Bombay High Court
Sani Hiraman Mohite And Anr vs The State Of Maharashtra on 19 August, 2019
Author: Sadhana S. Jadhav
Bench: Sadhana S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1335 OF 2011
Sunil Laxman Chavan.
Aged about 27 years,
Occ. Labourer,
Residing at Nagothane,
Tal. Roha, Dist. Raigad, ..Appellant.
v/s.
The State of Maharashtra
(at the instance of Senior
Inspector of Police,
Roha Police Station,
Vide C.R. No. I-64/2009). ..Respondent.
WITH
CRIMINAL APPEAL NO. 893 OF 2012
Santosh Shivaji Chavan.
Aged about 27 years,
Occ. Driver,
Residing at Lonavala,
Tal. Maval, Dist. Pune, ..Appellant.
v/s.
The State of Maharashtra
(at the instance of Senior
Inspector of Police,
Roha Police Station,
Talwalkar
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Vide C.R. No. I-64/2009). ..Respondent.
WITH
CRIMINAL APPEAL NO. 984 OF 2010
Laxman Bhujang Chavan.
Aged about 28 years,
Occ. Labourer,
Residing at Ave,
Tal. Ambernath, Dist. Raigad. ..Appellant.
v/s.
The State of Maharashtra
(at the instance of Senior
Inspector of Police,
Roha Police Station,
Vide C.R. No. I-64/2009). ..Respondent.
WITH
CRIMINAL APPEAL NO. 16 OF 2011
Vijay Tulshiram Chauhan.
Aged about 28 years,
Occ. Labourer,
Residing at Yewa,
Tal. Ambernath, Dist. Thane. ..Appellant.
v/s.
The State of Maharashtra
(at the instance of Senior
Inspector of Police,
Roha Police Station,
Talwalkar
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Vide C.R. No. I-64/2009). ..Respondent.
WITH
CRIMINAL APPEAL NO. 71 OF 2011
1 Sani Hiraman Mohite.
Age:19 years, Occ.Labour,
R/at Pavana Nagar,
Tal. Maval, Dist. Pune.
2 Tanaji Jagannath Jadhav
Age: 21 yrs. Occ: Labour,
R/at Bhavani, Tal: Haveli
Dist : Pune. ..Appellant.
v/s.
The State of Maharashtra
(at the instance of Senior
Inspector of Police,
Roha Police Station,
Vide C.R. No. I-64/2009). ..Respondent.
Mr. Akshata Desai i/b. Mr. Nitin Sejpal, advocate for appellant in
Appeal Nos. 1335/2011, 16/2011, 893/2012.
Mr. Bhavin Jain i/b. Mr. Ganesh Gole, advocate for appellant in
Appeal No. 71/2011.
Mr. Vivek Babar a/w. Mr. S.M. Sabrad, advocate for appellant in
Appeal No. 984/2010.
Mr. S.R. Agarkar, APP for State.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : AUGUST 19, 2019.
Talwalkar
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JUDGMENT :
1 The Appellants herein are convicted for the ofence punishable under section 395 of the Indian Penal Code and sentenced to sufer R.I. for 7 years and to pay fne of Rs. 1,000/- each I.d. to sufer S.I. for one year. They are also convicted for the ofence punishable under section 457 of the Indian Penal Code and sentenced to sufer S.I. for 3 years and to pay fne of Rs. 1000/- each I.d. to undergo S.I. for 3 months. The appellants are also convicted for ofence punishable under section 342 of the Indian Penal Code and sentenced to sufer S.I. for 6 months and to pay fne of Rs. 200/- each I.d. to sufer S.I. for 15 days by the Additional Sessions Judge, Mangaon, District Raigad, vide Judgment and Order dated 13/12/2010 in Sessions Case No. 15 of 2010. Hence, this appeal.
