The State Of Maharashtra vs Vinod Narayan Salunkhe
2017 Latest Caselaw 2487 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 1544 OF 2003

      The State of Maharashtra                             ...     Appellant

                      V/s.

      Vinod Narayan Salunkhe
      Public Servant CID Inspector,
      Crime Branch, Mumbai                                 ...     Respondent

                                           ------

      Mr Deepak Thakare, with Mr P.H. Gaikwad, APP for the State /
      Appellant
      Mr Satyavrat Joshi, for the Respondent.
                                      -----
                                    Coram : P.N.DESHMUKH, J.

Date : 11 May 2017

ORAL JUDGMENT

1. This Appeal is preferred by State of Maharashtra against

Judgment passed by the learned Metropolitan Magistrate, 15th

Court, Mazgaon, Mumbai in Criminal Case No. 226/P/2001 on 26th

September 2003, whereby Respondent came to be acquitted for the

offences punishable under Section 170 r/w Section 420 of the

Indian Penal Code.

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2. Facts of the case of prosecution in brief can be stated as

under:

That accused on 16th April 2001 at about 8 a.m. by

personating himself to be as a Public Servant as a CID Inspector

opposite Mumbai Central ST Bus Stand, Nagpada, Mumbai took

away Rs. 51,500/- with dishonest intention from the complainant

Ashfaq Wali Mohammed Shaikh. In view of case of prosecution as

aforesaid charge is framed against Respondent for the offences

punishable under Section 170 r/w Section 420 of the Indian Penal

Code, accused pleaded not guilty and claimed to be tried.

3. In order to prove the case levelled against Respondent

prosecution examined in all four witnesses and commenced

evidence by examining PW No.1 Laxman Punjaji Gorey, the

Investigating Officer, PW No.2 Shri Ashfaq Wali Mohammed

Chifa, Complainant, PW No.3, Shri Mohammed Nisar Isaq Khan

and concluded the evidence by examining PW No.4 Naziruddin

Abdul Rehman Khan, who has carried further investigation.

Accused did not examine any witness in support of his defence. It is

the specific case of accused that he came to be falsely implicated by

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the investigating officer since at that time Respondent who

admittedly was in police service was under suspension and was

facing departmental enquiry.

4. The learned Trial Judge after considering evidence and

documents on record had acquitted accused. Hence this Appeal.

5. Heard learned APP for the State who has contended that the

Trial Court has not evaluated evidence particularly of complainant

whose evidence is found corroborated with the evidence of PW

No.3 Mohammed Nisar Isaq Khan and that from his evidence

involvement of Respondent is clearly established. However, the

learned Trial Court without relying upon said evidence, acquitted

the Respondent. It is further contended that there is nothing on

record to disbelieve the version of complainant and PW No.3 Nisar

Khan. As from their evidence, it is also submitted that

identification of Respondent is established, who was identified by

complainant from his photograph and has submitted that no

identification parade was thus found to be necessary by the

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investigating officer. It is therefore prayed that Appeal be allowed.

6. Learned counsel for Respondent had in fact supported the

impugned judgment and had contended that from the evidence of

complainant, PW No.3 Nasir Khan, it cannot be said that

involvement of Respondent is established by prosecution beyond

reasonable doubt. It is also contended that no amount is recovered,

alleged to be taken away by Respondent from the custody of

complainant. It is contended that Appeal is therefore, liable to be

dismissed.

7. The case of the Accused-Respondent is of false implication

due to rivalry with the investigating officer is more probable as at

the time of incident admittedly Respondent who was in police

service was under suspension and was facing departmental inquiry.

8. Considering the case of prosecution, submissions advanced as

aforesaid and on perusal of evidence of PW No.2, complainant, it

has revealed that he visited Mumbai on 16th February 2001 along

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with PW No.3, Nasir Khan for some business purpose and at around

about 7.30 a.m. when he was near tea stall waiting for taxi, two

persons came from their behind in a taxi and on introducing

themselves as CBI Police officers inquired complainant and said

that complainant and his companion were thieves and by saying so,

took them into their taxi and went towards Nagpada. It is the further

case of the complainant that he was having one briefcase containing

his cloths which on the directions of the alleged CBI officer was

opened and the Respondent parted with amount of Rs.51,500/-

which was with him, saying to complainant that it was stolen

property. It has further come in his evidence that on the directions

of said alleged police officer he was then directed to occupy the

front sit and for that purpose, when he alighted from the taxi to

occupy the front sit, taxi left the spot in high speed. It is thus his

case that he therefore visited Nagpada police station and lodged his

report, which is at Exhibit P-5.

