Bombay High Court
Jail vs State Of Maharashtra on 25 November, 2013
Bench: T.V. Nalawade
Cri. Appeal No. 580/12 & Ors.
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 580 OF 2012
Noora s/o. Devidas Bhosale,
Age 31 years, Occu. At present in
Jail, R/o. Karjat, Tal. Karjat,
Dist. Ahmednagar. ....Appellant.
Versus
State of Maharashtra
Through the Karjat Police Station,
Karjat, Dist. Ahmednagar. ....Respondent.
Mr. H.D. Deshmukh, Advocate for appellant.
Mrs. V.A. Shinde, APP for State.
WITH
CRIMINAL APPEAL NO. 592 OF 2012
Gorakh Narayan Bhosale,
Age 31 years, R/o. Vahera,
Tq. Ashti, Dist. Beed. ....Appellant.
Versus
The State of Maharashtra ....Respondent.
Mr. Rajendra N. Chavan h/f. Mr. Vijay Sharma, Advocate for
appellant.
Mrs. V.A. Shinde, APP for State.
WITH
CRIMINAL APPEAL NO. 375 OF 2013
::: Downloaded on - 27/11/2013 20:34:31 :::
Cri. Appeal No. 580/12 & Ors.
2
Navnath @ Andya s/o. Devidas Bhosale,
Prisoner No. C.16423, Confined
In Yerwada Central Prison, Pune-6 ....Appellant.
Versus
State of Maharashtra
Through the Karjat Police Station,
Karjat, Dist. Ahmednagar. ....Respondent.
Mr. Shaikh Ashpak Taher Patel, Advocate for appellant (appointed).
Mrs. V.A. Shinde, APP for State.
CORAM : T. V. NALAWADE, J.
DATED : 25th November, 2013
JUDGMENT :
1. All the appeals are filed against the judgment and
order of Sessions Case No. 96/2011, which was pending in the
Court of Additional Sessions Judge, Ahmednagar. From the case,
accused Nos. 2, 3, 5 and 7 are convicted and sentenced for
offences punishable under sections 396, 457 and 380 of Indian
Penal Code. The maximum substantive sentence of ten years is
given, which is for the offence punishable under section 396 of
I.P.C. and for offence under each section the fine of Rs. 5,000/- is
imposed on each of the accused. Navnath (accused No. 2) has
filed Criminal Appeal No. 375/2013, Gorakh (accused No. 3) has
filed Criminal Appeal No. 592/2012 and Noora (accused No. 5) has
Cri. Appeal No. 580/12 & Ors.
filed Criminal Appeal No. 580/2012. Accused No. 7 has not filed
any appeal. Both the sides are heard.
2. In short, the facts leading to the institution of the
appeal can be stated as follows :-
The incident took place on the night between
27.11.2010 and 28.11.2010 in the locality known as Langore Galli,
Karjat, District Ahmednagar. The houses of deceased Ashok
Langore, Satish Jadhav, Vilas Mahajan and Anaspure are situated
in that locality and these houses were broken on that night and
the offence of dacoity was committed. In the house of Ashok, two
murders were committed. The deceased Ashok was cousin of
complainant Ramesh and the house of Ramesh is also situated in
the same locality.
3. The wife of Ashok was out of station. The old mother
of Ashok and his sister Pramila were present in the house along
with Ashok on that night. Satish Jadhav was out of station and he
had put lock on his house, when he had left the station. Other
persons were at home.
4. On that night, the dacoits broke open the houses of
Cri. Appeal No. 580/12 & Ors.
aforesaid persons and they took away valuables like ornaments
and bags containing articles. When the complainant visited the
house of Ashok, Ashok was already dead. Pramila was seriously
injured and she succumbed to the injuries in the hospital. On the
basis of report given by Ramesh, the crime was registered for
offences punishable under sections 380, 396 etc. of I.P.C. in Karjat
Police Station at C.R. No. 223/2010.
5.
Annasaheb Ghavte, the P.S.I., who was attached to
the aforesaid police station made some investigation. When he
prepared the spot panchanama in the house of Ashok, he found
one rexine wallet. The complainant and others told that the wallet
was not of family members of Ashok. In the wallet, there were
receipts of census of the Government and the receipts were
bearing in the name of Devidas Dinya Bhosle (accused No. 7).
