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2007 DIGILAW 1471 (BOM)

Nana Somnath Trimbake v. State of Maharashtra

2007-10-09

B.R.GAVAI

body2007
JUDGMENT:- These appeals are directed against the order of conviction and sentence recorded by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No.n/ 2005. vide judgment and order dated 25th January. 2006. 2. The prosecution case in brief is as under :-. Complainant Ramchandra Burhade is PW-l was working as a School Teacher and after his retirement, he started the business of gold smith under the name and style of "Mal ganga Jewellers" at Nighoj. It is the case of the prosecution that the accused Nos.5 and 6, namely, Mangesh and Ishwar had come to the shop of the complainant on 11th August. 2004. They saw the jewellery shown to them by the complainant and ordered the jewellery to be made as per their choice by giving the complainant an advance of Rs.100/-. It is further the prosecution case that on 13th August. 2004, the complainant had gone to attend one court proceeding and returned to his shop between 3.00 to 4.00 p.m. As soon as he entered the house, two accused persons who were hiding behind the door, pulled him inside, put cloth ball in his mouth, tied him, raised the volume of television and pulled him to the kitchen room. The complainant saw that his wife was also tied with a nylon rope and cloth was put in her mouth. It is further the case of the prosecution that thereafter the complainant was also tied with the rope. The thieves then pulled golden chain from his neck, removed his gold finger ring, threw bedding on his body ransacked the cupboard after breaking it open. It is further the case of the prosecution that when the complainant found that sound had stopped, he got himself released and started raising shouts. He checked his house and found that 40 Tolas of gold, 10 Kilograms of silver and Rs.10,000/- were missing. 3. The complainant thereafter went to the police station and lodged a complaint. Police visited the spot, drew the panchanama and attached two pieces of nylon rope which were of blue colour. The investigating officer divided his persons into two groups, sent them in different directions to find out if nylon ropes were sold by any of the shopkeeper. He received information about the sale of nylon rope from the shop of one Varkhede. The investigating officer divided his persons into two groups, sent them in different directions to find out if nylon ropes were sold by any of the shopkeeper. He received information about the sale of nylon rope from the shop of one Varkhede. While recording the statement of one Datta Lanke, it was found that the accused No.1 had come to his shop and had purchased the rope around 7.00 p.m. for Rs.20/- and had requested the rope to be cut into two pieces. Accordingly, accused No.1 Nana came to be arrested on 14th August, 2007. Memorandum statement of accused No.1 was recorded under Section 27 of the Indian Evidence Act. The accused No.2 had told that the stolen articles were kept in backside room of one Nisarga Dhaba. Accordingly, the police, panchas and Investigating Officer, visited the Nisarga Dhaba. Accused No.2 Sudam opened the door of the room. However, the stolen articles were not found there. On questioning the accused No.2, he in formed that the golden and silver ornaments were kept at a distance of about 65 feet in the bushes near the boundary of the field. He took out a while nylon bag. The said bag was containing golden and silver ornaments, which were identified by the complainant. It is further the case of the prosecution that during the investigation of the accused No.1, names of the other accused were disclosed. It was found that the Accused No.7 who was in debt of Rs.l,00,000/- had prepared a plan with the help of accused No.1 Nana and other accused, to commit the offence. 4. The identification parade of the accused was conducted on 14th September, 2004, wherein, accused Nos.5 and 6 came to be identified. 5. Charge-sheet came to be filed in the court of learned J.M.F.C., Pamer. Since the case was exclusively triable by the court of Sessions, it came to be committed to the learned Sessions Judge, Ahmednagar. 6. After appreciation of the evidence led by the prosecution, the learned trial court recorded a finding that the prosecution had failed to prove the case beyond reasonable doubt in so far as the accused Nos.3, 4 and 7 are concerned and acquitted them. The learned trial court arrived at a finding that the prosecution had proved the case beyond reasonable doubt against the other accused i.e. accused Nos. The learned trial court arrived at a finding that the prosecution had proved the case beyond reasonable doubt against the other accused i.e. accused Nos. l.2, 5 and 6 for the offence punishable under Sections 342 and 392 of the IPC convicted them and directed them to undergo sentence of R.L for 7 years and I year, respectively and to pay a fine of Rs.5,000/- and 500/- respectively and in default of payment of fine to undergo sentence of S.L for one year and 3 months, respectively for the offences. Being aggrieved with the order of conviction and sentence, the appellants have preferred the present appeals. 7. Heard Shri. Gaware, learned counsel for the appellant in Criminal Appeal No. 105/2006 (accused No.1), Shri. Malte learned counsel for appellant in Criminal Appeal No. 107 /2006 (accused No.2) and Shri. Gandhi, learned counsel for appellants in Criminal Appeal No.126/2006 (accused Nos.5 and 6) and Smt. Mane, APP for the respondent State. 