Bombay High Court

Navnath Santaram Darde And Ors vs The State Of Maharashtra on 22 December, 2017

Bench: P.R. Bora

                                          1               Cri. Appeal 520/2001

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO.520 OF 2001

  1.       Navnath S/o. Santaram Barde
           Age: 25 years, Occ.:Labour,
           R/o. Balewadi, Tq. Ashti,
           Dist. Beed

  2.       Bhimrao S/o. Eknath More,

           (Appeal stood abated against 
           Appellant No.2 as per Hon'ble 
           Court's Order dated 08/06/2016.)

  3.       Balu @ Nigro S/o. Namdeo Mali,

           (Appellant No.3 has undergone
            the substantive sentence)                     ...APPELLANTS

                               VERSUS

  .        The State of Maharashtra
                                           ...RESPONDENT
                                        -----
  Mr.S.S.Jadhavar, Advocate for Appellants;
  Mr.S.P.Tiwari, APP, for Respondent-State.
                                        -----
                                   CORAM :  P.R.BORA,J.

  RESERVED ON:   22nd December,2017
  PRONOUNCED ON: 5th January, 2018
                                   
  JUDGMENT:

1) The appellants have filed the present

criminal appeal against the judgment and order

2 Cri. Appeal 520/2001

passed in Sessions Case No.51/2001 decided by II

Additional Sessions Judge, Beed on 31st October,

2001.

2) The appellants were prosecuted in the

aforesaid Sessions Case for the offences

punishable under Section 395 and 397 of Indian

Penal Code. The additional Sessions Judge, vide

the impugned judgment convicted the present

appellants for the offence punishable under

Section 392 of Indian Penal Code and sentenced

them to suffer rigorous imprisonment for four

years and to pay fine of Rs.5,000/- each, in

default to suffer simple imprisonment for one

month each.

to 3 respectively in the aforesaid Sessions Case.

During pendency of the present appeal, appellant

No.2 died and the appeal thus stood abated

against him.

                                     3                Cri. Appeal 520/2001

  4)               Appellant   No.3,   i.e.   original   accused

No.3, viz. Balu @ Nigro s/o Namdeo Mali, has

undergone the substantive sentence. In the

circumstances, the arguments were restricted by

the learned Counsel appearing for the appellants

to the extent of appellant No.1 only. Appellant

No.1 is herein after referred to as accused No.1.

5) According to the case of prosecution, in

the intervening night of 27.9.2000 to 28.9.2000,

six persons, armed with sticks, knives and other

weapons, entered into farm house of informant -

Sarjabai w/o Dattoba Nalawade, situated at

village Kada, Tq. Ashti, District Beed and

committed dacoity. It was alleged that the said

persons stole gold and silver ornaments as well

as cash amount worth Rs.28,630/- by threatening

the inmates with their lives. Sarjabai lodged

the report of the alleged incident in the police

station at Ashti, whereupon the investigation was

set in motion. The Investigating Officer visited

the spot of occurrence and drew the spot

4 Cri. Appeal 520/2001

panchanama in presence of the panch witnesses.

The Investigating Officer also recorded the

statements of the witnesses viz. Hanumant Ganpat

Sawant (PW 3), Dattu s/o Bhimaji Lakde (PW 6),

Vijubai w/o Hanumant Sawant (PW 4), Sarjabai w/o

Dattoba Nalawade (PW 2)520-2001 Cri and Dattoba

s/o Baburao Nalawade (PW 7). Their supplementary

statements were also subsequently recorded by the

Investigating Officer on 6.10.2000. Accused No.1

was arrested by the police on 3.10.2000. Accused

Bhimrao was also arrested on the same day. The

other accused were already arrested in one

another crime and were in custody of the police.

It is the further case of the prosecution that

accused No.1 gave his memorandum statement to the

police in presence of the panch witnesses and in

pursuance of the said statement, the gold

ornaments and some cash amount, allegedly stolen

away in the dacoity committed on 28.9.2000 on the

Farm-house of the informant - Sarjabai, were

discovered and subsequently seized by the police.

The articles, which were seized at the instance

5 Cri. Appeal 520/2001

of accused No.1, were identified by the informant

Sarjabai. After completing the investigating,

charge sheet was filed against all the accused

for the offence punishable under Sections 395 and

397 of Indian Penal Code. In order to prove the

guilt of the accused, the prosecution examined as

many as nine witnesses. Defence of accused No.1

was of total denial. The learned Sessions Judge,

after having assessed the oral and documentary

evidence on record, held accused No.1 guilty

along with other accused for the offence

punishable under Section 392 of IPC and sentenced

him to suffer the imprisonment as noted herein

above.

