Bombay High Court
Muka Biren Rathod vs The State Of Maharashtra on 8 December, 2015
Bench: A.M. Thipsay
14.APEALNo.4892013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.489 OF 2013
Muka Biren Rathod,
Age : 19 Years, Occu. : Nil,
R/at Wadiwale, Tal.Maval,
Dist.Pune.
At present in Yervada Central Prison,
Pune. ... Appellant
V/s.
The State of Maharashtra,
(Through P.S.O. Lonavala City
Police Station, Dist. Pune) ... Respondent
.....
Mrs.Indrayani M. Koparkar, Advocate for the Appellant.
Mrs.M.R.Tidke, APP for the Respondent/State.
....
CORAM : ABHAY M. THIPSAY J.
DATED : 8TH DECEMBER 2015
ORAL JUDGMENT :
1. The appellant was prosecuted on the allegation of
having committed offences punishable under Sections 307 of the
Indian Penal Code (For short, "IPC"), 457 of the IPC, 380 of the
IPC and 511 of the IPC. The Ad-hoc Additional Sessions Judge,
after holding a trial, sentenced the appellant to suffer Rigorous
Imprisonment for 10 years and to pay a fine of Rs.5,000/- with
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respect to the offence punishable under Section 307 of the IPC, to
suffer Rigorous Imprisonment for 7 years and to pay a fine of
Rs.3,000/- with respect to the offence punishable under Section
457 of the IPC, and to suffer Rigorous Imprisonment for 7 years
and to pay a fine of Rs.3,000/- with respect of the offence
punishable under Section 511 of the IPC. The learned Judge
directed that an amount of Rs.5,000/- from out of the amount of
fine, be paid to the First Informant as compensation.
Being aggrieved by his conviction and the sentences
imposed upon him, the appellant has approached this Court, by
filing the present appeal.
2. The prosecution case, as put forth before the trial
Court, can be best gathered from the First Information Report
lodged by Nitin Suryawanshi - a police Head Constable attached
to Lonavala City Police Station, at the material time. It is, in brief,
as follows :
That, on 07/08/2011, Nitin Suryawanshi (PW3) was
on night patrolling duty, from 11.00 p.m. to 5.00 a.m. on the next
date. He was patrolling in Bangarwadi area. Police Naik Jadhav
(PW7), was also on duty with him. At about 4.30 a.m.,
Suryawanshi received a telephone call from Night Patrolling
officer PSI Baban Yedge (PW10), that a telephone call had been
received at the police station that robbers had come at 'Girish
Jewellers Shop'. Yedge asked Suryawanshi to tighten the patrol in
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Bangarwadi area and also informed that he himself was coming in
Bangarwadi area. At about 4.45 p.m., PSI Yedge along with Police
Head Constable Parghe (PW8) and police constable Rokade (PW2)
came to Bangarwadi; and then all of them i.e. Yedge (PW10),
Parghe (PW8), Rokade (PW2) as well as Suryawanshi (PW3) and
Jadhav (PW7), noticed that two persons were breaking open the
shop of Mahadev Jewellers. One of them - said to be present
appellant - was caught by Parghe and Rokade on the spot. The
other was caught by Nitin Suryawanshi (PW3). That other is said
to be brother of the appellant and known as Sattan Rathod. The
appellant then shouted that his brother should be released and
then advised his brother that he should attack the police by a
subbal, till they would release him (the appellant). Sattan then
threw a crowbar towards Suryawanshi. Suryawanshi tried to
avoid the blow, but the crowbar hit on the left leg of Suryawanshi.
Suryawanshi got injured and sat down. Sattan took advantage of
the dark and escaped. The appellant, who had been caught by
Parghe (PW8), Rokade (PW2) and Yedge (PW10) gave his name
as, 'Muka Biran Rathod' and also gave the name of one, who had
escaped as, 'Sattan Rathod'.
3. The inquiries made with the appellant by the police
revealed that a motorcycle, in the dicky of which certain properties
i.e. an idol of white metal - of Lord Ganapati, a crown and a chain
of white metal, and cash 'approximately' of Rs.1,000/-, consisting
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of currency notes and coins, had been kept, was parked there.
Suryawanshi then lodged a report which was treated as the First
Information Report, on the basis of which a case in respect of
offences punishable under Sections 457 of the IPC, 380 of the IPC
and 511 of the IPC came to be registered.
4. The other accused Sattan, who had allegedly managed
to escape, could not be found. As such, only the appellant came to
be prosecuted.
5.
