 2. The prosecution case, as revealed by the F.I.R. lodged with Goregaon Police Station by P.W.1 Yogesh Kamble, is that on 11.04.2006 at about 13:00 hours, he was proceeding towards the house of his friend Yogesh Gaikwad. When he was passing in front of Sainath Hotel, Link Road, Goregaon (West), the accused abruptly came in front of him and after abusing Yogesh Kamble, MP 2 APEAL592_08 the accused asked him to take out whatever he had in his pocket. Yogesh Kamble denied that he had anything. On this, the accused took out a revolver and pointed the same on the head of Yogesh Kamble and asked him to take out whatever he had in his pocket else he would shoot him. Due to this, Yogesh Kamble got frightened and he began to shout for help. Seven or eight persons passing by that road gathered there and 2/3 rickshaw drivers also came to his rescue. However, accused pointed out revolver at them and threatened to kill, if anybody came forward. Due to this, people got frightened and ran away. The shopkeepers also closed their shops. After that the accused removed Sony Ericsson mobile phone Model No.T28S and cash of Rs.600/- from the pocket of P.W.1 Yogesh Kamble. After taking out the mobile handset and the cash and giving threats to kill him, the accused went away. Thereafter, P.W.1 Yogesh Kambe went to Goregaon Police Station which is about one kilometer from the spot of the incident and lodged oral report which was reduced to writing. On the basis of that report, Crime No.111 of 2006 was registered under Sections 392 and 506-II of the Indian Penal Code as well as under Section 3 r/w. Section 25 of the Arms Act. 3. After registration of the offence, police recorded a spot panchanama. The acccused was also arrested on the next day. On the basis of the information given by the accused, the amount of Rs.600/- as well as mobile handset were recovered from the hut of the accused under a panchanama. The revolver was referred to the ballistic expert and the ballistic expert shows that it was six chambered muzzle loading revolver in working condition. After investigation, charge-sheet was filed. Later on, sanction was also accorded of the Deputy Commissioner of Police for the prosecution of the accused for the offence under Section 3 r/w. Section 25 of the Arms Act. The learned Magistrate found that the offence under Section 392 r/w. Section 397 was committed, and therefore, the case was committed to the Court of Sessions for trial. MP 3 APEAL592_08 4. The accused was charged for the offences under Section 392 r/w. Section 397 and Section 506-II of the Indian Penal Code as well as under Section 3 r/w. Section 25 of the Arms Act. He pleaded not guilty. According to him, he was falsely implicated in this case at the behest of P.W.2 Bhaskar Gaikwad because of some old enmity. On behalf of the prosecution, in all, five witnesses were examined. Several documents were placed on record. After hearing the parties, the learned Additional Sessions Judge convicted and sentenced the accused as stated above. 5. Heard the learned Counsel for the parties. Perused the evidence led by the prosecution as also the record and proceedings of the trial Court. 6. Out of five witnesses examined by the prosecution, P.W.1 Yogesh Kamble is the only eyewitness. P.W.3 Udayraj Yadav only proved spot panchanama at Exh.13 which indicated that the incident had taken place in front of Sainath Hotel in Goregaon (West). It does not provide much assistance to the prosecution. P.W.4 P.S.I. Narayan Desai had registered the offence. P.W.5 Police Inspector Firoz Patel and P.W.2 Bhaskar Gaikwad were examined to establish that on the basis of the information given by the accused, the revolver, stolen mobile handset and the amount were recovered. 7. P.W.1 Yogesh Kamble in his evidence before the Court deposed that on 11.04.2006 at about 01.00 a.m., he was proceeding to the house of his friend Yogesh Gaikwad and when he was passing in front of Sainath Hotel, the accused came in front of him and asked him to take out whatever he had in his pocket. On his refusal, the accused took out a revolver and pointed to the head of Yogesh Kamble. Due to this P.W.1 Yogesh Kamble got frightened and started shouting. According to him seven or eight pedestrians and two or three rickshaw drivers came there. However because of the threats given by the accused with revolver, all those persons ran away. Thereafter, the accused took MP 4 APEAL592_08 out the mobile handset of Sony Ericsson Model No.T28S and cash of Rs.600/- from his pocket and ran away. P.W.1 deposed that after the incident, he walked to Goregaon Police Station and lodged the report. As per his deposition in the cross-examination, he was at the spot for about 5 to 10 minutes after the incident. According to him Goregaon Police Station is at the walking distance of about 30 to 35 minutes. He alone went to the police station and reached there within 45 minutes. According to him, he was at the police station at 3.00 a.m. and there he lodged the report. Thus, as per his oral evidence before the Court, the incident had occurred at about 01.00 or 01.30 a.m. in the night and he also lodged the report at police station at about 3.00 a.m. He denied that the