Bombay High Court
Vithhal Shreeram Pawar vs The State Of Maharashtra on 16 October, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, Mridula Bhatkar
Cri.Apeal 1211.18
1
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1211 OF 2018
Suresh Vyankati Chavan,
Age-55 Years, R/o-Lakhanwada,
Tq-Khamgaon, Dist-Buldhana,
Through Jail,
At present in Nashik
Central Prison, Nashik .. APPELLANT
[Orig. Accused No.4]
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPEAL NO.301 OF 2017
Mr. Vithhal Shreeram Pawar,
Age-55 Years, R/o- Lakhanwada,
Tq-Khamgaon, Dist-Buldhana,
Through Jail,
At present in Central Jail
Nashik. ...APPELLANT
[Orig. Accused No.8]
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPLICATION NO.1235 OF 2017
IN
CRIMINAL APPEAL NO.301 OF 2017
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Mr. Vithal Shreeram Pawar,
Age-55 years,
R/o-Lokhakhadwala,
Tq-Khamgaon, Dist-Buldhana,
Through Jail,
At present in Central Jail. ...APPLICANT
VERSUS
The State of Maharashtra. ...RESPONDENT
...
Mr.Uday P. Warunjikar Advocate for Appellants in
Criminal Appeal No.1211 of 2018, Criminal Appeal
No.301 of 2017 and for Applicant in Criminal
Application in Appeal No.1235 of 2017.
Mr.H.J.Dedhia, APP for Respondent-State in both
the Appeals and Application.
...
CORAM : S.S. SHINDE AND
MRS.MRIDULA BHATKAR, JJ.
DATE OF RESERVING JUDGMENT : 5TH OCTOBER, 2018
DATE OF PRONOUNCING JUDGMENT: 16TH OCTOBER, 2018
JUDGMENT [PER S.S. SHINDE, J.] :
1. Both these Appeals are directed against
the Judgment and Order dated 15th July, 2015,
passed by the Special Judge (under MCOC Act),
Nashik in Special Case (MCOC) No.1/2008 thereby
convicting accused No.4 - Suresh Vyankati Chavan
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and accused No.8 - Vithhal Shreeram Pawar for the
offence punishable under Section 395 of the Indian
Penal Code [for short 'IPC'] and sentencing them
to suffer imprisonment for life and to pay a fine
of Rs.3,000/- each, and in default of payment of
fine to suffer rigorous imprisonment for a period
of six months. The trial Court also convicted
accused No.4 and accused No.8 for the offence
punishable under Section 396 of the IPC and they
are sentenced to suffer imprisonment for life and
to pay a fine of Rs.3,000/- each, in default of
payment of fine to suffer imprisonment for a
period of six months. The trial Court also
convicted accused No.4 and accused No.8 for the
offence punishable under Section 397 of the IPC
and they are sentenced to suffer rigorous
imprisonment for seven years. The trial Court also
convicted accused No.4 and accused No.8 for the
offence punishable under Section 447 of the IPC
and sentenced them to suffer rigorous imprisonment
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for three months. All the sentences were directed
to be run concurrently.
2. Both these Criminal Appeals are arising
out of one and the same Judgment and Order passed
by the trial Court, hence the same are being
decided by this common Judgment.
3. Before the Trial Court there were in all
nine accused. However as original accused No.1 -
Baliram Pundalik Chavan, accused No.2 - Sudhakar
Pundalik Chavan, accused No.3 - Bhika Piraji
Chavan, accused No.5- Narayan Sitaram Pawar,
accused No.6- Kashiram @ Bapya Vayaskar Pawar,
accused No.7- Mangal Vyankati Chavan and accused
No.9- Babu Sitaram Pawar were absconding during
the course of trial, the Trial Court has separated
and proceeded the case against accused No.4 -
Suresh Vyankati Chavan and accused No.8 - Vithhal
Shreeram Pawar only, and convicted and sentenced
them as stated herein above. Hence Criminal
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Appeal No.1211 of 2018 is filed by original
accused No.4 - Suresh Vyankati Chavan and Criminal
Appeal No.301 of 2017 is filed by original accused
No.8- Vithhal Shreeram Pawar. Criminal Application
No.1235 of 2017 is filed by original accused No.8-
Vithhal Shreeram Pawar for releasing him on bail
during the pendency of the Appeal.
4. The prosecution case, in brief, is as
under:
A] An informant - Uttam Laxman Pawar resides
near Railway Cabin situates within local limits of
village Nagapur. On 23rd March, 2007, the informant
watched T.V. up to 10 p.m. and thereafter, he went
to bed. On 24th March, 2007 at about 1.00 a.m., as
somebody was awaking, he woke up and came out of
his house. At that time, Ravindra Nathe was
telling that thieves had come within local limits
of village. When the informant was standing in
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front of house, he heard shouts of his cousin-
Sharad Kacharu Pawar. Thereafter, the informant
and Ravindra Nathe rushed at the house of his
uncle Kacharu Pawar. At the relevant time, they
saw doors of house were in open condition and
articles in the house were in scattered condition.
At that time, Sharad was found sitting at the door
of his house with swelling injuries on his hand
and leg. They found Prabhavati sitting in front of
T.V. showcase having head injury and swelling on
her face. They also found that Didi, niece of
informant, was sitting near Prabhavati and she has
sustained head injury. Then they found Kacharu
Pawar lying on the cot with head injury to him. As
wife of Sharad, namely, Manisha was not found,
they took search and went backside of house of
Sharad near to bandh, where Manisha was found
lying with head injury. Manisha and Kacharu were
found dead. He made inquiry with Sharad who told
that suddenly three persons entered into house and
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started to assault them and told the entire
incident. The informant lodged report with Police
Station, Manmad city.
B) On the basis of report crime No.46 of
2007 came to be registered. Investigation was
carried out. Investigating Officer Shreenivas
Patil prepared inquest panchanama of dead body of
deceased Kacharu and Manisha (Exhibit-76 and 77
respectively) and sent the dead bodies for post-
mortem. He prepared spot panchanama (Exhibit-94)
and seized articles lying on the spot of incident.
Blood was found over the skin of tree. He seized
the said portion of skin of tree under the
panchanama Exhibit-88. He then recorded the
statements of witnesses. During investigation, he
collected post-mortem notes of both deceased. He
collected injury certificates of the injured.
Thereafter further investigation was entrusted to
Crime Branch, Nashik.
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C) Police Inspector Ashok Kashinath Belwate
attached to Rural Crime Branch, Nashik carried out
further investigation. He obtained custody of six
accused by obtaining their transfer warrant from
Shegaon Court and arrested them. On 23rd April,
2007, during police custody accused Baliram
Pundalik Chavan gave memorandum statement
(Exhibit-178) and at his instance, it came to be
revealed that accused hatched conspiracy.
Thereafter, on 24th April, 2007 during police
custody accused Baliram Pundalik Chavan gave
memorandum statement (Exhibit-144) and at his
instance, wooden log (Article H-2) having blood
stains came to be seized under panchanama
(Exhibit-145). On 25th April, 2007, during police
custody accused Bhika Piraji Chavan gave
memorandum statement (Exhibit-147) and at his
instance, one purse (Article 1), ornaments black
marriage string (mangalsutra), one gold bids and
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`dorale' (Article H-4 and H-5) came to be seized
under seizure panchanama (Exhibit-148). On 26th
April, 2007, during police custody accused
Sudhakar Pundalik Chavan gave memorandum statement
(Exhibit-139) and accordingly wooden log (Article
H-3) came to be seized under seizure panchanama
(Exhibit-140). On 7th May, 2007, during police
custody accused Sudhakar Pundalik Chavan again
gave memorandum statement (Exhibit-180) and
accordingly at his instance, saffron colour
clothes which includes one shirt (Article-15) and
lungi (Article-16) came to be seized under
panchanama (Exhibit-181). On 25th April, 2007,
during police custody accused Suresh Chavan gave
memorandum statement (Exhibit-134) and at his
instance axe (Article H-3) came to be seized under
panchanama (Exhibit-135). On 25th April, 2007,
during police custody accused Bhopya Pawar gave
memorandum statement (Exhibit-136) and at his
instance wooden log (Article H-1) came to be
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seized under seizure panchanama (Exhibit-137).
Then Police Inspector Binwate forwarded the report
(Exhibit-182) for adding section 396 of the IPC
and further investigation was carried out by Dy.
S.P., Manmad.
D) During the course of investigation, it
was revealed that prior to the commission of crime
accused hatched conspiracy and carried out recce
of village, pretending that they were "Sadhus" and
committed dacoity. The accused committed dacoity
at the house of witness Sharad by forcibly
entering into his house, armed with deadly
weapons, sickle etc. and assaulted the witnesses
by means of the weapons and forcibly took away the
cash amount of Rs.50,000/- from the cupboard in
the house and also snatched away the golden
ornaments from the person of deceased Manisha and
injured witness Prabhavati worth Rs.10,000/- and
in the said assault, they committed murders of
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deceased Kacharu Pawar and Manisha Pawar and ran
away from the spot.
