The State Of Maharashtra vs Manojsingh Sikandarsingh Tak
2022 Latest Caselaw 11367 Bom

                                              Cri. Appeal No.507/2019
                                  :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD


                CRIMINAL APPEAL NO.507 OF 2019 WITH
                CRIMINAL APPLICATION NO.3220 OF 2021


 Manoj Singh s/o Sikandar Singh Tak
 Age 27 years, Occu. Labour,
 R/o MHADA Colony, Malkapur
 District Buldhana                          ... APPELLANT

          VERSUS

 The State of Maharashtra
 (Copy to be served on the
 Public Prosecutor, High Court of
 Bombay, Bench at Aurangabad)               ... RESPONDENT

                                .......
 Mr. N.S. Ghanekar, Advocate for appellant
 Mr. A.M. Phule, A.P.P. for respondent - State
                                .......

                                  WITH
                      CRIMINAL APPEAL NO.98 OF 2020


 The State of Maharashtra,
 through Police Inspector,
 Chalisgaon City Police Station,
 Tq. Chalisgaon, Dist. Jalgaon              ... APPELLANT

          VERSUS

 Manojsingh s/o Sikandarsingh Tak
 Age 27 years, Occu. Labour,
 R/o MHADA Colony, Malkapur
 Tq. Malkapur, District Buldhana            ... RESPONDENT

                               .......
 Mr. A.M. Phule, A.P.P. for appellant -State
 Mr. N.S. Ghanekar, Advocate for respondent
                               .......




::: Uploaded on - 11/11/2022                ::: Downloaded on - 12/11/2022 00:22:21 :::
                                                    Cri. Appeal No.507/2019
                                   :: 2 ::


                                   WITH
                     CRIMINAL APPEAL NO.462 OF 2020


 The State of Maharashtra,
 through Police Inspector,
 Chalisgaon City Police Station,
 Tq. Chalisgaon, Dist. Jalgaon                    ... APPELLANT

          VERSUS

 Manojsingh s/o Sikandarsingh Tak
 Age 27 years, Occu. Labour,
 R/o MHADA Colony, Malkapur
 Tq. Malkapur, District Buldhana                  ... RESPONDENT

                               .......
 Mr. A.M. Phule, A.P.P. for appellant -State
 Mr. N.S. Ghanekar, Advocate for respondent
                               .......


                               CORAM :       R. G. AVACHAT, AND
                                             R. M. JOSHI, JJ.

                  Date of reserving judgment : 10th October, 2022
                  Date of pronouncing judgment : 10th November, 2022


 JUDGMENT (PER R.G. AVACHAT, J.) :

All these three appeals are being decided by this

common judgment since they are interconnected. Criminal

Appeal No.507/2019 is against conviction. The appellant

therein was convicted by learned Additional Sessions Judge,

Jalgaon vide order dated 2/5/2019, passed in Sessions Case

No.92/2017, for the offence punishable under Sections 459

and 460 of the Indian Penal Code and, therefore, sentenced to

Cri. Appeal No.507/2019 :: 3 ::

suffer rigorous imprisonment for ten years and to pay fine of

Rs.1000/- on both counts, with default stipulation. Along

with appellant Manojsingh, co-accused Sagarsingh was also

prosecuted. He has been acquitted. The State has preferred

two appeals, being Criminal Appeal No.98/2020 for

enhancement of sentence of appellant Manojsingh and

another being Criminal Appeal No.462/2020 against acquittal

of co-accused Sagarsingh Surajsingh @ Fantyasingh of the

offence punishable under Sections 459 and 460 of the Indian

Penal Code and for conviction of the present appellant and co-

accused Sagarsingh for the offence punishable under Section

302 read with 34, 459 read with 34 as well as 460 read with

34 and 380 read with 34 of the Indian Penal Code. This

Court, vide order dated 14/8/2020, refused leave in respect of

co-accused Sagarsingh and granted leave to the extent of

appellant Manojsingh and admitted the said appeal

No.462/2020.

For the sake of convenience, the parties are

referred to as has been referred in Criminal Appeal

No.507/2019.

2. Facts giving rise to the present appeals are as

follows:-

Cri. Appeal No.507/2019 :: 4 ::

P.W.2 Nitin Devre (informant) was a resident of

Adarsh Nagar, Chalisgaon. He has two brothers - Dharamraj

and Jitendra. All the three brothers were residing in three

different houses adjoining to each other. Their parents

namely Dagadu and Jijabai (both deceased) had their house

adjoining the houses of their three sons.

3. Wife of the informant woke him up by 2.30 a.m.

on 2/3/2017 as she had heard some noise emanating from

the house of her parents-in-law. The informant, therefore,

came out of his house. He knocked on the door of the house

of his brother Jitendra (P.W.3) with a view to wake him up.

