Vijaykumar Harihar Giri And Ors vs The State Of Maharashtra
2022 Latest Caselaw 10773 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO.317 OF 2014

1. Vijaykumar Harihar Giri,
2. Ashokkumar Shivkant Jaiswar,
3. Narendra @ Kandi @ Lalmani Giri, &
4. Anil Sherbahadur Giri.                       .... Appellants
            Versus
The State of Maharashtra                        .... Respondent
                                  ......
Mrs. Pooja Sejpal, Advocate i/b. Nitin Sejpal for the Appellants.
Mr. S.R. Agarkar, APP, for the Respondent-State.
                                  .....

                            CORAM : SARANG V. KOTWAL, J.

                            DATE      : 14th & 17th OCTOBER, 2022
ORAL JUDGMENT :

1. The appellants were the original accused Nos.1 to 4 in

Sessions Case No.482/2008. Accused No.5 was discharged and

accused No.6 was absconding. At the conclusion of the trial, learned

Special Judge under the MCOC Act, Greater Mumbai vide his

judgment and order dated 6.3.2014 convicted and sentenced the

appellants as follows :

i. The appellants were convicted for commission of offence

punishable under Section 399 of IPC and were sentenced to suffer RI

for five years and to pay fine of Rs.1000/- and in default to suffer

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further RI for three months.

ii. It was observed that the accused Nos.1, 2 and 3 had undergone

the sentence and accused No.4 was granted set off under Section 428

of Cr.P.C.

The appellants have challenged this order in the present

appeal.

2. The prosecution story, in brief, is as follows :

PW-1 Ramesh Bhokare was a Constable attached to Crime

Branch. On 26.4.2008 he received a secret information that some

persons were to assemble near Govindram Lacchi Snacks and Veg.

Hotel for committing dacoity at a jewellers shop at Kalbadevi. He

informed the superiors and arrangement was made to lay a trap. At

about 3.15 p.m., three persons came near that hotel. After about 15

minutes, two more persons came there on motorcycle and joined

them. They went inside the hotel. PW-1 followed them there. He sat

close to them. He overheard their plan to commit robbery in Prakash

Gold Palace. All these persons came out. One of them started going

towards the jewelers shop. Four persons remained near the hotel.

The raiding party apprehended them immediately. The fifth person

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managed to escape. The apprehended persons were searched and

weapons were recovered from their possession. On this basis, FIR was

lodged vide C.R. No.118/2008 under Sections 399 and 402 of IPC

read with Sections 3, 25 and 27 of the Indian Arms Act at L.T. Marg

Police Station. The investigation was carried out and the charge-sheet

was filed. It was revealed that the accused - appellants were involved

in a murder case. They faced a separate trial under the provisions of

the MCOC Act vide Special Case No.7/2008. That trial was

concluded before the present Sessions Case. In that trial, all of them

were convicted and sentenced. By consent of both parties i.e.

prosecution as well as defence, evidence of some of the witnesses

from that trial was taken on record in the present Sessions Case

No.482/2008. In all, seven witnesses were part of the Sessions Case

No.482/2008. The defence cross-examined four witnesses out of

them in addition to the cross-examination which was already

conducted in the said MCOC Act case. Thus, the prosecution relied on

the evidence of PW-1 Head Constable Ramesh Bhokare, PW-2 Head

Constable Saiman Fernandes, PW-3 Ashish Shukla who was a pancha,

PW-4 API Ajay Joshi, PW-5 Shamsundar Munj who was an ballistic

expert, PW-6 Mrs. Anjali Badade who was an Assistant Chemical

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Analyst, PW-7 DCP Jadhav who had recorded confessional statement

of the appellant Anil Giri during the course of investigation of the

offence under the MCOC Act. He had also given sanction to prosecute

these accused under the Arms Act.

