Bombay High Court
Ganesh S/O Sukhdeorao Khandare vs State Of Mah. Thru P.S.O. P.S on 15 November, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 194 OF 2007
Ankush Damodar Ramteke
Age 22 Years, Occupation - Labourer;
Resident at - Patipura, Ashok Nagar, Near
Godown, Yavatmal. ... APPELLANT
VERSUS
State of Maharashtra
through Police Station Officer, Police
Station, Sonegaon, Nagpur. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 276 OF 2007
Ranjeet Sitaram Sahare
Aged about 24 Years, Occupation - Private;
Resident at - Near Residence of Gulab
Shende, Panchasheel Nagar, Behind
Damale School, Police Station Pachpaoli,
Nagpur. ... APPELLANT
VERSUS
State of Maharashtra
through Police Station Officer, Police
Station, Pachpaoli, Nagpur. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 352 OF 2007
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Ganesh Sukhdeorao Khandare
Aged about 32 Years, Occupation - Driver;
Resident at - Bhim Chowk, C/o Gautam
Gajbhiye, Near Utkrushtha Vachanalaya,
Police Station, Jaripatka, Nagpur. ... APPELLANT
VERSUS
State of Maharashtra
through Police Station Officer, Police
Station, Sonegaon, Nagpur. ... RESPONDENT
Mr. R. K. Tiwari, Advocate for Appellant in Criminal Appeal No. 194 of
2007.
Mr. Akash K. Khobragade, Advocate for Appellant in Criminal Appeal
No.276 of 2007.
Mr. R. D. Hazare, Advocate (Appointed) for Appellant in Criminal Appeal
No.352 of 2007.
Ms. Shamsi Haider, APP for Respondent - State in all Criminal Appeals.
CORAM : MRS. SWAPNA JOSHI, J.
DATE : NOVEMBER 15, 2019
JUDGMENT
. Since all the three Appeals are arising out of the same Judgment and Order and in concern with the same crime number, for the sake of convenience, all the three Appeals are decided together.
2. All the three Appeals have been directed against the same Judgment and Order dated 24 th May 2007 in Sessions Trial No. 494 of ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 3/19 210.Apeal.194.07 aw connected Appeals.(Judg) 2006, whereby the Appellant - Ganesh Khandare in Appeal No. 352 of 2007, Appellant - Ranjeet Sahare in Appeal No. 276 of 2007 and Appellant - Ankush Ramteke in Appeal No. 194 of 2007 (hereinafter be referred to as 'Accused' for the sake of brevity) were convicted. In all there were nine Accused in the present crime, out of them, Accused Nos.1, 5 and 8 were convicted.
3. Ganesh Khandare (A-1) and Ankush Ramteke (A-8) were convicted for the offence punishable under Sections 451 read with Section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of two years each and to pay a fine of Rs.500/- each, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for one month each. Ganesh Khandare (A-1) and Ankush Ramteke (A-8) were also convicted for the offence punishable under Section 392 read with Section 34 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.500/- each, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for one month. Ranjeet Sahare (A-5) was convicted for the offence punishable under Section 411 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 4/19 210.Apeal.194.07 aw connected Appeals.(Judg) of Rs.500/-, in default of payment of fine amount, sentenced to suffer rigorous imprisonment for two months.
4. The prosecution case in brief is that, on 22/8/2006, PW-7 Jayashri was present in her house along with her children. At about 3.30 p.m. as the door bell was rang, she opened the door. She found one person at her door. He said that he had come for survey of election. PW-7 Jayashri asked for the register and found that it was blank, therefore, she asked him to leave that place, however, in the meantime, three other associates of that person came near the door. The person who had come first, caught hold of her neck and brought her in the drawing room and made her to sit on the sofa set. All the four persons were holding knife, sword, stick and revolver respectively. They all threatened her at the point of weapons and looted the golden ornaments and silver utensils which were in her house.