E) Moreover, according to the prosecution
during the course of investigation, it was further
revealed that accused are involved in continuing
unlawful activities by individually, singly or
jointly, either as a member of organized crime
syndicate or on behalf of self syndicate by use of
violence or threat or intimidation or coercion or
by other unlawful means with the object of gaining
pecuniary benefit or gaining undue economic or
other advantage for himself or any other persons
against whom more than one charge-sheets have been
filed before the Competent Court preceding ten
years and that Court has taken cognizance of the
said offence for which punishment of imprisonment
for three years, is prescribed and after
collecting necessary information and sanction
under the provisions of Maharashtra Control of
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Organized Crime Act, 1999 (For short, "the MCOC
Act"), the provisions of MCOC Act came to be
applied. Thereafter, the investigation of the
matter was entrusted to S.D.P. Sunil Kadasne. He
then recorded statements of witnesses, collected
the documents regarding pending offences against
the accused. He referred the pending cases against
the present accused in different Court and
mentioned the same in the charge-sheet.
Accordingly, he filed the certified documents at
Exhibit-188 to 191. He collected C.A. reports
Exhibit-192 to 196. On 11th October, 2007, he
forwarded the papers for getting sanction to the
office of Additional DG vide letter Exhibit-154.
On 13th June, 2008, after getting sanction of DG,
he forwarded charge-sheet on 14th July, 2008.
F) While forwarding charge-sheet in this
crime, accused Vithhal Shreeram Pawar was
absconding. He was arrested on 3rd March, 2012 by
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Police Inspector, Manmad in crime No.47 of 2007.
Police Inspector, Manmad informed the said fact to
Samadhan Bhikaji Pawar, SDPO Manmad. Accordingly,
SDPO Manmad obtained transfer warrant and arrested
him. He applied for permission of the Court for
holding identification parade of accused Vithhal
Shreeram Pawar vide letter (Exhibit-171). He then
informed Tahsildar Nandgaon for holding
identification parade vide letter (Exhibit-111).
Accordingly, Tahsildar held the identification
parade and forwarded report (Exhibit-112). He
recorded statements of witnesses and then
forwarded the report (Exhibit-172) for submitting
the charge-sheet against the accused to Additional
DG. They received consent (Exhibit-193).
Accordingly, on 21st May, 2012, he submitted
supplementary charge-sheet against the accused
Vithhal Shreeram Pawar.
G) A charge (Exhibit-54) for the above-
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mentioned offences, was framed against original
accused Nos.1 to 6 and 8 on 8th April, 2013, and
the same was explained to them in vernacular. The
accused persons pleaded not guilty and claimed to
be tried, with the defence of total denial and
false involvement in this case.
5. During the arguments before the Trial
Court, original accused Nos.1 to 3, 5 and 6
absconded. Their sureties have deposited surety
amount. Since long accused No.8 - Vithhal Shreeram
Pawar was in jail and therefore, the trial Court
separated and proceeded the case against accused
Nos.4 and 8.
6. After recording the evidence and
conducting full-fledged trial, the trial Court
convicted original accused Nos.4 and 8 for the
offences afore-stated.
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7. Since these are the appeals against
conviction, we would like to re-appreciate the
entire evidence placed on record, so as to reach
to the proper conclusion as to whether the reasons
and findings recorded by the trial Court are based
upon improper appreciation of evidence on record
and calls for any interference in exercise of
appellate jurisdiction or otherwise. Heard learned
counsel appearing for the Appellants and learned
APP appearing for the State, at length. With their
able assistance, we have carefully perused the
entire notes of evidence.
8. In order to prove the case, the
prosecution examined in all 27 witnesses. The
accused did not examine any witness in defence. As
observed earlier, before the Trial Court, there
were as many as nine accused, however, during the
arguments before the Trial Court accused Nos.1 to
3, 5 and 6 absconded and therefore, the Trial
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Court has separated the case of accused Nos.4 and
8 and proceeded to decide the matter. Therefore,
we will consider the evidence which is adduced by
the prosecution to prove the case as against
accused Nos.4 and 8.
9. We have perused the entire evidence
placed on record by the prosecution. Looking to
the evidence which has come on record and the
submissions advanced by the learned counsel
appearing for the parties, there does not appear
to be dispute regarding the fact that in the night
of 23rd March, 2007, dacoity took place at the
house of Sharad Kachru Pawar. The prosecution has
proved on record the inquest panchnamas of Kachru
and Manisha who died, as well as their postmortem
reports have been brought on record and there is
no dispute that Kachru and Manisha died due to the
attack by the dacoits at the time of incident and
they suffered culpable homicide amounting to
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murder. Similarly the prosecution has proved that
prosecution witnesses PW-12 Sharad Kachru Pawar,
PW-17 Prabhavati Kacharu Pawar and one Didi,
daughter of Sharad, sustained injuries during the
process of dacoity. The prosecution has examined
PW-10 Dr. Kavita Madhav Sanap, who conducted
autopsy over the dead bodies of Kacharu Dattu
Pawar as well as Manisha Sharad Pawar. She has
stated about the multiple injuries noticed by her
on the dead bodies of Kacharu and Manisha,
including the head injuries. Through the evidence
of PW-10 Dr. Kavita, the prosecution has brought
on record, the cause of death of Manisha and
Kacharu, as "due to Neuregenic shock due to head
injury". The prosecution has also brought on
record that Prabhavati Kacharu Pawar (PW-17) and
Sharad Kacharu Pawar (PW-12) and Didi Sharad Pawar
received injuries, including head injuries and
fracture injuries, during the process of dacoity.
Thus the prosecution has proved that during the
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process of dacoity, the culprits have attacked on
the family members of Sharad Kacharu Pawar,
committed murder of Manisha and Kacharu and also
caused injuries to Prabhavati Kacharu Pawar,
Sharad Kacharu Pawar and Didi Sharad Pawar. It is
pertinent to note that the Trial Court has also
observed in para No.16 of the Judgment that the
dacoity at the place of incident was not seriously
challenged by the defence in the cross-examination
and what challenged was the participation of
accused Nos.4 and 8 along with absconding accused.
Thus, from the perusal of entire evidence brought
on record by the prosecution, it appears that the
occurrence of dacoity and in the said process,
murders of Manisha and Kacharu and further
injuries sustained by the prosecution witnesses is
not seriously disputed by the defence. The defence
has disputed the participation of the accused
persons in said dacoity.
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10. The prosecution examined PW-3 - Uttam
Laxman Pawar. He deposed that the incident took
place on 23rd March, 2007 at midnight hours. On
that day about 1.00 a.m., he heard the shouts from
the house of Ravindra Nathe situated at a distance
of 50 ft. from his house. At the relevant time,
Ravidra shouted and told that thieves had come to
their field. He therefore rushed at outer side and
at the relevant time heard the shouts of Sharad
that thieves had come. Therefore, he along with
others rushed at the house of Sharad. He noticed
that Sharad was sitting at the door of his house
and fracture injuries were found on his hand and
leg. He further deposed that they found Kacharu
lying on the cot with head injury to him. Near
the said spot, Prabhavati - wife of Kacharu found
lying with injury and swelling on her face.
Another family member Didi also found lying with
head injury at backside parietal region. When they
entered into the house, they noticed the household
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articles in a scattered condition. He further
deposed that at the backside of house of Sharad
near to bandh Manisha, wife of Sharad was found
lying with head injury. He further deposed that at
the relevant time Manisha and Kacharu found dead.
11. PW-3 Uttam further deposed that, Sharad
told them that three persons entered in his house,
they worn half pants and had covered their faces
and were armed with axe, wooden logs and other
weapons. PW-3 Uttam further deposed that Sharad
told him that on entering his house those three
persons assaulted them, Manisha escaped from the
backside door of the house, however at the
backside below the Bor tree other persons were
present and they assaulted her on head. PW-3 Uttam
further deposed that, Sharad told him that those
persons took away ornaments and cash about
Rs.60,000/-, which was the amount of sale proceeds
of onions. He further deposed that then Police
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came at his locality and he narrated entire
incident to the Police, which they reduced into
writing.
12. PW-3 Uttam further deposed that at the
relevant time prior to incident, two Pingals
(Sadhu) used to come at their village early in the
morning, they used to ask for clothes, tea etc. He
further deposed that it revealed to them that the
said Sadhu intend to carry out recce of their
house and locality. He further deposed that they
came for about 5-6 occasions at his house during
aforesaid period.
13. PW-3 Uttam further deposed that he was
then called at Nandgaon for identification parade
at Tahsil office and he can identify the persons
who used to come at his house as Pingals (Sadhu)
(PW-3 identified accused Kashinath @ Bappya
Yavaskar Pawar, Baliram Pundlik Chavan, Narayan
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Sitaram Pawar, Sudhakar Pundlik Chavan and Bhika
Piraji Chavan).
14. During the course of cross-examination,
PW-3 Uttam stated that on the day of incident, he
had not seen the culprits who came at the house of
Sharad and assaulted him and his family members.
He was unable to state as to why the Police have
not recorded in the report that he has informed
the same to the Police at the time of incident. He
further stated that while lodging the report he
has not stated that some persons were present
outside the house of Sharad. While lodging the
report, he has stated to Police that prior to
incident on 5-6 occasions, some persons had come
at his house early in the morning and asked for
clothes and tea and it appears that they were
making recce of his house and locality. He was
unable to assign any reason as to why it is not
recorded in his report. He further stated that
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prior to going at Nandgaon, he came at Nashik on
one occasion for identification parade. At
Nandgaon, Police Station and Tahsil office are in
the same campus. He further admits that one main
Gate is there to the said campus and after
entering into from the said gate, at one side the
Police Station is there and at other side Tahsil
office is there. At the relevant time about 10
villagers were called for identification parade.
