Shri Mangesh Tanu Solkar And Shri ... vs The State Of Maharashtra
2002 Latest Caselaw 733 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard the counsel for the parties in context with the evidence on record as well as the judgment which has been assailed by these appeals. Both these appeals are disposed of by a common order as they arise out of the same Sessions Case.

2. Both the appeals are hereby assailing the correctness, propriety and legality of the judgment and order passed by the Additional Sessions Judge, Gr. Mumbai in Sessions Case No. 1105 of 1992 by which they have been convicted and sentenced as mentioned hereinbelow.

3. Appellant Machindra @ Vijay Hajare has been convicted for the offence punishable under Section 392 of IPC and has been sentenced to undergo RI for seven years and appellant Mangesh Solkar has been convicted for the offence punishable under Section 392 read with Section 397 of IPC and has been sentenced to undergo RI for seven years.

4. The prosecution case in brief is that the PW Kirit Kothari had collected four packets of deluxe variety of diamonds worth Rs. 80 lacs for selling it to a prospective customer and when he was walking on foot at M.S. Patkar Marg on 22.4.1991 at about 6.15 p.m., both the appellants and their associates stopped him by showing the knives and out of them Mangesh Solkar snatched out the bag which was containing diamonds in it. Both the appellants thereafter left the scene by riding on the scooter which was being driven by appellant Vijay Hajare. PW Kirit Kothari lodged a report in Gamdevi Police Station. Investigation proceeded in which it was revealed that Vijay Hajare had handed over diamonds to some of the prosecution witnesses by bluffing and posing himself to be a broker in purchasing and selling diamonds. After completion of investigation, the appellants were tried before the trial Judge who passed the order of conviction and sentence against them which has been assailed by these appeals.

5. The appellants took the defence of denial. They did not contend that the diamonds were belonging to them. They contended that they were falsely implicated in the present case. They pleaded for acquittal.

6. Shri Naik, Counsel appearing for the appellants, firstly criticized the evidence adduced by the prosecution in respect of identification parade held by Shri Vichare in the office of D.C.B., C.I.D. He submitted that the appellants cannot be said to be the persons participating in the said alleged incident and the identification of the appellant by the prosecution witnesses cannot be believed and cannot be taken to be the basis for conviction. He submitted that even according to the evidence of Kirit Kothari he had very little opportunity of seeing the faces and features of those culprits because according to his evidence he could see the person who was riding on the scooter when he had turned his face. Shri Naik submitted that the identification of Mangesh Solkar cannot be believed because PW Kirit Kothari has stated in his evidence that at the time of the said incident he was very much frightened. He further submitted that his evidence shows that he must have been panickly. Shri Shingarpur submitted that the identification parade has been properly held in this case though it has been held in the building of C.B.D., C.I.D., Mumbai. He submitted that the identification of the appellants should be accepted for basing the conviction because the evidence of Kirit Kothari is clinching on this point.

7. This Court has time and again said that the identification parade should be taken in accordance with the rules made for holding the identification parades. The dummies should be selected properly and one accused should be kept for identification by mixing the appropriate number of dummies. In holding the identification parade, necessary care has to be taken for seeing that the persons to be identified in the identification parade should not be seen by the identifying witnesses prior to identification parade and the evidence adduced by the prosecution on that point should be creating confidence in judicial mind. Shri Naik has pointed out that in the present case the identifying witnesses have come to the office of the D.C.B., C.I.D., quite early and they were there for sufficiently long time. He pointed out that the offices of the police officers were in the proximity of the hall where identification parade was held. This Court finds substance in the submissions advanced by Shri Naik on this point. The long time gap between the arrival of identifying witness and the holding of identification parade creates a doubt in the mind of this Court that in this case identifying witnesses could have seen the persons to be identified before the identification parade. The proximity of the offices of the police officers vis-a-vis the identification hall also creates clouds of suspicion in respect of the authenticity of identification parade. Thus, appreciating the evidence adduced by the prosecution in this case on the identification parade, this Court discards it by holding that it is insufficient for warranting a conviction.

