Bombay High Court
Bhimrao Shekhar Salam vs The State Of Maharashtra on 11 January, 2019
Author: S.S. Shinde
Bench: S.S. Shinde, R.G. Avachat
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.160 OF 2007
Munir Rustum Shah,
Age-24 years, R/o-Domegaon,
Tq-Gangapur, Dist-Aurangabad
...APPELLANT
(Orig. Accused No.2)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. A.S. Shelke Advocate appointed for
Appellant.
Mr. S.B. Yawalkar, A.P.P. for Respondent-State.
...
WITH
CRIMINAL APPEAL NO.97 OF 2008
Bhimrao Shekha Salam,
Age-20 years, R/o-Dahegaon,
Tq-Kinwat, Dist-Nanded
...APPELLANT
(Orig. Accused No.3)
VERSUS
The State of Maharashtra
...RESPONDENT
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...
Mr. A.S. Shelke Advocate appointed for
Appellant.
Mr. S.B. Yawalkar, A.P.P. for Respondent-State.
...
WITH
CRIMINAL APPEAL NO.391 OF 2008
The State of Maharashtra,
Through Police Station,
Newasa, Dist-Ahmednagar.
...APPELLANT
VERSUS
1) Ravindra Baban @ Bhagwan Mhaske,
Age-20 years, R/o-Shivar,
Tq-Aarni, Dist-Yeowatmal,
2) Mahesh Pralhad Kale,
Age-20 years, R/o-Dhorgaon,
Tq-Aarni, Dist-Yeowatmal,
3) Dipak Bhagwan Madawi,
Age-20 years, R/o-Shivar,
Tq-Aarni, Dist-Yeowatmal
...RESPONDENTS
(Orig. Accused Nos.4 to 6)
...
Mr.S.B. Yawalkar, A.P.P. for Appellant-State.
Mr.G.J. Mote Advocate for Respondent Nos.
1 to 3 (Absent).
...
CORAM: S.S. SHINDE AND
R.G. AVACHAT, JJ.
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DATE OF RESERVING JUDGMENT : 04TH JANUARY, 2019
DATE OF PRONOUNCING JUDGMENT: 11TH JANUARY, 2019
JUDGMENT [PER S.S. SHINDE, J.]:
1. Criminal Appeal No.160 of 2007 and
Criminal Appeal No.97 of 2008 are directed against
the Judgment and Order dated 10 th April, 2007,
passed by the Additional Sessions Judge,
Shrirampur in Sessions Case No.29 of 2005 thereby
convicting accused No.2 - Munir Rustum Shah and
accused No.3 - Bhimrao Shekha Salam for the
offence punishable under Section 395 read with 397
of the Indian Penal Code [for short 'IPC'] and
sentencing them to suffer rigorous imprisonment
for seven years and to pay a fine of Rs.1,000/-
each, and in default of payment of fine to suffer
further rigorous imprisonment for six months. The
trial Court also convicted accused No.3 - Bhimrao
Shekha Salam for the offence punishable under
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Section 4(25) of the Arms Act and sentenced him to
suffer rigorous imprisonment for two years and to
pay a fine of Rs.500/-, in default to suffer
further Rigorous Imprisonment for three months.
All the sentences were directed to be run
concurrently.
2. The trial Court also convicted and
sentenced accused No.1 - Rajendra Jalinder
Ghewande for the offence punishable under Section
395 read with 397 of the IPC. However, it appears
that accused No.1 - Rajendra has not filed Appeal
against his conviction and sentence.
3. Criminal Appeal No.391 of 2008 is filed
by the State against the acquittal of original
accused No.4 - Ravindra Baban @ Bhagwan Mhaske,
accused No.5 - Mahendra Pralhad Kale and accused
No.6 - Dipak Bhagwan Madawi from the offence
punishable under Sections 395, 397 read with
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section 34 of IPC and Section 4 and 25 of Arms
Act.
