Research › Search › Judgment

Bombay High Court · body

2008 DIGILAW 1398 (BOM)

Amit Dattatraya Dighe v. State of Maharashtra

2008-09-25

R.S.MOHITE

body2008
Judgment:- 1. Criminal Appeal No.196/2007 has been filed by Amit Dattatraya Dighe who was the original accused no.1 in Sessions Case No.8 of 2005. Criminal Appeal No.116/2007 has been filed by Kumar @ Sujit Menath Devkule who was original accused no.4 in the same sessions case. Since both these appeals impugn the same judgment and order passed by the Adhoc Additional Sessions Judge, Satara, on 27.12.2006 in Sessions Case No.8/2005, the same are being disposed off by this common judgment and order. By the impugned judgment and order, both the aforesaid appellants have been convicted for committing an offence punishable under Section 395 of Indian Penal Code and have been sentenced to undergo RI for five years each and to pay a fine of Rs.2000/- each, in default of payment of fine, to undergo further RI for six months. Three other accused i.e. original accused no.2 Umesh Eknath Kadam, original accused no.5 Amol Vishwas Ohol @ Amol Ramesh Kadam and original accused no.6 Brijendra Anik Yadav were also convicted alongwith appellants. Accused No.3 Mahadeo Vitthal Divate was however, acquitted by the trial Court. All the accused were given benefit of set off and the cash amount which was recovered is directed to be returned to the Maloji Raje Sahakari Griha Taran Sanstha Ltd., Phaltan. 2. The brief facts of the case were as under :- (a) On 8.10.2004 PW-1 Rajendra Tilekar was serving as a cashier in Maloji-Raje bank situated in Phaltan town. Satish Ramchandra Mulik was a peon. He was also working in the said bank. Amongst the duties entrusted to PW-1 Rajendra Tilekar, was to credit the collections of the bank for a day with the Phaltan Urban Co-operative bank. Accordingly, on 8.10.2004 after the transactions for a day were completed by about 3.00 P.M., Rajendra counted monies and found that amount of Rs.2,25,950/- was the balance lying with him. He filled in slip of the Phaltan Urban Bank and put the aforesaid cash amount in a black regzine bag. He and PW-12 Satish Mulik then took the motor cycle of the manager and started driving the same, alongwith cash, towards Phaltan Urban bank. The peon Satish was driving the motor cycle and Ravindra was sitting on the pillion. The cash bag was put in between them. He and PW-12 Satish Mulik then took the motor cycle of the manager and started driving the same, alongwith cash, towards Phaltan Urban bank. The peon Satish was driving the motor cycle and Ravindra was sitting on the pillion. The cash bag was put in between them. (b) When this duo reached to the bungalow of the Nagar-sevak Dilip Bhosale, one indica car of silver colour came from the rear side and dashed against them. Ravindra and Satish fell down. They saw 3 persons get down from the car. One of them i.e. accused no.1 threw chilly powder in the eyes of the peon Mulik, the 2nd person i.e. accused no.5 gave a stick blow on the hand of Ravindra and snatched the bag containing the money. Ravindra raised a hue & cry and therefore, these persons boarded the car and car spread away towards the temple of Poplekar Maharaj. Though Revindra could not read the registration number of the car, he could recollect that it started with MH/12 or 42. He noticed that the number plate of the car was yellow in colour. (c) On hearing hue and cry of Ravindra, a person by name Nimbalkar was asked to chase the car. Nimbalkar did so accordingly. Subsequently, Ravindra and Mulik returned to the bank and narrated the incident to their manager. Later accompanied by the manager, they went to the Phaltan police station to lodge the FIR. (d) The FIR was reduced to writing by PI Joshi in the presence of PW-19 PSI Ranjit Narayan Sawant. PI Joshi directed PSO Kharche to register the crime and accordingly PSO Kharche registered the crime under C.R.No.193/2004 and handed over the investigation of the crime to PW-19 PSI Ranjit Sawant. (e) PSI Ranjit Sawant sent a copy of the FIR to the Court. He then visited the spot of the incident which was pointed out by the informant and prepared a panchanama of the spot of the incident (Exh.79). At the spot, they found a broken packet of chilly powder, which alongwith the chilly powder lying on the spot was seized. On the same day, he recorded the statements of two witnesses, one of whom had noticed a part of the registration of the plate of the indica car. On 9.10.2004, the investigating officer recorded statements of three witnesses. He then contacted RTO Pune and made enquiries with him. On the same day, he recorded the statements of two witnesses, one