Bombay High Court
Mr. Vishal @ Dadu S/O Madanlal Ramteke, ... vs State Of Maharashtra, Through Its ... on 23 June, 2017
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeals590.13; 58.14, & 357.15 1
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.590 OF 2013
AND
CRIMINAL APPEAL NO.58 OF 2014
AND
CRIMINAL APPEAL NO.357 OF 2015
CRIMINAL APPEAL NO.590 OF 2013
1. Mr. Vishal @ Dadu s/o Madanlal Ramteke
Age about 23 years, Occupation : at present in
Jail, R/o (At present at jail at Nagpur).
2. Mr. Samyak s/o Dnyaneshwar Gajbhiye,
age about 26 years, Occupation : Nil
(At present in Central Jail at Nagpur)
both are r/o Bhimnagar, Issasani,
MIDC, Nagpur. ..... Appellants.
:: VERSUS ::
State of Maharashtra, through its
P.S.O. P.S. Sonegaon, District Nagpur. ..... Respondent.
==============================================================
Shri H.P. Lingayat, Counsel for appellant No.1.
Shri C.R. Thakur, Counsel for appellant No.2.
Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================
.....2/-
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Judgment
apeals590.13; 58.14, & 357.15 1
2
CRIMINAL APPEAL NO.58 OF 2014
Vikas @ Vikky s/o Mohan Rahangdale
Aged 23, Occupation Labour
R/o Bhim Nagar, Issasani, MIDC
Nagpur.
(At present Central Jail Nagpur). ..... Appellant.
:: VERSUS ::
State of Maharashtra
Through P.S.O., P.S. Sonegaon
Vide Crime No.150/2012. ..... Respondent.
==============================================================
Shri A.K. Bhangde, Counsel for the appellant.
Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================
CRIMINAL APPEAL NO.357 OF 2015
Rajesh @ Radhe s/o Itwari Shahu,
Aged about 27 years, Occupation :
R/o Bhimnagar, Issasani,
MIDC, Nagpur. ..... Appellant.
:: VERSUS ::
The State of Maharashtra
Through Police Station Officer,
.....3/-
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Judgment
apeals590.13; 58.14, & 357.15 1
3
P.S. Sonegaon, Nagpur. ..... Respondent.
==============================================================
Shri R.P. Thote, Counsel appointed for the appellant.
Shri N.R. Rode, Addl.P.P. for the respondent/State.
==============================================================
CORAM : V.M. DESHPANDE, J.
DATE : JUNE 23, 2017.
COMMON JUDGMENT
1. These 3 appeals arise out judgment and order of conviction passed by learned Ad hoc Additional Sessions June-1, Nagpur dated 30.10.2013 in Sessions Trial No.154 of 2013. Therefore, these 3 appeals are decided and disposed of by this common judgment.
2. Criminal Appeal No.590 of 2013 is filed by original accused No.3. Vishal @ Dadu s/o Madanlal Ramteke and original accused No.4 Samyak s/o Dnyaneshwar Gajbhiye.
Criminal Appeal No.58 of 2014 is filed by .....4/-
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Criminal Appeal No.357 of 2015 is filed by original accused No.2 Rajesh @ Radhe s/o Itwari Shahu.
In this common judgment, appellants will be referred to by their original positions.
3. By the impugned judgment and order of conviction, accused are convicted for the offence punishable under Section 395 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.3,000/- by each of them and in default of payment of fine amount to suffer further simple imprisonment for 6 months.
They are also convicted for the offence punishable under Section 452 of the Indian Penal Code .....5/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 5 and they are directed to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.2000/- by each of them and in default of payment of fine amount to suffer further simple imprisonment for 2 months.
Also, accused are convicted for the offence punishable under Section 342 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.1,000/- by each of them and in default of payment of fine amount to suffer further rigorous imprisonment for one month.
Learned Judge of the Court below directed that all sentences of accused persons shall run concurrently and also set-off is given to them since they were in jail.
4. In these appeals, learned counsel Shri H.P. .....6/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 6 Lingayat and learned counsel Shri C.R. Thakur appeared in Criminal Appeal No.590 of 2013 for accused Nos.3 and 4 respectively; learned counsel Shri A.K. Bhangde appeared for accused No.1 in Criminal Appeal No.58 of 2014, and learned counsel Shri R.P. Thote appointed by the High Court Legal Services Sub Committee at Nagpur appeared for accused No.2 in Criminal Appeal No.357 of 2015.
The State was represented by learned Additional Public Prosecutor Shri N.R. Rode in all these appeals.
