Dhanraj Sadashiv Nerkar And 2 ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 9102 Bom

 apeal311.14.J.odt                         1




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


                     CRIMINAL APPEAL NO.311 OF 2014


 1]       Dhanraj Sadashiv Nerkar,
          Aged about 28 years,
          Occ: Driver.

 2]       Vinod s/o Manik Meshram,
          Aged about 21 years,
          Occ: Labour.

 3]       Mahesh s/o Madhukar Hadaoo,
          Aged about 21 years, 
          Occ: Pan Shop.

          All R/o Bhagatsingh Ward,
          Navin Takli, Bhandara,
          presently lodged at Central Prison,
          Bhandara.                                         ....... APPELLANTS


                                   ...V E R S U S...


          State of Maharashtra, through
          Police Station Officer, 
          Police Station Bhandara,
          Tah. & Dist. Bhandara.                             ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.B. Moon, Advocate for Appellants.
          Ms. R.V. Kaliya, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            28    NOVEMBER, 2017.










 ORAL JUDGMENT



 1]               The   appellants   are   aggrieved   by   the   judgment   and

order dated 19.03.2014 in Sessions Trial 51/2011 delivered by

the Sessions Judge, Bhandara, by and under which, the appellants

(hereinafter referred to as "the accused") are convicted for the

offence punishable under sections 323, 342 and 394 read with

section 34 of the Indian Penal Code (IPC for short). The accused

are sentenced to suffer rigorous imprisonment for a period of

seven years and to payment of fine of Rs.1000/- for the offence

punishable under section 394 read with section 34 of the IPC, to

suffer rigorous imprisonment for a period of six months and to

payment of fine of Rs.500/- for the offence punishable under

section 342 read with section 34 of the IPC and to suffer rigorous

imprisonment for a period of six months and to payment of fine of

Rs.500/- for the offence punishable under section 323 read with

section 34 of the Indian Penal Code. The appellants are acquitted

of offence punishable under sections 354, 376 (2)(g) and 506

read with section 34 of the Indian Penal Code.

2] Heard Shri A.B. Moon, the learned counsel for the

appellants and Ms. R.V. Kaliya, the learned Additional Public

Prosecutor for the respondent/State.

3] Shri Moon, the learned counsel for the accused

submits that the judgment impugned is seriously flawed and

militates against the weight of the evidence on record.

The learned counsel would submit, that the identity of the accused

has not been established nor the seizure of the two mobile phones

allegedly stolen from the complainant and his companion (P.W.1

and P.W.2) proved. The conclusions reached by the learned

Sessions Judge are not based on legal evidence, is the submission.

4] Per contra, the learned A.P.P. would contend that the

finding recorded by the learned Sessions Judge that the seizure of

the two mobile phones is duly proved and that P.W.1 Vivek

Khamble and P.W.2 Jayashree Makde have duly identified the

accused in the Court, is unexceptionable and the judgment and

order impugned does not suffer from any infirmity, on facts or in

law.

5] I have given due consideration to the evidence on

record, the submissions canvassed by the learned counsels and the

reasoning of the Sessions Judge, and having done so, I am not

persuaded to uphold the judgment and order impugned.

6] The genesis of the prosecution lies in the oral report

dated 19.04.2011 (Exh.68) lodged by P.W.1 Vivek. The gist of the

report is that Vivek and P.W.2 Jayashree went on a joy ride on a

two wheeler, parked the motorcycle on a road, sought solitude in

an agricultural field and were conversing when four youth

accosted them, robbed Vivek of two mobile phones and Rs.400/-,

three youth tried to drag P.W.2 and when Vivek resisted, he was

assaulted by one of the four youth who was holding Vivek. It is

further stated in the oral report, that the four youth were

misbehaving with P.W.2 and it was only on noticing a motorcycle

approaching, that they ran away since one of them shouted that

the police have arrived. Vivek and P.W.2, due to fear, ran in

different directions. Vivek sought and hitched a ride from a

motorcycle rider and reached the Police Station. He returned with

police and found P.W.2 hiding by the side of the road.

The perpetrators of the crime are described in the oral report as

four youth aged 20 to 25 and the report further ventures to

describe the physical appearances of the youth. The report further

states that one of the youth was referred to as Rahul.

7] On the basis of the said report, offence punishable

under sections 394 and 354 read with section 34 of the IPC was

registered at Police Station, Bhandara. P.W.2, in her statement

recorded on 20.04.2011 disclosed that the four youth outraged

her modesty by pressing her breast. P.W.2 further disclosed

on 21.04.2011, that she was raped by the four youth, and in view

of the two statements given by P.W.2 offence punishable under

section 376 (2)(g) of the IPC was additionally registered.

