Bombay High Court
Tanhya @ Vicky Narayan Jadhav And ... vs The State Of Maharashtra on 12 September, 2024
2024:BHC-AUG:21419
{1} CR APPEAL 287 OF 2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 287 OF 2023
1. Tanhya @ Vicky Narayan Jadhav
Age: 32 years, Occu.: Labour,
R/o. Lohar Mohalla, Jalna,
Tq. & Dist. Jalna.
2. Rani Manoj Kharat @ Renuka
Age: 23 years, Occu.: Household,
R/o. Bhimnagar, Jalna.
Tq. & Dist. Jalna. ....Appellants
Versus
. The State of Maharashtra ....Respondent
.....
Advocate for Appellants : Mr. Satej S. Jadhav
APP for Respondent : Mr.N.B.Patil
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 03 SEPTEMBER, 2024
PRONOUNCED ON : 12 SEPTEMBER, 2024
JUDGMENT :
-
1. In this appeal, there is challenge to the judgment and order of
conviction passed by the learned Additional Sessions Judge, Jalna in
Sessions Case No.73 of 2022 dated 16-03-2023, thereby convicting
present appellants for offence under Sections 394 and 397 of the
Indian Penal Code (IPC) respectively.
{2} CR APPEAL 287 OF 2023
PROSECUTION CASE IN BRIEF
2. PW1 Avinash Shivappa Kapse, informant alighted at Jalna near
Bus Stand and was intending to travel towards Latur by Railway to
meet his daughter to pay her hostel fees. Before going towards
Railway Station at Jalna, he visited a medical store at around 07:30
p.m. After taking medicine, when he came out, he received a phone
call and while he was attending it, two unknown persons came, kept
hand on his mouth and he was dragged towards an Arch. There, two
ladies joined the unknown persons and all of them robbed him of his
belongings including cash, gold finger ring, mobile after hitting him.
Later on, his mobile was returned and even Rs.500/- were given to
him for his conveyance by those persons. He managed to hire a Auto
Rickshaw to reach Police Station. He reported occurrence and was
initially referred to hospital, where his statement was recorded, on
the strength of which crime was registered.
3. Investigation was entrusted to PW9 Ganesh Zalwar (PSI), who
after completing the same, chargesheeted accused persons and they
were made to face trial before learned Additional Sessions Judge,
Jalna, who after conducting trial and on appreciating oral and
documentary evidence, recorded findings of guilt of appellants
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(original accused nos.1 and 2) and convicted and sentenced them
accordingly.
Feeling aggrieved by the judgment and order of conviction,
instant appeal has been preferred.
SUBMISSIONS
On behalf of appellants :
4. Learned Counsel for the appellants pointed out that here
prosecution has miserably failed to prove the case and charges
beyond reasonable doubt. According to him, there is no full proof or
convincing and legally acceptable evidence that present appellants
are the only persons, who had committed the offence. He pointed
out that alleged incident had taken place while it was dark. That
present appellants are named by the informant, who was stranger to
appellants i.e. on merely hearing shouts of some people at the spot
allegedly naming present appellants. He pointed out that
immediately after their arrest and when they were at Police Station,
informant visited Police Station. There was no process of getting
identification confirm, rather apprehended accused were confronted
to informant and therefore, though T.I. parade was said to be
conducted, appellants were already shown to informant and
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therefore, their T.I. parade has lost its significance. He further
pointed out that even T.I. parade was not conducted immediately, but
rather after a delayed period.
5. He next pointed out that, except evidence of informant and
Investigating Officer, there is not a single witness including panchas
to spot or panchas to memorandum of disclosure of seizure, who
have supported prosecution. Therefore, he questions the credibility of
very disclosure and seizure. He pointed out that inspite of three
visits to same spot on distinct dates, recovery of Rs.18,000/- cash and
a knife are shown to be made. That seizure is said to be from a
dustbin, but it is not brought before Court.
