Rajesh @ Radhe S/O Itwari Shahu vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 3583 Bom

Judgment

                                                   apeals590.13; 58.14, & 357.15 1 

                                       1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

               CRIMINAL APPEAL NO.590 OF 2013
                           AND
               CRIMINAL APPEAL NO.58 OF 2014
                           AND
               CRIMINAL APPEAL NO.357 OF 2015




CRIMINAL APPEAL NO.590 OF 2013

1. Mr. Vishal @ Dadu s/o Madanlal Ramteke
Age about 23 years, Occupation : at present in
Jail, R/o (At present at jail at Nagpur).

2. Mr. Samyak s/o Dnyaneshwar Gajbhiye,
age about 26 years, Occupation : Nil 
(At present in Central Jail at Nagpur)
both are r/o Bhimnagar, Issasani,
MIDC, Nagpur.                                          ..... Appellants.

                                ::   VERSUS   ::

State of Maharashtra, through its
P.S.O. P.S. Sonegaon, District Nagpur. ..... Respondent.

==============================================================
          Shri H.P. Lingayat, Counsel for appellant No.1.
          Shri C.R. Thakur, Counsel for appellant No.2.
          Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================


                                                                            .....2/-




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                                                   apeals590.13; 58.14, & 357.15 1 

                                       2




CRIMINAL APPEAL NO.58 OF 2014

Vikas @ Vikky s/o Mohan Rahangdale
Aged 23, Occupation Labour
R/o Bhim Nagar, Issasani, MIDC
Nagpur.
(At present Central Jail Nagpur).              ..... Appellant.

                                ::   VERSUS   ::

State of Maharashtra
Through P.S.O., P.S. Sonegaon
Vide Crime No.150/2012.                           ..... Respondent.

==============================================================
          Shri A.K. Bhangde, Counsel for the appellant.
          Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================



CRIMINAL APPEAL NO.357 OF 2015

Rajesh @ Radhe s/o Itwari Shahu,
Aged about 27 years, Occupation :
R/o Bhimnagar, Issasani,
MIDC, Nagpur.                                          ..... Appellant.

                                ::   VERSUS   ::

The State of Maharashtra
Through Police Station Officer,


                                                                            .....3/-




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 Judgment

                                                  apeals590.13; 58.14, & 357.15 1 

                                       3

P.S. Sonegaon, Nagpur.                     ..... Respondent.

==============================================================
          Shri R.P. Thote, Counsel appointed for the appellant.
          Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================


                              CORAM : V.M. DESHPANDE, J.

                              DATE     : JUNE 23, 2017.



COMMON JUDGMENT

1. These 3 appeals arise out judgment and order

of conviction passed by learned Ad hoc Additional

Sessions June-1, Nagpur dated 30.10.2013 in Sessions

Trial No.154 of 2013. Therefore, these 3 appeals are

decided and disposed of by this common judgment.

2. Criminal Appeal No.590 of 2013 is filed by

original accused No.3. Vishal @ Dadu s/o Madanlal

Ramteke and original accused No.4 Samyak s/o

Dnyaneshwar Gajbhiye.

Criminal Appeal No.58 of 2014 is filed by

.....4/-

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original accused No.1 Vikas @ Vikky s/o Mohan

Rahangdale.

Criminal Appeal No.357 of 2015 is filed by

original accused No.2 Rajesh @ Radhe s/o Itwari Shahu.

In this common judgment, appellants will be

referred to by their original positions.

3. By the impugned judgment and order of

conviction, accused are convicted for the offence

punishable under Section 395 of the Indian Penal Code

and they are directed to suffer rigorous imprisonment

for 10 years and to pay a fine of Rs.3,000/- by each of

them and in default of payment of fine amount to suffer

further simple imprisonment for 6 months.

They are also convicted for the offence

punishable under Section 452 of the Indian Penal Code

.....5/-

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and they are directed to suffer rigorous imprisonment

for 2 years and to pay a fine of Rs.2000/- by each of them

and in default of payment of fine amount to suffer

further simple imprisonment for 2 months.