5. PW-7 Jayashri then immediately contacted her husband (not examined), who was a medical practitioner and informed him about the said incident. In turn, he informed the police about the said incident. The police then reached to the place of incident and recorded complaint of PW-7 Jayashri. On the basis of said complaint, offence bearing Crime No. ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 5/19 210.Apeal.194.07 aw connected Appeals.(Judg) 117 of 2006 came to be registered. The panchanama of place of incident was recorded. The accused persons were arrested. The articles were taken charge from the Ganesh Khandare (A-1) under seizure memo (Exh.50), from Ranjeet Sahare (A-5) articles were taken charge under seizure panchanama (Exh.51) and the articles were recovered at the instance of Ankush Ramteke (A-8) vide seizure panchanama (Exh.62). So also a dagger was recovered at the instance of Ankush Rametke (A-8) vide seizure panchanama (Exh.76).
6. After completion of the formal investigation, chargesheet was submitted in the court of Judicial Magistrate First Class, Nagpur and thereafter the case was committed to the Court of Sessions.
7. The learned trial court after recording the evidence led by the prosecution witnesses and on hearing both the sides, convicted the Accused as aforesaid.
8. I have heard learned Counsel for the respective parties. With their able assistance, I have gone through the record and proceedings of the present case.
9. Mr. Tiwari, the learned Counsel for Appellant - Ankush Ramteke vehemently argued that in the present case total nine accused ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 6/19 210.Apeal.194.07 aw connected Appeals.(Judg) were chargesheeted for the offence of dacoity. Although the Accused were unknown to the complainant PW-7 Jayashri, no test identification parade was held in respect of the concerned Accused. It is further submitted that though the ornaments were returned on supratnama to PW-7 Jayashri and she brought those articles in the court, the articles were not shown to her in the witness-box and thus she failed to identify those articles in the court. It was submitted that in these circumstances, the prosecution has failed to prove that those were the same articles which were looted by the accused persons during the course of dacoity.
10. It was further submitted that although the seizure of articles is shown from Ankush Ramteke (A-8), the said seizure was not under Section 27 of the Evidence Act. So also the witness PW-14 Vicky Shaha in that regard is conspicuously silent on the point of presence of Ankush Ramteke (A-8) at the shop of PW-14 Vicky Shaha. It is submitted that even the seizure of dagger from Ankush Ramteke (A-8) is not proved by the prosecution beyond reasonable doubt. It is submitted that all the accused have been erroneously convicted by the learned trial court. The learned trial court has not appreciated the evidence of the prosecution witnesses in its proper perspective.
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11. Mr. Hazare, the learned Counsel (Appointed) for Appellant - Ganesh Khandare contended that presence of the Accused at the place of incident has not been proved by the prosecution. There is no test identification parade held by the investigation agency, so also recovery at the instance of Ganesh Khandare (A-1) has not been proved. He supported the arguments advanced by the leaned Counsel Mr. Tiwari. Mr. Khobragade, the learned Counsel for Appellant - Ranjeet Sahare contended that the only allegation against Ranjeet Sahare (A-5) was that he has received the stolen articles which were involved in the dacoity. He, however, submitted that seizure of those articles has not been proved by the prosecution.
12. In order to appreciate the rival contentions of learned Counsel for both the sides, it would be fruitful to go through the testimony of the witnesses, viz - PW-7 Jayashri, PW-14 Vicky Shaha and PW-22 Uttam Jadhav, so far as Ankush Ramteke (A-8) is concerned. PW-16 Gourishankar Karemore and PW-18 Ramnarayan Soni, so far as Ganesh Khandare (A-1) is concerned and PW-12 Balkrushna Kawale, so far as Ranjeet Sahare (A-5) is concerned.
13. As regards Ankush Ramteke (A-8), evidence of PW-7 Jayashri ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 8/19 210.Apeal.194.07 aw connected Appeals.(Judg) shows that on 22nd August, 2006 at about 3.00 p.m. she was present along with her children in her house. As the door bell rang, she opened the door and found two persons standing in front of the door. Out of them, one had register and pen with him. Those persons informed her that they were doing some survey and there is need of details of residents of house. PW-7 Jayashri saw the register and found that said register was blank. She asked them to return back, however, they both caught hold of her hand and dragged her inside the house, those persons were Ganesh Khandare (A-1) and Pyare Sahab Shaikh (A-7). Thereafter Ankush Ramteke (A-8) and Nazim Baks (A-9) followed them. All the accused were holding weapons. They threatened her with dire consequences and asked her to handover the valuable articles so also demanded keys of almirahs and cupboards. PW-7 Jayashri then handed over the keys to them. Pyare Sahab Shaikh (A-7) stood besides her with weapon, whereas others started searching almirahs and cupboards. The accused removed valuable articles, mobile handset and cash of Rs.3000/-. They also disconnected the telephone. Thereafter PW-7 Jayashri connected the telephone and informed her husband. Her husband immediately returned to home. Telephonically he informed the police about incident. Thereafter police ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 9/19 210.Apeal.194.07 aw connected Appeals.(Judg) came to that place and recorded complaint.
