Rakeshkumar S/O. Saniram Kanchan ... vs The State Of Maharashtra
2018 Latest Caselaw 607 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

            CRIMINAL APPEAL NO. 321 OF 2017
                             
1. Rakeshkumar Saniram Kanchan
   Age: 24 years, Occu.: Business,
   R/o Rajiovnagar, Nagara,
   House No.1362/D, Zanshi, Utter Pradesh.

2. Marry @ Sunita John Petrit
   Age: 30 years, Occu.: Household,
   R/o - TRS Colony, Room No.951 E/Nagara,
   Zanshi, Utter Pradesh.                ..APPELLANTS

     VERSUS

State of Maharashtra
For the Loni Police Station, Loni
Tq. Rahata, Dist. Ahmednagar.                           ..RESPONDENT

                          ----
Mr. A.S. Gandhi, Advocate for appellants.
Mr. K.D. Mundhe, A.P.P. for respondent - State.
                          ----

                                   CORAM : SANGITRAO S. PATIL, J.

DATE : JANUARY 18, 2018

ORAL JUDGMENT :-

The appellants have taken exception to the

judgment dated 11th July, 2017 delivered in Sessions

Case No. 96 of 2015 by the learned 2nd Additional

Sessions Judge, Kopargaon, whereby each of them has

been convicted for the offence punishable under Section

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392 read with Section 34 of the Indian Penal Code

(for short "I.P.C.") and sentenced to suffer rigorous

imprisonment for a term of five years and fine of

Rs.3,000/- with default clause.

2. The informant - Prabha @ Baby, resident of

Prem Nagar, Zanshi, Utter Pradesh had came to Shirdi

on 23rd May, 2015 alongwith appellant no.2, who also

was resident of Zanshi and known to her. They stayed

in room no.201 in Sai Ganga Hotel at Shirdi. In

response to the telephonic call of appellant no.2,

appellant no.1 also came there and stayed with

appellant no.2 in that room in that night. The

informant slept on the terrace of that hotel in that

night. On 24th May, 2015 at about 12 noon, the

informant and the appellants went to Shani-

Shinganapur. When they were going back to Shirdi in

a private car, appellant no.2 stopped the car near a

bridge of village Kolhar (Bk.) at about 5.30 p.m. on

the say that she wanted to go for easing. The

3 911-CRAPEAL-321-17

informant also accompanied her and went behind the

bushes near that bridge. Appellant no.1 also went

behind the informant and appellant no.2. He took out

a rope from his bag and tied it around the neck of

the informant. Appellant no.2 caught hold of legs of

the informant. Appellant no.1 severely beat the

informant by fist and kick blows. He took out cash

amount of Rs.5,000/-, gold Mangalsutra weighing 3 to

4 gms. and AADHAR card from the person of the

informant. The informant became unconscious. After

she regained consciousness, she went to the road and

gave calls to the nearby persons. After sometime,

police came there and took her to the hospital at

Loni. She was examined by the Medical Officer, who

noticed certain injuries on her person. The

informant lodged report against the appellants in

Police Station, Loni, on the basis of which Crime No.

I-95 of 2015 came to be registered against them for

the offences under Sections 307 and 397 of the Indian

Penal Code.

4 911-CRAPEAL-321-17

3. Investigation followed. Spot panchnama was

prepared. Statements of witnesses were recorded.

Appellant no.1 came to be arrested on 29 th May, 2015,

while appellant no.2 on 04th July, 2015. Cash amount

of Rs.5,000/- came to be seized from the cupboard in

the house of appellant no.2, pursuant to her

disclosure statement on 08th July, 2015. After

completion of the investigation, the appellants came

to be charge-sheeted for the above mentioned

offences.

4. The learned trial Judge framed charges

against the appellants for the offences punishable

under Sections 307 and 392 of the I.P.C. vide Exh. 5

and read over the contents thereof to them in

vernacular. The appellants pleaded not guilty and

claimed to be tried. Their defence is that of total

denial and false implication.

5. The prosecution examined nine witnesses to

establish guilt of the appellants for the above

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mentioned offences. After scrutinising the evidence,

the learned trial Judge did not find sufficient and

dependable evidence to hold the appellants guilty for

the offence punishable under Section 307 of the

I.P.C. He, therefore, acquitted them of the said

offence. However, the learned trial Judge found

sufficient, cogent and consistent evidence to hold

them guilty for the offence punishable under Section

392 of the I.P.C. He, therefore, convicted and

sentenced them for the said offence as stated above.

6. The prosecution did not challenge acquittal

of the appellants of the offence punishable under

Section 307 of the I.P.C. Thus, the said part of the

judgment has attained finality.