Also, accused are convicted for the offence

punishable under Section 342 of the Indian Penal Code

and they are directed to suffer rigorous imprisonment

for 1 year and to pay a fine of Rs.1,000/- by each of them

and in default of payment of fine amount to suffer

further rigorous imprisonment for one month.

Learned Judge of the Court below directed

that all sentences of accused persons shall run

concurrently and also set-off is given to them since they

were in jail.

4. In these appeals, learned counsel Shri H.P.

.....6/-

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apeals590.13; 58.14, & 357.15 1

Lingayat and learned counsel Shri C.R. Thakur

appeared in Criminal Appeal No.590 of 2013 for accused

Nos.3 and 4 respectively; learned counsel Shri A.K.

Bhangde appeared for accused No.1 in Criminal Appeal

No.58 of 2014, and learned counsel Shri R.P. Thote

appointed by the High Court Legal Services Sub

Committee at Nagpur appeared for accused No.2 in

Criminal Appeal No.357 of 2015.

The State was represented by learned

Additional Public Prosecutor Shri N.R. Rode in all these

appeals.

5. The prosecution case is as under:

PW18 Tukaram Kondiba Wahile was attached

to Sonegaon Police Station from September 2012. On

17.12.2012, he was on duty at Airport with his squad. He

.....7/-

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received a phone call from a Police Constable Dinesh

that dacoity is committed in a house situated at Pragati

Colony, Sahakar Nagar. He, therefore, directed PW13

Police Sub Inspector Rahul Kamaji Suryatal to visit the

spot immediately. He also informed the occurrence to

his superior and left for the spot.

6. PW13 Suryatal was posted in front of the

Pride Hotel near Airport. At about 1:30 p.m., he

received a phone call from PW18. As per the directions

of PW18 Tukaram Wahile, PW13 Suryatal immediately

rushed to the venue. PW18 also reached there.

7. PW18 Tukaram Wahile made preliminary

inquiry with a lady who was present in the house. She

was frightened. Thereafter, PW18 Tukaram Wahile

directed PW13 Police Sub Inspector Suryatal to record

the complaint of said lady and prepare spot

.....8/-

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panchanama.

8. PW13 Police Sub Inspector Suryatal recorded

her complaint. He noticed that there were scratches on

the hands of said lady. The said lady disclosed her

name as Smt. Shashikala Mohanlal Jaiswal (PW1). Her

report Exhibit 20 was reduced into writing.

As per her report, she resides along with her

husband Mohanlal Jaiswal, a High Court practitioner,

her elder son Niraj Jaiswal, and her daughter-in-law

Manisha Jaiswal. Her younger son Dhiraj resides

separately at Sahakar Nagar along with his family.

Her report further states that her husband, a

practising lawyer at High Court, leaves house at 10:00

a.m. in the morning and normally returns at 04:00 p.m.

in the evening. Son Niraj is having Wine Shop at Wani.

.....9/-

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Therefore, normally he stays there. The wife of Niraj, at

the relevant time, was residing in the house of Dhiraj in

view of her delivery.

9. As per her report, on 17.12.2012, in the

morning, her husband left the house for his work. She,

therefore, closed the outer glass-door of the house and

was alone in the house. At 11:45 hours, she was

sweeping gallery. That time, she heard some mysterious

and uncommon noise from inside the house. She noticed

a boy, whose face was covered by scarf, was standing on

the door of bedroom. He gave a push to her and fell her

on the cot. The said boy uttered that they (complainant)

rob poor persons. He also said that they are not in a

habit of theft. However, they are in need of money. He

demanded valuables from her. That time, two other

persons came and they tied her hands and legs. That

.....10/-

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time, first boy removed his scarf and extended threats

