Bombay High Court
Sagar vs The State Of Maharashtra on 18 October, 2013
Bench: T.V. Nalawade
Cri. Appeal 359, 389 & 399/12
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 359 OF 2012
Sagar s/o. Mallikarjun Mehetre,
Age 20 years, Occu. Labour,
R/o. Juna Kumbhari Naka,
Adarsh Nagar, Solapur. ....Appellant.
(Ori.Accused No. 2)
Versus
1.
The State of Maharashtra
Through Police Station Officer,
Police Station, Omerga, Tq. Omerga,
Dist. Osmanabad.
2. Osman Mahmad Khan,
Age 61 years, Occu. Service as
driver, R/o. House No. 13/6/600,
Karkhan, Habib Nagar, Nampalli,
Hyderabad (Andhra Pradesh). ....Respondents.
(R.No.1-Police Station
Officer, Police Station,
Omerga and R-2-orig.
complainant.)
Mr. S.S. Choudhary, Advocate for appellant.
Mr. D.V. Tele, APP for State/respondent No. 1.
WITH
CRIMINAL APPEAL NO. 389 OF 2012
Narendra s/o. Chandrakant Yelur,
Age 21 years, Occu. Labour,
R/o. Juna Kumbhari Naka,
Madhav Nagar, Solapur. ....Appellant.
Versus
::: Downloaded on - 27/11/2013 20:27:39 :::
Cri. Appeal 359, 389 & 399/12
2
1. The State of Maharashtra ....Respondent.
Mr. Patel Shaikh Ashpak Taher, Advocate for appellant.
Mr. D.V. Tele, APP for State/respondent.
WITH
CRIMINAL APPEAL NO. 399 OF 2012
Amar s/o. Shivshankar Waghmare,
Age 29 years, Occu. Service,
R/o. Apegaon, Tq. South Solapur,
At present R/o. Juna Kumbhari Naka,
Adarsh Nagar, Solapur. ....Appellant.
(Ori. Accused No.1)
Versus
1. The State of Maharashtra
Through : The Police Station Officer,
Police Station, Omerga, Tq. Omerga,
Dist. Osmanabad.
2. Osman s/o. Mohd. Khan,
Age 61 years, Occu. Service as
Driver, R/o. H. No. 13/6/600,
Karkhan, Habib Nagar, Nampalli,
Hyderabad (AP). ....Respondents.
(No.2-Ori.Complainant)
Mr. C.K. Shinde, Advocate for appellant.
Mr. D.V. Tele, APP for State/respondent No. 1.
CORAM : T. V. NALAWADE, J.
DATED : 18th October 2013.
JUDGMENT :
1. The appeals are filed against judgment and order of
Cri. Appeal 359, 389 & 399/12
Sessions Case No. 19/2011, which was pending in the Court of
Additional Sessions Judge, Omerga, District Osmanabad. All the
appellants are convicted and sentenced for offence punishable
under section 395 of Indian Penal Code and each of them is
sentenced to suffer R.I. for seven years. Each appellant is also
directed to pay fine of Rs. 2,000/- and in default of payment of
fine, to undergo S.I. for one year. Both the sides are heard.
2. In short, the facts leading to the institution of the
appeals, can be stated as follows :-
The original complainant - Usman Khan owns a jeep of
Qualis company bearing AP-13/Q-7494 and at the relevant time,
he was using this jeep as taxi. He is resident of Hyderabad
(Andhra Pradesh) and he used to collect passengers from Railway
Station of Hyderabad.
3. On 2.6.2011 after 12.00 noon, five persons came to
stop of tax and they were searching for taxi as they wanted to go
to Gulbarga, Karnataka State. They first went to one Nasir Lahaji,
but they did not agree with the hire charges of Rs. 4000/- claimed
by Nasir and so, they went to complainant. They agreed to pay
hire chares of Rs. 3800/- demanded by the complainant along with
Cri. Appeal 359, 389 & 399/12
allowances.
4. Five persons boarded jeep of complainant and then
complainant started towards Gulbarga. On the way, at one toll
post, one of the five persons, accused No. 1, introduced himself as
the Police Officer of Karnataka State. As he showed the identity
card, no toll tax was collected from him. They reached Gulbarga
at 5.00 p.m. After reaching Gulbarga, the complainant demanded
the fair charges. Five persons gave excuse that their Superior
Officer will come there and they created a show of contacting on
phone and then they asked the complainant to take the jeep
towards Omerga, Maharashtra. When they crossed the distance of
60 k.m. from Gulbarga, the vehicle was stopped. At this point,
severe beating was given by five persons to the complainant and
they took away the jeep of the complainant in which there was
mobile hand set of the complainant.
