Bombay High Court
State Of Maharashtra. vs State Of Maharashtra on 5 December, 2009
Bench: J. H. Bhatia
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1271 OF 2004
Rajan Devan Muker )
convict prisoner No. 4499 )
Nashik Road Central Prison, )
Nashik Road 422 101. )
State of Maharashtra. ) .. Appellant
(Orig.Accused No.2)
Versus
State of Maharashtra )
at the instance of Antop Hill Police )
Station. ig ) Respondent
Smt. Nasreen S.K.Ayubi, Advocate appointed, for the appellant.
Smt. M.H.Mhatre, APP, for the State.
CORAM: J.H.BHATIA, J.
DATE : 5th December, 2009.
ORAL JUDGMENT
1. The present appellant/accused No.2 has challenged the Judgment
and order dated 8.3.2004 passed by the learned 4th Adhoc Assistant Sessions
Judge, Bombay at Sewree. In Sessions Case No.818 of 2002 whereby he was
convicted for the offence punishable under Section 392 read with Section 397
and Section 34 I.P.C. and was sentenced to undergo R.I. for seven years.
2. To state in brief, on 6.3.2002, at 21.45 hrs., one Babulal Samadali
Shaikh lodged a report at Antop Hill Police Station, Mumbai to the effect that on
earlier day i.e. on 5.2.2002 at 6.30 p.m. after alighting from a local train at
G.T.B.Nagar, he was walking down towards Bangalipura. When he was beneath
the railway bridge, three persons restrained him. Two of them caught his hands
and third person,who was wearing red shirt,pointed a knife on his neck and
demanded money. Then that person forcibly took amount of Rs.200/- from the
pocket of his pant. He also informed that one Manirule Gayan was also robbed
at about 4.30 p.m. and amount of Rs.255/- was taken away by the culprits.
Statement of said Manirule Gayan was also recorded at the same time. On
7.3.2002, accused No.1 Chandu Pyarelal Chauhan and the present appellant -
accused No.2 Raju were arrested in another case, being Crime No.349 of 2002
under section 379 I.P.C. When they were in the detection room, one P.W.2 Suhas
Arjun Kamble came to the Police Station. He was shown both the accused in the
detection room and then he stated that he was also robbed of Rs.20/- on
5.3.2002 at about 6.15 a.m. by the persons while he was returning from his duty.
The present appellant - accused No.2 was one of them and he was holding a
knife. His statement was recorded. On 8.3.2002, accused Nos. 1 and 2 were
arrested in the present case i.e. Crime No.76/2002 under Section 392 read with
Section 397 I.P.C. On 10.3.2002, on the basis of information given by accused
No.1 Chandu, a knife and amount of Rs.200/- were recovered. On 21.3.2002,
identification parade was held wherein both the accused were identified by P.W.
2. After investigation, charge-sheet was filed and the case was committed to the
Sessions Court for trial. After trial both the accused were convicted and
sentenced as stated above.
3. Heard learned Counsel. Perused Record and proceedings. Record
reveals that Charge Ex.2 was framed against accused Nos. 1 and 2 under
Sections 392 and 397 read with Section 34 I.P.C. Tthe charge was only in
respect of robbery from the complainant Babulal Samadali Shaikh. There was
no charge in respect of robbery from Manirule Ayub Gayan and Suhas Arjun
Kamble. Recording of prosecution evidence was completed on 16.2.2004.
Statement of accused under Section 313 was also recorded on 24.2.2004. From
the charge Ex.2, it appears that on 4.3.2004, the said charge was amended and it
was added that Manirule Ayub Gayan and Suhas Arjun Kamble were robbed of
Rs.255/- and Rs.20 respectively. On the next page below the charge Ex.2, there
is an endorsement that contents of addition of charge were read over and
explained to both the accused in vernacular. That endorsement appears to be of
24.2.2004 and it also appears that the accused had pleaded not guilty of
additional charge on 24.2.2004. However, charge Ex.2 does not show that the
amendment of the charge was made on 24.2.2004. It appears that the plea of
accused about additional charge was recorded on 24.2.2004 while the charge
was in fact amended on 4.3.2004.
4. Coming to the evidence led by the prosecution, at the outset, it may
be stated that the complainant Babulal Samadali Shaikh and another person, viz.
Manirule Ayub Gayan were not examined by the prosecution. An attempt was
made by the prosecution to prove the FIR lodged by Babulal Samadali Shaikh
through PW.5 - PSI Gopal Mahadu Thakur, who had recorded that report. FIR
was marked ex.13. It is settled position of law that FIR itself is not a
substantive evidence, though it can be used for the purpose of corroboration if it
is lodged immediately after the incident. As Babulal Samadali Shaikh himself
was not examined, it cannot be said that the report Ex.13 and particularly its
contents are proved.
