ORDER
B.B. Vagyani, J.
1. These appeals are directed against the order of conviction and sentence dated 18-6-1994 passed by the learned III Additional Sessions Judge, Dhule, in Sessions Case No. 80 of 1993. The original accused Nos. 1 to 5 are prosecuted for having committed offence punishable under section 395, 397 and 427 of the Indian Penal Code. After full fledged trial, the learned III Additional Sessions Judge, Dhule, found all the five accused guilty and consequently recorded the order of conviction and sentenced the original accused Nos. 1 to 5 to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 500/- each, in default to suffer rigorous imprisonment for two months for offence punishable under section 395 of the Indian Penal Code and rigorous imprisonment for six months for offence punishable under section 427 of the Indian Penal Code. The substantive sentences are directed to run concurrently. The facts giving rise to the prosecution case are as under.
2. The first informant Sattarsing Narkha Pawara alongwith his fellow members returned back to Shirpur from Hyderabad on the night of 8th April 1992. Matador vehicle No. MH-18-A-297 was requisitioned from village Boradi. The complainant Sattarsing P.W. 3 and his companion sat in the vehicle and went to Boradi at about 10.00 p.m. Sahebrao Dhobi P.W. 4 was the driver of the vehicle. Sattarsingh P.W. 3 and his companion left Boardi at about 10.30 p.m. The vehicle went ahead about 3 kms. from Kodid. The time was about 11.00 p.m. A tree was found lying on the road. Tree lying on the road had practically blocked the way, therefore inmates of vehicle including Sattarsingh P.W. 3 got down from the vehicle and tried to remove tree which was lying on the road. When they were trying to remove the branches of the tree, stones were pelted towards them. Therefore all of them immediately got inside the vehicle and closed the doors of the vehicle. It is the prosecution case that accused Nos. 1 and 2 emerged on the road in front of the vehicle. The passengers of the vehicle including Sattarsingh P.W. 3 identified accused Nos. 1 and 2 in the light of the headlights of the vehicle. Accused Nos. 1 and 2 were armed with axes at the relevant time. They demanded the amount of Rs. 1000/-. They threatened the passengers of the vehicle including Sattarsingh P.W. 3. Accused Nos. 1 and 2 threatened the passengers to the effect that if they would not pay the money they would burn the vehicle and would kill them. Accused Nos. 1 and 2 snatched the cash amount of Rs. 60/- and V.I.P. suit-case from Sattarsingh P.W. 3. Accused Nos. 1 and 2 broke the glasses of the vehicle in order to create terror. After collecting the money and the V.I.P.
suitcase, the accused Nos. 1 and 2 disappeared in the darkness. Sattarsingh P.W. 3 snatched an axe from one of the accused and later on produced the said axe before the police.
3. Sattarsingh P.W. 3 and his fellow members returned back to village Kodid and contacted P.W. 5 Ladka Pawara who is Sarpanch of village Kodid. Sattarsingh P.W. 3 disclosed to him what had happened on the road. Ladka Pawara P.W. 5 collected persons from the village. It is the prosecution case that Sattarsingh P.W. 3 identified accused Nos. 1 and 2 who were present in the mob which was gathered at the instance of Sarpanch Ladka Pawara P.W. 5. The Police were contacted. Later on accused Nos. 1 and 2 were produced before police.
4. Sattarsingh P.W. 3 lodged F.I.R. Exhibit 24 at the Police Station. On the basis of the F.I.R. Exhibit 24 Crime No. 62 of 1993 came to be registered. P.S.I. Ashok Vandekar P.W. 7 carried out the investigation of the crime. He arrested the accused Nos. 1 and 2. He prepared the spot Panchanama and recovered cash amount of Rs. 60/- at the instance of the accused No. 1. It is the prosecution case that while in police custody on 12-4-1993 accused No. 1 disclosed before the panchas and Police that he will point out the stolen property i.e. cash amount of Rs. 60/- which was concealed beneth the stone. The Memorandum Exhibit 30 was prepared. The accused No. 1 took panchas and police to his house and produced the cash amount of Rs. 60/- which was concealed beneath the stone. The cash amount of Rs. 60/- was attached under Panchanama Exhibit 51. It is the prosecution case that on 12-4-1993 the house search of accused No. 3 was taken. In the house search, the stolen property i.e. the V.I.P. suitcase was found and the same was attached under the panchanama Exhibit 32. It is further prosecution case that house of accused No. 4 was searched and during the search the underpant, banian and Lungi belonging to the complainant Sattarsingh P.W. 3 were found. The clothes were attached under the panchanama Exhibit 34. It is the prosecution case that on 12-4-1993 stolen property i.e. the pant and shirt belonging to the complainant Sattarsingh P.W. 3 was attached from the house of accused No. 5. Pant and shirt which were found in the house of accused No. 5 were attached under panchanama Exhibit 33.
