1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 240 OF 1989 DIST.: BOMBAY The State of Maharashtra ...Appellant Versus 1. Pankaj Mathuradas Rajput 2. Dilip Amarshingh Nepali 3. Pushpasen @ Suresh Gajanan Divekar 4. Abdul Gani Wali Mohamed Beediwala 5. Babubhai Jamnadas Rana ... Respondents. Mr. P.S. Hingorani, Additional Public Prosecutor, for the Appellant Mr. I.R. Kulkarni (appointed) for Respondent No. 3. CORAM: B ILAL NAZKI and A.A. KUMBHAKONI, JJ. DATE : AUGUST 1, 2008 P.C.:- The respondents were acquitted by the learned Sessions Judge in Sessions Case No. 82 of 1984 by his judgment dated November 26, 27 and 30, 1987. More than 20 years have passed. The acquittal appeal is pending in this Court. 2 2. There were five accused. The appeal against the acquittal of accused Nos. 1, 2 and 4 has been dismissed by this Court on 8th October, 1986 on the ground that the Public Prosecutor did not take steps to serve them with the notice. Therefore, as on today, there is no appeal pending against accused Nos. 1, 2 and 4. Respondent No.3 was represented by counsel who is not appearing. Respondent No.5 was appearing through counsel, but later on, neither his counsel appeared, nor respondent No.5. Counsel was appointed by the Court for respondent No.3, although respondent No.3 never appeared in the Court. Bailable warrants had been issued against respondents No. 3 and 5, and the report has been furnished that respondents No. 3 and 5 are not traceable. Since the matter is pending for more than two decades in this Court, we thought it appropriate to look into the file and try to seek the presence of accused Nos. 3 and 5, provided there was a chance of reversal of order of acquittal. 3. On hearing the learned Additional Public Prosecutor and also on hearing the learned counsel appointed by the Court for accused No.3, we are convinced that the order of acquittal cannot be disturbed for the reasons given below. 4. The brief facts of the case are that accused No. 1 committed 3 dacoity by taking one pistol of a police officer and accused Nos. 2, 3, 4 and 5 were his accomplices. According to the prosecution story, accused No.1, after taking the pistol, had given it to accused No. 2, who gave it to accused No.3, then to accused No.4 and ultimately to accused No.5, and ultimately, the pistol was recovered from accused No. 5. The trial Court did not believe the incident of dacoity itself. On the basis of the scrutiny of the evidence collected before the trial Court, the trial Court observed as under:- “162. To prove the said transfer of the revolver Art. 1 and the 6 rounds in Art. 2 (Colly) and their ultimate recovery from Accused No.5, the Prosecution is relying upon the oral evidence of P.I. Pote P.W. 14 and the panch witness Chiras Koresh Kujur P.W.11 and on the panchanama Ex. 77. Mr. Bhatia (Advocate for accused No.5) has submitted that even if the Prosecution were to prove that Art. 1 and Art. 2 (Colly) were recovered from Accused No.5 as alleged, they were not recovered as a result of the statement alleged to have been made by Accused No.1 in the presence of panchas. He says that the evidence shows that P.I. Pote P.W.14 already had the information which would have enabled him to recover the property before the alleged statement was made by Accused No.1 in the presence of panchas and that calling the panchas and recording the statement of Accused No.1 was only a farce. Mr. Bhatia refers to page 489 paragraph 52 where the panch witness Chiras Koresh Kujur P.W.11 stated that S.I. Pote said to the panchas “RAJABAI TOWERKE SAMNE MAIDANME POLICEKA CHORI HUA HAI OOS BAREME KYA KAHATA HAI KHALI WOH SOONNA. According to the evidence of P.I. Pote P.W.14, Accused No.1 had stated to him that he along with Accused No.2 and others had committed robbery 4 of a revolver and he offered to produce the same and P.W.14 immediately called two panchas from the locality and recorded the memorandum in the presence of panchas of what was stated thereafter by Accused No.1. Hence, according to the evidence of P.I. Pote P.W.14 Accused No.1 had only stated to him that he had committed robbery of a recover along with Accused No.2 and others and had not mentioned either the place of offence or whose property the revolver was. However, the said statement of P.W.11 shows that P.W.14 