14. Cross-examination of PW-7 Jayashri shows that she had made certain improvements in her testimony to the effect that two persons caught hold her hands and dragged her inside the house, so also they threatened to kill her if she shouts, those persons asked her for the valuable articles and the keys of the almiras, they disconnected the telephone connection, so also one person stood near her with the weapon. All these improvements create a doubt about the sequence in which the incident had taken place. So also standing of Pyare Sahab Shaikh (A-7) besides PW-7 Jayashri with weapon throughout the incident is also doubtful.
15. In her examination-in-chief PW-7 Jayashri did not state as to how far the incident had taken place. However, her cross-examination shows that she volunteered that it took about 20 minutes. She denied that the incident happened within five minutes. It is, therefore, not clear as to how far the incident lasted because in the examination-in-chief PW-7 Jayashri has not given the details as to for how much time the accused persons were present in her house. It is, therefore, doubtful whether PW-7 Jayashri had an ample opportunity to see the faces of the accused persons ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 10/19 210.Apeal.194.07 aw connected Appeals.(Judg) who were total four in number, entered inside her house holding weapons with them. Significantly, there is no test identification parade organized by the investigating agency in order to confirm the identity of the accused persons, who were involved in the said dacoity.
16. Significantly, PW-7 Jayashri admitted that on the earlier occasion when she appeared before the court, she had seen the accused persons. Just prior to recording of her evidence, she had an occasion to see the accused persons. Thus, it appears that as PW-7 Jayashri had an opportunity to see accused persons prior to recording her evidence in the court premises, she identified them before the court. As discussed above, no test identification parade was held in respect of the accused persons although they were unknown to PW-7 Jayashri. The identification of the accused is thus doubtful. No doubt the incident of robbery had taken place. According to PW-7 Jayashri she attended the police station for about 6 to 7 times and the police interrogated her, however, those statements were not placed on record. PW-7 Jayashri fairly admitted that she was not called in the police station to identify the accused.
17. On the point of recovery of the articles, PW-7 Jayashri stated that the articles i.e. small chain and small ring might not be belonging to ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 11/19 210.Apeal.194.07 aw connected Appeals.(Judg) her, she admitted the said suggestion given to her. She admitted that there were no specific marks of identification on the small golden chain and small ring, those were the presented articles and were not of daily use. Surprisingly, although PW-7 Jayashri stated that she had brought the articles in the court, those articles were not shown to the witness by the prosecution in order to verify as to whether they were the same articles which were robbed during the course of incident. Even the identity of the articles has not been established by the prosecution through PW-7 Jayashri. No doubt, PW-7 Jayashri had given the description of the articles in her complaint (Exh.44), however, since those articles were not shown to her in the witness box, it can be said that the identity of the articles has not been established by the prosecution. It is not clear whether those were the same articles which were looted by the accused persons during the commission of the said incident. Thus, the testimony of PW-7 Jayashri does not inspire confidence and she is not found to be a trustworthy witness.
18. So far as Ankush Ramteke (A-8) is concerned, testimony of PW-14 Vicky Shaha, who is the panch witness on the point of recovery of the golden ornaments, shows that he was knowing the proprietor of Bilod ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 12/19 210.Apeal.194.07 aw connected Appeals.(Judg) Jewellers, Yavatmal, namely Sham Bhauraoji Bilod. In his presence police seized articles mentioned in the seizure memo (Exh.62). In his presence, seizure panchanama was prepared. Significantly no articles were shown to this witness and also it is not clear as to from which particular accused the articles were taken charge by the police under seizure panchanama (Exh.62). Moreover, the testimony of PW-14 Vicky Shaha does not throw any light on the aspect of presence of Ankush Rameke (A-8). Therefore, it cannot be said that Ankush Ramteke (A-8) has pointed out the said shop to the police. It is, therefore, not clear as to how the police came to know about the said shop and what is the significance of the said seizure of articles under panchanama (Exh.62) from PW-14 Vicky Shaha. Pertinently, no panchanama under Section 27 of the Evidence Act was drawn by the investigating agency in concerned with Ankush Ramteke (A-8).