5. The prosecution case is as under:
PW18 Tukaram Kondiba Wahile was attached to Sonegaon Police Station from September 2012. On 17.12.2012, he was on duty at Airport with his squad. He .....7/-::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 :::
Judgment apeals590.13; 58.14, & 357.15 1 7 received a phone call from a Police Constable Dinesh that dacoity is committed in a house situated at Pragati Colony, Sahakar Nagar. He, therefore, directed PW13 Police Sub Inspector Rahul Kamaji Suryatal to visit the spot immediately. He also informed the occurrence to his superior and left for the spot.
6. PW13 Suryatal was posted in front of the Pride Hotel near Airport. At about 1:30 p.m., he received a phone call from PW18. As per the directions of PW18 Tukaram Wahile, PW13 Suryatal immediately rushed to the venue. PW18 also reached there.
7. PW18 Tukaram Wahile made preliminary inquiry with a lady who was present in the house. She was frightened. Thereafter, PW18 Tukaram Wahile directed PW13 Police Sub Inspector Suryatal to record the complaint of said lady and prepare spot .....8/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 8 panchanama.
8. PW13 Police Sub Inspector Suryatal recorded her complaint. He noticed that there were scratches on the hands of said lady. The said lady disclosed her name as Smt. Shashikala Mohanlal Jaiswal (PW1). Her report Exhibit 20 was reduced into writing.
As per her report, she resides along with her husband Mohanlal Jaiswal, a High Court practitioner, her elder son Niraj Jaiswal, and her daughter-in-law Manisha Jaiswal. Her younger son Dhiraj resides separately at Sahakar Nagar along with his family.
Her report further states that her husband, a practising lawyer at High Court, leaves house at 10:00 a.m. in the morning and normally returns at 04:00 p.m. in the evening. Son Niraj is having Wine Shop at Wani.
.....9/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 9 Therefore, normally he stays there. The wife of Niraj, at the relevant time, was residing in the house of Dhiraj in view of her delivery.
9. As per her report, on 17.12.2012, in the morning, her husband left the house for his work. She, therefore, closed the outer glass-door of the house and was alone in the house. At 11:45 hours, she was sweeping gallery. That time, she heard some mysterious and uncommon noise from inside the house. She noticed a boy, whose face was covered by scarf, was standing on the door of bedroom. He gave a push to her and fell her on the cot. The said boy uttered that they (complainant) rob poor persons. He also said that they are not in a habit of theft. However, they are in need of money. He demanded valuables from her. That time, two other persons came and they tied her hands and legs. That .....10/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 10 time, first boy removed his scarf and extended threats that if she raises any alarm, she will lose her life. One person was having a knife in his hand. Thereafter, they demanded keys of almirahs. On her refusal, they broke open almirah and also broke open an another almirah which was kept in other bedroom. At the time of leaving the house, they came to her and snatched all her gold ornaments from her person. She gave a description of dacoits in the complaint itself. While leaving the house, they untied Shashikala. Therefore, Shashikala came to the hall of her house and made a phone call to her son PW2 Dhiraj Mohanlal Jaiswal and informed about the incident. One Khonde, a neighbour, came and untied her completely. Thereafter, PW2 Dhiraj Jaiswal came to house and noticed that various gold ornaments and cash of Rs.4.00 lacs were looted .....11/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 11 from the house. As per the complaint, total loot was worth of Rs.9,77,500/-. In the complaint, Shashikala raised a suspicion on their driver who was sacked from service by Niraj.
10. PW13 Police Sub Inspector Suryatal, thereafter, prepared a spot panchanama Exhibit 48 in the presence of panchas and registered a crime vide Crime No.150 of 2012 against unknown persons for the offences punishable under Sections 392, 452, and 342 read with Section 34 of the Indian Penal Code. Printed FIR is at Exhibit 58.
11. PW18 Tukaram forwarded a special report to his superior about the incident. He also recorded statements of Advocate Mohanlal Jaiswal and Dhiraj Jaiswal and other witnesses. On 18.12.2012, Dhiraj Jaiswal handed over an envelope to the investigating .....12/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 12 officer which was received by his mother on the day of incident in the name of Dr. Shilpi Agrawal. The said envelope was seized by the investigating officer under seizure memo Exhibit 50. The said envelope was having 3 blood stains. On 27.12.2012, he handed over investigation to PW15 Assistant Police Inspector Shri Ravindra Mansing Kadam of the Crime Branch.
12. PW15 Assistant Police Inspector Ravindra Kadam received some confidential information. Therefore, he went near the C.R.P.F. Gate and caught hold one person. During interrogation, he disclosed his name as Vikas Rahangdale. It was disclosed by said Vikas Rahangdale that he was serving in the house of Advocate Jaiswal and having full information about his house and, therefore, he along with his other friends committed an act of dacoity in the house of Advocate .....13/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 13 Jaiswal. He arrested Vikas Rahangdale on 27.12.2012. Said Vikas also revealed name of his accomplice Rajesh Shahu.