They went at the Tahsil office at about 12.00
noon. Police brought the accused one by one. He
was unable to recollect whether he had stated
clothes worn by each accused at the time of
identification parade. He further stated that he
was unable to recollect whether prior to
identification parade at Nandgaon, the accused
were shown to him at Nashik.
15. Thus, it is crystal clear from the
evidence of PW-3 Uttam that he had not seen the
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culprits who came at the spot of incident and
assaulted Sharad and his family members. Neither
he was present on the sport at the time of
incident nor he has actually seen the assailants.
His evidence reveals that prior to the incident
two persons pretending themselves to be Sadhus,
used to visit his house and locality with an
intention to carry out recce, during the relevant
period. During the identification parade, he was
asked to identify those two alleged Sadhus. Though
he has deposed that two Sadhus used to visit his
locality, in the identification parade, he has
identified as many as five accused. Further, from
his entire evidence it is not clear whether the
procedure and guidelines for the identification
parade were scrupulously followed or not. Thus it
is clear that if the evidence of this witness is
accepted as it is, he has not witnessed the actual
incident of dacoity and assault and further he has
not seen the assailants. This witness has
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specifically deposed that Sharad told him that
three persons entered his house by covering their
faces. Thus, when the faces of those persons were
covered, the question of identifying them does not
arise at all. It is clear that PW-3 Uttam has not
supported the prosecution case, still he was not
declared as hostile by the prosecution. Be that as
it may, during the identification parade, this
witness has not identified the original accused
Nos.4 and 8, who are the Appellants in the present
Appeals, and all the persons alleged to have been
identified by this witness are the accused persons
who were absconding during the trial before the
Trial Court, whose case was separated from the
case of the present Appellants. Further he has
identified those persons to be Sadhus who used to
come in the village, and not at as culprits. Thus,
evidence of PW-3 is not helpful to the prosecution
case.
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16. The prosecution has examined PW-4
Rajendra Sayaji Pawar. He deposed that the
incident took place on 24th March, 2007 at the
house of Kachru Dattu Pawar. On that day at about
1.00 a.m. he received a phone call from his friend
Ashok Pawar informing that dacoity took place at
the house of Kachru Dattu Pawar. Therefore, he
himself and others rushed at the house of Kachru.
He noticed dead body of Kachru Dattu Pawar on the
cot, having head injury. Below the Bor tree, the
dead body of Manisha Sharad Pawar found lying with
head injury. Sharad Pawar and his mother
Prabhavati found lying in injured condition. The
dacoits took away cash of Rs.60,000/-, ornaments
and other articles from the house. The house-hold
articles were found in a scattered condition. He
further deposed that in his presence, police
prepared inquest panchnama of dead bodies of
Kachru Dattu and Manisha (Exhibit 76 and 77).
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17. PW-4 Rajendra further deposed that few
days prior to the incident, persons pretending to
be Sadhus, used to come to their village and their
behaviour appeared to be suspicious. Those persons
were in the age group of 35 to 40 and fair in
colour and he personally met them on 2-3
occasions. He further deposed that he was called
at Nandgaon for identification parade. He
identified the accused at the relevant time. He
further deposed that he can identify with
certainty those persons if shown to him. (The
witness (PW-4) identified accused Sudhakar Pundlik
Chavan, Bhika Piraji Chavan, Baliram Pundlik
Chavan, Narayan Sitaram Pawar, Kashinath @ Bappya
Yavawskar Pawar.
18. During the course of cross-examination,
PW-4 Rajendra stated that on the day of incident,
he had not seen the culprits who came at the house
of Sharad and assaulted Sharad and his family
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members. Police recorded his statement. While
recording his statement, he told the police that
at the relevant time he had seen two Sadhus in the
village about 15-20 days prior to the incident. He
had not stated about the identification marks
found over those Sadhus to the police. He admits
that he has stated about Sadhus on account of
suspicion only. He further stated that at the time
of identification parade accused were in casual
dress however he was unable to state the exact
colour of their dress. He further stated that
Tahsil office and police station, Nandgaon are in
the same campus. He further stated that at the
time of identification parade, 10-12 persons were
standing in a row. He himself was the only witness
for identification and Tahsildar was also present.
Prior to his reaching in the room of
identification, accused were already there and
were standing.
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19. Thus, it is clear from the evidence of
PW-4 Rajendra that on the day of incident he had
not seen the culprits who came at the house of
Sharad and assaulted Sharad and his family
members. Even during the identification parade, he
has identified the accused who used to come to his
village pretending to be as Sadhus, and not as the
persons who had participated in the dacoity and
assault. Further, during the identification parade
neither he was shown nor he has identified
original accused Nos.4 and 8 who are appellants in
the present appeals. Though PW-4 stated that only
two persons pretending themselves to be Sadhus
used to come in his village, in the Court he
identified as many as five accused. Thus, evidence
of PW-4 is not at all reliable and trustworthy and
the same is not at all helpful to the prosecution
case.
20. Admittedly, as per the prosecution case,
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the culprits who participated in dacoity and
assault were unknown to the prosecution witnesses.
Therefore, in such a situation the identification
parade becomes necessary so as to reveal the
identity of the real culprits. The prosecution has
examined PW-8 Mandar Anilrao Kulkarni, who
conducted test identification parade. He deposed
that since 2005 to 2009 he was serving as
Residential Naib Tahsildar at Nandgaon. On 30th
April, 2007 Police Inspector, Crime Branch Nashik
delivered a letter to him for holding
identification parade. He then decided to hold
identification parade on 3rd May, 2007 and
accordingly issued a letter to Senior P.I., L.C.B.
so as to secure presence of accused and witnesses.
21. PW-8 - Mandar further deposed that on 3rd
May, 2007 Police Inspector, Manmad produced six
accused for identification parade. Nine witnesses
had also come for identifying the accused. He then
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called two panchas for identification parade. He
then conducted identification parade in his office
before panchas according to provisions as per
Manual and submitted the reports (Exhibit-104 to
109) of the said identification parade. During
first identification parade vide Exhibit-104,
eight witnesses identified accused Baliram Pundlik
Chavan. So also in identification parade vide
Exhibit-105, eight witnesses identified accused
Sudhakar Pundlik Chavan. So also in identification
parade vide Exhibit-106, seven witnesses
identified accused Narayan Sitaram Pawar. Then
identification parade vide Exhibit-107, three
witnesses identified accused Suresh Vyankati
Chavan. In identification parade vide Exhibit-108,
two witnesses identified accused Bhikaji Piraji
Chavan. So far as identification parade vide
Exhibit-109 is concerned, eight witnesses
identified accused Kashiram @ Bhopya Vayaskar
Pawar. He further deposed that the accused who
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were present in the identification parade were
present before the Court and he identified them.
22. During the course of cross-examination,
PW-8 Mandar stated that Nandgaon Police Station
and Tahsil office is in the same campus. On the
relevant day at about 10.30 a.m. accused were
produced by the Police Inspector. The witnesses
also came at the same time. He was not aware as to
whether accused belongs to Pardhi community. He
was unable to state whether dummies who were
called, belonged to Pardhi community. He admits
that in panchnamas Exhibit-104 to 109 he has not
referred ages, description and addresses of the
dummies. He admits that he has not obtained the
signatures of dummies over panchanamas. He further
admits that he has not referred in said
panchanamas that he has selected dummies having
similar personalities with accused. He has not
obtained the signatures of panchas over said
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panchanamas. He has not referred the description
of clothes and their colours worn by accused and
dummies, in the said panchanama.
23. Thus upon perusal of the evidence of Naib
Tahsildar (PW-8- Mandar), it is clear that in
panchanamas Exhibit-104 to 109 he has not referred
ages, description and addresses of the dummies, he
has not obtained the signatures of dummies and
also of the panchas on panchanamas, he has not
referred in said panchanamas that he has selected
dummies having similar personalities with accused.
Thus it appears that while carrying out the
identification parade, PW-8 has not followed the
proper procedure. It is pertinent to note that the
incident took place on 24th March, 2007 at about
1.00 a.m. and about the said incident,
identification parade of the accused was conducted
on 3rd May, 2007 and that too by not following the
proper procedure and guidelines, and therefore
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explicit reliance cannot be placed upon such
faulty identification parade, as the same does not
conclusively proves that the accused were the
persons who had participated in dacoity and
assault.
24. The prosecution has examined PW-9 Sanjay
Nimba Shinde, Naib Tahsildar, Nandgaon, Dist.
Nashik, who conducted the identification parade in
respect of accused No.8 - Vithhal Shreeram Pawar.
He deposed that the SDO Manmad has directed him to
conduct identification parade of accused in C.R.
No.46/2007 arising out of Special Case No.1/2008,
vide letter dated 17th March, 2012. He then
informed to SDPO that he was holding the
identification parade on 23rd March, 2012. He has
also directed the SDPO to produce the witnesses on
the said date in Central Prison, Nashik.
25. PW-9 - Sanjay further deposed that on 23 rd
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March, 2012, he went at Central Prison, Nashik. He
then directed Superintendent of Jail to make
arrangement for holding identification parade. He
also directed the Jail Superintendent to produce
six dummy accused having similarity with the
accused. On his direction, one witness out of two
had also come so as to identify the accused. He
then conducted identification parade according to
provisions as per Manual. At the time of
identification parade, witness Sharad Kacharu
Pawar has identified accused - Vithhal Shreeram
Pawar before the panch witness. He further deposed
that accordingly he prepared the memorandum of
identification parade (Article 112). At the
relevant time he recorded statements of panch
present regarding their consent to act as panch.