4. All 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.
5. The prosecution case, in brief, is as
under :-
(A) On 7th April, 2005, an informant Ramdas
Bhau Kothule, resident of Khadki, Tq. Nagar, a
driver and owner of truck bearing No. MTG-1591
lodged First Information Report at Newasa Police
Station. According to him on 5th April, 2005, he
loaded wooden logs in his truck at Nagpur and
started to come to Pune. In the night of 7th April,
2005, he was proceeding by Aurangabad-Ahmednagar
road. At about 3.30 a.m., he came to Anand Dhaba
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near Chinchora Phata, and parked his truck there
for answering the nature's call. When he came back
to his truck and was examining his loaded truck,
he saw some persons were assaulting other truck
drivers who had halted at Anand Dhaba. 4-5 persons
also came to him. One of them caught hold color of
his shirt and asked him whether he was driver.
When he replied affirmatively, one of them abused
him and asked him to take out money and put a
pistol on his forehead. One of them hit on his
head with some hard object. Therefore, the
informant got afraid of and he took out money from
his pocket and handed over the amount of
Rs.1,000/-. According to him, he saw the dacoits
in the light in front of Dhaba. The person who put
pistol on him, was wearing blackish jin pant and
blue half T-Shirt. The person who took amount from
him was wearing green full pant and bluish T-shirt
and white shoes. The person who assaulted him on
his head, was wearing blackish full pant, blackish
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shirt and shoes. Others were wearing full pant and
bluish T-Shirt. Thereafter, all the said persons
went towards another truck driver and robbed him.
They robbed the informant as well as other truck
drivers. They all were in the age group of 20 to
25 years. Within short time, they left the place.
(B) Thereafter, owner of the Dhaba gave a
telephonic message to Newasa Police Station.
Newasa Police informed the control room. They
gave intimation to all night round police parties
by wireless. A night round police party was near
Newasa Phata. They received information about the
said dacoity, therefore they were proceeding
towards the spot of incident. When they were
searching for the culprits, they found that six
persons were moving on two motorcycles, three on
each. The police party gave signal to stop, but
the motorcycles in the process, collided with each
other and slipped. The persons traveling thereon,
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ran away in dark. While chasing them, police party
found shoes, banyan etc., which were collected.
(C) The police declared Nakabandi of the area
and nabbed six accused, who were found traveling
in a jeep. Police took search of their person and
found some cash, a knife, country-made pistol and
other articles from the accused. Police also
conducted identification parade with the help of
dog squad. They arrested the accused and also
seized two motorcycles which were left by the
accused. The accused were identified by the
witnesses at the police station.
(D) Before that, the informant had been to Newasa
Police Station and lodged a report against unknown
persons for having committed dacoity and for
having robbed him and other tuck drivers at the
point of knife and revolver. At his instance, CR
No. 69 of 2005 came to be registered at Newasa
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Police Station for the offences punishable under
Section 395 read with 397 of IPC. The accused
were nabbed at Taklibhan. Their clothes were
attached under panchanama. The injured accused
were sent for medical examination. The
Investigating Officer also visited the spot of
incident, prepared spot panchanama. He recorded
statements of the witnesses and also sent the
country-made revolver to forensic expert for
examination.
(E) After completion of the investigation, the
Investigating Officer filed charge-sheet under
Section 395, 397 of IPC and under section 4 and 25
of the Arms Act, in the Court of the Judicial
Magistrate, First Class, Newasa. The Judicial
Magistrate, First Class, Newasa has committed the
case to the Court of Sessions, Shrirampur in due
course.
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6. A charge for an offence punishable under
Section 395, 397 of IPC, and under sections 4 and
25 of the Arms Act was framed against all the
accused and the same was explained to them. The
accused persons pleaded not guilty and claimed to
be tried, with the defence of total denial.
7. After recording the evidence and
conducting full-fledged trial, the trial Court
convicted accused Nos. 1 to 3 for the offences
afore-stated. Hence, Criminal Appeal No. 160 of
2007 is filed by original accused No.2- Munir
Rustum Shah and Criminal Appeal No. 97 of 2008 is
filed by accused No.3 Bhimrao Shekha Salam. The
trial court acquitted accused Nos. 4 to 6 from all
the offences with which they were charged. Hence,
the State has filed Criminal Appeal No. 391 of
2008 against the acquittal accused Nos. 4 to 6.