7. The learned Counsel for the appellants

submits that there is no positive, consistent and

dependable evidence produced by the prosecution to

establish guilt of the appellants for the offence

punishable under Section 392 of the I.P.C. He

6 911-CRAPEAL-321-17

submits that the evidence of the informant is full of

material improvements, which makes it unbelievable.

No incriminating article has been seized from the

possession of the appellants which would connect them

with the above mentioned offence. The incident, as

has been narrated by the informant is not natural,

probable and believable. Her evidence is not

supported by the medical evidence. The medical

evidence suggests that the injuries sustained by the

informant were possible due to an accident. The

discovery of Rs.5,000/- at the instance of appellant

no.1 has not been established by the prosecution.

The currency notes alleged to have been seized cannot

be connected with the alleged stolen property. The

evidence of P.S.I. Lokade (P.W.9) in respect of the

alleged discovery of currency notes of Rs.5,000/- has

remained uncorroborated, since no panch witness has

been examined. He submits that the prosecution has

failed to establish guilt of the appellants for the

above mentioned offence, however, the learned trial

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Judge has wrongly convicted them. He, therefore,

prays that the appeal may be allowed and the

appellants may be acquitted.

8. On the other hand, the learned A.P.P.

submits that there was no reason for the informant to

lodge false report and depose false against the

appellants. Her evidence creates great confidence.

The prosecution has examined the witnesses who had

first seen the informant near the spot of the

incident after the incident. They called the police

to the spot of the incident after seeing the

informant. Their evidence corroborates the version

of the informant about the incident in question and

rules out the possibility of there being any accident

causing injuries to her. He then submits that P.S.I.

Lokade (P.W.9) specifically states that at the

instance of appellant no.2, the cash amount of

Rs.5,000/- was recovered from the cupboard in her

house. As such, stolen property has been recovered

8 911-CRAPEAL-321-17

from her. He submits that the learned trial Judge

has rightly convicted the appellants.

9. The informant deposes at Exh. 11 that when

she reached alongwith appellants at Shani-

Shinganapur, appellant no.2 gave something to her as

Prasad and after eating that, she got fainted. The

driver of the car provided her a glass of lemon water

and after drinking that she became normal. When all

of them started going back to Shirdi from Shani-

Shinganapur, both the appellants asked the driver of

the car to stop it near a bridge. The appellants

asked the informant to get out of the car. They paid

hire charges to the driver and asked him to go away

with the car. Thereafter, appellant no.2 caught hold

of hand of the informant and asked to accompany her

as she wanted to go for easing. Accordingly, she

went to bushes standing on the bank of the river.

She gave a water bottle to appellant no.2, but

appellant no.2 threw away that bottle and stood up.

9 911-CRAPEAL-321-17

Thereafter, appellant no.1 came there and tied her

neck by means of a rope. Appellant no.2 sat on her

legs. Appellant no.1 then started giving fist and

kick blows to her. Appellant no.2 took out some

liquid from a bottle and threw it on her person, due

to which she suffered from burning sensation on her

face. Thereafter, she became unconscious and regained

consciousness after one to two hours. She then

realised that the amount of Rs.5,000/-, her gold ear

rings, gold Morni, gold Mangalsutra, silver Taviz of

Sai Baba and silver anklets were stolen away. She

found that the appellants had fled away. She raised

shouts. Some persons came there and called police.

Initially police took her to a small hospital and

then to a big hospital. Her statement was recorded

by police, which was treated as F.I.R. (Exh.12).

10. As seen from the version of the informant,

there was no eye witness to the incident narrated

above. There is no dispute that the conviction can

10 911-CRAPEAL-321-17

be recorded even on the basis of the solitary

uncorroborated testimony of a witness, provided it

inspires confidence. As a rule of caution, the

testimony of such witness has to be scrutinised

cautiously and closely before accepting it as it is.

If the evidence of the informant is considered with

reference to her cross-examination, it will be clear

that she has made a considerable improvements in her

version. She admits that the fact that the appellants

made her to eat Prasad at Shani-Shinganapur is not

mentioned in her statement before the police. She

did not state before the police that she got fainted

after eating that Prasad. She did not state before

the police that her gold ear rings, gold Morni, gold

Mangalsutra, silver Taviz of Sai Baba and silver

anklets were stolen away at the time of the incident.

11. The informant has denied that the contents

of portions marked 'A' (Exh.35), 'B' (Exh.36) and 'C'

(Exh.37) were stated by her before police. It seems

11 911-CRAPEAL-321-17

that the informant is either trying to contradict her

own versions or somebody else is the author of the

said versions.

12. The evidence of the informant suffers from

improvements and material omissions. She had

contradicted her own statements made before the

police as recorded at Exhibits 35, 36 and 37. In the

circumstances, it would be risky and hazardous to

uncorroborate the testimony of the informant.