13. During remand, accused No.1 Vikas Rahangdale made a disclosure statement in the presence of PW4 a pancha Sanjay Punaji Farkale and agreed to show the place where he has kept gold ring, money, and motorcycle which was used at the time of commission of offence. Said memorandum statement is at Exhibit 33. Consequent upon the said disclosure statement, police party with panchas and accused No.1 Vikas Rahangdale had been to his house from where he took out cash of Rs.3,000/- and gold ring from almirah of his house and also shown motorcycle. These articles were seized under recovery panchanama Exhibit 34.
14. On 29.12.2012, accused No.2 Rajesh Shahu .....14/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 14 gave his confessional statement and agreed to show the place where he concealed gold ornaments and money. The said confessional statement is at Exhibit 67. Accordingly, a pancha witness and accused No.2 Rajesh Shahu with police party went to his house from where beneath the mattress on cot he took out Rs.13,800/-, gold bangles. Said recovery panchanama is at Exhibit 36 and is duly proved by PW6 Prasanna Prabhakar Jichkar. The other two accused persons were arrested on 30.12.2012.
On 2.1.2013, accused No.3 Vishal Ramteke gave his memorandum statement Exhibit 38 in the presence of PW7 pancha witness Mahesh Wamanrao Mohite and on the basis of his memorandum statement, from the place which was shown by him i.e. his house, he dug out a polythene bag from floor which was .....15/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 15 containing Rs.31,500/-, one Mangalsutra, one gold Chain, and two gold rings. Said panchanama is at Exhibit 39.
Similarly, accused No.4 Samyak Dnyaneshwar Gajbhiye also gave his memorandum statement vide Exhibit 40 and consequent to his recovery statement, amount of Rs.34,600/-, two gold bangles, gold earrings, one gold chain having beads (mani), and also one gold Mangalsutra having gold locket, which were concealed in cot in the bedroom of his house, and also one motorcycle which was used at the time of commission of offence, were recovered. Said recovery pachanama is at Exhibit 41.
15. On 3.1.2013, accused No.1 Vikas Rahangdale again gave his disclosure statement in the presence of PW8 Pankaj Kamble. Said disclosure statement is at Exhibit 43 by which he agreed to show the place where .....16/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 16 he kept gold bangles, locket, and rings which came to his share after booty was distributed amongst the accused persons. He disclosed that he has concealed said bangles beneath a big stone at Panchaseel Nagar Zopadpatti. Accordingly, recovery was made as per recovery panchanama Exhibit 45.
16. All seized articles were taken to the goldsmeath by the investigating officer. 12 receipts were given by the Nagpur Sarafa Association in respect of different articles including their rates. Those receipts are available on record at Exhibit 72. The Nagpur Sarafa Association also issued 12 certificates Exhibits 73 to 84 mentioning carats of concerned gold ornaments. All gold ornaments shown to PW1 complainant Shashikala and she identified those gold ornaments as her. Said identification panchanama is at .....17/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 17 Exhibit 85 .
17. PW15 Assistant Police Inspector Ravindra Kadam also forwarded a letter to the Executive Magistrate for identification parade of the accused persons which was done by PW17 Sanjay Narhar Hardas. After completion of other usual investigation, charge-sheet was filed in the Court of law.
18. The charge was framed against all the accused persons for the offences punishable under Sections 395, 452, and 342 read with Section 34 of the Indian Penal Code. All the accused persons denied the charge and claimed for their Trial. The prosecution has examined in all 18 witnesses and also relied upon various documents duly proved during the course of Trial. The defence of accused persons is of total denial and of false implication. They also examined one DW1 .....18/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 18 Dnyaneshwar Ganesh Gajbhiye, father of accused No.4 Samyak Dnyaneshwar Gajbhiye. Learned Judge of the Court below found the accused persons guilty and, therefore, they were convicted and sentenced. Hence, this appeal.
19. According to learned counsel for the accused persons, accused are falsely implicated in the crime. According to their submissions, the prosecution has not examined any independent witness. They submitted that non-production of statement on record of Advocate Jaiswal and neighbour creates a doubt about case of the prosecution. They further submitted that pancha witnesses, in whose presence memorandum statements and recovery pancha are prepared, are friends of complainant and, therefore, their evidence is required to be rejected. They also pointed out that there are .....19/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 19 omissions in the first information report. They, therefore, submitted that the appeals be allowed. They did not point out any authoritative pronouncement either of the Honourable Apex Court or of this Court to substantiate their submissions.
20. Per contra, learned Additional Public Prosecutor Shri N.R. Rode for the respondent/State strenuously urged before me that the prosecution evidence is cogent and consistent. The prosecution has duly proved its case. He also pointed out that chemical analyzer's report Exhibit 51 shows blood on envelope. He also pointed out that DNA profile Exhibit 51-C shows that blood found on the envelope tallies with DNA profile of accused No.1. He submitted that accused persons were also identified by PW1 complainant Shashikala during the identification parade and also .....20/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 20 identified them in the Court at the time of evidence. He, therefore, prayed that the appeals be dismissed.