During the trial, the prosecution examined totally ten
(10) witnesses. The first witness, Bharat Soni is the owner of the
shop 'Mahadev Jewellers'. The second witness, as aforesaid, is
constable Amol Rokade, while the third, as aforesaid, is the First
Informant constable Nitin Suryawanshi. The fourth witness,
Omprakash Khandelwal is the neighbour of Bharat Soni, who had
visited the spot after the appellant had been apprehended by the
police. The fifth witness, Sanjay Bhalerao is a panch in respect of
the spot panchanama (Exh.17) and also a panch in respect of the
seizure of the clothes of the First Informant Suryawanshi, done at
the police station. Bhalerao, however, did not support the
prosecution with respect to the spot panchanama and even the
seizure panchanama. His evidence shows that whatever he learnt
was from police, and he himself had not seen anything except the
articles seized, when the same were shown to him at the police
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station. The sixth witness, Dinesh Khandelwal is the brother of
Omprakash Khandelwal (PW4) and the neighbour of Bharat Soni.
He had also gone to the spot after the apprehension of the
appellant. The seventh witness, Jaysing Jadhav is the one, who
was patrolling with Nitin Suryawanshi (PW3). The eighth witness,
Vitthal Parghe - police head constable - was on duty as the driver
of the police vehicle in which PSI Yedge was taking night round.
The ninth witness Dr.Amol Agarwal is the one, who had treated
First Informant Nitin Suryawanshi on 08/08/2011. His evidence
shows that Nitin Suryawanshi had sustained a CLW admeasuring 3
x 3 c.m., on his left knee, The tenth and last witness is PSI Baban
Yedge, the Investigating Officer himself.
6. I have heard Smt.Indrayani Koparkar, the learned
counsel for the appellant. I have heard Smt.M.R.Tidke, the
learned Additional Public Prosecutor for the State. I have been
taken through the entire evidence adduced during the trial. I have
carefully gone through the impugned Judgment.
7. The learned counsel for the appellant contended that
the conviction of the appellant, as recorded by the learned trial
Judge, is not in accordance with law. She submitted that there
were a number of discrepancies in the evidence of the prosecution
witnesses, which consisted basically of the police personnel only.
She also submitted that even on the facts alleged, no case of an
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offence punishable under Section 307 of the IPC was made out.
She also submitted that though in the dicky of the motorcycle,
which was supposedly in possession of the appellant, some articles
are said to have been found, there is nothing to show that the
same were stolen articles or stolen property.
8. Indeed, the charge of an offence punishable under
Section 307 of the IPC cannot be said to have been proved against
the appellant. As a matter of fact, such a charge was not made out
even from the charge-sheet, and even on taking the material in the
charge-sheet at face value. This charge or accusation is based on
the alleged assault made on the First Informant Nitin Suryawanshi
by the co-accused Sattan who, as aforesaid, absconded and could
not be apprehended. The evidence of Nitin Suryawanshi itself
shows that Sattan had thrown a crowbar (pahar) towards him for
escaping from the clutches of Suryawanshi. That, the said co-
accused Sattan could throw a crowbar towards Suryawanshi after
Suryawanshi had apprehended him, (as per the prosecution case)
is rather perplexing, and the possibility of things not having
happened that way certainly exists; but, in any case, throwing a
crowbar towards Suryawanshi after he was caught by Suryawanshi
in an attempt to escape from his clutches, can hardly be said to be
an act done with the intention requisite for making it an offence
punishable under Section 307 of the IPC. The injury that was
caused by such throwing of crowbar was on the left knee of
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Suryawanshi, and was of an extremely minor nature. Moreover,
the injury is not such, as can certainly be attributed to the
throwing of a crowbar, inasmuch as, Dr.Amol Agarwal (PW9) had
admitted in his evidence that the injury could be caused by a fall
from the moving bike. Thus, coupled with the unlikelihood of a
person physically apprehended by another, being able to throw a
crowbar towards that another and the possibility of the injury on
the knee having been caused by a fall on the ground, the theory of
the said Sattan having thrown a crowbar towards Suryawanshi
and having injured him, is rendered doubtful. Moreover, such
throwing of the crowbar, which was thrown with the object of
causing his escape from the clutches of the policemen, cannot be
said to have been done with the intention requisite to make that
act an offence punishable under Section 307 of the IPC. Lastly,
that act has clearly been attributed only to the co-accused Sattan
and not to the present appellant. Undoubtedly, the witnesses have
said in the evidence that when the co-accused Sattan was
apprehended, the appellant advised him to assault the police by
throwing a subble, and that the police would release him
(appellant) only then, but it is difficult to place reliance on this
evidence. It is because co-accused Sattan did not actually act on
this alleged advise by the appellant and ran away after throwing
the crowbar towards Suryawanshi. However, even if it is
assumed, for the sake of arguments, that the appellant did say so,
still, the act of Sattan cannot be said to have been one coming
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under penal provisions of Section 307 of the IPC. This is apart
from the fact that the act was squarely committed by Sattan, and
there was no charge that the same was abetted by the appellant,
and/or that the said act was done in furtherance of the common
intention of the appellant and the said Sattan. Not only such a
charge has not been framed, but that is not even the allegation in
the police report/charge-sheet.
