Bombay High Court
Ramesh Narsing Bhosale vs The State Of Maharashtra on 18 August, 2017
Bench: A.M. Badar
203-APPEALS-386-2012-975-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.386 OF 2012
ANAND ANIL RAIMOKAR )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA & ORS. )...RESPONDENTS
Mr.Prasanna K. Shahane h/f. Mr.Milind Deshmukh, Advocate for
the Appellant.
Mr.Vinod Chate, APP for the Respondent - State.
WITH
CRIMINAL APPEAL NO.975 OF 2015
RAMESH NARSING BHOSALE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Ganesh Bhujbal, Advocate for the Appellant.
Mr.Vinod Chate, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 16th AUGUST 2017 &
18th AUGUST 2017
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ORAL JUDGMENT :
1 Criminal Appeal No.975 of 2015 is by the appellant
who was accused no.1 before the learned trial court where as
Criminal Appeal No.386 of 2012 is by the appellant who was
original accused no.3 before the learned trial court. It is seen that,
though Sessions case bearing No.573 of 2010 arising out of Crime
No.92 of 2010 registered against these appellants and other co-
accused was heard by the learned trial court, at the stage of
recording statement under Section 313 of the Code of Criminal
Procedure, the appellant / accused no.1 Ramesh Bhosale
absconded, and therefore, initially said Sessions case bearing
no.573 of 2010 came to be decided on 24 th January 2012 by the
learned Additional Sessions Judge, Pune, by separating trial of
appellant / accused no.1 Ramesh Bhosale. While deciding the
said sessions case on 24th January 2012, the appellant / accused
no.3 Anand Raimokar came to be convicted of the offence
punishable under Section 411 of Indian Penal Code (IPC) and he
is sentenced to suffer rigorous imprisonment for 3 years apart
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from direction to pay fine of Rs.6,000/- and in default, to undergo
further simple imprisonment for 3 months. Hence, this appeal
bearing no.386 of 2012 by convicted appellant / accused no.3
Anand Raimokar. Subsequently, appellant / accused no.1 Ramesh
Bhosale came to be apprehended and after recording his
statement under Section 313 of the Code of Criminal Procedure
(Cr.P.C.) and after hearing the parties, the learned Additional
Sessions Judge, vide his judgment and order dated 20 th August
2015 in the said Sessions Case No.573 of 2010, has been pleased
to convict the appellant / accused no.1 Ramesh Bhosale of the
offence punishable under Section 394 of the IPC and he is
sentenced to suffer rigorous imprisonment for 6 years and to pay
fine of Rs.2,000/-, in default, to undergo simple imprisonment for
1 month. That is how Criminal Appeal bearing no.975 of 2015
came to be filed by him challenging his conviction and sentence.
As evidence in the matter is common, though judgments are
delivered on different dates, both these appeals are being decided
by this common judgment.
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2 Briefly stated, facts leading to the institution of the
present appeals at the instance of appellant / accused no.1
Ramesh Bhosale and appellant / accused no.3 Anand Raimokar
are thus :
(a) First informant / PW1 Vandana Ugale is resident of
Gujarmala in Shirur Taluka of Pune District. Her family comprises
of her husband - PW2 Daulat Ugale and two sons by name Aadesh
and Rushikesh.
(b) After having dinner on 17th March 2010, the first informant
PW1 Vandana Ugale and her family members slept at about 10.30
p.m. The first informant / PW1 Vandana Ugale woke up at about
2 a.m. in the night intervening 17 th March 2010 and 18th March
2010 to see one person standing near the cupboard, whereas
another waiting at the door of the house. Being frightened, she
cried loudly awakening her family members. One of the culprits
took keys of the locker from her husband on the point of knife.
The robbers then opened locker of the cupboard and took out
money and ear rings. Thereafter they had forcibly taken
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mangalsutra (mini ganthan) from the first informant PW1
Vandana Ugale and also snatched her mobile phone. While on
their way out, as PW2 Daulat Ugale followed them, robbers
assaulted him by means of iron rod. When PW1 Vandana Ugale
attempted to save her husband, she was also assaulted. After
looting gold ornaments, mobile phone and cash amounting to
Rs.5,000/-, robbers fled from the spot.
(c) PW1 Vandana Ugale then accompanied by her husband PW2
Daulat Ugale immediately went to Police Station Shirur and
lodged report Exhibit 61, at about 3.45 a.m. of 18 th March 2010.
Accordingly, Crime No.92 of 2010 for the offence punishable
under Section 394 of the IPC came to be registered against
unknown robbers. The investigation was then set in motion.
