instrument, as the same one, that had been robbed, has been
satisfactorily established. It may be recalled that the IMEI number
of the mobile telephone instrument has not been brought on
record. It was easily possible for the investigating agency to have
collected such information, so as to fix the identity of the mobile
telephone instrument, as the same that was being used by the first
informant Ashok. Even assuming that Ashok did not know the
IMEI number, it was easily possible to ascertain the same from the
connectivity number i.e. the mobile telephone number itself. The
same, however, has not been done.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1291 of 2012
ARUN MARUTI WAGHCHAURE V/s. THE STATE OF MAHARASHTRA
CORAM : ABHAY M. THIPSAY, J.
DATE : 19th MARCH 2015.
Citation; 2015 ALLMR(CRI)4339 Bom
1 This appeal is directed against the judgment and order
dated 1st December 2011, passed by the Additional Sessions
Judge, Raigad, Alibaug, in Sessions Case No.51 of 2012,
convicting the appellant of an offence punishable under Section
395 of the Indian Penal Code (IPC) and sentencing him to suffer
Rigorous Imprisonment for a period of seven years and to pay a
fine of Rs.3,000/, in default, to suffer Rigorous Imprisonment for
2 months. The appellant was the accused no.1 in the said case
and there were four others, who were also prosecuted along with
the appellant. However, the learned Additional Sessions Judge
found the said four persons not guilty and acquitted them.
2 The prosecution case, as found in the 'brief facts of the
case', mentioned in column no.17 of the printed prescribed
proforma of the Police Report, is, as follows :
That, on 12th September 2007, at about 10.00 p.m., the First
Informant – Ashok Joshi – was driving his motor vehicle – Tavera
car – on the Mumbai – Pune Road. When the First Informant got
down from the car to remove a stone that was lying on the road,
the appellant and the other accused robbed him of his gold
bracelet, mobile telephone and gold chain, totally worth about
Rs.36,000/, and thereby, committed an offence punishable under
Section 395 of the IPC.
3 In order to prove its case against the appellant and the
other accused, the prosecution examined eight witnesses during
the trial. As aforesaid, upon considering the evidence adduced,
the learned Additional Sessions Judge found the appellant guilty,
but, the others not guilty.
4 I have heard Mr.Satyavrat Joshi, the learned counsel
for the appellant. I have heard Mr.Deepak Thakre, the learned
APP for the State. With their assistance, I have gone through the
entire evidence adduced during the trial. I have also carefully
gone through the impugned judgment.
5 The details of the prosecution case are to be found in
the testimony of the First Informant – Ashok Jadhav (PW4).
According to him, he was working as a driver on Tavera jeep,
owned by one Manish Vishwanath Balavali. This is inconsistent
with the facts of the case mentioned in the printed prescribed
proforma of the chargesheet, where the First Informant is said to be
the 'owner' of the Tavera vehicle in question. This, though shows
nonapplication of mind by the Investigating Officer while
submitting the police report, is actually of no consequence in
determining the guilt or innocence of the appellant. It has been
mentioned only to point out how careless the Investigating Officer
has been, even in mentioning the 'facts of the case' in the police
report. The evidence of Ashok Jadhav (PW4) shows that on 12th
September 2006, he took passengers in the said Tavera jeep from
Borivali to Pune. Those passengers – husband and wife – were
dropped at Pune Airport, at about 6.30 p.m. Ashok was then
coming back to Borivali. After he had crossed Khalapur Chowk,
he saw that two stones had been put on the road. He, therefore,
reduced the speed of the Tavera jeep. At that time, two persons
came and stopped in front of the Tavera jeep. At the same time,
about 4 to 5 persons came from behind and dragged Ashok out of
the jeep. The said persons snatched the gold chain, gold bracelet,
mobile telephone instrument of Nokia company, a wrist watch and
cash of Rs.7,000/ from Ashok and ran away. Ashok, then, went
to Borivali, and told about the incident to his master. On the next
day, he lodged a report with the Khalapur Police Station, which
was treated as the First Information Report (FIR). Ashok showed
the spot of the incident to the police. In the course of
investigation, the police called Ashok to Tahsildar Office, at
Khalapur. There, he identified the appellant. Some articles were
shown to Ashok in his examinationinchief, which he identified as
the same articles, that were snatched away from him by the
culprits.
