Sunilsing S/O Shankarsing Thakur vs State Of Maharashtra
2004 Latest Caselaw 424 Bom

JUDGMENT

P.S. Brahme, J.

1. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent in both appeals.

2. These appeals by appellants - original accused No. 1 Sunilsing Thakur and original accused No. 3 Shaikh Razzak Shaik Abdul Nabi, arise out of judgment and order passed in Sessions Case No. 122 of 2002 by the III Ad-hoc Additional Sessions Judge, Jalgaon, whereunder the appellants and one Vijaykumar Ramsing Verma (original accused No. 2) were convicted for offences under sections 399 and 402 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for three years on each count and to pay fine of Rs. 5,000/- each and in default of payment of fine to undergo further rigorous imprisonment for a period of six months for each default. Both the substantive sentences were to run concurrently.

3. The prosecution case, in brief, is that two police constables, namely, Prithwiraj (PW 4) and Harun Bagwan (PW 5), then attached to Erandol police station were on patrolling duty on Erandol-Mhasawad Road on 18-7-2002 in the evening and while patrolling, received information that some persons had collected at Khadka diversion road beneath a tree with the intention to commit dacoity. On receiving this secret information, both the constables proceeded towards the site and when they approached the place, they found some five persons having assembled under a tree, and, therefore, in order to nab them, they caused alarm and when they proceeded quite close to the place, the persons assembled tried to flee away, but these police constables, with the show of threat of the guns with which they were armed with, succeeded to apprehend these two appellants and third person who was accused No. 2. It is claimed that this action of apprehension of the appellants was witnessed by two persons namely Santosh Pawar (PW 2) and Deoram Patil (PW 3). It is also the case of the prosecution that when these persons were apprehended and their search was taken, they were found armed with weapons, like chopper and knife and one of them was having a bag which contained nylone and coir rope. The appellants were immediately brought to the police station, where Police Sub Inspector Khairnar (PW 6) attached to the police station, seized the weapons and articles under panchanama Exh. 13 in the presence of panch witness Abdul Bashir (PW 1). Police Constable Prithwiraj (PW 4) lodged complaint, on the basis of which offence was registered and Police Sub Inspector Khairnar (PW 6) carried out investigation in the matter. After completing investigation in due course, chargesheet was filed in the court of Judicial Magistrate, First Class, Jalgaon, who in turn committed the case to the Court of Sessions, Jalgaon and that is how the matter was before the III Ad hoc Additional Sessions Judge, Jalgaon, who decided the same.

4. The appellants pleaded not guilty to the charge and claimed to be tried. Their defence is that of denial. It is in the sense, the defence has suggested the prosecution witnesses, namely, police constables and two eye witnesses that neither appellants were apprehended nor anything was found with them at the time and place. In substance, according to defence, the appellants have been falsely implicated. As stated earlier, the prosecution examined in all six witnesses, including two police constables Prithwiraj (PW 4) and Harun Bagwan (PW 5), panch witness Abdul Bashir (PW 1), alleged eye witnesses Santosh Pawar (PW2) and Deoram Patil (PW 3) and Police Sub Inspector Khairnar (PW 6) as investigating officer. The appellants were examined under Section 313 of Criminal Procedure Code, wherein they have denied the prosecution evidence and the circumstances which were incriminating in nature. The learned Sessions Judge, however, accepting the evidence, of police witnesses being found corroborated by independent witness Santosh Pawar (PW 2) and the very fact that the incriminating articles, namely, weapons were found in possession of the appellants, held them guilty for offences under sections 399 and 402 of Indian Penal Code and consequently in keeping with this finding of guilt, the trial Court awarded sentences as noted above. Hence this appeal.

