Bombay High Court
Rukhsana Hanif Pathan @ Pushpa ... vs The State Of Maharashtra on 16 March, 2017
Bench: A.M. Badar
(10-11)REVNNo.82-832017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.82 OF 2017
WITH
CRIMINAL APPLICATION NO.76 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.82 OF 2017
Rukhsana Hanif Pathan @
Pushpa Motiram Gawade,
Age-46 years, Indian inhabitant
of Mumbai occu.Housewife,
R/o.Room No.08, Deepak,
Yadav Chawl, Ganesh Nagar,
Kaju Tekadi, Bhandup (W),
Mumbai 400 078. ... Applicant
V/s.
The State of Maharashtra,
At the instance of Kurla
Railway Police Station, Kurla,
Mumbai vide C.R.No.03 of 2008. ... Respondent
WITH
CRIMINAL REVISION APPLICATION NO.83 OF 2017
WITH
CRIMINAL APPLICATION NO.77 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.83 OF 2017
Rukhsana Hanif Pathan @
Pushpa Motiram Gawade,
Age-46 years, Indian inhabitant
of Mumbai occu.Housewife,
R/o.Room No.08, Deepak,
Yadav Chawl, Ganesh Nagar,
Kaju Tekadi, Bhandup (W),
Mumbai 400 078. ... Applicant
Gaikwad RD 1/14
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(10-11)REVNNo.82-832017
V/s.
The State of Maharashtra,
At the instance of Kurla
Railway Police Station, Kurla,
Mumbai vide C.R.No.02 of 2008. ... Respondent
.....
Mr.Aniket Vagal, Advocate for the Applicant.
Mr.A.R.Kapadnis, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 16th MARCH 2017.
ORAL JUDGMENT :
1 Both these revision petitions are being decided by
common Judgment because except evidence of first informants
other evidence in both these revision petitions is common and
revision petitioner in both these revision petitions is one and the
same.
2 In revision petition bearing No.82 of 2017, the revision
petitioner is challenging the Judgment and Order dated 19 th
January 2017 passed by the learned Additional Sessions Judge,
Mumbai in Criminal Appeal bearing No.275 of 2014 filed by her,
thereby dismissing her appeal. The said appeal was filed by
revision petitioner/original accused for challenging the Judgment
and Order dated 01/03/2014 passed by the learned Metropolitan
Magistrate, 35th Court, CST, Mumbai in Criminal Case
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No.240/PW/2008, thereby convicting the revision petitioner/
original accused of the offence punishable under Section 379 of
the Indian Penal Code (For short, "the IPC") and sentencing her to
suffer rigorous imprisonment for six months.
3 In revision petition bearing No.83 of 2017, the revision
petitioner/accused is challenging the Judgment and Order of
dismissal of her appeal bearing No.276 of 2014 by the learned
Additional Sessions Judge, Mumbai on 19/01/2017 thereby
confirming the Judgment and Order of conviction recorded by the
learned Metropolitan Magistrate, 35th Court, CST, Mumbai in
Criminal Case No.241/PW/2008. In this Criminal Case also the
learned Metropolitan Magistrate was pleased to convict the
revision petitioner/original accused of the offence punishable
under Section 379 of the IPC and she was sentenced to suffer
rigorous imprisonment for six months. It needs to be noted that
the learned Metropolitan Magistrate had directed that the
sentences in both these Criminal Cases shall run concurrently.
4 Briefly stated, it is case of the prosecution in Criminal
Case No.240/PW/2008 that on 06/01/2008 first informant/
P.W.No.1 Vaishnavi Vijay Mukale was travelling by a local train
from Dombivali to Bhandup. Because of heavy rush in the train,
she kept gold chain and cash amounting to Rs.600/- in a purse
and that purse was kept by her in the shoulder bag carried by her.
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When she alighted at Bhandup Railway Station, she noticed that
an unknown person has committed theft of golden chain and cash
from her shoulder bag. She immediately lodged report (Exh.6) on
06/01/2008 with Kurla Railway Police Station, which resulted in
registration of Crime No.3 of 2008 for the offence punishable
under Section 379 of the IPC. Routine investigation followed
which resulted in charge-sheeting the revision petitioner/accused.
