Bombay High Court
Mansingh Dhondiram Sakpal vs The State Of Maharashtra on 24 April, 2017
Bench: A.M. Badar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.136 OF 2017
WITH
CRIMINAL APPLICATION NO.134 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.136 OF 2017
MANSINGH DHONDIRAM SAKPAL )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.P.G.Sarda, Advocate for the Applicant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 24th APRIL 2017.
ORAL JUDGMENT :
1 By this revision petition, revision petitioner / original
accused no.1 / Mansingh Sakpal is challenging the judgment and
order dated 14th December 2016 passed by the learned Additional
Sessions Judge, Greater Bombay, Mumbai, in Criminal Appeal
No.402 of 2012 thereby dismissing his appeal and confirming the
judgment of the learned trial Magistrate convicting him of the
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offence punishable under Section 394 read with Section 34 of the
IPC and sentencing him to suffer rigorous imprisonment for 3
years apart from payment of fine of Rs.500/-, and in default, to
undergo further simple imprisonment for 1 month. In all four
accused persons including the revision petitioner / accused no.1
Manish Sakpal were put up for trial for offences punishable under
Section 394, 411 read with 34 of the IPC vide Criminal Case
No.199/PW/2006 with Criminal Case No.760/PW/2008. Learned
trial Magistrate by the judgment and order dated 7 th March 2012
was pleased to convict the revision petitioner / accused no.1 along
with accused nos.2 and 3 for the offence punishable under Section
394 read with 34 of the IPC and they were sentenced as indicated
above in this paragraph.
2 According to the prosecution case, as reflected from
the charge-sheet filed against accused persons, informant PW1
Rakesh Jain was a salesman with the Millenium Firm. He used to
take gold ornaments given by his employer to various jewelers for
selling them. On 13th November 2005, he took gold ornaments
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such a Mangalsutras, Mangalsutra pendants, ear rings and finger
rings weighing 1250 gms for selling to Mulund, Bhandup and
Pratap Nagar area of Mumbai. He could not effect any sale and
therefore, he boarded an auto rickshaw for going to Kanjur. He sat
between two persons who were already sitting in the auto
rickshaw. At L.B.S.Road, Mumbai, his auto rickshaw was stopped
on the pretext that one of the passengers wanted to alight. At that
time, driver of auto rickshaw gave a fist blow on chest of PW1
Rakesh Jain and two persons who were sitting in the auto
rickshaw started snatching his bag. Ultimately, his bag came to be
snatched and he was pushed out of the auto rickshaw. PW1
Rakesh Jain then called his employer and lodged a report Exhibit
6 on the very same day with Park Site Police Station, Mumbai,
which resulted in registration of Crime No.377 of 205 under
Section 394 read with 34 of the IPC. After filing of the charge-
sheet on completion of the investigation, the revision petitioner
along with co-accused were tried for the offence punishable under
Section 394 read with 34 of the IPC and after hearing parties, the
learned Metropolitan Magistrate was pleased to convict the
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revision petitioner / accused no.1 along with accused nos.2 and 3
for the offence punishable under Section 394 read with 34 of the
IPC and they came to be sentenced as indicated in the opening
paragraph of this judgment.
3 The revision petitioner / accused no.1 carried that
judgment in appeal but his appeal came to be dismissed by the
impugned judgment and order dated 14th December 2016 by the
learned Additional Sessions Judge, Mumbai.
4 I have heard the learned advocate appearing for the
revision petitioner / accused no.1 at sufficient length of time. He
argued that the court below have rightly discarded the evidence of
identification because same was lacunic and unreliable. He drew
my attention to paragraph 7 of the judgment of the appellate
court on this aspect and contended that identity of the accused
persons was not established and as such, the revision petitioner
ought not to have been convicted of the alleged offence. It is
further argued that evidence of PW6 Arvind Vinerkar - panch
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witness, is discrepant as he has not identified all ornaments
allegedly recovered at the instance of the revision petitioner /
accused. It is further argued that the only evidence on the basis o
which the revision petitioner / accused is convicted is that of
recovery at his instance. Such recovery, as per the evidence, is
from the open place and therefore, it is of no consequence.
Similarly, it is argued that identification of ornaments at the
instance of witnesses is also doubtful as it has come on record
from their cross-examination that such type of ornaments are
easily easily available in open market.
5 As against this, the learned APP argued that impugned
judgment and order passed by the appellate court is a well
reasoned order based on the evidence on record. He further
argued that the first informant had identified the seized
ornaments on the basis of logo and there is no cross-examination
on this aspect. The recovery panchnama bears signature of the
revision petitioner / accused and place and recovery is supported
by the evidence adduced by the prosecution witnesses and as
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such, other aspects are wholly irrelevant.