8] The accused were arrested on 20.04.2011. Be it

noted, that although the accused were arrested on 20.04.2011, no

identification parade was held. The prosecution has not brought

on record as to how the Investigating Agency zeroed down on the

accused. The learned Sessions Judge observes thus:

25. No doubt, prosecution has not brought on record any evidence to point out that on receiving information about incident from Pw-1 Vivek to police, entry was taken in Station diary, and then police were proceeded on the spot along with Vivek, and brought Vivek and Jayashree from place of incident. Prosecution has also not disclosed the names of police officers who had gone for the purpose. Neither statements of such police officers were recorded nor such police officers are cited as witnesses. But only because police have committed mistake, a prosecution story about assault upon complainant Vivek and victim Jayashree, and robbery of two Mobile phones and cash amount amounting to Rs. 400/- by causing hurt to complainant and victim cannot be thrown away, specially in the circumstances that nexus of accused finds place with incident.

Pw-1 Vivek and Pw-2 Jayashree have specifically asserted that accused present before Court and a juvenile in conflict with law Rahul Badwaik had been to a field where they were sitting in loneliness. According to said witnesses, accused persons have beaten them, used force upon complainant as well as victim by taking them aside, and forcibly snatched two mobile phones and Rs. 400/- belonging to complainant Vivek. As victim and complainant could go to a field from Kacha road, it is expected that though it was night time, a sufficient light either of Moon or any other source was available so that movements made can be noticed. In such a situation, identification of accused on the part of said witnesses during investigation before Police and in Court as persons who robbed them by causing hurt cannot be disbelieved.

9] Concededly, P.W.1 and P.W.2 have identified the

accused for the first time in the Court. The observation of the

learned Sessions Judge in paragraph 25 of the judgment

impugned that the witnesses have identified the accused during

investigation, is not substantiated by the evidence on record.

The examination-in-chief of P.W.1 Vivek would reveal that he

identified the accused in the Court. In the cross-examination, a

stray statement has come on record that P.W.1 Vivek did not

know the accused prior to the incident and saw the accused at the

Police Station. P.W.2 does not claim to have identified the accused

in the Police Station or during the investigation and has identified

the accused only during the evidence recorded on 14.08.2013.

10] In my opinion, the observation of the learned

Sessions Judge that the accused are duly identified by P.W.1 and

P.W.2 during investigation, is contrary to record. In so far as the

identification of the accused during the course of trial, after more

than two years and four months of the incident, the same must be

discarded as wholly unreliable and untrustworthy.

11] The only other material, which is held to be

incriminatory by the learned Sessions Judge, is the recovery of

two mobiles, said to be at the instance of accused 1. The two

mobiles, are claimed by P.W.1 to be the same mobiles which were

stolen on the date of the incident. The panch to the seizure of the

two mobiles P.W.6 did not support the prosecution, nothing is

brought on record in the cross-examination conducted by the

learned A.P.P., to assist the prosecution. P.W.1 admits in the

cross-examination, that he did not provide the bills evidencing the

purchase of the two mobile phones, to the police.

12] The evidence on record is grossly insufficient to prove

that the two mobile phones were in possession of P.W.1 on the

date of the incident and that the two mobile phones were

recovered and seized from accused 1 pursuant to memorandum

under section 27 of the Indian Evidence Act.

13] The conviction predominantly rests on the evidence of

P.W.1 and P.W.2. The said witnesses, are however, neither

reliable nor credit worthy. The evidence of P.W.1 and P.W.2 is

replete with obvious falsehood and inter se embellishments.

These witnesses have been disbelieved by the learned Sessions

Court to the extent that the accused are acquitted of offence

punishable under section 354, 376 (2)(g) and 506 read with

section 34 of the Indian Penal Code. Apart from the fact, that the

evidence on record is pathetically in adequate to bring home the

charge under section 394 read with section 34 of the IPC, it would

be extremely unsafe to permit the conviction to hold the field

relying on the identification by P.W.1 and P.W.2 of the accused in

the Court. The credibility of P.W.1 and P.W.2 is seriously dented

due to obviously incredible and improbable version of P.W.2

having been subjected to gang rape, which version the learned

Sessions Judge has rightly disbelieved.

14] On a holistic consideration of the material on record,

I find the judgment and order impugned manifestly erroneous and

I set aside the same.

15] The accused are acquitted of offence punishable

under sections 323, 342 and 394 read with section 34 of the

Indian Penal Code.

16] The bail bond of the accused shall stand discharged.

17] Fine paid by the accused, if any, shall be refunded.

  18]              The appeal is allowed.




                                                   JUDGE



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