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2012 DIGILAW 1512 (BOM)

Dilip Rama Korde v. State of Maharashtra

2012-08-09

R.C.CHAVAN

body2012
JUDGMENT This appeal is directed against the conviction of the appellant recorded by the Additional Sessions Judge, Pune, for the offences punishable under Sections 394 and 392 read with section 397 of the Indian Penal Code and sentence of rigorous imprisonment for 9 years with fine of Rs.5,000/- or in default rigorous imprisonment for one year, imposed upon the appellant on each of the two counts, on the conclusion of Sessions trial No. 185 of 2008, before him. 2. Facts which are material for deciding this appeal, are as under:- 3. The complainant Jiyaram Chaudhari was running jewellery shop by name "OM Jewelers," at Dhankawadi, Pune. On 11th July, 2007, at about 8.30 p.m., he started closing his business and asked Dinesh his nephew to pull down the shutter. At that time the appellant accompanied by two other miscreants entered the shop armed with revolver. They fired at the shop keeper and asked Jiyaram and Dinesh to stand still. Thereafter they placed ornaments and silverware in a black bag. One of the miscreants had gone outside the shop and thereafter the other two left. The complainant Jiyaram raised cries and after opening the shutter chased the miscreants. The chase was joined by several others. The miscreants ultimately reached Balaji Nagar square where one Dr. Desale had stopped his car. His wife was at the steering wheel and he had gone to take recharge coupon for his mobile phone. The miscreants entered the car and wanted to hijack it, but since persons in chasing started pelting stones, two of the miscreants took to heels. The appellant was allegedly caught by the mob. A police officer, who had received information on mobile phone had also joined the chase. The appellant was taken to nearby police out post at Bharati Vidyapeeth campus. Search was taken and 12 items of ornaments each comprising of several pieces and cash amount of Rs.1,250/- was seized from the bag of the appellant alongwith revolver. The complainant had in the meantime lodged a report at which an offence was registered. The complainant as well as the appellant were sent for the Medical Examination and for treatment, since the complainant had a gunshot wound and appellant had injuries on being thrashed. 4. The complainant had in the meantime lodged a report at which an offence was registered. The complainant as well as the appellant were sent for the Medical Examination and for treatment, since the complainant had a gunshot wound and appellant had injuries on being thrashed. 4. The police recorded panchnama of spot, arrest panchnama of the accused, seized his blood stained clothes and on completion of investigation sent the charge-sheet to the Court of Judicial Magistrate First Class, Pune. The learned Magistrate committed the case to the Court of Sessions at Pune. 5. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offences under Sections 394 and 392 read with 397 as also section 3 read with section 25-1B and section 7 read with section 25 (1-A) of the Arms Act. The other two miscreants were shown as absconders. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 15 witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of having been mistakenly apprehended, the learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant is before this Court. 6. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both I have gone through the entire evidence on record. 7. The disturbing feature of this case is that the learned Judge who delivered the judgment in this case had not at all himself recorded evidence of witnesses. He candidly so stated at the beginning of his judgment. It is unfortunate that a Sessions Cases have to be decided by Judges who did not record evidence therein. P.W. 1 Jiyaram is the owner of the shop, who stated about the entry of the miscreants in the shop and their decamping with a booty. He stated that the miscreant wearing a white shirt fired bullet towards his right leg and then on his right hand. The person wearing red shirt had instigated the other and had asked the complainant to remain standstill, whereupon the person wearing white shirt fired again. He stated that there was one more person wearing white T shirt. He stated that the miscreant wearing a white shirt fired bullet towards his right leg and then on his right hand. The person wearing red shirt had instigated the other and had asked the complainant to remain standstill, whereupon the person wearing white shirt fired again. He stated that there was one more person wearing white T shirt. Person who was wearing white T shirt was asked to go out, while the other two cleaned up the shop. Then the miscreants left with a cash of Rs.50,000/- and several ornaments in a bag. 8. P.W. 1's nephew P.W. 3 Dinesh Chaudhari corroborated his uncle's evidence substantially except that he did not give details of colours and clothes which the miscreants were wearing. Both stated that P.W. 1 Jiyaram then gave chase to the miscreants and that Jiyaram stated that neighbours also joined in the chase. Jiyaram waited at Good Luck Garage since he was exhausted. It seems that chase was thereafter taken up by others. P.W. 5 Bhavesh Chaudhari took the victim to hospital. P.W. 6 Namdeo Nimbalkar states that he had seen the appellant's being caught near the car. He had himself not given chase. P.W. 7 PSI Krishna Shete, had brought the appellant to police station. P.W. 8 Dr. Hemrao Desale states that he stopped his car for purchasing recharge coupon of mobile phone. He had heard people shouting about thieves. At that time two persons occupied the front seat of his car and his wife was on the driver's seat, while the third miscreant was trying to enter car. Since the mob was pelting stone at the car, two persons fired from their revolvers and ran away. P.W. 11 Dy. Superintendent of Police, Sonawane states that he had received telephonic message about robbery and that he too chased the appellant and found that the appellant had been caught and beaten up by the mob. He had taken the search of the appellant and recovered golden ornaments worth Rs.2,83,000/- a duplicate pistol and cash of Rs.1,250/-. 