8. Obviously the appellants were strangers to Mr. Kirit Kothari. The incident has taken place in a short span of time. Kirit Kothari has admitted in his evidence that he was panickly on account of snatching of the bag containing diamonds worth Rs. 80 lacs. The culprits brandished knives while committing the said robbery. Keeping in view the big amount of diamonds and the way in which the incident took place, Kirit Kothari must have in panickly condition of mind and that is consistent with the admissions given by him in his evidence. Therefore, he would not have been in a position to keep the features of those persons in his mind and brain so as to enable him to remember them when he was to identify the suspects in the identification parade. Therefore, the identification of Mangesh Solkar will have to be discarded. So far as Vijay Hajare is concerned said prosecution witness had little time to see Vijay Hajare's face because he could see him when he was in a turning stance. The time was also very much insufficient for impressing the features of Vijay Hajare in his mind and brain. Therefore, the identification of Vijay Hajare as alleged culprits has to be also discarded so far as the identification of Vijay Hajare and Mangesh Solkar by Kirit Kothari on oath, when he gave the evidence is concerned. Therefore, the prosecution has failed to establish by this evidence that the appellants were amongst the culprits who snatched away the diamonds from Kirit Kothari. Evidence of Sharad Jurmalbhai Bansal and Investigating Officer shows that he was taken by Vijay Hajare along with PSI Tawade to one chappal shop near Grant Road Railway Station where from the possession of one lady who was his mother, 270.88 carets diamonds were recovered from one blue colour packet. The evidence of Paresh Jagdish Shah shows that on 30.4.1991 appellant Vijay Hajare took PSI Tawade and Paresh to 11th Lane, Khetwadi, Grant Road, where appellant Vijay Hajare was residing and from his house light blue colour diamonds were recovered which were 368 in number. The evidence of Lalmani Savji Dube shows that on 30.4.1991 at the instance of appellant Hajare a knife and brief case containing diamonds was recovered. They were 326 diamonds. 281 diamonds, one calculator and one Eye Glass were kept in possession of Santosh Atmaram Palande by appellant Vijay Hajare. These diamonds were seized under various panchanamas and these diamonds were identified by Kirit Kothari before the Court as diamonds belonging to him and which were in his possession before they were snatched by the culprits. This Court does not give any consideration to the identification of diamonds made by Kirit Kothari before police in view of the judgment of the Supreme Court in Ramkishan Mithanial Sharma and Ors. v. State of Bombay, .

9. Shri Naik has submitted that these diamonds have not been proved by the prosecution to be belonging to Kirit Kothari because Kirit Kothari has admitted in his evidence that he would not be able to identify those diamonds if mixed with other diamonds. Shri Shingarpure has pointed out that Kirit Kothari has stated in his evidence that the diamonds are to be identified by cuts and polishing. Kirit Kothari has stated on oath before the Court that the diamonds are belonging to him. It is a matter of experience that by handling and by constant contact with ornaments or jewellery or diamonds the owner or purchaser can identify them. Kirit Kothari has not been properly examined by the learned Prosecutor who was conducting the case. The total impact created by the evidence of Kirit Kothari has to be understood and not the answers given by him to improper questions put by the learned Prosecutor to him. The sum and substance of the evidence of Kirit Kothari is that he has identified those diamonds as belonging to him. It has been so identified by keeping in view its cuts and polishing and its handling by Kirit Kothari. Furthermore, it is to be noted that neither of the appellants claimed those diamonds. Had those diamonds been belonging to the appellants they would have definitely claimed them. The prosecution witnesses with whom those diamonds were kept have also not claimed those diamonds. Therefore, this Court has no hesitation in coming to the conclusion that those diamonds were proved to have been stolen in the said act of robbery which was committed by some culprits whom Kirit Kothari was unable to identify. Thus, those diamonds have been proved to have been stolen in robbery.

10. Both the appellants were found to be in possession immediate possession of those stolen diamonds soon after the said robbery. Therefore, the presumption will have to be drawn in view of provisions of Section 114(b) of Indian Evidence Act, 1872 and it will have to be concluded that the appellants were robbers who participated in the said robbery.

11. Though the learned trial Judge has not appreciated the evidence on record properly by informing him of above mentioned facets of the case, he was right in drawing the conclusion holding the appellants guilty of offences punishable under Section 392 simplicitor (the appellant Vijay Hajare) and holding the appellant Mangesh Solkar guilty of offence punishable under Section 392 read with Section 397 of the IPC.

12. Shri Naik, counsel appearing for the appellants, submitted that the appellants are not having any criminal antecedents and, therefore, they be let off on the sentence which they have suffered already. Shri Shingarpure opposed this prayer and submitted that the minimum sentence which is awardable is RI for seven years. The appellants have committed robbery on the high way and that too in the midst of a big metropolis like Mumbai. They have robbed PW Kirit Kothari of diamonds worth Rs. 80 lacs. Therefore, the sentence of RI for seven years is sufficient to meet the ends of justice. There is no need of modifying it and reducing it.

13. Thus, this Court dismisses both the appeals and confirms the order of conviction and sentence passed against the appellants. The diamonds be returned to Kirit Kothari because the diamonds have been identified by him as belonging to him and the diamonds have not been claimed by either of the appellants. They have not been claimed by any of the prosecution witnesses from whose possession they have been seized. Even the appellants have not challenged the order of returning the property - diamonds to Kirit Kothari passed by the trial Court. Thus, there is no interference in respect of that order.

14. Parties to act on an ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.