Hanumant Bhimayya Bore vs The State Of Maharashtra
2022 Latest Caselaw 7295 Bom

                                1 of 14               212-apeal-184-1997


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 184 OF 1997

Hanumant Bhimayya Bore
Aged about 24 years,
R/o. Room No.252, P. B. Marg,
Lokmanya Tilak Nagar,
Mumbai 400 025.                                     ..Appellant

       Versus

The State of Maharashtra
(At the instance of Borivali p.stn.)                ..Respondent

                             __________

Mr. S. P. Kadam, for Appellant.
Smt. Veera Shinde, APP for State/Respondent.
                            __________

                         CORAM : SARANG V. KOTWAL, J.
                         DATE : 28th JULY 2022

JUDGMENT :

1. This is an Appeal challenging the Judgment and order

dated 21/01/1997 passed by the learned Additional Sessions

Judge, Greater Mumbai in Sessions Case No.1362 of 1994 with

Sessions Case No.648 of 1995 with Sessions Case No. 1145 of

1996. Appellant was the original Accused No.4. He faced the trial

along with five other accused. At the conclusion of the trial he was

Gokhale 2 of 14 212-apeal-184-1997

convicted and sentenced as under:

i) The Appellant was convicted for commission of

offence punishable U/s.452 r/w. 34 of I.P.C. and was sentenced to

suffer R.I. for 31/2 years and to pay a fine of Rs.1000/- and in

default to suffer S.I. for 15 days.

ii) The Appellant was convicted for commission of

offence punishable U/s.342 r/w. 34 of I.P.C. and was sentenced to

suffer R.I. for six months.

iii) The Appellant was convicted for commission of

offence punishable U/s.395 r/w. 34 of I.P.C. and was sentenced to

suffer R.I. for 31/2 years and to pay a fine of Rs.1000/- and in

default to suffer S.I. for 15 days.

iv) The Appellant was convicted for commission of

offence punishable U/s.397 r/w. 395 of I.P.C. and was sentenced to

suffer R.I. for 7 years.

All the substantive sentences were directed to run

concurrently. The Appellant was given benefit of set off U/s.428 of 3 of 14 212-apeal-184-1997

the Cr.p.c.

2. The prosecution case is that, on 11/01/1994, at about

10.30a.m. about 5 to 6 persons entered the house of the first

informant Jyotiben Madhani and committed robbery in her house.

While robbers were still in the house, her husband Jugraj returned

from his office. He was assaulted with knife. Their domestic help,

who was a 12 years old boy; was also assaulted with a knife. The

robbers took away gold ornaments, silver ornaments, cash and

other valuable articles. The informant Jyotiben was tied with her

saree. She somehow rescued herself and rescued other two

injured. Thereafter, her husband made a telephonic call to the

police from his neibhour's phone. The police came to their house.

They recorded the F.I.R. of Jyotiben. The ofence was registered

vide C.R.No.16 of 1994 at Borivali police station under Sections

452, 341, 342, 395, 397 r/w. 34 of I.P.C. The investigation was

carried out. The accused were arrested. The appellant was arrested

on 04/02/1995. The Test Identification Parade was held at Borivali

police station itself on 20/02/1995, wherein the first informant

Jyotiben and her husband Jugraj identified the present appellant 4 of 14 212-apeal-184-1997

as the person who was carrying knife and who had assaulted the

informant's husband Jugraj. The investigation was completed. The

charge-sheet was filed and the case was committed the court of

Sessions. During trial, the prosecution examined 12 witnesses. The

defence of the appellant was of total denial.

3. As far as present Appellant is concerned, out of 12

witnesses only five witnesses are important for him. Other

witnesses for consideration of case against him are irrelevant,

however, to complete the list of witnesses, those other witnesses

are as follows.

PW-1 Uchayya Rame Gouda was a pancha who was

present when the Ambassador car was recovered at the instance of

accused No.3 Narsayya Asayya Kalmada. PW-2 Ravindra

Madhusudan Patade was a pancha who was present when the

ornaments were recovered at the instance of accused No.2

Mancherala Lanchchayya Balayya. PW-3 John Benjiman D'Souza

was a pancha in whose presence jewellery was recovered at the

instance of accused No.6 Thokkalla Narsayya Chandrayya. PW-4 5 of 14 212-apeal-184-1997

Mohd. Rais Mohd. Amin Shah was a pancha in whose presence

money was recovered at the instance of accused No.1 Laxman

Lingayya Medi. PW-6 Prabhakar Vithal Inamdar was the S.E.M.

who had conducted test identification parade when accused No.5

Pallikoda Ashok Narsayya and accused No.6 Thokkalla Narsayya

Chandrayya were identified by the witness. PW-7 Dharmendra

Kashinath Jadhav was another S.E.M. who had conducted test

identification parade when accused Nos.1 and 2 were identified.