2 Such of the facts necessary for the decision of this appeal are as follows :
(i) In the intervening night of 10/12/2009 and 11/12/2009 while the police were on patrolling duty, they had apprehended original accused No. 1 Sunil Chavan and Accused No. 2 Santosh Chavan moving around in suspicious circumstances and therefore, they were apprehended. The accused Santosh Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 5 201.apeal1335.11-ors..doc Chavan was in possession of a car moving around Pimpalbhat between 12 to 12.15 a.m.
(ii) In the course of inquiry, they tried to give evasive answers and therefore, they were brought to the local crime branch and a detailed enquiry under section 41A of the Code of Criminal Procedure, 1973 was held against them.
(iii) On the next day, the accused Sunil Chavan had informed the police that he resides at Nagothane and that he alongwith his relatives and friend namely, Santosh Chavan, Sani Mohite, Laxman Chavan, Tanaji Jadhav and Vijay Chavan have committed dacoity within the jurisdiction of Kolad and other places as well.
(iv) He had then shown the places where they committed dacoity. The police had taken them to the spot as mentioned in the memorandum. However, the police had taken precaution by covering their faces.
(v) The accused had also shown one house, where they had committed theft on which it was inscribed as "Jay Jay Raghuvir Samarth". At that juncture, the police had called upon P.W. 1 Deepak Mahadik and he had confrmed that on 11/12/2009 there was theft in his house and that he has informed to the police at Roha. It had transpired that Crime No. Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 6 201.apeal1335.11-ors..doc I-64 of 2009 was registered on the basis of the report fled by Deepak Mahadik.
(vi) It had also transpired that Santosh Chavan had borrowed a vehicle from P.W. 4 i.e. Amol Gaikwad for the purpose of committing dacoity. It had also transpired that he had taken the said vehicle on 2 to 3 occasions by misrepresentation. The police had also recorded the statement of Amol Gaikwad and thereafter, accused No. 3 to 6 were arrested by the police on the basis of the statement of original accused No. 2 Santosh Chavan.
(vii) In fact, the incident had come to light on 11/12/2009 itself. However, formal FIR was lodged on 26/12/2009 by P.W. 1. The said FIR is at Exh. 25. After registration of formal report under section 154 of the Code of Criminal Procedure, 1973, the accused were taken into custody in Crime No. 65 of 2009 which was registered at Goregaon Police Station.
(viii) On 28/2/2010 test identifcation parade was held. In the course of test identifcation, the original accused No. 4 Laxman Chavan. was not identifed by the witnesses. It appears that the original accused No. 2 Santosh Chavan was also not identifed in the course of test identifcation parade.
(ix) In the course of investigation, there was recovery of Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 7 201.apeal1335.11-ors..doc watch from original Accused No. 6 Vijay Chavan and the head phone was recovered from original accused No. 3 Sunny Mohite. All the accused were charge-sheeted for the said ofence and the case was committed to the Court of Sessions.
(x) The prosecution has examined 8 witnesses to bring home the guilt of the accused.
3 P.W. 1 Kishor Deepak Mahadik is the complainant in the present case. He has proved the contents of the frst information report which is at Exh. 25. He had admitted before the Court that he has not produced the receipt regarding watch. It is also admitted that prior to test identifcation parade, the accused were brought by the police to his house. In fact, it has to be appreciated that the accused were taken to the house of P.W. 1 pursuant to their voluntary disclosure that they had committed theft in the house of P.W.1 and therefore, delay in lodging FIR would not be fatal to the prosecution. It is true that in the FIR dated 26/12/2009 the complainant has not stated about the visit of the police to his house on 11/12/2009. 4 P.W. 2 Anil Kadam happens to be a panch, in the presence of whom statement of accused Sunil Chavan was Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 8 201.apeal1335.11-ors..doc recorded on 27/12/2009. There was a recovery of Rs. 1200/- from the accused Sunil Chavan. It is true that the said amount is paltry amount and the said recovery cannot be connected with the present case. It is the case of the complainant that an amount of Rs. 1700/- were stolen from the pocket of his friend. It is pertinent to note that the prosecution has not examined the friend of P.W. 1 and therefore, the said recovery cannot be connected with the present ofence.