of whom had noticed a part of the registration of the plate of the indica car. On 9.10.2004, the investigating officer recorded statements of three witnesses. He then contacted RTO Pune and made enquiries with him. He learnt from the RTO Pune, that a silver colour indica car bearing registration no.MH-12/AR-8651, having a yellow registration plate had been registered in the name of one Manoj Champalal Navlakha who was a resident of Gultekdi, Pune. On the same day at about 9.00 P.M. the investigating officer alongwith police staff went to the house of Manoj Navlakha and learnt from him that though he was the registered owner of the car, the car belonged to his brother-in-law Manoj Harakchand Dhoka (PW-5) who resided in Somwar peth, Pune. The investigating officer was further informed that the driver of Manoj Dhoka i.e. Umesh Eknath Kadam is accused no.2 had taken the car to Solapur on hire basis for use by persons known to him and had returned back to Pune. The investigating officer and his police party then made enquiries in the Somwar peth area and found Umesh Kadam. Umesh Kadam was interrogated. The car was found in the possession of PW-5 Manojkumar Dhoka. Investigating Officer then took search of that car and it was found that chilly powder was spread on the back seat and below the seat. During his interrogation, accused no.2 Umesh Kadam confessed that he alongwith his 3 associates committed the present offence. He disclosed the name of the co-accused as Amit Dighe, resident of Balaji nagar (accused no.1). The police team then took search and found accused no.1 Amit Dighe in the area of Balaji nagar. Then alongwith two accused and the car they returned back to Phaltan police station and reached the Phaltan police station in the night at late hour. (f) On 11.10.2004 the investigating officer arrested accused nos.1 & 2 under an arrest panchanama. At the time of the arrest, accused no.1 Amit Dighe produced cash amount of Rs.15,000/- and some clothes. The same were seized under a panchanama (Exh.77). This cash amount was produced as article-3 before the trial Court and the clothes produced by accused no.1 were produced as article-4 before the trial Court. The investigating officer then produced both the accused before the JMFC and obtained the police custody remand. The same were seized under a panchanama (Exh.77). This cash amount was produced as article-3 before the trial Court and the clothes produced by accused no.1 were produced as article-4 before the trial Court. The investigating officer then produced both the accused before the JMFC and obtained the police custody remand. (g) On further interrogation, accused no.2 Umesh Kadam disclosed that he had concealed some amount which had come to his share in the panel of the door at the driver’s side of the car. His memorandum of statement was recorded at Exh.84. Accordingly, in pursuance of his statement, accused opened the door and the panel inside the door with the help of screwdriver and took out currency notes of the total value of Rs.13,600/-. These were seized under a panchanama Exh.85 in the presence of panch witnesses. The notes seized from the car as produced before the Court were article-5. On the same day, the investigating officer seized the indica car in the presence of panch witnesses, under a seizure panchanama Exh.76. The investigating officer seized the chilly powder spread in the back seat and below it. He came to know the names of the co-accused were Mahadev Divte, Sujit Dinanath Divkar, Amol Kadam and Brijesh Yadav. Thereafter, till 14.10.2004 he could not carry out any investigation as he was given the duty of bandobast during election of the legislative assembly. On further interrogation of accused nos.1 & 2, the investigating officer received the mobile telephone number of accused no.6. He sent a letter to Airtel company seeking details. On 17.10.2004 he found accused no.3 Madhav in his rikshaw and arrested him. On 17.10.2004 accused no.2 Umesh Eknath Kadam confessed that the amount which has come to his share was concealed by him in his house in a tin. The investigating officer recorded his memorandum statement (Exh.87). Accordingly, police staff, 2 panch witnesses went to his house situated in Pune. They went to his house in a private jeep and in the house accused no.2 took out one carry bag kept in the tin of his house. In this bag, various currency notes of different denominations having total value of Rs.14,000/- were found. The same were seized under a panchanama (Exh.88) and this cash amount was produced before the trial Court as article-10. In this bag, various currency notes of different denominations having total