5. With the assistance of the learned counsel for the appellants and the Additional Public Prosecutor, I have gone through the evidence recorded at the trial, as also the record and proceedings and the judgment of the trial Court. The learned counsel for the appellants, at the outset, brought to my notice from the judgment of the trial Court that as observed in para 11-A of the judgment, the trial Court has discarded the evidence of witness Deoram Patil (PW 3), who was amongst the star witnesses of the prosecution. It is submitted that on the same reasoning, as adopted by the trial Court, the evidence of witness Santosh Pawar (PW 2) has to be discarded having been placed in the same situation. The learned counsel for the appellants further pointed out that admittedly the contraband articles, namely, the weapons have been seized by the investigating officer, Police Sub-Inspector Khairnar (PW 6) when the appellants were brought to the police station. The panch witness Abdul Bashir (PW 1) was not with police constables at the time and place when the appellants were apprehended, and, therefore, even if the seizure as per the seizure memo Exh. 13 is technically accepted, that by itself will not attribute possession of the contraband articles, namely, the weapons with the appellants at the time and place where they were alleged to be apprehended. The learned counsel for the appellants further pointing out several inconsistencies in the evidence of both the police constables contended that what has been stated by police constables before the court in their evidence is at variance with the complaint. He has pointed out that there is no material to show that both the police constables had received secret information and they proceeded to apprehend the persons in pursuance of the secret information they received. The learned counsel for the appellants submitted that even accepting that the appellants were apprehended and they were found armed with the weapons, having regard to the time and place where they were apprehended and other attending circumstances, no inference could be drawn that the appellants had gathered with the intention to commit dacoity. To support his submission, he has placed reliance on two decisions, out of which one is that of the Apex Court , Chaturi Yadav and Ors., Appellants v. State of Bihar, Respondent. The other decision is of our High Court, a recent one, reported in 2003 Cri.L.J. 3661, Sadashiv alias Shiva Antappa Pujari v. State of Maharashtra.

6. The learned Additional Public Prosecutor Shri Gorhe supported the judgment of the trial Court so far as the factum of apprehension of appellants having possessed deadly weapons which came to be seized from them is concerned.

7. Before considering submissions of the learned Counsel for the appellants and the learned Additional Public Prosecutor, we must know legal position so far it relates to the offences under Sections 399 and 402 of Indian Penal Code in the light of the decision of the Apex Court. The facts in the case before the Apex Court were that eight persons including the appellant therein were found in school premises which was quite close to the market at 1.00 a.m. and some of them were armed with guns, some had cartridges and others ran away. As to the question that fell for consideration before the Apex Court in appeal challenging the order of conviction passed by the trial Court and confirmed by the High Court against the appellants for offences under Sections 399 and 402 of Indian Penal Code, the Apex Court observed that prosecution evidence merely showing that eight persons including appellant were found in school premises which was quite close to the market at 1.00 a.m., some of them being armed with guns and cartridges, the conviction under Sections 399 and 402 of Indian Penal Code was not sustainable. The mere fact that these persons were found at 1.00 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object. The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence would not be safely eliminated. In that case, one of the police officers, who apprehended the persons, had made a statement that the accused made the statement before them that they were going to commit dacoity. But obviously, as observed by the Apex Court, that statement of the accused made to the police Head Constable was not admissible in evidence to support the charge. It was in that context that the Apex Court has said, mere fact that these persons were found at deadly hours of the night having assembled is not sufficient to infer even that the persons were assembled only with the intention to commit any offence.

8. As noted in earlier part of the judgment, I have also been fortified with the recent pronouncement of this court reported in 2003 Cri.L.J. 3661 (supra). In that case, the persons who were apprehended were found possessing chopper or knife or an axe or a dagger or a spear by itself was not sufficient to hold that the persons had assembled for committing dacoity. It is observed that possession of these weapons would not be sufficient to come to the conclusion that the persons possessing such weapons had assembled for the purpose of committing dacoity. They could have been assembled for assaulting somebody at the most.