19. Thus, the prosecution has failed to establish the seizure of articles vide seizure panchanama (Exh.62) at the instance of Ankush Ramteke (A-8). Thus, the recovery at Exhibit-62 is not proved by the prosecution at the instance of Accused. In this regard, the testimony of PW-22 API Uttam Jadhav shows that Ankush Ramteke (A-8) was arrested on 6/9/2006 and he recorded the voluntary statement of Ankush Ramteke ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 13/19 210.Apeal.194.07 aw connected Appeals.(Judg) (A-8) whereby he disclosed that booty fallen to his share was sold to the goldsmith at Yavatmal i.e. PW-14 Vicky Shaha and accused pointed out the said place.
20. At the instance of Ankush Ramteke (A-8), the said jewellary was seized and those articles were taken charge at the shop of goldsmith. It is already discussed above that the said evidence of PW-22 API Uttam Jadhav has not been supported by PW-14 Vicky Shaha. Similarly, as the articles were not shown to the witness, it is not clear as to whether they were the same articles taken charge by the police at the instance of Ankush Ramteke (A-8) from PW-14 Vicky Shaha and the same articles were looted by the accused persons from the house of PW-7 Jayashri. According to PW-22 API Uttam Jadhav, Ankush Ramteke (A-8) had given the statement that he had kept dagger in his house and accordingly it was taken charge vide seizure memo (Exh.76).
21. It is worthwhile to note that no memorandum panchanama was drawn by PW-22 API Jadhav in that regard. So also the dagger was not produced before the court and shown to any of the witnesses including PW-7 Jayashri. Thus, the seizure of dagger has not been proved by the prosecution beyond reasonable doubt.
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22. So far as Ganesh Khandare (A-1) is concerned, prosecution has relied upon the testimony of PW-16 Gourishankar Karemore and PW- 18 Ramnarayan soni on the point of recovery of articles. Testimony of PW- 16 Gourishankar Karemore indicates that on 24/8/2006 Ganesh Khandare (A-1) had visited his shop for selling gold. He had brought two chains and one ring. He had paid amount of Rs.19,000/- for that golden articles to Ganesh Khandare (A-1).
23. PW-16 Gourishankar Karemore further stated that since those articles were melted, he could not produce those ornaments and said gold was weighing 21.150 grams. On 4/9/2006 API Jadhav from Crime Branch, Nagpur visited his shop with Ganesh Khandare (A-1). Panchanama was prepared vide Exhibit-64. He also issued the bill of purchase vide Exhibit-68. Even assuming that the Accused had visited the shop of PW-16 Gourishankar Karemore, however, the fact remains that since the said articles were melted by PW-16 Gourishankar Karemore, it is difficult to connect the said gold with the present incident. It is already discussed above that presence of Ganesh Khandare (A-1) at the place of incident has not been established by the prosecution by the clinching evidence, as no test identification parade is held in respect of the accused ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 15/19 210.Apeal.194.07 aw connected Appeals.(Judg) persons in order to establish their identity.
24. Testimony of PW-18 Ramnarayan Soni shows that on 6/9/2006 API Jadhav from Crime Branch, Nagpur had visited his shop. Prior to 20 to 25 days of it, Ganesh Khandare (A-1) along with one women and a girl visited his shop. He sold a gold chain weighing 4.250 grams. PW-18 Ramnarayan Soni purchased it and paid its value. PW-18 Ramnarayan Soni admitted in his cross-examination that he was not knowing Ganesh Khandare (A-1) prior to visiting his shop. He further admitted that seizure memo (Exh.71) in respect of those articles was prepared in the police station. In view of the seizure of articles, the said document is not found to be a reliable one as it is not proved by the prosecution beyond reasonable doubt. Significantly, if the evidence of PW- 18 Ramnarayan Soni is relied upon, then it can be said that prior to the incident Ganesh Khandare (A-1) visited the shop of PW-18 Ramnarayan Soni.