9. On considering above peace of evidence, it is material to note

that complainant's evidence does not disclose where was the

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amount of Rs.51,500/- kept by him. As according to his evidence

the briefcase which he was carrying was having his cloths and he

was directed by accused to produce money upon which he gave

Rs.51,500/-. His evidence is not clear as to from where he has

brought such a huge amount. It is further material to note that above

evidence of complainant do not find corroboration from the

evidence of PW No.3, Nisar Khan to support case of prosecution

who was accompanying complainant at the material time. As on

perusal of his evidence it is found to have deposed by him that he

along with complainant arrived in Mumbai at around 7.00 a.m. and

were present near the tea stall waiting for taxi when two persons

came from their behind and had introduced themselves, as officers

from the CBI and stated that complainant and his companion were

thieves and therefore took away driving licence of Mohammad

Nisar Khan along with some visiting cards and coins. At the same

time took out Rs.51,500/- from complainant and went away.

10. Having considered evidence of alleged eye witness, same

appears to be totally contradictory to the evidence of complainant as

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referred above.

11. In fact evidence of complainant also appears to be not

convincing as it is found to be in the nature of improvements when

complainant has admitted that there is no mention in his report that

two persons came from behind in taxi and had introduced

themselves as CBI police officers and took them in taxi upto some

distance and had then taken his briefcase. He has further stated that

though he has mentioned in his statement recorded by police that

while he was sitting in the back side of the taxi he was directed to

occupy the front seat. No such fact is mentioned in his statement.

However, he is unable to give any reason for not recording so.

Above omission has been totally proved by the accused from the

evidence of PW No.4, the investigating officer, who has recorded

his statement.

12. After considering above discussed evidence, therefore, it is

noted that there is nothing to establish involvement of accused for

the offence for which he has charged.

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13. Another point which again doubts the case of prosecution is

with regard to further evidence of PW No.2, the complainant, when

he has admitted that in the TI parade he identified accused. As per

his evidence the TI parade was held after three to four days of

incident wherein three to four dummies were made to stand out of

which he identified the accused. However, evidence of PW No.1,

investigating officer is to the fact that accused were identified by

complainant on the basis of his photograph in the presence of Panch

and as such he had not held any TI parade. Thus, above

contradictory evidence of investigating officer and complainant also

creates reasonable doubt in the case of prosecution. In fact no

panchas are examined in whose presence complainant is stated to

have identified accused. No reasons are found on record for non

examination of panch witness. Even otherwise there are no

independent witnesses examined during the course of investigation

though according to the case of prosecution alleged incident took

place at the tea stall situated near to Bombay Central Bus Stand at

around 7.30 a.m. and as such there is every possibility of

availability of other witnesses in whose presence alleged incident

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have taken place.

14. Evidence of PW No.4 established fact of complainant visiting

Nagpada Police Station on 16th April 2001 and lodging his report

Exhibit P-5 on the basis of which he registered offence vide Crime

No. 125 of 2001 under Section 420, 170 read with 34 of IPC and

after carrying part of investigation further investigation was carried

out by PW No.1, Laxman Gorey, Police Inspector whose evidence

establishes fact of identification of accused by complainant on the

basis of photograph and recovery of Rs.200/- from the person of

accused on obtaining his personal search. Admittedly no recovery

of Rs.51,500/- involved in this crime has been effected. PW No.1

investigating officer has admitted during the course of investigation

it revealed to him that that accused was in government service in

police department and was under suspension and was facing

departmental inquiry in some other crime.

15. In view of the evidence as aforesaid, prosecution is found to

have miserably failed to establish charge levelled against accused,

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even otherwise according to the settled law while considering

appeal against acquittal when two views are possible on the basis of

evidence on record, one which is taken in favour of accused by the

Trial Court should not be disturbed by the Appellate Court unless

there are compelling circumstances such as non consideration of

evidence on record by the Trial Judge. Even otherwise the scope of

interference of Appellate Court in an Appeal is by and now well

established that unless view taken by the Trial Judge is either

impossible or perverse, it is not permissible to interfere therein.

Upon perusal of the impugned judgment and material placed on

record it is found that accused came to be acquitted by the Trail

Court by passing well reasoned order.

16. In that view of the matter, there is no substance in the Appeal.

17. Hence the Appeal is dismissed.

(P.N.DESHMUKH, J.)