13. Akshay (P.W.2) and Arban Shaikh (P.W.3) are

the witnesses who claim to have seen the informant

after the said incident of 5.30 p.m.. Akshay (P.W.2)

states that he was going to river Pravara at Kolhar

(Bk.) alongwith Arban Shaikh (P.W.3) when he saw the

informant coming along bank of the river and

requesting them in Hindi to extend help to her.

Blood was oozing from her neck and mouth. Both of

them immediately went to police station and informed

the police.

12 911-CRAPEAL-321-17

14. Arban Shaikh (P.W.3) states that after

seeing the informant, who was at the bank of the

river, Akshay (P.W.2) and himself took her to Shani

temple and then went to police station. He also

states that there was a cut to her throat from which

blood was oozing. The evidence of these witnesses

about what they did after seeing the informant is not

consistent. Akshay (P.W.2) does not state that Arban

Shaikh (P.W.3) and himself took the informant to

Shani temple. Arban Shaikh (P.W.3) admits in his

cross-examination that the informant was standing on

the bridge when they went to the bank of the river.

15. According to the informant the incident took

place at about 5.30 p.m. She remained unconscious

for about one to two hours after the incident. If

that be so, it is difficult to accept the versions of

Akshay (P.W.2) and Arban (P.W.3) that they saw the

informant at about 5.30 p.m. Therefore, the evidence

of those two witnesses would not be helpful to the

13 911-CRAPEAL-321-17

prosecution to corroborate the version of the

informant.

16. Dr. Nita Nikalje (P.W.6)(Exh.26) states that

she examined the informant on 25th May, 2015 at about

1.40 a.m. in the Rural Hospital, Loni and found the

following four injuries:-

1) CLW over right elbow 3x2 cm, tenderness present.

2) CLW over the nose, suspected fracture of nose. So patient was referred for x-ray to higher center.

3) Contusion 2cm extending from one side of neck to the other side with blood clotted seen along with multiple small abrasion over chest and right upper side of chest.

4) Swelling over scalp 2x2 cm.

17. Dr. Baviskar (P.W.7)(Exh.26) examined the

informant on 25th May, 2015 in Rural Hospital, Loni

and found the following injuries :-

                                       14                     911-CRAPEAL-321-17


1)                Multiple abrasion over the entire face.
2)                Tenderness over the chest.
3)                There   was   complaint   of   pains   over   the 
                  shoulder.
4)                Contusion at left and right thigh.
5)                Linear abrasion at the front side of neck.

18. Dr. Baviskar (P.W.7) states that he did not

find any burn marks caused by any chemical substance

on the face of the informant. He did not notice any

fracture of any bone of the informant. He did not

notice any blood clots over her body. He states

that, the injuries found on the body of the informant

were possible by road accident. Thus, his evidence

suggests alternate possibility of sustaining injuries

by the informant in an accident.

19. Pralhad (P.W.4) happened to be the panch to

spot panchnama (Exh.20) prepared on 06th July, 2015.

He states that the appellant no.2 gave a statement on

06th July, 2015 and offered to show the spot of the

15 911-CRAPEAL-321-17

incident. Accordingly, she took to the bank of the

river at village Kolhar (Bk.). Police prepared

panchnama thereof (Exh.20) in his presence. The

evidence of this witness is of no help to the

prosecution. The incident had taken place on 24 th

May, 2015. Spot panchnama (Exh.32) was already

prepared on 25th May, 2015. Therefore, it cannot be

accepted that the spot of the incident was discovered

at the instance of appellant no.2. Moreover, nothing

has been seized from the spot of the incident while

preparing panchanama (Exh.20) which would indicate

that the incident took place there only.

20. The prosecution examined Baban (P.W.8) who

happened to be the Manager of the Sai Ganga Hotel at

Shirdi. He states that the informant and appellant

no.2 had stayed in room no.201 in his hotel in the

night between 23rd May, 2015 and 24th May, 2015. He

further deposes that appellant no.1 also had came

there. All these three persons went to Shani-

16 911-CRAPEAL-321-17

Shinganapur on 24th May, 2015. Appellant nos. 1 and 2

only came back to the hotel at about 8 p.m. and left

the hotel on the say that they were going to Mumbai.

On being asked by him about the informant, they told

him that the informant was sitting on the road.

Thereafter, the informant and the police visited the

hotel and on being enquired by the police, he

informed that the appellants left the hotel at about

half and hour. He gave photocopy of the extract of

the register maintained in the hotel.

21. The learned Counsel for the appellants

submits that there is nothing in the evidence of the

informant or P.S.I. Lakade (P.W.9) that on 24th May,

2015, the informant and himself or any other police

personnel visited Sai Ganga Hotel to enquire about

the appellants. Therefore, according to him, the

evidence of Baban (P.W.8) cannot be believed.

