Bombay High Court

Lahu Bhaurao More And Ors vs State Of Maha on 23 October, 2024

2024:BHC-AUG:26010


                                                     {1}        CRI APPEAL 106 OF 2004


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                CRIMINAL APPEAL NO. 106 OF 2004

                 1)   Lahu S/o Bhaurao More
                      Age: 27 yrs., Occu.: Labour

                 2)   Kailas S/o Kachru More
                      Age: 23 yrs., Occu.: Labour.

                      Both R/o. Dhoregaon,
                      Tq.Gangapur,
                      Dist.Aurangabad.                     ..Appellants


                                  Versus

                 .    The State of Maharashtra             ..Respondent

                                                  .....
                 Advocate for Appellants : Mr. A.R.Borulkar
                 APP for Respondent : Mrs.Ashlesha S.Deshmukh
                                                 .....

                                     CORAM : ABHAY S. WAGHWASE, J.

                                     RESERVED ON   : 15 OCTOBER, 2024
                                     PRONOUNCED ON : 23 OCTOBER, 2024


                 JUDGMENT :

1. In this appeal, there is challenge to judgment and order of

conviction dated 21-04-2003 rendered by IInd Additional Sessions

Judge, Jalgaon in Sessions Case No.177 of 2002 holding appellants

guilty for offence under Sections 392 read with 34 of the Indian {2} CRI APPEAL 106 OF 2004

Penal Code (IPC).

PROSECUTION CASE IN BRIEF

2. It is the case of prosecution that informant Komalsing was

returning from Chalisgaon on Motorcycle with his wife on

09-06-2000 at around 08:30 p.m. to 08:45 p.m.. Three years

daughter was also accompanying the couple. When Motorcycle

reached vicinity of village Bhortek Phata, informant noticed a person

and one Motorcycle lying on the road and one old person sitting near

the Motorcycle. When Motorcycle of the informant reached 10 feet

away from the said Motorcycle, the person sitting near the

Motorcycle, stood up with a stick. Informant halted his motorcycle.

Then 4-5 persons hiding around joined the said person. Informant

and his wife got down from the Motorcycle. Then on knife point,

ornaments on the person of informant's wife and his own wallet

containing cash were taken away. Occurrence was reported at Nagar

Deola Police Station, on the strength of which, crime was registered

and investigated by PW13 Joshi, who after gathering evidence,

chargesheeted accused and they were made to face trial vide Sessions

Case No.177 of 2002 for offence under Section 395 of the IPC.

Vide judgment and order dated 21-04-2003, on appreciation of {3} CRI APPEAL 106 OF 2004

evidence, learned trial Judge has convicted appellants (accused nos.2

and4) for offence under Section 392 read with 34 of the IPC. Hence,

instant appeal.

SUBMISSIONS

On behalf of appellants :

3. Learned Counsel for the appellants would plead innocence

and alleges false implication. At the threshold, taking this Court

through the charge, he pointed out that same was framed under

Section 395 of the IPC. According to learned Counsel, for attracting

said charge, strength of accused should be five, but here there were

only four persons allegedly robbed informant and his wife and

therefore, according to him, chargesheet itself was misplaced.

His second attack is on identification. He pointed out that

alleged incident had taken place in the dark and outside village and

only source of light was headlight of Motorcycle. Therefore,

according to him, it is difficult to identify faces of accused at such

place at such time. He further pointed out that detail physical

description was not given while filing the crime. Here T.I. parade has

not been conducted immediately, rather it is after more than two

months and therefore, he questions the credibility of identification.

{4} CRI APPEAL 106 OF 2004

According to him, both Police Station and Tahsil Office, where T.I

parade was conducted, are in the same premises and therefore, there

are bright chances of confrontation of arrested accused to the victim

and on such count also he questions their identification. He pointed

out that there are allegations of taking away articles but its receipts

were not placed on record. Therefore, it is his submission that

prosecution could not cogently establish that the belongings allegedly

seized were of informant and his wife only. Hence, learned Counsel

points out that entire evidence of prosecution is not free from doubt

and so, he questions judgment of conviction and prays to set aside

the same.

On behalf of State :

4. Per contra, learned APP supported the judgment by pointing

out that informant has clearly identified accused persons. That there

is prompt lodgment of complaint. According to him, there is nothing

to suggest that accused were confronted to witnesses. That there is

no cross-examination on the point of identification and moreover,

according to her, articles robbed are seized at the instance of accused

and therefore, according to her, guilt is proved. That there is no

explanation from accused for possession of articles belonging to {5} CRI APPEAL 106 OF 2004

informant and his wife. She would strenuously submit that

prosecution has examined witnesses, who were earlier robbed by

present accused and as such accused are habitual criminals.

