Ashok Sampat Bhosale vs The State Of Maharashtra
2016 Latest Caselaw 2877 Bom

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          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.490 OF 2001




                                                 
     Ashok s/o Sampat Bhosale
     Age-27 years, Occu:Labour,
     R/o-Hangewadi, Tq-Paranda,




                                         
     Dist-Osmanabad.
                                     ...APPELLANT
                                 (Orig. Accused No.1) 
                             
            VERSUS             
                            
     The State of Maharashtra 
                                     ...RESPONDENT

                          ...
      

        Mr. Hemantkumar F. Pawar Advocate h/f.
        Mr. R.B. Ade Advocate for  Appellant.
   



        Mr. K.D. Mundhe, A.P.P. for Respondent.       
                          ...       





                   CORAM:   A.I.S. CHEEMA, J.

        DATE OF RESERVING JUDGMENT  : 7TH JUNE,2016.  

        DATE OF PRONOUNCING JUDGMENT: 16TH JUNE, 2016.





                                      

     JUDGMENT :

1. The Appellant - original accused No.1 in

Sessions Case No.61 of 2000 decided by Ad-hoc

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Additional Sessions Judge, Osmanabad on 7th

November 2001, has been convicted under Section

395 of the Indian Penal Code, 1860 ("IPC" in

brief) and sentenced to suffer rigorous

imprisonment for seven years and to pay fine of

Rs.1000/- and in default to suffer further

rigorous imprisonment for six months. The other

three accused came to be acquitted. It appears

that some other accused involved in the incident

are absconding.

2. The case of the prosecution, in brief, is

as follows:-

A). On 12th April 1996 one Jagannath Baba

Umbre filed First Information Report ("FIR" in

brief) at police station Ambi, Tq-Paranda of Dist-

Osmanabad reporting that he is working for one

Mahadeo Ramrao Huke and Shantabai Mahadeo Huke

(PW-7) and in the night between 11th April 1996 -

12th April 1996 they had slept in the house which

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is in the field at Sakat Khurd. In the night at

about 2.00 a.m., 7-8 unknown persons suddenly

attacked them when they were sleeping, and beat

them. Those persons had sticks and the complainant

and his employers were beaten and they broke the

lock of the house and took away the Mani-

Mangalsutra of gold and other ornaments. The FIR

mentions details regarding the said ornaments. The

FIR gives the details as to the manner in which

the complainant and his employers were beaten. The

FIR mentions that when the complainant and nearby

residents were proceeding to the police station in

the morning, they came to know that 7-8 thieves

had similarly committed dacoity at the place of

one Jaishree Gorakh Kharat also, residing at some

distance and ornaments and other articles were

stolen from there also. The mother-in-law of said

Jaishree Kharat (PW-5), namely Shantabai Kharat

(PW-7), and Vaijayanta Kharat (PW-6) were also

beaten and robbed. The police registered offence

at Crime No.25 of 1996 at 9.30 a.m.

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B). PW-12 P.S.I. Abasaheb Kakade carried out

investigation after offence was registered. Spot

Panchnama of both the places Exhibit 62 was

recorded. In the investigation, the Appellant -

accused came to be arrested on 18th April 1996.

While he was in police custody, he agreed to show

where Mani-Mangalsutra robbed in the course of

dacoity was hidden and his memorandum Exhibit 51

came to be recorded on 26th April 1996. The

Article-1 which was before Court, came to be

discovered when the Appellant - accused led the

police and Panchas to his house and it was found

that it was hidden in the clothes near the waist

of Abai, the wife of Appellant - accused. The said

ornament was identified before police by PW-7

Shantabai, regarding which Panchnama Exhibit 62

came to be recorded. Further investigation was

done by PW-13 P.S.I. Gaikwad, who submitted the

charge-sheet.

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3. The Appellant - accused and others came

to be tried. Prosecution brought on record

evidence of 13 witnesses. The defence of the

Appellant - accused in the trial Court was of

denial. The trial Court considered the oral and

documentary evidence brought on record and after

discussing the evidence, concluded that for want

of test identification parade and failure of

prosecution to prove that there was sufficient

light at the two spots, the identification done by

witnesses of the Appellant - accused in the Court

would be risky to rely on. However, the trial

Court found that the happening of dacoity was

established and the discovery of the Mani-

Mangalsutra at the instance of the Appellant -

accused was proved and it linked him to the

dacoity in view of Section 114 of the Indian

Evidence Act and held the Appellant - accused

guilty under Section 395 of IPC and convicted him

as mentioned above.

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4. Now, the learned counsel for Appellant -

accused has argued before me that the evidence

against the Appellant - accused was insufficient

to hold him guilty under Section 395 of IPC.

According to the learned counsel, the Appellant -

accused was arrested on 18th April 1996 and was

remanded to police custody. Later on further

remand was taken till 25th April 1996. On 25th

April 1996 further remand was taken and the

discovery is then shown as of 26th April 1996.