5 P.W.3 is the panch for recovery of the car which was owned by Amol Gaikwad i.e. P.W. 4 from the house of P.W. 4. P.W.4 has deposed that the accused had borrowed the car by misrepresentation.
6 P.W.5 Sanjay Telange is the panch witness in relation to the scene of ofence panchanama. The said panchnama would be of no signifcance since it was the accused persons who had shown the scene of ofence much prior to registration of the FIR by P.W. 1.
7 P.W.6 Vikas Pralhad Patil is the Executive Magistrate who had conducted test identifcation parade. It is the case of Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 9 201.apeal1335.11-ors..doc the prosecution that all the accused have been identifed in the test identifcation parade. However, it is pertinent to note that original accused Nos. 3 and 5 were not identifed in the court. It would not be necessary to discuss the evidence of P.W. 7 as he has only drawn map which at Exh. 54.
8 P.W.8 is the investigating ofcer. He has proved that in the intervening night of 10/12/2009 and 11/12/2009 he had apprehended the original accused Nos. 1 and 2 and that he had found that their conduct was suspicious. Upon enquiry they had given evasive answers. Therefore, they were interrogated by the local crime branch and then they had shown their willingness to show the places where they had committed theft earlier. He has deposed before the Court, the steps taken by him in the course of investigation. He had also seized the vehicle and the articles which were used by accused in the act of committing theft. He has specifcally deposed before the Court that accused Sunny Mohite has informed him that he alongwith his associates i.e. present appellants had committed theft on the high way between Kolad and Roha and had also agreed to show the spot and to produce articles received by him in the said theft. He had also agreed to show the area where he Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 10 201.apeal1335.11-ors..doc had committed theft in the jurisdiction of Chakan and Lonawala Police Station. The accused had also informed the investigating ofcer that they had committed theft in Achal Bungalow. That they had taken access to Achal Bangalow through Kalash Bungalow. There was an enquiry with the owner of Kalash Bangalow and the owner Shri Shrivastav informed the Investigating Ofcer that rather there was a theft in Achal bungalow, which belongs to Sunil Kurtadkar and the incident was reported to Lonawala Police Station. The accused had also led the investigating ofcer to the house of one Mr. Daware who had confrmed that there was dacoity in his house. There was recovery of mobile set and golden chain which were muddemal articles in another ofence in which the appellant had committed theft between Roha and Kolad. From the house of accused No. 6 Vijay Chavan, police had recovered two knives, 3 mobile sets and a wrist watch. The said wrist watch is muddemal article in the present case. They had also recovered a golden chain which according the accused was received by him in the dacoity which they had done at Lonawala. The Investigating Ofcer had also recorded the statement of one Nathu Salunkhe on 1/1/2010 who had supplied cutters to the accused but since his latest address was not located, he could not be summoned as prosecution Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 11 201.apeal1335.11-ors..doc witness. In the course of investigation of the present case, a mobile phone was recovered from accused No. 5 Tanaji Jadhav. The said mobile was standing in the name of one Mr. Baban Gaikwad, resident of Haveli, District Pune. Similarly, cell phone recovered at the instance of Santosh Chavan was the one in which they had placed the SIM card of Baban Gaikwad. They were also found in possession of cell phone having SIM card No. 9503795391, which was in the name of Damu Jadhav, resident of Nagothane. One cell phone recovered from the house of accused Vijay Chavan was standing in the name of Gajanan Mukane who is the resident of Badlapur. In fact, all the accused are residents of diferent places. However, it appears that they were associates in committing theft. The accused were transferred from one crime to another basically on their own information and thereafter, they were identifed in the other ofence.
