Bombay High Court
Lakhan @ Pappu Suresh Kale vs The State Of Maharashtra on 11 April, 2018
Author: A.M.Badar
Bench: A.M.Badar
(209)APEALNo.6372013(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.637 OF 2013
Lakhan @ Pappu Suresh Kale,
Age : 23 years, R/o.Patkul,
Taluka Mohol, District Solapur
(At present in Solapur Jail) ... Appellant
V/s.
The State of Maharashtra ... Respondent
.....
Ms.Nasreen S.K.Ayubi, Appointed Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 11th APRIL 2018.
ORAL JUDGMENT :
1 By this Appeal, the appellant/accused is challenging the Judgment and Order dated 06/04/2013 passed by the learned Additional Sessions Judge, Solapur in Sessions Case No.146 of 2011 thereby convicting him of offences punishable under Sections 392 and 452 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years apart from payment of fine of Rs.5,000/- and default sentence of six months on first count and rigorous imprisonment for one year apart from Gaikwad RD 1/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) payment of fine of Rs.500/- and default sentence of simple imprisonment for three months on the anther count.
2 Facts in brief leading to the prosecution of the appellant/accused are thus :
(a) First Informant Mohan Panaskar being an employee of Arihant Polymer Extraction Company, was residing in the staff quarters of the said Company at Chincholi (Kati), Taluka Mohol, District Solapur. His married daughter Priyanka Mohite had came to her parental house for the purpose of delivery.
(b) The incident in question took place in the night intervening 05/07/2010 and 06/07/2010. After returning from his work and after having dinner in his house, First Informant Mohan Panaskar slept in the front yard of his house whereas his wife P.W.No.1 Shobha Panaskar and his daughter Priyanka Mohite slept inside the house. At about 2.00 a.m., the First Informant was made to wake up by two persons and he was asked to get the door of the house opened. Two more persons then jointed those robbers. A knife was pointed at the First Informant and, therefore, he gave call to his wife P.W.No.1 Shobha Panaskar to open the door.Gaikwad RD 2/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 :::
(209)APEALNo.6372013(J)
(c) When P.W.No.1 Shobha Panaskar opened the door, all four robbers caused their entry in the house and threatened P.W.No.1 Shobha Panaskar as well as P.W.No.2 Priynaka Mohite with dire consequences and asked them to keep quiet.
They then started searching house for tracing out valuables. The robbers took the necklace and mangalsutra of P.W.No.2 Priynaka Mohite kept in a box in the house. Similarly, they took the cellphone kept in the house and while fleeing from the spot, they snatched the mangalsutra from the neck of P.W.No.1 Shobha Panaskar. In this way, the jewellery and valuables costing Rs.27,500/- came to be looted from the house of First Informant from the robbers.
(d) Report of the incident was lodged immediately by First Informant Mohan Panaskar with Police Station, Mohol resulting in registration of Crime No.282 of 2010 for offences punishable under Sections 395, 447 and 452 of the IPC.
(e) During the course of investigation, the spot came to be inspected in presence of panch witness P.W.No.3 Bajrang Salunke and spot panchanama (Exhibit 48) came to be recorded. Statement of witnesses came to be recorded. P.W.No.6 Sujay Ghatge, Police Sub-Inspector of Local Crime Branch arrested Lakhan Shamrao Kale on 12/12/2010 and his custody was transferred in the instant crime. He was Gaikwad RD 3/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) ultimately found to be juvenile in conflict with law. Looted necklace and mangalsutra came to be recovered from the goldsmith to whom it was sold by the relatives of the accused.
(f) On 18/12/2010, the present appellant came to be arrested in the crime in question. The appellant as well as the juvenile in conflict with law were subjected to the test identification parade conducted by P.W.No.9 Vaijinath Khanapure, Tahsildar. First Informant Mohan Panaskar as well as P.W.No.1 Shobha Panaskar duly identified the present appellant/accused during the course of that test identification parade. On completion of investigation, the charge-sheet came to be filed against the present appellant/accused.
(g) Charge for offences punishable under Sections 395, 447 and 452 of the IPC was framed and explained to the appellant/accused. He pleaded not guilty and claimed to be tried.