He prepared the map showing the position of the
premises used for holding identification parade.
He then forwarded the memorandum report of the
identification parade to the Court.
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26. During the course of cross examination,
PW-9 Sanjay stated that he himself called the
panchas on the relevant day. He admits that
panchas and witness Sharad Kacharu Pawar are co-
villagers. The Jail Superintendent arranged
dummies as per his direction. He admits that on
the relevant day, amongst dummies, the dummies in
the age group of 25 were not available. He admits
that there is no attestation below the thumb
impression of dummy. On the relevant day, he
reached in the jail for identification parade at
about 11 a.m., identification parade started at
about 11.30 a.m. and completed at 12.45 p.m. He
admits that in report (Exhibit-112), there is no
reference as to when the identification parade
started. He was not aware as to whether accused
belongs to Pardhi community. He was not aware as
to which community, the dummies belonged. He has
not referred nature and colour of clothes worn by
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dummies and accused. He admits that in his report
he has not referred the accused by any particular
number. He has not obtained in writing that
accused stated about his unwillingness to change
the clothes.
27. Thus evidence of PW-9 Sanjay, shows that
panchas and witness Sharad Kacharu Pawar are from
the same village. His cross-examination reveals
that on the day of identification parade, the
dummies in the age group of 25 were not available.
It is pertinent to note that at the relevant time,
accused Vithhal Shreeram Pawar was of the age of
about 25 years, regarding whom identification
parade was carried out. PW-9 admits that in his
report he has not referred the accused by any
particular number. It is significant to note that
the incident took place on 24th March, 2007 and
about the said incident, identification parade of
accused No.8 was conducted on 23rd March, 2012,
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after the gap of about five years, and that too by
not following the proper procedure and guidelines,
and therefore explicit reliance cannot be placed
upon such faulty identification parade, as the
same does not conclusively proves that the accused
was the person who had participated in dacoity and
assault, which took place in the year 2007.
28. The prosecution examined PW-12 Sharad
Kacharu Pawar. He deposed that in the year 2007 he
along with his family consisting of parents, wife
Manisha, daughter Pragati alias Didi were residing
at their field situated in Nagapur Shivar. On 23 rd
March, 2007 at about 11.30 p.m. he was watching
T.V., the other members of the family were
sleeping. At that time, three persons entered into
their house and they assaulted him by stick and
axe. Those three persons worn blue, black and
green banyans, respectively. All of them worn a
full Pant. At the time of recording his statement,
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he has stated about descriptions of those persons
in detail. They were having height about 5 to 5.5
feet and they were in the age group of 30 to 35
years. The witness identified three accused before
the Court, who have stated their names as Baliram
Pundlik Chavan, Narayan Sitaram Pawar and Bhika
Piraji Chavan. He further deposed that they have
possessed wooden logs measuring about 3 feet. He
further deposed that he can identify those wooden
logs and axe if shown. The wooden logs at Article
H, H-1 and H-2 respectively when shown to him, he
identified the same. He also identified axe,
Article H-3.
29. PW-12 Sharad further deposed that at the
relevant time those persons further assaulted by
the weapons over the head of his father (Kachru).
Therefore, his father died at the spot. He further
deposed that then those persons assaulted over the
face and chin of his father. He then raised the
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shouts. Those persons then assaulted over his
head, leg and hand by the weapons with them. His
leg and hand therefore fractured and rod was
inserted. His wife then woke up and those persons
asked her to deliver the keys of the cupboard. His
wife (Manisha) then delivered key to them and
tried to escape from the backside door. At the
relevant time, she reached up to a tree behind
their house, where associates of those persons
were present and they have assaulted his wife and
killed her. They then opened the cupboard and took
away cash of Rs.50,000/- from the same. Those
persons also snatched the ornaments on the person
of his wife and mother. He further deposed that he
can identify those ornaments if shown to him. The
ornaments H-4 and H-5 when shown to him, he
identified the same to be of his mother. He
further deposed that those person then assaulted
to his daughter Didi. He further deposed that he
can identify one person, who was standing at the
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outer side of the house. [The witness identified
one of the accused and the accused stated his name
as Suresh Vyankati Chavan(Appellant herein)]. He
further deposed that he can also identify one more
accused and identified accused who stated his
name as Vithal Shreeram Pawar[Appellant herein].
He further deposed that then on hearing his calls,
the neighbour rushed at his house. He told them
about the incident. The neighbours then shifted
him, his mother and his daughter Didi in hospital
at Manmad. He was then shifted at Suyash Hospital
at Nashik. He was hospitalized for about one and
half months. Therein Police came and asked him
whether he can identify the culprits. Then he has
been called at Nandgaon Tahsil office for
identification parade of accused. He identified
the accused persons in said parade. Then again
Police called for identification of accused in
Central Prison, Nashik road and he identified the
accused. He further deposed that 8 to 10 days
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prior to the incident, some persons used to come
at their village and they were having the dress
like Sadhu.
30. During the course of cross-examination,
PW-12 Sharad stated that while stating
descriptions of the accused he has not stated
before the Police identification marks like mole
etc. He has not stated the detail description of
the wooden logs and axe before the Police while
recording his statement. He has stated before the
Police while recording his statement that those
persons asked for keys to his wife and she had
delivered the same to them. He was unable to state
why the same is not so recorded in his statement.
He has stated before the Police that while his
wife escaped at the backside of the home, the
associates of the accused were there, who
assaulted her and killed her. He was unable to
state as to why it was not so recorded. He has not
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delivered the purchase receipts of the ornaments
to the Police during investigation. It was not
happened that the Police mixed the ornaments
identified by him with other ornaments and then
asked him to identify the ornaments. He came at
Central Jail Nashik for one occasion only. During
hospitalization period of one and half months, he
had not gone anywhere. After the said period of
one and half months, he never had been at Nashik
Gramin Police Station or at Manmad Police Station.
Police came in the hospital on 2-3 occasions. He
had been to Nandgaon on one occasion only. He was
unable to recollect exact time of reaching Tahsil
office on that day. He was unable to state as to
who had brought the accused at Tahsil office on
that day. When they reached there, accused were
already brought there at the inner side. At the
relevant time, in the Tahsil office 5-6 villagers
were also there. He has not stated before the
Police while recording his statement that eight
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days prior to the incident, persons wearing dress
of Sadhu came in the village. In his statement, he
has stated that three culprits were there. He has
not stated before the Police about the presence of
associates of culprits at the outer side of the
house.
31. Thus, it is clear that the defence has
brought on record several contradictions,
omissions and improvements in the evidence of
PW-12 Sharad. Though he deposed before the Court
that when his wife reached up to a tree behind
their house where associates of those persons were
present and they have assaulted over his wife and
killed her, during the course of cross-
examination, he has specifically admitted that he
has not stated before the Police while recording
his statement about the presence of associates of
culprits at the outer side of the house. He
further admitted that he has not stated before the
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Police while recording his statement that eight
days prior to the incident, persons wearing dress
of Sadhu came in the village. Though it is the
prosecution case that there were nine assailants,
who participated in dacoity, this witness stated
that only three persons entered in his house and
assaulted him. So also, before the Court this
witness has identified only three accused namely
Baliram Pundlik Chavan, Narayan Sitaram Pawar and
Bhika Piraji Chavan. It is pertinent to note that
another prosecution witness PW-3 Uttam has
specifically stated in his evidence that at the
relevant time Sharad told them that three persons
entered in his house, who worn half pants and had
covered their faces. However, PW-12 Sharad in his
deposition specifically stated that all the
assailants had worn full pants. Thus there is
variance in the evidence of PW-3 - Uttam and PW-12
- Sharad on the material particulars about the
clothes of the assailants. Even for the sake of
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arguments, the prosecution evidence is read as it
is, this witness Sharad has stated that the
accused - Suresh Vyankati Chavan was standing
outside the house when dacoity took place. Thus
even as per the prosecution case accused - Suresh
has not participated in the actual process of
dacoity. Even the trial Court has also held that
appellant/accused has not participated in the
actual process of dacoity.
32. The prosecution examined PW-13 Sanjay
Vasant Ghuge. He deposed that on 25th April, 2007
at about 11.00 a.m. Manmad Police called him at
Manmad Police Station and accordingly he went
there. One Udikar and Gavali were also called by
the Police at the Police Station. Suresh Chavan
was in the custody of the Police, who gave
confession to the Police. The Police has reduced
the same into writing. He further deposed that the
panchas have gone through the same and put their
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signatures thereon. He deposed that memorandum
(Exhibit-134) is the same and it bears his
signature.
33. PW-13 Sanjay further deposed that
thereafter in the Police Jeep he along with
panchas, accused Suresh Chavan and Police staff
went about one and half K.M. from Manmad near
temple of Goddess Godavari. Then from the nearby
bushes therein, accused Suresh Chavan discovered
an axe to the Police. The length of said axe is
about two and half feet and its edge is about 7
inch. He further deposed that he could identify
the said axe if shown to him. When axe (Article
H-3) was shown to him, he identified the same. He
further deposed that the Police then seized the
said axe, prepared its panchanama. He further
deposed that the seizure panchanama (Exhibit-135)
is the same, which bears his signature. Accused
also put his thumb impression over the same. He
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further deposed that on the day of recording his
evidence, he was unable to identify accused Suresh
Chavan due to lapse of many years.