that if she raises any alarm, she will lose her life. One

person was having a knife in his hand. Thereafter,

they demanded keys of almirahs. On her refusal, they

broke open almirah and also broke open an another

almirah which was kept in other bedroom. At the time

of leaving the house, they came to her and snatched all

her gold ornaments from her person. She gave a

description of dacoits in the complaint itself. While

leaving the house, they untied Shashikala. Therefore,

Shashikala came to the hall of her house and made a

phone call to her son PW2 Dhiraj Mohanlal Jaiswal and

informed about the incident. One Khonde, a neighbour,

came and untied her completely. Thereafter, PW2

Dhiraj Jaiswal came to house and noticed that various

gold ornaments and cash of Rs.4.00 lacs were looted

.....11/-

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apeals590.13; 58.14, & 357.15 1

from the house. As per the complaint, total loot was

worth of Rs.9,77,500/-. In the complaint, Shashikala

raised a suspicion on their driver who was sacked from

service by Niraj.

10. PW13 Police Sub Inspector Suryatal,

thereafter, prepared a spot panchanama Exhibit 48 in

the presence of panchas and registered a crime vide

Crime No.150 of 2012 against unknown persons for the

offences punishable under Sections 392, 452, and 342

read with Section 34 of the Indian Penal Code. Printed

FIR is at Exhibit 58.

11. PW18 Tukaram forwarded a special report to

his superior about the incident. He also recorded

statements of Advocate Mohanlal Jaiswal and Dhiraj

Jaiswal and other witnesses. On 18.12.2012, Dhiraj

Jaiswal handed over an envelope to the investigating

.....12/-

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apeals590.13; 58.14, & 357.15 1

officer which was received by his mother on the day of

incident in the name of Dr. Shilpi Agrawal. The said

envelope was seized by the investigating officer under

seizure memo Exhibit 50. The said envelope was having

3 blood stains. On 27.12.2012, he handed over

investigation to PW15 Assistant Police Inspector Shri

Ravindra Mansing Kadam of the Crime Branch.

12. PW15 Assistant Police Inspector Ravindra

Kadam received some confidential information.

Therefore, he went near the C.R.P.F. Gate and caught

hold one person. During interrogation, he disclosed his

name as Vikas Rahangdale. It was disclosed by said

Vikas Rahangdale that he was serving in the house of

Advocate Jaiswal and having full information about his

house and, therefore, he along with his other friends

committed an act of dacoity in the house of Advocate

.....13/-

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Jaiswal. He arrested Vikas Rahangdale on 27.12.2012.

Said Vikas also revealed name of his accomplice Rajesh

Shahu.

13. During remand, accused No.1 Vikas

Rahangdale made a disclosure statement in the

presence of PW4 a pancha Sanjay Punaji Farkale and

agreed to show the place where he has kept gold ring,

money, and motorcycle which was used at the time of

commission of offence. Said memorandum statement is

at Exhibit 33. Consequent upon the said disclosure

statement, police party with panchas and accused No.1

Vikas Rahangdale had been to his house from where he

took out cash of Rs.3,000/- and gold ring from almirah of

his house and also shown motorcycle. These articles

were seized under recovery panchanama Exhibit 34.

14. On 29.12.2012, accused No.2 Rajesh Shahu

.....14/-

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gave his confessional statement and agreed to show the

place where he concealed gold ornaments and money.

The said confessional statement is at Exhibit 67.

Accordingly, a pancha witness and accused No.2 Rajesh

Shahu with police party went to his house from where

beneath the mattress on cot he took out Rs.13,800/-, gold

bangles. Said recovery panchanama is at Exhibit 36 and

is duly proved by PW6 Prasanna Prabhakar Jichkar.

The other two accused persons were arrested on

30.12.2012.

On 2.1.2013, accused No.3 Vishal Ramteke

gave his memorandum statement Exhibit 38 in the

presence of PW7 pancha witness Mahesh Wamanrao

Mohite and on the basis of his memorandum statement,

from the place which was shown by him i.e. his house,

he dug out a polythene bag from floor which was

.....15/-

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containing Rs.31,500/-, one Mangalsutra, one gold Chain,

and two gold rings. Said panchanama is at Exhibit 39.