There was one passport size photograph of accused No. 7 in the
wallet. Vishal Mahajan informed that a bag of his father containing
the clothes of the father and blank cheque was taken away by
dacoits. In one house, the handkerchief of Vishal Mahajan was
found and in that house also, the dacoity was committed.
6. On the same day, the Investigating Officer searched
the house of accused No. 7 in the presence of panch witnesses.
Cri. Appeal No. 580/12 & Ors.
The bag of the father of Vishal Mahajan, containing clothes was
recovered from the house of accused No. 7 and these articles
were identified by the owner of the articles. There was laundry
mark 'Mahajan' on these clothes. As police traced the house of
accused No. 7, the other accused were also traced during the
course of investigation.
7. During the course of investigation, on the basis of
statement given by accused No. 2 - Navnath, son of accused No.
7, gold ornament like Bormal came to be recovered from the
vicinity of the house of accused Nos. 2 and 7. They were living
together. This Bormal came to be identified by the widow of Ashok
as it was stolen from their house.
8. Jadhavrao (PW 12), another Investigating Officer,
arrested the accused No. 5 - Noora. On the basis of statement
given under section 27 of Evidence Act by Noora (accused No. 5),
stolen articles like two envelops and blank cheque of the family of
Mahajan were recovered and they were identified by this family.
9. Another Investigating Officer Shri. Rakh (PW 9) made
investigation in respect of accused No. 3 - Gorakh. Accused No. 3
gave statement under section 27 of Evidence Act and he took the
Cri. Appeal No. 580/12 & Ors.
police and panchas to the shop of a goldsmith where he had sold
some gold ornaments. The goldsmith Shri. Kulte (PW 5) produced
ornaments like Mangalsutra, nose ring, two gold rings and one
gold ornament known as 'Manchali'. The statement of goldsmith
came to be recorded and he informed that accused No. 3 had sold
him the ornaments.
10. The chargesheet came to be filed for aforesaid
offences. All the accused, which were seven in number, were tried
for the aforesaid offences. They pleaded not guilty. They took the
defence of total denial. In view of the recovery of aforesaid
articles and circumstances, the appellants are convicted and
sentenced for aforesaid offences.
11. The Investigating Officer got clue due to the rexine
wallet found in the house of one victim and it is mentioned in the
panchanama, which was drawn on the same day. The defence has
not disputed that the two murders were committed and offence of
dacoity was also committed there. The circumstance of finding of
rexine wallet of accused No. 7 from the spot of offence is proved
by prosecution by examining Investigating Officer and one panch
witness. Police visited the house of accused No. 7 on 29.11.2010
for searching his house and from his house, a bag containing
Cri. Appeal No. 580/12 & Ors.
clothes of witness Vilas Mahajan was recovered. These articles are
identified by Vilas (PW 7). There is evidence of Shri. Ghavte (PW
13) on this recovery. As Devidas (accused No. 7) has not filed
appeal, the evidence in detail as against Devidas need not be
discussed. However, this piece of evidence can be used as against
other accused as due to this clue, other accused came to be
arrested.
12.
Ghavte (PW 13) has given evidence that on 14.2.2011
while in police custody Noora (accused No. 2) gave statement to
him that he was ready to produce gold ornament Bormal. He has
given evidence that memorandum of his statement was prepared,
which is at Exh. 52. He has deposed that accused No. 2 then took
police and panchas to his house and from vicinity of his house, he
produced gold Bormal, Article No. 13. The seizure panchanama in
respect of this article is proved as Exh. 53.
13. The panch witness on Exhs. 52 and 53 turned hostile
initially, but during cross examination made by the learned
Assistant Public Prosecutor, he admitted that the documents bear
his signatures. He also admitted the incident of preparation of
panchanama in his presence. This evidence is sufficient to prove
that independent witnesses were associated with the seizure.
Cri. Appeal No. 580/12 & Ors.
There is thumb impression of accused No. 2 on memorandum of
statement. There is no reason to disbelieve the Investigating
Officer. It appears that due to mistake, Article 13 - Bormal is not
mentioned in the evidence of widow of Ashok (PW 10). However,
in Exh. 53, the ornament is described as ornament of family of
Ashok. During the course of investigation, this ornament was
described and that can be seen from Exh. 53. In view of these
circumstances, not much can be made out from the mistake
committed by widow of Ashok of not mentioning specifically
Article 13 in her evidence. It can be said that it was a fault on the
part of the Court also as the evidence does not show that each
and every article by description was shown and the evidence was
recorded accordingly.