34. PW-13 Sanjay further deposed that on the
same day, in the evening at about 4.30 p.m. Manmad
Police again called him at Police Station. At the
relevant time, Gavali and Sanjay Wadane were also
present as panchas. One Bhopya Pawar was in the
custody of Police, who confessed to discover
wooden log. Accordingly, confession was recorded
by the Police. He further deposed that Memorandum
(Exhibit-136) is the same, which bears his
signature. He further deposed that then in the
Police Jeep, he along with other panchas, Police
staff, accused Bhopya Pawar went near the temple
of Goddess Godavari. Accused Bhopya then
discovered the wooden log from the nearby bushes.
When the wooden log (Art. H-1) was shown to him,
he identified the same. He further deposed that
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the Police seized the said wooden log and prepared
the seizure panchanama (Exhibit-137). He further
deposed that on the day of recording his evidence,
he was unable to identify Bhopya due to lapse of
so many years.
35. During the course of cross-examination,
PW-13 Sanjay stated that he cannot remember the
number of the Police Jeep in which they went to
the aforesaid spot. He admits that the spot from
where the axe and wooden log were discovered can
be seen from the temple and accessible to the
public. He was unable to recollect whether in
memorandum panchanama it has been mentioned that
the accused is going to discover the axe and
wooden log. He further stated that the axe and
wooden log are having no seal bearing his
signatures. The Police brought the photocopy of
the panchanama and delivered the same to the
accused near the temple. He stated that he is
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dealing in transport business in Manmad.
36. Upon careful perusal of the evidence of
this witness, it is clear that axe was recovered
at the instance of accused Suresh Chavan. It is
pertinent to note that the said axe was recovered
from the bushes near temple of Goddess Godavari.
During the course of cross-examination, this
witness has specifically admitted that the spot
from where the axe and wooden log were discovered,
can be seen from the temple and accessible to the
public. In the case of Sujit Gulab Sohatre &
others vs. the State of Maharashtra 1, the Division
Bench of the Bombay High Court held that
recoveries from the places which are accessible to
all and sundry are not incriminating evidence. In
the present case also, the recoveries of axe and
wooden log at the instance of the accused are from
the place accessible to all and therefore the
1 1996 [3] All M.R. 439
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evidence of PW-13 Sanjay is not useful to the
prosecution case. Further PW-13 Sanjay was unable
to identify accused Suresh Chavan due to lapse of
many years.
37. The prosecution examined PW-14 Dhananjay
Pralhad Avsare, who is panch to the seizure of
wooden log at the instance of accused Sudhakar
Pundlik Chavan. He deposed that accused Sudhakar
took Police and the panchas at the nearby spot of
bridge and cremation and discovered wooden log to
the Police. However, during the course of his
cross-examination, this witness specifically
admitted that the spot from where the wooden log
was discovered was having public access.
Therefore, the evidence of this witness is also
not useful to the prosecution case. It is
significant to note that accused Sudhakar Chavan
is absconding accused.
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38. The prosecution examined PW-15 Santosh
Gangaram Mazde, who is panch to the seizure of
wooden log at the instance of accused Baliram
Chhabu Chavan. He deposed that accused Baliram
took Police and the panchas near the temple of
Goddess Godavari and from the nearby bushes
therein he discovered wooden log. However, during
the course of his cross-examination, this witness
also specifically admitted that the spot from
where the wooden log discovered was having public
access. Therefore, the evidence of this witness is
also not useful to the prosecution case. It is
significant to note that accused Baliram Chavan is
absconding accused.
39. PW-16 Ganesh Thakaji Gavali is a panch to
the seizure of ornaments at the instance of
accused Bhika Piraji Chavan. Accused Bhika Piraji
Chavan is absconding accused, who is not appellant
before this Court.
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40. The prosecution examined PW-17 Prabhavati
Kacharu Pawar, wife of deceased Kacharu. She
deposed that in the year 2007, they were residing
at their field situate at Nagapur Shivar near
railway track. Her family was consisting her
husband, her son Sharad, daughter-in-law Manisha
and grand-daughter Pragati @ Didi. On the date of
incident, at about 8.30 p.m they were sleeping. At
the relevant time, something hit on her head and
hence she woke up. She saw three assailants while
assaulting over the head of her husband. Those
persons possessed sticks, wooden logs and axe.
They were in the age group of 30 to 35 years,
having blackish colour. They worn banyan and full
pant.
41. PW-17 Prabhavati further deposed that her
daughter-in-law Manisha tried to escape at the
outside of house, but she was also assaulted on
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her head and killed. The assailants snatched
ornaments from the person of Manisha. She further
deposed that the said persons have also snatched
her ornaments, which includes golden marriage
string. She can identify the said ornaments. When
the ornaments (H-4 and H-5) were shown to her, she
identified the same. She further deposed that
those persons also assaulted her son on his head,
hands and legs and they opened the cupboard and
took away cash of Rs.50,000/-. She further deposed
that she can identify the wooden log and axe, if
shown. Those are at Article H, H-1 to H-3. She
further deposed that the assailants also assaulted
over her grand-daughter on her head and hand.
Three assailants entered into their house and six
persons were at the outer side. She further
deposed that she can identify them, accused before
the Court are the same. She herself and her son
were shifted at Hospital at Manmad. She was then
shifted at Nashik and was operated there towards
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injuries on her hand and neck. She was in the
hospital for about two months. Police recorded her
statement when she was in position to talk.
42. During the course of cross-examination,
PW-17 Prabhavati stated that while recording her
statement she has not stated about the
identification mark over the person of the
assailants. She admits that wooden logs and axe
are usually available with the farmers. She has
stated before the Police the colour of pants and
banyans worn by the assailants at the time of
incident, however, she was unable to state why it
is not so recorded by the Police. She has stated
before the Police that three assailants entered
into house and six were standing at the outer
side. She was unable to assign any reason as to
why it is not mentioned in her Police statement
that six persons were standing at the outer side.
She has specifically stated that she had not been
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in the office of Tahsildar at Nandgaon. She has
stated to the Police that assailants assaulted
over the head of Manisha, but she was unable to
assign any reason as to why it is not so recorded
in her Police statement.
43. The evidence of PW-17 Prabhavati reveals
that she has stated that three assailants entered
into her house and six persons were at the outer
side. So far as the number of accused persons is
concerned, her version is totally different than
the version of PW-12 Sharad. She has specifically
admitted that she never visited to the office of
Tahsildar at Nandgaon. Thus it is clear that she
has not identified the accused during the
identification parade and for the first time in
the Court, she has identified the accused. This
witness has stated that the accused were wearing
full pants and thus her version is contrary to the
version of PW-3 - Uttam, who stated that at the
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relevant time, the accused had worn half pants.
Further the prosecution has brought on record
various contradictions, omissions and improvements
in the evidence of PW-17. Thus, the evidence of
this witness is not at all trustworthy and
reliable.
44. PW-18 Raosaheb Kashinath Tribhuvan,
Police Head Constable is the carrier who carried
out muddemal articles to the office of Chemical
Analyzer for chemical analysis. PW-19 Sanjiv Dayal
was the Director General of Police, Maharashtra
State, who accorded the sanction to prosecute the
accused under MCOC Act. It is significant to note
that the Trial Court has acquitted accused Nos.4
and 8 of the offences punishable under the
provisions of the MCOC Act.
45. PW-20 Shrinivas Julal Patil, Police
Inspector is the Investigating Officer, who
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carried out initial investigation. He deposed
about the manner in which he has carried out the
investigation. He deposed that on 24th March, 2007
Head Constable on Station Diary duty informed him
on phone that at Nagapur Shivar dacoits had come
and killed a woman. He deposed that he himself
along with the staff went at the spot. On reaching
there, he learnt that the culprits with the help
of axe and wooden logs with them, killed Manisha
Pawar and Kacharu Pawar, and also injured Sharad,
Prabhavati and Didi Pawar. He also learnt that
injured were shifted in the Hospital. He then
informed about the incident to the control room as
well as superior officers. He then recorded FIR
(Exhibit-87) from Uttam Laxman Pawar. He then sent
FIR to the Police Station through ASI Shaikh. He
noticed that household articles in the said house
were in a scattered condition. He then prepared
the inquest panchanama of the dead bodies of
deceased Kacharu and Manisha. Head injuries were
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found to both of them, along with other injuries.
He then sent dead bodies for autopsy and
thereafter prepared spot panchanama. He seized
soil sample mixed with blood of Kacharu and
Manisha as well as simple soil, bed sheet. He also
seized soil sample mixed with blood of injured
Prabhavati as well as simple soil and quilt. The
pieces of bangles having white and rose colours
were also seized. He then seized all the articles
and prepared the panchanama (Exhibit-94). As blood
was found over the skin cover of the tree,
therefore he seized the said portion of skin cover
of the tree and prepared panchanama (Exhibit-88).
He then recorded statements of witnesses. He
deposited the property in Muddemal Section of the
Police Station. He collected Postmortem notes of
both the deceased and injury certificates of the
injured. Thereupon, further investigation was
entrusted to Crime Branch Nashik.
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46. During the course of cross-examination,
PW-20 Shrinivas admitted that while lodging the
FIR, informant Uttam had not stated in detail
description of the culprits. He specifically
admitted that he has not recorded in the
panchanama that on the relevant day he had applied
seal of wax on the muddemal seized from the spot
and obtained the signature of panchas over the
said seal. He further admits that he has not
referred in the panchanama that they have sealed
the bottles of blood samples of deceased with wax
seal and obtained the signatures of panchas over
the said seal.