8. Learned counsel appearing for the
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Appellants in Criminal Appeal Nos.160 of 2007 and
97 of 2008 submits that both the Appellants had
been falsely implicated in the crime and they are
innocent. It is submitted that initially the First
Information Report (FIR) was lodged against 5-6
unknown persons. The incident took place on 7 th
May, 2005, at about 3.30 a.m., and the accused
were apprehended at about 7.00 a.m. There is no
conclusive evidence against the Appellants that
really they had committed the crime. All the
accused persons were strangers and they were not
known to any of the prosecution witnesses. The
Investigating Officer has not carried out the
investigation in proper manner. When the
prosecution case is that some unknown persons had
assaulted and robbed truck drivers at Anand Dhaba,
it was incumbent upon the investigating officer to
conduct test identification parade so as to
identify the culprits beyond reasonable doubt, but
in the present case in hand, no test
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identification parade is conducted. Thus, it is
doubtful whether the Appellants have really
committed the crime in question. It is submitted
that there is variance in the oral account of the
prosecution witnesses. In respect of recovery of
country-made revolver, different prosecution
witnesses have given different version and thus it
is doubtful whether really revolver was recovered
from any of the accused person. Learned counsel
submits that, so far as the recovery of the knife
is concerned, the same is not at all believable,
as such type of knife is easily available in the
open market to anybody. There is no consistency
in the evidence of prosecution witnesses and
therefore the same is not at all truthful and
trustworthy. Before the trial Court, there were in
all six accused persons, but on the same set of
evidence the trial Court has convicted and
sentenced three accused persons including the
Appellants, but the trial Court has acquitted
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other three accused from all the offences with
which they were charged. It is submitted that the
findings recorded by the trial Court are perverse.
Therefore, learned counsel submits that both the
Appeals deserve to be allowed.
9. As against this, learned A.P.P. appearing
for the State has supported the findings recorded
by the trial Court while convicting and sentencing
accused Nos.1 to 3. So far as Criminal Appeal
No.391 of 2008 is concerned, learned A.P.P.
submits that all the six accused, in furtherance
of their common intention, assaulted truck drivers
with dangerous weapons like knife and country-made
revolver and robbed them, therefore all the
accused persons should have been convicted and
sentenced. It is submitted that the findings
recorded by the trial Court while acquitting
accused Nos.4 to 6 are perverse. Within few hours
from the incident, all the accused persons were
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apprehended by the police and in their personal
search incriminating articles such as knife,
country-made revolver, wrist watch and robbed
amount was recovered. All the prosecution
witnesses have conclusively identified the accused
persons before the Court. Therefore, it is
submitted that Criminal Appeal No.391 of 2008
deserves to be allowed. In support of his
submissions, learned A.P.P. placed reliance upon
the exposition of law in the case of in the case
of Mukesh and another vs. State (NCT of Delhi)
and others, Baiju Alias Bharosa vs. State of
Madhya Pradesh1, Mukund Alias Kundumishra vs. State
of Madhya Pradesh2, and 3.
10. Heard learned counsel appearing for the
Appellants-accused and learned APP appearing for
the State, at length. With their able assistance,
we have carefully perused the entire notes of
1 1978 AIR(SC) 522
2 1997 AIR(SC) 2622
3 (2017) 6 SCC 1
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evidence so as to find out whether reasons
assigned and findings recorded by the trial Court
are based upon proper appreciation of evidence on
record or otherwise.
11. We have perused the entire notes of
evidence placed on record by the prosecution.
Looking to the evidence which has come on record
and the submissions advanced by learned counsel
appearing for the parties, there does not appear
to be dispute regarding the fact that in the night
of 7th April, 2005, dacoity took place at Anand
Dhaba near Chinchora Phata, in which truck
drivers, who had parked their trucks at the said
place, were assaulted and robbed by some culprits.