22. The informant specifically states that after

the police came to the bridge where she was standing,

17 911-CRAPEAL-321-17

she was taken to a small hospital and then to a big

hospital. She does not state that she, alongwith

police personnel, had gone to Sai Ganga Hotel at

about 8.30 to 9 p.m. on 24 th May, 2015. If the visit

of the informant to Sai Ganga Hotel at the above

mentioned time itself is doubtful, the evidence of

Baban (P.W.8) about what was told by him to the

informant and police personnel at that time cannot be

believed.

23. P.S.I. Lokade (P.W.9) states that appellant

no.2 gave a statement (Exh.33) and offered to show

the spot where she had kept the money. Accordingly,

she took the panchas and himself to TRS Colony at

Zhanshi, Utter Pradesh and took out the cash amount

of Rs.5,000/- from a cupboard which amount is seized

vide panchanama (Exh.34).

24. The alleged seizure of currency notes of

Rs.5,000/- at the instance of appellant no.2 is not

18 911-CRAPEAL-321-17

at all believable. The evidence of P.S.I. Lokade

(P.W.9) in respect of the alleged statement (Exh.33)

made by appellant no.2 and consequent discovery of

cash amount of Rs.5,000/- has remained totally

uncorroborated. No panch witness has been examined

by the prosecution to prove the discovery statement

(Exh.33) and seizure panchnama (Exh.34). The

evidence of P.S.I. Lokade (P.W.9) about making of the

alleged disclosure statement (Exh.33) by appellant

no.2 is very vague and general. He does not state

the date, time and place when such disclosure

statement was made by appellant no.2. He further

does not state the date and time of sizure of

currency notes at the instance of appellant no.2.

Moreover, the seized currency notes cannot be

connected with the stolen property. The alleged

incident took place on 24th May, 2015. The seizure

panchnama (Exh.34) shows that it was prepared on 08 th

July, 2015. It is difficult to accept the case of

the prosecution that appellant no.2 though committed

19 911-CRAPEAL-321-17

theft of Rs.5,000/- of the informant on 24th May,

2015, kept the said amount untouched till 08 th July,

2015 so as to enable the police to show discovery of

that amount at her instance. In the ordinary course,

she would have spent that amount. There is no

evidence to connect the seized currency notes with

the currency notes alleged to have been stolen. As

such, the amount of Rs.5,000/- allegedly seized at

the instance of appellant no.2 from her house cannot

be said to be the stolen property.

25. The case set up by the informant does not

appear to be natural and probable. The appellants

could have snatched the amount of Rs.5,000/- or other

ornaments worth Rs.8,000/- from her, if they wanted

to do so, in Hotel Sai Ganga or some other place,

where they were together. For committing theft of

the amount of Rs.5,000/- and ornaments worth

Rs.8,000/- they would not have taken her to any place

near the road, which was visible to all. The

20 911-CRAPEAL-321-17

informant certainly would have raised shouts to

invite attention of others. The appellants would not

have taken the risk of getting noticed by passersby

by taking the informant to a place just near a

village and visible from the road. All these facts

and circumstances create a strong doubt as to whether

the informant has stated the factual position.

26. Considering the material improvements and

contradictions in the evidence of the informant, it

is not possible to rely on her evidence in the

absence of any independent corroboration. There is

neither direct nor circumstantial evidence to

corroborate the version of the informant. The

incident as narrated by the informant does not appear

to be natural and probable. In the circumstances,

benefit of doubt will have to be given to the

appellants and they will have to be acquitted.

27. The learned trial Judge did not appreciate

the facts of the case as well as the evidence on

21 911-CRAPEAL-321-17

record correctly and properly. The learned trial

Judge wrongly relied on the uncorroborated solitary

statement of the informant which is not free from

doubt. The appellants are entitled to get the

benefit of doubt. The impugned judgment and order,

therefore, will have to be quashed and set aside.

The fine amount deposited by the appellants will have

to be ordered to be refunded to them. Appellant no.2

has not claimed the seized amount of Rs.5,000/-.

Consequently, the order for disposal of the said

amount passed by the learned trial Judge will have to

be maintained as it is. In the result, I pass the

following order :-

ORDER

1) Appeal is allowed.

2) The appellants are acquitted of the offence

punishable under Section 392 of the Indian

Penal Code.

                                      22                      911-CRAPEAL-321-17


3)             Appellants   be   set   at   liberty   forthwith,   if 

               not required in any other case.



4)             The   fine   amount   of   Rs.3,000/-   deposited   by 

each of the appellants on 11th July, 2017, be

refunded to them.

5) Clause No. 3 of the impugned order is

maintained as it is.

6) Appeal is accordingly disposed of.

[SANGITRAO S. PATIL] JUDGE SSD