(h) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all nine witnesses. Shobha Panaskar is examined as P.W.No.1. Her daughter Priynaka Mohite is examined as P.W.No.2. Spot panch, Bajrang Salunke is examined as P.W.No.3, whereas the spot Gaikwad RD 4/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) panchanama is at Exhibit 48. Another panch Ramling Survase is examined as P.W.No.4. Babu Aiwale, Police Head Constable of Mohol Police Station is examined as P.W.No.5, whereas the FIR is at Exhibit 59. Sujay Ghatge, Police Sub- Inspector is examined as P.W.No.6. Investigating Officer Upendra Lotlikar, API, Mohol Police Station is examined as P.W.No.7. Panch witness Dattatraya Gavade is examined as P.W.No.8. The Special Executive Magistrate Vaijinath Khanapure is examined as P.W.No.9. Exhibit 75 and 78 are the record and memorandum of test identification parade.
(i) The defence of the appellant/accused was that of total denial.
(j) After hearing the parties, by the impugned Judgment and Order, the learned trial Court convicted the appellant/accused for the offences punishable under Sections 392 and 452 of the IPC and accordingly, he has been sentenced as indicated in the opening paragraph of this Judgment.
3 I heard Ms.Nasreen S.K.Ayubi, the learned Advocate appointed to represent the appellant/accused at the cost of the State. She argued that there is no reliable evidence to conclude that the appellant/accused was identified by the prosecution witness P.W.No.1 Shobha Panaskar. The incident took place in the Gaikwad RD 5/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) midnight and she had no opportunity to see the robbers. Therefore, her evidence regarding identity of the appellant/accused as the robber is untrustworthy and needs to be discarded. The test identification parade was conducted after three months after arrest of the appellant/accused as seen from the evidence of P.W.No.7 Investigating Officer Upendra Lotlikar, API, Mohol Police Station. The learned Advocate further argued that there is no recovery from the appellant/accused and as such, he is entitled to acquittal.
4 The learned Additional Public Prosecutor supported the impugned Judgment and Order by arguing that evidence regarding identity of the appellant/accused as the robber virtually went unchallenged and there is not a single question to P.W.No.1 Shobha Panaskar to the effect that she had no opportunity to see the robbers. In submission of the learned Additional Public Prosecutor, the test identification parade was duly conducted by the prosecution and during the course of that test identification parade, P.W.No.1 Shobha Panaskar has rightly identified the appellant/accused. Evidence of prosecution is trustworthy because P.W.No.2 Priynaka Mohite, who is daughter of P.W.No.1 Shobha Panaskar, has candidly stated in her chief-examination itself that she is unable to identify the robber because a blanket was placed on her person.
Gaikwad RD 6/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 :::(209)APEALNo.6372013(J) 5 I have carefully considered the rival submissions and also perused the Record and Proceedings.
6 According to the prosecution case, the appellant/ accused along with the absconded accused and the juvenile in conflict with law committed dacoity at the house of P.W.No.1 Shobha Panaskar by trespassing her house having made preparation for causing hurt. Her husband Mohan Panaskar died during the pendency of the trial and therefore, P.W.No.1 Shobha Panaskar and P.W.No.2 Priynaka Mohite are now the only eye- witnesses to the crime in question. Let us, therefore, examine their evidence in order to ascertain whether the identity of the appellant/accused is established as one of the robber in the robbery committed at their house in the night intervening 05/07/2010 and 06/07/2010.
7 P.W.No.1 Shobha Panaskar has stated before the Court that at the time of the incident, her husband was sleeping outside the quarter whereas she herself and her daughter P.W.No.2 Priynaka Mohite were sleeping inside the house. She opened the door of the house in response to the call given by her husband in the midnight and then three persons entered in the house. They pointed a knife at the neck of her husband and threatened her not to shout. This witness further deposed that then those robbers searched the tiffins in the house and had taken golden Gaikwad RD 7/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) mangalsutra and necklace belonging to her daughter kept in the tiffin. P.W.No.1 Shobha Panaskar further stated that the robbers took one cellphone and while going away snatched her manimangalsutra from her neck. She deposed that the robbers were of the age group of 22 to 23 years and and they were slim.