6 It is evident that the appellant – and even the other
accused – were not previously known to Ashok. The evidence
against the appellant consists of his identification, as one of the
culprits, by Ashok, and the recovery of certain articles, said to be
part of the robbed property, at the instance of the appellant.
7 Mr.Satyavrat Joshi, the learned counsel for the
appellant, submitted that, the evidence of identification of the
appellant, as one of the culprits, was not at all satisfactory, and
that, as a matter of fact, the evidence in respect of the appellant's
identification – as one of the culprits – in the Test Identification
Parade, was not believed by the learned Additional Sessions
Judge. He also submitted that the evidence of recovery of part of
the robbed property, allegedly, at the instance of the police, was
also not reliable. He submitted that the identity of the recovered
articles, as the same that were robbed, was not at all established.
8 I have examined the evidence, adduced during the
trial, on these aspects.
9 The first circumstance against the appellant is of the
alleged recovery of a mobile telephone instrument of Nokia
company, and also of a gold bracelet – both said to be a part of the
robbed property, allegedly at his instance.
The prosecution case is that pursuant to the
information disclosed by the appellant, a mobile telephone
instrument, which formed part of the robbed property, came to be
recovered from Sameer Bhase (PW1) under a panchnama. In this
context, the evidence of Sameer Bhase (PW1) and that of
Ravindra Patil (PW6) – who is a panch in respect of the said
recovery, is relevant, apart from the evidence of P.I. Devkar (PW8).
10 The evidence of Sameer shows that Police Officer
Devkar of Khalapur Police Station (PW8) had come to him for
making enquiries in respect of a mobile, and that, he produced a
mobile of Nokia company before Devkar. Sameer, then, states that
the said mobile had been given to him by the appellant, saying
that he was in need of money, and that, the appellant had taken
an amount of Rs.2,000/ from Sameer, against the said mobile.
That, the Police Officer told Sameer that the mobile was part of
the property involved in the offence of dacoity, and that, therefore,
he gave the same to the police. A mobile telephone, marked as
Article No.5, was shown to him, when he identified it, as the same
that had been given to him by the appellant.
11 In his crossexamination, he admitted that such type of
mobile handsets are available in the market. He, however, denied
that he was making a false allegation against the appellant, at the
instance of the police.
12 Ravindra Patil (PW6) – a panch, however, did not
support the case of the prosecution. According to him, the police
had called him and one Bhagwan Chavan the other panch – in
Tahisldar Office, on 17th October 2006, and they obtained his
signature and that of Bhagwan Chavan, without making any
enquiries or without telling anything to them. Ravindra Patil was
declared hostile, and in the questions put by the learned APP to
him, thereafter, he admitted that Sameer Bhase had produced one
mobile before the Police, in his presence. In the cross
examination, that was taken on behalf of the accused, he admitted
that Sameer Bhase had taken him and the panch to Khalapur
Police Station, and that Sameer Bhase instructed them to sign the
panchanama. According to him, he came to know the contents of
the panchanama from Sameer Bhase. The evidence of this witness
is rather absurd and is not worth taking into consideration, either
for or against the prosecution.
13 Ashok did identify the mobile telephone instrument
that was shown to him during his evidence. However, the
question is, whether the identity of the said mobile telephone
instrument, as the same one, that had been robbed, has been
satisfactorily established. It may be recalled that the IMEI number
of the mobile telephone instrument has not been brought on
record. It was easily possible for the investigating agency to have
collected such information, so as to fix the identity of the mobile
telephone instrument, as the same that was being used by the first
informant Ashok. Even assuming that Ashok did not know the
IMEI number, it was easily possible to ascertain the same from the
connectivity number i.e. the mobile telephone number itself. The
same, however, has not been done.
14 Certainly, merely because the IMEI number of the
mobile telephone instrument has not been established or
attempted to be established, the evidence of the identity thereof,
as the same article of which Ashok was robbed, may not be
discarded, but in the instant case, the evidence of Sameer Bhase
and panch Ravindra Patil, which seeks to establish the recovery of
the mobile instrument at the instance of the appellant, is itself
highly unsatisfactory. Sameer Bhase does not give any details,
such as the time and / or date of the appellant giving to him, or
handing over to him the mobile telephone.
