Bombay High Court

Pravin Kashinath Pagare And Anr vs The State Of Maharashtra on 3 August, 2022

Bench: S. V. Kotwal

1 / 17 206-APEAL-285-17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.285 OF 2017

1. Pravin Kashinath Pagare
Age 29 years, Occupation Service
Residing at Brk No.14,
Near Sahyadri Colony, Ulhasnagar No.1

2. Rajan Dashrath Chavan
Age 27 years, Occupation Service
Residing at Brk No.27
Room No.315, Near Bhim Nagar,
Sangram Colony, Ulhasnagar No.1

3. Yogesh Vasant Navade
Age 28 years, Occupation Service
Residing at Sahyadri Colony,
Brk No.13, Ulhasnagar No.1

4. Sonusingh @ Sandy Dhansingh Rajpur
Age 26 years, Occupation Service
Residing at Hanuman Nagar,
Near Public Toilet, Ulhasnagar No.1

5. Avinash Pramod Mahale
Age 20 years, Occupation Service
Residing at Near Hanuman Mandir
Behind Dr. Gopal, Ulhasnagar No.1
presently lodged in
Kalyan Central Prison .... Appellant

versus
Digitally
signed by
MANUSHREE
MANUSHREE V NESARIKAR
State of Maharashtra
Through Sr. P. I.
V NESARIKAR Date:
2022.08.06
15:23:15
+0530

Ulhasnagar Police Station
(C.R.No.I-25/2012) .... Respondent

Nesarikar
2 / 17 206-APEAL-285-17.odt

.......

• Mr. Aashish Satpute, Appointed Advocate a/w Ms. Akshata
Desai, Advocate for Appellant .
• Mr. Yogesh Y. Dabke, APP for the State/Respondent.

CORAM : SARANG V. KOTWAL, J.
DATE : 03rd AUGUST, 2022

JUDGMENT :

1. The Appellants have challenged the judgment and

order dated 17/03/2017, passed by Additional Sessions Judge,

Kalyan, in Sessions Case No.211 of 2012. All the Appellants

were the accused in that trial. Appellant Nos.1 to 5 were

respectively accused Nos.1 to 5 before trial Court. It is stated

before the Court that during pendency of this Appeal, the

Appellant No.4 - accused No.4 Sonusingh @ Sandy Dhansingh

Rajpur has expired and therefore the Appeal is now pending

only in respect of Appellant Nos.1, 2, 3 and 5. At the conclusion

of the trial all the Appellants were convicted for the offence

punishable u/s 397 r/w 34 of the Indian Penal Code and were

sentenced to suffer rigorous imprisonment for 7 years and to pay

a fine of Rs.2,000/- each and in default of payment to ssufer 3 / 17 206-APEAL-285-17.odt

simple imprisonment for one month. They were also convicted

u/s 506(2) r/w 34 of the Indian Penal Code and were sentenced

to suffer rigorous imprisonment for 3 years and to pay a fine of

Rs.2,000/- each and in default of payment of fine to suffer

simple imprisonment for one month. They were further

convicted for the offence punishable u/s 341 r/w 34 of the Indian

Penal Code and were sentenced to suffer simple imprisonment for

one month and to pay a fine of Rs.500/- each and in default of

payment to suffer simple imprisonment for 8 days.

2. Heard Mr. Aashish Satpute, learned counsel for the

Appellant and Mr. Yogesh Y. Dabke, learned APP for the State.

3. The charge against the Appellant was that on

03/02/2012 at about 02.00 p.m. at Sahyadri Nagar, Near

Saibaba Mandir, on Public Road, Ulhasngar No.1, the Appellants

committed robbery of Rs.700/- by using deadly weapon i.e. a

knife and also attempted to cause grievous hurt to the first

informant Bhagwan Shivaji Sonar and thus committed offence 4 / 17 206-APEAL-285-17.odt

punishable u/s 397 of the Indian Penal Code. In the same

incident, they also committed the offence punishable u/s 341 r/

w 34, 506(2) r/w 34 of the Indian Penal Code.

4. The Appellant Nos.1 and 2 were arrested at the spot. It

is alleged that the Appellant No.2 had tried to pour petrol on the

person of the first informant and had tried to lit a matchstick.

The Appellant No.2 was found carrying a knife and a bottle

containing petrol. The other accused were arrested subsequently.