In support of the charge, the prosecution has examined in all three
witnesses namely Vaishnavi Vijay Mukale (PW1), Purshottam
Soma Gawade, police head constable (PW2) and Anand Nikhale,
police head constable (PW3). The defence of the accused was that
of total denial. After due trial, the learned trial Magistrate was
pleased to convict the revision petitioner/accused of the offence
punishable under Section 379 of the IPC and she is sentenced
accordingly as indicated in the opening paragraph of this
Judgment.
5 Case of the prosecution so far as Criminal Case
No.241/PW/2008 which has resulted in filing of Revision Petition
bearing No.83 of 2017 is to the effect that on 26/12/2007
Dakshata Suryakant Koli was travelling from Thane to Ghatkopar.
She had kept gold Mangalsutra weighing 16.650 gms., ATM card
and several documents in a purse and that purse was kept in the
shoulder bag carried by her. After she alighted from the train, she
found the money purse containing Mangalsutra was missing from
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the shoulder bag. She lodged report of this incident to Kurla
Railway Police Station on 03/01/2008, which has resulted in
registration of Crime Registration No.2 of 2008 for the offence
punishable under Section 379 of the IPC.
6 After routine investigation, the revision petitioner/
accused came to be charge-sheeted and in order to bring home the
guilt to the revision petitioner, the prosecution has examined three
witnesses in Criminal Case No.241/PW/2008 also. First informant
Dakshata Koli is examined as P.W.No.1, Purshottam Gawade,
police head constable as P.W.No.2, whereas Anand Nikhale, police
head constable as P.W.No.3.
7 In Criminal Case No.241/PW/2008 also the defence of
the revision petitioner/original accused is that of total denial.
After hearing the parties in this case also, the revision
petitioner/original accused came to be convicted and sentenced as
indicated in the opening paragraph of this Judgment.
8 I have heard the learned Advocate appearing for the
revision petitioner in both these revision petitions at sufficient
length of time. I have also perused the Record and Proceedings in
both these revision petitions. By taking me through the evidence
of prosecution witnesses in both these cases, the learned Advocate
appearing for the revision petitioner vehemently argued that it is
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the case of the prosecution that recovery panchanama resulting in
recovery of one Mangalsutra and other articles was recorded on
27/02/2008. This recovery is not made in respect of a particular
crime, but the recovery is a general recovery of several articles
allegedly at the instance of the revision petitioner/accused.
Articles involved in different crimes were allegedly recovered by
the police. Such course of action is not permissible.
9 It is further argued that cross-examination of P.W.No.1
Dakshata Koli in Criminal Case No.241/PW/2008 shows that
Mangalsutra allegedly recovered on 27/02/2008 was shown to her
on 16/01/2008 itself. This creates doubt in the prosecution case
as on 16/01/2008, even according to the prosecution case,
nothing was recovered. It is further argued that panch witnesses
to alleged recovery were called subsequently and confessional
statement of the revision petitioner/accused was not recorded in
presence of panch witnesses. Panchas were also not examined by
the prosecution in order to prove confessional statement as well as
resultant recovery.
10 The learned Advocate for the revision petitioner
further argued that evidence of official witnesses shows that they
had chosen not to go to the spot for effecting recovery by official
vehicles. There is no entry regarding their departure in the official
record such as station diary etc. The seized articles were not
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sealed. It is argued that first informant Dakshata Koli in Criminal
Case No.241/PW/2008 had lodged report of alleged incident of
26/12/2007 on 03/01/2008 and as such, because of delay in
lodging the FIR, prosecution case becomes suspect. It is further
argued that it is highly improbable that a person would keep
valuable articles in the shoulder purse, while travelling in the local
train and, therefore, the element of improbability creeps in the
prosecution case.
11 The learned Additional Public Prosecutor supported
the impugned Judgment and Order and argued that there is no
cross-examination of the first informant, so far as alleged delay in
lodging the FIR is concerned. It is further argued that the
prosecution has proved the offence alleged against the revision
petitioner/accused by adducing necessary evidence in support of
the charge.
