Bombay High Court
Pankaj @ Rahul Ramgopal Jagaria vs The State Of Maharashtra on 12 March, 2018
Bench: A.M. Badar
APPEALS-312-2013-349-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.312 OF 2013
PANKAJ @ RAHUL RAMGOPAL JAGARIA )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
WITH
CRIMINAL APPEAL NO.349 OF 2013
PAVAN VASUDEO SHARMA )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Nasreen Ayubi, Advocate for the Appellants in both appeals.
Ms.Anamika Malhotra, APP for the Respondent - State in Criminal
Appeal No.312 of 2013.
Mr.Prashant Jadhav, APP for the Respondent - State in Criminal
Appeal No.349 of 2013.
CORAM : A. M. BADAR, J.
DATE : 12th MARCH 2018
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APPEALS-312-2013-349-2013.doc
JUDGMENT :
1 Criminal Appeal No.312 of 2013 is filed by appellant/
accused no.2 Pankaj @ Rahul Ramgopal Jagaria whereas Criminal
Appeal No.349 of 2013 is filed by appellant/accused no.1 Pavan
Vasudeo Sharma. They both were tried for offences punishable
under Sections 307, 394 and 332 read with 34 of the Indian Penal
Code in Sessions Case No.539 of 2006 before the learned
Additional Sessions Judge, Pune, and by the impugned judgment
and order dated 10th January 2011, they are convicted of offences
punishable under Section 394 read with 34 and Section 332 read
with 34 of the Indian Penal Code. For the offence punishable
under Section 394 read with 34 of the Indian Penal Code, they
both are sentenced to suffer rigorous imprisonment for 7 years
apart from payment of fine of Rs.1,000/-, and in default, to
undergo rigorous imprisonment for 3 months. For the offence
punishable under Section 332 read with 34 of the Indian Penal
Code, they are sentenced to suffer rigorous imprisonment for 2
years. The substantive sentences are directed to run concurrently
by the learned trial court.
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2 Brief facts leading to the prosecution of
appellants/accused can be summarized thus :
(a) PW2 Vishnu Nangare, Police Constable, at the relevant time
was attached to Police Station Nigdi. The incident in
question took place in the night intervening 20 th December
2005 and 21st December 2005. On that day, he was
entrusted with the duty of Commando and he was supposed
to undertake night patrolling on motorcycle bearing No.MH-
12-JA-450. Similar duty was also entrusted to PW3 Arvind
Pawar, Police Constable. He, therefore, took another
motorcycle bearing no.MH-12-G-353. At about 9.45 p.m. of
20th December 2005, they both proceeded for night
patrolling duty. They undertook patrolling of area known as
Ota Scheme, Nigdi and proceeded towards Anandnagar
Thermax Square and thereafter to Dalvinagar. PW3 Arvind
Pawar, Police Constable, was ahead of PW2 Vishnu Nangare.
Police Constable PW3 Arvind Pawar thereafter turned
towards Lokmanya Hospital, Nigdi. PW2 Vishnu Nangare,
Police Constable, followed him. When PW2 Vishnu
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Nangare, Police Constable, reached the railing of Nigdi
bridge, he found a motorcycle parked near the railing. Two
persons were standing on one side of the bridge whereas the
another one was standing on the other side. When PW2
Vishnu Nangare, Police Constable, reached near the parked
motorcycle, the person standing on one side of the bridge
threw some object like rope to other persons who were
standing on the opposite side. PW2 Vishnu Nangare, Police
Constable, suspected some foul play and therefore, he
slowed his motorcycle. All of a sudden, the trio pounced
upon him. His revolver was snatched by one of them. He
was given five or six blows on head by the butt of his
revolver by the assailants, causing bleeding injury to him.
Thereafter, all three robbers fled from the spot by a
motorcycle of Bajaj Boxer make bearing Registration No.MH-
12-AC-4827.