6. He also pointed out that though T.I. parade was shown to be
conducted, it was not as per the guidelines laid down in Manual or as
per the guidelines laid down by the Hon'ble Apex Court. Therefore,
according to him, appellants are picked up and shown to be culprits
and even held guilty by the learned trial Court. According to him,
there is improper appreciation of evidence. He also points out that
there are several serious lapses and lacunae during investigation and
as such when guilt was not proved as required under law, he
criticizes judgment of conviction and prays to set aside the same by
{5} CR APPEAL 287 OF 2023
allowing the appeal.
On behalf of State :
7. Supporting the above judgment of conviction, learned APP
submitted that there was prompt FIR. That T.I. parade has been
conducted. That both appellants are identified by accused. That
there is recovery at their instance. That all necessary ingredients for
attracting offence under Sections 394 and 397 of the IPC are
available. That though panchas have not supported, he pointed out
that all panchanamas got proved through Investigating Officer.
Therefore, there being full proof and convincing evidence, it is his
submission that no error whatsoever is committed by the learned trial
Judge in accepting the story of prosecution and therefore, he prays to
dismiss the appeal.
EVIDENCE IN THE TRIAL COURT
8. In support of its case, prosecution has adduced evidence of in
all nine witnesses. Sum and substance of their evidence is as under :
PW1 Avinash Shivappa Kapse, informant, who narrated the
incident happened with him on 11-12-2021. He identified FIR as
well as his own clothes, knife used in the incident, clothes on the
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persons of accused persons. He also claims to have identified
accused in the T.I. parade as well as in the Court.
PW2 Kishor Motilal Bhurewal is Pancha to spot panchanama
exh.32. He did not support prosecution.
PW3 Ganesh Uttamrao Lute, another Pancha to spot
panchanama also did not support prosecution and he merely
identified panchanama exh.42 i.e. panchanama of seizure of soil
from the spot, but he denied that he was taken to any house and in
his presence there was any seizure of any cash or gold ring.
PW4 Sumeet Rajkumar Bhonde is Pancha to memorandum of
disclosure at the hands of appellant Tanhya. He did not support
prosecution and denied any disclosure or seizure of gold ring or
knife.
PW5 Javed Abdul Salam Qureshi is second Pancha to
memorandum of disclosure at the hands of Tanhya exh.55 regarding
seizure of gold ring and knife.
PW6 Ganesh Santram Kamble is Pancha to memorandum of
disclosure at the hands of accused no.2. He also denied any
disclosure being made regarding cash.
{7} CR APPEAL 287 OF 2023
PW7 Anand Janardhan Hiwale is Talathi, who acted as Pancha
witness in T.I. parade, which was conducted by Naib Tahsildar in
Central Jail, Jalna on 01-01-2022 and narrated the entire events of
T.I. parade.
PW8 Dr.Adinath Trimbakrao Patil is Medical Officer, who
examined informant and issued MLC and certificate exh.71, 72
respectively.
PW9 Ganesh Tarachand Zalwar is the Investigating Officer,
who narrated all steps taken by him since receipt of complaint till
filing of the chargesheet.
ANALYSIS
9. The appellants are charged for offence under Sections 394
and 397 of the IPC respectively. The essential ingredients for
attracting offence under these Sections are as under :
Section 394 :
(1) Accused committed or attempted to commit robbery.
(2) He and anyone else jointly concerned in committing or
attempting to commit robbery caused hurt.
(3) Hurt was caused voluntarily.
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Section 397 :
(1) Accused committed robbery or dacoity.
(2) While committing such robbery or dacoity the accused -
(a) used a deadly weapon;
(b) caused grievous hurt to any person;
(c) attempted to cause death or grievous hurt to any person.
10. In this case on visiting exh.13, charge seems to have been
framed and explained by the learned Trial Judge against in all five
persons, however, accused no.4 Gotya @ Pratik Gose and accused
no.5 Sahil are reported to be absconding. Consequently, accused
no.1 Tanhya, accused no.2 Rani and accused no.3 Sachin faced above
trial.