15 So far as the alleged recovery of the gold bracelet –
also said to be a part of the robbed property – pursuant to the
information disclosed by the appellant to the police is concerned,
the evidence that is relevant in that context is that of Kamlesh
Oswal (PW3), who is the owner of a jewellery shop, and
Bhausaheb Kolape (PW5). According to Kamlesh Oswal, police of
Khalapur Police Station came to him with the appellant on 15th
October 2006, and made enquiries with him, when he told the
police that the appellant had pledged a bracelet with him, by
saying that his daughter was sick. According to Kamlesh, he had
paid Rs.3,000/ to the appellant. That, he produced bracelet
before the police. He identified the bracelet (Article No.3), which
was shown to him, as the same which was produced by him before
the police. In the crossexamination, he admitted that, he had no
license to accept the gold jewellery, by way of pledge. The
omission to state before the police that the appellant had said that
his daughter was sick, and that, therefore, he was pledging the
ornament, was brought on record in the crossexamination. In the
crossexamination, he claimed that he had noted in writing in his
notebook, the fact of the appellant having kept the bracelet with
him, and his having paid Rs.3,000/ to the appellant, but that the
police did not seize the said notebook. He also admitted in the
crossexamination, that 'the bracelet appeared to be newly made'.
The suggestion that Police Officer Devkar got the said bracelet
made from his shop, was denied by him.
16 Bhausaheb Kolape (PW5) is one of the panchas, in
whose presence, the bracelet was allegedly recovered from
Kamlesh Oswal. Bhausaheb appears to have acted as a panch in
respect of different panchanamas. He appears to have acted as a
panch in respect of a disclosure statement, allegedly made by a
coaccused i.e. accused no.2 Ram Hari Pawar also. His evidence
is not at all satisfactory, but it is not necessary to discuss the same
in detail, in as much as, when the bracelet (Article 3) was shown
to him, he stated that he was unable to identify whether it was the
same bracelet. Moreover, in the cross examination, he admitted
that when he went to the police station, the panchanama was
ready. His evidence fails to lend any support to the testimony of
Kamlesh Oswal, which itself is highly unsatisfactory.
17 Thus, in my opinion, the evidence of recovery of a
bracelet and a mobile telephone instrument of a Nokia Company,
which are said to be part of the robbed properties at the instance
of the appellant, is not satisfactory. In any case, the evidence fails
to establish the identity of these articles as the same that were
stolen. It may be recalled that, admittedly, the bracelet appeared
to be new, and the individuality of the mobile telephone
instrument, which could have been easily established, was not
even attempted to be established.
18 The question is now about the identification of the
appellant, as one of the culprits, as done by Ashok. Interestingly,
Ashok was not asked 'whether any of the persons, who robbed him,
were present in the Court.' He does not say so in his evidence. As
a matter of fact, a reading of his evidence does not show that he
identified the appellant, as one of the culprits. His evidence in
that regard, reads as under :
“Police called me to Tahasildar
Office at Khalapur. It was for
purpose of identification of
accused. I identified one accused.
He is present in the Court. He is
accused no.1”
Thus, his statement about the identity relates to the identification
of the accused done by him in the Tahsildar Office. In other
words, what he says is that, 'he identified the accused in the Test
Identification Parade.' I am afraid, this does not amount to his
identifying him, as one of the culprits. The manner in which the
evidence of the witness, with regard to the identity of the
appellant, has been recorded, is far from satisfactory. Anyway,
since the witness has claimed that he identified the appellant
because he had stood in front of the jeep, and that he had seen the
appellant in the head light of the jeep, it may be presumed that he
had identified the appellant in the test identification parade, as
one of the culprits, though the witness has not stated this directly.