6) Shri S.S.Jadhavar, learned Counsel

appearing for the appellant - accused No.1

assailed the impugned judgment on various

grounds. The learned Counsel submitted that the

Sessions Court has held accused No.1 guilty for

the offence punishable under Section 392 of IPC

only on the basis of his so-called memorandum

6 Cri. Appeal 520/2001

statement and the recovery allegedly shown in

pursuance of the said memorandum statement.

. The learned Counsel further submitted

that the entire said evidence is shrouded with

doubts. The learned Counsel further submitted

that neither Sarjabai (PW 2) nor Hanumant Sawant

(PW 3) identified accused No.1. The learned

Counsel submitted that Sarjabai identified

accused No.2 - Bhimrao as well as accused No.3 -

Balu, but did not recognize accused No.1. The

learned Counsel submitted that PW 3 - Hanumant

Sawant did not identify any of the accused. The

learned Counsel further submitted that PW 4 -

Vijubai w/o Hanumant Sawant also did not identify

accused No.1 though she identified accused Nos. 2

and 3. The learned Counsel submitted that PW 6 -

Dattu s/o Bhimaji Lakde and PW 7 - Dattoba s/o

Baburao Nalawade though did identify accused

Navnath in the Court, considering the admissions

given by the said witnesses in their cross-

examination, their testimonies cannot be relied

upon. The learned Counsel, placing his reliance

7 Cri. Appeal 520/2001

on the judgment of the Hon'ble Apex court in the

case of Ravi @ Ravichandran Vs. State Rep.by

Inspector of Police - AIR 2007 SC 1729, submitted

that since the FIR was lodged against unknown

persons and no identification parade was ever

conducted, the conviction recorded by the trial

court against accused No.1 cannot be sustained.

The learned Counsel, therefore, prayed for

setting aside the impugned judgment and order of

conviction against appellant No.1 and to acquit

him of the charges levelled against him.

7) Shri S.P.Tiwari, learned APP supported

the impugned judgment and order. The learned APP

submitted that sufficient evidence had come on

record against accused No.1 also and the Trial

Court has, therefore, rightly convicted the

accused No.1 for the offence punishable under

Section 392 of Indian Penal Code. The learned

App, therefore, prayed for dismissal of the

appeal.

                                      8                Cri. Appeal 520/2001

  8)               After   having   considered   the   submissions 

  made   by   the   learned     Counsel   appearing   for   the

parties and on perusal of the impugned judgment

as well as the evidence on record, I find it

difficult to sustain the order of conviction

against the appellant - accused No.1.

9) The learned Additional Sessions Judge

has convicted accused No.1 on the basis of his

alleged memorandum statement and the subsequent

recovery of certain articles in pursuance of the

said memorandum statement. The learned Sessions

Judge has observed that the panch witnesses on

the memorandum as well as seizure, have fully

supported the prosecution version and both the

said witnesses, viz. PW 5 - Ajinath and PW 8 -

Parivant have also identified accused No.1 -

Navnath as well as the articles seized in their

presence on the basis of the memorandum statement

given by accused No.1 - Navnath.



  10)              The   learned   Additional   Sessions   Judge 





                                   9                 Cri. Appeal 520/2001

has also observed that in the cross-examination

the fact stated by PW 5 - Ajinath that in his

presence the accused gave memorandum statement

has remained unchallenged. However, it is

difficult to accept the reasoning so given by the

learned Additional Sessions Judge.

11) I have carefully gone through the cross-

examination of PW 5 - Ajinath s/o Paraji Shelke.

He has candidly admitted that he signed the

panchanama in the police station. Further, a

suggestion was also given to him that he did not

go to Balewadi. Of course, the said suggestion

was denied by him. The said witness has further

admitted that he was not remembering as to how

many accused persons were there in the jeep when

they had been to Balewadi. Further, the said

witness has clearly admitted that only police

went inside the house and brought the articles.

Similarly, PW 8 - Parivant has also admitted in

his cross-examination that when the accused went

inside the house, he and the other panch were

10 Cri. Appeal 520/2001

waiting outside the house. It is thus evident

that no such unimpeachable evidence has come on

record showing that the articles were recovered

at the instance of accused No.1 from his house.

The evidence on the point of recovery is thus not

free from doubt.