11. On taking careful survey of the evidence, crucial evidence here
is of only PW1 Avinash Shivappa Kapse, informant, PW7 Anand
Hiwale, Talathi, who acted as Pancha witness in T.I. parade
conducted by Naib Tahsildar, PW8 Dr.Adinath Trimbakrao Patil and
PW9 Ganesh Zalwar, Investigating Officer. Unfortunately, panchas to
panchanama of memorandum of disclosure and seizure have not
supported, but care has been taken to get the same proved and
exhibited through the Investigating Officer.
12. What is emerging from evidence of PW1 Avinash / informant
{9} CR APPEAL 287 OF 2023
victim is that he is resident of Chikhali and on 11-12-2021, he
travelled from Chikhali to Buldhana in a Cruiser vehicle and got
down at Jalna as he was destined to go to Latur and wanted to board
Train to go there to meet his daughter i.e. to pay her hostel fees. On
alighting, he claims to have initially visited medical store to buy
medicine, purchased it and while proceeding towards Bus Stand area
to hire Auto Rickshaw to proceed to Railway Station, while he was
attending a phone call received by him, the incident seems to have
taken place.
His version is that, while he was busy talking on phone, he
experienced a push and then somebody placed hand over his mouth
and according to him, two persons dragged him towards adjoining
Arch. There he claims that he heard people shouting and saying
"rkUg;k lfpu vk;k nqdk.k can djks Hkkxks Hkkxks- " (in translated form it is
"Tanhya and Sachin have come, shut the shop and run). He further
claims that at that time, he learnt the names of two persons to be
Tanhya and Sahin. That they both beat him and then one of them
gave call to Asha, Renuka @ Rani and those ladies came, he gave
description of their clothes and further deposed that the lady wearing
Salwar slapped him, robbed him of his gold ring from finger, whereas
the other lady took out Rs.25,000/- from his pant pocket. While all
{10} CR APPEAL 287 OF 2023
this was going on, he claimed that he was being beaten. He also
claims that Rs.10,000/- kept in his wallet also taken away and
further Rs.2,000/- and Rs.3,000/- kept in the bag alongwith 2gm
gold ring belonging to his daughter in the bag were also taken away.
He was hit by means of knife, causing him dizziness. He again
clarified that lady wearing pink Salwar was holding knife over his
neck. According to him, above episode occurred at around 07:30 to
07:45 p.m. Those persons returned him his mobile and also gave
him Rs.500/- asking him to go wherever he wanted. He used the
phone to give a call to his cousin, managed to hire a Auto Rickshaw
and reached Police Station and lodged report and on his request he
was taken to private hospital namely Astha Hospital and there his
statement was recorded. He further stated that on 01-01-2022 he
was called to prison by Police for test identification parade.
13. Visited his cross-examination and put the same to minute
scrutiny. Initially he answered that after being pushed he did not
make hue and cry; he denied presence of 100-200 people around and
expressed his awareness about surroundings of the spot. He clarified
that he could not raise hue and cry while he was dragged as his
mouth was closed by placing hand over it.
{11} CR APPEAL 287 OF 2023
Following omissions are brought.
(I) assailants had shut his mouth by placing hand over it.
(II) assailants slapped him over his face and under his eye.
(III) he told assailants not to beat and that he is ready to
handover all his valuables.
(IV) Initially they snatched his mobile and fled and later on
returned and handed it back alongwith Rs.500/-.
(V) there were small temples, blue pillar and availability of
light near the kaman.
After denying further suggestions, in paragraph 12, he
answered and admitted that on 12-12-2021, he had been to the spot
of the incident with Police at around 04:00 p.m. to 4.30 p.m.