Jitendra (P.W.3) came out of his house. They saw two

persons coming out of the house of their parents, one after

another. One of them was armed with a Katawani- कटटवणण

(instrument used for house-breaking). They had covered

their face with handkerchiefs. The informant tried to catch

one of them. He threw a bicycle towards one of those two.

The duo took to their heels through a runnel that runs from

behind the house of the informant. The informant entered the

house of his parents to find both of them lying injured, father

on the bed and the mother in the kitchen. Household articles

were strewn in a room all over. A safe was broken open. The

Cri. Appeal No.507/2019 :: 5 ::

ornaments were found missing. The parents of the informant

were rushed to the hospital. The mother was declared

brought-dead. The father passed away five days after the

incident. Mortal remains of both, Dagadu and Jijabai were

subjected to autopsy.

4. The informant lodged the F.I.R. (Exh.45) at

Chalisgaon City Police Station against two unknown persons.

It is stated in the F.I.R. that, the culprits were in the age

group of 20-25 years. Both were sporting shirts and trousers.

Colour of clothes on the person of the culprits was, however,

not stated, as the same was not visible due to darkness.

5. Based on the F.I.R. (Exh.45), crime vide C.R.

No.24/2017 came to be registered for the offences punishable

under Sections 459 and 460 read with Section 34 of the

Indian Penal Code. Both the culprits came to be arrested. The

appellant herein was subjected to test identification parade.

The informant and his brother Jitendra (P.W.3) identified him

in the test identification parade. Pursuant to the disclosure

statement made by the appellant Manojsingh, a Katawani and

gold ornament came to be recovered. All the seized articles

were sent to Central Forensic Science Laboratory for analysis

and report. The scene of offence panchanama was drawn. On

Cri. Appeal No.507/2019 :: 6 ::

investigation, the appellant and the co-accused were

proceeded against by filing charge sheet.

6. Learned Judicial Magistrate, First Class, Court

No.2, Chalisgaon committed the case to the Court of Sessions

for trial in accordance with law. The learned Additional

Sessions Judge framed the charge (Exh.33) against both he

appellants for offence punishable under Sections 459 and 460

of the Indian Penal Code. The record indicates that, no

charge for the offence punishable under Section 302 and/or

394 was framed. Little over 7 ½ years have passed post

incident. It would, therefore, not be desirable to remand the

matter to the trial Court with a direction to frame the charge

for offence punishable under Sections 302 and 394 of the

Indian Penal Code more so when the offence punishable under

Sections 459 and 460 are punishable with imprisonment for

life or imprisonment for a term which may extend to 10 years

with fine as well. The State has, therefore, preferred an

appeal for enhancement of sentence. The offence punishable

under Section 459 is of causing grievous hurt or death while

committing lurking house trespass or house-breaking. The

ingredients of section 459 take care of the concerned of the

State.

Cri. Appeal No.507/2019 :: 7 ::

7. The prosecution examined 17 witnesses and

produced in evidence certain documents to establish the

charge. The trial Court, on appreciation of the evidence in the

case, convicted the appellant and consequently sentenced him

to suffer sentence of imprisonment as stated above.

8. The learned counsel for the appellant Manojsingh

would submit that, the offence is serious one, the prosecution

is required to prove the same beyond reasonable doubt. The

F.I.R. was lodged against unknown persons. Description of

the culprits was not given in the F.I.R. or in the police

statement of eye witness so as to fix identity of the appellant

herein. According to learned counsel, although on arrest of

the appellant Manojsingh, he was subjected to test

identification parade, the rules in that regard have not been

followed and on the contrary, those have been breached. The

learned counsel took us through the relevant evidence of the

prosecution to ultimately submit the same to have failed to

establish the guilt beyond reasonable doubt. He, therefore,

urged for allowing the appeal.

9. The learned A.P.P. would, on the other hand,

submit that, it is a serious offence. Two innocent old aged

persons have been murdered. They have been robbed of

Cri. Appeal No.507/2019 :: 8 ::

their ornaments. The informant gave the description of the

culprits in the F.I.R. The appellant thus came to be arrested.

The test identification parade was conducted by an Executive

Magistrate. The appellant was identified by the eye witnesses

in the test identification parade. Pursuant to the disclosure

statement made by the appellant, a Katawani and a gold

ornament came to be recovered. The same reinforce the

prosecution case. According to learned A.P.P., the sentence

imposed against the appellant Manojsingh was grossly

inadequate. He, therefore, urged for enhancing the same to

imprisonment for life.

10. Although the prosecution examined 17 witnesses,

for deciding the appeal the relevant evidence would be that of

the informant and his brother, besides the evidence relating to

test identification parade and recovery of an iron bar and a

gold ornament pursuant to the disclosure statement made by

the appellant. A brief survey of the evidence for the

prosecution is, however, inevitable.

