Bombay High Court
Subhash Babu Kadam @ Barkya And Santosh ... vs The State Of Maharashtra [Alongwith ... on 26 August, 2002
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Criminal Appeal No. 522 of 1999 and Criminal Appeal No. 455 of 1999 are being decided together by this judgment and order as they arise from the same Sessions Case. Shri Ganesh Gole appeared for the appellant in Criminal Appeal No. 445 of 1999. However, none was appearing for the appellants in Criminal Appeal No. 522 of 1999, though the board published for hearing of the appeals was clear enough to give sufficient idea to the concerned advocate that the appeal is on board today for final hearing. All the appellants are hereby challenging the correctness, propriety and legality of the judgment and order passed by the Additional Sessions Judge, in Sessions Case No. 362 of 1998, by which the appellants has been convicted for committing the offences punishable under Sections 399 and 402 of Indian Penal Code and Section 135 of Bombay Police Act. The appellants have been sentenced to undergo rigorous imprisonment for five years each for the offence under Section 399 of I.P.C. They have been also sentenced to under go rigorous imprisonment for three years each and to pay fine of Rs. 1000/- each, it default to suffer further rigorous imprisonment for six months for the offence under Section 402 of I.P.C. No separate sentence has been inflicted on them for the offence under Section 15 of Bombay Police Act.
2. The prosecution case in brief is that, on 19/11/1998 at about 9.30 p.m. P.W.1 received information from his informer on pager, that some persons were assembling at spot at Mathew Road, Opera House, Mumbai and they were to commit dacoity at the flat of one Bagle at Juhu or near Oberai Hotel, near Nariman Point. P.W. No. 1 conveyed the said information to P.W. 4 Rajesh Chavan who was at the relevant time working as P.S.I. of D.B. Marg Police Station. P.W.4, P.W.3, P.W.1 and other staff members went to the spot in plain dress. P.W.4 asked P.W.1 to go near those persons to listen to their conversation when they were standing on the road near a Fiat car and Maruti van. It is alleged that as per prosecution case that the absconding accused D'souza was engaged in conversation with somebody on mobile phone and it is the prosecution case, that he was receiving information about the time when they should move to Juhu or spot near Oberai hotel, Nariman Point for committing dacoity for which they had assembled there. When P.W.1 gave the signal to police staff members who had ambushed there, P.W.3 and P.W.4 and other staff members rushed towards them, in two groups. They could arrest four persons, out of those five persons. However, the main person D'souza was able to run away. When the search was taken in presence of panch witnesses, who were called by the said squad from nearby vicinity, the squad found that appellant Sumedh was possessing chopper so also the appellants in Criminal Appeal No. 522 of 1999 were possessing two choppers. Those choppers were seized. Some weapons were found to have been kept in said Fiat car and Maruti van. The weapons were a toy pistol, kukry and a Gupti which were also seized under a panchanama. A crime was registered and the investigation ended in filing of the chargesheet before the Court. The appellants were tried before the Additional Sessions Judge, Greater Mumbai in the said Sessions Case, which ended in the judgment and order convicting and sentencing them as mentioned above.
3. Shri Ganesh Gole, Counsel appearing for appellant Sumedh, submitted that the prosecution case is totally unnatural and improper because, had persons been present there for making preparation to commit the dacoity or were assembled with the intention of committing the dacoity, they would have been assembled near Juhu or Nariman Point and not near Opera House. He submitted that they could have gathered near any other spot which was equal in distance to those spots and that could have come near Dadar or Mahim. He further submitted that the panch witness P.W.2, was a got up witness and was a stock witness of the police because, according to his evidence he was doing business of cloth selling at footpath at Grant Road and was staying at Malad. In that case, when he was to return to his house, he would not have gone to Opera house, which was near Charni Road railway station. He submitted that he would have gone towards, "down" destination instead of "up" destination and in that case, he would not have been available at the said spot as stated by P.W.1, P.W.3 and P.W.4. Shri Gole also submitted that the story of hearing conversation is also totally unnatural and seems to have been brought up only for the purpose of achieving the conviction and sentence. He submitted that the appellants have been falsely implicated in the case.
4. Shri Shringapure, Additional Public Prosecutor appearing for the prosecution, attempted his best to justify the order of conviction and sentence. He submitted that there could not be any specific place for the culprits to assemble. He submitted that the spot where they had assembled was convenient to them. Shri Shringarpure submitted that the prosecution witnesses were stating the truth very honestly, clearly with straight forward approach. He submitted that their evidence ha snot been shattered at all and therefore, the learned trial Judge committed no mistake in accepting it and recording the finding of guilt against the appellants. He further submitted that prohibited weapons were found in possession of the appellants like choppers and therefore, they have committed the offence for which they have been convicted and sentenced.
5. Section 399 of Indian Penal Code deals with an offence wherein the offenders make preparation for committing dacoity. Therefore, the prosecution is obliged to prove by cogent, acceptable and credit worthy evidence that the offenders were making preparation for committing the dacoity. The prosecution is obliged to prove necessary ingredients in view of Section 399 of I.P.C. It is obligatory to prove such acts which would show that the offenders were doing those acts for preparing themselves or making preparation for committing the offence of dacoity. The evidence should be natural, and should be acceptable to a person of reasonable prudence. it should be consistent with normal human conduct. Such evidence adduced by the prosecution should pass out the tests of truth, if tested on touch stone of normal human experience. In the present case, the evidence which has been adduced by the prosecution shows that P.W.1 was sent by P.W. 4 Rajesh Chavan near the present appellants and absconding accused for the purpose of hearing their conversation. It means that, investigation anticipated that those person would be explicitly talking so as to allow others to know the purpose for which they had assembled there. Taking into consideration normal human behavior, such persons would not openly talk about their preparation for committing the dacoity so as to make themselves vulnerable to the arrest before commission of dacoity. In the present case, the prosecution adduced such a evidence that P.W.1 went near the appellants and their associate, who absconded, for hearing their conversation and in his proximity, the said absconding accused did talk on mobile phone in an audible tone that he could hear it. This is totally unnatural, improbable and difficult to be accepted. The trial Court when deciding the case accepted it and committed gross error in appreciation of evidence.