According to the counsel, the Article-1 claimed by

PW-7 Shantabai to be her ornament, is commonly

available article. Panch PW-2 Shankar had turned

hostile, and only Panch PW-3 Dattatraya supported

the prosecution. It is argued that the Memorandum

Exhibit 51 and Panchnama Exhibit 53 did not

disclose the distance between the police station

and the house of accused where it is claimed that

the accused took the police and Panchas, and

seizure was made. The learned counsel referred to

findings recorded by the trial Court in its

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Judgment in Para 29 to submit that the reasonings

recorded by the trial Court regarding discovery,

could not be maintained. It is argued that

discovery is doubtful. The learned counsel relied

on the Judgment in the case of State of Rajasthan

vs. Talevar and another, reported in A.I.R. 2011

Supreme Court, 2271 to submit that recovery of

stolen articles on disclosure statement would not

be sufficient to hold the accused guilty if

discovery was not in close proximity of time from

the date of incident. Learned counsel submitted

that in the course of third remand the discovery

is given and thus it should be disbelieved.

Learned counsel also relied on unreported

Judgments - i) in the matter of Raja Mohammed and

others vs. State - by Inspector of Police, Vadalur

Police Station in Criminal Appeal No.318 of 2007

of Madras High Court and ii) in the matter of

Ghanshyam @ Bablu vs. State in Criminal Appeal

No.757 of 2007 and other companion matters of

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Delhi High Court, to submit that in those matters

also on the basis of discovery, conviction was not

upheld.

5. Learned A.P.P., however submitted that

soon after the incident, the accused was arrested

and although he avoided giving discovery earlier,

police succeeded to interrogate the accused and

the same led to the discovery of stolen ornaments

of PW-7 Shantabai and the reasonings recorded by

the trial Court are maintainable. The A.P.P.

supported the reasons recorded by the trial Court.

According to him, it is not the case of the

accused that the said ornament belonged to him or

his wife. The ornament was not seized from the

neck of the wife of the accused but she had hidden

the same in her clothes.

6. Before discussing the evidence, it would

be appropriate to refer to the Judgments relied on

by the learned counsel for the Appellant -

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accused. I have gone through the Judgment in the

matter of Ghanshyam @ Bablu, cited supra, which is

from the Delhi High Court, as well as Judgment in

the matter of Raja Mohammed and others, cited

supra, which is from the High Court of Judicature

at Madras. Both the Judgments can be distinguished

on facts. As regards the Judgment in the matter of

State of Rajasthan vs. Talewar (referred supra),

it is from the Hon'ble the Supreme Court. It can

be seen that it was an appeal against acquittal

and the Hon'ble Supreme Court considered the

points raised regarding Section 114 [Illustration

(a)] of the Indian Evidence Act in the context of

offence under Section 395 of IPC and other

Sections. The Hon'ble Supreme Court in Para 7

considered the question whether adverse inference

could be drawn against the accused merely on the

basis of recoveries made on their disclosure

statements. In Para 7.1 of the Judgment, the

Hon'ble Supreme Court referred to the case of

Gulab Chand vs. State of M.P., A.I.R. 1995 SC

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1598, where Supreme Court had upheld the

conviction for committing dacoity on the basis of

recovery of ornaments of the deceased from the

possession of the person accused of robbery and

murder immediately after the occurrence. The

Supreme Court also referred to the Judgment in the

matter of Geejaganda Somaiah vs. State of

Karnataka, A.I.R. 2007 SC 1355, and observations

in that Judgment that culpability for the

aforesaid offences will depend on the facts and

circumstances of the case and the nature of

evidence adduced. The Supreme Court further

referred to other Judgments in this context and

found in Para 8 as follows:

"8. In the instant case, accused Kuniya was arrested on 24.12.1996 and a silver glass and one thousand rupees were alleged

to have been recovered on his disclosure statement on 29.12.1996. Again in disclosure statement dated 2.1.1997, a scooter alleged to have been used in the

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dacoity, was recovered. Similarly, another

accused Talevar was arrested on 19.1.1997 and on his disclosure statement on

26.1.1997, two thousand rupees, a silver key ring and a key of Ambassador car alleged to have been used in the crime

were recovered. Thus, it is evident that recovery on the disclosure statements of either of the respondents/accused persons

was not in close proximity of time from

the date of incident. More so, recovery is either of cash, small things or vehicles

which can be passed from one person to another without any difficulty. In such a fact-situation, we reach the inescapable

conclusion that no presumption can be

drawn against the said two respondents/accused under Section 114, Illustration (a) of the Evidence Act. No

adverse inference can be drawn on the basis of recoveries made on their disclosure statements to connect them with the commission of the crime."

. Then the Hon'ble Supreme Court referred

to the fact that the Appeal before the Hon'ble

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Supreme Court was against acquittal and Judgment

of the High Court acquitting the Respondents in

that matter was well reasoned and thus the Hon'ble

Supreme Court refused to interfere.

7. Keeping the observations of the Hon'ble

Supreme Court in view, it is clear that it would

be necessary for me to consider the facts of the

present matter. The Hon'ble Supreme Court has, in

Para 7.4 referred to the Judgment of Earabhadrappa

vs. State of Karnataka, A.I.R. 1983 S.C. 446,

where it was observed that no fixed time-limit can

be laid down to determine whether possession is

recent or otherwise.

