Bombay High Court
Kashmirsingh Mohansingh Lathe Alias ... vs The State Of Maharashtra on 14 February, 2003
Equivalent citations: 2003(2)ALD(CRI)101, 2003BOMCR(CRI)~, 2003CRILJ2491
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This Appeal takes exception to the Judgment and Order passed by the Vth Additional Sessions Judge, Thane dated March 10, 1987 in Sessions Case No. 216 of 1986. The Appellant was prosecuted for offence punishable under Section394 read with Section 34 of the Indian Penal Code, Section 397 of Indian Penal Code and Section 25(1)(a) of the Indian Arms Act. The Trial Court has, however, acquitted the Appellant for the offence punishable under Section 25(1)(a) of the Indian Arms Act, on the ground that no sanction was obtained before filing of the charge-sheet, on 19th March, 1986, whereas, sanction was granted vide Exhibit 32 dated 6th January, 1987. The Trial Court, however, convicted the Appellant for the offence punishable under Section 394 read with Section 34 and Section 397 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rupees Five Hundred on each count. In default, to undergo further simple imprisonment for six months. The Trial Court directed both substantive sentences to run concurrently.
2. The prosecution case is that Laltaprasad (P.W.2) was running one Petrol Pump in the name of Shri Jai Ambe Petrol Pump, Near Kokhi-Chincholi, Taluka Vasai. The Complainant Mahendra Pratap (P.W.1) was working as a cashier at the said Petrol Pump. One Raisaheb (P.W.3) was working as a watchman at the said Petrol Pump. Whereas, Indraban, Vansaraj, Ramdhar, Vasant (P.W.4), Rajendra were working as fillers. Witness Chetnarayan (P.W.6) was running a spare parts shop. The incident in question occurred in the night of 24th December, 1985 and 25th December, 1985. On that night, P.W.1 was working as a cashier, P.W.3 was watchman and P.W.6 was filler at the Petrol Pump. At about 2.30 a.m. on that night, one Fiat Car came to the Petrol Pump and passed away. According to the prosecution case, four Sardarjis were sitting in the said car. The said car again returned to the Petrol Pump at about 3 to 3.15 in the night. Two Sardarjis sitting in the said car, went towards the cabin of the said Petrol Pump, whereas, two Sardarjis stood outside the cabin, at the door. The said persons were possessing weapons such as revolvers. Two of them who had entered the cabin, threatened P.W.1 Mahendra Pratap to make over the cash available in the cash box. Since P.W.1 was threatened, he, in turn, handed over the entire cash amounting to Rs. 55,610/-. At the same time, he pressed the alarm and in response to that, persons who were present at the Petrol Pump, immediately rushed towards the cabin. P.W.2 Laltaprasad, who at the relevant time, was sleeping on the upper floor of the Petrol Pump, also rushed towards the cabin. The two Sardarjis who were standing outside, opened fire and started running towards the highway, which was about 60 to 70 meters away from the cabin. Similarly, the two Sardarjis, who had entered the cabin and had collected the cash, also stated running towards the rear side of the Petrol Pump. One of them fired at P.W.3 Raisaheb, who was also chasing the said Sardarjis along with others. Raisaheb sustained two bullet injuries. Both the Sardarjis were accosted by the persons who chased them, one after the other, and revolvers in their possession were taken away. The police was informed, who in turn, reached on the spot immediately thereafter. The two persons who were accosted by the prosecution witnesses and others at the scene of offence, were made over to the police. One of the Sardarji was badly injured by the mob while accosting him, who subsequently succumbed to the injuries. The other Sardarji accosted by the mob and handed over to the police, is the Appellant before this Court. Both of them disclosed their names to the police, which fact has been noted in the First Information Report. They also disclosed the names and addresses of the other two Sardarjis who managed to flee from the scene. It is relevant to note that spot panchnama as well as recovery panchnama was drawn, which indicates that revolver was recovered which was handed over by the prosecution witnesses to the police. So far as the Appellant before this Court is concerned, cash of Rupees Five Thousand was recovered from his person, besides six live cartridges. Complaint was registered at the instance of P.W.1 on the same night at 5.30 a.m. The complaint graphically describes the manner in which the offence as committed by the four persons, including the Appellant before this Court. On the basis of the said complaint, further investigation was done and eventually, charge-sheet came to be filed. Since the offence was exclusively triable by the Court of Sessions, the case was committed to the Additional Sessions Judge, Thane, and registered as Special Case No. 216 of 1986.