value of Rs.14,000/- were found. The same were seized under a panchanama (Exh.88) and this cash amount was produced before the trial Court as article-10. On the same day, the investigating officer seized the clothes purchased by accused no.1 Amit Dighe from the stolen amount. Since the clothes had been purchased from the shop of one Mukesh Jain, the investigating officer recorded the statement of Mukesh Jain. The investigating officer then made a search for accused no.6 Brijendra Anik Yadav and found him in Pune and returned to Phaltan police station. On 18.10.2004, the investigating officer took a personal search of accused no.4 Mirajkumar Deokule and arrested him under a panchanama. On that day accused no.4 Mirajkumar produced four bundles of notes of various denominations. The total amount seized from accused no.4 was Rs.45,000/-. Of the various bundles seized from accused no.4, two were bearing labels of Malojiraje Griha Taran Sanstha, one bundle was bearing the label of Jabreshwar Sahakari Patsanstha and one bundle was bearing the label of Govind milk and milk products. Panchanama was exhibited at trial court at Exhibit-74 and cash was produced as muddemal article no.7. Investigating officer then produced accused no.4 before the Court and obtained police custody remand. Since during the investigation it had transpired that there were six accused, the offence under Section 395 was added by the Investigating officer. On 29.10.2004 accused no.1 Amit Dighe confessed that he has purchased a mobile hand set from the stolen amount and concealed the same alongwith his share in his house. The memorandum was reduced to writing at Exhibit-91. Consequently accused no.1 led the police party to his house and there, he produced a mobile handset kept behind the cupboard. This was taken into custody by the investigating officer and exhibited as Exhibit-90 at the trial. Accused no.4 Brijesh led the investigating officer to his house situated in Somwar peth and there he produced one rexine bag containing notes of various denominations. These were also seized under a separate panchanama Exhibit-92. This cash amount was produced in the Court as article-11. The investigating officer then recorded the statement of the owner of the shop from where accused no.4 had purchased the mobile handset. He also collected a zerox copy of the bill. These were also seized under a separate panchanama Exhibit-92. This cash amount was produced in the Court as article-11. The investigating officer then recorded the statement of the owner of the shop from where accused no.4 had purchased the mobile handset. He also collected a zerox copy of the bill. On 23.10.2004 the investigating officer recorded the statement of the owner of the rikshaw which has been purchased by accused no.3 from the stolen amount. He recorded the statement of the Manager of the lodge where the accused had halted on 7.10.2004. On 24.10.2004 the investigating officer recorded the statement of the shop owner from whom the accused had purchased chilly powder. Thereafter he took permission from the Court for holding an identification parade for accused nos.1, 2 & 4 and sent a request letter to the Special Judicial Magistrate, Phaltan, Exhibit-104 for conducting identification parade. On 7.11.2004 two identification parades were conducted in the premises of Phaltan Court. In the first parade, PW-1 and PW-12 identified accused nos.1 & 2. In the second identification parade on the same day PW-1 & PW-12 identified accused no.4. The investigating officer then sent the chilly powder for examination to the Food & Drugs Department for analysis. He received the analysis report and later, produced the same in the Court. On 7.1.2005 he filed the charge-sheet. (h) That, after filing of the charge-sheet on 17.3.2005, accused no.5 Amol Vishwas Ohol was arrested by the Pune police in a different crime. The investigating officer then took custody of accused no.5 in the present crime and under interrogation accused no.5 disclosed that he had thrown the stick used by him under a babool tree on the Phaltan-Shinganapur road. He also confessed that he had spent the amount of his share in dance bars and for a tour. On 22.3.2005 accused no.5 made a statement that the stick used by him was concealed by him in the shrub on Shinganapur road. This statement was reduced to writing and thereafter accused no.5 led the police party and the panchas, who have been called, to a shrub situated on the Phaltan-Shinganapur road within the area of village Devsheri and produced a stick hidden in the shrub. The stick in question was then seized under a panchanama Exhibit-130. This statement was reduced to