21. The first information report is not a last word in the prosecution case rather it is a starting point of the entire investigation. Merely because there are certain omissions in the first information report, which are stated during the course of Trial before the Court by complainant, that cannot be fatal. Here, the first information report was recorded immediately after commission of dacoity. The age of complainant is 65 years. She was in a frightened condition. Therefore, omissions, which are sought to be brought on record, in my view, do not render the prosecution case as untruthful one. Further, omissions are found to be minor in nature.
22. PW1 complainant Shashikala has given a .....21/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 21 detailed account of acts committed by the accused persons. She also stated that when looters were in her house, there was a noise of knocking at the door and one of the accused persons went towards the front door and accepted correspondence given by a courier supplier. Thereafter, said person threw correspondence in the room where she was tied.
23. PW2 Dhiraj Jaiswal corroborates version of PW1 complainant Shashikala by deposing that his mother narrated the incident of envelope to him. Therefore, he searched for the said envelope and after finding, the same was given to Sonegaon Police Station which was seized under seizure panchanama Exhibit 50.
24. PW12 Mohd. Sharik is a postman, who had been to house of PW1 complainant Shashikala on 17.12.2012 in between 11:30 a.m. to 12:00 p.m.. When he .....22/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 22 pressed door bell, there was no response from inside. Thereafter, one boy came from inside the house and he inquired with him about his presence. That time, this prosecution witness replied that he has to deliver a letter and, therefore, he handed over the said letter and obtained his signature. The evidence of this prosecution witness shows, that time he noticed that there was a blood oozing from palm of the said boy. Thereafter, he heard a noise of wife of Advocate Jaiswal and when he made an enquiry with the said boy, he informed that sons of Advocate Jaiswal are quarreling. As per the version of this prosecution witness, when he was wearing shoes, he noticed an another boy was filling currency notes by both of his hands in his pocket. This prosecution witness has also identified two accused persons in the central hall and also identified accused .....23/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 23 Nos.3 and 4 as persons signing on the envelope and filling currency notes.
25. In the present case, except PW5 Dilip Motiram Satpute, all other pancha witnesses have supported the prosecution case. It is also brought on record by the prosecution, during the evidence of PW9 Aryan Tejbali Tekam, that accused accused No.1 Vikas Rahangdale purchased a motorcycle from him for Rs.15,000/- on 8.12.2012. Exhibits 23, 24, 105, and 106 are test identification parade panchanamas. By Exhibit 23 PW1 complainant Shashikala identified accused No.1 Vikas Rahangdale and accused No.4 Samyak Gajbhiye. PW12 Mohd. Sharik identified accused No.3 Vishal Ramteke under Exhibit 105 and accused No.4 Samyak Gajbhiye under Exhibit 106.
26. The submissions of learned counsel for the .....24/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 24 accused persons that no independent witness is examined, require no consideration at all since incident occurred inside 4 walls of the house of PW1 complainant Shashikala. That time she was all alone.
27. As observed in preceding paragraph the age of PW1 complainant Shashikala and that she was in a frightened condition and, therefore, there are certain lacunae in her statement, in my view, cannot be fatal.
28. The prosecution was successful to recover articles at the behest of the accused persons on their memorandum statements from the places which were in their exclusive knowledge. The pancha witnesses had supported the prosecution. Merely because according to learned counsel for the accused persons that they are known to PW1 complainant Shashikala, cannot be the reason to discard their independent version.
.....25/-
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29. The evidence of DW1 Dnyaneshwar Gajbhiye, father of accused No.4 Samyak Dnyaneshwar Gajbhiye shows that the police personnel came to his house. But, they could not find anything. Thereafter, they carried his another son Sandesh. However, no police complaint was lodged by this witness with higher-ups of the police.
30. The evidence in this case, as brought on record by the prosecution, is trustworthy. A broad daylight dacoity was committed by the accused persons by their forcible entry and by extending threats to PW1 complainant Shashikala. In my view, learned Judge of the Court below has rightly evaluated the entire evidences brought on record warranting no interference. Hence, all the criminal appeals are dismissed.
31. Learned counsel Shri R.P. Thote appointed by .....26/-
::: Uploaded on - 18/07/2017 ::: Downloaded on - 28/08/2017 07:41:27 ::: Judgment apeals590.13; 58.14, & 357.15 1 26 the High Court Legal Services Sub Committee at Nagpur for the appellant is entitled for his fees and it is quantified at Rs.5,000/- (rupees five thousand only).
JUDGE !! BRW !! ...../-
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