8 This witness duly identified the recovered necklace and mangalsutra. She also identified the appellant/accused before the Court and further stated that she had identified him earlier during the course of test identification parade. Perusal of cross- examination of this witness goes to show that not a single question is asked to her in respect of opportunity, if any, with her to see the robbers. Except few suggestions, which were denied by this witness, nothing is in cross-examination of this witness to cast a doubt on her version regarding identification of the appellant/accused as one of the robber. Her evidence to the effect that robbers including the present appellant/accused entered in her house, threatened her as well as her husband and took away mangalsutra, necklace as well as cellphone from her house is virtually unshattered in the cross-examination.
9 P.W.No.2 Priynaka Mohite, who is daughter ofP.W.No.1 Shobha Panaskar, though described the mode and manner in which robbery was committed at her parental house, has candidly stated that as blanket was put on her person by the Gaikwad RD 8/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) robbers while committing robbery, she is unable to identify the robbers and even the appellant/accused sitting in the dock. However, this witness has stated that the robbers looted her mangalsutra and necklace kept in the tiffin and also took away the mangalsutra of her mother P.W.No.1 Shobha Panaskar and the cellphone.
10 Immediately on the next day after registration of the crime in question, the spot was inspected in presence of P.W.No.3 Bajrang Salunke by P.W.No.7 Investigating Officer Upendra Lotlikar, API, Mohol Police Station. Perusal of spot panchanama (Exhibit 59) dated 06/07/2010 shows that the entire house of P.W.No.1 Shobha Panaskar was ransacked and the articles were found scattered halter-scatter. Small steel box was found opened. This spot panchanama (Exhibit 59), thus, makes it clear that the robbers took time for searching the valuables in the house by checking the contents of the pots as well as cupboards. Thus, they must have spent considerable time in the house of P.W.No.1 Shobha Panaskar during the course of robbery granting her sufficient time to see them. Memory of such horrendous incident lasts long in the mind of the victim and description of the accused in such crime gets imprinted in the mind of victim of such crime. Therefore, as nothing has came on record from cross-examination of P.W.No.1 Shobha Panaskar to dispute identity of the appellant/accused as perpetrator of the crime in question, it Gaikwad RD 9/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 ::: (209)APEALNo.6372013(J) cannot be said that the evidence of the prosecution is suffering from infirmities.
11 The appellant/accused was subjected to the test identification parade after his arrest on 18/12/2010. The panchanama of personal search of the appellant/accused is at Exhibit 62. The test identification parade was conducted by P.W.No.9 Vaijinath Khanapure, Tahsildar on 05/02/2011 at the Tahsil Office. The appellant/accused along with the juvenile in conflict with law made to stand with twelve dummies and, as seen from evidence of P.W.No.9 Vaijinath Khanapure, Tahsildar, P.W.No.1 Shobha Panaskar has duly identified the appellant/accused as the robber. Evidence of P.W.No.9 Vaijinath Khanapure, Tahsildar, who had conducted the test identification parade shows that he had taken all necessary precautions to see that the identifying witnesses should not see the suspects prior to the test identification parade. Evidence of P.W.No.9 Vaijinath Khanapure, Tahsildar shows that he had undertaken fair and honest procedure in conducting the test identification parade and there is nothing in his cross-examination to dispute his evidence as well as the memorandum of test identification parade (Exhibit
78). Thus, evidence of P.W.No.1 Shobha Panaskar regarding identification of the appellant/accused is gaining corroboration from the evidence of the test identification parade.
Gaikwad RD 10/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 :::(209)APEALNo.6372013(J) 12 True it is that nothing was recovered at the instance of the appellant/accused, but evidence of the prosecution regarding involvement of the appellant/accused in the robbery committed in the midnight at the house of P.W.No.1 Shobha Panaskar is clinching and trustworthy. The prosecution has duly proved from the evidence adduced by it the commission of the offences punishable under Sections 392 and 457 of the IPC by the appellant/accused along with his associates.
13 In this view of the matter, there is no scope to interfere with the Judgment and Order of conviction as well as the resultant sentence. Hence, the Order :
ORDER
(i) The Appeal is dismissed.
(A.M.BADAR J.) Gaikwad RD 11/11 ::: Uploaded on - 12/04/2018 ::: Downloaded on - 13/04/2018 02:18:31 :::