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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.311 OF 2014
1] Dhanraj Sadashiv Nerkar,
Aged about 28 years,
Occ: Driver.
2] Vinod s/o Manik Meshram,
Aged about 21 years,
Occ: Labour.
3] Mahesh s/o Madhukar Hadaoo,
Aged about 21 years,
Occ: Pan Shop.
All R/o Bhagatsingh Ward,
Navin Takli, Bhandara,
presently lodged at Central Prison,
Bhandara. ....... APPELLANTS
...V E R S U S...
State of Maharashtra, through
Police Station Officer,
Police Station Bhandara,
Tah. & Dist. Bhandara. ....... RESPONDENT
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Shri A.B. Moon, Advocate for Appellants.
Ms. R.V. Kaliya, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
28 NOVEMBER, 2017.
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ORAL JUDGMENT
1] The appellants are aggrieved by the judgment and
order dated 19.03.2014 in Sessions Trial 51/2011 delivered by the Sessions Judge, Bhandara, by and under which, the appellants (hereinafter referred to as "the accused") are convicted for the offence punishable under sections 323, 342 and 394 read with section 34 of the Indian Penal Code (IPC for short). The accused are sentenced to suffer rigorous imprisonment for a period of seven years and to payment of fine of Rs.1000/- for the offence punishable under section 394 read with section 34 of the IPC, to suffer rigorous imprisonment for a period of six months and to payment of fine of Rs.500/- for the offence punishable under section 342 read with section 34 of the IPC and to suffer rigorous imprisonment for a period of six months and to payment of fine of Rs.500/- for the offence punishable under section 323 read with section 34 of the Indian Penal Code. The appellants are acquitted of offence punishable under sections 354, 376 (2)(g) and 506 read with section 34 of the Indian Penal Code.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 3 2] Heard Shri A.B. Moon, the learned counsel for the appellants and Ms. R.V. Kaliya, the learned Additional Public Prosecutor for the respondent/State.
3] Shri Moon, the learned counsel for the accused submits that the judgment impugned is seriously flawed and militates against the weight of the evidence on record. The learned counsel would submit, that the identity of the accused has not been established nor the seizure of the two mobile phones allegedly stolen from the complainant and his companion (P.W.1 and P.W.2) proved. The conclusions reached by the learned Sessions Judge are not based on legal evidence, is the submission. 4] Per contra, the learned A.P.P. would contend that the finding recorded by the learned Sessions Judge that the seizure of the two mobile phones is duly proved and that P.W.1 Vivek Khamble and P.W.2 Jayashree Makde have duly identified the accused in the Court, is unexceptionable and the judgment and order impugned does not suffer from any infirmity, on facts or in law.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 4 5] I have given due consideration to the evidence on record, the submissions canvassed by the learned counsels and the reasoning of the Sessions Judge, and having done so, I am not persuaded to uphold the judgment and order impugned. 6] The genesis of the prosecution lies in the oral report dated 19.04.2011 (Exh.68) lodged by P.W.1 Vivek. The gist of the report is that Vivek and P.W.2 Jayashree went on a joy ride on a two wheeler, parked the motorcycle on a road, sought solitude in an agricultural field and were conversing when four youth accosted them, robbed Vivek of two mobile phones and Rs.400/-, three youth tried to drag P.W.2 and when Vivek resisted, he was assaulted by one of the four youth who was holding Vivek. It is further stated in the oral report, that the four youth were misbehaving with P.W.2 and it was only on noticing a motorcycle approaching, that they ran away since one of them shouted that the police have arrived. Vivek and P.W.2, due to fear, ran in different directions. Vivek sought and hitched a ride from a motorcycle rider and reached the Police Station. He returned with police and found P.W.2 hiding by the side of the road. ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 5 The perpetrators of the crime are described in the oral report as four youth aged 20 to 25 and the report further ventures to describe the physical appearances of the youth. The report further states that one of the youth was referred to as Rahul. 7] On the basis of the said report, offence punishable under sections 394 and 354 read with section 34 of the IPC was registered at Police Station, Bhandara. P.W.2, in her statement recorded on 20.04.2011 disclosed that the four youth outraged her modesty by pressing her breast. P.W.2 further disclosed on 21.04.2011, that she was raped by the four youth, and in view of the two statements given by P.W.2 offence punishable under section 376 (2)(g) of the IPC was additionally registered. 8] The accused were arrested on 20.04.2011. Be it noted, that although the accused were arrested on 20.04.2011, no identification parade was held. The prosecution has not brought on record as to how the Investigating Agency zeroed down on the accused. The learned Sessions Judge observes thus: ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 6
25. No doubt, prosecution has not brought on record any evidence to point out that on receiving information about incident from Pw-1 Vivek to police, entry was taken in Station diary, and then police were proceeded on the spot along with Vivek, and brought Vivek and Jayashree from place of incident. Prosecution has also not disclosed the names of police officers who had gone for the purpose. Neither statements of such police officers were recorded nor such police officers are cited as witnesses. But only because police have committed mistake, a prosecution story about assault upon complainant Vivek and victim Jayashree, and robbery of two Mobile phones and cash amount amounting to Rs. 400/- by causing hurt to complainant and victim cannot be thrown away, specially in the circumstances that nexus of accused finds place with incident.