8. Shri. Gaware, learned counsel for the appellant/accused No.1 submits that the only material on which the accused No.1 has been convicted is the recovery on a memorandum under Section 27 of the Indian Evidence Act alleged to be made at the instance of accused No. l. He submits that the alleged recovery is made from a open space accessible to all and not within the exclusive knowledge of the accused No.1. He, therefore, submits that such a recovery on a memorandum under Section 27, could not have been relied upon by the learned trial court, for convicting the accused No.1. He submits that there is no other material to connect the accused No.1 with' the crime in question and as such, he ought to have been acquitted. He relies on the judgments of the Apex Court in the case of "Trirnbak Vs. State of Madhya Pradesh" reported in AIR 1954 SC 39 ; "Makhan Singh Vs. State of Punjab", AIR 1988 SC 1705 ; and the judgments of the Division Bench of this court in the case of "State of Maharashtra Vs. Abdul Kadar @ Raj Mohd. Kadar Badshah and others.", 1997 Born.C.R. (Cri) 820 : [1997 ALL MR (Cri) 1353]; "Laxrnan Baban Wagh and another V s. State of Maharashtra" reported in 2006 ALL MR (Cri) 165. 9. He further submits that according to the prosecution, recovery is on the basis of joint statement of accused Nos. Abdul Kadar @ Raj Mohd. Kadar Badshah and others.", 1997 Born.C.R. (Cri) 820 : [1997 ALL MR (Cri) 1353]; "Laxrnan Baban Wagh and another V s. State of Maharashtra" reported in 2006 ALL MR (Cri) 165. 9. He further submits that according to the prosecution, recovery is on the basis of joint statement of accused Nos. l and 2 and as such, the said recovery is not admissible in evidence and no reliance can be placed upon any recovery alleged to have been made in pursuance of the joint statement. In support of this submission, he relies on the statement of the Division Bench of the Andhra Pradesh High Court in the case of "Kanuru Yenadi Changaiah and others Vs. State of A.P.", 1985 Cri.L.L.J. 1822. 10. Shri. Malte, learned counsel appearing on behalf of the accused No.2, submits that firstly, the accused No.2 was not arrested when allegedly said recovery is made at the instance of his statement and as such, said alleged recovery is of no consequence. He relies on the judgments of the Punjab and Haryana High Court in the case of "Sarabjit Singh Vs. State of Punjab" reported in 1998 Cri.L.J. 2231 and in the matter of "Pall son of Bikar Ram Vs. State of Punjab" reported in 1996(2) RCC 643. 11. Shri. Gandhi, learned counsel appearing on behalf of the accused Nos.5 and 6 submits that the only material on which the accused have been convicted is the identification of the accused by the complainant. He submits that the said identification parade was held at much belated stage. He further submits that in the identification parades held to identify all the 3 accused, the dummies were same and as such, the said identification parades could not have been relied on by the trial court. It is submitted that prior to holding the identification parade, no care was taken by the officer conducting the identification parade to ensure that the accused are not seen by the witnesses. He relies on the judgments of the Apex Court in the case of "Hasib Vs. State of Bihar" reported in AIR 1972 SC 283 and in the case of "Matru @ Girish Chandra Vs. State of D.P." reported in AIR 1971 SC 1050 ; the judgment of the Division Bench of the Allahabad High Court in the case of "Asharfi and another Vs. State of Bihar" reported in AIR 1972 SC 283 and in the case of "Matru @ Girish Chandra Vs. State of D.P." reported in AIR 1971 SC 1050 ; the judgment of the Division Bench of the Allahabad High Court in the case of "Asharfi and another Vs. State" reported in AIR 1961 Allahabad 153, the judgment of this court in the case of "Mohamad Iqbal Farooq Sheikh and another Vs. State of Maharashtra" reported in 2007 ALL MR (Cri) 631. 12. Smt. Mane, learned APP submits that the learned trial court upon proper appreciation of the evidence has found that the prosecution has proved the case beyond reasonable doubt against the appellants and as such, no perversity or infirmity could be found with the finding recorded by the trial court and as such, the judgment of the trial court needs no interference. 13. From the perusal of the record, it would appear that the learned trial court has found the following material to be sufficient for convicting the accused Nos. l, 2, 5 and 6, respectively. (I) In so far as the accused No.1 is concerned, the learned trial court relied on the statement of PW-8 Datta that the accused No.1 had purchased the rope from the shop of one Warkhede at around 7.00 p.m. and asked him to cut it into two pieces and the recovery of the stolen articles on memorandum under Section 27 of the Indian Evidence Act. (II) In so far as the accused No.2 is concerned, the recovery of the stolen articles on a statement made to the police by the appellant No.2 from the bushes near the boundary of the field, is held to be sufficient material against him. The learned trial court has also found that the said statement made to the police can also be considered as an extra judicial confession to prove the guilt of accused No.2. (III) In so far as the accused Nos. 5 and 6 are concerned, the identification parade in which the accused Nos.5 and 6 have been identified by the complainant PW1 is held to be sufficient proof to convict the said accused. 