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2012 DIGILAW 1837 (BOM)

Rajesh Brijesh Verma v. State of Maharashtra

2012-09-27

R.C.CHAVAN

body2012
JUDGMENT These two appeals question the conviction of the appellants by the learned Additional Sessions Judge, Mumbai for offences punishable under Sections 365 and 392 r/w Sections 397 and 506 Part-II of the Indian Penal Code (for short, "IPC") and sentences of rigorous imprisonment for seven years with fine of Rs.500/-, in default further imprisonment for two months on each of the first two counts and rigorous imprisonment for one year with fine of Rs.100/-, in default further imprisonment for one month on the third count imposed upon the appellants on conclusion of Sessions Case No. 641 of 2008 before him. 2. On 11-6-2008 at about 6:30 p.m. the first informant Rakesh Tripathi was going to his hotel at Santacruz from his home situated at Lokhandwala Complex, Andheri, Mumbai by his car. When he stopped his car at a traffic signal near Aarti Hotel, the appellants, armed with a pistol and chopper, forcibly entered the car. They pointed their weapons at the victim and made the victim drive the car towards Bandra Reclamation Club, D.N. Nagar, Santacruz, Juhu, etc. At Bandra, appellant Shivpal (accused No. 1) made the victim sit on the rear seat and he took up the driver's seat. They then took the car to a dark place, tied the victim's hands and then snatched his diamond ring, a mobile handset and cash of Rs.27,000/- from him and got down from the car and fled in an autorickshaw. On 16-6-2008 the Crime Branch, on receiving some information, laid a trap at some Mall where the two appellants and two other persons were caught by the police. Appellant Shivpal was found to be in possession of a pistol, a gold chain, two finger rings, one currency note of Rs.1,000/- and four currency notes of Rs.500/-, as also a mobile handset. Appellant Rajesh (accused No.2) was found to be in possession of a hand-kerchief and a dagger with one mobile handset. It is not necessary to recount as to what was seized from accused Nos.3 and 4, since they have been acquitted by the learned trial Judge. After this the custody of the appellants and the other accused persons was made over to Oshiwara Police Station. Thereafter, at about 8:10 p.m. on 16-6-2008 the first informant Rakesh lodged a report with Oshiwara Police Station about his having been robbed on 11-6-2008. After this the custody of the appellants and the other accused persons was made over to Oshiwara Police Station. Thereafter, at about 8:10 p.m. on 16-6-2008 the first informant Rakesh lodged a report with Oshiwara Police Station about his having been robbed on 11-6-2008. An offence was registered and in the course of investigation the police recovered some more articles at the instance of accused Nos. 3 and 4, who have been acquitted. Appellant Shivpal is alleged to have shown the spot. On completion of the investigation, charge-sheet was sent to the Court of Metropolitan Magistrate, 22nd Court, Andheri, Mumbai, who committed the case to the Court of Sessions at Mumbai. 3. The learned Additional Sessions Judge to whom the case was made over charged the appellants of offences punishable under Sections 365 and 392 r/w Section 397 and 506 Part-II of the IPC, as also Sections 3 and 4 r/w Section 25 of the Arms Act. Since all the accused pleaded not guilty, they were put on trial at which the prosecution examined in all seven witnesses in its attempt to bring home guilt of the appellants and the co-accused. After considering the prosecution evidence in the light of defence of false implication raised, the learned trial Judge acquitted accused Nos. 3 and 4 of all the charges. He also acquitted accused Nos. 1 and 2, that is the present appellants of offences punishable under Sections 3 and 4 r/w Section 25 of the Arms Act, but convicted and sentenced them for the other offences, as indicated in the preceding paragraphs. Aggrieved thereby, the appellants are before this Court. 4. I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor (for short, "APP") for the State and with their help I have gone through the evidence on record. 5. PW-1 Rakesh, the victim of the crime, is a hotel keeper who states about the incident dated 11-6-2008. He states that though he was robbed by the appellants, he went to his hotel, stayed in the hotel for sometime, went home and after 4-5 days narrated the incident to his elder brother. He states that he did not inform anyone about the incident because he feared about the miscreants who were belonging to Dawood gang. Curiously, he had never stated that the miscreants told him that they belonged to such gang. He states that he did not inform anyone about the incident because he feared about the miscreants who were belonging to Dawood gang. Curiously, he had never stated that the miscreants told him that they belonged to such gang. In the course of examination, he admitted that he had many occasions to go to police station in the past in different matters and was acquainted with the police. Also the police used to visit his hotel for various purposes. Yet it is a strange co-incidence that PW-1 Rakesh chose to go to the police station to give a report only after the custody of the appellants and the co-accused was transferred to Oshiwara Police Station. 