During the course of investigation, with the help of PW4 Atmaram
Dighe - panch witness, spot of the incident came to be inspected
and spot panchnama Exhibit 70 was recorded. PW1 Vandana
Ugale and her husband PW2 Daulat Ugale were sent to Rural
hospital at Shirur where they were treated by PW5 Dr.Kailas Batte.
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(d) The Investigating Officer got information that appellant /
accused no.1 Ramesh Bhosale is arrested in Crime No.85 of 2010
for offence punishable under Section 394 of the IPC, and
therefore, under orders of learned JMFC, Shirur, he got custody of
the appellant / accused no.1 Ramesh Bhosale transferred in
Crime No.92 of 2010 and accordingly, he came to be arrested on
1st May 2010. Co-accused Tanhya Kale was reportedly arrested in
Crime No.64 of 2009 for the offence punishable under Section
302 of the IPC by Police Station Shrigonda and accordingly, the
Investigator sought his transfer in Crime No.92 of 2010 and
arrested him on 7th May 2010. On the basis of voluntary
disclosure statement of co-accused Tanhya, gold ornaments
allegedly looted in the crime by accused persons came to be seized
on 10th May 2010.
(e) It is the case of prosecution that appellant / accused no.3
Anand Raimokar is habitual receiver of the stolen property and he
had purchased the same from co-accused Tanhya Kale. On
discovery of this fact from confessional statement of co-accused
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Tanhya Kale, looted gold ornaments came to be seized from
appellant / accused no.3 Anand Raimokar. He came to be
arrested. On completion of routine investigation, accused persons
were charge-sheeted.
(f) The learned Additional Sessions Judge, Pune, initially
framed and explained charge for the offence punishable under
Section 395 of the IPC to appellant / accused no.1 Ramesh
Bhosale and co-accused except appellant / accused no.3 Anand
Raimokar, against whom the charge for the offence punishable
under Section 412 of the IPC came to be framed and explained.
Subsequently, additional charge for the offence punishable under
Section 397 of the IPC came to be framed and explained to
accused persons including appellant / accused no.1 Ramesh
Bhosale but excluding appellant / accused no.3 Anand Raimokar.
Accused persons pleaded not guilty and claimed trial.
(g) In order to bring home the guilt to appellants / accused, the
prosecution has examined in all eleven witnesses. First Informant
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Vandana Ugale is examined as PW1. The First Information Report
(FIR) lodged by her is at Exhibit 61. Her husband Daulat is
examined as PW2. Ramesh Chaudhary - a panch witness to
memorandum statement and recovery panchnama - Exhibits 66
and 67 respectively is examined as PW3. Atmaram Dighe - a
panch witness to the spot panchnama is examined as PW4 and the
spot panchnama is at Exhibit 70. Medical Officer of Rural
hospital, Shirur, Dr.Kailas Batte, is examined as PW5 and reports
of medical examination of PW1 Vandana Ugale and PW2 Daulat
Ugale are at Exhibits 74 and 75 respectively. Rushikesh Shelke,
Naib Tahsildar, had conducted the Test Identification Parade (TIP)
for getting accused persons identified by PW1 Vandana Ugale and
PW2 Daulat Ugale on 3rd August 2010. He is examined as PW6.
Memorandum of the TIP is at Exhibit 78. PW7 Ramesh Kawade is
a panch witness to the TIP. PW8 Bapu Shinde is another panch
witness to the TIP conducted by PW6 Rushikesh Shelke. Vishnu
Pawar, P.I. Of Shirur Police Station, is examined as PW9. He had
investigated the crime in question. PW10 Bajirao Hargude was
the Duty Officer with Shirur Police Station, who had registered the
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FIR lodged by PW1 Vandana Ugale. PW11 Ashok Wandekar, P.I.,
had conducted initial investigation of the crime in question by
visiting the spot and drawing the spot panchnama.
(h) Defence of accused persons was that of total denial.
(i) After hearing the parties, by impugned judgments and
orders, the learned trial court was pleased to hold that the
prosecution has successfully proved guilt of appellant / accused
no.1 Ramesh Bhosale for the offence punishable under Section
394 of the IPC and that of appellant / accused no.3 Anand
Raimokar for the offence punishable under Section 411 of the IPC
and accordingly they are sentenced, as indicated in the opening
paragraph of this judgment.