6. The trial Court also failed to note that P.W.1 was unable to give the time as to when he had received the alleged information. He also did not notice that the prosecution evidence was itself showing that the said information was not giving the description of those persons, who had assembled near Opera House for committing the dacoity, which was to be committed either at Juhu or at Nariman Point near Oberai Hotel. When that was so insufficient information, how the prosecution witness No. 1, 3 and 4 were able to locate the present appellants. if at all they were suspicious of their conduct, and were making of arrangement to trap them, they would have normally encircled them by taking advantage of the strength of the squad, but it was not done and even prosecution says that the main culprit was able to run away. The prosecution evidence itself shows that the spot where the appellants and their associate were standing was a public road and in the midst of traffic. That is also against normal human conduct. The trial court should have discarded the prosecution case altogether, considering the glaring defects which were present in the prosecution case inherently, so far as the charge pertaining to offence punishable under Section 399 of I.P.C. was concerned.
7. Section 402 of I.P.C. indicates that prosecution should adduce evidence for proving it at any time after passing of this Act, that five or more persons had assembled for the purpose of committing dacoity. Therefore, the prosecution is obliged to prove that the intention of assembling was for the purpose of committing a dacoity and this cannot be proved only by the fact that said persons or some of them were armed with some weapons. The prosecution is obliged to adduce such evidence to show that those persons committed some overt acts, which spelled out the purpose of their assembly and that was for committing a dacoity. It has to be proved by natural, acceptable and reliable evidence. The evidence should be acceptable to a person of ordinary prudence. In the present case trial judge committed error of not noticing that. Had the appellants and their associates been there for committing the dacoity, they would have taken the care of concealing their persons or they could have taken the care of speaking in low tone and that too in code words so as to see that none could gather any information, which would frustrate their object. The evidence adduced by the prosecution in this case is totally running against the normal human conduct, totally unnatural, improper and not deserving to be accepted, leave aside for basing a conviction for a serious offence. But unfortunately, the trial Court has done it and has landed into the error of convicting and sentencing the appellants.
8. The evidence of panch witness P.W.2 shows that he resides at Malad and does business of selling clothes on footpath at Grant Road. It shows that he was going to his home and therefore, he would have been interested in going to down destination and would not have been available to the prosecution witnesses No. 1, 3 and 4 and their associates near Opera House which was near Charni Road Railway Station. The spot where the members of raiding squad had assembled is a business locality. Therefore normally the members of raiding party would have got the panch witnesses otherwise also easily. It is pertinent to note that panch witnesses P.W.2 does the business of selling clothes on footpath at the mercy of the police, at least he was under the danger of being ousted from the business of selling clothes on the footpath at the hands of police. Therefore witness. In the absence of any other independent witness, his evidence will have to be examined carefully and cautiously.
9. Panchanama has been drawn in Marathi. P.W. 2 was not knowing Marathi. His evidence does not show that it was read over and explained to him in Hindi, the language which he understands. The panchanama as per other prosecution witnesses has been written on the spot but it does not show as to where it has been written. Whether it was written on the spot, whether light was available for writing the panchanama are questions which need to be explained by the prosecution satisfactorily. But the prosecution evidence adduced in this case is not explaining that to the satisfaction. The evidence of P.W.2 shows that after completing the said panchanama he went to his house. So also it shows that when he was asked to accompany the other prosecution witnesses for the work of raiding, he did not ask those persons who were in plain cloth as to who they were and for what purpose his presence was needed. His evidence does not disclose that after P.W.2 questioned, the other prosecution witnesses explained to him that they were police personnel and they were to effect a raid and for that purpose he was to remain present as a panch witness for witnessing their activities which were likely to be recorded and reduced into writing in the nature of panchanama. His evidence shows that he was not acquainted with other prosecution witnesses before the incident in question. In the midst of these things his readiness and willingness to go with them without putting any question appears to be totally unnatural and in the midst of absence of any independent witness, his evidence is not sufficient enough to prove that the choppers were seized from these appellants. Thus, this Court after carefully examining all the evidence comes to the conclusion, that the prosecution fails to establish that the choppers were seized from the person of the appellants as alleged by the prosecution.
10. In the present case, there is no evidence adduced by the prosecution that the preventive order contemplated by provisions of Chapter IV were published as law requires. In fact there is no cogent evidence on the record to show that at the relevant time there was any order in existence prohibiting possession of choppers in public place. In the present case the prosecution failed to adduce evidence in respect of seizure of those choppers, their length, width and thickness. The trial Court failed to notice all these important facets and therefore, landed in error in convicting and sentencing the appellants for committing the offences as indicated by the provisions of Section 135 of Bombay Police Act, 1951.
11. Thus, this Court comes to the conclusion that the order of conviction and sentence challenged by the appellants by these appeals is not correct, proper and legal. In view of this, the appeals are allowed and order of conviction and sentence passed against the appellants needs to be set aside. They stand acquitted. They be released, if not required for any enquiry, investigation, proceeding or trial. They be also not released, if they are undergoing any sentence for any other offence passed by the Court.
The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.