8. In the present matter, there does not

appear to be dispute with regard to the evidence

of the witnesses that in the night of 11th - 12th

April 1996 concerned, there was dacoity at the

house in the field of Mahadeo Huke and there was

also dacoity at another nearby spot in the house

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in the field of Jaishree Kharat (PW-5). There is

evidence of PW-1 Dr. Arjun, who examined various

injured persons from both the spots and found that

they had been beaten, and issued medical

certificates. Prosecution brought on record the

evidence of complainant PW-4 Jagannath supported

by PW-7 Shantabai and PW-11 Narayan Huke regarding

the dacoity which was committed at the place of

Mahadeo Huke. Similarly, prosecution brought on

record evidence of PW-5 Jaishree Kharat, her

mother-in-law PW-7 Shantabai and grand mother-in-

law Vaijayanta Kharat, regarding the dacoity which

occurred at their house in the agricultural land.

In the evidence of these witnesses, disputes were

raised regarding visibility and whether tube light

which was on, was broken. The trial Court has

already recorded findings in this regard in Para

28 of its Judgment that no identification parade

was held and the witnesses identified the accused

in the Court after gap of six years and that

presence of burning tube light was doubtful and so

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mere version of the witnesses regarding

identification could not be considered. The trial

Court, however, considered the evidence regarding

discovery and held the Appellant - accused guilty.

9. It appears from record and it has been

deposed by PW-12 PSI Abasaheb Kakade that the

Appellant - accused Ashok came to be arrested on

18th April 1996. The Panch regarding discovery,

PW-2 Shankar Gatkal turned hostile. However, there

is evidence of Panch PW-3 Dattatraya Mali and the

investigating officer PW-12 PSI Abasaheb Kakade.

It appears from the evidence of these witnesses

that while the Appellant - accused was in custody,

he stated before the police that he has kept the

Mani-Mangalsutra with his wife and will produce

the same. Police prepared Memorandum Panchnama

Exhibit 51 on 26th April 1996 between 7.50 a.m. -

8.10 a.m. The evidence is that the accused then

took the Panchas and police party in the police

vehicle to Ukkadgaon bus stand via Anala road and

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from there the vehicle was taken towards Hangewadi

village. At Mauje Hangewadi, the vehicle was

stopped at some distance and the accused led the

police and Panchas towards his house. The way went

from a Nala. The accused led them to his wife and

from near her waist it was found that she had

bundled up the Article - 1, Mani-Mangalsutra of

gold. Thus the Article -1 came to be seized at the

instance of Appellant - accused. The Panch PW-3

Dattatraya came to be cross examined. He accepted

that Hindu ladies possess Mangalsutra and Dorla.

The other suggestions which were put up to him

were denied by him and the witness remained un-

shattered. Thus, the discovery was proved by the

prosecution.

10. Although the learned counsel for the

Appellant - accused is submitting that after the

third remand was taken the accused gave discovery,

that by itself is not sufficient to doubt the

discovery. The accused was arrested on 18th April

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1996. The incident had occurred in the night of

11th - 12th April 1996. It is clear that soon the

accused came to be arrested. If for some days the

accused resisted to give discovery, it would

rather show that he tried his best to avoid giving

discovery but later on conceded to the

interrogations and the stolen article was

discovered on 26th April 1996. It is tried to

claim that the Mangalsutra is common article and

it is found with every Hindu woman. However, in

the present matter, at the time of FIR itself the

complainant had given description of the

Mangalsutra which had been stolen and the

Mangalsutra, after it was seized, was got

identified by the police in the presence of PW-9

Panch Kerba Huke, and Panchnama Exhibit 62 was

prepared. The witness PW-9 Kerba identified the

Article even in the Court. It is not a case that

the Article was found being worn by the wife of

the Appellant - accused. It was kept hidden by her

in the clothes and looking to all these facts it

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does not appear that the findings recorded by the

trial Court regarding the discovery of stolen

Article needs to be interfered with. Mani-

Mangalsutra of gold does not appear to be an

Article which could easily change hands. Even if

such Article is taken to gold-smith, the gold-

smith, in ordinary course, would try to verify the

source of the ornament to be legitimate or

otherwise. Looking to the facts of the present

matter, where soon after the incident the

Appellant - accused came to be arrested and while

in custody he resisted for some time to give

discovery, and later on the Article was seized as

hidden with his wife, and was seized at the

instance of the Appellant - accused, I find that

the findings recorded by the trial Court to hold

Appellant - accused guilty resorting to Section

114 of the Indian Evidence Act are maintainable.

There is no reason to interfere with the

conviction as recorded by the trial Court. I do

not find any substance in the arguments raised by

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the learned counsel for the Appellant.

11. The Appeal is dismissed. The Appellant -

accused shall surrender to his Bail Bonds. The

trial Court shall ensure the execution of

sentence.

[A.I.S. CHEEMA, J.]

asb/JUN16