3 I have heard the learned advocates appearing the
appellants / accused. The learned advocate appearing for
appellant / accused no.1 Ramesh Bhosale vehemently argued that
evidence of the First Informant as well as the FIR lodged by her
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shows that robbers had covered their faces with scarf and as such,
there was no possibility of their identification by prosecution
witnesses in the TIP. He further argued that description of
appellant / accused no.1 Ramesh Bhosale and that of accused
no.2 Tanhya Kale was different, and therefore, PW6 Rushikesh
Shelke ought not to have conducted their TIP together. He further
argued that nothing came to be recovered from appellant /
accused no.1 Ramesh Bhosale and only on the basis of
confessional statement of accused no.2 Tanhya Kale, he came to
be arrested.
4 The learned advocate appearing for appellant /
accused no.3 Anand Raimokar argued that though prosecution
witnesses have claimed to have identified looted articles, but the
prosecution has not collected ornaments of similar nature to
confront prosecution witnesses during dock identification of
seized ornaments. In his submission, similar ornaments ought to
have been produced before the trial court and from amongst
several such ornaments of similar nature, prosecution witnesses
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should have identified looted ornaments. On this count, he relied
on the judgment of learned Single Judge of Allahabad High Court
in the matter of Subhan and Others vs. Rex1. He further argued
that seized articles were grouped in "A", "B" and "C" category. The
prosecution witnesses must have been confronted with all seized
articles in order to enable them to identify looted articles. He
further argued that grouping of ornaments is not explained by
prosecution witnesses or the Investigating Officer. Common
recovery panchnama came to be prepared by the Investigator with
the help of PW3 Ramesh Chaudhary and the appellant / accused
no.3 is falsely implicated. The learned advocate further argued
that there can be several such ornaments which may be available
in the market and therefore, identification of the ornaments by
prosecution witnesses is of no consequence.
5 As against this, the learned APP contended that
memorandum statement of co-accused Tanhya Kale shows
involvement of appellant / accused no.1 Ramesh Bhosale in the
crime in question. He further argued that in the TIP conducted by
1 1949 DGLaw (All) 245
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PW6 Rushikesh Shelke, the appellant / accused no.1 Ramesh
Bhosale is identified by PW1 Vandana Ugale and her husband
PW2 Daulat Ugale. The learned APP placed reliance on the
judgment of the Madras High Court in the matter of S.H.O. vs.
Subramani @ Jeeva @ Kullajeeva 2 as well as judgment of
Hon'ble Apex Court in the matter of State of Maharashtra vs.
Sukhdev Singh3 to submit that dock identification is a substantive
evidence and evidence of TIP is a corroborative evidence, which is
admissible in law. With the aid of these two judgments, the
learned APP submitted that identity of appellant / accused no.1
Ramesh Bhosale as one of the culprits is duly proved by the
prosecution, and as such, he is rightly convicted. The learned APP
further supported the impugned judgment and order of conviction
of appellant / accused no.3 Anand Raimokar.
6 I have carefully considered the rival submissions and
also perused record and proceedings including oral as well as
documentary evidence adduced by the prosecution.
2 Criminal Appeal No.769 of 1996 decided on 2nd February 2005
3 (1992) 3 Supreme Court Cases 700
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7 At the outset, let us examine whether there was
robbery at the house of First Informant PW1 Vandana Ugale in the
night intervening 17th March 2010 and 18th March 2010, during
the course of which, cash, gold ornaments and mobile phone came
to be looted. On this aspect, evidence of victims of crime, i.e.,
PW1 Vandana Ugale and PW2 Daulat Ugale is of great importance.
They both unanimously deposed that on 17th March 2010, after
having dinner, they slept in their house situated at Gujarmala area
of Shirur Taluka, in Pune District. Their congruous evidence
shows that in the night intervening 17 th March 2010 and 18th
March 2010, at about 2.00 a.m. to 2.30 a.m., they saw two
persons in their house holding a knife and an iron bar. It is in
evidence of PW1 Vandana Ugale and PW2 Daulat Ugale that by
threatening them at the point of knife, robbers had taken key of
the cupboard from them. It was then opened and currency notes
amounting to Rs.5,000/- and a set of ear rings was taken
therefrom by robbers. PW1 Vandana Ugale testified and PW2
Daulat Ugale corroborated that thereafter robbers had snatched
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the mangalsutra (mini ganthan) as well as mobile phone from
PW1 Vandana Ugale. When they were going out, PW2 Daulat
Ugale followed them which resulted in assault on him by means of
an iron rod. PW1 Vandana Ugale also deposed the same fact and
stated that when she went to save her husband, she was also
assaulted by robbers. As per version of PW1 Vandana Ugale, there
were three to four persons, who indulged in robbery at her house.
8 As seen from evidence of PW1 Vandana Ugale, after
the incident, she accompanied by her husband PW2 Daulat Ugale,
had been to Shirur Police Station immediately to lodge report
Exhibit 61. Thereafter, they were sent for medical treatment to
Rural hospital at Shirur.