47. Thus, it is clear from the evidence of
this witness that muddemal articles were seized
from the spot on 24th March, 2007. The evidence of
PW-18 Raosaheb discloses that he carried the said
muddemal articles to the Laboratory of Chemical
Analyzer on 25th May, 2007. Thus, it reveals that
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from 24th March, 2007 till 25th May, 2007 the seized
material was in the custody of the investigating
officer. PW-20 has admitted that he has not
referred in the panchanama that he had applied
seal of wax on seized muddemal and that he
obtained signatures of panchas over the said seal.
He further admits that he has not referred in the
panchanama that he had sealed bottles of blood
samples of deceased with wax seal. Thus it is
clear that the prosecution has not brought on
record, whether the said articles were properly
sealed or otherwise. The Rajasthan High Court in
the case of The State V. Motia and other Accused2,
in para No. 8 held that:
"8. Learned counsel for Motia accused has
raised a number of objections about this
evidence against Motia. In the first
place, he points out that there is no
evidence to show that after the various
articles had been recovered from the
2 A.I.R. 1955 RAJASTHAN 82 (Vol. 42 C.N. 27)
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possession of Motia, they were kept sealed
so that it was not possible for any one to
sprinkle blood stains on them while they
were in the custody of the police and
before they were, sent for examination by
the Chemical Examiner. We must point out
that this lacuna in the prosecution
evidence is there. Whenever it is desired
by the prosecution that certain articles,
which have been recovered from accused
persons are to be identified, or are to be
sent to the Chemical Examiner for
analysis, it is necessary that the officer
recovering the articles should immediately
take steps to seal them and evidence
should be produced that the seals were not
tampered with till the identification is
over, or till the articles are sent to the
Chemical Examiner for analysis. In the
absence of such precautions it would
always be open to the accused to say that
the police later put human blood on the
articles in order to implicate the
accused. It is, therefore, necessary for
the prosecution to produce evidence that
steps were taken at once to seal the
articles, and that from the time the
articles came into possession of the
police to the time they were sent for
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identification before a Magistrate or for
examination to the chemical Examiner the
seals remained intact. This evidence is
missing in this case. It is, of course,
not difficult to sprinkle a few human
blood stains on articles recovered if
somebody wants to do so. We do not say
that this was done in the present case;
but as precautions were not taken, the
argument raised on behalf of the accused
that this might have been done remains
unrefuted. Under these circumstances, we
find that we cannot place the same
reliance on the discovery of blood stains
on these various articles as we would have
done if necessary precautions had been
taken."
. In the facts of the present case also, it
is clear that muddemal articles were in the
custody of the investigating officer for about two
months and during the said period possibility of
tampering with the muddemal articles cannot be
ruled out. Considering the over all evidence and
the circumstances brought on record, explicit
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reliance cannot be placed upon the Report of
Chemical Analysis.
48. The prosecution has examined PW-21
Samadhan Netajirao Pawar, S.D.P.O. Manmad. He
deposed that on 3rd February, 2012, P.I. Manmad
informed him that they have arrested accused
Vithal Shreeram Pawar involved in C.R. No.47 of
2007. It revealed to him that while forwarding the
charge-sheet, the above-named accused was shown as
absconding and hence he applied with MCOC Court
for getting the warrant. On 4th February, 2012, he
has applied with J.M.F.C. Khamgaon for getting the
custody of above-named accused. On 22nd February,
2012, they obtained the custody of above-named
accused from Central Jail and covered his face. He
then obtained the police custody of above-named
accused. In due course, the above-named accused
remanded in judicial custody and then they applied
for permission from the Court for holding his
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identification parade. He then vide letter
Exhibit-111 informed Tahsildar, Nandgaon for
holding identification parade. Accordingly,
Tahsildar concerned held the identification parade
and forwarded his report (Exhibit-112). He further
deposed that he then recorded statements of
witnesses who have identified the above-named
accused. He then forwarded the detail report for
forwarding the charge-sheet to Additional D.G. He
further deposed that on 19the May, 2012, they have
received consent from Additional D.G. for
forwarding the charge-sheet. On 21st May, 2012, he
forwarded the supplementary charge-sheet.
49. During the course of cross examination,
PW-21 Samadhan stated that the FIR in the matter
was silent regarding name and description of the
accused. It reveals from the statements of the
accused that the accused were in the age group of
30 to 35 years. On the date of arrest, the accused
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was in the age group of 25. While recording the
statements, the witnesses have not disclosed the
identification marks of above-named accused, which
is mentioned in the arrest panchanama. He further
stated that during investigation, he has not
seized the proof connected with immovable property
in the name of accused. He further stated that he
did not come across with any documents showing
that accused is a member of Crimes Syndicate.
50. Thus it appears from the evidence of
PW-21 that he arrested accused Vithal Shreeram
Pawar and obtained police custody of the accused,
applied for permission from the Court for holding
his identification parade and then informed
Tahsildar for holding identification parade.
51. The prosecution examined PW-22 Vilas
Shivaji Wagh, Police Head Constable. He deposed
that accused Baliram Pundlik Chavan given
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confession statement and shown the spot where they
have conspired. He further deposed that at the
instance of accused Baliram one wooden log having
blood stains was recovered from Ghuge Vasti,
nearer to bandh of a field. He further deposed
that on 7th May, 2007 another accused Sudhakar
Chavan again confessed to discover the clothes
used while making reccy before panchas. He further
deposed that at the instance of accused Sudhakar
saffron colour clothes were discovered from the
bushes near Thakker property, which includes one
shirt and lungi.
52. During the course of cross-examination
PW-22 stated that the spot from where Baliram
discovered wooden log is below the bandh and at
the distance of 25 feet from the said bandh, road
was existed. He further stated that one can take
the view of the said spot from the road. He admits
that the area from where Sudhakar alleged to have
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discovered clothes is near the residential area
and houses are there. He further stated that he
has reduced into writing statement of Sharad
Kacharu Pawar according to his say and as per the
direction of P.I. Shendge. He further stated that
while recording the statement Sharad had not
stated that the culprits asked for keys and his
wife delivered the keys to them. Sharad also not
stated description of axe and wooden log. He
further stated that Sharad in his statement stated
that at the relevant time three culprits entered
into the house.
52. Thus evidence of PW-22 - Vilas shows
that the place from where wooden log was recovered
at the instance of accused Baliram was near the
road and was accessible to general public. His
evidence further discloses that the area from
where Sudhakar alleged to have discovered clothes
is near the residential area, where there are
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houses. This witness has specifically stated that
he has reduced into writing the statement of
Sharad Kacharu Pawar. Through this witness, the
defence has brought on record various
contradictions, omissions and improvements in the
evidence of PW-12 Sharad Kacharu Pawar.
53. PW-23 Pralhad Kalu Jadhav is the panch to
the seizure panchanama of clothes at the instance
of accused Sudhakar Pundlik Chavan. He deposed
that Sudhakar Pundlik Chavan took them to the
fencing of Thakkar Bungalow Gangapur road and from
nearer to the fencing discovered the clothes,
which includes saffron colour shirt having three
buttons, Nehru cut as well as same colour towel.
During the course of cross-examination, PW-23
stated that adjacent to the Thakkar Bungalow,
south-north road is there and towards western side
of the bungalow residential locality is there. He
further stated that the traffic of the vehicles is
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always there on the said road and the people also
used to pass by said road. He further stated that
the spot from where the clothes were discovered is
an open place.
54. Thus it is clear from the evidence of
PW-23 Pralhad that the place from where the
clothes were discovered at the instance of accused
Sudhakar was an open space, which was accessible
to the general public.
55. The prosecution has examined PW-24
Madhukar Trambak Athare, Head Constable. He
deposed that on 25th May, 2007 he was serving at
the office of Rural Crime Branch, Nashik. At the
relevant time, one Mr. Belavate was serving as
Police Inspector, who carried out investigation in
the matter. He deposed that Mr. Belavate was not
alive. He himself assisted Mr. Belavate while
carrying out investigation in the present matter.
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He further deposed that during the investigation,
he has prepared memorandum statement of Suresh
Vyankati Chavan on 25th April, 2007 vide Exhibit
134 at the instance of P.I. Belavate. Accordingly
accused Suresh then acted as per confession
Exhibit 134 and prepared the panchnama of seizure
of weapons at the instance of P.I. Belavate. He
further deposed that he can identify the axe
discovered by accused Suresh, if shown to him. He
further deposed that axe Article H/3 is the same
which was shown to him. He further deposed that on
25th April, 2007 at the instance of accused
Kashiram alias Bhopya Pawar, wooden log was
discovered.
56. During the course of cross-examination,
PW-24 Madhukar stated that at the relevant time
he has not mentioned the body marks in the
statement of those holy men or Sant (Sadhu). He
further stated that he has not referred the
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description of weapon while preparing memorandum
statement of accused Suresh Vyankati Chavan. He
further stated that he has not referred in the
statement of accused Kashiram alias Bhopya that he
shown readiness to discover the wooden log.