5. PW.3 Ashrafali Khan and P.W.4 PSI Rahul Gangurde were
examined to prove that on the basis of information given by accused No.1 -
Chandu, on 10.3.2002, a knife and amount of Rs.200/- were recovered from
him, as per the panchnama Ex.10 and 10/1. That recovery was pertaining the
amount of Rs.200/- allegedly robbed from Babulal Samadali Shaikh. As
Babulal was not examined and that incident was not proved, the recovery of the
knife and amount of Rs.200/- from the accused No.1 was also not sufficient to
prove that incident. Anyhow, that recovery of knife and amount had nothing to
do with the robbery from P.W.2 Suhas Arjun Kamble.
6. Tthe evidence of P.W.2 - Suhas Arjun Kamble shows that he was
on night duty between 4.3.2002 and 5.3.2002. After his duty time, on 5.3.2002
at about 6.15 a.m. he was going to his house from the side of Kane Nagar
School. When he came near the corner of that School, he saw three persons
standing there. Those three persons restrained him. Out of them, two caught
his hands and third put a knife on his chest. Those persons took out amount of
Rs.20/- and his identity card from the pocket of his shirt. After that they ran
away. Even though he claimed that he went to the police station on the next day
to lodge a report, it is proved by P.W.5 PSI Gopal Thakur that P.W.2 Suhas
Kamble had come to the Police Station on 7.3.2002. The evidence of Suhas
Kamble shows that when he went to the Police Station, two persons i.e. accused
Nos. 1 and 2 were already in the police custody at the police station and a police
officer asked him to identify them and he identified them as the persons who had
robbed him. After that his statement was recorded. P.W.5 PSI Gopal Thakur also
confirmed that P.W.4 PSI Rahul Gangurde had shown accused persons to PW-2
Suhas Kamble in the detection room and after that his statement was recorded.
The accused persons were not known to Suhas Kamble prior to the incident.
Therefore, he was not expected to know their names. He did not lodge any
report immediately after the incident giving any description of the culprits. Even
though he came to the Police Station on 7th March 2002, his statement was not
recorded by the police before showing the accused persons to him. In his
statement, he has given the description of the culprits, but as that statement was
recorded after the accused persons were shown to him at the police station, no
importance can be given to the description of the culprits given in the statement.
If without showing the accused persons to him, his statement would have been
recorded and he would have given the description and then if he would identify
the culprits in the test identification parade, the description given by him in the
police statement would be important and relevant. Therefore, in view of the
facts of the present case, no importance can be given to the description of the
culprits given in police statement.
7. The test identification parade was held by P.W.1 Joseph
Santimano, who was Special Executive Officer and a private businessman. P.W.
5 Gopal Thakur admitted in the cross-examination that P.W.2 Suhas Kamble had
already seen the accused in the Police Station before going for identification
parade. It shows that P.W.2 Suhas Kamble had not only seen the accused
persons at the Police Station before recording of his statement, but again he had
seen them at the Police Station before he was taken for test identification
parade. Therefore, identification of the accused persons during the test
identification parade also cannot be given any importance. Though in his
deposition before the Court PW-2 Suhas Kamble deposed that 2-3 culprits had
caught his hands, P.W.5 PSI Gopal Thakur admitted in the cross-examination
that P.W.2 Suhas Kamble had not stated before him that two culprits had caught
his hands. This is material omission. P.W.2 Suhas identified the accused No.2
Raju @ Rajan as the culprit who had put knife on his chest and robbed the
amount. However no knife was recovered from him during investigation.
8. Taking into consideration the evidence on record, and the manner
in which the statement of PW-2 Suhas was recorded by police and the manner in
which accused persons were shown to him by the police before recording his
statement and also before the identification parade, it is difficult to place any
reliance on his testimony. It is already pointed out that Babulal Samadali Shaikh
and Manirule Ayub Gayan, who were robbed, were not examined before the
Court. In view of this, it must be held that prosecution has utterly failed to prove
the charge of robbery in respect of Babulal Shaikh and Manirule Ayub Gayan.
In view of the nature of evidence on record, the prosecution also failed to prove
that the present appellant i.e. Accused No.2 had committed offence of robberty
from Suhas Arjun Kamble. Therefore, the present appellant is entitled to be
acquitted of the charges under section 392 read with Section 397 I.P.C.
9. For the aforesaid reasons, the Appeal is allowed. The conviction
and sentence are hereby set aside. As the accused has been already released on
17.11.2008 after undergoing complete sentence awarded by the trial Court, no
order needs to be passed for his release now.
(J.H.BHATIA,J.)
