1 cr-apeal-407-451-91 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPEAL NO.407 OF 1991 Vinod Moreshwar Vaidya ] Gomukhi Ali, Chawadar Tale ] At and P.O. Mahad, Dist. Raigad ]..Appellant Vs. The State of Maharashtra ]..Respondent WITH CRI. APPEAL NO. 451 OF 1991 The State of Maharashtra ] (At the instance of Shri. V.S. Salvi, ] Police Sub-Inspector, Poladpur P.St. ]..Appellant Vs. 1. Shri. Vinod Moreshwar Vaidya ] Age 35 years, R/o Mahad, ] Chavadar Tale, Tal. Mahad, ] Dist. Raigad ] 2. Abdul Halim Ahmad Taj, ] Age 41 years, r/o Mahad- ] Gandharpol, Tal. Mahad, Dist. ] Raigad ] 3. Tatyaba Motiram Chikane, ] Age 60 years, r/o Bhogaon, ] Tal. Poladpur, Dist. Raigad ]..Respondents [Ori.Accused Nos.1,2 & 5] .... Mrs. Anjali Helekar Adv. i/b Mr. S.M.Dharap Adv. for the appellant in Appeal No. 407 of 1991 and for Respondent no.1 in Appeal No.451 of 1991 Mrs. A.S.Pai A.P.P. for the State in Appeal No. 407 of 1991 and for Appellant in Appeal No. 451 of 1991. .... 2 cr-apeal-407-451-91 CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : JANUARY 10, 2011 ORAL JUDGMENT [PER B.H.MARLAPALLE, J.]: 1. These appeals arise from Sessions Case No. 101 of 1987 in which in all six accused were put on trial for the offences punishable under Sections 427, 436, 120-B and 114 all read with Section 34 of the Indian Penal Code. The learned 2nd Additional Sessions Judge, Raigad by his judgment and order dated 10.5.1991 was pleased to convict accused nos.1, 2, and 5 for the offences punishable under Section 427 read with Section 34, 436 read with Section 34, 120-B read with Section 34 and Section 114 read with Section 34 of the I.P.C. Accused no.6 came to be acquitted from all the charges whereas accused nos.3 and 4 were granted pardon under Section 307 of Code of Criminal Procedure and therefore, were acquitted of the offences charged. Criminal Appeal No. 407 of 1991 has been filed by accused no. 1 whereas Criminal Appeal No. 451 of 1991 has been filed by the State of Maharashtra for enhancement of sentence as accused nos.1, 2 and 5 were granted the benefit of Section 4(1) of the Probation of Offenders Act and they were released on entering into a personal bond of Rs.3000/- with one surety of like amount for a period of two years. However, Criminal Appeal No. 451 3 cr-apeal-407-451-91 of 1991 came to be dismissed on 8.4.1996 against accused no.5 (respondent no.3) and therefore, the said Appeal survives only against accused nos.1 and 2. 2. As per the prosecution case, accused no.1 was working as the Branch Manager (Agent) of Mahad Co-Operative Urban Bank Poladpur Branch from 17.4.1980 to 16.9.1986 and thereafter, he came to be transfered to Murud Branch of the said Bank. On or about 5.9.1986 the audit of Poladpur Branch was undertaken by Shri. Shrinivas Kulkarni PW 3 and in the said process, it was pointed out by him about the missing documents, to accused no.1 who sought sometime to produce these documents pertaining to the loan sanctioned to Smt. Pushpalata Salgare, Gayakwad, Gani Dhamankar, Ajit Bhagwat, Vasant Jadhav and Suresh Talathi. The audit was completed in the first week of October, 1986 and the accused no.1 could not produce the missing documents of the above mentioned six loan disbursements though the loan amount was shown to have been disbursed. On or about 5.10.1986, the accused no.1 approached accused no.3 who was employed as a peon in the Bank with a request that he should leave the northern side door of the bank open in the night and with the help of accused no.2 the documents lying in the bank, would be set on fire by accused nos. 4 and 5 so that he would not be required to produce the documents and presumably he would take the 4 cr-apeal-407-451-91 plea that the missing documents were burnt during the fire, so set up. Pursuant to this plan hatched by accused no.1 with the help of accused no.2, accused no.3 left the northern side door of the bank open in the night of 9.10.1986 and accused nos.4 and 5 entered the said branch from the northern side door between 1.00 a.m. to 1.30 a.m. with a tin can. Before entering into bank, accused nos. 4 and 5 had gone to see a dance competition in the temple of Bhairoba. Accused no.4 entered into the bank with a kerosene tin and accused no.5 kept a watch by the side on the road. Accused no.4 sprinkled kerosene from the tin on the papers lying on the counter of the bank and set them on fire by lighting a match stick and came out of the