9. Now, coming to the facts of the case at hand, even accepting the seizure of weapons, namely, chopper and knife from the appellants by no stretch of imagination, the weapons could be attributed to the appellants strictly when the factum of seizure of weapons from these appellants on the spot is not corroborated by independent witnesses Santosh Pawar (PW 2) and Deoram Patil (PW 3). In this context, it is significant to note that actually when the alleged apprehension of the appellants has taken place, it was night time. It is evident from the evidence of police constable that there was no source of light as such to recognize and identify the appellants. Therefore, had the seizure of weapons from the appellants being made on the spot and then the appellants were taken to police station along with the weapons, the matter would have been different. It is not disputed that both the independent witnesses Santosh Pawar (PW 2) and Deoram Patil (PW 3) were not knowing the appellants. This is in the sense that none of them had any opportunity to see the appellants prior to the date of incident. No identification parade has been held by the investigating officer, nor it is the case of the prosecution that these two witnesses had accompanied the police and the appellants to the police station where the weapons were seized. In this background, what is required to be noted is that the panch witness Abdul Bashir (PW 1), in whose presence in the police station the weapons were seized, was not present on the spot when the appellants were apprehended. To say the least, the missing link, as could be seen, as regards the seizure of articles, brings out infirmity which goes to the root of the prosecution case. It is true that so far as both the police constables are concerned, apparently they have no reason to falsely implicate the appellants. But then, that by itself is not sufficient to attribute the weapons to the appellants merely on the basis of the fact that the appellants were apprehended at the time and the place. That apart, the time and place when the appellants were apprehended, which was at the most late evening, does not spell out even by stretch of imagination that the possession of arms, even if accepted, was with the intention to commit any offence, muchless the offence to commit dacoity, that is much more so, having regard to the pronouncement of the Apex Court, to which reference is already made in earlier part of the judgment. Therefore, there is much substance in the submission of the learned counsel for the appellants that accepting the factual position, even as to seizure of the weapons, having regard to the facts and circumstances of the case, the time of occurrence, no inference could be drawn, nor it could lead to raise suspicion that the appellants had assembled to commit dacoity. Here I must add that even if suspicion is raised, the legal position is clear that suspicion however strong cannot take place of proof.

10. In the result, on the evidence on record, the prosecution has utterly failed to prove that the appellants have committed any offence with which they were charged. The trial Court has committed an error in convicting the appellants as well as the original accused No. 2. The order of conviction and sentence awarded by the trial Court cannot sustain and as such it has to be quashed and set aside. The appellants are entitled to an acquittal. It is not disputed that the third person Vijaykumar Verma original accused, but he has not preferred any appeal challenging the judgment and order of his conviction and sentence. In a recent decision of the Apex Court , Pawan Kumar, Appellant v. State of Haryana, Respondent, the Apex Court observed that, "while hearing appeal of other accused, in case Court comes to the conclusion that no conviction of any accused is possible meaning thereby non-appealing accused as well whose conviction had attained finality, no appeal having been preferred against the High Court judgment, the benefit of that decision must be extended to non-appealing accused in spite of the fact that he has not challenged judgment of the High Court upholding his conviction." In view of the ratio laid down by the Apex Court, the accused, who is convicted along with the accused persons, whose appeal challenging the conviction has been allowed, is entitled to benefit and acquittal even though he has not preferred appeal challenging the judgment and order of conviction and sentence. The acquittal of accused persons by this court entitles the acquittal of co-accused who has suffered conviction and sentence in the same judgment given by the trial Court. Hence the order.

11. Appeals are allowed. The order of conviction and sentence passed by the trial Court in Sessions Case No. 122 of 2002 is quashed and set aside and the accused who were convicted under the said judgment are acquitted. Appellants No. 1 Sunilsingh Shankarsing Thakur and No. 3 Shaikh Rajjak Shaikh Abdul Nabi be released forthwith, if not required in any other case. The accused No. 2, namely, Vijaykumar Ramsing Verma, who is undergoing sentence along with appellants, is also acquitted and directed to be released forthwith, if not required in any other case.