writing and thereafter accused no.5 led the police party and the panchas, who have been called, to a shrub situated on the Phaltan-Shinganapur road within the area of village Devsheri and produced a stick hidden in the shrub. The stick in question was then seized under a panchanama Exhibit-130. Then after obtaining the permission of JMFC, the Investigating officer sent a request letter to Tahsildar, Satara Exh.116 for conducting an identification parade of accused no.5. He received information that crime branch of Pune had taken accused no.6 into custody. Investigating officer then took custody of accused no.6 from crime branch on 27.6.2005 and arrested him. On 30.6.2005, while the accused no.6 was in custody, he confessed that he had purchased a hand-cart from the amount which has come into his share and that the same cart was kept at the corner of the road in the area of Sarasbag. Investigating officer then prepared a memorandum statement Exh.133 of the accused in the presence of panchas. Accused no.6 then led police and the panchas to Sarasbag road and pointed out the hand-cart. Investigating officer seized the same hand-cart in presence of panchas under a panchanama at Exh.134. He then obtained the permission of JMFC Phaltan and sent a request letter to Tahsildar, Satara requesting him to conduct the identification parade of accused no.6. On 15.7.2005 after completion of investigation, investigating officer submitted a supplimentary chargesheet against accused no.5 on 21.6.2005. Similarly, he sent a supplimentary chargesheet against accused no.6 on 18.6.2005. After receiving report of identification parade and report of analysis from Chemical Analyser, he submitted the same in the Court on 27.3.2006. C.A.report was subsequently exhibited in the Court at Exhibit-135. 3. In due course, the matter was committed to the court of Sessions and the Sessions Court framed the charge against the accused. To prove its case, the prosecution led the evidence of as many as 19 witnesses. References to the main witnesses have already been made by me hereinabove. After recording of their 313 statements, the accused preferred not to lead any defence evidence. After hearing the arguments and on the basis of the material produced on record, the learned Sessions Judge was pleased to pass the impugned judgment and order convicting and sentencing the accused as aforesaid. That is how the present appeals have been preferred by accused nos.1 & 4. After hearing the arguments and on the basis of the material produced on record, the learned Sessions Judge was pleased to pass the impugned judgment and order convicting and sentencing the accused as aforesaid. That is how the present appeals have been preferred by accused nos.1 & 4. It appears that other accused have not filed any appeal. However, the question likely to arise is as what is to be their fate in case the present appeals are allowed. 4. After hearing both sides and after perusing the entire material on record, I am of the view that both the appeals deserve to be allowed for the following reasons :- (i) It was the prosecution case, as brought out through the evidence of PW-1 Rajendra Tilekar and PW-12 Satish Mulik that the theft was committed by three persons who got down from the rear seat of silver colour Indica car. These persons got out from the indica car after the car gave a dash to the motor-cycle on which PW-1 was the pillion driver. It was the specific case of the prosecution as brought out through these witnesses that accused no.1 threw chilly powder in the eyes of PW-12 Satish. Accused no.5 gave stick blow on the hand of PW-1 and grabbed the cash and accused no.6 was present there. To this limited extent, this story was corroborated by the FIR which was filed by Rajendra Tilekar. The FIR gave a description of these three persons who had been seen by PW-1-Rajendra. It however, appears that at some stage of investigation, three more accused were roped. Accused no.3 was roped by giving him a role through the evidence of PW-12 Satish Mulik. This role was of giving a signal while Rajendra and Satish were proceedings on the motor cycle. This accused no.3 has been acquitted for lack of any evidence. Admittedly accused no.3 was not present at the scene of the incident which was at a different place. The prosecution sought to introduce accused no.4 at the scene of the offence through the evidence of PW-10 Avinash Shevale. PW-10 Avinash Shevale states that accused no.4 was sitting at the spot of the incident prior to the point of time that incident occurred. After the incident occurred, he left in the said indica car alongwith the other accused. The prosecution sought