3. The defence of the appellants was of total denial.

Appellant No.1 Vijay Giri's defence was that he was apprehended

from his house by Shri Dhamankar of Unit No.III who was

accompanied by team of police officers. Appellant No.2 Ashokkumar

Jaiswar's defence was that he was apprehended by four police officers

from his house on 25.4.2008. The defence of appellant No.3

Narendra Giri was that he was apprehended by police of Unit-III on

25.4.2008 from Ashokvan Rikshaw Stand at 6.00 to 6.30 a.m.. And

the defence of the appellant No.4 Anil Giri was that he was

apprehended on 24.4.2008. His mobile phone was seized. His

mother had filed complaint of missing with Kurar Village police

station on or about 25.4.2008 as he had not reached home on

24.4.2008. He was falsely implicated in this case.

4. After considering the evidence on record and the defence

of the appellants-accused and after hearing the parties, learned trial

Judge convicted and sentenced the appellants as mentioned earlier.

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5. Heard Ms. Pooja Sejpal, learned counsel for the appellants

and Shri S.R. Agarkar, learned APP for the Respondent-State.

6. PW-1 Head Constable Ramesh Bhokare has deposed that

on 26.4.2008 he was on duty in the office of Crime Branch, CID, CIU

Operation. At about 1.30 p.m. he received a secret information that

some persons were to assemble near Govindram Lacchiram Hotel and

they were planning to commit dacoity at one of the jewelers shop in

Kalbadevi. PW-1 conveyed this information to his superior Sr.P.I. Shri

Sandbhor. The police arranged to lay a trap. They proceeded

towards Kalbadevi. They reached there at around 2.15 p.m.. They

divided themselves into two groups. PW-1's group stood near the

said hotel. The other group stood at some distance. At about 3.15

p.m., three persons came near that hotel. After fifteen minutes, two

persons came there on a motorcycle and met those three persons.

Then all those five persons entered said hotel. PW-1 followed them.

He sat just behind the table of those five persons. He overheard them

discussing commission of robbery at Prakash Gold Palace. One of

those five persons was asked to enter the shop with his weapon and

others were to follow him. The accused Anil was asked to keep his

motorcycle started. After the robbery, two of them planned to go on

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that motorcycle and they decided to meet at Dahisar. On hearing this

conversation, PW-1 was convinced that they were the same persons

who had came there to commit dacoity. He came outside the hotel

and informed his superior Sr.PI Shri Sandbhor. Those five accused

came out of the hotel and one of these five accused proceeded

towards Prakash Gold Palace. The other four came outside the hotel

and stood nearby. PW-1's other group started joining the other group.

Those four accused persons got alerted and they started keeping

distance between themselves. The raiding party immediately

apprehended them. PW-1 himself went to Prakash Gold Palace in

search of the fifth person but he was not found. He had absconded.

Those four persons, who were apprehended at the spot, were

searched in presence of the panchas. All those four persons are the

present appellants before the Court. Their names were given by

those persons themselves. Appellant No.1 Vijaykumar Giri was found

to carry a country-made firearm containing two live-cartridges.

Appellant No.2 Ashokkumar was having one knife. Appellant No.3

Narendra was having one knife and appellant No.4 Anil was also

having a knife. Besides these weapons, the accused were carrying

currency notes, cards etc.. Motorcycle key was found with the

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appellant No.4 Anil. The motorcycle bearing No.MH-03-AL-8044 was

parked on the other side of the road. It was tested with the key found

with the appellant No.4. It started. Therefore, the motorcycle was

also seized. The appellant No.1 did not have license to possess the

firearm. It was a handgun with yellow metal covering on the grip.

The wooden grip was reddish in colour. The seized articles were

wrapped separately. The accused and the articles were taken to the

office of Crime Branch where the first information report was lodged.

PSI Shri Joshi recorded the FIR. The FIR is produced on record at

Exhibit-28. It was revealed that the revolver and the cartridges were

connected with MCOC Special Case No.7/2008. Those articles were

produced before the Court in the present case. PW-1 identified the

handgun which was produced in the Court. He also identified the

three knives produced before the Court which were taken from

possession of the above appellants. Accused No.4 was also found

with a sack containing masala powder.