3. During the trial, the prosecution examined in all eight witnesses, and the accused examined two witnesses in support of his defence. The defence of the accused was that he was one of the persons chasing the Sardarjis and the mob mistook him as the culprit, and caused his arrest in connection with the said offence. The Trial Court, on analysing the evidence of each of the witness examined by the prosecution as well as the defence witnesses, has found that the prosecution has established the case beyond reasonable doubt. The Trial Court has also found that the defence witnesses were of no consequence to the defence set up by the accused Appellant. The Trial Court accordingly rejected the defence put forth by the Appellant and instead, preferred to convict the Appellant for the alleged offences under Section 394 read with 34 of the Indian Penal Code and Section 397 of the Indian Penal Code, as having been proved by the prosecution. It is relevant to note that amongst the two accosted Sardarjis, the Appellant alone faced the trial because the other Sardarji Paramjitsingh Gayasingh succumbed to the injuries suffered by him, whereas, the other two Sardarjis remained absconding.
4. Accordingly, the Trial Court by the impugned Judgment and Order, convicted the Appellant for the offence punishable under Section 394 read with Section 34 and Section 397 of the Indian Penal Code, and directed him to undergo sentence as aforesaid.
5. In the present Appeal, the learned Counsel appearing for the Appellant, has challenged the decision of the Court below on the following arguments:-
(1) That no identification parade was held, and the Appellant accused has been identified only before the Court, by the prosecution witnesses.
(2) That the complaint/F.I.R. is not descriptive at all, in so far as the overt act of the Appellant or for that matter, his description and the exact role played by him in the commission of the offence.
(3) That the prosecution case is of robbery, resulting in taking away cash of Rs. 55,610/-, whereas, only a small amount of Rs. 5,000/- has been recovered from the person of the Appellant and Rs. 2,000/ from Paramjitsingh, the other accused, who is since deceased.
(4) That the prosecution evidence does not make out case either under Section 394 or Section 397 of the Indian Penal Code.
(5) The Appellant having been acquitted of the offence under the Indian Arms Act, no conviction could have been recorded against the Appellant for offence under Section 397 or Section 394 of the Indian Penal Code.
6. On the other hand, learned A.P.P. contends that there is no substance in any of the aforesaid points canvassed before this Court. He submits that the Trial Court has analyzed the evidence of each of the prosecution witness and has positively found that the offence has been established, beyond reasonable doubt. That finding of fact needs no interference, as the same is supported by the evidence on record.