to introduce accused no.4 at the scene of the offence through the evidence of PW-10 Avinash Shevale. PW-10 Avinash Shevale states that accused no.4 was sitting at the spot of the incident prior to the point of time that incident occurred. After the incident occurred, he left in the said indica car alongwith the other accused. There is no mention of the role played by accused no.4 in the FIR. During the trial, PW-1 Rajendra as well as PW-12 Satish sought to contend that accused no.2 was sitting on the driver’s seat of the car. This would mean that accused no.2 was not amongst the three persons who got down from the rear seat of the car. This would casts doubt as to whether accused no.2 was amongst the three persons who got down from the rear seat of the car. The prosecution story at the stage of the trial therefore, was there were not three but five persons who left in the indica car. This changed story itself creats a serious doubt as to whether PW-1 Rajendra and PW-12 Satish are speaking the truth. PW-12 Satish could not identify accused no.4 in the Court and therefore, there is no substantial evidence regarding the identification of accused no.4 in so far as this witness is concerned. For a moment, assuming that accused no.2 Umesh Eknath Kadam was sitting in driver’s seat, this fact was not mentioned in the FIR and it is very doubtful if this witness could have been identified by PW-1 Rajendra Tilekar if he never got out from the car. The two star prosecution witnesses therefore, appear to be doubtful in so far as their evidence in court is at total variance of the version of the complainant PW-1 Rajendra Tilekar as contained in the FIR. (ii) PW-1 Rajendra Tilekar then says that immediately after the incident one Mr.Nimbalkar who was known to him arrived at the spot and upon his instructions, gave chase to the indica car. At the stage of the trial however, the prosecution examined a different person by name Swapnil who claimed to have given chase to the indica car. In the cross-examination, it has been brought out that this Swapnil is none other but the son of the landlord of the building in which premises have been given on rent to the bank from whom the money was stolen. In the cross-examination, it has been brought out that this Swapnil is none other but the son of the landlord of the building in which premises have been given on rent to the bank from whom the money was stolen. His father Ravindra is the landlord of the bank whose cash was stolen. It appears to be a strange co-incidence that such a witness was present exactly at the place and time when the incident took place. Nimbalkar who said to have given chase, has not been examined by the prosecution at all. (iii) The discoveries are also doubtful. The evidence of the investigating officer indicates that accused nos.1 & 2 were first accosted by him at Pune on 9.10.2004. They were with him on 10.10.2004 when he escorted them from Pune to Phaltan. They are however, shown to have been searched on 11.10.2004 and during the search from accused no.1, an amount of Rs.15,000/- said to have been produced by accused no.1 and amount of Rs.14,000/- is said to have been produced by accused no.4. It is totally unbelievable that when these two accused were with the investigating officer for two days, they were not searched and did not produce the money. The recovery from the car at the behest of accused no.2 is also very doubtful. The evidence of the investigating officer indicates that the real owner of the car was PW-5 Manojkumar Dhoka. The statement of Manojkumar Dhoka indicates that accused no.2 has taken his car at hire and brought the car at 5.00 P.M. on 9.10.2004. That thereafter the car was lying in the possession of the said Manojkumar Dhoka. The whereabouts of accused no.2 were searched out by the police with the help of the owner of this car Manojkumar Dhoka. It is very doubtful that accused no.2 would return the car by leaving his part of the share of the money in the car panel. It is also very doubtful that when the car was taken charge of by the investigating officer on 9.10.2004 and when it was used for travelling back to Pune, whether a packet of chilly powder could be said to have been noticed on the back seat only after two days. So also it is seen that the police have chosen interested people as panchas in some of the important panchanamas. So also it is seen that the police have chosen interested people as panchas in some of the important panchanamas. For example, PW-9 Swapnil Mohotkar who was the son of the landlord of the bank is shown as spot panch and police have shown recovery of chilly powder from there. PW-8 Mahesh Deshmukh is