bank. They had reached Poladpur by truck No. MTT-6294 owned by accused no.2 and driven by accused no.6. Both of them returned to their village viz. Gandharpale and stayed at the house of accused no.2 and reported about the successful mission. Due to this fire in the bank, smoke started oozing out and the watchmen of the neighbouring M.S.E.B. Office Namdeo Sanap PW 10 went to the landlord ’s house i.e. PW 2 Abhay Butala and woke up them by around 2 a.m. PW 2 Abhay gave information to the police station and consequently PW 4 Vithal Salvi with the police force came to the bank and fire was extinguished. In the said fire along with some papers, furniture of the bank was also burnt away and the damage so caused, was calculated at Rs.65,000/- to Rs.75,000/-. PW 4 Vithal Salvi lodged a 5 cr-apeal-407-451-91 report on 11.10.1986 which was treated as an F.I.R. and the investigation was set in motion. Accused nos.1 and 2 came to be arrested from the house of accused no.2 and other accused also came to be taken into custody immediately thereafter. However, all the accused were released on bail during the trial. On completion of investigation, charge sheet came to be filed on 23.3.1987 and charge was framed on 11.4.1990 after the case was committed to the Sessions Court as it was not triable by the Judicial Magistrate, F.C. 3. Accused nos.3 and 4, after the charge was framed, submitted applications at Exhibits- 16 and 14 respectively for pardon under Section 307 of the Code of Criminal Procedure and they came to be allowed by the learned Additional Sessions Judge. The said accused were then presented before the learned Judicial Magistrate F.C. to record their confessions under Section 164 of the Code of Criminal Procedure and by due compliance of the requirements of Section 306 by the Court, these two accused i.e. accused nos.3 and 4 came to be examined as PW Nos. 6 and 5. The prosecution examined other 17 witnesses in support of its case which was entirely based on circumstantial evidence. The statements of the accused nos.1, 2, 5 and 6 under Sections 313 of the Code of Criminal Procedure, were also recorded in which, they denied their involvement in the offences. They claimed that they were falsely 6 cr-apeal-407-451-91 implicated in the offences. 4. PW 1 Pandurang Salvi was the Circle Inspector and he was called upon to prepare the map of the place of the incident on 3.6.1990. He prepared the map at Exh. 29 and submitted to the Investigating Officer. PW 2 Abhay Butala is the son of the landlord of the building in which the bank was situated and though in the said building, M.S.E.B. Office and Bank was situated, they were separated by a common wall. The map at Exh. 29 indicates that the bank had six doors and one of the door was to north side. The Bank faced the east. The M.S.E.B. Office had engaged a watchman and PW 10 Namdeo was the person on duty who noticed the fire in the bank around 2 a.m. on 10.10.1986 and he went and woke up PW 2 Abhay and other family members. PW 2 Abhay came out of the house along with his father and saw that the northern side door of the bank was open and the fire flames could be seen from outside. He then went to the police station on his two wheeler and informed the police about the incident which information was reduced in writing (Exh. 31). Police constable Ramesh Shrike PW 6 accompanied PW 2 Abhay to the Bank and the fire was extinguished. The fire was brought under control at about 6 a.m. and the furniture was partly burnt along with ledger books. Even cabins of the Manager and Cashier were partly burnt. The whole ceiling of the bank had turned into back colour due to fire and smoke and 7 cr-apeal-407-451-91 electrical wiring was also damaged. This testimony of PW 2 Abhay regarding the incident of fire and the damage so caused, remained intact in his cross-examination. 