7. With the assistance of both the Counsel, I have gone through the entire evidence and the Judgment of the Court below.
In so far as the first grievance made before this Court that since there is no identification parade, the Appellant could not have been convicted by the Trial Court, learned Counsel for the Appellant has placed reliance on the decision of the Apex Court in the case of Karam Singh @ Karmu v. the State. He has further relied on another decision of the Apex Court in the case of Bolineedi Venkataramaiah v. State of A.P. to contend that since no specific overt acts are attributed to the Appellant and the allegations in the First Information Report are omnibus allegations, the same cannot be the basis for implicating the Appellant. To controvert this position, learned A.P.P. contends that reliance on both the decisions is misplaced. I find force in the argument of the learned A.P.P. In so far as the first decision in Karam Singh alias Karmu (Supra), the Court has opined that for want of identification parade, it would not be safe to convict the Appellant, having regard to the fact situation of that case. In that case, it was not in dispute that the Appellant accused was convicted only on the basis of Court identification and no overt act was imputed against him. On the other hand, in the present case, though the Appellant has been identified before the Court by the prosecution witnesses, the complaint as filed, does indicate the presence of the Appellant on the scene of the offence, coupled with the fact that the Appellant was accosted on the spot and handed over to the police. The complaint also indicates that the Appellant disclosed his name and address as well as details about the other two accused who remained absconding. In such a case, as rightly contended by the learned A.P.P., the question of holding identification parade does not arise. In support of this submission, he has placed reliance on the decision of the Apex Court in 1998 SCC (Cri.) 859 Ronny v. State of Maharashtra. In the said decision, the Apex Court has adverted to several earlier decisions and has enunciated the legal position that were the accused was known to the witness from an early period or where the witness had a chance to interact with the accused or that, in a case, where the witness had an opportunity to observe the distinctive features of the accused, his evidence of identification in the Court, would be admissible. Besides, reliance is also placed by the learned A.P.P. on the decision of this Court reported in 2002 All MR (Cri.) 2472 Sayed Mohammed Owais v. State of Maharashtra as to what are the factors which are required to be borne in mind with regard to evaluation of evidence regarding identification by witnesses. Learned A.P.P. has also placed strong reliance on the recent decision of the Apex Court reported in 2001 AIR SCW 396 Daya Singh v. State of Haryana. In paragraph 12 of the said decision, the Apex Court, while adverting to its earlier decision in the case of State of Maharashtra v. Suresh , has observed that it is to be borne in mind that purpose of test identification is to have corroboration of the evidence of the eye-witnesses in the form of earlier identification and that, substantive evidence of the witness is the evidence in the Court. It is further observed that, if that evidence is found to be reliable then the absence of corroboration by test identification would not be in any way material. Further, where reasons for gaining an enduring impress of the identity on the mind and memory of the witnesses are brought on record, it is no use to magnify the theoretical possibilities and arrive at conclusion - what in present day social environment infested by terrorism is really unimportant. The Court went on to observe that in such cases, not holding of identification parade is not fatal to the prosecution. In this Judgment, the Court has reproduced the extract from the case of State of Maharashtra v. Suresh (Supra), which observe that the object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. The Supreme Court has further adverted to the extract of the decision in the case of Rameshwar Singh v. State of J. & K. , wherein, it is observed that the test identification parade is necessitated when the accused person is not previously known to the witness concerned, so as to furnish the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in the Court at the trial. It would be appropriate to advert to another recent decision of the Apex Court, which in fact, has been relied upon by the Counsel for the Appellant in the case of Dana Yadav @ Dahu and Ors. v. State of Bihar . In this decision, the Apex Court, after considering various earlier decisions of the Apex Court in paragraph 6 has observed that it is well settled that failure to hold test identification parade, which should be held with reasonable despatch, does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law. In paragraph B of the same decision, the Apex Court went on to advert to enunciation made by the Apex Court in Rajesh Govind Jagesha v. State of Maharashtra , wherein the Apex Court has observed that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint, leaving no doubt in the mind of the Court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in Court can form the basis for conviction without the same being corroborated by any other evidence and, accordingly, conviction of the accused was upheld by the Apex Court. To put it differently, the argument canvassed by the Counsel for the Appellant before this Court that the absence of test identification parade in the present case,is fatal to the prosecution and no conviction could have been recorded by the Trial Court, is without any force. On the other hand, from the settled legal position, it would appear that when the complaint itself sufficiently describe, leaving no doubt in the mind of the Court regarding the involvement of the accused or where the accused is arrested on the spot, immediately after the occurrence, absence of test identification parade is of no consequence. In the present case, it is seen from the evidence on record and as has been found by the Trial Court that the Appellant was arrested on the spot. The complaint does indicate that the Appellant accused disclosed his name and address as well as names and addresses of the other two accused, who are absconding. Besides, it is seen from the evidence on record which has virtually gone unchallenged, that after the accused were accosted by the mob while they were running away, and till the police party came on the scene, they were in the custody of the prosecution witnesses and they had sufficient opportunity to observe the concerned accused. In this backdrop, if the evidence of P.W.1. was to be scrutinised, who is a crucial witness, it is seen that he has deposed that two Sardarjis entered the cabin and threatened him by keeping revolver at his stomach. He has also deposed that the person who had kept revolver on the stomach, was the accused before the Court, and was apprehended in the last. The fact that the Appellant accused was apprehended in the last, is also deposed to by other prosecution witnesses and that fact, therefore, stands corroborated. As observed earlier, the Complaint Exhibit 8, would leave no doubt in the mind of the Court regarding the involvement of the Appellant accused. In such a situation, non-holding of test identification parade would not be fatal, may, was not necessary as observed by the Apex Court in the decisions referred to above.