5. Investigating Officer had sent Sattarsingh P.W. 3 to Medical Officer Dr. Rajani Kaje P.W. 2 for examination because Sattarsingh had claimed that he sustained injuries due to stones which were pelted by accused Nos. 1 and 2. The Medical Officer Dr. Rajani Kaje P.W. 2 examined P.W. 3 Sattarsingh on 9-4-1993 and found four injuries namely :
1. Contusion over right infra memory region, size 3×3 cm.
2. Contusion over right infra orbital region, black in colour.
3. Abrasion over right cheek.
4. Contusion over left calf, upper 1/3rd region.
Dr. Rajani Kaje issued injury certificate Exhibit 22. After completion of the necessary investigation Investigating Officer submitted the charge-sheet against the accused Nos. 1 to 5 in the Court of the Judicial Magistrate, First Class, Shirpur. The learned Magistrate committed the case to the Court of Sessions at Dhule.
6. On perusal of the papers, the learned Sessions Judge framed the charge Exhibit 4 against the accused Nos. 1 to 4. The charge Exhibit 4 was read over and explained to the accused in open Court. Accused pleaded not guilty to
the charge and claimed to be tried. The defence of the accused is that the property recovered belongs to them. They have denied that they committed any offence.
7. The prosecution led oral evidence to prove the guilt of the accused. After hearing the submissions made at the bar and taking into consideration the evidence brought on record, the learned Additional Sessions Judge found accused Nos. 1 to 5 guilty and after recording the order of conviction, sentenced each of them as stated hereinabove.
8. Feeling aggrieved by the order of conviction, original accused No. 5 has preferred Criminal Appeal No. 323 of 1996, the original accused No. 3 has preferred Criminal Appeal No. 324 of 1996, the original accused No. 4 has preferred Criminal Appeal No. 325 of 1996 and the original accused No. 1 has preferred Criminal Appeal No. 125 of 1998. The original accused No. 2 has not preferred any Criminal Appeal against the order of conviction and sentence passed by the learned III Additional Sessions Judge, Dhule.
9. We heard Smt. A.N. Ansari, learned Counsel for the accused Nos. 1 and 3 to 5 and Smt. G.L. Deshpande, learned A.P.P. for the respondent State.
10. The learned Counsel Smt. Ansari vehemently submitted before us that the names of the accused Nos. 3 to 5 do not find place in the F.I.R. Exhibit 24. There is no iota of evidence against them and therefore, accused Nos. 3 to 5 are liable to be acquitted. According to Smt. Ansari, the accused Nos. 3 to 5 were not found present on the scene of offence at the time of commission of offence of dacoity. It is the prosecution case that only accused Nos. I and 2 were found on the seen of offence. Under the circumstances, the learned trial Judge should have recorded the order of acquittal so far as the accused Nos. 3 to 5 are concerned.
11. We have carefully perused the oral evidence adduced by the prosecution. It is a fact that the accused Nos. 3 to 5 were not found present on the scene of offence. It is not the prosecution case that said accused Nos. 3 to 5 were present at the time of commission of offence of dacoity. There is no evidence on record which would remotely connect these accused persons with the offence of dacoity. A specific case is made out by the prosecution that at the time of commission of offence of dacoity only accused Nos. 1 and 2 were present on the spot and they pelted stones and broke the glass of the vehicle and took away the cash of Rs. 60/- and V.I.P. suitcase. Under the circumstances we find considerable force in the submissions of the learned Counsel Smt. A.N. Ansari with regard to the complicity of the accused Nos. 3 to 5 in the crime in question.