5. The complainant somehow contacted his family
members and informed them about the incident. On 3.6.2011
nephew and sons of complainant reached Omerga. They first
searched for the vehicle and when they could not find the vehicle,
they went to Omerga Police Station and the complainant gave
Cri. Appeal 359, 389 & 399/12
report to concerned police station. The crime at C.R. No. 105/2011
came to be registered for aforesaid offence on the basis of this
report. In the report, he gave the description of the jeep and also
of the aforesaid five persons. As the complainant had sustained
injuries, he was referred for medical examination.
6. Dilip Jadhav, one A.P.I. was attached to Omerga Police
Station. He took over the investigation of the case. He sent the
information to all police stations from Maharashtra with
description of the jeep. After about one month of the incident,
M.I.D.C. Police Station of Solapur (Maharashtra) informed Jadhav
that they had seized the vehicle required by Omerga Police
Station. R.T.O. number was found to be changed, but on the basis
of engine number and chassis number, Jadhav identified the
vehicle. In a case of theft, M.I.D.C. police of Solapur had already
arrested the four accused from the present case and as the
present offence also transpired during the interrogation, they
were taken in custody by Jadhav in the present case. Jadhav took
over the custody of the jeep from M.I.D.C. Police Station. Jadhav
called complainant and after identification of the jeep and the
accused in the police station by the complainant, the jeep was
handed over to the complainant.
Cri. Appeal 359, 389 & 399/12
7. A.P.I. Gundile of Omerga Police Station filed the
chargesheet against the aforesaid four persons. The remaining
accused Javed Ali Khan is shown as absconding accused and
chargesheet is filed under section 299 of Cr.P.C. against him. In
the Trial Court, all the accused pleaded not guilty. The accused
took the defence of total denial. The Trial Court has believed the
complainant and other driver and the Trial Court has held that the
evidence of recovery of the jeep, mobile phone etc. has given
necessary corroboration to the version of the complainant. Out of
these four convicted accused, accused Nos. 1, 2 and 4 have filed
the appeals. The points raised by their learned counsels are being
discussed along with the evidence given by the State hereinafter.
8. The evidence of Usman Khan (PW 1) shows that his
name was entered in R.C.T.C. book (Exh. 18) of the jeep and the
Court also gave him interim custody of the vehicle. There is
sufficient evidence to prove that the vehicle of the complainant
was stolen and it was recovered by the M.I.D.C. Police Station,
Solapur and the custody was given to PW 1.
9. PW 1 has given evidence that on the day of incident,
Cri. Appeal 359, 389 & 399/12
he was present with his aforesaid vehicle for using as a taxi at taxi
stop of Nampelli Railway Station, Hyderabad. He has given
evidence that accused Nos. 1 to 4 (accused who faced the trial)
and one more person came to him at about 2.00 p.m. and they
told that they wanted to go to Gulbarga and they wanted a taxi on
hire basis. He has deposed that when the accused agreed to pay
hire charges and Bhatta demanded by him, he took them in his
taxi towards Gulbarga.
10. PW 1 has given evidence that they reached Gulbarga
at about 5.00 p.m., but the accused did not pay the charges by
giving some excuses and then they asked him to take jeep
towards Omerga side. He has given evidence that when he
reached at Kader Paty situated near Omerga, he stopped the jeep
and demanded hire charges and allowances. He has deposed that
the accused refused to pay taxi charges and they asked him to
take the vehicle ahead. He has deposed that when he refused to
do so, five persons gave severe beating to him and they kept him
in dickie portion of the jeep. He has given evidence that when he
tried to rescue himself, he fell from the jeep and after that also
accused gave severe beating to him and then they took away his
jeep. He was left near Kader Paty.
Cri. Appeal 359, 389 & 399/12
11. PW 1 has given evidence that it was raining and he
did not know anybody from that area. He has given evidence that
he used mobile phone of pedestrian and he gave information
about the incident to his family members. He has given evidence
that he stayed near Kader Paty and there he was waiting for the
relatives. He has given evidence that his children came there and
then they went to Omerga Police Station. The report given by him
is proved in his evidence as Exh. 19.
