Bombay High Court
The State Of Maharasthra vs Shashikant Sagan Tirmare on 22 April, 2016
Bench: A.M. Badar
spb/ 906cri-appeal 555-1998J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 555 OF 1998
The State of Maharashtra, ... Appellant.
Through: P.S.O. Vishrambag, (Org.Complainant)
Police Station, Sangli.
V/s.
Shashikant Sagan Tirmare, Age 27, ... Respondent.
Police Constable B.No.574, Umadi - (Org. Accused)
Police Station, Tal. Jath, Dist. Sangli.
---
Mrs. M. M. Deshmukh, APP for the Appellant - State.
None for the Respondent.
---
CORAM : A. M. BADAR, J.
DATE : 22nd APRIL, 2016.
ORAL JUDGMENT :
1 By this Appeal, under section 378 (1) of the
Criminal Procedure Code, 1973, the Appellant-State has
challenged the judgment and order dated 3 rd March, 1998
passed by the learned Judicial Magistrate, First Class, Sangli
in Regular Criminal Case No. 319 of 1989 thereby acquitting
the Respondent/Accused of the offence punishable under
section 394 of the Indian Penal Code, 1860.
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2 Brief facts giving rise to the present criminal Appeal
are thus :
i) According to the prosecution case, Respondent /
Accused-Shashikant Sagan Tirmare was working as Police
Constable at Police Station, Umadi, Tal. Jath, Dist. Sangli
and he was absent from duty from 4th May, 1989 to 23rd
July, 1989 on which date he was arrested in the crime in
question. According to the prosecution case, while on sick
leave the Respondent/Accused had robbed PW-1- Akbar
Hasan Mulani of Rs. 1760/- after slapping him near the
new settlement area of Sangli Town at about 10.15 p.m. of
22nd July, 1989. According to the prosecution, informant
Akbar Mulani (PW-1) accompanied by his friend Shivaji
Thorat (PW-2) had been to Sangli for marketing. After
finishing the marketing, they were going towards Amrai
corner from Gokulnagar when the Respondent / Accused
intercepted them. There Respondent/Accused questioned
both of them as to whether they are coming from
Gukulnagar area. Respondent/ Accused started
threatening informant -Akbar Mulani (PW-1) and his
friend Shivaji Thorat (PW-2). Shivaji Thorat (PW-2) went
to make a phone call and at that time Respondent/
Accused slapped informant Akbar Mulani on his cheek and
extorted an amount of Rs. 1760/- from him. Soon
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thereafter, Shivaji Thorat (PW-2) returned back to the
informant. According to the prosecution case, Shivaji
Thorat (PW-2) had informed informant Akbar Mulani
that the person who had extorted amount is a police
personnel by name -Shashikant Tirmare. The duo
started searching him and on the way, they met Vasantrao
Shankar Musana (PW-5), who advised them to undertake
search for the accused in the morning hours. Thereafter,
the informant and his friend resumed search for accused
in the morning hours. PW-5 Vasantrao Musana was stated
to be accompanying them at about 5.30 a.m. to 6 a.m. of
23rd July, 1989 when they found the accused standing
near pan-patti shop adjacent to Hotel Navaratna. The trio
then caught-hold of the accused and took him to the police
station, Sangli where the subject Crime No.209 of 1989
under section 394 of the Indian Penal Code came to be
registered against the Respondent /Accused by P.S.O. Shri
Easi. Further investigation was taken over by the Police
Inspector Pandurang Chavan (PW-6).
After routine investigation, charge-sheet came to be
ii)
filed against the Respondent/Accused and charge for
offence punishable under section 394 of the Indian Penal
Code came to be framed against the Respondent /Accused.
After due trial, by the impugned judgment and order
passed on 3rd March, 1998 in Regular Criminal Case
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No.319 of 1989, the learned Judicial Magistrate, First
Class, Sangli at Sangli, was pleased to acquit the
Respondent/Accused for the offence punishable under
section 394 of the Indian Penal Code. This judgment and
order is impugned in the present appeal by the Appellant
State.