6. The learned APP submitted that even so the fact that a gold ring had been seized from appellant Shivpal, which had been identified by PW-1 Rakesh, cannot be lost sight of. She also submitted that a chopper, which appellant Rajesh had allegedly used, was also seized from Rajesh and had been duly identified by PW-1 Rakesh. She, therefore, submits that this evidence coupled with the evidence of identification of the appellants by PW-1 Rakesh at a test identification parade conducted by PW-5 Anand Nerulkar should be sufficient to hold the appellants guilty of the offences charged. She, therefore, submits that the Judgment of the trial Court would have to be upheld. 7. Before coming to these submissions, it would be useful to recount the evidence about seizure of the articles from the appellants. This is given in the for of evidence of PW-4 Mohd. Ayub Khan, who proved the panchnamas at Exhibits-29 and 29-A. These were drawn up by the Crime Branch officers. PW-4 Mohd. Ayub Khan appears to be acquainted with the people in Crime Branch, since he states in his cross-examination that he was called at the Crime Branch office for electrification work. He stated that he never asked the officers about the work for which he was called. He then stated about his accompanying the police to a Mall where the appellants and the other co-accused persons were arrested. Though he stated about the seizure of a dagger from the personal search of accused Rajesh, and though the dagger/chopper had been shown to PW-l Rakesh, this witness was not made to identify this dagger as the one seized from accused Rajesh. Though he stated about the seizure of a dagger from the personal search of accused Rajesh, and though the dagger/chopper had been shown to PW-l Rakesh, this witness was not made to identify this dagger as the one seized from accused Rajesh. The officer who effected this seizure was not examined before the trial Court. The only police officers who were examined were PW-6 PSI Saifuddin Shaikh, who received the report at 8:20 p.m. on 16-6-2008 and PW-7 API Rajesh Padvi, who states about recoveries made by him at the instance of the accused persons who have been acquitted. The evidence of PWs-2 and 3 pertains to these recoveries made by API Padvi. 8. The learned counsel for the appellants submitted that this is a curious case by the first informant, who is well acquainted with the police and is a hotel keeper, who claims that he was forced by the appellants to drive his car in the peak hours from 6:30 p.m. to 9:30 p.m. on the busy roads of Juhu, Santacruz and Bandra Reclamation. This can be seen from the memorandum of statement made by appellant Shivpal which is at Exhibits-44 and 44-A. It is curious that during this three-hour journey in these busy areas, the victim's kidnapping was not noticed by anyone. Stranger still is the fact that the victim claimed that his hands were tied and he was left in the car, but does not state as to who untied his hands and how he went back to his hotel and from there to his home. There is absolutely no explanation except the imagination of the victim that the appellants belonged to Dawood gang for not reporting the matter to the police. It is also a strange co-incidence that only after the custody of the accused persons was transferred to Oshiwara Police Station, the report of the first informant came to be recorded. If there was no report with the Oshiwara Police Station about the incident, it is not clear as to why the custody of the accused persons was transferred to Oshiwara Police Station, even before a report was recorded. If there was no report with the Oshiwara Police Station about the incident, it is not clear as to why the custody of the accused persons was transferred to Oshiwara Police Station, even before a report was recorded. The possibility, therefore, is that after the appellants were apprehended the complainant was called up and made to give a report implicating the appellants and also describing the articles which had already been seized as having been either in possession of the complainant or his having been robbed of those articles by the appellants. In view of this, the entire story smacks of too many improbabilities to have been believed by the Sessions Court. The learned trial Judge ought to have seen that the unexplained delay of five days in lodging the first information report, and the first information report having been lodged only after the custody of the appellants was transferred to Oshiwara Police Station were strong circumstances indicating the appellants being implicated in an offence which the Crime Branch had come to know of. 9. In view of the above, both the appeals are allowed. The conviction of the appellants for the offences punishable under Sections 365 and 392 r/w Sections 397 and 506 Part-II of the IPC and sentences of rigorous imprisonment for seven years with fine of Rs.500/- on each of the first two counts and rigorous imprisonment for one year with fine of Rs.100/- on the third count imposed upon them are set aside. They are acquitted of the said offences. The appellants be set at liberty forthwith if not wanted in any other case. Appeals allowed.