12. PW 1 has deposed that after one month of lodging
F.I.R., Omerga police called him and informed him that they had
recovered both jeep and handset. He has given evidence that the
mobile handset was kept in the jeep by him and he identified both
the jeep and the mobile handset. The mobile handset was
produced in the Court as muddemal property and it was identified
by PW 1. As already observed, there is the record of the jeep
showing that the complainant is the owner of the jeep. In the
Court, PW 1 identified all the accused as the same persons, who
had given him beating and taken away the jeep from him. He has
given evidence that he was in the company of these persons for
eight hours and he had talk with them and so, he can identify
Cri. Appeal 359, 389 & 399/12
them. The incident took place on 2.6.2011 and the evidence of
PW 1 was recorded on 1.3.2012, after about nine months. The test
identification parade was not arranged.
13. The F.I.R. at Exh. 19 is consistent on the material
points with the aforesaid version given by PW 1 in respect of the
incident dated 2.6.2011. In the F.I.R., the chassis number and
engine number of the vehicle was given by PW 1 and he had also
given sufficient description of five persons, who had robbed him.
In the F.I.R., it was informed that his mobile handset was taken
away as it was present in the jeep. The F.I.R. gives necessary
corroboration to the version of PW 1 on material points. The
supplementary statement of PW 1 was recorded on 11.7.2011
when he identified jeep.
14. In the cross examination of PW 1, it is brought on the
record that from the appearance, it can be said that the age of the
accused No. 1 is around 40 to 45 years. The complainant has
given the age of the accused No. 1 as around 50 years in the F.I.R.
The age was approximately given and in view of the specific
evidence given by the complainant and the points which are being
discussed afterwards, this Court holds that this discrepancy
Cri. Appeal 359, 389 & 399/12
cannot go to the root of the case and the evidence given by PW 1
cannot be discarded. Some cross examination was made by the
defence counsel on the point of delay caused in giving F.I.R. The
crime came to be registered at about 14.20 hours on 4.6.2011
when the incident of robbing took place after 7.30 p.m. of
2.6.2011.
15.
The evidence shows that the jeep reached near Kader
Paty at about 7.45 p.m. The evidence shows that it was raining,
the complainant was not knowing anybody and he was required to
request somebody to allow him to use his mobile handset and the
complainant then contacted the relatives. The evidence shows
that he collected information from pedestrian about the police
station and he walked towards that side for some time and then
he again returned to Kader Paty. The distance of police station
from Kader Paty is around 23 K.M. as per the suggestions given by
the defence. The evidence shows that complainant had required
eight hours to reach Kader Paty after starting from Hyderabad. He
did not know Marathi. In view of these circumstances and as there
is other convincing evidence to corroborate the version of the
complainant, not much can be made in favour of the defence due
to delay caused in filing of the F.I.R. The evidence on record is
Cri. Appeal 359, 389 & 399/12
sufficient to prove that the incident of robbing the complainant
took place on 2.6.2011 after 7.30 p.m. The accused persons were
not known to the complainant prior to 2.6.2011 and there was no
reason for him to falsely implicate them in the case. The material
on the record is sufficient to prove that the jeep was stolen, it was
recovered by the police and it was returned to the complainant.
16.
Nasir (PW 4), another taxi driver of Hydrabad has
given evidence that on 2.6.2011 when he was present at
aforesaid taxi stop, two persons approached him to take his taxi
on hire basis. He has given evidence that two persons wanted to
go to Gulbarga. He has given evidence that they did not agree to
pay the charges demanded by him and so, they went to other
driver. He has given evidence that those two persons approached
one Musa driver and then the complainant. Nasir has identified
the accused Nos. 1 and 4 in the Court as the same two persons.
Though the evidence of the complainant shows that five persons
had come to him, the evidence is on actual carrying of five
persons to Gulbarga side and so, not much can be made out due
to this discrepancy. The evidence of Nasir shows that these two
accused were shown to him in Omerga Police Station and he had
identified them. As per the record, his statement was recorded on
Cri. Appeal 359, 389 & 399/12
5.6.2011 and supplementary statement was recorded on
11.7.2011. Nothing is brought on the record to create doubt about
his version. His evidence was recorded on 4.4.2012 and that is
consistent with the evidence of complainant (PW 1). Even if, it is
presumed that the evidence of Nasir is not believable, there is
other evidence which is convincing in nature.
17.