At the instance of Appellant No.3 a cash amount of Rs.700/- was

recovered from his house, which he had kept in the pocket of his

pant.

5. After investigation was over, the charge-sheet was filed

and the case was committed to the Court of Sessions. During

trial the prosecution examined 8 witnesses. The important

witnesses were the first informant and the police officer who

had caught the Appellant No.1 and 2 at the spot. The articles

were sent for chemical analysis. No report of C.A. was produced 5 / 17 206-APEAL-285-17.odt

on record. However, the article i.e. the bottle and currency notes

of Rs.100/- denomination were produced in the Court and were

identified. After recording of the evidence, statements of the

Appellants u/s 313 of Cr.P.C were recorded. They denied the

entire incident. At the conclusion of the trial, the Appellants

were convicted and sentenced as mentioned earlier.

6. The most important witness in this case is the first

informant P.W.1 Bhagwan Shivaji Sonar. He has stated that at the

relevant time he was working in a computer institute as a

teacher. Two months prior to the incident dated 02/12/2012 the

Appellant No.4 and the Appellant No.3 had demanded Rs.100

for buying liquor. The first informant was having one sided love

affair. These Appellants threatened to tell about it to others and

because of this apprehension the first informant had paid

Rs.100/- to them. Again thereafter there was some demand, but

the Appellant did not pay anybody. On 02/12/2012 at about

11.30 p.m. all the Appellants approached him and abused him

as he had not paid the money. Then they left. At about 01.30 6 / 17 206-APEAL-285-17.odt

a.m. the first informant was talking with his friend Sunil Kadam.

The Appellants confronted him near Saibaba Mandir and started

beating him. The first informant was travelling on his

motorcycle. The Appellant No.3 Yogesh Navade removed the key

of the motorcycle and handed it over to Appellant No.1. All the

accused then demanded Rs.10,000/-. He did not have any

money. The Appellants threatened to kill him if the payment was

not made. It is further deposed by P.W.1 that the Appellant No.2

Rajan Chavan had removed some petrol from other motorcycle.

He poured it on P.W.1's person. The Appellant No.3 Yogesh

Navade tried to set him on fire by lighting a match stick, but the

Appellant No.1 extinguished it and nothing untoward further

happened. It is his case that the Appellant No.2 Rajan Chavan

threatened him with a knife and one broken beer bottle. P.W.1

then ran in one lane. The Appellant No.2 caught him. At that

time the police officer patroling in the area came there and

caught Appellant Nos.1 and 2. According to him the Appellant

No.2 was having bottle filled with petrol with him. P.W.1 then

went to the police station and lodged his FIR. The FIR is 7 / 17 206-APEAL-285-17.odt

produced on record at Ex.19. It was lodged at 09.30 a.m. at

Ulhasnagar Police Station u/s 397 r/w 34 of the IPC vide

C.R.No.I-25 of 2012. The informant showed the spot of incident

to the police. They carried out spot panchanama. The police

seized his clothes on which petrol was poured. He was sent for

medical examination at Central Hospital Ulhasnagar.

7. In the cross-examination he has stated that he new the

Appellants as they resided in the same locality. P.W.1 was on

visiting terms with the Appellant No.1's brother Pagare who is

friend of P.W.1. He could not give details about when Rs.100/-

were taken from him. Some omissions from the FIR were

brought on record. It was not mentioned in the FIR that at 11.30

p.m. all the Appellants met him and that they again demanded

money. It was not mentioned that at around 12.30 a.m. he had

met his friend Sunil Kadam and that they kept talking till about

01.30 a.m. It was also not mentioned in the FIR that the

Appellant No.2 had threatened him with a broken beer bottle.

He could not explain as to why all these important facts were 8 / 17 206-APEAL-285-17.odt

not mentioned in the FIR. He was cross-examined about the

locality. But he denied the suggestion that the locality was

crowded at about 01.30 a.m. to 02.00 p.m. He admitted that

there was Mamta hospital near the spot, which was open for 24

hours and there were constant visits by patients and others

during the night. The police station was only a minutes walk

from the spot. He had also not mentioned in his FIR that the

Appellant No.2 had caught him.

8. After this cross-examination he was re-examined by the

learned APP. He was shown a motorcycle key, a cold drink bottle,

purportedly containing petrol, 7 notes of Rs.100/-

denomination, a blue shirt, a white T shirt, a pant and a knife.