Therefore, she supports the judgment and prays to dismiss the

appeal.

SUM AND SUBSTANCE OF PROSECUTION EVIDENCE

In support of its case, prosecution has examined as many as

thirteen witnesses.

5. PW1 Komalsing Gansing Pawar is informant. He deposed at

exh.13 that while he was proceeding with his wife and daughter on

Motorcycle, he was robbed of his belongings. Therefore, he lodged

report. That he was called for identification parade, where he

identified accused Lahu and Kailas. He also identified articles

recovered from accused.

6. PW2 Dattatraya Dhanaji Kokande is Pancha to spot

panchanama exh.18.

7. PW3 Dadasaheb Julal Patil identified accused and he is second

pancha to spot panchanama.

{6} CRI APPEAL 106 OF 2004

8. PW4 Jaishri w/o. Komalsing Pawar is the wife of informant.

She also stated that while she was proceeding with her husband on

Motorcycle, 3-4 persons encircled them and on point of knife, they

took away her ornaments. That her husband lodged report.

9. PW5 Ashok Julalgir Gosavi stated that about 1-2 months ago,

Tahsildar, Pachora, called him to his office for identification and he

had identified accused Kailas.

10. PW6 Tulshiram Shivlal Gaikwad stated that he knew

informant. He had seen wrist watch of informant as he had given the

same to him and the said watch was given to this witness by son of

his brother-in-law.

11. PW7 Raosaheb Bhagwan Patil deposed that one year ago

when he was going from Kajgaon to Bhortek Phata, two persons

robbed him of his money and he identified accused no.2 Lahu to be

one of them.

12. PW8 Ishwar Budha Patil also claims that he was robbed six

months ago while he was proceeding from Bhortek Phata after being

assaulted by stick. He also identified accused no.4 to be the person {7} CRI APPEAL 106 OF 2004

amongst those persons.

13. PW9 Manoj Ananda Patil also claims to have been victimized

by Lahu six months back and there was attempt to rob him.

14. PW10 Gautam Dharma Nikam is the pancha to panchanama

exh.30.

15. PW11 Subhash Ragho Patil is pancha to memorandum of

disclosure and seizure of wrist watch.

16. PW12 Bhimrao Abhiman Shinde is Tahsildar, who had

conducted T.I. parade on 03-08-2002 on request of Police and he

drew panchanama exh.30.

17. PW13 Chandrakant Vishwanath Joshi is the Investigating

Officer.

ANALYSIS

18. Admittedly, charge at exh.7 framed by learned trial Judge is for

offence under Section 395 of the IPC.

Crucial evidence is of PW1 Komalsing, informant and his wife

PW4 Jaishri, as they together, while undertaking journey on {8} CRI APPEAL 106 OF 2004

motorcycle, were allegedly intercepted and robbed.

19. At exh.13 PW1 Komalsing gave evidence that about 200-300

feet away after crossing Bhortek Phata, he saw a motorcycle lying

down and an old person sitting near Motorcycle. That while

informant was 10 feet away from said motorcycle, said person stood

up with a stick and therefore, motorcycle was halted by informant

and at that time, 4-5 persons hiding around came towards him. That

wife of informant got down. Informant pointed out to accused Kailas

for pointing knife on his chest. That all persons asked them to give

whatever they have. That his wife gave away ornaments like Mani-

Mangalsutra, ear rings and from his wallet. That they removed

Rs.250/- from his pocket and took away wrist watch from his hand.

That his wife's ornaments were 11 gm. gold. That those persons left.

According to him, accused no.2 Lahu was also one of the above

persons. Then he lodged report at Nagar Deola Police Station.

According to him, after two and half months, he was called by

Pachora Police Station for identification parade and he identified

accused no.2 Lahu and accused no.4 Kailas. In examination-in-chief

itself he stated that he was called at Police Station 2-3 times for

identification parade. He identified accused nos.2 and 4 in T.I. {9} CRI APPEAL 106 OF 2004

parade conducted by Tahsildar. He answered that he saw faces of

accused Lahu and accused Kailas in the light of Motorcycle, but could

not see faces of others as they were in dark. He identified wrist

watch article A. He further deposed that he found this watch in the

hand of father of his one student while said person was causing

signature in the token receipt of rice packet distributed by the School

and therefore, he asked him where he brought it from and was

allegedly told that it was brought from Aurangabad one year back.

He testified about telling that person that it was his watch, which

was stolen and that person gave back the watch to him and he

handed over it to Police.