Similarly, the prosecution has proved that
prosecution witnesses, PW-9 Ramdas Kothule
(informant), PW-19 Purushottam Kadam sustained
injuries during the process of dacoity. Thus, the
prosecution has proved that during the process of
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dacoity, the culprits have attacked on the persons
of some truck drivers and robbed amount from their
persons. Therefore, from the perusal of entire
evidence brought on record by the prosecution, it
appears that the occurrence of dacoity and in the
said process, injuries sustained by the
prosecution witnesses is not seriously disputed by
the defence. Bt the defence has disputed the
participation of accused Nos.2 and 3 in said
dacoity.
12. PW-9 Ramdas Bhausaheb Kothule is the
informant. His evidence shows that he is owner of
a truck and he himself drives the same. He deposed
that the incident occurred on 7th April, 2005 at
about 3.30 a.m., at Anand Dhaba near Chinchora
Phata on Nagar-Nagpur road. He parked his vehicle
at Anand Dhaba for answering nature's call and
when returned back, he saw that the accused had
assaulted other drivers and extracted money from
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their pockets. He further deposed that thereafter
two or three amongst them came near him. Amongst
the accused, Munir Shaha caught hold his color of
shirt. Accused Bhimrao Salam came near the
informant and pointed a revolver at his head and
asked to take out money. His evidence further
discloses that accused Bhimrao took out Rs.1000/-
from his pocket and handed over to accused No.1
who caught hold his color. Some of the truck
drivers then started gathering and therefore
accused ran away. He further deposed that he
inquired from other drivers and found that one
Purushootam was also robbed for Rs.4500/-, another
driver from Baramati was also robbed for
Rs.5500/-. The informant has narrated about the
clothes which were on the person of the accused
and further deposed that they were within the age
group of 20 to 22 years. He identified the accused
persons in the Court.
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13. We have carefully perused the FIR lodged
by PW-9 Ramdas Kothule. It shows that FIR was
lodged against some unknown persons. The FIR shows
that when the informant parked his truck at Anand
Dhaba, he noticed that some unknown persons were
assaulting the truck drivers, and after some time
4-5 persons came to him, assaulted him and robbed
him. The informant only described about the
clothes on the persons of the said assailants.
Therefore, the FIR was lodged against 5 to 6
unknown assailants.
14. Thus, this is the case of assault and
robbery by 5-6 unknown persons, in which proper
identification of the accused is most important.
The evidence of the informant shows that he
identified accused No.2- Munir Shah and accused
No.3 - Bhimrao Salam in the Court. No doubt,
identification of the accused by the prosecution
witnesses in the Court is admissible, but the same
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should be conclusive. The Supreme Court in the
case of Mukesh and another vs. State (NCT of
Delhi) and others, cited supra, in Para 146 of the
Judgment, observed as under:
"146. In Manu Sharma v. State (NCT of
Delhi)4, the Court, after referring to
Munshi Singh Gautam v. State of M.P.5,
Harbajan Singh v. State of J&K6 and
Malkhansing7, came to hold that the
proposition of law is quite clear that even
if there is no previous TIP, the court may
appreciate the dock identification as being
above board and more than conclusive."
. However, in the present case in hand if
the evidence of the informant is carefully
perused, in Para-2 of his evidence, informant
deposed that Munir Shah (accused No.2) caught
hold color of his shirt, but in another breath he
specifically deposed that:
4 (2010) 6 SCC 1
5 (2005) 9 SCC 631
6 (1975) 4 SCC 480
7 (2003) 5 SCC 746
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"I took out two currency notes of Rs.500/-
from my pocket and handed over to accused
No.1 who caught hold my color."
. It is pertinent to note that accused No.1
is Rajendra Ghewande and not Munir Shah. Thus, it
appears that the identification of the accused is
not conclusive and possibility of mistaken
identity cannot be ruled out.
15. PW-3 Kantilal Bhagwan Nimbhore is the
another truck driver, who was also robbed. His
evidence shows that in the night of 6 th April,
2005, he parked his truck at Anand Dhaba and at
about 3.30 a.m. two persons boarded in the cabin
of the truck having possessed knife and a torch.