6 I have carefully considered the rival submissions and
also perused record and proceedings including judgment and
order passed by the courts below. The revision petitioner /
accused is invoking revisional jurisdiction of this court which
needs to be exercised sparingly when there is glaring defect in the
procedure or manifest error on point of law consequently resulting
in flagrant miscarriage of justice. In revisional jurisdiction, finding
of fact cannot be interfered with and the court cannot re-
appreciate evidence by functioning as an appellate court.
Keeping in mind this parameters for exercising revisional
jurisdiction of this court, let us examine whether the court below
erred in upholding the conviction of the revision petitioner /
accused no.1.
7 The revision petitioner is convicted of the offence
punishable under Section 394 read with 34 of the IPC by holding
that accused persons in furtherance of their common intention
committed robbery and during the course of committing such
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robbery, they had voluntarily caused hurt to informant PW1
Rakesh Jain. As such, let us see whether finding of the learned
court below that there was incident of robbery on 13 th November
2005 in which informant PW1 Rakesh Jain was robbed of gold
ornaments weighing 1250 gms is supported by the evidence on
record. If this finding is seen to be supported by the evidence on
record, then one will have to see whether hurt was caused to
informant PW1 Rakesh Jain in the course of commission of
robbery and then this court will have to see whether the revision
petitioner / accused can be fastened with liability of commission
of robbery in furtherance of common intention which he had
allegedly shared with co-accused.
8 Evidence of PW1 Rakesh Jain along with evidence of
PW8 Nanalal Jain was believed by the court below in concluding
that the prosecution has proved that the incident of robbery took
place on 13th November 2005 when the informant was robbed of
his valuables. Evidence of PW1 Rakesh Jain shows that he was
working as a salesman with the Millenium firm owned by one
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Sureshkumar Dhakad. His job was to carry gold ornaments to
various jewelers in Mumbai for selling them. Evidence of this
witness further reveals that on 13th November 2005 he took gold
ornaments weighing 1250 gms for selling. He went to jewelers at
Mulund, Bhandup and Pratap Nagar area of Mumbai, but was not
in a position to sell out those gold ornaments. This witness
deposed that then he boarded an auto rickshaw at Pratap Nagar
for going to Kanjur Station and sat between two passengers who
were already sitting in that auto rickshaw. As per version of this
witness, the auto rickshaw stopped at L.B.S. Road as one of the
passengers was to alight the auto rickshaw. At that point of time,
as stated by PW1 Rakesh Jain, driver of auto rickshaw gave fist
blows on his chest and two persons who were sitting beside him
tried to snatch the bag containing gold ornaments from his hand.
Then, the auto rickshaw started moving and by pulling the bag
from his hand, he was pushed outside the auto rickshaw. This
witness further stated that because of this incident, he suffered
injuries to his face and auto rickshaw went away from the spot. In
this way, as per version of PW1 Rakesh Jain, a bag containing
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gold ornaments such as Mangalsutras, Mangalsutra pendants, ear
rings, finger rings etc. came to be robbed from his person by the
driver as well as passengers of the auto rickshaw. Cross-
examination of this witness shows that the auto rickshaw was
stopped at the gate of the building under construction. He shouted
at the time of the incident and one vehicle stopped. People also
gathered. From cross-examination of this witness it has been
brought on record that this witness was called after the incident to
police station for identifying one of the accused and thereafter he
was called after a gap of 2 to 2½ hears for identifying two accused
persons.
9 The report lodged by this witness is at Exhibit 6.
Averments in the FIR lodged by this witness fully corroborates
version of this witness regarding the fact that he was carrying gold
ornaments weighing 1250 gms for selling them out and those
were robbed from his possession by the driver and two passengers
of the auto rickshaw in which he was traveling towards Kanjur
Station. This FIR is lodged with promptitude i.e. at about 4.30
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p.m. of the day of the incident. As seen from evidence of this
witness, he immediately called his employer and along with his
employer he had been to the police station for lodging the report.
10 Version of PW1 Rakesh Jain is gaining further
corroboration from contemporaneous vouchers issued by the
Millenium firm which is at Exhibit 7. This voucher shows that
gold jewellery weighing about 1268.12 gms was entrusted to him.
11 Evidence of PW8 Nanalal Jain - owner of Samrat
jewellers shows that PW1 Rakesh Jain had been to his shop for
selling jewellery on 13th November 2005. However, PW8 Nanalal
Jain did not like the ornaments brought by PW1 Rakesh Jain and
therefore he had not purchased anything from PW1 Rakesh Jain.