12 In both revision petitions in hand, Courts below have
concurrently held that the prosecution has proved offence
punishable under Section 379 of the IPC committed by the
revision petitioner/original accused. The accused is invoking the
revisional jurisdiction of this Court. It is well settled that
revisional jurisdiction is required to be exercised sparingly, when
there is glaring defect of procedure or manifest error of law, which
has resulted in miscarriage of justice. Sufficiency of evidence
Gaikwad RD 7/14
(10-11)REVNNo.82-832017
cannot be gone into for holding a fact to be proved. Unless and
until it is shown that the findings recorded by the Court below is
perverse, the same cannot be upset in the revisional jurisdiction. If
the findings is arrived at on the basis of some evidence on record,
then adequacy of that evidence cannot be examined in the
revisional jurisdiction.
13 Section 3 of the Indian Evidence Act, 1872 defines the
term 'proved'. A fact is said to be proved when after considering
the matter before it, the Court either believes it to exist or
considers its existence so probable that a prudent person acting
under circumstances of a particular case is inclined to act upon the
supposition that such fact exists. Keeping in mind these
parameters, let us examine cases at hand in order to consider
whether while holding the charge to be proved, Courts below
committed any manifest error of law or procedural impropriety.
14 The first point urged by the learned Advocate
appearing for the revision petitioner is to the effect that recovery
of articles at the instance of revision petitioner is not proved, as it
is a general recovery and panchas were not examined by the
prosecution to prove the said recovery. Not using the official
vehicles is also stated to be one of the reason for persuading this
Court to reject the evidence regarding the recovery. In the matter
of Rameshbhai Mohanbahi Koli v. State of Gujarat reported in
Gaikwad RD 8/14
(10-11)REVNNo.82-832017
2011 AIR SCW 378, the Honourable Apex Court has considered
somewhat similar arguments and after considering the entire case
the Honourable Apex Court has held thus in paragraph Nos.23 to
25 of the said rulings:
"Evidence of Investigating Ofcer
23) An argument was advanced about reliance based
on the evidence of investigating ofcer. This Court in
State of U.P. vs. Krishna Gopal and Another, (1988) 4
SCC 302 has held that courts of law have to judge the
evidence before them by applying the well recognized
test of basic human probabilities. Prima facie, public
servants must be presumed to act honestly and
conscientiously and their evidence has to be assessed
on its intrinsic worth and cannot be discarded merely
on the ground that being public servants they are
interested in the success of their case. [vide State of
Kerala vs. M. M. Mathew & Anr., (1978) 4 SCC 65)]
24) In Modan Singh vs. State of Rajasthan, (1978) 4
SCC 435, it was observed that where the evidence of
the investigating ofcer 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 was expressed in Mohd. Aslam vs. State
of Maharashtra, (2001) 9 SCC 362. In Anter Singh vs.
State of Rajasthan, (2004) 10 SCC 657, it was further
held that even if panch witnesses turn hostile, which
happens very often in criminal cases, the evidence of
the person who efected the recovery would not stand
vitiated.
25) This Court has held in large number of cases that
merely because the panch-witnesses have turned
hostile is no ground to reject the evidence if the same
is based on the testimony of the Investigating Ofcer
alone. In the instant case, it is not the case of defence
that the testimony of Investigating Ofcer sufer from
any infrmity or doubt. [Vide Modan Singh's case
(supra) Krishna Gopal's case (supra) and Anter Singh's
case (supra)]."
Gaikwad RD 9/14
(10-11)REVNNo.82-832017
15 It is thus clear that it is not at all necessary that for
effecting recovery, panch witnesses should be examined and
recovery should be made only before panch witnesses. Even
otherwise, it is a wise principle of law recognized even by the
legislature under Section 114(e) of the Evidence Act that the
official acts are regularly done. It is thus clear that statement of
the accused can be recorded even in absence of panch witnesses
and such recovery can be accepted, provided evidence of official
witnesses effecting the recovery is found to be truthful and
trustworthy.
16 In cases at hand, prosecution has examined police
head constable, who had recorded statement of the revision
petitioner/accused, which has resulted in effecting the recovery.
