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2012 DIGILAW 58 (BOM)

Vijay Bhimrao Bharsakade v. State of Maharashtra

2012-01-10

R.C.CHAVAN

body2012
Judgment This Appeal is directed against conviction of the appellant for the offence punishable under Section 395 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 5,000/-or in default rigorous imprisonment for six months imposed upon the appellant by the learned 2nd Adhoc Additional Sessions Judge, Raigad-Alibaug on conclusion of Sessions Case No.155 of 2008 before him. 2. Facts which are material for deciding this Appeal are as under:- On 8th May, 2007, the first informant Surendra Singh had loaded on his trailer truck bearing No.HR-38/J-9048, 24 tones and 700 Kgs of Iron coils from Uttam Galva Company on Pen Khopoli road. He left with his trailer truck at about 2:00 a.m. from the factory premises and at about 2:30 a.m. he stopped his trailer truck at site of Toll Booth at Khalapur to answer call of nature. When he returned back to his trailer, a Qualis Jeep came from Pen side and he was told that an officer from R.T.O. had called him as the trailer was overloaded. The first informant approached the jeep. 7-8 persons, who were in the jeep forcibly pulled him inside the jeep, tied him up, beat him, took him to an isolated place, tied him to a tree after robbing him of cash with him and fled in the jeep. The first informant some how managed have himself released, approached the main road and with the help of another truck driver went to police station Khalapur and informed the police of the incident. With the help of police he came to the spot where he had left the trailer and found the trailer missing. He gave a report mentioning among other things that the miscreants had stolen a cash of Rs.21,000/-from him. An offence was registered on his report. 3. On 9th May, 2007, the appellant had been apprehended by Kalamboli Police Station and upon interrogation on 11th May, 2007, he agreed to show the place where he had left the trailer truck. Accordingly, PSI Dhanvate of Kalamboli Police Station effected a seizure of the said trailer in presence of panchas. He informed Khalapur Police Station about the recovery. On 18/25th May, 2007, the appellant's custody was transferred to Khalapur Police Station. The other miscreants were also arrested. Two of the persons, who had participated in the dacoity were found to be absconding. Accordingly, PSI Dhanvate of Kalamboli Police Station effected a seizure of the said trailer in presence of panchas. He informed Khalapur Police Station about the recovery. On 18/25th May, 2007, the appellant's custody was transferred to Khalapur Police Station. The other miscreants were also arrested. Two of the persons, who had participated in the dacoity were found to be absconding. The miscreants arrested were put up at Test Identification Parade on 12th June, 2007. The appellant and some others were identified at the Test Identification Parade. On completion of investigation, charge sheet was sent up against in all nine persons, out of which two were absconding. 4. Upon commitment of the case by the learned Judicial Magistrate F.C., Khalapur, the learned Additional Sessions Judge to whom the case was made over charged the appellant and others of the offence punishable under Section 395 of the Indian Penal Code. Since the accused persons 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 accused persons. After considering the prosecution evidence in the light of defence of false implication raised, the learned Additional Sessions Judge acquitted all the other accused persons put up for trial but convicted and sentenced the appellant as indicated earlier. Aggrieved thereby, the appellant is before this Court. 5. I have heard the learned counsel for the appellant and the learned APP for the respondent State and with the help of both the learned counsel I have gone through the record. PW-1 Surendra Singh Nirmal Singh is the driver of the truck, who had given the report at Exhibit 37 on which the offence was registered. Among other things, he states that there used to be two cleaners on trailer truck. There is, however, no reference to these two cleaners in the charge sheet. He also states that on the next day of his having given the report, the stolen property along with goods was shown to him in Kalamboli Police Station. He states having identified the appellant at Test Identification Parade held on 12th June, 2007. Before that he claims that on 5th June, 2007 he had been called to Khalapur Police Station and told that the miscreants had been arrested. PW-2 Dr. He states having identified the appellant at Test Identification Parade held on 12th June, 2007. Before that he claims that on 5th June, 2007 he had been called to Khalapur Police Station and told that the miscreants had been arrested. PW-2 Dr. Manish Keshav Kalambuskar had examined Surendra Singh Nirmal Singh immediately after report was given and has proved Medico-Legal Certificate at Exhibit 47, which shows the first informant had laceration and abrasion. PW-3 Executive Magistrate Anant Ganpat Sakpal claimed to have conducted Test Identification Parade on 12th June, 2007 in the premises of Tahsil office at Khalapur. He stated among other things that he had used same dummies for five rounds of Test Identification Parade at which the various suspects including the appellant were paraded. However, it is significant to note that the appellant was paraded in the first round itself and therefore, he cannot have the benefit of same dummies having been used by the Executive Magistrate. PW-4 Kailas Chiraji Jaiswal is a panch at the recovery effected by PW-6 