This evidence duly corroborates version of PW1 Rakesh Jain to
the effect that on 13th November 205 he was on his job to sell out
gold ornaments such as Mangalsutras, Mangalsutra pendants, ear
rings, finger rings etc.
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12 Version of PW1 Rakesh Jain regarding robbery of gold
ornaments is gaining further corroboration from Injury certificate
at Exhibit 22 placed on record by the prosecution. This is a
document which is not disputed by the defence and upon
admission of this injury certificate by the defence, it is marked as
Exhibit 22. This Injury certificate shows that on 13 th November
2005, PW1 Rakesh Jain was found to have suffered injuries in the
nature of abrasion on his left eye brow as well as forearm apart
from tenderness to his right arm. With this evidence on record, no
fault can be found in finding of the court below to the effect that
the prosecution has proved that gold jewellery weighing 1250 gms
came to be looted from possession of PW1 Rakesh Jain after
causing hurt to him in the process of robbery.
13 Now let us examine whether the prosecution is
successful in establishing the fact that it was the revision
petitioner / accused no.1 who along with co-accused in
furtherance of common intention committed robbery of gold
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ornaments weighing 1250 gms from possession of PW1 Rakesh
Jain. As noted above, evidence regarding identification of accused
persons was found by the learned appellate court to be sketchy
and inconsistent. PW1 Rakesh Jain had initially deposed that
accused no.3 Anjan alias Rajan Mahanti was driving the auto
rickshaw but subsequently he has stated that it was the revision
petitioner / accused no.1 who was driving the auto rickshaw. He
could not identify, who out of remaining three accused persons
was sitting at the backside of the auto rickshaw. PW4 Ravindra
Raut - a panch witness in respect of recovery was not in a position
to identify the revision petitioner / accused no.1 as a person who
made confessional statement before the police. PW6 Arvind
Vinerkar who is the second panch to the confessional statement of
the revision petitioner / accused no.1, is the only witness apart
from PW11 Baliram Kadam, the Investigator, who has identified
the revision petitioner /accused no.1 as the person who made
confessional statement. Similarly, so far as Test Identification
Parade (TIP) is concerned, the appellate court came to the
conclusion that the said evidence cannot be accepted as PW1
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Rakesh Jain has not spoken about identification of the revision
petitioner / accused no.1 in the identification parade and PW3
Sanjay Sonawane - a panch witness to the TIP has not supported
the case of the prosecution in respect of identification parade. As
this finding is based on evidence of witnesses and as such cannot
be termed as perverse, this court cannot undertake the task of
appreciation of evidence of PW1 Rakesh Jain and PW3 Sanjay
Sonawane on this aspect, in the revision petition at the instance of
the accused.
14 Conviction of the revision petitioner / accused no.1 is
based on recovery of some of the looted articles at his instance.
For establishing recovery from the revision petitioner / accused
no.1, the prosecution has relied on his confessional statement
Exhibit 13 recorded on 6th December 2005 and the resultant
recovery panchnama Exhibit 14 showing recovery of gold
ornaments weighing about 70 gms at the instance of revision
petitioner / accused no.1. Section 27 of the Indian Evidence Act,
1872, is an exception to Sections 25 and 26 thereof. It is a proviso
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to Section 26 which provides that confession by the accused while
in custody of police cannot be proved against him. Ban imposed
by Section 26 is lifted by Section 27 of the Indian Evidence Act,
1872, which is concerned with the proof of information whether it
amounts to a confession or not which leads to discovery of facts.
The conditions necessary for invoking the aid of Section 27 of the
Indian Evidence Act, 1872, are as under :
i) there must be discovery of relevant fact in
consequence of information received from a
person accused of offence.
ii) the discovery of such fact must be deposed to
iii)at the time of receipt of information, the accused
must be in the police custody
iv)that only so much of information as it relates
distinctly to the fact thereby discovered is
admissible.