14. The evidence given by the Investigating Officer and
the record of panchanama like Exhs. 53, 66 show that the address
of accused Nos. 2 and 7 was given same as the accused No. 2 is
son of accused No. 7. This record and the evidence of
Investigating Officer is sufficient to infer that accused Nos. 2 and
7 were living together in the house where the bag of witness Vilas
was recovered. In view of the record and the circumstances, this
Court holds that the presumption available under section 114 of
Evidence Act needs to be used as against accused No. 2.
Cri. Appeal No. 580/12 & Ors.
15. Rakh (PW 9), the other Investigating Officer has given
evidence that accused No. 3 - Gorakh gave statement to him
while in police custody on 14.5.2011. He has deposed that the
statement was to the effect that Gorakh had sold ornament to the
goldsmith from the area of Rashin. The memorandum of
statement is at Exh. 59 which is proved. The description of
ornaments seized from this shop is given in Exh. 60. These
ornaments are described as Article Nos. 14 to 17 and they are two
gold rings, one gold 'Manchali', one gold Mangalsutra and one
gold nose ring. There is evidence of panch witness Deepak
Langore (PW 6) on Exhs. 59 and 60. He is a relative of
complainant, but there is no reason to disbelieve him as these
ornaments were already described on 28.11.2010 by widow (PW
10) of deceased Ashok and on that basis, the investigation was
made. There is no reason to disbelieve the evidence of PW 9 also.
Ratnaprabha alias Triveni (PW 10) has identified these ornament
in the Court.
16. There is evidence of Kulte (PW 5), the goldsmith to the
effect that articles Nos. 14 to 17 were sold to him by accused No.
3. His statement was recorded under section 164 of Criminal
Procedure Code and it is duly proved. Though initially Kulte (PW 5)
Cri. Appeal No. 580/12 & Ors.
had wrongly identified accused No. 7, the Court suo-moto recalled
this witness on subsequent date and the evidence was recorded
again. The Trial Court has given the reasons for recalling that on
21.5.2012 the date on which Kulte was examined, accused No. 3
was not brought to the Court from jail and only accused No. 7 was
there. After recalling, opportunity was given to the witness to see
all the accused and accused No. 3 was kept present. Then on
25.7.2012 accused No. 3 was identified by Kulte. As there is other
evidence of statement under section 27 of Evidence Act of
accused No. 3, no reasonable doubt is created due to the mistake
committed by PW 5. In the cross examination, PW 5 has given
admission that Article Nos. 14 to 17 appear to be new brand
ornaments. These are gold ornaments and the polishing can give
a look like a new ornament. What is important is that the
description of the ornaments was given immediately after the
incident of dacoity and these ornaments are identified by the
owner, PW 10. In view of these circumstances, this Court holds
that the presumption available under section 114 of Evidence Act
needs to be used as against accused Nos. 3 - Gorakh also.
17. Jadhavrao (PW 11), another Investigating Officer has
given evidence that on 9.12.2010 accused No. 5 - Noora gave
statement to him while in police custody. His statement was to the
Cri. Appeal No. 580/12 & Ors.
effect that one cheque and two envelops were kept by Noora in
his house from village Durgaon. Memorandum of this statement at
Exh. 72 is duly proved. This witness has deposed that from the
house of accused Noora, the accused produced these three
articles and they were seized under panchanama under Exh. 73.
Vilas Mahajan (PW 7), owner of these articles, has identified these
articles. Vishal (PW 2) son of PW 7 has also identified these
articles. These articles were described during the course of
investigation by owner and his son to police on 28.11.2011 and
so, there is no possibility of giving of false evidence. No
inconsistency or contradiction is brought on the record with
regard to the identification. There is no evidence of panch witness
on seizure of these articles, but there is no reason to disbelieve
the Investigating Officer (PW 11) and two witnesses as description
is specific in nature are bearing the names of the owner. This
Court holds that the presumption available under section 114 of
Evidence Act needs to be used as against accused No. 5 - Noora
also.