9 Cross-examination of PW1 Vandana Ugale reveals that
she has disclosed to police that robbers had wrapped their face by
handkerchief and at the time of the incident, all lamps in the
house except zero bulb were switched off. In her cross-
examination, she further stated that two robbers were inside the
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house whereas three were outside the house. She admitted that
she was not called at the police station to identify articles. She
deposed that mangalsutra (mini ganthan) taken by robbers was
given to her by her father, after her marriage and it was not
having any identification mark.
10 In the cross-examination, PW2 Daulat Ugale has stated
that two persons had entered in his house, out of which, one had
covered his face by handkerchief. He further stated that he had
not seen seized articles after arrest of accused persons and there
was no identification mark on those articles.
11 In order to ascertain whether there was incident of
robbery at the house of these two prosecution witnesses, let us
examine whether there evidence is corroborated by any other
evidence on record. The first piece of corroborative evidence is
FIR lodged by PW1 Vandana Ugale with promptitude. It has come
on record from her cross-examination that she lodged the same at
3.30 a.m. of the night intervening 17th March 2010 and 18th March
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2010. The incident took place at about 2.00 a.m. of 18 th March
2010. Thus, within a short span of time, the FIR came to be
lodged by PW1 Vandana Ugale, which has resulted in registration
of Crime No.92 of 2010 against unknown accused persons. The
FIR lodged with promptitude shows that there was dacoity at the
house of prosecution witnesses PW1 Vandana Ugale and PW2
Daulat Ugale during that night and averments in the FIR
corroborate version of PW1 Vandana Ugale.
12 PW5 Dr.Kailas Batte had medically examined PW1
Vandana Ugale and PW2 Daulat Ugale on 18 th March 2010 itself
and found that both of them were having injuries on their person
caused by hard and blunt object. Evidence of these official
witnesses is corroborated by contemporaneous certificates at
Exhibits 74 and 75 respectively issued by him. This evidence of
PW5 Dr.Kailas Batte corroborates version of PW1 Vandana Ugale
and PW2 Daulat Ugale that there was robbery at their house
during the course of which they were assaulted by iron rod.
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13 Soon after the incident, the spot of the incident came
to be visited by PW4 Atmaram Dighe - panch witness with the
Investigator - PW11 P.I. Ashok Wandekar. Evidence of both these
witnesses corroborated by spot panchnama shows that there was
blood on the spot. Iron Almirah and its locker was found opened
during the course of spot panchnama. Articles in the house were
found in disorderly manner. Evidence of PW4 Atmaram Dighe
coupled with the averments in the spot panchnama shows that
bolt of the door of house of PW1 Vandana Ugale was found bent
and central latch broken.
14 The evidence as mentioned and discussed supra is
sufficient to hold that there was robbery at the house of PW1
Vandana Ugale and PW2 Daulat Ugale in the night intervening
17th March 2010 and 18th March 2010. Now let us examine
whether the prosecution is successful in proving that it was
appellant / accused no.1 Ramesh Bhosale with the aid of co-
accused, who had committed that robbery during the course of
which, hurt was caused to PW1 Vandana Ugale and PW2 Daulat
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Ugale and whether appellant / accused no.3 Anand Raimokar had
dishonestly received the extorted property in this robbery. In
order to establish these facts, the prosecution has heavily relied on
evidence of victims of the crime namely PW1 Vandana Ugale and
PW2 Daulat Ugale, apart from evidence of recovery of gold
ornaments at the instance of co-accused Tanhya Kale, so also, that
of TIP conducted by PW6 Rushikesh Shelke. Let us, therefore,
ascertain whether identity of appellant / accused no.1 Ramesh
Bhosale as one of the robbers is established by cogent and
trustworthy evidence and whether it is proved that appellant /
accused no.3 has committed the offence punishable under Section
411 of the IPC.
15 While in the witness box, PW1 Vandana Ugale has
stated that she can identify robbers and accordingly she has
identified appellant / accused no.1 Ramesh Bhosale before the
court. Similarly, she has deposed that during the identification
parade conducted by the Investigator, she had identified this
accused. So far as identification of gold ornaments robbed from
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her is concerned, while in the witness box, sealed packet
containing seized articles came to be opened by the learned trial
Judge and Article A i.e. mangalsutra (mini ganthan) weighing 15
gms. and one pair of ear rings was shown to PW1 Vandana Ugale.