3 Heard Mrs. Deshmukh, the learned Additional
Public Prosecutor for the State. None appeared for the
Respondent /Accused. After taking me through the evidence
of informant PW-1 Akbar Mulani, PW-2-Shivaji Thorat and that
of PW-5-Vasantrao Musana, the learned Additional Public
Prosecutor vehemently argued that evidence of all these three
witnesses is totally consistent and version of the informant is
fully corroborated by the versions of PW-2- Shivaji Thorat and
PW-5 Vasantrao Musana. Learned Additional Public Prosecutor
further argued that after apprehending the accused, he was
taken to the police station and at the police station, looted
amount was recovered from the Respondent/Accused and it
came to be seized by preparing the seizure panchanama which
is duly proved by PW-3 Salim Momin, a panch-witness.
According to the learned Additional Public Prosecutor, guilt of
the accused is established beyond reasonable doubt and,
therefore, the learned trial court erred in acquitting the
accused of the charges leveled against him. None appeared for
Respondent No.2/ Accused.
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4 With the assistance of the learned Additional Public
Prosecutor, I have perused the entire record and proceedings
and particularly evidence of witnesses recorded by the
prosecution so also the documentary evidence placed on
record.
5 At the outset, let us put on record the parameters
of jurisdiction of this court while dealing with the appeal,
challenging the acquittal of the accused. It is well settled
that generally the order of acquittal may not be interfered with
because the presumption of innocence of the accused is further
strengthened by his acquittal after due trial. It is well settled
that if two views are possible on appreciation of evidence in a
case, the one pointing out the guilt of the accused and another
recording his innocence, then the view which is favourable to
the accused needs to be adopted. However, while exercising
the appellate jurisdiction, this court can re-appreciate the
evidence on record even when the accused is acquitted for the
purposes of ascertaining as to whether the accused had
committed the crime in question or not. However, the
appellate court can exercise its jurisdiction by interfering with
impugned judgment and order of acquittal when compelling
and substantial reasons are pointed out for doing so. Keeping
in mind these well established standards for appreciation of
evidence and exercise of the appellate jurisdiction, let us now
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determine whether the prosecution has proved beyond
reasonable doubt that on 22nd July, 1989 at about 10.15 p.m.
to 10.30 p.m., near the bridge of new colony, Sangli ,
Respondent / Accused voluntarily caused hurt to PW-1
Akabar Mulani and committed robbery by looting an amount
of Rs. 1760/- from him.
6 It is in the evidence of PW-1 Akbar Mulani that he
alongwith his friend PW-2 Shivaji Thorat had visited Sangli
from their village Danoli on 22nd July, 1989 for the purpose of
marketing and that after 9.30 p.m.. on that day, they were
proceeding towards Amarai for taking juice. His evidence
further states that when he had reached there at new
settlement area, one person intercepted them and his name
was told as "Shashikant Tirmare" by his friend Shivaji Thorat
(PW-2). PW-1 Akabar Mulani then stated in his evidence that
said person started threatening them by questioning whether
they came from Gokulnagar area. Thereafter, his friend
Shivaji Thorat went to make a phone call and during that
time as per version of PW-1 Akbar Mulani, after slapping him
on face, the accused robbed an amount of Rs. 1760/- from him.
In his evidence PW-1 Akbar Mulani further stated that
thereafter, immediately Shivaji Thorat came back and the
duo started searching for the said robber.
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7 Similar is the version of PW-2 Shivaji Thorat.
However, he did not claim that amount of Rs.1760/- came to
be robbed from PW-1-Akabar Mulani in his presence. He stated
that after making phone calls to his friend, he joined
company of his friend PW-1 Akabar Mulani, who told him that
the Respondent /Accused has forcibly taken an amount of Rs.
1760/- from him.
8 PW-1 Akabar Mulani and PW-2 Shivaji Thorat
unanimously stated that when they started searching the
robber, they met PW-5 Vasantrao Shankar Musana. As per
version of PW-2 Shivaji Thorat, they met said Vasantrao
Musana near Amarai and the incident was narrated by them to
said Vasantrao-PW-5. As per the advise of Vasantrao a search
for the robber was stopped to resume in the morning hours.
9 Evidence of PW-1- Akabar, PW-2-Shivaji and PW-5
- Vasantrao goes to show that in the morning hours on 23 rd
July, 1989 the said search was resumed and the accused was
found standing at the pan-patti shop near Navaratna Hotel
from where he was nabbed. All these three witnesses stated
that the accused was then taken to the police station where
the subject FIR came to be lodged and the amount was
recovered from him.
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10 In the normal circumstances, there was no reason
to dis-believe such a consistent conversion of the prosecution
witnesses to infer guilt of the accused in the crime in question.