12. The learned A.P.P. Smt. Deshpande, argued that the stolen property was recovered from accused No. 3 to 5 and therefore the order of conviction and sentence passed by the learned Additional Sessions Judge, Dhule, is perfectly legal and correct.
13. We have subjected the oral evidence to close scrutiny. The prosecution evidence is not at all sufficient and adequate in order to hold that the property is recovered from accused Nos. 3 to 5. The V.I.P. suitcase bears the name Pawara. It is the case of the prosecution that the V.I.P. suitcase was recovered from the house of the accused No. 3. It is material to note that the name of the accused No. 3 is also Pawara. The accused No. 3 has claimed the ownership of the V.I.P. suitcase. There is no special identification mark. Under the circumstances it cannot be said that this V.I.P. suitcase which was attached from the house of the accused No. 3 is a stolen property.
14. The underpants, banian and lungi were attached from the house of accused No. 4. The accused No, 4 has claimed the ownership of the attached clothes. There is no special identification mark on these clothes. There is nothing on record to show that these attached clothes belong to Sattarsingh P.W. 3. In the absence of special identification mark, there is every possibility that these clothes are of the ownership of the accused No. 4.
15. In this behalf we would like to mention that there is another striking feature of recovery of lungi. In the F.I.R. Exhibit 24, the colour of lungi is described to be purple. However, from the panchanama Exhibit 34 it is revealed that the lungi of different colour other than the purple was attached from the house of the accused No. 4. Taking into consideration this weak type of evidence, it cannot be said with certainty that accused were found in possession of the stolen property.
16. It is the case of the prosecution that pant and shirt were attached from the house of accused No. 5. The shirt bears the label of Fashion Gift, Shirpur. The Investigating Officer has not taken pains to examine the tailor who stitched the shirt which was recovered from the house of the accused No. 5. There are also no special identification marks on the pant and shirt which were recovered from the house of the accused No. 5. The accused No. 5 has claimed the ownership of the pant and shirt. In the absence of any special identification mark, it cannot be said with certainty that the pant and shirt belong to the complainant Sattarsingh P.W. 3. The evidence on record does not go to show that the pant and shirt which were attached from the house of the accused No. 5 are stolen property.
17. The learned Additional Sessions Judge has drawn presumption under section 114(a) of the Evidence Act and jumped to the conclusion that accused Nos. 3 to 5 were found in possession of the stolen property and therefore their complicity has been established beyond all reasonable doubt. This conclusion of the learned Additional Sessions Judge is manifestly incorrect. In order to invoke the presumption under section 114(a) of the Evidence Act, it must be shown that the stolen property was found in possession of accused after the commission of offence. In the instant case, the dacoity is said to have been committed at 11.30 p.m. on 8-4-1993, the prosecution evidence would go to show that the so called stolen articles were recovered from accused Nos. 3 to 5 on 12-4-1998. Under such circumstances it cannot be said that the accused Nos. 3 to 5 were found in possession of the stolen property immediately after the commission of offence of dacoity. At the cost of repetition we would like to mention that the prosecution has not at all proved that the articles which were seized from the accused Nos. 3 to 5 are the stolen property. Under such circumstances, it is not proper to draw presumption under section 114(a) of the Evidence Act.
18. Let us consider the evidence with regard to complicity of accused Nos. 1 and 2 in the crime in question. Sattarsingh P.W. 3 and Sahebrao Dhobi P.W. 4 have claimed that both of them identified accused Nos. 1 and 2 in the light of headlights of the vehicle. Both these witnesses have tried to suggest in their evidence that the headlights of the vehicle were kept on and in the light of headlight of the vehicle they had ample opportunity to identify the
accused NOB. 1 and 2. It is material to note that Sattarsingh P.W. 3 has admitted in the cross-examination that two persons who appeared in front of the vehicle armed with axes had covered their faces and heads. If regard is had to this disclosure made by complainant Sattarsingh P.W. 3, it cannot be said with certainty that two persons who were emerged out on the road in front of the vehicle were the accused Nos. 1 and 2. Sahebrao P.W. 4 has also testified in his evidence that two persons who had appeared in front of the vehicle at the time of commission of offence had covered their heads. If this evidence is taken into account it cannot be said that the prosecution has established the complicity of accused Nos. 1 and 2 in the crime in question beyond all reasonable doubt.