14. The prosecution case rests entirely on circumstantial evidence. The Apex Court in the case of ''"Ramreddy Rajshekharma Reddy Vs. 5 and 6 are concerned, the identification parade in which the accused Nos.5 and 6 have been identified by the complainant PW1 is held to be sufficient proof to convict the said accused. 14. The prosecution case rests entirely on circumstantial evidence. The Apex Court in the case of ''"Ramreddy Rajshekharma Reddy Vs. State of A.P." (cited supra), has held thus:- ""]t is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be a substitute for proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence" 15. In the light of this settled position of Jaw, let us examine whether the prosecution has proved the incriminating circumstances against the accused and as to whether the circumstances proved form a chain of events as would permit no conclusion other than one of the guilt of accused. 16. In so far as the accused No.1 is concerned, the first incriminating circumstance is the evidence of PW-8 Dattu, who states that on the date of the incident, the accused No.1 Nana had purchased a nylon rope for Rs.20/- and directed it to be cut into two pieces. In his evidence itself, he has admitted that there are various other hardware shops in the said village Nighoj. It is further to be noticed that the said witness states that the said rope was purchased by the accused No.1 at around 7.00 p.m. on the date on which the incident is alleged to have taken place. However. it is to be noted from the evidence of the PW-l complainant that the complainant had gone to his home at around 6.45 p.m. on the date of the incident. It can thus be seen that the alleged purchase of rope by the accused No.1 is subsequent to the time of the incident. The other circumstance which the prosecution relies against accused No.1 is the recovery on memorandum under Section 27 of the Indian Evidence Act. It can thus be seen that the alleged purchase of rope by the accused No.1 is subsequent to the time of the incident. The other circumstance which the prosecution relies against accused No.1 is the recovery on memorandum under Section 27 of the Indian Evidence Act. The learned trial court has relied on the evidence of the Investigating Officer in this regard. From the evidence of Investigating Officer and the said memorandum of panchanama, it can be seen that the present accused is stated to have informed the police that the stolen property was kept in a backside room of Nisarga Dhaba. Accordingly, the statement came to be recorded and the police along with the accused No.1 and panchas went to the said Dhaba. It is stated that there, the accused No.2 opened the door. However, the stolen property was not found. On inquiry with the accused No.2 he directed them to the bushes near the border of the field, wherein the stolen property was recovered. The Apex Court in the case of"Trmbak Vs. State of M.P." (cited supra) has observed thus :"When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these m1icles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accLlsed somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that accused was in possession of these articles." The same view has been consistently followed by the Apex Court in various other cases. As such, the alleged recovery from the open field cannot be of any assistance to the prosecution. The prosecution therefore has failed to prove any incriminating circumstance against the accused No.1. 17. In so far as the accused No.2 is concerned, the trial court has based conviction on the basis of the aforesaid recovery. The learned trial court has further found that statement of accused No.2 can also be treated as an extra-judicial confession and that the same could be used to convict him. 17. In so far as the accused No.2 is concerned, the trial court has based conviction on the basis of the aforesaid recovery. The learned trial court has further found that statement of accused No.2 can also be treated as an extra-judicial confession and that the same could be used to convict him. In so far as recovery of ornaments in the bushes is concerned, it can be seen that the accused No.2 has been arrested on 14th August, 2004 at 7.30 p.m., whereas, the alleged recovery is between 15.30 hours to 18.30 hours on the same day. It is thus clear that the accused No.2 was not arrested at the time of alleged recovery. As such, in view of the judgment of the Punjab and Haryana High Court in the case of "Pall son of Bikar Ram" and in the case of"Sarabjit Singh" (cited supra), the said statement of recovery was not admissible in evidence against the accused No.2. The Division Bench of the Andhra Pradesh High Court in the matter of "Kanuru Yanadi Changaiah and others V s. State of A.P." reported in 1985 Cri.L.J. 1822 has held as under :- "Where several accused were charged with the offence of decoity and no separate statements were recorded from them, a joint statement recorded from them, leading to the recovery of stolen articles is inadmissible in evidence and no reliance can be placed upon any recoveries alleged to have been made in pursuance of the joint statement." As such, the circumstance of alleged recovery at the instance of the accused No.2, in my opinion, is not admissible against the accused No.2. In so far as the conviction on the basis of extra judicial confession is concerned. it is settled that extra-judicial confession is a weak piece of evidence and it could be used only to corroborate other evidence. It can be seen that there is no other incriminating circumstance against the accused, for which the alleged extra-judicial confession can be used to corroborate. 