incident had taken place in the afternoon i.e. at about 13.15 hours as recorded in the F.I.R. Exh-08. P.W.4 P.S.I. Narayan Desai deposed that on 11.04.2006, he was on duty as a Station House Officer at Goregaon Police Station from 14 hours to 20 hours. At about 14.30 hours, P.W.1 Yogesh Kamble came to the police station and lodged report about the incident. P.S.I. Narayan Desai deposed in the examination-in-chief that as per the report lodged by Yogesh Kamble, the incident had occurred at about 1.00 or 1.15 a.m. in the night and he had come to lodge a report of that incident. P.S.I. Narayan Desai himself recorded that in the report of Yogesh Kamble and registered the offence. He proved the F.I.R. Exh.08. According to him, immediately after that, he went to the spot of incident and recorded spot panchnama Exh.13 and thereafter he handed over the investigation to P.W.5 Police Inspector Firoz Patel. When P.S.I. Desai was confronted with the contents of the F.I.R. in the cross- examination, he admitted that the report was lodged at about 2.10 p.m. and the incident had occurred at about 13.00 hours, that is, in the afternoon. 8. Thus, as per the F.I.R., Exh.08, the incident had occurred on 11.04.2006 at about 13:15 hours, that is, in the afternoon during the broad day light and it also shows that due to the threats given by the accused with revolver people ran away and some shopkeepers closed their shops. It indicates that the shops MP 5 APEAL592_08 were also open when the incident had occurred. However, in his evidence before the Court, P.W. 1 Yogesh Kamble deposed that the incident has occurred at about 01.00 a.m. in the night and not during the day time. Thus, there has been major change in the time of the incident itself. It is material to note that in the charge, which was originally framed, the time of incident was shown as “13:15 to 13:30 hours”. However, that time appears to have been changed as “01:15 hours” under the initials of the learned Additional Sessions Judge. However, it does not bear the date on which the change was made in the charge. Even the Rojnama of the case does not show, when the charge was amended or changed. There is also nothing to show that after the charge was amended or modified, the plea of the accused was again recorded. It is interesting to note that in para 5 of the judgment, the Trial Court had raised certain points for determination. In point No.1, for determination on the question of robbery punishable under Section 392, the time of the offence was shown as 13:15 to 14:30 hours. It shows that till the time when the learned Judge dictated the judgment, the charge against the accused was that the offence was committed between 13:15 to 14:30 hours, that is, in the afternoon of 11.04.2006. It indicates that the time in the charge Exh.02 was not changed even before the judgment was dictated. The time must have been changed thereafter. It was highly objectionable. It caused great prejudice to the accused. The accused was put to trial with a specific charge that the offence was committed between 13:15 to 14:30 hours on 11.04.2006 and this was based on the F.I.R. It appears that the learned Judge changed the time in the charge on the basis of the oral evidence of P.W.1 Yogesh Kamble and also put question No.2 to the accused under Section 313 of the Code of Criminal Procedure, on the basis of the time of the incident as given by P.W.1 during his evidence before the Court. 7. According to the evidence of P.W.1 Yogesh Kamble, within 10 to 15 minutes after the incident, he left the spot, walked down to the police station MP 6 APEAL592_08 and lodged the report. It is established by P.W.4 P.S.I. Narayan Desai and also by the contents of the F.I.R. that the information was given at the police station on 11.04.2006 at 14:30 hours and the offence was immediately registered. If the contents of F.I.R. are believed, P.W.1 Yogesh immediately went to the police station and lodged the report of the incident. However, if his oral evidence is believed, the incident had occurred after midnight and there was a delay of about twelve hours in lodging the report. There was no explanation about such a long delay in lodging the report. As there was no charge that the incident had occurred in the night, the accused did not get the opportunity to cross-examine P.W.1 Yogesh Kamble on the point of delay in lodging the report and this also prejudiced his defence and he was deprived of the fair trial. 8. The prosecution relied on the sole testimony of P.W.1 Yogesh to prove the offence and no other witness was examined, though according to him, seven to eight pedestrians and 2-3 auto rickshaw drivers had assembled there and had come to his rescue. Presuming that the pedestrians could not be ascertained, and therefore, it was not possible to secure their presence as prosecution witnesses, the Investigating Officer could have certainly tried to find out the auto rickshaw drivers because generally the auto rickshaw drivers ply their rickshaws in particular areas. Some drivers ply their rickshaws during the day time and some during the night time, and therefore, it would not be impossible to ascertain the identity of those rickshaw drivers, who were the eyewitnesses. Not only this, as per the F.I.R. as well as the oral evidence of P.W.1 Yogesh Kamble, several shops were open and the shopkeepers had closed their shops when the accused threatened to kill with revolver if anybody came forward. In view of this, several shopkeepers of that area were also available as eyewitnesses but no shopkeeper was examined as eyewitness to prove the incident. When the star prosecution witness Yogesh Kamble had changed the time of the incident from 13:15 hours, that is, in the afternoon to 01:15 a.m., that is, after midnight, his evidence became shaky and it would be MP 7 APEAL592_08 unsafe to base conviction on uncorroborated sole testimony of such witness. 