Her evidence shows that she identified those articles by stating
that those were stolen from her in the incident dated 18 th March
2010. The material elicited from her cross-examination on this
aspect is already stated in foregoing paragraph. So far as PW2
Daulat Ugale is concerned, while in the dock, this witness
identified appellant / accused no.1 Ramesh Bhosale. He had also
identified co-accused Tanhya Kale. He was shown Article A i.e.
mangalsutra (mini ganthan) and a set of ear rings and this witness
had deposed that these are the same articles which were stolen by
the thieves from his house.
16 The learned advocate for the appellant / accused no.3
Anand Raimokar had questioned the identification of gold
ornaments by PW1 Vandana Ugale and PW2 Daulat Ugale while in
the dock for the first time by contending that those articles were
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not mixed with similar articles in order to enable prosecution
witnesses to identify those articles. This court is not oblivious of
the fact that identified gold ornaments were not having
identification marks on them as admitted by PW1 Vandana Ugale
and PW2 Daulat Ugale. There is no rule of law that seized
ornaments must be mixed with several similar ornaments for
enabling the prosecution witnesses to identify their ornaments.
On the contrary in the matter of Earabhadrappa vs. State of
Karnataka4 the Hon'ble Apex Court has noted that it is a matter of
common knowledge that ladies have an uncanny sense of
identifying their own belongings. In the case in hand, PW1
Vandana Ugale was owner of mangalsutra (mini ganthan) and a
set or ear rings which was stolen from her house in the night of
the incident. She has identified those articles while in the witness
box, though these were not having any special identification mark.
The mangalsutra (mini ganthan) shown to PW1 Vandana Ugale
was an ornament of her daily use and her evidence shows that it
was snatched from her person by robbers. Considering
observations of the Hon'ble Apex Court in the matter of
4 AIR 1983 SC 446
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Earabhadrappa (supra) it cannot be said that identification of
seized ornaments by PW1 Vandana Ugale and her husband PW2
Daulat Ugale is in any manner doubtful.
17 Gold ornaments belonging to PW1 Vandana Ugale
were seized on the basis of confessional statement of co-accused
Tanhya Kale. That confession came to be recorded in presence of
PW3 Ramesh Chaudhary - panch witness, by PW9 Vishnu Pawar,
P.I. Of Shirur Police Station. Evidence of PW3 Ramesh Chaudhary
and PW9 P.I. Vishnu Pawar unanimously shows that on 10 th May
2010 co-accused Tanhya Kale made a disclosure statement to the
effect that he will show the person and place to whom and where
the gold ornaments were sold out by him. PW3 Ramesh
Chaudhary, co-panch and police team accompanied by co-accused
Tanhya Kale as seem from evidence of both these witnesses
proceeded to Belwandi and co-accused Tanhya Kale then pointed
out the appellant / accused no.3 Anant Raimokar. Evidence of
these two witnesses shows that then appellant / accused no.3
Anand Raimokar produced gold ornaments which came to be
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seized. Evidence of PW3 Ramesh Chaudhary and PW9 P.I. Vishnu
Pawar proves memorandum of statement and consequent recovery
panchnama which are at Exhibits 66 and 67 respectively.
Ultimately, looted ornaments are identified to be belonging to
PW1 Vandana Ugale by her as well as her husband PW2 Daulat
Ugale. As such, this recovery becomes a piece of relevant
evidence in the matter.
18 Now let us examine whether the evidence of
prosecution establishes that appellant / accused no.1 Ramesh
Bhosale was one of the robbers who committed robbery. For this
purpose the prosecution heavily relied on dock identification of
appellant / accused no.1 Ramesh Bhosale as well as evidence of
TIP wherein this appellant / accused is stated to have been
identified by PW1 Vandana Ugale and her husband PW2 Daulat
Ugale.