19 It is well settled that evidence of the identification of
the persons, not previously known to the identifying witness, for
the first time in court, is a weak piece of evidence. It is because of
the possibility of witnesses making a mistake with respect to the
identity, which may result from the fact that a particular person is
already alleged to be the culprit. It is for this reason, that, Test
Identification Parades are held. The Test Identification Parades
serve a dual purpose. First and foremost is, that, they give an
assurance to the Investigating Officer, that the investigation is
proceeding on the right lines. The second purpose, which the Test
Identification Parades serve, is that, they lend support to the
evidence of the identification, which the witness would give in the
court. The fact of having identified the person as the culprit
previously, from amongst several others, would lend support to the
identification of the culprit, that would be subsequently made by a
witness, during his evidence before the court. In this case, the
evidence of the Test Identification Parade is not found to be
acceptable by the learned Additional Sessions Judge. He has not
placed any reliance on the evidence of the Test Identification Parade.
The learned Judge observed that, the identification parade held by
Nayab Tahsildar – Chandrasen Pawar, was not in conformity with the
guidelines in that regard. If that was so, this was certainly not a case,
where implicit reliance on the identification of the appellant as one
of the culprits, could be placed. As already observed, Ashok, infact,
does not say that the appellant was one of the culprits, and the
evidence is not that he identified the appellant as the culprit, but the
evidence is that, 'he identified one of the accused in the office of the
Nayab Tahsildar, and that the person identified by him, at that time,
was the appellant.' Thus, that the appellant was one of the culprits,
is not directly stated by Ashok, but the same is required to be
inferred, with the reasoning that, since he identified the appellant
in the office of Nayab Tahsildar, he must have identified him as
one of the culprits. Not much value to such type of identification
can be given.
19 The weaknesses in the prosecution case were noticed
by the learned Additional Sessions Judge also, but he sought to
overcome them with a certain peculiar reasoning. The learned
Judge observed that 'the identity of the recovered bracelet was not
satisfactorily established', but still accepted the theory of the
prosecution by observing that, 'though the bracelet appeared to be
newly made it was of 13 grams', and that, 'it was very unlikely that
the jeweler could produce gold article of his own before the
police.' In other words, the learned Judge thought that, since the
bracelet had been given to the police by the jeweler Kamlesh
Oswal, it must have been given to him by the appellant. This
reasoning is not correct. When the claim was that it was the same
bracelet, which had been robbed by the appellant from Ashok,
why and how it could appear as new, needed some explanation,
which is not provided by the sort of reasoning resorted to, by the
learned Judge. Moreover, there could be several reasons for a
jeweler, who is perhaps indulging into acts of receiving stolen
property, to handover a particular article to the police. One
obvious reason would be to avoid himself being accused of
knowingly receiving stolen property, arrested and prosecuted.
20 The manner in which the evidence was recorded
during the trial, leaves much to be desired. The evidence has
been recorded in a perfunctory manner, without requiring
necessary details to be given by the witnesses. For instance, even
Kamlesh Oswal's evidence does not categorically say that 'the
appellant had pledged the bracelet with him', but what it says is,
that, 'the police came to him with the appellant, that, when the
police inquired with him, he told the police that the appellant had
pledged bracelet with him', and that, 'he then produced the bracelet
before the police.' Thus, his evidence only relates to what had
happened, after the police had come to him with the appellant,
and like in the case of identification of appellant by Ashok, we are
required to infer that 'since he told the police that the appellant
had pledged the bracelet with him, it had indeed happened that
way.' The learned Judge did not realize that, the evidence of this
witness is not that the appellant had pledged a bracelet with this
witness, but the evidence is that, he told the police that appellant
had pledged the bracelet with him.
21 Considering that neither the recovery of the robbed
property, allegedly at the instance of the appellant, was
satisfactorily established, nor the evidence of the identification of
the appellant, as one of the culprits, was satisfactory, this was a
case, where the appellant should have been given the benefit of
doubt, and should have been acquitted. The order of conviction,
as recorded by the learned trial Judge, is not proper or legal.
22 The Appeal is allowed.
23 The judgment and order of conviction of the appellant,
as recorded by the learned Additional Sessions Judge and the
sentences imposed by him upon the appellant are set aside.
24 The appellant stands acquitted.
25 He be set at liberty forthwith, unless required to be
detained in some other case.
26 Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J.)
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