Case: Kailash Upendra Giri &amp; Another Vs. State of Maharashtra

states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/- in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/- was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/- was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8.As regards the first circumstance of Kailash being an earlier servant in the house and being familiar with the house as well as its occupants, we have the evidence of P.W.9 Dr. Kalpana Vaidya. She states in her evidence that Kailash was working in the house of her mother for 6 to 7 months. That whenever she used to visit the house of her mother she used to see Kailash in the house. That her mother had once told her that Kailash had got another job and that he had brought Purshottam as a substitute but Kailash was also visiting the house and watching television. This evidence conclusively proves the circumstance about Kailash being familiar with the house of Dr. Wagh and its occupants.9.As regards the second circumstance i.e. recovery of Rs.6000/in cash and one silver chain, the prosecution had led the evidence of P.W.No.8 P.S.I. Nandkumar Ghorpade who talks about the said recovery. In addition, the prosecution has also examined P.W.5 Surendra Choudhary who was the panch in respect of the recovery panchanama. The Advocate appearing for accused No.1 pointed out some discrepancies in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary. According to him, while P.S.I. Nandkumar Ghorpade had talked about the recovery of a silver chain from the neck of Kailash the panch witness had not talked about recovery of the silver chain from the neck of the accused. There is hardly any substance in his argument. P.W.9 Kalpana Vaidya in her evidence has identified the silver chain recovered (Part ofas the chain belonging to her father. In so far as recovery of an amount of Rs.6000/Kalpana stated that she had seen her mother writing names of the doctor on the currency notes received and she also identified the handwriting of her mother on one currency note ( Part of Article 8 before the court). This circumstance of recovery is therefore clearly established as against the accused Kailash. In his statement under Section 313 of the Criminal Procedure Code, Kailash has given no explanation about the finding of Rs.6000/and silver chain and has confined himself merely to denying the recovery. This circumstance is also duly proved by the prosecution against Kailash.10.The next circumstance relating to finger prints of Kailash is proved by the prosecution by examining P.W.No.22 Mr.Amol Nominath Athanikar who was photographer working in the office of the Commissioner of Police Mumbai. This witness deposed that from the scene of offence photographed two finger prints on the glass and two finger prints on the steel pot. He thereafter prepared enlarged photographs and delivered the negatives and positives to the police. The prosecution then further examined P.W.19 Chandrakant Ghag who was the panch witness for the panchanama relating to the lifting of the finger prints at the scene of offence and this witness formally proved the panchanama. The prosecution then finally examinedPalav who was the Finger print expert and this witness in his evidence stated that he found the finger prints on the steel pot at the scene of the offence. He spread mercury and chalk which is known as white powder and lifted those prints. That on 26.6.1996 Dadar Police Station took various finger prints of the suspected accused persons by name Kailash, Bhupendra, Sridhar and Damodar. He had stated that upon examination he found that the finger prints of the accused Kailash were similar to the finger prints which he had collected from the steel utensil. As per the office procedure he circulated this finding toprint experts and 12 experts scrutinized his report and confirmed his finding. Out of these 13 experts, 8 were Senior experts and others were Junior experts. There is virtually no cross examination of this witness and therefore, his evidence is totally acceptable.11.The next circumstance is that Kailash was present and seen in Mumbai on the date of the incident and immediately absconded and ran away to his native place is proved by the prosecution through the evidence of P.W.3 Sunil Bachanuprasad Verma. This witness states that he was working alongwith accused No.3 Damodar Sahu in Jalan and Company. He states that on 3.5.1996 Damodar came to collect some articles like stove, utensils and cooker from his room. When he and Damodar came out of the office of his company, he saw one Kailash was sitting outside . He identified Kailash in the court and stated that Damodar told him that within 2 to 4 days they will be going to Calcutta and thereafter, Damodar and Kailash went back. The evidence of this witness is corroborated by the fact that this witness had identified Kailash in an identification parade which was held by the Special Executive Magistrate. A further fact that Kailash was found missing and had ran away to his village is corroborated by the recovery evidence which indicates that on 7.5.1996 Kailash was actually found in his village. This circumstance is also proved by the prosecution.12.The last circumstances against Kailash is the fact that he went to a key maker to prepare the duplicate keys of the flat of Dr. Wagh. This circumstance is proved by the prosecution by the evidence of P.W.14 Anand Katappa. This witness states that he is a key maker and doing the business of preparing duplicate keys. In the month of March,1996 one boy had come to his place and he had prepared three duplicate