Learned Counsel for the Appellant has also placed reliance on another decision of the Apex court in Sarwan Singh v. State of Punjab . Even this Judgment would be of no assistance to the Appellant. In fact, in this decision, the Apex Court has followed its earlier decision in Budhsen v. State of U.P., whereas, the decision in Dana Yadav's case (Supra) has already adverted to the relevant decision with which, I have already dealt with in my earlier part of this Judgment.
8. That takes me to the second contention raised on behalf of the Appellant that the First Information Report is not descriptive of the role played by the Appellant and regarding any overt act or for that matter, the description of the Appellant himself. There is no substance even in this submission. The Court below has rightly rejected that argument. On the other hand, the complaint as filed, and reading the same as a whole, clearly records that in all four Sardarjis came in a car, out of whom, two of them walked towards the cabin and entered the cabin. They shouted at P.W.1 loudly with the revolvers in their hands, to take out whatever he had, and since, P.W.1 was frightened, he gave all the case to them. Thereafter, P.W.1 rang the electric danger bell and gave the signal of vigilance. It is only thereafter, the accused made an attempt to flee away from the scene of offence, but were accosted by other prosecution witnesses, chased by people, who were gathered on the Petrol Pump, after hearing the sound of danger bell. The First Information Report also records that watchman P.W.3 was injured because of the gun fired six to seven times towards the people who were running to catch the accused. The evidence which has come before the Court, does support this position, as all the prosecution witnesses have deposed that P.W.3 was in the front of the mob, who were chasing the accused. Besides, the injury caused to P.W.3 by bullet has been established in evidence. The complaint also records that the accused who were accosted on the spot were handed over to the police, and they in turn, disclosed their names which have been noted in the complaint besides the names and addresses of the other two accused, who remained absconding. To my mind, therefore, the argument canvassed before this Court about lack of descriptivity in the First Information Report in untenable. However, what is to be seen is that during the trial, the prosecution witnesses have unfolded the events that occurred on the night in question and on proper consideration of the entire evidence, it is not possible to doubt the position that the incident in question did happen. In fact, even before the Trial Court, there was no controversy as to whether the incident has actually happened, as can be discerned from paragraphs 10 and 11 of the impugned Judgment. The Trial Court has rightly recorded that form the line of the cross-examination, it is seen that it is undisputed that robbery took place on 25th December, 1985 at about 3.00 to 3.15 a.m. at Shri Jai Ambe Petrol Pump. The only controversy which was posed before the Trial Court was as to who had committed the robbery. The Appellant accused had set up a defence that he was one of the persons present on the scene and was accosted by the mob under mistake belief. In the circumstances, there is no serious dispute about the actual happening of the incident. As observed earlier, all the prosecution witnesses have identified the Appellant accused in Court and as observed by the Apex Court, that fact can be used to corroborate the substantive evidence deposed to by the prosecution witnesses. Understood thus, no fault can be found with the view taken by the Court below in holding that the evidence on record adduced by the prosecution was sufficient to record finding of guilt against the Appellant for the alleged offences.