5. PW 3 Shrinivas Kulkarni was the Auditor for Co-Operative Societies at Mahad and there were about 31 societies under his charge. He stated before the trial Court that he had undertaken the audit of Mahad Co-Operative Bank Poladpur Branch in first week of September, 1986 and completed in the first week of October, 1986. He did not find the loan documents in respect of six borrowers whose names have been set out herein above. He had, therefore, asked accused no.1 to produce those loan documents and he was assured by accused no.1 to do so but after search. Accused no.1 did not produce the documents and PW 3 therefore, submitted his report to his superior officers. It has come in the examination of this witness that the Bank loan proposals used to be sanctioned by the Head Office of the Bank at Mahad and all loan amounts were disbursed by the Branch Manager concerned after obtaining/execution of the necessary documents. The letters of sanction and the letters of terms and conditions of the loan, are required to be in each proposal and other documents would be Promissory Note, Hypothecation and Mortgage Deed. Except the two R.C. Books in respect of two borrowers, no other documents were found in respect of 8 cr-apeal-407-451-91 the said six cases. When he started audit work, accused no.1 was working as an agent and he was transferred after 2nd week of September, 1986 to Murud Branch. After the transfer of accused no.1, PW 8 Satish Jangam took over charge as an agent of the Bank. As per PW 4 Vithal Salvi, he was working as P.S.I. at Poladpur Police Station at the relevant time. PW 2 Abhay approached the said Police Station at about 4 a.m. on 10.10.1986 and informed about the fire in the bank. His statement was recorded at Exh. 31 as accidental fire. As per him, when he came to the spot, he saw the damage to the records, registers, furniture, electrical fittings, ceiling etc. and it was estimated at Rs.75,000/-. During the course of his enquiry, he came to know that accused no.1 could not produce the documents in respect of some loans sanctioned as they were required by the Auditor and therefore, accused no.1 with the help of accused nos.2 to 6 set on fire the record of the bank. He had also enquired from accused nos. 1 and 6 and then lodged his complaint Exh. 34 and made entry in the station diary as well (Exh. 27) on 11.10.1986. He then registered C.R. No. 41 of 1986 and recorded the statement of four witnesses i.e. PW 2 Abhay and three others. He handed over the investigation to the Deputy Superintendent of Police i.e. Shri. Dongre PW 19 who submitted the charge sheet. In his cross-examination, PW 4 stated that on reaching the spot, he firstly tried to extinguish the fire with the help of other persons and it was so extinguished at about 6.00 to 6.30 9 cr-apeal-407-451-91 a.m. Thereafter, he proceeded to draw a panchnama which was completed at about 11.30 a.m. He lodged his complaint on 11.10.1986 at about 1.15 p.m. and he had come to know that on 10.10.1986 the Bank was set on fire deliberately. He admitted that he had not made enquiry with the chairman of the Bank Shri. Savant and did not record his statement. He admitted that the panchnama at Exh. 35 was drawn in the police station. He has stated that his previous statement that the panchnama for the attachment of drawer was drawn in the bank, is not correct. PW 7 Charudatta Mahadik was another employee of the bank and resided in the neighbourhood. He stated before the trial Court that he was in the service for about last ten years and on 6.10.1986 while he was in his house, accused no. 2 visited him at about 9 a.m. and enquired about the residence of accused no.3. He gave him the address of accused no.3 and accordingly accused no.2 went to the house of accused no.3 at Mahad and met him, as accused no.3 was in his house at the relevant time. In his cross-examination, he stated that he had informed the bank at Mahad that accused no.2 had come to his house so as to make enquiry about the address of accused no.3. But he could not state the name of the staff member to whom this information was given. He also reiterated that he had informed the staff members about the visit of 10 cr-apeal-407-451-91 accused no.2 but admittedly, he did not ask accused no.2 as to why he wanted the address of accused no.3. He denied the suggestion that he was making a false statement regarding the visit of accused no.2 so as to seek address of accused no.3. PW 8 Satish Jangam stated before the Court that on 9.10.1986 he was on duty as a Manager of the bank and accused no.3 had closed the bank and latched the doors and handed over the keys to him (PW 8), along with accused no.3 he left the bank and went to Mahad by S.T. bus. Accused no.3 was assigned the work of cleaning the bank, filing the documents, opening and closing the bank before and after the working hours. He also pointed out that the loan documents like vouchers, bonds etc. would be kept in the steel cup-board, whereas, ledgers were kept on the counter. The vouchers and