(b) PW2 Vishnu Nangare, Police Constable, informed the
incident to Nigdi Police Station as well as his associate PW3
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Arvind Pawar, Police Constable. PW3 Arvind Pawar, Police
Constable, then took PW2 Vishnu Nangare to Lokmanya
Hospital, Nigdi, for medical treatment. There, First
Information Report Exhibit 36 of PW2 Vishnu Nangare came
to be recorded and accordingly, Crime No.506 of 2005 for
offences punishable under Sections 332 and 394 of the
Indian Penal Code came to be registered. Routine
investigation followed. Appellants/accused came to be
arrested. Clothes of the informant came to be seized under
panchnama Exhibit 14. Spot panchnama Exhibit 65 came to
be recorded. Then the charge-sheet came to be filed.
(c) Appellants/accused persons pleaded not guilty and claimed
trial. In order to bring home the guilt to appellants/accused,
the prosecution has examined in all eight witnesses. The
panch witness Yeshwant Khune is examined as PW1. He
witnessed seizure of clothes of appellants/accused vide
panchnama Exhibit 16. First Informant Vishnu Nangare,
Police Constable is examined as PW2. Arvind Pawar, Police
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Constable, is examined as PW3. Security guard of
Lokmanya Hospital Vikas Gaikwad is examined as PW4.
Medical Officer of Lokmanya Hospital Dr.Vikas Patil is
examined as PW5. PW6 and PW7 namely Vinod Bhosale
and Ashok Bardia are panch witnesses. Investigating Officer
Anant Nikam is examined as PW8. Defence of
appellants/accused is that of total denial.
(d) After hearing the parties, by the impugned judgment and
order, the learned trial court was pleased to convict
appellants/accused for offences punishable under Sections
394 and 332 read with 34 of the Indian Penal Code and they
are sentenced as indicated in the opening paragraph of the
judgment.
3 I have heard Ms.Ayubi, the learned advocate
appointed to represent both appellants/accused at the cost of the
State. She argued that evidence of the prosecution is discrepant
and lacunic. The prosecution has not proved the offence. The
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revolver allegedly looted from the First Informant was never
seized. The incident took place in the midnight and there is no
evidence regarding proper identification of appellants/accused.
Therefore, they are entitled for benefit of doubt.
4 The learned APP supported the impugned judgment
and order by contending that evidence of PW4 Vikas Gaikwad
shows that there was street light as well as moonlight available on
the spot. The identification is proper and evidence of prosecution
is sufficient to establish guilt of appellants/accused.
5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including the oral as
well as documentary evidence.
6 PW2 Vishnu Nangare, Police Constable, who is alleged
victim of the crime in question is a star witness for the
prosecution. His categorical evidence shows that on 20 th
December 2005, on two different motorcycles, he along with his
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colleague Police Constable PW3 Arvind Pawar had left Nigdi Police
Station at about 9.45 p.m. for doing night patrolling in their
territorial jurisdiction. They conducted patrolling at Anandnagar
area, Thermax square area as well as Dalvinagar. Thereafter, as
seen from evidence of PW2 Vishnu Nangare, Police Constable,
they both proceeded towards Gawade Mala area and at that time,
PW3 Arvind Pawar, Police Constable, was proceeding ahead of
PW2 Vishnu Nangare, Police Constable. He turned towards
Lokmanya Hospital, Nigdi, and therefore, PW2 Vishnu Nangare,
Police Constable, also followed him on his motorcycle.
7 As seen from evidence of PW2 Vishnu Nangare, Police
Constable, the incident took place at the bridge of Nigdi. He
stated that he saw a motorcycle parked at the railing of the said
bridge. Two persons were standing on one side of the bridge
whereas one was standing on the other side of the bridge. PW2
Vishnu Nangare, Police Constable, noticed throwing of an object
like rope by person standing on one side of the bridge towards
two others who were standing opposite. This, naturally, caused
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suspicion in the mind of PW2 Vishnu Nangare, Police Constable.