PW-8 Narsayya Rayamalu Bore was accused No.2's uncle; he had

turned hostile. The prosecution case is that, he had produced

heavy golden ring which was given to him by the accused No.2.

4. Thus, important witnesses, as far as the present

Appellant is concerned, are PW-9 Jyotiben Madhani the first

informant, her husband PW-10 Jugraj Chhogmal Madhani, PW-5

Sitaram Bhaguram Jadhav, S.E.M. who had conducted test

identification parade at Borivali police station when PW-9 and PW-

10 had allegedly identified the present Appellant. PW-11 Vilas

Gemu Rathod, P.S.I. had taken down the F.I.R. and had recorded

the statements of some witnesses. PW-12 Maruti Ganpatrao 6 of 14 212-apeal-184-1997

Sapkal, P.I. was the investigating officer who had arrested the

Appellant on 04/02/1995. He had also arrested other accused and

had effected recovery at their instance and had filed charge-sheet

at the conclusion of the investigation. These are the important

witnesses.

5. The prosecution case has unfolded through the evidence

of PW-9 Jyotiben. She has stated that, she was residing at Borivali

(West) with her husband and son. On 11/01/1994, her husband

and son had left for their office, at around 9.00a.m. Their domestic

help Dalpat was in the house at that time. At around 9.30a.m. one

Laxman, who was a domestic servant in another flat in the same

building, had come to her house. He entered the house on the

pretext of repaying the loan which the informant had given to his

wife. In the deposition, PW-9 has further stated that, he was

followed by 5 to 6 others. They covered her face and pushed her.

One of them assaulted her with fist blows. She fell down. One of

them tied her with her saree. She was thrown in a corner. One of

them sat on her throat. She identified accused No.2 as the person

who had sat on her throat. In the meantime, the door bell rang 7 of 14 212-apeal-184-1997

once again. Her husband entered the room. The assailants

snatched her gold bangles and the gold chain from her person. As

soon as her husband entered the room, all the robbers pounced

upon him. He was forced to handover keys of the cupboard under

threats. They opened the cupboard and removed all golden and

silver ornaments from the cupboard. They put those articles in the

pillow cover from the flat itself and went away. Somehow she

untied herself and rescued her husband and Dalpat. Both of them

had suffered injuries. Her husband called the police. In all, the

robbers had taken 2 Kg. of golden ornaments and ½ Kg. of silver

ornaments comprising of necklace, painjans, bands etc. After the

police came, she gave her statement. She has stated that, she was

called twice at the police station where certain persons were

shown to her. On her first visit she identified two persons, but she

does not remember as to how many persons she had identified in

her second visit. She identified the Appellant and others in the

court as the persons who committed robbery in her house.

In her cross-examination, she has stated that, Dalpat

was 12 years of age. She denied the suggestion that her husband 8 of 14 212-apeal-184-1997

was not tied by the robbers or that he was not in the house at all.

She accepted that, in the F.I.R. she had given description of only

two persons and that she was informed by her husband and Dalpat

that there were five more persons with the accused No.1 Laxman.

She accepted that, in the F.I.R. she has attributed role only to three

accused persons i.e. accused No.1 and two others. She accepted

that, she had not stated before the police that Dalpat was attacked

with knife on his chest.

6. Another important witness is PW-10 Jugraj, husband of

PW-9. He has stated that, he returned to his house at around

10.30a.m. for having tea. The accused No.1 and one more person

opened the door from inside and they left. As soon as he entered

the house, 4 to 5 persons came out from the kitchen and bedroom.

They covered his face, caught him and started assaulting him. One

of them was holding a knife. He sustained injury above the left

eyebrow and right side of the chin. They removed articles from the

cupboard. Cash amount of Rs.5 lakhs was also removed. Then his

mouth was covered. The articles were filled in the pillow cover

from the flat and then they left the flat. After some time, his wife 9 of 14 212-apeal-184-1997

came and helped him and Dalpat. He went to a neighbour's flat

and made a phone call to the police. By that time, many persons

from the building had gathered. The police came soon after and

registered the F.I.R. He has deposed that, during that period the

robbers were around him and within his sight. He was injured by

means of knife above his left eyebrow and on right side of chin. He

has stated that, he went to Borivali police station four times and

once to Arthur Road Jail and he identified the accused on those

occasions. He was shown various portions from his statement

which were contrary to his evidence. Those portions were proved

through the evidence of police officer who had recorded his

statement.