P.W.No.2 Purshottam Gawade, police personnel is a witness who
recorded confessional statement of the revision petitioner/accused
and who had witnessed the recovery. The evidence of P.W.No.3
Anand Nikhale is specifically on the point that by summoning
panch witnesses, confessional statement of the revision
petitioner/accused came to be recorded. There is no even
suggestion to this witnesses to the effect that without calling
panch witnesses, the confessional statement of the revision
petitioner/accused came to be recorded. Perusal of confessional
statement and resultant recovery panchanama do shows that
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confessional statement was made in presence of panch witnesses
and panch witnesses have duly signed that confessional statement.
Hence, I find no substance in submission of the learned Advocate
that confessional statement was not recorded in presence of panch
witnesses.
17 P.W.No.3 Anand Nikhale and P.W.No.2 Purshottam
Gawade in unison have deposed that in pursuant to the statement
of revision petitioner/accused, they had recovered articles such as
Mangalsutra weighing 16 grams, necklace weighing about 8 grams
and cash amount to Rs.1200/-. Both these police personnels have
deposed that then recovery panchanama was drawn. Even from
cross-examination of P.W.No.2 Purshottam Gawade, it is brought
on record that while recording confessional statement of the
revision petitioner/ accused panch witnesses Sou.Sunita Shaikh
and Shri.Santosh Pawar were present. There is nothing in cross-
examination of both these witnesses to disbelieve their versions
regarding effecting recovery from the house of revision
petitioner/accused at her instance.
18 In the wake of this evidence adduced by the
prosecution, it is clear that there was recovery of a Mangalsutra
and gold chain at the instance of the revision petitioner/accused.
19 P.W.No.1 Dakshata Koli in her evidence has stated that
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the Mangalsutra was in broken condition. In her cross-
examination, she has stated that she was shown Mangalsutra on
16/01/2008. The evidence of this witness shows that the recovery
of Mangalsutra was owned by her and which was lost while
travelling. The incident of theft so far as Dakshata Koli is
concerned, took place on 26/12/2007, whereas she has entered
into the witness box on 18/11/2011. It is thus clear that after a
lapse of so many years, this witness has entered into the witness
box. Therefore, her admission in the cross-examination that the
Mangalsutra was shown her on 16/01/2008 pales into
insignificance particularly when evidence regarding recovery of
Mangalsutra at the instance of revision petitioner/accused is
trustworthy and reliable. Ultimately, some concession will have to
be given to the fact that the witness has entered in the witness box
after a gap of several years. Only because of condition of the
Mangalsutra as 'broken' is not mentioned in the recovery
panchanama, that, by itself, is not sufficient to discard the
recovery panchanama. Moreover, all these aspects cannot be
adjudged while invoking revisional jurisdiction of this Court,
particularly, when both the Courts below considered evidence
adduced by the prosecution on the aspect of recovery as
trustworthy.
No.240/PW/2008 (Revision Petition No.83 of 2017) has deposed
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that she was travelling to Bhandup from Dombivali on
06/01/2008 and during that journey, she found that gold chain
weighing about 8.31 grams and cash amount of Rs.600/- was
stolen from her shoulder bag. This witness has lodged report
(Exh.6) on 06/01/2008 itself with Kurla Police Station. The
evidence of this witness also shows that the necklace recovered at
the instance of revision petitioner/accused was the same article,
which was stolen during the course of journey.
21 Once it is found that stolen articles were recovered at
the instance of revision petitioner/accused, then presumption as
envisaged in Article 114, illustration (a) of the Evidence Act comes
into play. A person, who is found in possession of a stolen article,
after the theft, is presumed to be either the thief or receiver of the
stolen property.
22 To conclude, despite due deliberation, it cannot be
said that Judgments and Orders passed by the Courts below are
either perverse or suffers from procedural impropriety. In the
result, following order :
(i) Both revision petitions stand dismissed.
(ii) Record and Proceedings be sent back to Courts below
Gaikwad RD 13/14
(10-11)REVNNo.82-832017
(iii) In view of disposal of Revision Petitions, pending
Criminal Application No.76 of 2017 and Criminal
Application No.77 of 2017 stand disposed of.
(A.M.BADAR J.)
Gaikwad RD 14/14