He deposed that, he, therefore, stopped his motorcycle and
immediately thereafter, all three persons pounced upon him. On
checking his pant pocket, one of those persons noticed that he is
having revolver. His revolver was then snatched. Two persons
had beaten him by means of fist and kick blows whereas the third
one gave blows of butt of the revolver on his head. Apart from
this, as per version of PW2 Vishnu Nangare, Police Constable, the
person holding the revolver attempted to fire but could not, as the
revolver was locked. By taking his revolver with them, they all
fled from the spot and he suffered giddiness. From his cell phone
he informed the incident to Nigdi Police Station as well as to PW3
Arvind Pawar, Police Constable. Then, he was taken to Lokmanya
Hospital by PW3 Arvind Pawar, Police Constable, where his FIR
Exhibit 37 came to be recorded.
8 PW2 Vishnu Nangare, Police Constable, has deposed
that thereafter on 16th January 2006, Senior Police Inspector of
Nigdi Police Station showed four suspects to him from which he
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identified two persons to be the robbers. PW2 Vishnu Nangare,
Police Constable, deposed that the accused persons present before
the court are the same persons who robbed him.
9 Cross-examination of PW2 Vishnu Nangare, Police
Constable, shows that at the time of the incident, there was
darkness on the road. The spot of the incident was a barren land
from which a stream passes. He, further, admitted that, three
robbers abruptly came near him and the incident took place.
10 Version of PW2 Vishnu Nangare, Police Constable,
about the incident of robbery is gaining corroboration from
evidence of PW3 Arvind Pawar, Police Constable. He stated that,
he along with PW2 Vishnu Nangare, Police Constable, were doing
patrolling from 9.45 p.m. of 20th December 2005 and when he was
proceeding from Gawade Mala area, he got a phone call from
PW2 Vishnu Nangare, Police Constable, and therefore, he came
back and saw PW2 Vishnu Nangare, Police Constable, in an
injured condition. This witness also proved former statement of
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PW2 Vishnu Nangare, Police Constable, regarding robbing of
revolver. As per version of PW3 Arvind Pawar, Police Constable,
he, thereafter, admitted PW2 Vishnu Nangare, Police Constable, to
Lokmanya Hospital, Nigdi.
11 Cross-examination of PW3 Arvind Pawar, Police
Constable, shows that the incident took place in an area
surrounded by trees. PW4 Vikas Gaikwad is the security guard
working at Lokmanya Hospital, Chinchwad. He claims himself to
be an eye witness to the incident in question. He deposed that
while proceeding from the road at Gawade Mala, at about 10.30
to 10.45 p.m., on 20th December 2005, he saw three persons
assaulting one person in the moonlight as well as electric light on
that spot. Subsequently, the police brought injured PW2 Vishnu
Nangare, Police Constable, to Lokmanya Hospital for treatment.
12 Most glaring infirmity in evidence of this witness is to
the effect that this witness has not identified any of the
appellants/accused while in the dock. Rather, the Public
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Prosecutor had not pointed out appellants/accused to him during
the course of recording of his evidence in order to ascertain
whether he is in a position to identify the robbers, whom he
alleged to have seen assaulting PW2 Vishnu Nangare, Police
Constable. Moreover, evidence of this witness that there was
moonlight as well as electric light on the scene of occurrence is
coming on record by way of omission.
13 The harmonious reading of evidence of all these seven
witnesses goes to show that PW3 Arvind Pawar, Police Constable,
who was in the vicinity at the time of the incident, had not seen
any of the robbers. PW4 Vikas Gaikwad, who claims to have seen
the incident as well as the robbers, was not shown appellants
/accused for the purpose of identification. PW2 Vishnu Nangare,
Police Constable, the First Informant as well as the victim of the
crime in question is stating that there was darkness on the spot of
the incident and the incident took place abruptly. His cross-
examination reveals that the spot was surrounded by barren land
a stream. Exhibit 65 is the panchnama of the spot of the incident
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prepared by the Investigator. The spot panchnama does not show
that there was any source of light on the spot of the incident.