Similarly, accused No.4 Samyak

Dnyaneshwar Gajbhiye also gave his memorandum

statement vide Exhibit 40 and consequent to his

recovery statement, amount of Rs.34,600/-, two gold

bangles, gold earrings, one gold chain having beads

(mani), and also one gold Mangalsutra having gold

locket, which were concealed in cot in the bedroom of

his house, and also one motorcycle which was used at

the time of commission of offence, were recovered. Said

recovery pachanama is at Exhibit 41.

15. On 3.1.2013, accused No.1 Vikas Rahangdale

again gave his disclosure statement in the presence of

PW8 Pankaj Kamble. Said disclosure statement is at

Exhibit 43 by which he agreed to show the place where

.....16/-

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he kept gold bangles, locket, and rings which came to

his share after booty was distributed amongst the

accused persons. He disclosed that he has concealed

said bangles beneath a big stone at Panchaseel Nagar

Zopadpatti. Accordingly, recovery was made as per

recovery panchanama Exhibit 45.

16. All seized articles were taken to the

goldsmeath by the investigating officer. 12 receipts

were given by the Nagpur Sarafa Association in respect

of different articles including their rates. Those

receipts are available on record at Exhibit 72. The

Nagpur Sarafa Association also issued 12 certificates

Exhibits 73 to 84 mentioning carats of concerned gold

ornaments. All gold ornaments shown to PW1

complainant Shashikala and she identified those gold

ornaments as her. Said identification panchanama is at

.....17/-

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Exhibit 85 .

17. PW15 Assistant Police Inspector Ravindra Kadam

also forwarded a letter to the Executive Magistrate for

identification parade of the accused persons which was

done by PW17 Sanjay Narhar Hardas. After completion

of other usual investigation, charge-sheet was filed in

the Court of law.

18. The charge was framed against all the

accused persons for the offences punishable under

Sections 395, 452, and 342 read with Section 34 of the

Indian Penal Code. All the accused persons denied the

charge and claimed for their Trial. The prosecution has

examined in all 18 witnesses and also relied upon

various documents duly proved during the course of

Trial. The defence of accused persons is of total denial

and of false implication. They also examined one DW1

.....18/-

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Dnyaneshwar Ganesh Gajbhiye, father of accused No.4

Samyak Dnyaneshwar Gajbhiye. Learned Judge of the

Court below found the accused persons guilty and,

therefore, they were convicted and sentenced. Hence,

this appeal.

19. According to learned counsel for the accused

persons, accused are falsely implicated in the crime.

According to their submissions, the prosecution has not

examined any independent witness. They submitted

that non-production of statement on record of Advocate

Jaiswal and neighbour creates a doubt about case of the

prosecution. They further submitted that pancha

witnesses, in whose presence memorandum statements

and recovery pancha are prepared, are friends of

complainant and, therefore, their evidence is required

to be rejected. They also pointed out that there are

.....19/-

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omissions in the first information report. They,

therefore, submitted that the appeals be allowed. They

did not point out any authoritative pronouncement

either of the Honourable Apex Court or of this Court to

substantiate their submissions.

20. Per contra, learned Additional Public

Prosecutor Shri N.R. Rode for the respondent/State

strenuously urged before me that the prosecution

evidence is cogent and consistent. The prosecution has

duly proved its case. He also pointed out that chemical

analyzer's report Exhibit 51 shows blood on envelope.

He also pointed out that DNA profile Exhibit 51-C

shows that blood found on the envelope tallies with

DNA profile of accused No.1. He submitted that accused

persons were also identified by PW1 complainant

Shashikala during the identification parade and also

.....20/-

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identified them in the Court at the time of evidence. He,

therefore, prayed that the appeals be dismissed.

21. The first information report is not a last word

in the prosecution case rather it is a starting point of

the entire investigation. Merely because there are

certain omissions in the first information report, which

are stated during the course of Trial before the Court by

complainant, that cannot be fatal. Here, the first

information report was recorded immediately after

commission of dacoity. The age of complainant is 65

years. She was in a frightened condition. Therefore,

omissions, which are sought to be brought on record, in

my view, do not render the prosecution case as

untruthful one. Further, omissions are found to be

minor in nature.