19. Sahebrao Dhobi P.W. 4 has made a claim that he was driving the vehicle on the night of the incident and therefore he had sufficient opportunity to identity the accused Nos. 1 and 2. In fact the presence of Sahebrao Dhobi P.W. 4 at the time of commission of offence of dacoity is very much doubtful. It is seen from the F.I.R. Exhibit 24 that one Sahebrao Patil, was the driver of the vehicle. Prosecution witness No. 4 is Sahebrao Dhobi. It is not prosecution case that driver named at the F.I.R. Exhibit 24 is also known as Sahebrao Dhobi who is prosecution witness No. 4.
20. Taking into consideration this inconsistency in the name of the prosecution witness No. 4, the learned Additional Sessions Judge has rightly suspected the presence of this witness. Assuming for the sake of argument that Sahebrao P.W. 4 is the very person who is referred in the F.I.R. Exhibit 24, his evidence does not inspire confidence. It is clearly seen from his evidence that he has improved his version on vital points. He has omitted to disclose the police that he identified accused Nos. 1 and 2 on the spot itself. He has also omitted to disclose before police that he identified accused Nos. 1 and 2 in the village Kodid. His evidence would go to show that he has made improvement on vital points. He has testified in his evidence that he identified accused Nos. 1 and 2 in the light of headlights of the vehicle. But this is proved to be omission. He has also omitted to disclose before police that accused Nos. 1 and 2 fled away towards village Kodid. The evidence of P.W. 4 Sahebrao suffers from infirmities. He has exhibited his tendency to make improvement on vital points in order to show the complicity of the accused Nos. 1 and 2 in the crime in question. Under the circumstances, the evidence of Sahebrao Dhobi, P.W. 4 losses probative value.
21. The prosecution case is that the stolen property i.e. cash amount of Rs. 60/- was recovered at the instance of accused No. 2. It is clearly seen from the evidence on record that the place from where cash amount of Rs. 60/- was recovered is accessible to all. Under the circumstances, this piece of evidence is not at all sufficient to prove the complicity of accused No. 1 in the crime in question.
22. Sattarsingh P.W. 3 has claimed that while running from the spot, he snatched the axe from one of the accused. Sattarsingh P.W. 3 has testified in his evidence that accused Nos. 1 and 2 were known to him since prior to the incident. He has testified that he had seen the accused Nos. 1 and 2 on number of occasions prior to the incident, Inspite of this fact Sattarsingh P.W. 3 is unable to tell from whom he snatched the axe. It is not explained by him as to why he was required to see the accused Nos. 1 and 2.
23. After having scanned the evidence on record and after having considered the facts and circumstances of the case, we are of the clear opinion that the prosecution has miserably failed to prove the complicity of the accused in the crime in question. Admittedly, accused No. 3 to 5 were not present on the spot at the time of commission of offence of dacoity. It is the prosecution case that only accused Nos. 1 and 2 were present at the time of the commission of offence of dacoity. If regard is had to the number of persons found on the spot at the time of commission of offence it cannot be said that the offence of dacoity is made.
24. By the way we would also like to mention the suspicious circumstance with regard to the panchnama of the Matador Exhibit 14. From the perusal of the panchanama Exhibit 14 it is seen that on 9-4-1993 at about 4.05 p.m. the panchanama Exhibit 14 about the condition of the Matador was prepared. Witness Sahebrao Dhobi P.W. 4 testified in his evidence Exhibit 25 that he took the vehicle from the spot at 7.30 a.m. on 9-4-1993 and went to Malegaon for the purpose of repairing the vehicle. It has also come in his evidence that he returned back with the vehicle three days thereafter. If this evidence of Sahebrao Dhobi P.W. 4 is taken into account it is rather difficult for us to accept the prosecution version that the Investigating Officer prepared the panchanama of the vehicle Exhibit 14 in presence of the panchas on 9-4-1993 at about 4.05 p.m. This circumstance is not at all properly explained by the prosecution.