His evidence further shows that the person who
possessed knife, caused injuries to his forehead
and took cash amount of Rs.5500/- from his pocket.
His evidence further shows that those two persons
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then got down from the truck and went away. He
then saw that along-with those two persons, some
more persons were with them and they were total
5-6 persons. He identified accused Munir Shah in
the Court. He was unable to identify the person
who was possessing torch. Thus, the evidence of
PW-3 Kantilal shows that some 5-6 unknown persons
assaulted him and robbed him. Though this witness
has identified accused No.2 Munir Shah in the
Court, he was unable to identify another person
who was possessing torch at the time of incident.
Thus, the identification is not conclusive. When
this witness was unable to identify another
culprit, then it is doubtful whether his
identification in respect of accused No.2 was
proper.
16. PW-6 Sakharam Ananda Baraskar is the
owner of Anand Dhaba, where the incident of
robbery and assault took place. His evidence shows
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that on 7th April, 2005, at about 3.00 a.m., he
heard noise of dash to doors and saw that 2-3
persons were standing near one truck and 2-3
persons were in the cabin of the truck, talking
with driver. One amongst those three persons came
to him with a knife, threatened him and asked him
to sleep quietly. His evidence further shows that
he was watching that some persons were assaulting
drivers of respective trucks, and the persons who
were involved in the crime were about six in
number. Those persons looted cash from the
concerned drivers at the point of revolver and
knife etc. and thereafter they proceeded towards
Aurangabad road. His evidence further shows that
the accused before the Court are same persons who
have looted the drivers and threatened him. Thus,
evidence of PW-6 Sakharam Baraskar shows that the
accused were unknown persons and he has made
general statement that the accused before the
Court are same persons who have looted and
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threatened them. No test identification parade was
conducted when there was ample opportunity to the
investigating officer to conduct the test
identification parade, as after the incident
within few hours the accused were apprehended, and
this witness has identified the accused persons in
the Court after about 1 ½ year of the incident.
Even the trial Court has disbelieved the evidence
of PW-6 Sakharam Baraskar in respect of
identification of accused Nos.4 to 6, but accepted
that this witness has identified accused Nos.1
to 3.
17. PW-19 Purushottam Vilas Kadam, is the
another truck driver who was also assaulted and
robbed by the culprits. His evidence shows that
two unknown persons assaulted him by knife and
snatched an amount of Rs.4500/- from his person.
His evidence further shows that the other person
snatched Casio company wrist watch from his hand
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and the same person also assaulted to the cleaner
of his truck and snatched his wrist watch. This
witness also deposed that all six accused before
the Court were present at the scene of offence
when incident occurred. However, this witness has
also not named any of the accused.
18. We have carefully perused the oral
evidence of PW-21 Krushna Chataru Soni, PSI,
Newasa Police Station, who was the investigating
officer. He deposed about the manner in which he
has carried out the investigation of the crime.
During the course of cross-examination, he
specifically stated that he has not conducted test
identification parade of accused persons for
identifying the accused persons through victim. He
further stated that he did not carry out such
parade because the victims were already in the
police station when accused were brought in the
police station. It is significant to note that in
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his examination-in-chief PW-21, investigating
officer has specifically deposed that on 21st June,
2005, he informed Taluka Executive Magistrate,
Newasa to conduct identification parade, because
the J.M.F.C. has permitted to take identification
parade. As observed earlier, the incident took
place at about 3.30 a.m. on 7th April, 2005, and on
the same day at about 8.00 a.m. the accused were
apprehended by the police. Thus, there was ample
opportunity for the Investigating Officer to
arrange for test identification parade for proper
identification of the real culprits. However, for
the best reasons known to the prosecution, test
identification parade was not at all carried out
by the Investigating Officer.
19. Upon careful perusal of the impugned
Judgment and order passed by the trial Court, in
Para-37 of the Judgment, the trial Court has also
specifically observed that, in the case in hand it
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is a fact that there was no test identification
parade arranged. Thus, it appears that in the
present case, the investigating officer has not
carried out the investigation in proper manner.