knew before he called two panchas not only that Accused No.1 along with Accused No.2 had committed robbery of a revolver but he also knew that the robbery committed was of police property and it was committed in the maidan opposite Rajabai Tower. Mr. Bhatia refers next to page 521 paragraph 75 where P.W.11 says that after he and his co-panch had put their signatures on the panchanama of the statement made by Accused No.1 and S.I. Pote had also signed it, the next thing that happened was that S.I. Pote told them that they had to go to Thakurdwar. Mr. Bhatia says that this shows that S.I. Pote already knew that to recover the property which was stolen property he had to go to Thakurdwar. Mr. Bhatia refers next to the evidence of S.I. Pote P.W. 14 and submits that these two pieces of evidence of P.W.11 read with the evidence of P.W.14 at page 933 paragraph 3 would show that S.I. Pote knew that a robbery of a police revolver had been committed by Accused No.1 and Accused No.2 along with others in the Maidan opposite Rajabai Tower and Accused No.1 had offered to produce the same and that he was taking them to Thakurdwar. Hence, Mr. Bhatia submits that S.I. Pote had all the information to make a recovery of the revolver and calling the panchas and recording Accused No.1's statement before them was a farce. The evidence of P.W.14 also shows that he knew that the revolver to which Accused No.1 was referring was the revolver concerned in or involved in Palton Road Police Station C.R. No. 8 of 1982. Mr. Bhatia, therefore, submits that since P.I. Pote already had all the necessary information to make a recovery of the stolen property it was not necessary to call panchas and calling the panchas and making a panchanama was a farce and the alleged recovery of the revolver and rounds was not made 5 as a result of the statement alleged to be made by Accused No.1 in the presence of panchas. He submits that the entire evidence of the panch witness P.W.11 and the panchanama Ex.77 should therefore be disregarded.” ... ... ... “168. The conduct of the police subsequent to the alleged recovery of the revolver also does not inspire confidence in the evidence of P.W.14 and P.W.11 that it was recovered from Accused No.5 on 22-1-1982. The evidence shows that although the revolver and rounds are alleged to have been recovered on 22-1-1983, no information about the recovery was given to LA-II Armoury to which the articles belonged and they were sent to that Armoury from Palton Road Police Station only as late as (on) 3-6-1983. The Prosecution has relied on the remand application made by the police on 23-1-1982 and a copy of the remand application of Accused Nos. 3, 4 and 5 has been marked Exh. 53. It is an admitted position that Accused Nos. 3, 4 and 5 were not concerned with any other property alleged to be robbed from P.W.1 except the revolver Art.1 and the holster and rounds Art.2 (Colly). Hence, if those articles were already recovered from Accused No.5 on 2.1.1983, it is difficult to understand why the police wanted to have Accused Nos. 3, 4 and 5 remanded to police custody, as they could not have assisted the police in the investigation for finding the other property. In fact, one of the features indicating that this is a concocted and fabricated case is that there is no evidence of the police having made any investigation to trace the other property e.g. the wrist watch of P.W.1 robbed during the alleged incident. The evidence does not show that the police searched the house of Accused Nos. 1 and 2 in order to recover the wrist watch, although the case is of robbery not only of the revolver and rounds but also of other articles belonging to P.W.1. No attention seems to have been paid at all to those other articles.” 6 The conclusion drawn by the learned Sessions Judge was possible, based on the evidence. Therefore, this Court will not be in a position to disturb this finding. When the basic fact that the revolver had been stolen was disbelieved by the Court, the alleged recovery of the revolver loses its significance. Since accused Nos. 1, 2 and 4 have been acquitted and appeal against them has been dismissed, therefore, there is no chance of this appeal succeeding as against accused Nos. 3 and 5. Therefore, the appeal is dismissed. BILAL NAZKI, J. A.A. KUMBHAKONI, J.