bond files would be kept in steel cupboard under lock and key. On 10.10.1986, the Chief Manager of the Bank Shri. Oak visited his house between 5.00 a.m. to 5.30 a.m. and he informed him about the incident of fire in the branch at Poladpur and asked him to accompany to the branch. Both of them reached the Bank and noticed the counter and cash cabin were burnt along with ledgers and all the walls of the room were blackish, the glasses of agent ’s and cashier ’s cabin were broken. He stated in his cross- examination that if any ledger is destroyed or lost, new ledger could be reconstructed with the help of documents, record and vouchers and the creditors/customers have no concern with the ledgers. Cash and gold 11 cr-apeal-407-451-91 would be kept in the safe and securities, R.C. Books would be kept in the steel cup-board. Steel cupboards were not having proper locks and therefore, they were kept without lock and keys and when he went to see the safe and steel cupboard after the incident of fire, he noticed that they were intact. He also stated that he had taken over charge from accused no.1 on 5.9.1986 (Exh. 41) and that the peon was the only person in the bank who would stick the vouchers. As per him, the height of the roof was about 12 to 13 feet. At the time of taking charge from accused no.1, he had verified cash, gold and registers. Registers, ledgers and cash books were written till the date he had taken charge from accused no.1 and there were some incomplete registers which the accused no.1 had promised to complete it. There is nothing in the cross-examination of this witness so as to doubt his testimony. PW 9 Rajan Shet is another employee of the bank who visited the Poladpur Branch on the instructions given by the Chief Manager. He stated that on instructions, they had found that in hire purchase ledger, there was an entry dated 12.6.1986 regarding payment of Rs.45,281.25 ps. on behalf of borrower Gani Babasaheb Dhamankar. But the said entry was not reflected in the cash book and Kird. On 22.6.1986, an entry in the ledger of hire purchase for the payment of Rs. 10,000/- with interest on behalf of Sunil Phanse was also found but the same was not reflected in the rough cash book, kird or general ledger. An entry for the amount of Rs.65,000/- was found on 12 cr-apeal-407-451-91 9.9.1986 on behalf of a borrower Ananta Pendse but the same was not reflected in the rough cash book, kird or general ledger. This witness was examined so as to point out that accused no.1 did not maintain specific documents regarding the disbursement of the loan amounts and some entries were fictitious. PW 11 Ananta Pendse was examined and he was shown the document Exh. 45 which was collected from the briefcase of accused no.1 immediately after his arrest from the house of accused no.2, and this witness stated before the Court that he had never deposited the amount of Rs.65,000/- in the said Bank. He stated before the Court that accused no.1 had agreed to sanction an amount of Rs.40,000/- to Rs. 45,000/- and accordingly, he submitted his loan proposal, however, at no point of time, he was informed by accused no.1 that an amount of Rs. 65,000/- was sanctioned towards his loan and he had not received any such amount from accused no.1. He had pigmy account in the bank and he used to pay Rs.20/- to Rs.25/- every day. 6. PW 16 Dattatraya Bhagwat has been examined so as to confirm the damage caused to the bank i.e. Rs. 75,000/- and he is also the panch witness to the panchnama Exh. 60. Though PW 14 Abdul Taj and Liyakat Pathan PW 15 turned hostile, the same has not, in any way, weakened the case of the prosecution inasmuch as they were witnesses to the arrest panchnama Exh. 51. As per the said arrest panchnama, 13 cr-apeal-407-451-91 accused nos.1 and 2 were arrested from the house of accused no.2. However, PW 18 Nana Deshmukh was the police constable who was also present at the time when the accused nos.1 and 2 came to be arrested and arrest panchnama Exh. 51 has been proved by the prosecution through the evidence of this witness. 