Santosh Narayan Dhanavate, PSI Kalamboli Police Station. Though he states about recovery of trailer truck along with the stolen goods, he does not identify the appellant as the person at whose instance the recovery was made. Both PW-4 Kailas Jaiswal and PW-6 Santosh Dhanavate stated that the trailer truck was found on the road in Taloja Industrial Area and the learned counsel for the appellant may, therefore, be right in submitting that this may not amount to concealment. PW-5 P.I. Bhiva Shyamrao Devkar and PW-7 A.P.I. Shirish Trimbak Jadhav conducted investigation in part. 6. The learned counsel for the appellant first submitted that even according to PW-1 Surendra Singh, there were two cleaners on his trailer truck. If the first informant was picked up by the appellant and others when he had gone to answer call of nature, still trailer truck would be guarded by the two cleaners and could not have been taken away without their knowledge. She submits that absence of reference to these two cleaners in the charge sheet shows that some thing is amiss and that the story about the trailer truck having been stolen may not be true. The learned APP could not throw any light as to why the investigating officer could not find, who were those two cleaners and what they observed. The learned APP could not throw any light as to why the investigating officer could not find, who were those two cleaners and what they observed. When it is possible to have eye witnesses in such a serious case of dacoity, and the investigating officer does not even choose to record their statements or array them as witnesses at the trial, it would be hazardous to accept the word of the first informant alone to conclude that the appellant was involved in the dacoity. This assumes greater importance because of the fact that PW-4 Kailas Jaiswal panch at the recovery panchanama effected on 11th May, 2007 does not identify the appellant. It is also significant that though according to PW-4 Kailas Jaiswal and PW-6 Santosh Dhanavate, recovery of trailer truck and goods was made on 11th May, 2007, PW-1 Surendra Singh had stated that on the very next day of the incident he was shown trailer truck with goods in the Kalamboli Police Station. This destroys the value of recovery. In any case, as rightly pointed out by the learned counsel for the appellant, the trailer truck itself was found parked on a public road in Taloja MIDC. If the trailer truck was indeed, stolen, and report in respect of the theft was given immediately, normally, the nearby police stations would have been alerted by the investigating officer to search for the truck. Truck is such a article which moves with a considerable speed and therefore, ordinarily, if there is report about theft of truck, the officer concerned would alert not only nearby police stations but also police stations on the high way so that the truck could be seized. Here, the truck was very much in the vicinity of the place where from which it was allegedly stolen. Therefore, this recovery, as rightly pointed out by the learned counsel for the appellant, is extremely suspicious. 7. The learned counsel for the appellant submitted lastly that the appellant was arrested by Kalamboli Police Station 9th May, 2007 i.e. on the very next day of the incident. The appellant was transferred to the custody of Khalapur Police Station soon thereafter and yet Test Identification Parade was held on 12th June, 2007 i. e. more than a month after the appellant was arrested. Therefore, according to her, the value of the identification of the appellant at Test Identification Parade is almost Nil. The appellant was transferred to the custody of Khalapur Police Station soon thereafter and yet Test Identification Parade was held on 12th June, 2007 i. e. more than a month after the appellant was arrested. Therefore, according to her, the value of the identification of the appellant at Test Identification Parade is almost Nil. There is absolutely no explanation as to why the appellant was not subjected to Test Identification Parade soon after his arrest and in any case, after recovery was made. It is significant that PW1 Surendra Singh had stated that on 5th June, 2007 he was called at Khalapur Police Station and told that the miscreants had been arrested. There was absolutely no reason for calling the first informant at the police station to inform him about the arrest of miscreants. He could as well have been called at the Test Identification Parade itself. Calling the first informant in the police station when appellant was with police casts a shadow of doubt on the identification of the appellant at the Test Identification Parade. 8. To sum up, principally, because two cleaners, who were supposed to be with the trailer truck driver were not even named in the charge sheet; secondly, because the first informant had been shown the trailer truck in Kalamboli Police Station on the very next day against recovery shown to have been made after three days, and lastly, because the Test Identification Parade was held more than a month after arrest after calling the first informant in the police station a week before the parade, the evidence about the complicity of the appellant in the crime does not inspire confidence about appellant's involvement. The learned trial Judge ought to have extended benefit of doubt to the appellant. 9. In view of this, Criminal Appeal is allowed. Conviction of the appellant for the offence punishable under Section 395 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs.5,000/-or in default rigorous imprisonment for six months is set aside. Appellant be set at liberty, if not wanted in any other case.