18. The evidence of Ghavte (PW 13) shows that one
handkerchief of family of Mahajan was found in the house of
deceased Ashok. Panchanama at Exh. 81 is consistent with the
oral evidence. This circumstance is sufficient to draw inference
Cri. Appeal No. 580/12 & Ors.
that the dacoits, who committed the offences in aforesaid houses
were the same. The evidence given in this case shows that the
stolen property of witness Jadhav is not recovered. It is the case of
investigating agency that more persons were involved.
Chargesheet is filed against many other persons under section
299 of Cr.P.C. though seven accused were tried.
19. The tenor of the cross examination made by the
defence counsel and the statements given under section 313 of
Cr.P.C. show that none of the aforesaid appellant explained the
aforesaid incriminating circumstances.
20. The learned counsel for the appellant/Gorakh
submitted that evidence under section 27 given as against
Gorakh is doubtful. He submitted that the memorandum of the
statement was prepared between 14.10 and 14.20 hours and
seizure was made between 14.22 and 14.30 hours and this small
time gap creates doubt. He submitted that the distance between
the spots like police station and the spots where action was taken
needs to be considered. This Court holds that there is no force in
this submission. The police station is situated in Karjat and the
house which was shown by accused Gorakh is also situated in
Karjat. Exh. 59 was drawn between 9.05 a.m. and 10.05 a.m. on
Cri. Appeal No. 580/12 & Ors.
14.5.2011 after that seizure panchanama at Exh. 60 was drawn
between 10.10 a.m. and 11.15 a.m. The shop of goldsmith is
situated in Roshin, Tahsil Karjat. Accused No. 3 - Gorakh was
arrested on 10.5.2011 as per evidence of PW 9 and remand
papers. This accused was got transferred from C.R. No. 54/2011 to
the present crime in the night time of 10.5.2011. On 11.5.2011
requisition was made before Judicial Magistrate, First Class for
police custody remand as against this accused and P.C.R. was
granted by J.M.F.C. till 16.5.2011. As per the procedure, the
accused are produced before J.M.F.C. in the second session after
2.30 p.m. The remand report shows that already some
interrogation was made to the accused - Gorakh. Thus, in respect
of document dated 11.5.2011 also there is nothing doubtful.
21. The learned counsel for the appellants placed reliance
on case reported as 1998 CRI.L.J. 1636 [Om Prakash and Anr.
Vs. State of Rajasthan]. The facts show that there was
allegation that five accused had robbed complainant and out of
them, two were acquitted. In view of this circumstance, the Apex
Court held that the offence would fall under section 392 of I.P.C.
and not under section 395 of I.P.C. There cannot be dispute over
this proposition. The aforesaid observations were made in view of
the facts of that case. In the present case, though seven accused
Cri. Appeal No. 580/12 & Ors.
were tried, as per the police papers more than ten accused were
involved and others are shown as absconding. Already four
accused are convicted by the Trial Court. So, the aforesaid
observations are of no use to the appellants. The facts and
circumstances of the present case are sufficient to infer that more
than five persons were involved in the crime. In view of these
circumstances, acquittal of some of the accused from present
case is not sufficient to infer that less than five person were
involved in the offence.
22. In the case reported as (2008) 11 SCC 709 [Rai
Kumar Alias Raju Vs. State of Uttranchal (Now
Uttrakhand), the following observations were made :-
"It is thus clear that for recording conviction of
an offence of robbery, there must be five or
more persons. It absence of such finding, an
accused cannot be convicted for an offence of
dacoity. In a given case, however, it may
happen that there may be five or more persons
and the factum of five or more persons is either
not disputed or is clearly established, but the
Court may not be able to record a finding as to
identity of all the persons said to have
committed dacoity and may not be able to
convict them and order their acquittal
observing that their identity is not established.
Cri. Appeal No. 580/12 & Ors.
In such case, conviction of less than five
persons,- or even one - can stand. But, in
absence of such finding, less than five persons
cannot be convicted for an offence of dacoity."
These observations are referred in the case reported as 2013 AIR
(SCW) 3034 [Majoj Giri Vs. State of Chhatisgarh] by the
Apex Court.
23.