9. The next argument canvassed on behalf of the Appellant is that the prosecution case is very specific that the robbery of Rs. 55.610/- had taken place, whereas, what is recovered from the Appellant and another accused Paramjitsingh Gayasingh was only Rs. 5,000/- and Rs. 2,000/- respectively, and the prosecution having failed to explain this position, the same was fatal. There is no substance even in this contention. That by itself cannot be the basis of giving benefit of doubt to the Appellant. The Trial Court has rightly considered this plea, as can be discerned from discussions in paragraph 36 to 38 of the impugned Judgment. The Trial Court has rightly observed that a cash of Rs. 5,000/- was recovered from the Appellant, whereas, the Appellant denied that position. Besides, the trial Court has also rightly taken into account the fact that in addition to cash of Rs. 5,000/-, six live cartridges were recovered from the Appellant. As well as six live cartridges were recovered from the person of deceased Paramjitsingh Gayasingh, another accused. The recovery has been proved by examining panch witness Abu Bakar and P.S.I. Bhoge, the Investigating Officer. To my mind, there is no reason to take a different view than the one taken by the Trial Court that in the present case, the Appellant denied the fact that he was found in possession of cash of Rs. 5,000/-, whereas, the prosecution has established in evidence, recovery of cash of Rs. 5,000/- and six live cartridges from his person, the accused has failed to give any explanation in this behalf. In such a situation, non recovery of the entire amount of Rs. 55,610/- cannot be the basis of taking the view that the offence as alleged, was not committed. The argument of the appellant that the Appellant be given benefit of doubt on account of this circumstance, clearly overlooks that the prosecution witnesses have consistently deposed about the involvement of the Appellant in the commission of the offence and that substantive evidence was sufficient for recording finding of guilt against the Appellant.
10. The next argument canvassed on behalf of the Appellant is that no case under Section 394 or Section 397 of the Indian Penal Code has been made but by the prosecution. There is no substance even in this submission. On analyzing the prosecution evidence, it is seen that they have consistently deposed about the manner in which the offence has been committed and the involvement of the Appellant in the commission of that crime. The Trial Court has exhaustively analyzed the evidence on record. To my mind, there is no substance in the argument that offence under Section 394 or for that matter, Section 397 has not been made out. The present case is one of extortion and the prosecution has established in evidence that the Appellant, while committing extortion, had put P.W.1 in fear and obviously, had wrongly restrained and pressurized P.W.1 to deliver the cash lying in the case box. In such a case, offence of robbery punishable under Section 394 of the Indian Panel Code, is clearly made out. The Appellant has also been charged under Section34, as he was accompanied by other accused. As mentioned earlier, the incident has been established and the factum of robbery stands proved by the prosecution, which is in fact, not seriously disputed. Once it is held that there is sufficient evidence on record to implicate the Appellant, then it necessarily follows that no fault can be found with the order of conviction recorded by the Trial Court for offence punishable under Section 394 read with Section 34 or for that matter, Section 397 of the Indian Penal Code. Section 397 of the Indian Penal Code would be attracted where the offender uses any deadly weapon, such as in the present case. Appellant has been held to have used revolver and was in fact found with six live cartridges on his person. Once that evidence is to be accepted, as it were to be, then offence under Section 397 is clearly made out against the Appellant. In such a situation, no fault can be found with the order passed by the Trial Court, which is subject matter of challenge in this Appeal.
11. The last submission canvassed before this Court was that the Appellant has been acquitted for offence punishable under Section 25(1)(a) of the Indian Arms Act, and therefore, he could not have been prosecuted for the offence punishable under the Indian Penal Code. There is no substance even in this submission. It is seen that the Appellant has been acquitted of the charge under Section 25(1)(a) of the Indian Arms Act, purely on the ground that prior sanction of the competent authority was not obtained, that is entirely a technical matter. While acquitting the Appellant of the said charge, the Court has not found that he was not possessing revolver or six live cartridges as such, but on the other hand, while discussing regarding the offences under Section 394 read with Section 34 and Section 397 of the Indian Panel Code, clear finding of fact has been recorded by the Trial Court that the Appellant was in possession of revolver and had used that revolver in the commission of offence, besides have been found in possession of six live cartridge on his person. In the circumstances, there is no substance even in this contention.
12. No other argument is canvassed before this Court. Accordingly, this Appeal is devoid of merits and the same is dismissed. Bail-bonds of accused to stand cancelled.