9 The learned Counsel has submitted that in fact, watch is common article and that the receipt of the said watch has not been produced on record. However, it is seen from the evidence of P.W. 8 that upon enquiry the complainant had specifcally stated that since, the watch was gifted to him, he could not have Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 12 201.apeal1335.11-ors..doc been in possession of the receipt. The defence has not been able to create any dent in the evidence of P.W.8. 10 The respective Counsel have submitted that in fact, the accused were shown to the complainant prior to the test identifcation parade and therefore, identifcation in the course of test identifcation parade would have no signifcance. The said submission cannot be taken into consideration for the simple reason that the accused were not taken to the house of P.W. 1 after registration of Crime No. 164 of 2009 but in fact, the accused themselves had shown the house of P.W. 1 on 11/12/2009 and the crime was registered on 26/12/2009 and that is how the accused were also shown to be arrested in Crime No. 164 of 2009.
11 It is further submitted that the recovery in the other cases cannot be considered in the present case as it would be of no relevance. In fact, in the course of investigation/interrogation by the local crime branch, all those details were given by the present appellants to the local crime branch on 11/12/2009 and this would clearly indicate, the antecedents of the present appellants and it would also establish the fact that they were Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 13 201.apeal1335.11-ors..doc involved in all these cases. It is true that as per the jurisdiction, the ofences are registered at the respective police station. There is no doubt that the appellants are habitual ofenders. 12 The only question remains as to whether the fact that the accused Nos. 3 and 5 were not being identifed before the Court would entitle them to any beneft. Identifcation in the court is substantive evidence whereas the identifcation in the course of test identifcation parade would only be in the nature of corroborative evidence. Learned APP has submitted that all the appellants deserves to be convicted for the ofencej punishable under section 401 of the Indian Penal Code as they all belong to gang of thieves. In fact, it is true that they have associated with each other in committing theft and have jointly committed theft at several places as has been disclosed by them to the local crime branch.
13 The learned Counsel appearing for the original accused Nos. 1, 2 and 6 has specifcally harped upon the lacunas in test identifcation parade and that the accused were shown to the complainant prior to conducting of test identifcation parade. The said issue has been discussed earlier. Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 14 201.apeal1335.11-ors..doc 14 In view of the above discussion, it cannot be said that the prosecution has proved the ofence under section 395 of the Indian Penal Code since in the present case original accused Nos. 3 and 5 were not identifed in the court. However, the appellants deserve to be convicted for the ofence punishable under section 379 of the Indian Penal Code. The accused Nos. 1 and 2 also deserves to be convicted under section 380 of the Indian Penal Code. Hence, following order is passed :
ORDER
(i) Appeals are partly allowed.
(ii) The appellants are acquitted of the ofence punishable under section 395 of the Indian Penal Code.
(iii) All the accused are convicted for the ofence punishable under section 379 of the Indian Penal Code.
(iv) Accused Nos. 1 and 2 are also convicted for the ofence punishable under section 380 of the Indian Penal Code.
Accused Nos. 3 to 6 are sentenced to sufer R.I. for 3 years. Accused Nos. 1 and 2 are sentenced to sufer R.I. for 5 years.
(v) The accused/appellants are entitled to the set of for the period, which they have already undergone.
(vi) The appellants shall surrender before the Additional Talwalkar ::: Uploaded on - 29/08/2019 ::: Downloaded on - 17/04/2020 06:04:03 ::: 15 201.apeal1335.11-ors..doc Sessions Judge, Mangaon, Raigad.
(vii) Local Crime Branch, Raigad shall arrest the appellants by 5/9/2019 and take them into custody for serving the rest of the sentence. The accused shall be arrested and produced before the Sessions Court at Mangaon.
(viii) The sentence of fne is maintained.
(ix) Writ be issued accordingly.
15 The appeals are disposed of accordingly.
[SMT. SADHANA S. JADHAV, J.]
Talwalkar
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