The learned counsel for the appellants submitted that
no test identification parade was held to show that the witnesses
are able to identify the stolen ornaments or articles. This
submission has also no force. So far as the articles like two
envelops and cheque are concerned, there was virtually no need
to hold test identification parade as they were bearing the names
of the owner and the cheque is from the chequebook of the
owner. So far as the ornaments are concerned, they are identified
by Trivani (PW 10). The reasons for believing this lady are already
given. There is no rule of law that there should be test
identification parade to make the evidence admissible. In the case
like present one, identification of such articles by the witnesses
first time in the Court will be sufficient, if the Court is satisfied
with the nature of the evidence. In the case reported as AIR 1983
SUPREME COURT 446 (1) [Earabhadrappa Vs. State of
Cri. Appeal No. 580/12 & Ors.
Karnataka], the Apex Court has made following observations at
para No. 12.
"Even if the seized ornaments could be treated
to be ornaments in common use, this witness
could never make a mistake in identifying the
seized six silk sarees (M. Os. 10 to 15). It is a
matter of common knowledge that ladies have
an uncanny sense of identifying their own
belongings, particularly articles of personal use
in the family. That apart, the description of the
silk sarees in question shows that they were
expensive sarees with distinctive designs. There
is no merit in the contention that the testimony
of these witnesses as regards the identify of
seized articles to be stolen property cannot be
relied upon for want of prior test identification.
There is no such legal requirement."
In the case of Earabhadrappa cited supra at para No. 13, the
Apex Court has made following observations.
"The nature of presumption under Illustration
(a) to Sec. 114, must depend upon the nature of
the evidence adduced. No fixed time limit can
be laid down to determine whether possession
is recent or otherwise and each case must be
judged on its own facts. The question as to
what amounts to recent possession sufficient to
justify the presumption of guilt varies according
as the stolen articles is or is not calculated to
Cri. Appeal No. 580/12 & Ors.
pass readily from hand to hand. If the stolen
articles were such as were not likely to pass
readily from hand to hand, the period of one
year that elapsed cannot be said to be too long
particularly when the appellant had been
absconding during that period. There was no
lapse of time between the date of his arrest and
the recovery of the stolen property."
24. So, the discovery of goods from the present accused
made after so many days of the incident has not created
reasonable doubt about the prosecution case and this
circumstance cannot help the accused.
25. For the use of section 114 (a) of Evidence Act, for
proving the offence of murder, reliance can be placed on the
cases reported as AIR (36) 1949 Nagpur 277 [Ramprashad
Makundram Vs. The Crown] and AIR 1958 RAJASTHAN 338
(VOL. 45, C. 112) [The State Vs. Mohanlal and Anr.].
26. The law is summed up in the last reported case as
under :-
"The law seems to us, therefore, to be
well settled at this date that where murder and
robbery are proved to have been integral parts
of a certain transaction, the presumption that
Cri. Appeal No. 580/12 & Ors.
can be drawn from the possession of the
property may, consistent with all the facts
proved in the case, be that person to whom
such possession was traced not only committed
the theft thereof but also committed the murder
which forms part of the same transaction as
theft."
27. The discussion of the evidence made already and the
position of law show that it is necessary to use the provision of
section 114 (a) of Evidence Act as against the appellants. This
Court has no hesitation to hold that the evidence on record is
sufficient to prove beyond reasonable doubt that the appellants
and others committed the offence punishable under section 396
and 457 of I.P.C. The Trial Court has convicted them for offence
punishable under section 380 of I.P.C. also. When there is
conviction and sentence for offence under section 396 of I.P.C.,
the conviction again for offence under section 380 of I.P.C. is not
possible. To that extent only the judgment and order of the Trial
Court needs to be modified. Two murders were committed and so
no reason to interfere on the point of quantum of punishment. In
the result, the following order is passed.
ORDER
(I) All the appeals are partly allowed.
Cri. Appeal No. 580/12 & Ors.
(II) The judgment and order in respect of offence
punishable under section 380 of I.P.C. is set aside.
(III) The appeals filed in respect of conviction and
sentence given for offences punishable under section
396 and 457 of I.P.C. stand dismissed.
(IV) Copy of the judgment is to be given free of
costs to the appellants and it is to be informed to
them that they can challenge the decision in the
Supreme Court and they can get legal aid also.
(V) Fees of the learned counsel Shri. Shaikh Ashpak
Taher Patel appointed for appellant in Criminal Appeal
No. 375/2013 is quantified as Rs. 3500/- (Rupees
three thousand five hundred).
[ T. V. NALAWADE, J. ]
ssc/