11. P.W.1 Tushant Ahire is a panch witness to the

scene of offence panchanama (Exh.43). P.W.2 Nitin Devre is

the informant. He lodged the F.I.R. (Exh.45). P.W.3 Jitendra

Devre is another eye witness. He is the son of the deceased.

Cri. Appeal No.507/2019 :: 9 ::

P.W.4 Vijay Patil is a panch witness to the seizure of clothes.

P.W.5 Dilip Satre and P.W.7 Sharad Sonar are the police

officials who carried the seized articles to the office of the

Forensic Science Laboratory. P.W.8 Sharad Shinde is witness

to the inquest panchanama. P.W.9 Dhananjay Deshmukh is a

witness in whose presence test identification parade was held

by P.W.10 Kailas Deore. P.W.11 Dr. Bapu Baviskar and P.W.14

Dr. Nilesh Devraj are the Medical Officers who conducted post

mortem examination. P.W.12 Rameshwar Gade, P.W.13 Sunil

Gaikwad and P.W.17 Adinath Budhwant are the police officials

who did investigation of the crime.

12. Undisputedly, a robbery took place at the house of

informant on the night of 2/3/2017 and the culprits, while

committing the robbery, killed the parents of the informant.

The post mortem examination reports (Exh.97 & 88) of both

the deceased Dagadu and Jijabai indicate they died of head

injury associated with injury to neck and cardio respiratory

failure due to severe head injuries.

13. The informant P.W.2 Nitin testified that, his wife

woke him up by 2.30 a.m. on 2/3/2017 as she had heard

some noise emanating from the house of his parents. It is

undisputed that, the informant and his two brothers were

Cri. Appeal No.507/2019 :: 10 ::

residing in their respective houses adjoining to each other. It

is further in his evidence that, he woke up his brother Jitendra

(P.W.3). Then he moved towards the house of his parents.

He saw one thief came running out of the house of his

parents. He rushed to catch him, but in vain. He picked up a

bicycle and threw towards a thief. The thief ran away. Then

another thief came out of the house of the parents. Jitendra

(P.W.3) tried to catch him, but not successful. Both the

thieves ran away. They were in the age group of 25 years.

Their heights were approximately 5.2 to 6.00 ft. Both of them

were stout. One of them was sporting turban and beard as

well. Both of them had their faces covered. It is further in his

evidence that, Jitendra (P.W.3) and himself entered house of

their parents to find both of them lying injured. Father on the

bed and mother in the kitchen room. Both were rushed to the

hospital. Mother was declared dead before admission. Father

passed away five days after the incident.

14. On the same lines is the evidence of P.W.3

Jitendra. The same is, therefore not reiterated. It has come

in the evidence of Jitendra (P.W.3) that, they had given an

intimation of proceeding on hunger strike if there was no

headway in the investigation.

Cri. Appeal No.507/2019 :: 11 ::

15. It appears that, both the appellant Manojsingh

and co-accused were arrested by police in connection with

some other crime. They were taken in custody in connection

with the present crime. The appellant Manojsingh was

subjected to test identification parade. He was identified by

both, the informant and his brother Jitendra in test

identification parade and before the Court as well.

16. During investigation, the appellant gave a

disclosure statement (Exh.13), pursuant to which Katawani

and golden ornaments came to be seized under the

panchanama (Exh.114). The C.A. reports indicate that, the

blood sample of deceased Dagadu was unsuitable for blood

grouping. The blood group of appellant Manojsingh is 'O'

while the blood group of deceased Jijabai was 'A'. Admittedly,

the seized gold ornaments were not subjected to test

identification nor those were shown to witnesses, namely the

informant and/or his brother Jitendra (P.W.3). It, therefore,

cannot be said that, the said gold ornaments were property

stolen by the appellant from the house of the informant. The

C.A. report as regards blood stains on the seized Katawani is

inconclusive. The Katawani seized pursuant to the disclosure

statement made by the appellant, therefore, could not be

connected with the offence in question.

Cri. Appeal No.507/2019 :: 12 ::

17. The question is, whether the appellant is proved to

be the author of the crime. True, the offence is very serious.

Evidence to prove the same also requires to be of sterling

quality. The informant identified the appellant in the test

identification parade and before the Court as well. It is in his

evidence that, both the culprits were in the age group of 25

years. The culprits had covered their faces with handkerchiefs.

One of the culprits was sporting a turban and beard. The

handkerchief on the person of the appellant got slightly

removed. The informant wanted to suggest that, because of

the same, he could have glimpse of the face of the appellant,

based on which he could identify the appellant in the test

identification parade and before the Court as well.