While under cross-examination informant is unable to state

whether panchanama was drawn after he gave watch at Police

Station. He stated that he did not have receipt of the watch as

according to him it was given by his father-in-law. There is omission

as regards to alphabet "K" on the backside of the wrist watch. He

admitted that in the report there are some mistakes. He answered

that he deposed in examination-in-chief that old person was sitting

because he was short person. It was written in his statement that

there were four persons. He admitted that in report he gave ages of

the accused to be of 20-25 years old. He admitted that lock up of {10} CRI APPEAL 106 OF 2004

accused persons was in the same campus.

20. PW4 Jaishri, wife of informant, who is examined at exh.22,

also stated that 200-300 ahead of Bhortek Phata, one Motorcycle was

lying by the side of the road and one person sitting near it. That

person stood with stick, therefore, her husband halted Motorcycle.

According to her, 3-4 persons encircled them. Then accused Kailas,

who was sitting before the Court, showed knife to her husband and

said in "Ahirani" language to give away whatever they have. The

persons removed money from her husband's pocket alongwith wrist

watch and she handed over 4 gm. gold marriage string and 7 gm.

gold ear-rings. She identified the wrist watch.

While under cross-examination, she admitted that they had no

receipt of the watch. Rest is all denial.

21. Another important witness for prosecution is PW6 Tulshiram

and according to him, he knew informant, he is Teacher in the school

of which his son was a student. He deposed that he had been to

receive rice packet distributed by School and at that time, while

making signature, complainant asked about wrist watch in his hand

and he gave him that watch. According to him, this watch was given

to him by his brother-in-law's son namely Nathu Laxman Surase 2-3 {11} CRI APPEAL 106 OF 2004

weeks ago. That Nathu Laxman was absconding.

22. PW7 Raosaheb, PW8 Ishwar, PW9 Manoj are examined by

prosecution to demonstrate that one year back and six months ago

respectively, they three were robbed on the road from Kajgaon to

Bhortek in three distinct instances. PW7 Raosaheb and PW8 Ishwar

identified accused no.2 Lahu and accused no.4 Kailas respectively.

All these witnesses PW7 Raosaheb, PW8 Ishwar, PW9 Manoj

have apparently not lodged any report of they being robbed at any

Police Station, but merely gave statement recorded by PW13 Joshi,

Investigating Officer in this case. PW12 Shinde is Tahsildar.

PW10 Gautam is pancha to T.I. parade conducted by PW12

Shinde (Tahsildar). PW11 Subhash is pancha to seizure of wrist

watch.

23. Therefore, on appreciating the above evidence, here it is

noticed that PW1 informant and his wife PW4 are not consistent

about strength of robbers, who allegedly intercepted them. PW1

informant deposed about coming across Motorcycle lying and an old

person sitting there and he subsequently standing up by means of

stick. Admittedly, all accused who are arrested, are in the age group

of 20-25 years and as such there is no old person. PW1 Informant {12} CRI APPEAL 106 OF 2004

deposed about 4-5 persons, whereas his own wife PW4, who was

allegedly accompanying him, deposed about 3-4 persons encircling

them. Evidence of PW1 informant discussed above goes to show

that his testimony is full of material omissions, contradictions and

improvements. He had lodged report at Nagar Deola Police Station

but according to him T.I. parade was conducted by Pachora Police

Station. Both husband wife i.e. PW1 and PW4 identified accused

Lahu and accused Kailas. Admittedly, as per informant himself, T.I.

parade was conducted after two and half months. Informant himself

deposed about he being called by Police Station twice and thrice.

Prosecution own witness PW12 Bhimrao admitted that Police

Station and Tahsil Office are in the same campus. As stated above,

PW1 informant himself speaks of being called for identification twice

thrice. In above situation and circumstances, as pointed out by

learned Counsel for appellants, there is possibility of arrested accused

shown to witnesses. Admittedly, T.I. parade was conducted after two

and half months.

Another noteworthy feature is that accused Lahu was shown to

be arrested on 31-08-2002 whereas PW12 Tahsildar deposed about

conducting T.I. parade on 03-08-2002. How can there be

identification post arrest.

{13} CRI APPEAL 106 OF 2004

24. PW13 Joshi (PSI), Investigating Officer, who is examined at

exh.35 deposed about entertaining complaint, conducting

investigation. In paragraph 6 of his examination-in-chief he stated

that he sought permission of Superintendent of Police and took

Tulshiram Gaikwad in search of Nathu Laxman Surase, who allegedly

handed him the watch. Investigating Officer's evidence shows that

they went to Gangapur, Dhoregaon, in search of Nathu Laxman, but

he could not be found. However, Investigating Officer claims that

Police Patil of Dhoregaon revealed the names of persons, who were

companions of Nathu Laxman and based on such names, he arrested

three accused i.e. Kailas, Sheshrao and Latif that too on 19-07-2002.