PW-1 was cross-examined in this case. He was subjected

to a very lengthy cross-examination. He deposed in the cross-

examination that before leaving for the raid, a station diary entry was

made. When he had received the secrete information he did not

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record it. The informant had not given description of the persons who

were to come to that hotel. The information did not mention the

shop where the robbery was to be committed by these accused.

There were about 5-6 tables in the hotel on the ground floor. There

were 2-3 waiters working in the hotel. The informant left the spot

after pointing out the suspects. He had pointed out to the first three

persons who had arrived there. He had then left the spot. The

accused sat on the second table from the entrance and he sat on the

first table after they had taken their seat. The accused had not placed

any order. PW-1 was in the hotel for about five minutes. He then

came out of the hotel. No waiter had come to him for his order.

Contable Kharat had brought two panchas from just outside the hotel.

On return to CIU he first lodged the FIR and station diary entry was

made thereafter. On the way to CIU from the hotel, L.T. Marg Police

Station was on the way but he did not go to the L.T. Marg police

station to lodge his FIR. He could not explain as to why his FIR did

not mention the statement that he had asked accused No.1 whether

he had license to possess a firearm. He denied the suggestion that on

26.4.2008, the accused were already detained by the DCB, CID Unit-

III. His FIR substantially corroborates his deposition.

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7. Head Constable Saiman Fernandes was PW-2. He had

deposed that in April, 2008 he was attached to L.T. Marg Police

Station as a Head Constable. On 8.4.2008, he was assigned the duty

to publicise the order of DCP prohibiting possession of arms. He had

taken megaphone phone and loudly read out the order at Marine

Lines, Flyover bridge, M.K. Road etc.. He had also affixed a copy of

the order on some conspicuous places. His cross-examination is not

very material.In any case the appellants are not convicted for

commission of offences punishable under the Arms Act or the

Maharashtra Police Act.

8. The third witness in this case was Ashish Shukla. He was

a pancha witness. He was examined in MCOC Special Case

No.7/2008 with 16/2008 with 3/2009 as PW-26. His deposition

including examination-in-chief and the cross-examination was

brought on record of this case and he was also cross-examined on

behalf of the present appellants in this case. He has deposed that he

was summoned by the police officials of CIU Operations. He was

passing along Kalbadevi road at that time. It was around 3.30 p.m. to

4.00 p.m.. There were five to six police officials. All of them were in

civil dress. They had apprehended 3-4 persons. The police officers

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wanted to take search of the appellants. Whatever was found on their

person was being recorded. It was done in the presence of this

witness. One of the apprehended persons had chilly powder with

them. One of them had a gun and each of those had a knife with

them. There were some cell-phones and money. Those were also

seized. A gun was seized but he was unable to describe the gun. He

did not recollect the name of the person from whom the gun was

seized. A police officer opened the gun and had found one bullet

inside. All those articles were wrapped, sealed and the panchas

signed the wrappers. There were four persons who were

apprehended. He identified the paper-slips in the Court. The

panchnama is produced on record at Exhibit-76-B.

In the cross-examination, he admitted that he could

identify all the articles before the Court only on the basis of their

wrappers and paper-slips containing his signatures. When he saw the

accused, they were on the footpath. This witness was on his

motorcycle. There was chaos and, therefore, he has stopped there.

Crowd had gathered at the spot. As this witness volunteered to act as

a pancha witness, other pancha also came forward to act as a pancha.

His house was about 20-30 minutes walking distance from that place.

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He was in service in Fort area. He was working with a bank. He had

visited Crime Branch occasionally in his official capacity. He was also

cross examined on behalf of the present appellants in the present

Sessions Case No.482/2008. He admitted that said road was so busy

that there used to be traffic jam. There was heavy pedestrian traffic

and it was difficult to walk on that road when there was traffic jam.