He identified all those articles. In further cross-examination he

admitted that there were no special marks on the currency

notes. He admitted that the cold drink bottle was easily

available in the market. He also admitted that the knife was not

seized by the police in his presence.

9 / 17 206-APEAL-285-17.odt

9. P.W.2 Pravin Gulab Bhopale was a police constable. He

is an important witness. He was on the patroling duty at the

relevant time. He has deposed that, at about 03.30 a.m., he

heard noise from the main road. He along with others went to

that spot near Saibaba temple. There was quarrel going on

between some people. He saw that five persons had caught one

person. One of those persons was having plastic bottle in his

hand. When the police reached there, three out of five ran away.

The police arrested two persons at the spot. The first informant

told the police that those five persons had taken his money and

had tried to set him on fire by pouring petrol on him. The

arrested accused were Appellant No.1 Pravin Pagare and the

Appellant No.2 Rajan Chavan. P.W.2 and others brought the first

informant P.W.1 and the arrested two accused to the police

station. He prepared a report. He stated that the Appellant No.2

was having a bottle which was having smell of petrol. Even the

first informant's clothes were smelling of petrol. He identified

these articles in the Court. His report is produced on record at

Ex.22. It was addressed to Sr.P.I. of Ulhasnagar police station.

10 / 17 206-APEAL-285-17.odt

There is no time mentioned on that police report. No further

action was taken on this report and no FIR was lodged. The FIR

was lodged at about 09.00 a.m. In the cross-examination, he

deposed that he was not knowing whether Mamta hospital was

open for whole night and whether CCTV cameras were installed

in that hospital. He had not stated names of other police officers

on patroling duty. He could not explain as to how his police

statement did not mention that five persons had caught one

person. The names of accused Nos.1 and 2 were not mentioned

in his police statement and he could not explain it though he

deposed about it during examination-in-chief.

10. P.W.3 Bunty Ramesh Bhamree, P.W.4 Ajay Baisane, P.W.5

Deepak Dayaram Lasi and P.W.6 Sanjay Chanderlal Karara are all

hostile witnesses. They were panchas for various panchanamas.

Therefore those panchanamas were produced on record through

the evidence of police officers.

11. P.W.7 PI Kalyanji Narayan Ghete was attached to

Ulhasnagar Police Station on that day. He took over 11 / 17 206-APEAL-285-17.odt

investigation. He received the FIR, spot panchanama and

personal search panchanama of the Appellants. He arrested the

Appellants Avinash, Yogesh and Sonu Singh. The

accused/Appellant Yogesh showed willingness to produce

Rs.700/- which allegedly were taken from P.W.1. Pursuant to

that statement; Rs.700/- were recovered from his house, which

were kept in the pocket of his pant. The memorandum

statement and panchanama are produced on record at Ex.34

and 35. He recorded statements of witnesses. Seized Muddemal

articles were sent for chemical analysis. The letter sent for C.A.

is produced at Ex.36. After completion of investigation, the

charge-sheet was filed. He has not produced C.A. report on

record. In the cross-examination he admitted that C.A. report is

not on record.

12. P.W.8 P. I. Popat Santram Thanage was attached to

Ulhasnagar police station as A.P.I. He has deposed that the

report at Ex.22 was given by P.W.2. He had recorded the FIR. He

had taken physical search of the Appellant. From one of the 12 / 17 206-APEAL-285-17.odt

accused, he found motorcycle keys and from the Appellant Rajan

he found a plastic bottle containing petrol and a knife from

other pocket. The seizure panchanama to that effect was

prepared and it is produced on record at Ex.38. He went to the

spot with P.W.1 and during spot panchanama he found one

match box below street light. He seized those articles. There was

smell of petrol on the clothes of the complainant. They were

seized. The first informant was referred to hospital and

thereafter he handed over the investigation to P.W.7. In the

cross-examination he admitted that he did not make enquiry

whether CCTV cameras were installed at Mamta Hospital. He

admitted that there is a watchman employed for 24 hours in the

hospital. He denied that there was heavy traffic of patients in

Mamta Hospital. He did not record statements of residents of

the locality. He did not verify or enquire as to whether key found

on the person of the Appellant was of the motorcycle of the first

informant. He could not find the motorcycle which was allegedly

used by the Appellant for removing petrol.