Apparently, such version of Investigating Officer shows that accused

are arrested on information given by Police Patil of village

Dhoregaon. Merely receiving information about companions of

Nathu, present appellants appeared to be taken in custody by

Investigating Officer. So called Police Patil is no examined. Arrest is

shown to be made on 19-07-2002, but admittedly T.I. parade is

conducted on 03-08-2002. Investigating Officer has categorically

deposed that on 31-01-2002 accused Lahu was arrested by seeking

transfer warrant from other case. Again he got T.I. parade conducted

on 13-09-2002. Very Tahsildar PW12 has admitted in para 11 of the {14} CRI APPEAL 106 OF 2004

cross-examination that his Office and Police Station are located in the

same premises. Therefore, again there are brighter chances of

confrontation of arrested accused to the witnesses. Coupled with the

facts of delayed arrest, delayed T.I. parade, the identification has lost

its significance. Even otherwise, PW1 Komalsing, informant and his

wife PW4 Jaishri could identify only two accused. Therefore, with

such quality of evidence, prosecution version is shrouded with

serious suspicion.

25. Here there was charge for Section 395 of the IPC, but four

accused persons were made to face trial even when requirement was

of five or more persons. Guilt is recorded for Section 392 of the IPC,

which provides punishment for robbery. Out of alleged 4-5 persons,

who stripped PW4 Jaishri of her ornaments and who took out cash

from wallet of accused is not clarified by PW1 Komalsing and PW4

Jaishri, who are said to be victims. Apparently, except wrist watch,

ornaments or cash is not recovered. Accused Nathu is said to be

absconding. Prosecution version is that, Nathu handed over wrist

watch to PW6 Tulshiram and according to this witness, watch was

given to him by son of his brother-in-law. If it was so, then it was

infact easy for investigating machinery to lay hands of Nathu. So {15} CRI APPEAL 106 OF 2004

called brother-in law of PW6 Tulshiram is also not examined.

Though only on the basis of wrist watch, other accused are shown to

be arrested, father-in-law of PW1 Komalsing, who allegedly gave him

watch, is also not examined. Therefore, there is no corroboration to

PW1 informant's version regarding the watch belonging to only and

only him. Said recovery is caused on 17-07-2002 by way of

panchanama exh.33 in presence of PW11 Subhash, but his signature

is not obtained on seized packet. PW1 informant claims that he

identified the watch in the hand of Tulshiram because alphabet "K"

was embossed on the watch, but he himself has admitted that there is

omission to this extent.

Consequently, mere recovery of watch that too at the instance

of PW6 Tulshiram at the belated stage and without there being any

receipt or in absence of evidence of father-in-law of PW1 informant,

it cannot be said that the recovery is of the same wrist watch, more

particularly, when PW1 informant has categorically admitted that

there are several such watches available in the market.

Even circumstance of seizure of wrist watch is doubtful

because on one hand PW1 informant, in his evidence in paragraph

no.6, deposed about he himself handing over wrist watch to Police,

but PW17 Investigating Officer, in his evidence in paragraph no.3, {16} CRI APPEAL 106 OF 2004

deposed that he has seized wrist watch from PW6 Tulshiram vide

panchanama exh.33. Therefore, prosecution witnesses are not

consistent as regards to seizure of wrist watch is concerned.

26. For all above reasons, prosecution version is surrounded by

several suspicious circumstances. If Nathu Laxman was son of

brother-in-law of PW6 Tulshiram, then atleast his photograph ought

to have been confronted to PW1 informant and his wife PW4 to get it

confirmed that he was amongst the accused persons, who took away

the watch. Though PW1 informant identified accused Kailas and

Lahu, it is merely deposed that Kailas kept knife on his chest. Knife is

admittedly not seized. Accused Lahu though is identified by PW1

informant, what role he played and for what he was identified as has

happened against Kailas, is also not clarified. Out of four accused,

who were chargesheeted, only accused nos.2 and 4 i.e. Lahu and

Kailas are convicted, remaining two are acquitted by the learned trial

Judge without assigning sound reasons as to why only two deserves

conviction and two deserves acquittal. Same evidence has been

applied to hold only two persons guilty.

Resultantly, learned trial Judge has failed to appreciate the

evidence as required. Therefore, it being case of benefit of doubt {17} CRI APPEAL 106 OF 2004

coupled with serious doubts about identification, conviction cannot

be allowed to be sustained. Accordingly, I proceed to pass following

order :

ORDER

I) Criminal Appeal No.106 of 2004 is allowed.

II) The conviction awarded to appellant nos.(1) Lahu Bhaurao More and (2) Kailas Kachru More in Sessions Case No.177 of 2002 by IInd Additional Sessions Judge, Jalgaon on 21-04-2003 for the offence punishable under Section 392 read with 34 of the Indian Penal Code, stands quashed and set aside.