7. The next important witness is Sitaram Jadhav, S.E.M.

who is examined as PW-5. He deposed that, he conducted the test

identification parade on 20/02/1995 at around 3.00p.m. He went

to Borivali police station and met P.I. Sapkal who arranged for two

panchas. The Appellant was in the lockup on the first floor. He

then selected the dummies. The police officer told him that,

witnesses were standing outside the entry gate of the Borivali 10 of 14 212-apeal-184-1997

police station. He along with panchas went there and brought

those witnesses to the reception room of the police station. He

inquired with the witnesses whether they had seen the accused

after the incident. They replied in the negative. Both these

witnesses identified the Appellant by touching him.

In the cross-examination, he admitted that there was

an old mark of injury on the nose of the Appellant which was

noted by him in the panchanama. He has not mentioned in the

memorandum panchanama about such mark on the faces of

dummies. The memorandum panchamama was produced on

record at Exhibit 26. It is mentioned in the parade memo that the

appellant was holding a knife and that he had tied PW-9 with saree

and had kept her in the passage. PW-9 had stated that the

appellant was holding a knife and he had caused injuries to PW-

10's left eyebrow and right side of chin with that knife.

8. PW-11 and 12 had carried out the investigation as

mentioned earlier. The contradictions from the statements of the

witnesses, as well as, from the F.I.R. are brought on record in the 11 of 14 212-apeal-184-1997

cross-examination of PW-11. PW-12 had admitted that, there was

no recovery at the instance of present appellant. The statements of

persons residing in the building were not recorded.

9. Learned counsel for the Appellant submitted that the

evidence of PW-9 and PW-10 is not consistent. They had not given

description of all the accused. In fact, PW-9 is specific in her F.I.R.

that there were only three persons including accused No.1. She

was told by PW-10 and Dalpat that there were 5 to 6 other

persons. Therefore, her identification carries no weightage. As far

as PW-10 is concerned, he had entered the flat subsequently and

immediately his face was covered by the accused. Therefore, there

was no occasion for him to identify other accused. There are no

other circumstances of recovery of either weapon or any of the

articles at the instance of present appellant. Therefore, on this

weak pieces of evidence, conviction cannot be sustained.

10. Learned APP, on the other hand, opposed these

submissions. According to her, evidence of PW-9 and 10 is

sufficient to prove the guilt of appellant. There was no lacuna in 12 of 14 212-apeal-184-1997

the conduct of identification parade. The witnesses were asked by

PW-5 as to whether they had seen the appellant before the parade,

to which, they had replied in the negative. Therefore, evidence of

identification parade was enough to base conviction.

11. I have considered these submissions in the backdrop of

the evidence discussed earlier. The prosecution case rests heavily

only on the evidence of PW-9 and 10, as mentioned earlier. PW-9

was the first informant. Though, in her deposition she has stated

that 5 to 6 other persons entered with accused No.1 at the time of

commission of robbery, but her F.I.R. is to the contrary. In her F.I.R.

(Exhibit 33) she has categorically stated that, only two persons

had followed accused No.1. She had given description of only two

accused. She has stated in her F.I.R. that, accused No.1 Laxman

had taken her to the passage. There is no reference to any person

holding knife. However, in the test identification parade she had

attributed knife to the accused No.4. This part is missing from her

F.I.R. It is her case in the parade memo that, the appellant had

taken her to the passage. Even this is contrary to her F.I.R.

Significantly, she has also identified accused Nos.1, 2, 5 and 6 in 13 of 14 212-apeal-184-1997

two separate identification parades. Therefore, her evidence raises

serious doubt about her identification of the offenders.

12. So far as PW-10 is concerned, a very significant

contradiction from his police statement is brought on record which

is marked at Exhibit 47. He had stated before the police that, out

of those persons, who had assaulted him and with what weapon,

he was unable to state. However, in the test identification parade

he has attributed knife and specific role to the appellant, which is

directly contrary to his version in his police statement. In his

deposition, he has stated that, as soon as he entered the house,

offenders covered his face. Therefore, it is difficult to believe that

he could have seen the offenders. In this view of the matter, if the

evidence of test identification parade becomes extremely weak,

there is no other circumstance against the present Appellant in the

form of recovery of either stolen articles or of a knife. In this view

of the matter, prosecution has failed to prove the case against the

appellant beyond reasonable doubt. Therefore, he deserves to be

acquitted.

                                                   14 of 14                212-apeal-184-1997


                     13.   Hence, the following order is passed:


                                                     ORDER


                           i)     The Appeal is allowed.


                           ii)    The impugned Judgment and order, as far as

present Appellant is concerned, is set aside.

iii) The conviction and sentence recorded against the

present Appellant is set aside.

iv) The Appellant is acquitted of all the Charges for

which he was convicted and sentenced.

v) The Appellant is already on bail. His bail bonds

shall stand discharged.

vi) It is made clear that this decision is only in respect

of the present Appellant.

vii) The Appeal is disposed of.

(SARANG V. KOTWAL, J.) Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.08.01 15:26:50 +0530