13 / 17 206-APEAL-285-17.odt

13. Learned Judge relied on this evidence and in particular

on evidence of P.W. 1, 3, 6, 7 and 8 to convict the Appellant. He

observed that all odd hours late in the night there was no

possibility of anyone else witnessing the incident. After

consideration of evidence and the articles, the Appellants were

convicted and sentenced by him as mentioned earlier.

14. Learned counsel for the Appellants submitted that in

the deposition of P.W.1 there is absolutely no reference to taking

away Rs.700/- from P.W.1. On the currency notes recovered from

P.W.1, there were no special marks. Key found with the Appellant

No.1 Pravin Pagare was not tested on P.W.1's motorcycle to

establish that it was of the same motorcycle. The C.A. Report is

not produced on record. Therefore adverse inference needs to be

drawn. There is nothing to prove that the petrol was poured on

the person of P.W.1 or that the bottle actually contained petrol.

15. Learned APP submitted that the weapon used is seized

and therefore offence u/s 397 of IPC is made out and the

conviction is properly recorded by the trial Court. He submitted 14 / 17 206-APEAL-285-17.odt

that though there is absence of C.A. report, the evidence of P.W.1

is clear enough. Though he has not deposed about Rs.700/- in

his examination-in-chief, he was shown the currency notes in his

re-examination and he had identified them. He submitted that

two accused were caught at the spot by the police officer, who is

an independent person and his evidence cannot be overlooked.

16. I have considered these submissions. The crucial point

in this case is about Rs.700/-. P.W.1 has not uttered a word about

the Appellant taking that amount forcibly from him. There is no

charge regarding Rs.100/- which were taken two months earlier.

The prosecution case is specifically about the incident dated

03/12/2012 when this amount was forcibly taken from P.W.1 at

the point of knife.

17. As far as recovery of knife and a thumps up bottle filled

with petrol from the Appellant No.2 is concerned, it is important

to note that P.W.2 who had caught the Appellant No.2 at the

spot. He has not uttered a word about the finding of knife. He in

fact had taken the Appellant Nos.1 and 2 to the police station 15 / 17 206-APEAL-285-17.odt

and yet he had made no reference to Appellant No.2 having any

knife. He has only made reference to the bottle containing

petrol. In the report at Ex.22, there is no reference to any knife.

The FIR was lodged at 09.00 a.m. in the morning when the

personal search of the Appellant Nos.1 and 2 was taken. There is

a long gap between the time when these two Appellants were

taken to the police station and the time when their physical

search was taken. There is no explanation as to why the FIR was

not registered in the night itself and why the personal search

was not carried out immediately in the police station.

18. The prosecution has failed to prove use of petrol. The

C.A. report is not on record. Therefore there is nothing to infer or

conclude that the bottle which was allegedly carried by the

Appellant No.2 was filled with petrol. Though clothes of the first

informant were sent for chemical analysis, again there is no report

showing that those clothes showed presence of petrol. Therefore

even to that effect prosecution has failed to prove its case.

16 / 17 206-APEAL-285-17.odt

19. The other circumstance of recovery of motorcycle key

with Appellant No.1 is not connected with the motorcycle of the

first informant. Therefore even this circumstance is not

incriminating.

20. Next circumstance is about recovery of notes at the

instance of Appellant No.3. This also loses its significance

because P.W.1 has not uttered a word about that amount in his

examination-in-chief. Only in the re-examination he has

identified 7 notes of Rs.100 denomination. But even then he has

admitted that there were no special marks on these notes.

Therefore having of some amount in the house of the Appellant

No.3 Yogesh Navade is hardly of any consequence.

21. As far as medical certificate is concerned, the record

shows that though the first informant had made complaint about

blunt trauma, the medical certificate which is produced at Ex.44

along with police letter does not show that he had actually

suffered any injuries. Thus, the prosecution case is extremely 17 / 17 206-APEAL-285-17.odt

doubtful. The friend Sunil Kadam who was talking with the first

informant around that time is not examined. He could have

thrown light on the incident. Thus, the evidence led by the

prosecution is insufficient to prove the case against the

Appellants beyond reasonable doubt and therefore all the

Appellants deserve to be acquitted in this case.

22. Hence, the following order :

ORDER

(i) The Appeal is allowed.

(ii) The Judgment and Order dated 17/03/2017, passed by Additional Sessions Judge, Kalyan, in Sessions Case No.211 of 2012 convicting and sentencing the Appellants is set aside.