14. Next crucial witness is PW7 Anand Janardhan Hiwale, Talathi,
who was pancha witness to T.I. parade on 01-01-2022 in Jalna
Central Prison. He narrated that out of 7-8 persons in the age group
of 30-35 informant placed hand over the shoulder of one accused and
he gave his name as Vicky Jadhav. The persons sitting in the middle
in the dock was accused Vicky but he again said that the person
wearing black shirt in the dock of accused is the person by name
Vicky. On Court query, the person gave his name Tanhya @ Vicky
{12} CR APPEAL 287 OF 2023
Narayan Jadhav. Thereafter, he deposed that 5 women appeared and
informant was asked to identify and informant pointed to one
woman and that lady gave her name as Rani. Witness stated that
woman sitting in dock of accused is one whom informant had
identified in T.I. parade. This witness further identified panchanama
to be true and correct and same to be at exh.67.
In cross-examination of above witness, he answered that he is
unable to state the name of room where T.I.parade was conducted
and he identified that there were 5-6 persons, who were jail Police
but he is unable to give their names and that he did not ask them
whether they were from Sadar Bazar Police Station. He admitted
that including dummy there were 10 persons present in the room,
but he is unable to give their names. He denied that female dummies
were present when T.I. parade of accused no.1 was conducted and
he also admitted that he was not knowing either informant or even
accused no.1. Rest is all denial except admission that he did not affix
stamp below his signature.
15. PW8 Dr.Adinath Trimbakrao Patil, Medical Officer at exh.70
testified that he runs Astha Hospital and on 11-12-2021, at around
8.30 p.m. patient by name Avinash Shivappa Kapse was brought to
{13} CR APPEAL 287 OF 2023
the hospital who gave history of assault and on examination, he
noticed following injuries.
(a) Injury found over Rt lateral occipital region CLS approx.
3x2x1 cm.
(b) Blunt Trauma to head contusion x over partial region.
(c) Blunt Trama to left shoulder contusion.
According to him, above injuries were fresh and bleeding and
probably caused by hard and sharp object and were grievous in
nature. He identified certificate exh.72.
There is no effective cross-examination of this witness as
questions are put about entry of patients, their names being noted in
computer system and maintaining register. He admitted that
certificate is silent as to where the incident took place. He also
admitted that injuries noticed by him are possible by fall from a bike
or tin.
16. PW9 Ganesh Tarachand Zalwar is Investigating Officer. Sum
and substance of his evidence is that, after handing over investigation
to him, he immediately searched for accused and on morning at
around 5.30 a.m. of 12-12-2021, he nabbed two accused namely
Tanhya and Rani after following due procedure. Then he narrated all
{14} CR APPEAL 287 OF 2023
steps taken by him during investigation, noting memorandum of
disclosure and, causing seizure at the instance of accused no.2 Rani.
17. Pointing to above evidence, the fundamental grounds raised in
appeal by learned Counsel for appellants could be summarized as
under;
Firstly, incident allegedly took place in dark and informant did not
give physical description of the accused persons.
Secondly, arrest was on the basis of names heard by informant from
alleged crowd and people, who are not examined.
Thirdly, inspite of arrest on the same night and accused being
strangers, T.I. parade not conducted promptly, rather conducted after
three weeks.
Fourthly, memorandum of disclosure and seizure is delayed one and
articles held and snatched by particular accused are shown to be
recovered at the hands of other accused thereby rendering the
seizure doubtful.
18. On re-appreciating and reanalyzing PW1 Avinath, informant's
evidence at exh.28, it is noticed that he was travelling towards Latur
after he had reached from his home town Chikhali at Jalna to catch a
train. He has categorically stated that his proposed visit to Latur was
{15} CR APPEAL 287 OF 2023
to meet his daughter, who was in a hostel in Latur i.e. to pay her
hostel fees and also her personal effects i.e. gold ring. Incident seems
to have taken place at around 07:30 p.m. Initially he was approached
by two men and after being dragged towards an Arch, he was robbed
of his belongings after two ladies, who were summoned by one of the
two persons by their names i.e. Rani and Asha. Obviously, informant
being stranger and traveller, was not aware of the names, but he is
very categorical about hearing from the crowd that "Tanhya and
Sachin have arrived and he also heard them saying to close the
shops". Such version of a stranger goes to show that appellants were
infamous in the vicinity for their deeds. After hearing names, he has
reported it to the Police immediately after the occurrence. There is
no reason to disbelieve that he was robbed of his belongings as he
has no reason to falsely implicate or give their names. He has
described the attire and its colour over the person of the ladies.