12) It is further significant to note that

the First Information Report was lodged by PW 2

Sarjabai against the unknown persons on

28.09.2000. Admittedly, no identification parade

was conducted. In the circumstances, though,

some of the witnesses did identify accused No.1

before the Court, possibility of accused being

seen by the said witnesses, either at the police

station or at some other place cannot be ruled

out. The conviction, therefore, cannot be based

on such a weak evidence. Admittedly, PW 2

Sarjabai who lodged the report of the alleged

incident, did not identify accused no.1 before

the Court, though, she identified accused nos. 2

and 3. PW 3 Hanumant Ganpat Sawant, who is also

11 Cri. Appeal 520/2001

posed as an Eye witness of the alleged

occurrence, also did not identify accused no.1.

13) It is further significant to note PW 3

in its testimony before the Court has deposed

that the accused persons were brought to their

house by the police and Sarjabai recognized some

of the accused, but he did not recognize any of

the accused. It is thus evident that, though, as

per the version of PW 3 Hanumant all the accused

including accused no.1 were taken to the house at

which the dacoity was committed, neither PW 2

Sarjabai nor PW 3 Hanumant nor PW 4 Vijubai

identified accused no.1. PW 4 Vijubai identified

accused no.2 but did not identify accused no.1.

14) It was sought to be canvassed by the

learned APP that PW 7 Dattoba, i.e. husband of

the informant Sarjabai (PW 2) has identified

accused no.1 before the Court. However, it is

the matter of record that on the day of incident,

PW 7 Dattoba was not present at the spot of

12 Cri. Appeal 520/2001

occurrence. As has been deposed by him, on the

day of alleged occurrence, he was at his another

Farm House and he visited the spot of occurrence

on the next day of the incident.

15) Further, it has come on record in the

evidence of PW 7 Dattoba that on the next day of

the incident, he had been to the house of one

Eknath and at that time accused no.1 Navnath and

accused Bhimrao were present there. PW 7 Dattoba

has further deposed that he then told the accused

persons to give his belongings stolen by the

accused persons from his house. PW 7 Dattoba has

further deposed that, he promised the accused

that if the accused persons return his articles,

he would not file complaint against them.

Dattoba has further deposed that accused no.1

Navnath and accused Bhimrao promised him to

return articles taken by them from his house.

Dattoba also deposed that, on such a promise

given by accused no.1 Navnath and accused

Bhimrao, he waited for two hours but as the

13 Cri. Appeal 520/2001

accused did not return his articles he told his

wife Sarjabai to file a complaint and accordingly

Sarjabai filed the complaint. In the cross-

examination Dattoba Nalawade has reiterated that

the talk between him and the accused persons

taken place prior to filing of the complaint.

However, it is undisputed that in the FIR lodged

by Sarjabai she has not impleaded any person by

name, but has filed the FIR against the unknown

persons. The question arises when the husband of

Sarjabai was well aware of the fact that accused

no.1 Navnath and another accused Bhimrao were

involved in the alleged dacoity, why Sarjabai did

not disclose the said fact in the FIR lodged by

her.

16) After having considered the entire

evidence, it does not appear to me that any such

evidence has come on record on the basis of which

accused no.1 Navnath could have been held guilty

by the learned Additional Sessions Judge. I

reiterate that on relying the evidence of the

14 Cri. Appeal 520/2001

Panch Witnesses on the Memorandum statements

allegedly given by accused Navnath, the learned

Additional Sessions Judge has held his

involvement to have been proved in commission of

the alleged dacoity. However, as I have stated

earlier, there is no such unimpeachable evidence

showing that the alleged articles were seized at

the instance of accused No.1 Navnath. As has

been noted by me earlier, both the witnesses i.e.

PW 5 Ajinath and PW 7 Dattoba did not enter into

the house and only police persons along with

accused no.1 went inside the house and came out

of the house with some articles. Thus, the

evidence which has come on record against accused

No.1 falls short in proving the complicity of

accused no.1 in commission of the alleged crime.

Moreover, evidence against the accused no.1 is

not free from doubts, the benefit of which would

certainly go to him. In the circumstances, the

conviction of accused No.1 cannot be sustained.



  17)              For   the   reasons   stated   above,   I   am 





                                      15                Cri. Appeal 520/2001

inclined to allow the present appeal. Hence, the

following order, -

ORDER

i) The judgment and order of conviction

passed on 31.10.2001 in Sessions Case No.51/2001,

so far it relates to appellant - accused No.1,

stands quashed and set aside;

ii) The accused No.1 is acquitted of the

offences with which he was charged. His bail bond

stands cancelled;

iii) Fine amount, if any, paid by the

appellant No.1 be refunded to him;