19 Fate of the prosecution case, as such, to a large extent
hinges on identification of appellant /accused no.1 Ramesh
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Bhosale by prosecution witnesses PW1 Vandana Ugale and PW2
Daulat Ugale in TIP conducted by PW6 Rushikesh Shelke on 3 rd
August 2010, so also on their evidence regarding his identification
before the trial Court. Evidence of identity is required to be
scrutinized giving all benefits of doubts to the accused, but if after
thorough scrutiny, there appears to be nothing on record to
suspect the testimony of identifying witnesses, the Court can base
conviction on such evidence alone. The object of TIP is to
ascertain ability of the prosecution witness to recognize the
suspect and to eliminate the risk of erroneous identification. The
evidence of Test Identification Parade lends corroboration to the
evidence regarding dock identification. It is well settled that the
TIP does not constitute substantive evidence. These parades are
essentially governed by Section 162 of the Cr.P.C. What weight
should be given to such evidence is to be determined by the court
considering all circumstances of the particular case before it. In
order to eliminate possibility of the accused being shown to
prosecution witnesses prior to the TIP, it is desirable to conduct the
TIP immediately. The learned APP has relied upon the Judgment
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in the matter of Subramani @ Jeeva @ Kullajeeva (supra)
decided by the Madras High Court in order to demonstrate that
evidence adduced by the prosecution in respect of identity is
reliable and trustworthy. In paragraphs 14 and 15 of the said
Judgment, the Madras High Court relying on Judgment of the
Hon'ble Apex Court has observed thus :
"14 The learned trial Judge failed to note the
law laid down by the Supreme Court, in DANA YADAV
v. STATE OF BIHAR [(2002) 7 SCC 295]. The Supreme
Court has held that it is well settled that failure to
hold test identification parade, which should be held
with reasonable dispatch, does not make the evidence
of identification in court inadmissible, rather the same
is very much admissible in law. The Supreme Court,
posing a question as to the probative value of the test
identification parade, answered by stating that
identification of an accused for the first time in court
by a witness should not be relied upon, the same
being from its very nature, inherently of a weak
character, unless it is corroborated by his previous
identification in the test identification parade or any
other evidence. The purpose of test identification
parade is to test the observation, grasp, memory,
capacity to recapitulate what a witness has seen
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earlier, strength or trustworthiness of the evidence of
identification of an accused and to ascertain if it can
be used as reliable corroborative evidence of the
witness identifying the accused at his trial in court.
The Supreme Court further held that if a witness
identifies the accused in court for the first time, the
probative value of such uncorroborated evidence
becomes minimal so much so that it becomes, as a rule
of prudence and not law, unsafe to rely on such a
piece of evidence and further, after referring to an
earlier judgment of the Supreme Court in STATE OF
MAHARASHTRA v. SUKHDEV SINGH [(1992) 3 SCC
700], held that if a witness had any particular reason
to remember about the identity of an accused, in that
event, the case can be brought under the exception
and upon solitary evidence of identification of an
accused in court for the first time, conviction can be
based. The Supreme Court also referred to the case of
RONNY [(1998) 3 SCC 625], wherein it has laid down
that where the witness had a chance to interact with
the accused or that in a case where the witness had an
opportunity to notice the distinctive features of the
accused which lends assurance to his testimony in
court, the evidence of identification in court for the
first time by such a witness cannot be thrown away
merely because no test identification parade was held.
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15 In the above judgment, the Supreme Court,
quoted with approval, the following passages from its
earlier judgment in RAMANBHAI NARANBHAI PATEL
[(2000) 1 SCC 358]:-
"It, therefore, cannot be held, as tried to be
submitted by learned counsel for the appellants,
that in the absence of a test identification parade,
the evidence of an eyewitness identifying the
accused would become inadmissible or totally
useless; whether the evidence deserves any
credence or not would always depend on the facts
and circumstances of each case."
"the fact remains that these eyewitnesses were
seriously injured and they could have easily seen
the faces of the persons assaulting them and their
appearance and identity would well remain
imprinted in their minds especially when they
were assaulted in broad daylight."
and ultimately held that conviction of the accused was
upheld on the basis of solitary evidence of
identification by a witness for the first time in court."
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20 Similarly in the matter of Sukhdev Singh supra relied
by the learned APP, the Hon'ble Apex Court has cautioned the trial
court that great care must be exercised before acting on an
belated identification in the court by a witness who cannot be said
to be an independent and unbiased person. The Hon'ble Apex
Court has held that it is not safe to place implicit reliance on the
evidence of witnesses who had just a fleeting glimpse of the
person identified or who had no particular reason to remember
the concerned person in the case of total strangers. The Hon'ble
Apex Court has reiterated the TIP if held promptly and after
taking necessary precaution to ensure its credibility would lend
the required assurance which the court ordinarily seeks to act on
it. Let us examine the evidence of the prosecution keeping in
mind these principles so far as the aspect of establishing identity
of the accused is concerned.