9. P.W. 12 Dr. Harshavardhan Shah had treated the complainant. He proved certificate at Exh.58. P.W. 2 Rohidas Dalive is a panch, who had also given a chase leading appellant being caught. He proved panchnama at Exh.16 whereby several gold ornaments were recovered from the personal search of the appellant. 9. P.W. 12 Dr. Harshavardhan Shah had treated the complainant. He proved certificate at Exh.58. P.W. 2 Rohidas Dalive is a panch, who had also given a chase leading appellant being caught. He proved panchnama at Exh.16 whereby several gold ornaments were recovered from the personal search of the appellant. He too stated that he had joined the chase and he had spotted the appellant. P.W. 4 Hiralal Chaure, is a panch in whose presence panchnama at Exh.23 was conducted in respect of car of Dr. Desale. He seems to be a jeweler and stated that he had prepared a list of the articles seized vide Exh.24. P.W. 13 Narayan Ovhal is a panch at the seizure of clothes, who proved panchnama at Exh.62. P.W. 14 and 15 are the Investigating officers. 10. Learned counsel for the appellant submitted first that from the panchnama at Exh.68, about seizure of the clothes of appellant, the appellant was shown to have wearing full pant of violet colour and an ash coloured full shirt having black lining. She submitted that this panchnama was drawn up from 23.45 hrs till 00.30 hrs. She pointed out that none of the miscreants was described by P.W. 1 Jiyaram as wearing ash coloured shirt. She submitted that F.I.R. was in fact recorded after the appellant was apprehended and yet about the clothes of miscreants, it has been mentioned that one was wearing white shirt, the other was wearing red shirt and third was wearing white T shirt. Since even according to prosecution, the appellant was allegedly caught after being chased right from the place of incident and there would be no occasion for the appellant to have a change of shirt and therefore, if the appellant was caught wearing ash colour shirt, when the miscreants were described as wearing white and red shirts appellant could not have been one of the miscreants. The learned APP would not offer any explanation about the discrepancy in the colour of shirt which the appellant was wearing. 11. Learned counsel for the appellant also submitted that though as per F.I.R. the incident allegedly occurred between 8.45 p.m. to 9.00 p.m. the F.I.R. shows that the information was received at 8.30 p.m. As rightly pointed out by the learned APP, this appears to be a slip of pen as can be seen from general diary remarks. 12. 11. Learned counsel for the appellant also submitted that though as per F.I.R. the incident allegedly occurred between 8.45 p.m. to 9.00 p.m. the F.I.R. shows that the information was received at 8.30 p.m. As rightly pointed out by the learned APP, this appears to be a slip of pen as can be seen from general diary remarks. 12. Learned counsel for the appellant submits that P.W. 6 Rambhau Nimbalkar and P.W. 2 Rohidas, claim to have chased the miscreants. According to her there is no one who was continuously chasing the miscreant from the shop till the appellant was apprehended. Therefore, this could be a case of mistaken identity. She submits that if according to P.W. 1 Jiyaram and P.W. 3 Dinesh, the miscreants had placed ornaments in a black coloured bag and had run away with the bag, there would be no occasion for the appellant to be able to transfer contents of the bag in his own pocket, while the others were running. She submits that the appellant was wrongly caught by the mob. The learned APP submits that the ornaments in the bag may be different than those which the appellant had pocketed at the time of robbery. She submits that Jiyaram had stated that he had gone inside when appellant could have pocketed ornaments. This argument by the learned APP has to be rejected because P.W. 3 Dinesh was present through out. He does not state that any miscreant pocketed any ornaments. 13. Therefore, first since the F.I.R. recorded after the appellant was apprehended, does not show that any person was wearing ash coloured shirt, the possibility of the appellant having been mistakenly apprehended by the mob to be the robber cannot be ruled out. Secondly if the appellant was a robber, since robbers had placed ornaments in a black bag and were being chased by mob, presence of the ornaments in the pocket of appellant is inexplicable. The contention of the learned counsel for the appellant that the ornaments shown to have been seized from the appellant were subsequently planted is perfectly possible. This might have been done because the miscreants had managed to flee with the ornaments which they had placed in the bag. 14. The contention of the learned counsel for the appellant that the ornaments shown to have been seized from the appellant were subsequently planted is perfectly possible. This might have been done because the miscreants had managed to flee with the ornaments which they had placed in the bag. 14. In view of this the conviction of the appellant for offence under Section 394 and 392 read with Section 397 of the Indian Penal Code and the sentence of rigorous imprisonment for nine years with fine of Rs.5,000/- or in default rigorous imprisonment for one year, imposed upon the appellant on each of the two counts cannot be sustained. The appeal is, therefore allowed. The conviction of the appellant for the offence punishable under Section 394 and 392 read with Section 397 of the Indian Penal Code is set aside and the appellant be set at liberty if not wanted in any other criminal case. Appeal allowed.