Being history sheeters, investigating machinery lost no time, and
apprehended accused in the early hours of morning. It is to be
further taken note of that after shutting his mouth, two persons
initially dragged him towards an Arch and he was beaten on the face
and near the eyes. After arrival of two ladies, he has specifically
stated that, the lady wearing pink Salwar snatched his gold finger
{16} CR APPEAL 287 OF 2023
and again after he being beaten, all those four persons took out
Rs.10,000/- from his wallet, 2gm gold ring of his daughter from the
bag, which he claims that he was carrying it to hand it over to her.
He has also suffered injury on being hit on head by knife. Same
night PW7 Dr.Patil has examined him and described the injuries
noticed by him. Testimony of PW1 informant and PW8 Doctor, has
remained intact on the sequence of events that took place with
informant and regarding Medical Officer examining informant with
history of assault. Therefore, necessary ingredients of Section 394 of
the IPC about committing robbery and causing hurt are very much
available in the prosecution evidence. There is use of article like
knife as per version of informant. PW8 Dr.Patil, medical expert has
also opined injury noticed by him to be possible by such article and
Medical Officer has further defined the injury to be grievous one.
Therefore, even ingredients of Section 397 of the IPC do exists in the
prosecution case.
Consequently, the episode as narrated by informant victim
need not be doubted and rather here the manner of cross-
examination in the trial Court also goes to show that there is no
serious challenge to the incidence.
{17} CR APPEAL 287 OF 2023
OBJECTION IN APPEAL
Now let us deal with the grounds / objections raised in appeal,
which are spelt out in aforesaid paragraph.
FIRST OBJECTION :
19. As regards to first objection is concerned, it is regarding
incident taking place in dark and physical features or description not
been provided. In the opinion of this Court, taking into consideration
the tenor of episode commencing from initially pushing, then
shutting mouth, then dragging and further summoning other ladies,
there was sufficient time as well as opportunity for informant to be in
close proximity to the two men and therefore, there is no need or
necessity of giving physical features of those two persons. At the
time of T.I.parade at the hands of Naib Tahsildar, after their names
were called out, both men have confirmed themselves Tanhya @
Vicky and Sachin. Consequently, above objection and ground has no
force.
SECOND OBJECTION :
20. As regards to second objection that names of assailants were
heard from people around and that none of them is examined also
cannot be given undue importance, as, people in the vicinity were
{18} CR APPEAL 287 OF 2023
aware of their antecedents and therefore, they have alerted each
other. Such testimony has not disturbed or held doubtful. It is
emerging that from initial spot where informant was having
telephonic conversation, he was dragged to some distance near the
Arch. Therefore, none must have come to the rescue of informant.
Immediately after informant narrated in his report about hearing
names from people, police machinery has swung into action and
appellants being known to police, they were swiftly taken in custody.
Therefore, even above objection holds no much substance.
THIRD OBJECTION :
21. Much stress is laid by learned Counsel on the aspect of delayed
T.I. Parade. He pointed out that alleged incident is of evening of
11-12-2021 and after almost three weeks, T.I. parade is conducted.
True it is that inspite of appellants shown to be arrested in the early
hours, Investigating Officer has not taken diligent and prompt steps
in conducting T.I. parade, but mere non-diligence on the part of
Investigating Officer, would not be fatal to the prosecution.
The Hon'ble Apex Court in Raja v. State by Inspector of Police
with Govindraj and Others v. State by Inspector of Police,
Singarapattai Police Station, Krishnagiri District AIR 2020 SC 254,
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has reiterated that, "There is no hard and fast rule about period
within which T.I. parade must be held from the date of arrest".
In the recent case of Pramod Mandal v. State of Bihar, (2004)
13 SCC 150, the Hon'ble Apex Court held that "It is neither possible
nor prudent to lay down any invariable rule as to the period within
which T.I.parade must be held."