keys at his instance. That, thereafter, about two months later the policemen had brought the elder boy who had earlier got prepared three duplicate keys. He identified accused Kailash in the court by pointing out Kailash amongst the other accused. There is absolutely no cross examination of this witness except to suggest that the shape of all the keys was different. This circumstance is also proved by the prosecution against Kailash.13.As the result, we find no infirmity in the conviction and sentence awarded to accused Kailash and the said conviction is liable to be confirmed.14.That brings us now to the evidence against the accused No.2 Damodar.15.The first circumstance against the Damodar is that he was seen in Mumbai on the date of the incident i.e. on 3.5.1996 but absconded and ran away on the same day. The prosecution sought to prove this circumstance through the evidence of P.W.3 Sunil Bachnuprasad Verma who was a co worker of Damodar. No doubt, this witness had talked about seeing of Damodar on 3.5.1996 when Damodar came to him to demand his articles like stove, utensils and cookers lying in his room. He states that he told Damodar that Pankaj Kumar Jalani who was the owner of his company was not present and he may come at 2.00 p.m. so he asked him to come at 2.00 p.m. He then came alongwith Damodar outside the company. Normally speaking, this evidence would be sufficient to prove the aforesaid circumstance but surprisingly this witness has failed to identify his co worker Damodar in the identification parade and this fact is confirmed by the Special Executive Magistrate and therefore, we would not like to rely upon this circumstance.16.The next circumstance is about the fact of recovery of amount of Rs.61,000/in cash and four railway tickets, two bearing dates 3.5.1996 and the other two bearing date 4.5.1996 from this accused, the Advocate for accused No.2 pointed out to us that there is some discrepancy in the evidence of P.W.8 P.S.I. Nandkumar Ghorpade and P.W.5 Surendra Choudhary who was recovery panch as regards the seizure of cash amount from Damodar whereas P.W.8 P.S.I. Nandkumar Ghorpade had stated in his evidence that an amount of Rs.61,000/was recovered from a german silver utensil (Handa) and four railway tickets were also recovered from the pocket of the trouser of Damodar. P.W.5 Surendra Choudhary had stated that an amount of Rs.60,000/was found in a brass metal like drum at the instance of Damodar. He pointed out that the panch had also stated nothing about the recovery of railway tickets at the behest of Damodar. It is further proved that one of the note (Article 10) had a name of one doctor written in the handwriting of Dr. Wagh which was identified by P.W.9 Kalpana Vaidya but all this recovery evidence at the highest even after drawing upon Section 114(a) of the Indian Evidence Act, cannot eliminate the possibility that the accused may only have been a receiver of the stolen goods. For establishing the fact that accused was himself one of the robbers, some other circumstance connecting him with the scene of the crime would have to be established. This is an element missing in this case and is the distinguishing factor on facts in the two cases cited by the prosecution i.e. State of Karnataka Vs. David Rozario and another reported in 2002 Supreme Court Cases (Cri.) 1852 and Gulab Chand Vs. State of M.P. reported in 1995 (3) Supreme Court Cases 574 . In the case of State of Karnataka Vs. David Rozario (supra), bloodstained weapons were also recovered at the behest of the accused and the blood group found of those weapons matched the blood of the deceased found on her shawl at the place of the offence. In Gulab Chand Vs. State of M.P. (supra) the recovery evidence was unexceptionable and recovery was made on the next day i.e. in close proximity to the murder. Ofcourse if it would have been established that he was one of the robbers then he would also have been convicted for murder because murder was part of the same transaction of the robbery. There is also a doubt as to whether this metal drum was lying in the house of Damodar as there is no clear and sufficient evidence to show that the vessel was in the house owned by Damodar. We cannot lose sight of the fact that Damodar had never worked in the house of Dr. Wagh and was not a person who was himself familiar with the articles and occupants of the house. There is a possibility that he may only be party of the conspiracy of recovery without being aware that murder would be committed when the robbery was actually being committed. The watchman of the society has unfortunately not supported the prosecution, though in the identification parade evidence he did identify Damodar. In the circumstances, there is lurking doubt in our mind about the sufficiency of the circumstance of recovery against the Damodar particularly as no amount was found from his person and that there is a serious discrepancy in the evidence relating to finding of four railway tickets from his trouser, the amount found and the place of such recovery.17.As regards the third circumstance that Damodar was seen alongwith Kailash as stated hereinabove, the evidence in this regard is that of P.W.3 Sunil Bachnuprasad Verma. As already discussed that Sunil Bachnuprasad Verma talks about seeing Damodar on the date of the incident, he had however, not able to identify Damodar who was his own co worker in the identification parade. This lacuna in the identification parade has been confirmed by the Special Executive Magistrate. As a result, we are giving benefit of doubt to accused No.2 Damodar and therefore acquit him.