15 In the case in hand, as seen from evidence of the
Investigator i.e. PW11 Baliram Kadam, Police Inspector, after his
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arrest by Dahisar Police, the revision petitioner / accused no.1 was
taken in custody by this witness on 6th December 2005. PW11
Baliram Kadam, Police Inspector, deposed that on 6 th December
2005 itself while in police custody, the revision petitioner showed
his willingness to show the place where the ornaments robbed
were concealed and accordingly, memorandum Exhibit 13 came to
be recorded in presence of panch witnesses. As per version of this
witness, then confession statement of the revision petitioner /
accused no.1 came to be signed by the revision petitioner /
accused no.1 as well as panch witnesses and by him. PW11
Baliram Kadam further deposed that under directions of the
revision petitioner / accused no.1 they proceeded towards gate
no.2 of Devnar slaughter house. They were taken near the
compound wall of that slaughter house and from the hole in the
compound wall, the revision petitioner / accused no.1 took out a
bag. That bag was found to be containing three mangalsutras and
five mangalsutra pendants. PW11 Baliram Kadam further testified
that then they went to government valuer at Vikhroli and obtained
certificate regarding weight and value of those ornaments and
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then those ornaments came to be seized by him by recovery
panchnama Exhibit 14. Except suggestions reflecting that no such
confession statement came to be recorded by this witness and that
nothing came to be recovered at the instance of the revision
petitioner / accused no.1, nothing more is found in cross-
examination of the Investigator on this aspect.
16 In the matter of Modan Singh vs. State of Rajasthan
the Hon'ble Apex Court has observed that where the evidence of
the Investigating Officer, who recovered the material objects is
convincing, the evidence as to recovery need not be rejected on
the ground that seizure witnesses did not support the prosecution
version. Similar view is also expressed in Mohd.Aslam vs. State
of Maharashtra2. In Anter Singh vs. State of Rajasthan 3 it is
further held by the Hon'ble Apex Court that even if panch
witnesses turn hostile, which happens very often in criminal cases,
the evidence of the person who effected the recovery would not
stand vitiated.
1 (1978) SCC 435
2 (2001) 9 SCC 362
3 (2004) 10 SCC 657
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17 PW6 Arvind Vinerkar is a panch witness to the recovery.
His evidence also shows that on 16th December 2005 while in police
custody, the revision petitioner / accused no.1 had made a
confessional statement expressing his willingness to show the place
where the bag containing gold ornaments is kept. As deposed by
this witness, the panchnama Exhibit 13 was then prepared and then
the revision petitioner / accused no.1 took them near gate of Devnar
slaughter house. From the hole in the stone wall, he took out a bag
which contained three mangalsutras and five mangalsutra pendants.
As per version of this witness, then they returned to the police
station and thereafter went to the goldsmith named Mishrilal where
gold ornaments were weighed and valued. Then recovery
panchanama Exhibit 14 was then came to be prepared. PW6 Arvind
Vinerkar has identified one mangalsutra and five mangalsutra
pendants but could not identify remaining chain mangalsutras. In
cross-examination of this witness, it is brought on record that
another panch by name Raut was also present apart from Police
Inspector Baliram Kadam in the process of recovery. This witness
admitted that mangalsutras are available readily in the market.
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18 PW4 Ravindra Raut is another panch witness who
deposed on similar lines by stating that after confessional
statement, the revision petitioner / accused no.1 took them to
Mankhurd area and took out a bag by climbing on the wall. It
was containing gold ornaments and after calling a goldsmith on
the spot, these gold ornaments were weighed and then seized by
recovery panchnama Exhibit 14. He has not identified revision
petitioner / accused no.1, but identified the seized gold
ornaments. In cross-examination of this witness it is brought on
record that such gold ornaments are available in open market. In
his halfhearted cross-examination it is not elicited from him as to
which case is pending against him and in which case, whether
criminal or civil, he has deposed. This is the evidence regarding
recovery effected at the instance of the revision petitioner /
accused no.1.
19 PW7 Uttam Mishrilal Chaudhary is the owner of
Mangal Jewelers at Vikhroli who deposed that on 16 th December
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2005 police came and brought gold ornaments for valuation and
accordingly he valued them and issued certificates Exhibits 19 and
20. It is seen from the evidence of PW4 Ravindra Raut and PW6
Arvind Vinerkar - panch witnesses - that there is minor variation
in their version. PW4 Ravindra Raut has stated that goldsmith
was called on the spot whereas PW6 Arvind Vinerkar and PW11
Baliram Kadam has specifically stated that they had gone to the
goldsmith for weighing and valuing the recovered ornaments.
Name of the valuer goldsmith is stated to be Mishrilal whereas
name of the valuer is Uttam Mishrilal Chaudhary. PW6 Arvind
Vinerkar, though identified some of the recovered ornaments, was
not in a position to identify the remaining two other chain
mangalsutras. However, PW1 Rakesh Jain had identified seized
gold ornaments in the court. His evidence is to the effect that as
ornaments were having stamp of their firm as "SN" he is in a
position to identify those gold ornaments.