25. Now coming to the involvement of Ranjeet Sahare (A-5), testimony of PW-12 Balkrushna Kawale shows that he was a Jeweler running a shop at Rani Durgawati Chowk. In August one boy by name Ranjeet visited his shop and sold gold chain. Accordingly he purchased it. ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 16/19 210.Apeal.194.07 aw connected Appeals.(Judg) The said chain was weighing 7.400 grams. He paid Rs.6700/- as the value of that chain to Ranjeet Sahare (A-5). On 7/9/2006 police demanded the said chain. Accordingly he handed over the same to the police which was seized vide seizure panchanama (Exh.36). Testimony of the witness shows that he had handed over the said gold chain to the Police from the Crime Branch, Nagpur. He had handed over the same in order to avoid the trouble of police. He also admitted that the accused did not visit his shop prior to that day. Thus, the evidence of PW-12 Balkrushna Kawale is not convincing one and does not establish the guilt of the accused. Overall assessment of the evidence on record shows that although the incident of robbery had taken place in the house of PW-7 Jayashri, however, the prosecution failed to establish identity of the accused at the place of incident beyond reasonable doubt, as no test identification parade in respect of those accused persons was held in order to establish their identity.
26. In this regard, Mr. Tiwari, the learned Counsel for Appellant has placed reliance on the Judgment of the Hon'ble Apex Court in the case of Kanan and others V/s State of Kerala, reported in AIR 1979 Supreme Court 1127. In paragraph no.3 Hon'ble Apex Court has held that : ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 :::
17/19 210.Apeal.194.07 aw connected Appeals.(Judg) "3. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T. I. Parade to test his powers of observations. The idea of holdings T. I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. Parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged T. I. Parade and get the identification made before the witness was called upon to identify the appellant in the court. On this ground alone, the testimony of PW-25 becomes unworthy of credence and must be excluded from consideration."
In the instant case, accused were unknown to PW-7 Jayashri and no test identification parade was held. She had identified the accused for the first time in the court and therefore testimony of PW-7 Jayashri becomes unworthy of credence.
27. Division Bench of this Court in the matter of Vilas Vasantrao Patil V/s State of Maharashtra reported in 1997(1) Mh.L.J. 27 in paragraph no. 13 has observed that :
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18/19 210.Apeal.194.07 aw connected Appeals.(Judg) "...... We are reinforced in our view by the decision reported in AIR 1961 Allahabad 153 Asharfi and another vs. The State, wherein in paragraph 35, James, J. spoke for the Division Bench, thus 'it is the duty of the prosecution to show that from the time of the arrest of an accused person to the time of his admission into the jail, precautions were taken to ensure that he was not seen by any outsider.
...... In AIR 1961 Allahabad 153 Asharfi and another vs. The State, supra, the Court observed in paragraph 35 that the plea of shown does not require to be affirmatively established; it is sufficient if the accused can create a reasonable doubt in the mind of the Court. 'Direct evidence may not be available but he may discharge his burden by showing, for example that he and the witnesses were present in the police station, at the same time.' In our view, the aforesaid observations are tailor-made for this case."
28. In the instant case PW-7 Jayashri admitted that she was in frightened condition at the time of incident. In view thereof, it is difficult to come to the conclusion that she had observed the features of the culprits in a cool mind.
29. In view of the above facts and circumstances, it is held that the trial court should have considered the evidence of prosecution witnesses in its proper perspective. Hence, the Judgment and order passed ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 ::: 19/19 210.Apeal.194.07 aw connected Appeals.(Judg) by the learned trial court needs to be quashed and set-aside. Hence, the following order.
ORDER
(A) All the Criminal Appeals are allowed.
(B) Judgment and Order dated 24/5/2007 delivered by the Adhoc
Additional Sessions Judge, Nagpur in Sessions Trial No. 494 of 2006 is hereby quashed and set aside.
(C) The Appellants in all these Appeals are acquitted of the offence punishable under Sections 451, 392 read with Section 34 of Indian Penal Code as well as Section 411 of Indian Penal Code. (D) All the Appellants are on bail. Their bail bonds shall stand cancelled.
(E) Professional fees of Mr. Hazare, the learned Counsel (Appointed) for Appellant - Ganesh Khandare be quantified as per the rules.
30. Criminal Appeal is disposed of accordingly.
[MRS. SWAPNA JOSHI, J.] Yadav VG ::: Uploaded on - 06/01/2020 ::: Downloaded on - 24/04/2020 01:02:54 :::