However, the learned trial court upon scrutinizing evidence of
all these three witnesses came to the conclusion that their
evidence cannot be said to be trustworthy and reliable in order
to base conviction. The learned trial Court has given cogent
reasons for disbelieving the versions of these three
prosecution witnesses.
As such now let us examine whether versions of
these three witnesses, as held by the learned trial Court, seem
to be doubtful for basing conviction.
12 It was on 23rd July, 1989 the FIR came to be lodged
by PW-1 Akabar Mulani against the Respondent/Accused. The
FIR at Exh. 14 shows that as soon as the accused intercepted
him and PW-2 Shivaji, PW-2 Shivaji informed the informant
PW-1-Akabar that the accused (the person who intercepted
them) is a police personnel. FIR further shows even after the
incident, PW-2 Shivaji Thorat had disclosed informant PW-1
Akabar that the robber was a police personnel named
Shashikant S. Tirmare. Even in his evidence, PW-1 Akabar
Mulani has stated that at the time of incident of robbing him,
he came to know from PW-2 -Shivaji that the name of the
robber was Shashikant Tirmare, a police personnel. Soon
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after the incident, both these witnesses met PW-5 Vasantrao,
who hails from their village Danoli. Evidence of these three
witnesses goes to show that they were well acquainted to each
other. It is not their case that they were not aware of the
location of the police station or need of lodging the FIR in
such case. However, still these witnesses kept mum and did
not approach the police station for lodging report against the
accused. It is not their case that they were under fear of the
accused, which prevented them from lodging the report. On
the contrary, as per their versions, they have continued search
of the accused in the morning hours of 27th July, 1989 and
nabbed him at the panpatti. They then took him to the police
station. This delay of lodging the FIR by PW-1 Akabar though
he was knowing identity of the accused after the incident, was
taken as a factor to disbelieve the versions of these three
witnesses by the learned trial Court. In criminal cases, need of
lodging FIR promptly need not be emphasized. Prompt
lodging of FIR prevents adding of embellishment to the
prosecution case. In the instant case, defence of the accused,
as gathered from the material brought on record, is to the
effect that he had quarreled with informant -Akabar Mulani on
10th July, 1989 over the issue of black marketing of the tickets
and therefore, the informant got enraged against him and
lodged the report. In cross-examination of PW-2 -Shivaji
Thorat it is brought on record by the defence that the Manager
of Swaroop Theater is his friend and he because acquainted
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with the accused through the Manager of that theater.
Considering the fact that the informant as well as his friends
were well acquainted with the accused and that as per version
of PW-2-Shivaji, this acquaintance was through the Manager
of the Swaroop Theater, the defence has probabilised its
version that there was serious enmity between the informant
and the accused over the issue of black marketing of the
tickets. In this situation, the delay in lodging the FIR, despite
knowing the identity of the accused, has became fatal to the
prosecution case making it suspect. In such eventuality, the
view taken by the learned trial court in disbelieving the
version of these prosecution witnesses cannot be said to be a
view which is not reasonably probable.
13 Learned trial court apart from doubting the conduct
of the prosecution witnesses in causing delay in lodging the
FIR, has also considered a prosecution case as an unnatural
because of the averment that the accused was found at Pan-
patti stall near Navaratna Hotel in wee hours on 23 rd July,
1989. According to the prosecution case, the accused being
the police personnel, who was well acquainted with the
persons accompanying the informant, had no reason to be at
the said place if he had really robbed the informant last night
in presence of the persons acquainted to him. The
improbability crept in the prosecution case makes it doubtful.
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14 PW-2 Shivaji Thorat had disclosed in his evidence
that they met PW-5 Vasantrao after the incident near Aamrai.
As against this, PW-5 Vasantrao has stated in his evidence
that he met informant Aakabar Mulani PW-1 and PW-2 Shivaji
Thorat at the main road leading to the Bus Station where the
incident was disclosed to him. Though this discrepancy is of a
minor character, it assumes great importance because of the
inconsistency in the prosecution versions about the incident in
question.
For the foregoing reasons, it cannot be said that
the acquittal of the accused recorded by the learned trial Court
is an outcome of a perverse appreciation of the evidence on
record. The view taken by the learned trial Court is a probable
view based on evidence on record and there are no compelling
or substantial reasons to interfere with the same.
16 In the result the following order :
The Criminal Appeal is dismissed.
(A. M. BADAR, J.)
.....
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