18. In so far as the accused Nos.5 and 6 are concerned, the evidence against these accused is in the nature of their identification by the complainant in the test identification parade. It can be seen that the complainant has identified these two accused along with accused No.4 Ramdas in the Court. 18. In so far as the accused Nos.5 and 6 are concerned, the evidence against these accused is in the nature of their identification by the complainant in the test identification parade. It can be seen that the complainant has identified these two accused along with accused No.4 Ramdas in the Court. The learned trial court has acquitted the accused No.4 finding that he was not identified in the identification parade. The trial court has, however, convicted the accused Nos.5 and 6 after finding that they were identified in the identification parade. Though the accused Nos.5 and 6 were arrested on 14th August, 2004., the identification parade was held on 14th September, 2004. Thus, the identification parade is held after a period of one month. It can be seen from the evidence of complainant, so also, identification parade that the identification parade of accused Nos.4, Sand 6 was held on the same day. It can be seen from the evidence of PW-5 Arun, who conducted the identification parade that he had called 7 dummies. who had come to the office for some work, for the purpose of identification parade. It can be seen that firstly, identification of accused No.4 Ramdas was held. However, accused No.4 was not identified. Thereafter, with the same dummies, identification parade of Accused No.5 Ishwar was held. In the said identification parade, the complainant identified accused No.5 Ishwar. Again, with the same dummies, identification parade of accused No.6 Mangesh was held. In the said identification parade. Mangesh came to be identified. It could thus be clearly seen that for all the 3 accused, the same dummies were used. It is further to be noted that the said witness had admitted in his cross-examination that the lock up is to the east of his chamber. It is admitted that in the same line is the police station. He has admitted in his evidence that at the time of first identification parade, the witness had minutely observed all the persons. It has been further admitted that there are doors and windows to the room where the identification parade was held. It is further admitted that the dummies were roving around the premises. The PW-l complainant also admits in his cross-examination that on the first occasion, he had minutely seen the persons who were standing in the office for identification. It has been further admitted that there are doors and windows to the room where the identification parade was held. It is further admitted that the dummies were roving around the premises. The PW-l complainant also admits in his cross-examination that on the first occasion, he had minutely seen the persons who were standing in the office for identification. It could thus clearly be seen that after the first identification parade was over, wherein, the witness had failed to identify the accused No.4. there was only change of one person in subsequent identification parades and all the dummies were common. 19. The Division Bench of the Allahabad High Court in the case of "Asharfi Vs. State" (cited supra), has held that every test identification of suspects should be held with only one suspect mixed up with nine or ten innocent persons, the innocent persons being changed every time a fresh suspect is put up for identification. The Apex Court in the case of "Hasib Vs. State of Bihar" and "Mohamad Iqbal Farooq Sheikh Vs. State of Maharashtra" [2007 ALL MR (Cri) 631] (supra) has held that the identification parade should be held as early as possible. In the present case, there is delay of almost a month in holding the identification parade. The delay has not been explained. It is further to be noted that the PW-5 has himself admitted that the lock up was just adjacent to the place where the identification parade was held. It is admitted that police station was also nearby. It is also admitted that all the dummies were roving around prior to the identification parade. From the evidence of PW-5 it could be seen that he had not taken care that the witness was prevented from seeing the suspect before being paraded with the other persons. It is quite possible that the PW -1 has identified the person (accused No.5) who was replaced in place of accused No.4 in the second round and (accused No.6) in place of accused No.5 in the third round. It is, therefore, difficult to base conviction only on the basis of SLich identification parade. I am, therefore, of the view that the conviction of the accused Nos.5 and 6 on the sole basis of the said test identification parade is also not sustainable in law. 20. In the result, the appeals are allowed. It is, therefore, difficult to base conviction only on the basis of SLich identification parade. I am, therefore, of the view that the conviction of the accused Nos.5 and 6 on the sole basis of the said test identification parade is also not sustainable in law. 20. In the result, the appeals are allowed. The judgment and order of conviction and sentence is quashed and set aside. The accused, who are in prison are directed to be set at libelty forthwith, if not required in any other crime. The bail bonds of the accused who are on bail shall stand cancelled. Appeals allowed.