When the accused were apprehended pedestrian traffic got disturbed.

9. The next witness was PW-4 API Ajay Joshi. He was

examined as PW-27 in the aforementioned MCOC Special Case. His

deposition was produced on record of this case. He has deposed

about the events taken place on 26.4.2008. PI Shri Sandabhor told

them about the information. Preparation was made to conduct the

raid. He then described the incident substantially in the same

manner as is described by PW-1. He has also deposed about the

search and seizure. He had conducted panchnama. He identified the

gun and the knives in the Court. After they came back to the office

along with the accused and the articles, he recorded statement of PW-

1 HC Bhokare. He then informed the L.T. Marg police station about

arrest of the four accused. He went to L.T. Marg police station along

with the statement of HC Bhokare. At that police station, the crime

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was registered as C.R. No.118/2008 on the basis of the information

of Shri Bhokare. On return to his office, he re-numbered the C.R. as

D.C.B. C.I.D. C.R. No.66/2008. He then commenced the

investigation of the crime. He interrogated all the four persons.

During that interrogation complicity of those four accused in the

murder of Kamlakar Jamsandekar was revealed. After the initial

investigation, API Dinesh Kadam took over the investigation from

him. But subsequently again the investigation was entrusted to this

witness. He ultimately filed the charge-sheet in this case.

In the cross-examination, he deposed that after having

reached the spot till the arrival of the suspects there was no

discussion amongst them for bringing the panchas. He himself had

apprehended accused No.4 Anil Giri. PI Sandbhor had enquired with

the panchas. When he had gone to L.T. Marg police station, at that

time copy of the panchnama was not with him. He denied the

suggestion that all the accused were in his custody from 24.4.2008

and the false case was registered against them. He had handed over

the weapons to the investigating officer who was investigating the

MCOC case. That officer had issued request letter and had mentioned

that the weapon would be referred to CA as that weapon was

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connected with the case he was investigating.

10. PW-5 Shyamsundar Munj was the Ballistic expert witness.

PW-6 Mrs. Anjali Badade was an Assistant Chemical Analyst. In the

context of the present case their evidence will not change the fate of

the case either way. Both these witnesses were also examined in the

MCOC Special Case where they had deposed about those weapons

and the examination conducted regarding them. Suffice it to say that

the handgun was in working condition. The prosecution case is that

the same handgun was used in committing murder of Jamsandekar.

However, that aspect is not relevant for the present case.

11. The last witness was - PW-7 DCP Vijaysingh Jadhav. He

had recorded the confessional statement of the accused No.4 under

the provisions of the MCOC Act and had also accorded sanction in the

present case. As mentioned earlier, the appellants were acquitted

from the offences under the Arms Act and Maharashtra Police Act and

there is no appeal preferred by the State of Maharashtra in respect of

that. Even the confessional statement of the accused No.4 Anil Giri is

not used in the present case. Therefore, even his evidence is not really

of any relevance.

12. Learned counsel for the appellants submitted that the

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entire prosecution case is unbelievable and improbable. It was not

possible that the accused would discuss their plan in a hotel within

hearing distance of PW-1, who was sitting on the very next table.

Inspite of the fact that it was a crowded place, no other independent

witness is examined except a pancha. Even the staff of the hotel,

where the accused had their conversation, was not examined. PW-2

was a habitual pancha as he has admitted that he used to visit the

Crime Branch office.

13. Learned counsel for the appellants then relied on the

judgment of the Hon'ble Supreme Court in the case of Chaturi Yadav

and others Vs. State of Bihar as reported in AIR 1979 Supreme Court

1412. In that case some persons were found armed with guns and

some had cartridges and the others had ran away. It was observed in

that case that the mere fact that the persons were found at 1.00 a.m.,

did not by itself prove that they had assembled for the purpose of

committing dacoity or for making preparations to accomplish that

object. Therefore, the accused in that case were acquitted.