Pw-1 Vivek and Pw-2 Jayashree have specifically asserted that accused present before Court and a juvenile in conflict with law Rahul Badwaik had been to a field where they were sitting in loneliness. According to said witnesses, accused persons have beaten them, used force upon complainant as well as victim by taking them aside, and forcibly snatched two mobile phones and Rs. 400/- belonging to complainant Vivek. As victim and complainant could go to a field from Kacha road, it is expected that though it was night time, a sufficient light either of Moon or any other source was available so that movements made can be noticed. In such a situation, identification of accused on the part of said witnesses during investigation before Police and in Court as persons who robbed them by causing hurt cannot be disbelieved.
9] Concededly, P.W.1 and P.W.2 have identified the accused for the first time in the Court. The observation of the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 7 learned Sessions Judge in paragraph 25 of the judgment impugned that the witnesses have identified the accused during investigation, is not substantiated by the evidence on record. The examination-in-chief of P.W.1 Vivek would reveal that he identified the accused in the Court. In the cross-examination, a stray statement has come on record that P.W.1 Vivek did not know the accused prior to the incident and saw the accused at the Police Station. P.W.2 does not claim to have identified the accused in the Police Station or during the investigation and has identified the accused only during the evidence recorded on 14.08.2013. 10] In my opinion, the observation of the learned Sessions Judge that the accused are duly identified by P.W.1 and P.W.2 during investigation, is contrary to record. In so far as the identification of the accused during the course of trial, after more than two years and four months of the incident, the same must be discarded as wholly unreliable and untrustworthy. 11] The only other material, which is held to be incriminatory by the learned Sessions Judge, is the recovery of ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 8 two mobiles, said to be at the instance of accused 1. The two mobiles, are claimed by P.W.1 to be the same mobiles which were stolen on the date of the incident. The panch to the seizure of the two mobiles P.W.6 did not support the prosecution, nothing is brought on record in the cross-examination conducted by the learned A.P.P., to assist the prosecution. P.W.1 admits in the cross-examination, that he did not provide the bills evidencing the purchase of the two mobile phones, to the police. 12] The evidence on record is grossly insufficient to prove that the two mobile phones were in possession of P.W.1 on the date of the incident and that the two mobile phones were recovered and seized from accused 1 pursuant to memorandum under section 27 of the Indian Evidence Act.
13] The conviction predominantly rests on the evidence of P.W.1 and P.W.2. The said witnesses, are however, neither reliable nor credit worthy. The evidence of P.W.1 and P.W.2 is replete with obvious falsehood and inter se embellishments. These witnesses have been disbelieved by the learned Sessions ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 9 Court to the extent that the accused are acquitted of offence punishable under section 354, 376 (2)(g) and 506 read with section 34 of the Indian Penal Code. Apart from the fact, that the evidence on record is pathetically in adequate to bring home the charge under section 394 read with section 34 of the IPC, it would be extremely unsafe to permit the conviction to hold the field relying on the identification by P.W.1 and P.W.2 of the accused in the Court. The credibility of P.W.1 and P.W.2 is seriously dented due to obviously incredible and improbable version of P.W.2 having been subjected to gang rape, which version the learned Sessions Judge has rightly disbelieved.
14] On a holistic consideration of the material on record, I find the judgment and order impugned manifestly erroneous and I set aside the same.
15] The accused are acquitted of offence punishable under sections 323, 342 and 394 read with section 34 of the Indian Penal Code.
::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:54:13 ::: apeal311.14.J.odt 10 16] The bail bond of the accused shall stand discharged. 17] Fine paid by the accused, if any, shall be refunded.
18] The appeal is allowed.
JUDGE
NSN
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