Dr. Patil (PW 5) has given evidence that he examined
PW 1 on 4.6.2011 and he found injuries like abrasions and
contusions on right side forehead, right leg and right arm. He has
deposed that the age of the injury was between 24 hours and 48
hours. There is some inconsistency in the certificate, which is
produced at Exh. 25. But, it appears that extract of M.L.C. register
was brought by him in the Court and the evidence was given on
the basis of M.L.C. register. The evidence of this witness is not
much disputed and that can be seen from the tenor of cross
examination.
18. Shivaji (PW 8), a panch witness on the panchanama of
seizure of jeep has given evidence that on 2.7.2011 he acted as a
panch witness for M.I.D.C. Solapur police. He has deposed that
police seized the jeep from the possession of one Salim Shaikh of
Cri. Appeal 359, 389 & 399/12
Dhanlaxmi Nagar, Raichur. The panchanama at Exh. 31 is proved
in his evidence. The evidence of the witness and Exh. 31 show
that Solapur police were searching for a stolen tempo from C.R.
No. 120/2011 registered in their police station and they recovered
the jeep from Salim Shaikh by chance. The other evidence given
by panch witness regarding the persons, who had given the jeep
(accused Sagar and Amar) to Salim cannot be used, but the fact
remains that the evidence shows that the jeep of the complainant
was recovered from one Salim Shaikh of Dhanlaxmi Nagar,
Raichur. This evidence gives corroboration to the version of PW 1
and it shows that the jeep was recovered by Solapur police by
chance on 2.7.2011. It can be said that in such a case, it was
desirable for the Investigating Officer of the present case to
record the statement of Investigating Officer from Solapur Police
Station and it was also desirable to examine Salim Shaikh as a
witness. Thus, the evidence could have been specific as against
two accused named by the panch witness.
19. Jadhav (PW 9), the Investigating Officer, has given
evidence that during investigation he received information from
Solapur M.I.D.C. police that they had arrested accused Nos. 1 to 4
in one offence of theft and they had recovered stolen jeep
Cri. Appeal 359, 389 & 399/12
required by Omerga Police. He has given evidence that he took
the accused Nos. 1 to 4 in custody from Solapur police and he also
took the custody of jeep.
20. PW 9 has deposed that during investigation, he
realised that accused No. 1 had committed theft of mobile
handset. He has deposed that he recovered mobile handset under
panchanama at Exh. 33. It can be said that the evidence of PW 9
is not strictly as per the requirements of provisions of section 27
of the Evidence Act. No specific substantive evidence is given on
the statement made by accused No. 1 and the memorandum of it
prepared by Jadhav. Exh. 33, contains both the memorandum of
statement of accused No. 1 and panchanama of seizure of mobile
handset. In such a case, it is also the duty of the Trial Court to see
that the evidence is properly tendered by the prosecution. It is
always desirable that two incidents mentioned in Exh. 33 viz.
giving of the statement by the accused and the recovery of things
on the basis of statement, are separately proved and recorded in
the evidence. This document was prepared on 10.7.2011. The
panch witness of this document has turned hostile. However,
handset is identified by PW 1 in the Court. Though, this evidence
cannot be used specifically as against accused No.1, in view of
Cri. Appeal 359, 389 & 399/12
the aforesaid circumstances, this circumstance gives
corroboration to the version of complainant that his mobile
handset was present in the jeep and it was also stolen.
21. One Sayyed (PW 3), nephew of PW 1 is examined to
prove that on 2.6.2011 at about 10.30 to 11 p.m. PW 1 contacted
him and informed him about the incident. His evidence shows that
he and other relatives of PW 1 went to Kader Paty and there they
met the complainant. He has given evidence that he acted as a
panch witness when police prepare the spot panchanama at Exh.
22. Nothing incriminating was found on the spot. The evidence of
this witness can be used only to show that the complainant was
waiting at Kader Paty and the incident had taken place at Kader
Paty.
22. The aforesaid circumstances and evidence show that
the prosecution has proved that the complainant was robbed of
his mobile handset and the jeep by five persons. The complainant
has identified the accused, who were available for trial in the
Court. The learned defence counsel submitted that the
circumstance like not holding of T.I. parade needs to be used
against the prosecution and the benefit of this lacuna needs to be
Cri. Appeal 359, 389 & 399/12
given to the defence. On this point, the learned APP placed
reliance on the case reported as AIR 2003 SUPREME COURT
2669 [Malkhansingh and Ors. Vs. State of M.P.]. The Apex
Court has made following observations :-
"7. It is trite to say that the substantive
evidence is the evidence of identification in
court. Apart from the clear provisions of section
9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court.