22. PW1 complainant Shashikala has given a

.....21/-

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detailed account of acts committed by the accused

persons. She also stated that when looters were in her

house, there was a noise of knocking at the door and

one of the accused persons went towards the front door

and accepted correspondence given by a courier

supplier. Thereafter, said person threw correspondence

in the room where she was tied.

23. PW2 Dhiraj Jaiswal corroborates version of

PW1 complainant Shashikala by deposing that his

mother narrated the incident of envelope to him.

Therefore, he searched for the said envelope and after

finding, the same was given to Sonegaon Police Station

which was seized under seizure panchanama Exhibit 50.

24. PW12 Mohd. Sharik is a postman, who had

been to house of PW1 complainant Shashikala on

17.12.2012 in between 11:30 a.m. to 12:00 p.m.. When he

.....22/-

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pressed door bell, there was no response from inside.

Thereafter, one boy came from inside the house and he

inquired with him about his presence. That time, this

prosecution witness replied that he has to deliver a

letter and, therefore, he handed over the said letter and

obtained his signature. The evidence of this prosecution

witness shows, that time he noticed that there was a

blood oozing from palm of the said boy. Thereafter, he

heard a noise of wife of Advocate Jaiswal and when he

made an enquiry with the said boy, he informed that

sons of Advocate Jaiswal are quarreling. As per the

version of this prosecution witness, when he was

wearing shoes, he noticed an another boy was filling

currency notes by both of his hands in his pocket. This

prosecution witness has also identified two accused

persons in the central hall and also identified accused

.....23/-

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Nos.3 and 4 as persons signing on the envelope and

filling currency notes.

25. In the present case, except PW5 Dilip

Motiram Satpute, all other pancha witnesses have

supported the prosecution case. It is also brought on

record by the prosecution, during the evidence of PW9

Aryan Tejbali Tekam, that accused accused No.1 Vikas

Rahangdale purchased a motorcycle from him for

Rs.15,000/- on 8.12.2012. Exhibits 23, 24, 105, and 106 are

test identification parade panchanamas. By Exhibit 23

PW1 complainant Shashikala identified accused No.1

Vikas Rahangdale and accused No.4 Samyak Gajbhiye.

PW12 Mohd. Sharik identified accused No.3 Vishal

Ramteke under Exhibit 105 and accused No.4 Samyak

Gajbhiye under Exhibit 106.

26. The submissions of learned counsel for the

.....24/-

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accused persons that no independent witness is

examined, require no consideration at all since incident

occurred inside 4 walls of the house of PW1 complainant

Shashikala. That time she was all alone.

27. As observed in preceding paragraph the age

of PW1 complainant Shashikala and that she was in a

frightened condition and, therefore, there are certain

lacunae in her statement, in my view, cannot be fatal.

28. The prosecution was successful to recover

articles at the behest of the accused persons on their

memorandum statements from the places which were in

their exclusive knowledge. The pancha witnesses had

supported the prosecution. Merely because according

to learned counsel for the accused persons that they are

known to PW1 complainant Shashikala, cannot be the

reason to discard their independent version.

.....25/-

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29. The evidence of DW1 Dnyaneshwar Gajbhiye,

father of accused No.4 Samyak Dnyaneshwar Gajbhiye

shows that the police personnel came to his house. But,

they could not find anything. Thereafter, they carried

his another son Sandesh. However, no police complaint

was lodged by this witness with higher-ups of the police.

30. The evidence in this case, as brought on

record by the prosecution, is trustworthy. A broad

daylight dacoity was committed by the accused persons

by their forcible entry and by extending threats to PW1

complainant Shashikala. In my view, learned Judge of

the Court below has rightly evaluated the entire

evidences brought on record warranting no

interference. Hence, all the criminal appeals are

dismissed.

31. Learned counsel Shri R.P. Thote appointed by

.....26/-

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the High Court Legal Services Sub Committee at

Nagpur for the appellant is entitled for his fees and it is

quantified at Rs.5,000/- (rupees five thousand only).

JUDGE

!! BRW !!

...../-