What is noted in the spot panchnama is existence of iron pole of
light on the northern side of the road. The spot panchnama
reveals that neither there was any house in the vicinity of the spot
of the incident nor there were street lights on the spot, which was
on the road proceeding from Gawade Mala to Udyog Nagar,
Chinchwad. Thus, the incident happened at an isolated spot in the
midnight of the night intervening 20 th December 2005 and 21st
December 2005. Cross-examination of PW8 Anant Nikam, the
Investigating Officer, reveals that when he inspected the spot in
the night, it was dark. Thus, the incident took place in the dark
night on a spot where the visibility was poor. Evidence on record
does not indicate that there was electric pole with electric light in
a lit condition near the spot of the occurrence. Evidence of PW2
Vishnu Nangare, Police Constable, and PW3 Arvind Pawar, Police
Constable, is conspicuously silent regarding availability of light or
street light at the spot or in the vicinity of the spot. The spot
panchnama does not reveal availability of source of light at the
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spot. Investigating Officer PW8 Anant Nikam, Police Sub-
Inspector, who immediately proceeded to the spot after the
incident, did not find availability of moonlight thereat, nor he
found any streetlight. Even the FIR Exhibit 37 lodged by injured
PW2 Vishnu Nangare, Police Constable, does not show that source
of light was available on the spot of the incident. It is a matter of
common knowledge that in the darkness, unknown persons
cannot be identified unless and until there is sufficient opportunity
to see such persons. In this view of the matter, holding that
appellants/ accused persons are the same persons who robbed
PW2 Vishnu Nangare, Police Constable, of his firearm in the
midnight, would be risky and evidence regarding identification of
appellants/ accused coming on record from mouth of PW2 Vishnu
Nangare, Police Constable, is doubtful. He claims to have been
shown four suspects on 16th January 2006 out of which he
identified two persons. Even the Test Identification Parade was not
conducted by the prosecution to lend assurance to the evidence of
PW2 Vishnu Nangare, Police Constable. To crown this all, despite
thorough investigation, the Investigator could not recover the
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firearm allegedly robbed from PW2 Vishnu Nangare, Police
Constable.
14 The prosecution is relying on the voluntary disclosure
statement of appellants/accused persons which is at Exhibit 57.
This statement is recorded on 20 th January 2006. The fact which
the prosecution is alleged to have discovered on the basis of
disclosure statement of the accused persons is the spot of the
incident. This spot of the incident was already known to the
police, in view of the fact that the same was shown by PW2
Vishnu Nangare, Police Constable, and that, on 21 st December
2005 itself, by inspecting the spot, the Investigator had seized the
walkie talkie therefrom.
15 Except this, there is no evidence to connect
appellants/accused to the crime in question. Though the
prosecution has established that PW2 Vishnu Nangare, Police
Constable, was robbed of his firearm in the night hours of 20 th
December 2005 at Nigdi bridge after causing injuries to him, as
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seen from evidence of PW5 Dr.Vikas Patil, the prosecution has
failed to establish the fact that those were appellants/accused
persons along with the absconding accused, who committed
robbery of the firearm after causing hurt to First Informant PW2
Vishnu Nangare, Police Constable. In the result, the appeals
deserve to be allowed, and therefore, the order :
ORDER
i) Both the appeals are allowed.
ii) The impugned judgment and order dated 10 th January 2011
passed by the learned Additional Sessions Judge, Pune, in
Sessions Case No.539 of 2006 is quashed and set aside.
iii) Both appellants/accused persons are acquitted of offences
punishable under Sections 394 and 332 read with 34 of the
Indian Penal Code.
iv) They be set at liberty forthwith if not required in any other
case.
v) Fine amount, if any paid by them, be refunded to them.
vi) The appeals stand disposed of in above terms.
(A. M. BADAR, J.)
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