9. Clearly, the charge of an offence punishable under
Section 307 of the IPC was not established against the appellant.
10. The learned trial Judge has already held that the
charge of an offence punishable under Section 380 of the IPC was
not proved, though the trial Judge has not passed an order of
acquittal with respect to the said charge. She ought to have done
so. In fact, the charge of an offence punishable under Section 380
of the IPC ought not to have been framed at all, as there was no
material to support such a charge in the charge-sheet itself.
11. The learned counsel for the appellant pointed out a
number of discrepancies in the prosecution evidence, particularly
in the evidence of Bharat Soni (PW1), Omprakash Khandelwal
(PW4) and Dinesh Khandelwal (PW6). She pointed out that as
per Bharat Soni (PW1), he learnt about the incident of receiving a
telephone call from Omprakash Khandelwal. Omprakash
Khandelwal, however, says that he learnt about the incident from
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Bharat Soni, and that he had received a call from Bharat Soni.
She submitted that the entire case of the prosecution is doubtful.
12. I have carefully considered the matter.
13. The complainant's allegation that needs to be
considered is that the appellant was found to be making an
attempt to open the shutter of the door of the shop of Mahadev
Jewellers. It is true that merely because four policemen have said
that they had seen him doing so, it is not to be accepted as true,
and obviously, a deeper and meticulous scrutiny of such evidence
cannot be prevented. However, the learned counsel for the
appellant submitted that the appellant is already in custody since
08/08/2011 i.e. for a period of four years and four months, and
that, including remissions he has suffered imprisonment for about
six years. She, therefore, submitted that she would not advance
any further arguments, in respect of the evidence which shows
that the appellant was found and apprehended while making an
attempt to open a shutter of the door of Mahadev Jewellers, but
would only submit that this allegation, even if proved, would
amount only to an offence punishable under Section 457 of the
IPC read with Section 511 of the IPC. She submitted that a
complete act of lurking house-trespass by night which is made
punishable by Section 457 of the IPC, was not proved at all, and
that, as a matter of fact, that was not even the case of the
prosecution.
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14. There is substance in this contention. The acts
attributed to the appellant, if proved, would only amount to an
'attempt to commit lurking house-trespass by night'. Thus, the
offence would be one punishable under Section 457 of the IPC
read with Section 511 of the IPC, and not the offence punishable
under Section 457 of the IPC, simplicitor.
15. The learned trial Judge has made a grave error in
convicting the appellant of an offence punishable under Section
457 of the IPC. The learned trial Judge had made a graver error in
convicting the appellant only of an offence punishable under
Section 511 of the IPC-simplicitor. Section 511 punishes 'attempts
to commit offences' and while holding a person guilty of making
an attempt to commit an offence, what was the offence that was
attempted to be committed, must be specified. A reading of the
Judgment indicates that the trial Judge intended to hold the
appellant guilty of an offence punishable under Section 457 of the
IPC read with Section 511 of the IPC. In that case so, the trial
Judge could not have convicted the appellant separately of an
offence punishable under Section 457 of the IPC, and separately of
an offence punishable under Section 511 of the IPC, simplicitor.
16. In result, the appeal is partly allowed.
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17. The conviction of the appellant with respect to the
offences punishable under Section 307 of the IPC and Section 457
of the IPC and the sentences imposed therefor, are set aside.
18. The conviction of the appellant of an offence
punishable under Section 511 of the IPC, simplicitor, is corrected
and altered as one in respect of an offence punishable under Section
457 of the IPC read with Section 511 of the IPC.
19. Thus, the appellant is convicted of an offence
punishable under Section 457 read with Section 511 of the IPC,
and is sentenced to suffer Rigorous Imprisonment for the period
already undergone.
20. Fine, if paid, be refunded to the appellant.
21. However, if compensation has already been paid to the
First Informant Nitin Suryawanshi, as ordered by the trial Court,
then the same may not be recovered from him.
22. Appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY J.)
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CERTIFICATE
Certified to be true and correct copy of the
original signed Judgment/Order.
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