9. As per the evidence of P.W.2 Bhaskar Gaikwad and P.W.5 Police Inspector Firoz Patel, the accused was arrested and the accused had voluntarily made a statement that he would produce the revolver, mobile handset and the amount. Accordingly, that information was reduced to writing as memorandum Exh.10. Thereafter, the accused led the police and panchas to his hut and from the roof of the hut, he produced amount of Rs.600/-, one Sony Ericsson company handset and a country made revolver. All these articles were seized under Panchnama Exh.11. The said revolver was allegedly referred to the ballistic expert with a covering letter Exh.16 and the ballistic report Exh.17 was received. It is material to note that as per the seizure panchnama Exh.11, the weapon, which was seized bore number “89198”. However, the ballistic expert report shows that the weapon referred to him had body number “39188” and that weapon was found to be six chambered muzzle loading revolver in a working order. Exh.18 is the order dated 18.01.2007 passed by the Deputy Commissioner of Police according sanction for prosecution of the accused for the offence under Section 3 r/w. Section 25 of the Arms Act for possession of the revolver having body No. “39188”. From this, it appears that the weapon, which was sent to the Ballistic Expert, had the body number “39188” and the sanction for prosecution was accorded for possession of that weapon but the seizure panchnama shows that a weapon having body number “89198” was seized. That weapon was never referred to the Ballistic Expert nor the sanction was accorded for the prosecution of the accused under the Arms Act for possession of the revolver having body number “89198”. These aspects were completely ignored by the trial Court. This difference was pointed out to P.W.5 Police Inspector Firoz Patel in the cross-examination. In the cross-examination, he admitted that the number of the revolver was “89198” and it was a correct number and that it is different from the number given in the Ballistic Expert's report. Then he tried to state MP 8 APEAL592_08 that the number of the revolver was not clearly visible. The learned trial Court appears to have immediately accepted this explanation. If the number “89198” was correct at the time of recording the seizure panchanama and it was also correct when the weapon was produced before the Court, it is difficult to understand how the number could not be read correctly by the Ballistic Expert. One can understand if there is a difference in one figure. For example, if instead of first figure '8', it was read as '3' or if the fourth figure '9' was wrongly read as '8' then it could be argued that possibly it could be a typographical mistake, but, the change could not be in two figures. First figure '8' in the original panchanama becomes figure '3' in the ballistic expert's report and fourth figure '9' also becomes '8' in the ballistic expert's report, and thus, the original number “89198” becomes “39188”. Such typographical error cannot be possible nor can be believed. Therefore, it creates a serious doubt as to whether the weapon, which was allegedly used by the accused, was in fact referred to the ballistic expert, and therefore, it must be held that the prosecution has failed to prove beyond reasonable doubt that the Ballistic Expert report pertains to the weapon, which was allegedly seized from the accused. The sanction order, passed by the Deputy Commissioner of Police, was for his prosecution for possession of the weapon bearing body number “39188” and not for the weapon bearing body number “89198”, which was allegedly seized from him. Therefore, the sanction order, for his prosecution for possession of the weapon without licence which was never seized from him, was also illegal, and therefore, the accused could not be convicted for the offence punishable under Section 3 r/w. Section 25 of the Arms Act. 10. Taking into consideration the facts on record, it must be held that the prosecution has failed to prove beyond reasonable doubt, that the accused had committed the offence of robbery, and that, he was armed with the deadly weapon at that time. Therefore, benefit of doubt has to be given to him. Hence, the impugned order of conviction and sentence cannot be sustained. MP 9 APEAL592_08 10. For the aforesaid reasons, the appeal is allowed. The impugned order of conviction and sentence is hereby set aside. The accused be set at liberty forthwith, if not required in any other case. (J. H. BHATIA, J)