Learned counsel for the appellants submitted that even

the facts in the present case are similar and, therefore, merely

because the accused were apprehended with weapons will not show

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that they had committed the offence under Section 399 of IPC.

14. Learned APP, on the other hand, submitted that there

were no suggestions put to PW-1 that he could not overhear the

conversation between the accused and their plan to commit dacoity

at Prakash Gold Palace. The weapons were recovered. PW-3 is an

independent witness. Therefore, according to him, the offence under

Section 399 of IPC was made out and, the learned Judge has rightly

convicted and sentenced the appellants - accused.

15. I have considered these submissions. Section 399 of IPC

reads thus :

"399. Making preparation to commit dacoity. -

whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

Therefore, it is necessary to see whether the prosecution has proved

its case beyond reasonable doubt to attract the ingredients of Section

399 of IPC. For this purpose the evidence of PWs-1, 3 & 4 is

important. PW-1 has described the incident in detail. He was the

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person involved in this investigation right from the time when he had

received the secret information. He has immediately conveyed the

information to his superiors and a raid was arranged. The police

party had gone on the spot. The secrete informant had shown three

suspects who had come at the spot. PW-1 had then followed all the

accused including the persons who had subsequently arrived at the

spot. Inside the hotel, he had sat next to those accused and had

overheard their conversation. It was not that the plan to commit the

offence was hatched at first instance in the hotel. They were only

discussing the final steps of commission of offence and, therefore, it

was not unnatural that they would enter into such discussion. Even

their discussion was not explicit. One of them had told the

absconding accused to enter the shop with 'saman'. The others were

also directed to proceed likewise. They had taken care not to

mention the name of the weapons. Accused No.4 Anil Giri was asked

to keep his motorcycle started. One of them was to come back to the

motorcycle with 'mal '. There was no reference to 'robbery'. The

conversation would not have straightway indicated that the plan was

to commit robbery. It is only because PW-1 knew the background of

the matter, this conversation was understood by him. The

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conversation was short and was giving final touches to their plan to

commit dacoity. This conversation was different from the facts of

Chaturi Yadav's case and, therefore, the ratio of that judgment will

not be applicable in the facts of this case.

16. Even the subsequent events support the prosecution case.

The person who was referred to as 'Pintu' had gone ahead to the shop

and had absconded because in the meantime other four were

apprehended on the spot. All of them were found carrying weapons.

Appellant No.1 was found with a handgun and the appellant No.4

was having chilly powder. The appellants No.2, 3 & 4 were having

knives. All this is indicative of their plan and preparation to commit

dacoity in the shop known as 'Prakash Gold Palace'.

17. PW-1 has clearly deposed about this and there is no

reason to disbelieve him. The rest of the evidence described by PW-1

is sufficiently corroborated by PW-3 Ashish Shukla and PW-4 API Ajay

Joshi. There is no substance in the submission that Ashish Shukla was

a habitual pancha. There is nothing to show that he had acted as a

pancha in other cases. Though he had visited the Crime Branch that

did not disqualify him from acting as a pancha. There is nothing to

show that in his cross-examination that he would be an interested

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witness to earn some benefits from the investigating agency. PW-3

acting as pancha has fully supported and corroborated the

prosecution case. The panchnama is proved by him. The articles are

identified by these three witnesses. API Ajay Joshi has fully

corroborated the evidence of PW-1. I do not find any infirmity in the

evidence of these witnesses.

18. The learned Judge has properly appreciated these facts

and this evidence. The defence of the appellants do not travel

beyond their mere suggestions and denials. There is nothing on

record supporting their defence. As against that, the prosecution has

proved its case beyond reasonable doubt. Therefore, I do not find any

merit in the appeal. The appeal is accordingly dismissed.

                                                                          (SARANG V. KOTWAL, J.)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Digitally signed by         Deshmane (PS)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Date: 2022.10.20 10:30:41
+0530




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