The facts, which establish the identity of the
accused persons, are relevant under section 9
of the Evidence Act. As a general rule, the
substantive evidence of a witness is the
statement made in court. The evidence of mere
identification of the accused person at the trial
for the first time is from its very nature
inherently of a weak character. The purpose of
a prior test identification, therefore, is to test
and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe
rule of prudence to generally look for
corroboration of the sworn testimony of
witnesses in court as to the identity of the
accused who are strangers to them, in the form
of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions,
when, for example, the court is impressed by a
particular witness on whose testimony it can
Cri. Appeal 359, 389 & 399/12
safely rely, without such or other corroboration.
The identification parades belong to the stage
of investigation, and there is no provision in the
Code of Criminal Procedure, which obliges the
investigating agency to hold, or confers a right
upon the accused to claim, a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the
evidence of identification in court. The weight
to be attached to such identification should be a
matter for the courts of fact. In appropriate
cases it may accept the evidence of
identification even without insisting on
corroboration. (See Kanta Prashad vs. Delhi
Administration, AIR 1958 SC 350; Vaikuntam
Chandrappa and others vs. State of Andhra
Pradesh: AIR 1960 SC 1340 ; Budhsen and
another vs. State of U.P., AIR 1970 SC 1321 and
Rameshwar Singh vs. State of Jammu and
Kashmir : (1971) 2 SCC 715."
23. In the present case, the evidence is sufficient to show
that the complainant had negotiations with the accused when
they settled the hire charges and allowances. The evidence shows
that complainant took the convicted accused from Hydrabad to
Cri. Appeal 359, 389 & 399/12
Kader Paty and they were in the company of the complainant for
about eight hours. The evidence shows that the complainant and
accused were talking with each other during this period. The
evidence shows that the incident of giving beating to the
complainant also took place at about 7.30 p.m. The evidence on
record shows that accused No. 1 was posing himself as a Police
Officer of Karnataka State. The evidence shows that there was
sufficient opportunity to PW 1 to observe accused Nos. 1 to 4 and
also to remember them. Though the evidence was recorded after
about 9 months of the incident, this Court holds that due to these
circumstances the evidence of complainant cannot be discarded.
This Court holds that PW 1 needs to be believed. The Trial Court
has believed him.
24. The facts and circumstances of the present case and
the observations made by the Apex Court in the case cited supra,
show that what matters is the substantive evidence given in the
Court. It can be said that at the time of appreciation of evidence
of such a witness, the Court is required to take into consideration
the factors like the opportunity, which the witness had to observe
the accused, the ability of the witnesses to observe and
remember the things, the necessity to observe and remember
Cri. Appeal 359, 389 & 399/12
things due to peculiar occupation, the specific overtacts of the
accused due to which there was reason to remember a particular
accused by the witness and the description of the persons, which
was given by the witness before the police immediately after the
incident. The facts and circumstances of each and every case are
always different and it is the duty of the Court to come to the
conclusion as to whether such witness needs to be believed even
when no test identification parade was held. The Court may use
the other relevant circumstances in such a case which can give
corroboration to the version of such witness. In view of peculiar
facts of the case, this Court holds that PW 1 needs to be believed.
25. The discussion made above shows that the Trial Court
has not committed error in convicting the accused Nos. 1 to 4 for
the offence punishable under section 395 of I.P.C. Only thing in
favour of accused/appellants is that they did not cause serious
injuries to the complainant. The Trial Court has sentenced them to
suffer R.I. for seven years. The appellants are behind bars since
July 2011 and that period is around two years. In view of the facts
and circumstances of this case and also the nature of evidence
given in the case against the accused, this Court holds that the
sentence of imprisonment already undergone is just and sufficient
Cri. Appeal 359, 389 & 399/12
as substantive sentence and they can be made to pay fine.
Considering the fact that they are behind bars for long period, this
Court holds that a lenient view can be taken and the sentence of
imprisonment given in default of payment of fine cab be reduced.
In the result, the following order :-
ORDER
(I) The appeals are partly allowed.
(II)
The substantive sentence given to the
appellants is reduced and they are to suffer the
imprisonment of the period already undergone and
they are to pay fine amount of Rs. 2000/- each. In
default of payment of fine, each of them is to undergo
S.I. for one month.
(III) If the fine amount is deposited, they are to be
released, if not required in any other crime.
(IV) The Trial Court is expected to preserve the
record as one accused is shown as absconding
accused.
[ T. V. NALAWADE, J. ]
ssc/