When it was the case of robbery and assault by
unknown/unidentified persons, it was incumbent
upon the investigating officer to hold proper test
identification parade in order to identify the
real culprits.
20. So far as the seizure of the cash amount
from the accused persons, we find considerable
force in the argument advanced by learned counsel
appearing for the Appellants- accused Nos.2 and 3
that, when there were no special identification
marks on the currency notes robbed from respective
truck drivers, it cannot be conclusively said that
the amount seized from the accused persons was the
same which was robbed from the truck drivers. So
far as the seizure of wrist watch is concerned,
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the evidence on record does not show that any of
the truck driver has specifically identified that
the said wrist watch which was seized from the
accused was belonged to him. Further, the evidence
of PW-14 Shivappa Durgappa Mallesh, Police
Inspector attached to Shrirampur Taluka Police
Station at the relevant time, shows that when they
apprehended accused persons, in the body search of
the accused persons, accused Kale (accused No.4)
was found to have possessed cash amount and one
wrist watch of Casio Company, along with some
other articles. Thus, it appears that said wrist
watch was recovered from the person of accused
No.4 Mahesh Kale. It is relevant to note that, as
none of the prosecution witnesses were able to
identify accused No.4 Mahesh Kale, the trial Court
has acquitted accused No.4 from all the charges
with he was charged, along with accused Nos.5
and 6.
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21. So far as the seizure of country made
revolver is concerned, there is variance in the
deposition of various witnesses, from whose person
the said revolver was seized and who was
possessing the said revolver at the time of
incident. PW-2 Nanasaheb Kundlik Pawar is the
panch witness, in whose presence personal search
of the accused persons was taken. His evidence
shows that accused Sanjay was found to have
possessed pistol. It is pertinent to note that
before the trial Court, there were in all six
accused persons but their names are different and
none of them is having name as Sanjay. During the
course of cross-examination, PW-2 stated that
pistol was found with one person Madavi, but he
cannot identify who is the said accused before the
Court. PW-7 Arif Bhikan Shaikh is the driver of
the Jeep in which the accused were travelling when
they were arrested. His evidence shows that police
took personal search of the accused while in
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police station and those persons were found in
possession of money but he did not remember what
else was found with the above persons. PW-10
Babaji Buwaji Garje is the police head constable,
who was one of member of the police party who took
personal search of the accused after their arrest.
His evidence shows that country made revolver was
seized from the person of accused No.2 Munir Shah.
Then, in respect of seizure of revolver, there is
evidence of PW-13 Shaikh Nijamoddin Salauddin,
police constable, who was also in the police party
who took personal search of the accused persons
immediately after their arrest. His evidence shows
that they conducted personal search of each
accused in the presence of panchas. They asked
each accused his name, and accused disclosed their
names as Sanjay Tadavi, Munir Shah, Kale etc. His
evidence further discloses that one country made
revolver was found with Sanjay Tadvi. His evidence
shows that accused No.3 - Bhimarao is the person
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who told his name as Sanjay Tadvi and from his
person said revolver was seized. The evidence of
PW-13 Shaikh discloses that he was again given
opportunity to identify the person by name Sanjay,
and he identified accused No.2- Munir Shah from
whose person revolver was seized. PW-14 Shivappa
Durgappa Mallesh was the police inspector, and at
the relevant time he was attached to Shrirampur
Taluka Police Station. His evidence shows that
after arrest of the accused, they conducted body
search of each of the accused and in the body
search of accused Madavi, they found country made
revolver. Thus, upon careful perusal of the oral
evidence of all these prosecution witnesses, it is
crystal clear that there is no consistency in the
evidence of these witnesses regarding the recovery
of revolver from the person of particular accused.
Therefore, it is doubtful whether country made
revolver was really recovered from the person of
any of the accused. So far as the recovery of
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knife is concerned, we find considerable force in
the argument advanced by learned counsel appearing
for the Appellants that such type of knife is
easily available in the open market.