57. This witness PW-24 deposed about the
discovery of the axe at the instance of accused
Suresh Vyankati Chavan. However, as observed
earlier, the discovery of said axe is from the
place which was accessible to all. Further it is
pertinent to note that as per the version of this
witness, the place from where axe is recovered at
the instance of accused Suresh is different than
the place from where axe was recovered at the
instance of accused Suresh, as per the version of
PW-13 Sanjay. Thus prosecution is not sure, which
weapon was possessed by the accused Suresh.
58. The prosecution has examined PW-25 Sunil
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Devidas Kadasne. He deposed that in the year 2007
he was serving as a SDPO at Manmad. On adding the
charges under MCOC Act, the investigation of the
matter was entrusted to him. He then recorded
statements of the witnesses, collected the
documents regarding pending offences/cases against
the accused. They have also separately filed the
certified documents connected with Sessions Case
No.250/2007 in C.R. No.47/2007 of Manmad Police
Station. He further deposed about the various
documents filed regarding various cases filed in
various Courts. He further deposed that on
receiving C.A. Reports (Exhibit-192 to 196), he
has forwarded the same with the charge-sheet. He
further deposed that on 11th October, 2007 he
forwarded the papers for getting sanction to the
office of Additional D.G. On 13th June, 2008 they
got consent from D.G.P. to forward the charge-
sheet vide Exhibit-155. Then on 14th July, 2008 he
has forwarded the charge-sheet. He further deposed
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that the accused before the Court are the same.
59. During the course of cross examination,
PW-25 Sunil admits that the FIR was against three
culprits. He further admits that detail
descriptions were not given in the FIR. He further
admits that it revealed to him that there were
differences in the descriptions stated by the
witnesses in their statements and the descriptions
of them in the arrest panchanamas. He further
admits that some of the property involved in the
present matter is also shown in C.R. No.47 of
2007. The accused belong to Pardhi community. He
further stated that during investigation it was
not revealed to him that the accused by illegal
means and committing offences collected immovable
properties. The bank balance also not revealed to
him in the investigation in the names of the
accused. He further stated that at the relevant
time, in the Case Diary received to him, there was
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no documents regarding purchase of ornaments by
the informant. He has not seized the documents
from the accused showing that they have formed
Organized Crime Syndicate. He admits that some of
the spots from where recovery is made are open
space accessible to all. He further stated that
the Railway employees always used to check the
railway tracks. He further admits that in some of
the cases registered against the accused in
different Police Stations and stated by him
earlier, the accused are acquitted from the
charges.
60. From perusal of the evidence of PW-25
Sunil, it is clear that the FIR was against only
three culprits and in the said FIR detail
description was not given. This witness admitted
that there are difference in the descriptions
stated by the witnesses in their statements and
the description in the arrest panchanama. He
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further admits that some of the property involved
in the present matter was also shown in another
crime bearing C.R. No.47 of 2007. His evidence
shows that during investigation it was not
revealed that accused collected immovable
properties by illegal means and that the accused
were having handsome bank balance. His evidence
further discloses that in the Case Diary there was
no document regarding purchase of ornaments by the
informant. His evidence further discloses that
some of the spots from where recovery is made, are
open space accessible to all. As observed earlier,
the Trial Court has acquitted both the Appellants
from the offence punishable under Sections 120-B
and 452 of the IPC. The Trial Court has also
acquitted the appellants from the offence
punishable under the provisions of the MCOC Act.
61. PW-26 Dr.Satyapal Singh was the Police
Commissioner, Mumbai at the relevant time, who
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forwarded the proposal to charge accused Vithhal
Shreeram Pawar, under the provisions of the MCOC
Act. PW-27 Premkrishan Jain was the Additional
D.G., Special Operations, Mumbai at the relevant
time, who granted approval to apply the provisions
of the MCOC Act in C.R. No.46 of 2007 registered
at Manmad City Police Station. As observed
earlier, the Trial Court has acquitted the
appellants from the offence punishable under the
provisions of the MCOC Act.
62. It is pertinent to note that the incident
took place on 24th March, 2007 during the night
hours at about 1.00 a.m. and about the said
incident, identification parade of the
accused/appellant - Suresh Vyankati Chavan was
conducted on 3rd May, 2007, after about 40 days
from the date of incident. So far as
accused/appellant Vithhal Shreeram Pawar is
concerned, his identification parade was carried
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out on 23rd March, 2012, after almost five years
from the date of incident. The Supreme Court in
the case of Musheer Khan @ Badshah Khan and
another3, in the facts of that case, wherein
identification parade was carried out after three
months from the date of incident, held thus:-
"32. In so far as the identification of A-5 is
concerned that has taken place at a very delayed
stage, namely, his identification took place on
24.01.2001 and the incident is of 29.11.2000,
even though A-5 was arrested on 22.12.2000. There
is no explanation why his identification parade
was held on 24.01.2001, which is after a gap of
over a month from the date of arrest and after
about 3 months from the date of the incident. No
reliance ought to have been placed by the courts
below or High Court on such delayed T.I. parade
for which there is no explanation by the
prosecution."
63. As observed earlier, in the facts of the
present case also, so far as accused/appellant -
3 AIR 2010 S.C. 762
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Suresh Vyankati Chavan is concerned, his
identification parade was conducted after about 40
days from the date of incident. So far as
accused/appellant Vithhal Shreeram Pawar is
concerned, his identification parade was carried
out after five years from the date of incident.
Therefore, the identification parade looses its
importance in as much as there was long time gap
and possibility of accused being shown to
witnesses cannot be ruled out. Such belated
identification parade after long gap from the date
of incident, and conducted in breach of the
procedure, deserves no consideration.
64. We have already discussed in detail, the
evidence of PW-8 Mandar Kulkarni, Residential Naib
Tahsildar and PW-9 Sanjay Shinde, Naib Tahsildar,
who conducted identification parade of the accused
persons. PW-8 Manohar Kulkarni admitted that in
the panchnamas Exhibit 104 to 109 he has not
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referred ages, description and addresses of the
dummies and that the dummies were having similar
personalities with accused. PW-9 Sanjay Shinde who
carried out identification parade, deposed that
witness Sharad Kacharu Pawar has identified
accused Vithhal Shreeram Pawar before the panch
witnesses. Admittedly accused Vitthal Pawar was of
about 25 years of age at the relevant time.
However, during the course of cross-examination,
PW-9 admitted that on the relevant day the dummies
in the age group of 25 were not available. The
evidence on record discloses that proper procedure
was not followed while conducting the
identification parades. It seems that the accused
were exposed to the witnesses before the
identification parade. The evidence on record does
not show that the faces of the accused were
covered before or while bringing them for test
identification parade. The evidence on record
shows that accused were of younger age while the
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persons other than accused were of more than 30 to
35 years of age. It appears from the evidence on
record that the dummies were not of similar age
and appearance to that of the accused persons.
65. Certain guidelines are prescribed for
conducting identification parade. At this
juncture, it would be apt to reproduce herein
below the guidelines laid down i.e. Para 16(2)(a)
to (p) from Chapter I of Criminal Manual issued by
the High Court of Judicature at Bombay, for the
Guidance of the Criminal Courts and Officers
Subordinate to it in respect of conduct of test
identification parade, which read thus :-
16(2)(a) The object of an identification parade
is to make sure that the ability of the witness
to recognise the suspect has been fairly and
adequately tested.
(b) It should be fair and seem to be fair and
every precaution must be taken to exclude any
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suspicion of unfairness or risk of erroneous
identification through the witnesses' attention
being directed specifically to the suspected
persons instead of equally to all the persons to
be paraded.
(c) The Officer concerned with the case against
the suspect, if present, must not take part in
conducting the parade.
(d) The parade should be arranged by an officer
who is not a police officer.
(e) After the commencement of the identification
parade, every thing in respect of it should take
place in the presence and hearing of the suspect,
including any instruction to the witnesses
attending it as to the procedure that is to be
adopted.
(f) All unauthorised persons should be strictly
excluded from the place of identification parade.
(g) The witnesses should be prevented from
seeing the suspect before he is paraded with
other persons, and witnesses who have previously
seen a photograph or description of the suspect
should not be led in identifying the suspect by
reason of their recollection of the photograph or
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description, as for instance by being shown the
photograph or description, before the parade.
(h) The suspect should be placed among persons
(if practicable eight or more) who are as far as
possible of the same age, height, general
appearance (including standard of dress and
grooming) and position in life. Two suspects of
roughly of similar appearance should be paraded
with atleast twelve other persons. Where,
however, the two suspects are not similar in
appearance or where there are more than two
suspects, separate parades should be held using
different person on each parade.
(i) All members of a group of suspects more than
two should not be paraded together. There should
be more parades than one, each including not more
than two. Two suspects of obviously dissimilar
appearance should not be included in the same
parade. Identification numbers should be
concealed.
(j) The suspect should be allowed to select his
own position in the line and should be expressly
asked if he has any objection to the persons
present with him or the arrangements made. He
should be informed that if he so desires, he
should have his Advocate (or a friend) present at
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the identification parade.
(k) The witnesses should be introduced one by
one and, on leaving, should not be allowed to
communicate with witnesses waiting to see the
persons paraded; and the suspect should be
informed that he is free to change his position
after each witness has left.
(l) The witness should be asked whether the
person he has come to identify is on the parade.
He should be told that if he cannot make a
positive identification, it is open for him to
say so.
(m) Generally, a witness should be asked to
touch any person whom he purports to identify,
but if the witness is nervous at the prospect of
having to do that (in case where the witness is a
woman or a child who has been victim of a sexual
or violent assault or other frightening
experience) and if prefers not to touch the
person, identification by pointing out should be
permitted.