21 Though PW1 Vandana Ugale - the First Informant in
her chief-examination while in dock has identified appellant /
accused no.1 Ramesh Bhosale and has also stated that she
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identified this accused in the TIP, her evidence is conspicuously
silent about identifying features or facial features of appellant /
accused no.1 Ramesh Bhosale. The FIR lodged by her soon after
the incident is also not disclosing any identifying features or facial
features, so also description of either appellant / accused no.1
Ramesh Bhosale or his associates. The FIR lodged with
promptitude, on the contrary, depicts that one of the robbers was
having height of 5 feet and he had covered his face by
handkerchief, whereas the another was having height of 5½ feet
with face covered by a scarf. The FIR discloses that one of the
robbers was wearing bluish coloured jerking whereas the another
was wearing black coloured jerking. Except this, no description of
robbers is finding place in the FIR. In oral evidence of PW1
Vandana Ugale, height or clothes or robbers is not finding its
place. Rather, PW1 Vandana Ugale has not whispered a word
about covering of faces by scarf by robbers, who entered her
house in the night of the incident. She has suppressed this aspect,
though the same is finding its place in the FIR lodged by her. This
conduct of PW1 Vandana Ugale questions truthfulness of her
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evidence regarding identify of robbers. In her cross-examination,
this witness has accepted the fact that she had disclosed to police
while recording her statement that robbers had wrapped their face
by handkerchief. Another eye witness PW2 Daulat Ugale, who is
husband of PW1 Vandana Ugale, has also failed to describe
features of robbers while in the witness box. PW2 Daulat Ugale
had not disclosed identifying or facial features of any of the
robbers in his ocular evidence. He only stated that he identified
appellant / accused no.1 Ramesh Bhosale and co-accused Tanhya
Kale. PW2 Daulat Ugale further deposed that he had identified
both of them during identification parade conducted at Yerwada
prison. It is worthwhile to note that neither PW1 Vandana Ugale
nor her husband PW2 Daulat Ugale while in the witness box had
ascribed any particular role to appellant / accused no.1 Ramesh
Bhosale and their evidence does not show that they had ascribed
any particular role to co-accused standing trial. PW2 Daulat
Ugale, in his cross-examination, has admitted that two persons
had entered in his house, out of which one had covered his face by
handkerchief. Who amongst those two persons had covered his
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face with handkerchief and who was the other, who had not
covered the face by handkerchief, is also not described by PW2
Daulat Ugale in his evidence before the court. Identification of
accused persons as such, by prosecution witnesses seems to be
mechanical and vague. Had prosecution witnesses really
witnessed robbers while in the act, which continued for sometime
and was constituting different transactions such as threatening,
extortion, assault, then they could have actually ascribed role
played by each accused during the course of robbery at their
house. Evidence of these two prosecution witnesses is totally
scanty on this aspect.
22 Now let us see whether in the incident which allegedly
took place at about 2 a.m. - 2.30 a.m. of night intervening 17 th
March 2010 and 18th March 2010, whether sufficient light was
available in order to have a full glimpse of robbers, in order to
enable the prosecution witnesses to identify them either in the TIP
or before the court. PW1 Vandana Ugale and PW2 Daulat Ugale
are congruously deposing that after having dinner on 17th March
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2010, they as well as their family members slept. There is no
positive evidence by both these prosecution witnesses that they
slept by keeping electric bulbs in their house in switch on position.
In cross-examination of PW1 Vandana Ugale, the defence has
brought on record that during that night, all lamps in the house
were switched off except zero power bulb. PW2 Daulat Ugale is
not giving any positive evidence in respect of availability of light
at the time of the incident so as to enable him to see robbers and
then to remember them. This aspect coupled with the fact that
the FIR lodged with promptitude shows that two robbers had
covered their faces by scarf and admission by PW2 Daulat Ugale
that one of the persons who entered in their house had covered
his face with a handkerchief, makes the evidence of prosecution
witnesses regarding dock identification doubtful and
untrustworthy, the benefit of which naturally goes to the defence,
the doubt being a reasonable one.
23 Now let us scan the evidence of prosecution so far as
TIP conducted by PW6 Rushikesh Shelke is concerned. The
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appellant / accused no.1 Ramesh Bhosale came to be arrested in
this crime on 1st May 2010 by Shirur Police Station. He was
earlier arrested in Crime No.85 of 2010. The TIP was conducted
on 3rd August 2010 i.e. after a period of more than three months.