18. During cross-examination of the informant, it has

come on record that, although he did state in the F.I.R. that

the appellant was sporting turban, the F.I.R. is conspicuously

silent to make mention thereof. He also claimed to have had

stated in the F.I.R. that the handkerchief on the face of the

appellant got slightly removed. He again could not offer any

reason as to why the said fact was not mentioned in the F.I.R.

(Exh.45). The F.I.R. is also silent to state that, one of the

culprits was sporting beard.

Cri. Appeal No.507/2019 :: 13 ::

19. In our view, when a culprit was sporting turban

and beard, the informant had no difficulty to make mention in

the F.I.R. that one of the culprits was probably a 'Sikh'. The

F.I.R. is conspicuously silent to make mention thereof. In our

view, the omission in the F.I.R. as regards handkerchief on the

person of the appellant slightly slipped and he was sporting

turban and beard is a material omission that goes a long way

to help out the appellant herein. It is not known on the basis

of what material the appellant came to be taken into custody

in connection with the present crime for investigation

purpose. There is no evidence in this regard.

20. Same is the case about the evidence of another

eye witness, P.W.3 Jitendra. He has not given description of

the culprits in his police statement.

21. P.W.9 Dhananjay is a witness in whose presence

P.W.10 Kailas Deore conducted test identification parade.

True, in test identification parade both, the informant and his

brother Jitendra (P.W.3) identified the appellant. The panch

witness has stated in his cross-examination that, he was

present in the hall whereat the test identification parade was

held. The witnesses were also present in the very hall.

During their presence, the appellant was brought there. His

Cri. Appeal No.507/2019 :: 14 ::

face was in veil. The dummies were brought thereafter. The

dummies were present outside the cabin of the Tabsildar. This

witness undoubtedly suggests that the informant and the eye

witness Jitendra (P.W.3) had a clue to identify the appellant in

the test identification parade since the appellant was brought

in veil first.

22. Moreover, the evidence indicates that, whilst the

culprits were in the age group of 20 to 25 years, the dummies

with whom the culprit was mingled for being identified were in

the age group of 45. The memorandum of test identification

parade is at Exh.79.

23. In short, the recovery of Katawani and the gold

ornaments pursuant to the disclosure statement made by the

appellant could not be connected with the offence in question

since the gold ornaments were not subjected to identification

during investigation nor those were shown to the informant or

his brother during recording of evidence so as to identify

same to be the property stolen by the appellant from the

house of the informant. The C.A. report as regards the seized

Katawani is inconclusive. The same also, therefore, could not

be connected with the crime in question. Then what remains

is identification of the appellant by the informant and his

Cri. Appeal No.507/2019 :: 15 ::

brother Jitendra (P.W.3), first in test identification parade and

then before the Court. It is reiterated that, the F.I.R. is silent

to mention that the appellant was sporting turban and beard.

Admittedly, the appellant had his face covered with

handkerchief. The F.I.R. is silent to make mention of the fact

that the handkerchief on the face of the appellant got slightly

slipped. As such, whatever has been deposed to by the

informant in this regard before the Court for the first time was

an improvement over the averments in the F.I.R. Same is the

case as regards the evidence of P.W.3 Jitendra. He admittedly

did not give description of the appellant in his police

statement. The evidence of the panch witness to the test

identification parade indicate that, both, the informant and

P.W.3 Jitendra had a clue to identify the appellant in the test

identification parade since when they were in the hall, the

appellant was first brought, he was in veil. Then the dummies

were called. All these things happened in the presence of the

informant and his brother Jitendra (P.W.3). The identification

of the appellant in the test identification parade, therefore,

loses its efficacy. The Tahsildar Kailas Deore (P.W.10) also did

not follow the rules as regards the test identification parade.

Based on such evidence, the trial Court ought not to have

convicted the appellant. We are, therefore, not at one with

Cri. Appeal No.507/2019 :: 16 ::

the findings recorded by the trial Court. Interference with the

impugned order is, therefore, called for.

24. In the result, the Criminal Appeal No.507/2019

succeeds. Hence the order :-

ORDER

(i) Criminal Appeal No.507/2019 is allowed. The impugned

order of conviction and sentence dated 2/5/2019, passed by

learned Additional Sessions Judge, Jalgaon in Sessions Case

No.92/2017 is hereby set aside. The appellant is acquitted of

the offences punishable under Sections 459 and 460 of the

Indian Penal Code. The appellant be set at liberty forthwith if

not required in any other case. Fine amount, if paid, be

refunded to him.

(ii) Consequently, Criminal Application No.3220/2021 filed

for suspension of sentence and releasing the appellant on bail

is disposed of.

(iii) Criminal Appeals No.98/2020 and 462/2020 filed by the

State are dismissed.

          ( R. M. JOSHI, J. )                  ( R. G. AVACHAT, J. )

 fmp/-