(n) If a witness indicates someone, but is
unable to identify him positively, this fact
should be carefully noted by the officer
conducting the parade and every other
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circumstances, (such as whether the suspect or
any other person is identified or not), connected
with it should be noted.
(o) If any request is made by a witness, for
example to see the suspect with his hat on or his
hat off or to see he person walk or to hear the
person speak and there being no objection to the
person paraded as asked for, the incident should
be recorded.
(p) Where a parade has to be held in prison, a
prison officer should be present throughout in-
charge of the discipline of the prisoners who
would take part. Otherwise, the police officer
unconnected with the case, ought to be
responsible for the parade. It must be ensured
that the parade is conducted in the same way as a
parade outside prison."
66. In para 16 of above-mentioned Manual, the
procedure is prescribed for conducting the
identification parades. Clauses (iv) and (v) of
the said procedure read thus :-
"(iv) The parade should then be arranged in a
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room or a place which is such that the
identifying witnesses, as well as the persons
connected with the Police, should not be able to
look into it.
(v) If there is only one accused person to be
identified, there should be atleast half a dozen
persons placed in the parade. If two accused
persons are to be identified, then there should
be about 10 or 12 persons in the parade. Not more
than two accused should be placed in any single
identification parade. Normally, the Police
themselves will have called up the persons to be
put in the parade; but the Executive
Magistrate/Honorary Magistrate should see that
they are persons of more or less the same
physical appearance , and approximately of the
same age, as the person to be identified. It is
desirable that innocent persons to be mixed
should be different for each such parade."
67. Upon perusal of the clause (iv), while
conducting the parade, the parade should be
arranged in a room or a place which is such that
the identifying witnesses, as well as the persons
connected with the Police, should not be able to
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look into it. In clause (v), it is stated that, if
there is only one accused person to be identified,
at-least half a dozen dummy persons should be
placed in the parade. If two accused persons are
to be identified, then there should be about 10 or
12 persons in the parade. Not more than two
accused should be placed in any single
identification parade. Normally, the police
themselves will have called up the persons to be
put in the parade, but the Executive
Magistrate/Honourary Magistrate should see that
they are persons of more or less same physical
appearance, and approximately of the same age, as
the person to be identified. It is desirable that
dummy persons to be mixed should be different for
such parade.
68. In the present case in hand, the
procedure prescribed for identification parade was
not at all followed while conducting the
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identification parade of the Appellants herein.
Thus, the prosecution has not conclusively proved
that the Appellants and the Appellants are the
only persons who participated in the dacoity.
Therefore, it is unsafe to base the conviction of
the Appellants on the basis of such faulty
identification parades.
69. We have discussed in detail the entire
evidence brought on record by the prosecution.
There is no consistency in the evidence of the
prosecution witnesses and the evidence of the
prosecution witnesses is not at all consistent,
trustworthy and reliable. PW-3 Uttam has stated
that Sharad told him that dacoits were wearing
half pants, as against this, evidence of PW-12
Sharad and PW-17 Prabhavati reveals that all the
dacoits were wearing full pants. Though, it has
come in the evidence of PW-3 Uttam and PW-4
Rajendra that before the incident of dacoity, some
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persons pretending themselves as Sadhus used to
come in their village, the prosecution has failed
to prove conclusively that said Sadhus were the
persons who had committed dacoity. PW-3 Uttam and
PW-4 Rajendra had not seen the dacoits while
committing the dacoity and they visited the spot
after the incident was over. Though it has come in
the evidence of prosecution witness PW-13 Sanjay
that axe was recovered at the instance of
appellant Suresh Chavan, as observed earlier, he
has specifically admitted in the cross examination
that the spot from where the axe was discovered
was accessible to the public. The prosecution has
failed to brought on record actually how much
persons involved in dacoity. PW-12 Sharad has
identified only three accused before the Court.
His evidence shows that only three persons entered
in the house and some persons were standing
outside the house, but he has not stated in clear
terms as to how many persons involved in the
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process of dacoity. PW-17 Prabhavati stated that
three persons entered into the house and six
persons were standing outside the house. However
if the evidence of PW-25 Sunil, investigating
officer is perused, he has specifically admitted
in his cross-examination that original FIR was
only against three culprits and his evidence
further reveals that detail description was not
given in the FIR. If really nine culprits would
have involved in the dacoity, then the informant
would not have registered FIR against only three
persons. Though, before the trial Court there were
in all nine accused, the record before the trial
Court reveals that accused No.1 - Baliram, accused
No.2- Sudhakar, accused No.3 - Bhika, accused No.5
Narayan, accused No.6 Kashiram, accused No.7-
Mangal and accused No.9- Babu absconded during the
trial before the Court and therefore their case
was separated and case was proceeded only against
present appellants i.e. accused No.4 - Suresh and
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accused No.8- Vitthal. The police machinery was
unable to apprehend absconding accused persons
till the trial was over. As observed earlier,
muddemal articles were in the custody of the
investigating officer for about two months. The
prosecution has not brought on record whether
those articles were properly sealed and kept in
proper condition for such long period, and
therefore during the said period possibility of
tampering with the muddemal articles cannot be
ruled out. While conducting identification parade,
proper procedure was not followed. It has come in
the evidence that while conducting the
identification parade, the dummies in the age
group of accused were not available. As observed
earlier, while conducting the identification
parade, guidelines prescribed in that behalf were
not followed. Thus prosecution failed to fix the
identity of the assailants and further failed to
prove that the appellants were the persons who
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participated in dacoity and therefore on such
faulty identification, conviction cannot be based
against the Appellants.
69. We have carefully perused the impugned
Judgment passed by the trial Court and we find
that the trial Court has recorded perverse
findings. The trial Court has recorded the
specific finding that except producing charge-
sheets on record, the prosecution has not produced
cogent and reliable evidence on record to prove
that the accused have committed the offence of
organized crime syndicate and accused Nos. 4 and 8
were involved in criminal activities continuously
and they have committed criminal activities by
using force, threat or violence or coercion for
gaining pecuniary benefits for themselves and
thereby committed offences punishable under
Sections 3(1)(i), 3(1)(ii) and 3(4) of the MCOC
Act. On the basis of above-said findings, the
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trial Court has acquitted the appellants from the
offence punishable under the provisions of MCOC
Act. The trial Court has also acquitted the
Appellants from the offence punishable under the
provisions of 120-B and 452 of the IPC. Upon
appreciation of the evidence brought on record by
the prosecution, the trial Court has held that
the Appellants were not party to the criminal
conspiracy. The trial Court has further held that
the Appellants have not committed house-trespass,
having made preparation for causing hurt to any
person or for assaulting any person, or for
wrongfully restraining any person, or for putting
any person in fear of hurt, or of assault, or of
wrongful restraint. However, on the same set of
evidence the trial Court has convicted and
sentenced the Appellants for the offence
punishable under Sections 395, 396, 397, 447 of
IPC. The trial Court has not appreciated entire
evidence brought on record in its proper
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perspective and reached to a wrong conclusion. The
findings recorded by the trial Court are not in
consonance with the evidence brought on record.
70. The evidence brought on record by the
prosecution is not cogent, sufficient and
convincing so as to prove the offence against the
Appellants beyond reasonable doubt. On the whole
there is no cogent, clinching and sufficient
evidence showing the involvement of the
Appellants. Under these circumstances, the
Appellants are entitled for the benefit of doubt.
Hence we pass the following order:
O R D E R
(I) Both Criminal Appeals i.e. Criminal Appeal No.1211/2018 and Criminal Appeal No.301/2017 are allowed.
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Cri.Apeal 1211.18 95 (II) The Judgment and order dated 15th July, 2015, passed by the Special Judge (Under MCOC Act), Nashik in Special Case (MCOC) No.1 of 2008, thereby convicting and sentencing the Appellants - accused No.4 - Suresh Vyankati Chavan and accused No.8 - Vithhal Shreeram Pawar for the offence punishable under Sections 395, 396, 397 and 447 of the Indian Penal Code, is quashed and set aside.
(III) Both the Appellants i.e. - Suresh Vyankati Chavan and Vithhal Shreeram Pawar, are acquitted of the offence punishable under Sections 395, 396, 397 and 447 of the Indian Penal Code. Fine amount, if deposited as per the impugned Judgment and order, be refunded to the Appellants. ::: Uploaded on - 16/10/2018 ::: Downloaded on - 17/10/2018 02:28:53 :::
Cri.Apeal 1211.18 96 (IV) The order passed by the trial Court to the extent of acquitting both the Appellants of the offence punishable under Section 120-B and 452 of the Indian Penal Code and under Sections 3(1)(i), 3(1)(ii) and 3(4) of the Maharashtra Control of Organized Crime Act, 1999, is hereby confirmed. (V) Both the Appellants are in jail, they be set at liberty forthwith, if not required in any other case. (VI) Both the Appellants shall furnish Personal Bond of Rs.15,000/- each and surety in the like amount each, under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Nashik.
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Cri.Apeal 1211.18 97 (VII) In view of the order passed in Criminal Appeals, Criminal Application No.1235 of 2017 in Appeal No.301 of 2017 does not survive and the same stands disposed of, accordingly. [MRS.MRIDULA BHATKAR, J.] [S.S. SHINDE, J.] ::: Uploaded on - 16/10/2018 ::: Downloaded on - 17/10/2018 02:28:53 :::