22. In the present case in hand, though it is
the case of the prosecution witnesses that they
were assaulted and robbed by some unknown persons,
no test identification parade was conducted. As
observed earlier, though some of the prosecution
witnesses have identified some accused persons
before the Court, the said identification is not
beyond reasonable doubt. Thus, the prosecution has
not conclusively proved that the Appellants and
the Appellants are the only persons who
participated in the robbery. Therefore, it is
unsafe to base the conviction of the Appellants -
accused Nos.2 and 3, on the basis of such scanty
evidence. We have discussed the evidence brought
on record by the prosecution. There is no
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consistency in the evidence of the prosecution
witnesses and the evidence of the prosecution
witnesses is not at all trustworthy and reliable.
23. We have carefully perused the impugned
Judgment passed by the trial Court and we find
that the trial Court has recorded perverse
findings. On the same set of evidence, the trial
Court has convicted and sentenced accused Nos.1 to
3. But so far as accused Nos.4 to 6 are concerned,
the trial Court has recorded the finding in Para
60 of the Judgment that, from the evidence on
record it appears that accused Nos.4 to 6 may be
from the same gang, however, there is gap between
'may be' and 'must be' and the said gap was
required to be filled up with cogent and reliable
evidence on record. The trial Court further
observed that, the circumstances that clothes of
accused Nos.4 to 6 were of the same type as
described by the witnesses and mud stains were
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found thereon, are not sufficient to record
conviction against rest of three accused (accused
Nos.4 to 6). The trial Court further observed
that, so also it is not sufficient circumstantial
evidence that accused Nos. 4 to 6 were found
traveling in the same jeep along with other three
accused who were identified by the witnesses. The
trial Court recorded the finding that, as none of
the witnesses have identified accused Nos.4 to 6
nor any incriminating article was found in the
possession, therefore accused Nos.4 to 6 are
entitled to get benefit of doubt and they are
entitled to be acquitted. As observed earlier, on
the same set of evidence, the trial Court
convicted and sentenced accused Nos.1 to 3, by
observing that prosecution witnesses had
identified accused Nos.1 to 3 having participated
in the robbery. So far as identification of the
accused by the prosecution witnesses is concerned,
we have already observed that no test
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identification parade was conducted and thus
identification of accused Nos.2 and 3 was also
not conclusive. So far as recovery of so-called
incriminating articles from accused Nos.2 and 3 is
concerned, there is variance in the evidence of
prosecution witnesses, really from whose person
the said revolver was recovered and therefore it
is doubtful whether really such revolver was
recovered. So far as recovery of knife is
concerned, such type of knife is easily available
to anybody in the open market. Except alleged
revolver and knife, nothing incriminating material
alleged to have been recovered from accused Nos.2
and 3. Therefore, we are of the considered opinion
that, on such scanty evidence, it is unsafe to
base conviction and sentence against accused Nos.2
and 3. Therefore, both the Appeals filed by
accused Nos.2 and 3 deserve to be allowed.
24. So far as Criminal Appeal No.391 of 2008
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filed by the State against the acquittal of
accused Nos.4 to 6 is concerned, we are of the
opinion that the trial Court has taken possible
view while acquitting accused Nos.4 to 6. After
considering entire evidence on record, the trial
Court has specifically recorded the finding that
none of the prosecution witnesses have identified
accused Nos.4 to 6 nor any incriminating article
was found in their possession and thus by giving
benefit of doubt, the trial Court acquitted
accused Nos.4 to 6. Thus, we are of the opinion
that while acquitting accused Nos.4 to 6 the trial
Court has taken a possible view. Even from the
evidence on record if two views are possible, the
same is no ground to reverse the acquittal.
25. In the light of discussion in foregoing
paragraphs, we are of the considered view that the
evidence brought on record by the prosecution is
not cogent, sufficient and convincing so as to
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prove the offence against the Appellants beyond
reasonable doubt. In the case of Sharad
Birdhichand Sarda vs. State of Maharashtra8, the
Supreme Court has held that, the prosecution must
stand or fall on its own legs and it cannot derive
any strength from the weakness of the defence. It
is not the law that where there is any infirmity
or lacuna in the prosecution case, the same could
be cured or supplied by a false defence or a plea
which is not accepted by a Court. It is to be born
in mind that the case in hand is a case of
circumstantial evidence and if two views are
possible on the evidence on record, one pointing
to the guilt of the accused and other his
innocence, the accused is entitled to have the
benefit of one which is favourable to him. Thus,
there is no substance in the Appeal filed by the
State against the acquittal of accused Nos.4 to 6
and the same deserves to be dismissed.