7. The prosecution case is mainly based on the approvers ’ testimony i.e. accused nos. 3 and 4 who came to be examined as PW 6 and PW 5 respectively. It was submitted by Mrs. Helekar, the learned counsel for the accused no. 1 that the evidence of these two witnesses was unreliable, contradictory and suffered from inconsistencies. She also submitted that as per PW 5, the attempt to set the bank on fire was not only on 9.10.1986 but it was also on 5.10.1986 but PW 6 in his deposition had claimed that he had left the inside latch open of the northern side door of the bank in the night of 9.10.1986 and as per Mrs. Helekar, this contradiction between the depositions of these two approvers, has vitiated the prosecution case. We do not find any merit in these submissions which were also advanced before the trial Court as well. The trial Court found that the testimony of these two approvers was reliable, natural, consistent and was duly corroborated. The trial Court considered two specific witnesses i.e. PW 13 Santosh Butla and PW 17 Suresh Gayakwad. PW 13 Santosh was the owner of hotel Avadhoot and his 14 cr-apeal-407-451-91 evidence before the trial Court went to show that he was in his hotel in the night of 9.10.1986 from 8 p.m. onwards till about 10.30 p.m. and accused no.5 and one more person aged about 24 to 25 years, had visited his hotel. He identified accused no.5 in the Court and he knew him as he was doing business of fire wood and was resident of village Bhogaon, Taluka Poladpur. He had asked them in the hotel as to what purpose they had come to Poladpur in the midnight and they told him that they had come there for a special work. Both of them sat in the family room of the hotel, took tea and paid the bill on the counter. They told him that they were going to Kal Bhairavnath temple to see the dance and left. On 11.10.1986, he heard that some accused were caught by the police regarding the incident of fire in the bank and he went to the police station and he saw accused no.5 and also the other person who was in the company of accused no.5 on 9.10.1986. He identified accused no.5. In his cross-examination, there was nothing brought out about the testimony of this witness on material points. He stated in his cross-examination that he did not know if the dance competition at Kal Bhairavnath temple used to go till late in the night. He also stated that Kal Bhairavnath temple is at a distance of 300 to 400 feet from his hotel and on Bombay-Goa highway there was heavy vehicular traffic. He further stated in his cross- examination that accused no.5 told that he had come for special work and he did not suspect that any wrong would be done by him. Accused no.5 15 cr-apeal-407-451-91 always used to come to his hotel and thus, he did not feel it necessary to ask the further details of the special work. He admitted in his cross- examination that he had not stated so in his statement recorded by the police. This improvement brought out in the cross-examination, has not in any way, affected the evidence of this witness to prove that accused no.5 along with one more person has visited hotel Avadhoot in the midnight and thereafter had proceeded to watch the dance competition in the temple. PW 17 Suresh Gayakwad is another witness relied upon by the trial Court so as to corroborate the evidence of the approvers. PW 17 Suresh stated before the Court that the distance between Gokul Nagar and Poladpur Police Station is about half km. and on 9.10.1986, there was a dance programme in the courtyard of Bhairavnath Jogeshwari temple between 10 p.m. to 2 a.m. This competition was between the dancers of village Kathe Tali and Divil. There was quarrel between these two dance parties about 1.30 a.m. to 1.45 a.m. and therefore, the public disbursed. In that crowd, he had seen accused no.5 Tatyaba Chikane and asked him that he had also come to see dance competition. Accused no.5 told him that he came to know about the dance competition, he attended the same. On the next day at about 6 a.m. when he went to Poladpur for selling milk, he had seen accused no.5 coming out from the 16 cr-apeal-407-451-91 hut behind Avadhoot hotel at Poladpur and in the said hut, liquor was available. He had also seen accused no.4 in the house with accused no.5 and asked accused no.5 as to how he was there at Poladpur till that time and he did not go to his village. Accused no.5 replied him that he wanted to go to Mahad. When this witness reached Poladpur town, he came to know that there was a fire in the bank. In his cross-examination, he admitted that he used to serve the police department and he was a dismissed police constable. However, on the day of the incident, he was in the service as police constable. He denied the suggestion that he was a got up witness and he had not seen accused