Here, it is also noticed that there is no specific question or
suggestion to PW9 Zalwar, Investigating Officer, as to inspite of
arresting the appellants in the very intervening night, why it took
him so long to conduct TI parade. There being no cross-examination
on delayed T.I. parade, no benefit can be derived by the accused that
too in appeal.
Even otherwise law is fairly settled that T.I. parade is not
substantive piece of evidence and what is substantive piece of
evidence is dock identification, which is done here. T.I. parade is a
stage, which is in the realm of the investigation machinery. Both
PW1 informant as well as PW7 Talathi have identified accused
persons in the dock. Resultantly, even above objection does not
sustain.
FOURTH OBJECTION :
22. Learned Counsel for appellants submitted that recovery
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discovery is shown on three distinct dates i.e. 12-12-2021,
15-12-2021 and 19-12-2021 from the same spot. According to him,
recovery ought to have been effected in one visit only. Much
emphasis is also laid on the aspect that seizure is shown from a spot,
which is in between two houses and that articles were said to be
recovered upon disclosure from a dustbin and therefore, very
recovery comes under shadow of doubt. It is also highlighted that
panchas to memorandum of disclosure and recovery have not
supported prosecution.
In this connection, if evidence is put to scrutiny, it does emerge
from paragraph 5 and 6 of the examination-in-chief of PW9 Zalwar,
Investigating Officer that while in custody, accused no.2 Rani gave
memorandum of disclosure regarding her willingness to show the
booty, which was extorted from informant and also the knife, which
was noted by virtue of exh.78 and this lady took police and panchas
in a passage in between two houses and from there cash of
Rs.18,000/- and knife are shown to be seized. It is pertinent to note
that on the very early hours of 12-12-2021, accused no.2 Rani is
taken in custody from the area namely Bhimnagar, Jalna. Since then
till memorandum of disclosure, she was in custody. Therefore, the
booty and articles recovered at her instance, were lying in the
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dustbin and there was no opportunity for her to dispose of or hide it
somewhere else. She was in the company of accused Tanhya and
Sachin since the evening till they parted to their respective houses.
When her presence at the time of robbery is got confirmed and when
informant claims that the lady took away the ring as well as cash
from his pant pocket, it is no surprise to find recovery at her instance.
Another knife is also recovered at the instance of accused no.1
Tanhya on 19-12-2021 from Shakuntala Nagar area from his rented
house and during such visit, knife and gold ring was seized at his
instance, whereas on 12-12-2021 disclosure and recovery is
attributed to accused no.2 i.e. from same rented house located in
Shakuntala Nagar, but accused persons are not taken together in one
go or on one date, however they are shown to be taken on distinct
dates and therefore, disclosure and recovery is from same place and
are on distinct dates. PW1 Avinash, informant in paragraph 6 of his
substantive evidence has identified knife, 5gm gold finger ring and
has categorically stated about receiving it from Court except 2gm
gold ring, which belongs to his daughter and cash of Rs.3,000/-. So
much part of his substantive evidence has not been challenged at all.
When articles are got returned through Court, there is presumption
that on due verification and identification, articles must have been
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returned.
For above reasons, above objection also carries no force.
SUMMATION
23. To sum up, here occurrence is proved through PW1 Avinash /
informant victim. There is identification of accused persons both in
T.I. parade as well as in dock. There is recovery at their instance.
Some of the articles and ornaments are identified and returned back
to the informant. Article knife put to use is seized and identified by
informant and as such charges definitely stands proved beyond
reasonable doubt.
24. After going through the impugned judgment, in the considered
opinion of this Court, the view taken by the trial Court is the possible
view that could emerge even on re-appreciation of evidence. No
infirmities or error, which are so patent so as to render the judgment
unsustainable having been brought, there is no cause or reason for
interference. Accordingly, I proceed to pass following order.
ORDER
Criminal Appeal No.287 of 2023 is dismissed
( ABHAY S. WAGHWASE )
JUDGE
SPT