20 The question which falls for consideration is whether
with these discrepancies it can be said that the prosecution has
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proved recovery of looted ornaments at the instance of the
revision petitioner / accused no.1. In the case in hand, the
incident of robbery took place on 13th November 2005. Witnesses
have entered in the witness box after a gap of five years i.e. in the
year 2010 and 2011. Principles of appreciation of evidence can be
found in the matter of Bharwada Bhoginbhai Hirjibhai vs. State
of Gujarat 4. While deciding that matter, the Hon'ble Apex court
has categorically held that some concession on account of fading
memory because of long passage of time between the incident and
the actual deposition before the court is required to be given and
the prosecution case cannot be jettisoned for the reason of minor
inconsistencies and variations in the evidence of the prosecution
witnesses. What is relevant in the instant case is whether recovery
of looted ornaments was effected at the instance of the revision
petitioner / accused no.1 or not. Whether goldsmith was brought
on the spot for valuation or whether the valuation was done at his
shop, whether name of the goldsmith was Mishrilal or Uttam
Mishrilal Chaudhary, is of no consequence. PW1 Rakesh Jain is a
salesman dealing with sale of gold ornaments regularly. He has
4 AIR 1983 SUPREME COURT 753
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duly identified the recovered ornaments. Recovery of those articles
is proved at the instance of revision petitioner / accused no.1. It is
argued that recovery is from open place accessible to all and
sundry. However, even if the recovery is from compound wall of
Devnar slaughter house, evidence on record unerringly points out
that the revision petitioner / accused no.1 was having knowledge
about the place at which the looted gold ornaments were kept
concealed and it was he who recovered them. Hence, even if the
recovery was from open place, that by itself is not sufficient to
conclude that somebody else might have placed those gold
ornaments and the revision petitioner / accused no.1 might have
acquired knowledge about those gold ornaments subsequently.
Such is not the defence of the revision petitioner / accused no.1
nor such defence is fortified by putting such questions to panchas
and the Investigator. As such, the court below has rightly
concluded that some of the looted ornaments were recovered at
the instance of revision petitioner / accused no.1.
21 At this juncture, provisions of Section 114 of the
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Indian Evidence Act, 1872, are relevant. This is general section
dealing with presumption of fact. Presumption of facts are
inferences from certain facts drawn from the experience and
observations of human mind, the usage and habits and ordinary
course of human affair. This section provides that the court may
presume the existence of certain facts which it thinks likely to
have happened, regard being had to the common course of
natural evens, human conduct etc. Illustration (A) to Section 114
of the Indian Evidence Act, reads thus :
"The court may presume -
(a) that a man who is in possession of stolen goods
soon after the theft is either the thief or has
received the goods knowing them to be stolen,
unless he can account for his possession."
22 True it is, that the court has discretion, on facts of each
case, either to draw or not to draw the presumption in a particular
case, but in the case in hand, the necessary presumption which
follows because of absence of any explanation in respect of the
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recovery at his instance is that the revision petitioner / accused
no.1 must be one of the robber who have looted the recovered
gold ornaments from possession of the first informant. Statement
of the revision petitioner / accused no.1 recorded under Section
313 of the Code of Criminal Procedure is absolutely silent as to
how he was knowing about the place where the robbed ornaments
were found concealed. In this view of the matter, the conclusion
arrived at by the appellate court that the revision petitioner /
accused no.1 had committed robbery by causing hurt to the first
informant by acting in league with co-accused cannot be faulted
with.
23 The appellate court has accepted that portion of
evidence of prosecution witnesses cross-examined by it, which
supported the case of the prosecution. This approach also cannot
be faulted with. It is settled legal proposition that evidence of a
prosecution witness cannot be rejected in toto merely because the
prosecution has chosen to treat such witness as a hostile witness.
Valuable reference can be had to this proposition from the
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judgment of the Hon'ble Apex Court in the matter of Rameshbhai
Mohanbhai Koli Vs. State of Gujarat5.
24 The offence punishable under Section 394 of the IPC is
warranting imprisonment which may be up to term for life or
which may extend to 10 years. In the case in hand, learned trial
Magistrate had imposed rigorous imprisonment for a period of 3
years for the offence punishable under Section 394 read with 34
of the IPC held to be proved against the revision petitioner /
accused no.1. As such, it cannot be said that the principle of
proportionality of punishment was not kept in mind by the
learned trial court or that the appellate court erred in confirming
the sentence on this count.
25 In the result, the revision petition fails, and therefore,
the order :
i) The revision petition is dismissed.
Consequently the Criminal Application No.134 of 2017 also stands
dismissed.
5 2010 ALL MR (Cri) 3868 (S.C.)
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(A. M. BADAR, J.)
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