8 (1984) 4 S.C.C. 166
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26. The evidence brought on record by the
prosecution is not cogent, sufficient and
convincing so as to prove the offence against
accused Nos.2 and 3 beyond reasonable doubt. On
the whole there is no cogent, clinching and
sufficient evidence showing the involvement of
accused Nos.2 and 3. Under these circumstances,
original accused Nos.2 and 3 are entitled for the
benefit of doubt. So far as the Appeal filed by
the State against acquittal of original accused
Nos.4 to 6 is concerned, there is no substance in
the said Appeal and the same deserves to be
dismissed. Hence, we pass the following order:
O R D E R
(I) Criminal Appeal No.160 of 2007 filed by original accused No.2 - Munir Rustum Shah and Criminal Appeal No.97 of 2008 filed by original accused No.3 - Bhimrao ::: Uploaded on - 11/01/2019 ::: Downloaded on - 15/01/2019 05:39:42 ::: cria160.07+ 38 Shekha Salam are allowed.
(II) The Judgment and Order dated 10th April, 2007, passed by the Additional Sessions Judge, Shrirampur in Sessions Case No.29 of 2005, thereby convicting and sentencing Accused No.2 - Munir Rustum Shah and Accused No.3 - Bhimrao Shekha Salam for the offence punishable under Sections 395 read with 397 of the Indian Penal Code, is quashed and set aside.
(III) The Judgment and Order dated 10th April, 2007, passed by the Additional Sessions Judge, Shrirampur in Sessions Case No.29 of 2005, thereby convicting and sentencing Accused No.3 - Bhimrao Shekha Salam for the offence punishable under Sections 4 and 25 of the Arms Act, is quashed and set aside.
(IV) Original accused No.2 - Munir Rustum Shah and accused No.3 - Bhimrao Shekha Salam are acquitted of the offence punishable under Sections 395 read with 397 of the Indian Penal Code. Original accused ::: Uploaded on - 11/01/2019 ::: Downloaded on - 15/01/2019 05:39:42 ::: cria160.07+ 39 No.3 - Bhimrao Shekha Salam is acquitted of the offence punishable under Section 4 and 25 of the Arms Act. Fine amount, if deposited as per the impugned Judgment and Order, be refunded to Original accused Nos.2 and 3.
(V) The Appellants - Munir Rustum Shah and Bhimrao Shekha Salam have been released on bail during the pendency of these Appeals. Their bail bonds shall stand cancelled.
(VII) Appellants - Munir Rustum Shah and Bhimrao Shekha Salam shall furnish Personal Bond of Rs.15,000/- each and surety in the like amount, under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Shrirampur.
(VII) Criminal Appeal No.391 of 2008 filed by the State against acquittal of original accused Nos.4 to 6 is hereby dismissed. The Order passed by the trial Court to the extent of acquitting original accused Nos.4 to 6 from all the offences with which they were charged, is hereby confirmed.
::: Uploaded on - 11/01/2019 ::: Downloaded on - 15/01/2019 05:39:42 :::cria160.07+ 40 (VIII) Fees and expenses of Shri A.S. Shelke, appointed counsel for Appellants - accused Nos.2 and 3 in Criminal Appeal Nos.160 of 2007 and 97 of 2008 are quantified at Rs.8,000/- (Rs. Eight Thousand Only). We direct the High Court Legal Services Sub-Committee Aurangabad to pay the aforesaid fees and expenses to the learned appointed Counsel within four weeks from receipt of copy of this Judgment.
[R.G. AVACHAT, J.] [S.S. SHINDE, J.] asb/JAN19 ::: Uploaded on - 11/01/2019 ::: Downloaded on - 15/01/2019 05:39:42 :::