shown as a panch for recovery of Rs.14,000/- at the behest of accused no.2. This recovery was made on 17.10.2004. In his cross-examination, however, it has been brought that this panch was working in the institute, the chairman of which is one Mr.Rannavare who is also a chairman of Malojiraje Patsanstha from whom the money was stolen. Similarly PW-7 Santosh Shinde who was the recovery panch in respect of finding of car was an employee of sister concern Malojiraje Grihataran Sanstha. (iv) As regards the identification parades also I find it very difficult to believe that the accused were not shown to the various witnesses. PW-1 Rajendra has admitted that he went alongwith investigating officer to Pune during the investigation. To a further question, he answered that he did not return back with them in the same car in which accused nos.1 & 2 were brought. Investigating officer is totally silent as to whether or when he has taken the complainant to Pune. It cannot be lost sight of the fact that accused nos.1 & 2 were with the investigating officer at Pune on 9.10.2004 and 10.10.2004. If indeed, PW-1 Rajendra Tilekar was with him then the subsequent identification is of little value. As already set out hereinabove, it is not known how Rajendra could identify accused no.2 who was said to be the driver of the vehicle. It is also not known how he identified accused nos.5 & 6. There is a lot of confusion and doubt as to who exactly were the persons alighted from the rear side of the indica car because two more people have been added at the scene of the offence. It may be mentioned here that in so far as PW-12 Satish Mulik, though he identified accused no.4 in the identification parade, he failed to identify him in the Court. It is also seen that though accused nos.1 & 2 were arrested on 11.10.2004, the identification parade was held almost three weeks later. It may be mentioned here that in so far as PW-12 Satish Mulik, though he identified accused no.4 in the identification parade, he failed to identify him in the Court. It is also seen that though accused nos.1 & 2 were arrested on 11.10.2004, the identification parade was held almost three weeks later. Accused nos.1 & 2 were in the police station on 11.10.2004 and the complainant as well as Satish Mulik admitted in their evidence that they were continuously called by the police in the police station for investigation. Thus even otherwise, they must have had sufficient opportunity to look at the accused persons. The investigating officer has not stated that the accused were kept in the police station in such a manner that their faces could not be seen. 5. The Advocate appearing for accused no.1 relied upon several judgments in support of a proposition that the delay in conducting test identification parade would vitiate the evidentiary value of the said parade. Reliance was placed upon the judgment of the Apex Court in the case of Hari Nath & Anr. V/s. State of U.P. reported in (1988) 1 Supreme Court Cases 14, in which the Apex Court observed as under :- " The value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. There might conceivably, be occasions, when there could be justification, or acceptable explanation, for the delay. There are cases where the delay was at the instance of the accused persons themselves. But if there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test." 6. Taking into account all the aforesaid aspects, I find that this is a case where benefit of doubt will have to be given to the accused. Both the appeals therefore, succeed. The impugned judgment and order is quashed and set aside and the accused are acquitted of all charges. The fine if any paid by the accused will be refunded. Both the appeals stand disposed off accordingly. 7. Both the appeals therefore, succeed. The impugned judgment and order is quashed and set aside and the accused are acquitted of all charges. The fine if any paid by the accused will be refunded. Both the appeals stand disposed off accordingly. 7. Though the appeals of the other convicted accused are not before me, I find that the conviction and sentence of the non appealing accused also cannot be sustained consistent with the findings and the result of these appeals. Since the judgment and order itself has been quashed and since no conviction of dacoity can be maintained as against only three persons, the conviction and sentence of non appealing convicted accused i.e. accused no.2 Umesh Eknath Kadam, accused no.5 Amol Vishwas Ohol @ Amol Ramesh Kadam and accused no.6 Brijendra Anik Yadav, are also quashed and set aside. All the accused are entitled to be released unless wanted in some other crime.