Section 167 of the Cr.P.C. mandates that arrested accused needs to
be produced before the concerned Magistrate periodically in order
to seek his remand which cannot be more than fifteen days on one
occasion. This implies that appellant / accused no.1 must have
been produced before the learned Magistrate periodically for
seeking his remand by the Investigator. In order to eliminate the
accused being seen by prosecution witnesses, it is trite law that
the TIP should be conducted within reasonable dispatch. In the
case in hand, the Investigator took time of more than three
months for conducting the TIP. Accused / robbers were certainly
strangers to the prosecution witnesses. Evidence on record
indicates that all of them had covered their faces with scarf at the
time of the incident. After arrest of appellant / accused no.1
Ramesh Bhosale, he must have been certainly kept at the Police
Station and thereafter he must have been taken to the court of the
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Judicial Magistrate for seeking his remand. The TIP is certainly
conducted belatedly. If the prosecution witnesses had an
opportunity to see the accused prior to the TIP, then no
importance can be attached to the TIP. It is enough if the accused
brings on record cogent circumstances showing that he was or he
could have been shown to the prosecution witnesses while he was
in police custody or was produced before the court for the purpose
of remand, then evidence regarding TIP loses its importance. In
the case in hand, there is no positive evidence forthcoming from
the side of the prosecution that the Investigator had taken every
care to see that the prosecution witnesses were not in a position to
see the appellant / accused no.1 Ramesh Bhosale after his arrest
and at the time of seeking his periodical remand after his arrest
and prior to conducting the TIP. A reasonable doubt lurks in the
judicial mind that there was ample opportunity to prosecution
witnesses to see the appellant / accused no.1 Ramesh Bhosale
during the period of three months after his arrest on several
occasions. In this view of the matter, evidence regarding TIP held
by the prosecution after three months of arrest of the appellant /
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accused no.1 Ramesh Bhosale does not seem to be trustworthy
and reliable. As seen from the evidence of PW1 Vandana and her
husband PW2 Daulat, robbers had covered their faces with
handkerchief. In the result, as evidence regarding identity of the
appellant / accused no.1 Ramesh Bhosale is found to be suspect,
the benefit of doubt needs to be given to appellant / accused no.1
Ramesh Bhosale.
24 Now let us examine whether the charge for the offence
punishable under Section 411 of the IPC can be held to be proved
against the appellant / accused no.3 Anand Raimokar. Section
411 of the IPC reads thus :
Section 411 - Dishonestly receiving stolen
property -- Whoever dishonestly receives or retains
any stolen property, knowing or having reason to
believe the same to be stolen property, shall be
punished with imprisonment of either description
for a term which may extend to three years, or with
fine, or with both.
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25 Bare perusal of this penal section makes it clear that
the prosecution must establish that the accused had reason to
believe that the property which he receives is a stolen property.
The word "believe" used in Section 411 of the IPC indicates that it
is necessary to point out that the circumstances were such that a
reasonable man must have felt convinced that the property in
which he is dealing is a stolen property. Even if it is established
that the accused suspected that the property might have been a
stolen property, he is not liable to be guilty of the offence
punishable under Section 411 of the IPC. Carelessness on the part
of the accused does not make him liable for penal consequences of
Section 411 of the IPC. In the case in hand, it is the stand of the
prosecution that appellant / accused no.3 Anand Raimokar is a
goldsmith dealing in sale and purchase of gold ornaments, having
a jewellery shop, named and styled as Shweta Jewellers. This
implies that he must be purchasing and selling out gold ornaments
and at the most one may infer that he was negligent in purchasing
gold ornaments from the accused persons but it cannot be said
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that he had reason to believe that the articles purchased by him
was stolen property. As such, conviction of appellant / accused
no.3 Anand Raimokar for the offence punishable under Section
411 of the IPC must fail.
26 In the result, the following order :
i) Criminal Appeal No.386 of 2012 and Criminal
Appeal No.975 of 2015 are allowed.
ii) The impugned judgment and order passed by the
learned Additional Sessions Judge, Pune, in
Sessions CaseNo.573 of 2010 on 24th January
2012 so far as it relates to convicting appellant /
accused no.3 Anand Raimokar for the offence
punishable under Section 411 of the IPC and
sentencing him to suffer rigorous imprisonment
for 3 years and directing him to pay fine of
Rs.6,000/- and in default, to undergo further
simple imprisonment for 3 months, is quashed and
set aside.
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iii)The appellant / accused no.3 Anand Raimokar is
acquitted of the offence punishable under Section
411 of the IPC.
iv) The impugned judgment and order passed by the
learned Additional Sessions Judge, Pune, in
Sessions CaseNo.573 of 2010 on 20th August
2015 so far as it relates to convicting the
appellant / accused no.1 Ramesh Bhosale of the
offence punishable under Section 394 of the IPC
and sentencing him to suffer rigorous
imprisonment for 6 years and directing him to
pay fine of Rs.2,000/- and in default to undergo
further simple imprisonment for 1 month, is
quashed and set aside.
v) The appellant / accused no.1 Ramesh Bhosale is
acquitted of the offence punishable under
Section 394 of the IPC.
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vi) Both appellants / accused be released forthwith
from the prison, if not required in any other
case.
vii) Fine amount, if any, paid by them, be refunded
to them.
27 In view of disposal of Criminal Appeal No.975 of 2015,
Criminal Application No.351 of 2016 stands disposed of.
(A. M. BADAR, J.)
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