25. There is another striking feature of the prosecution case which strikes at the substratum of the prosecution story. It is tried to be suggested that the complainant Sattarsingh P.W. 3 snatched an axe from one of the accused when accused Nos. 1 and 2 fled away from the spot. From the evidence of Sattarsingh P.W. 3 it is seen that he and other passengers immediately boarded the vehicle and closed the doors of the vehicle due to the fear of the dacoits. It has also come in the evidence that Sattarsingh P.W. 3 threw V.I.P. suitcase out of the vehicle. It has also come in the evidence on record that the dacoits picked up the V.I.P. suitcase and ran towards village Kodid. It is seen from the evidence of Sattarsingh P.W. 3 that after dacoits dis-appeared from the scene of offence the passengers of the vehicle got down and they also ran away from the spot. If regard be had to the sequence of evidence as narrated by the prosecution witnesses it is clearly seen that Sattarsingh P.W. 3 had absolutely no opportunity to snatch the axe from one of the accused Nos. 1 and 2.
26. Sattarsingh P.W. 3 has testified in his evidence that he produced an axe before the police after recording of F.I.R. Exhibit 24 and before his medical examination. F.I.R. Exhibit 24 was recorded at 11.45 a.m. on 9-4-1993. It is seen from the oral evidence of Doctor Rajani Kaje P.W. 2 Exhibit 21 that she examined Sattarsingh P.W. 3 on 9-4-1993 at about 11.00 a.m. The seizure panchanama of axe Exhibit 12 reveals that Sattarsingh P.W. 3 produced axe before police and same was attached on 9-4-1993 at 12.15 p.m. The production of axe by Sattarsingh P.W. 3 and its seizure by the Investigating Officer is not away from suspicion. Thus from the careful perusal of the F.I.R. Exhibit 24 it is seen that there is interpolation with regard to snatching of axe from one of the accused. In view of this position the evidence on the point of production of axe by P.W. 3 Sattarsingh and seizure thereof cannot be accepted.
27. Sattarsingh P.W. 3 has claimed that he received injuries on his stomach and leg because of stones which were pelted at him. From the evidence of Dr. Rajani Kaje P.W. 2 it is seen that she noticed four injuries on the person of Sattarsingh P.W. 3. Medical Certificate Exhibit 22 also goes to show that there were four injuries on the person of Sattarsingh P.W. 3. It is curious enough to note that Medical Officer P.W. 2 Rajani Kaje is unable to give the age of the injuries. She is specific with regard to injury No. 2. According to her injury No. 2 could have been caused within seven days prior to her examination. She wanted to indicate that injury No. 2 was old. In the absence of age of the injuries we find extremely difficult to hold that Sattarsingh P.W. 3 sustained injuries at the time of incident. Moreover, it is not explained by the prosecution as to how there were four injuries on the person of Sattarsingh P.W. 3. Sattarsingh P.W. 3 has specifically claimed that he had sustained only two injuries on the night of the incident. The evidence brought by the prosecution in this behalf is not away from suspicion.
28. The learned Counsel Mrs. Ansari also submitted that the prosecution has suppressed the material witnesses. It has come in the evidence on record that Sattarsingh P.W. 3 and other passengers went to village Gadhaddeo immediately after commission of offence and met Rana Pawara of village Gadhaddeo to whom Sattarsingh P.W. 3 disclosed the incident of dacoity. From the evidence on record it is seen that Rana Pawara was the first person to whom Sattarsingh P.W. 3 narrated the incident of dacoity. The prosecution has not examined Rana Pawara for the reasons best known to the prosecution.
29. After having scanned the evidence on record and after having considered the facts and circumstances of the case, we are of the clear opinion that the prosecution has miserably failed to bring home the guilt of the accused. Under the circumstances, we allow the Criminal Appeal Nos. 323 to 325 of 1996 and 125 of 1998. The order of conviction and sentence passed by the learned Additional Sessions Judge, Dhule is hereby set aside. All the appellant accused in Criminal Appeal No. 323 to 325 of 1996 and 125 of 1998 are acquitted of the offences with which they are charged. The fine amount if deposited be refunded back to the appellant accused. The appellant accused be set at liberty forthwith if not required in any other case.
30. We are at the fag end. The original accused Devdas Tumbadu Bhil has not preferred criminal appeal against the order of conviction and sentence. The learned Counsel Mrs. Ansari submitted before us that the evidence brought on record is not at all worthy of credence and therefore the non-appellant accused Devdas Tumbadu Bhil should also be acquitted. In order to substantiate her submission, she has relied upon the decision of the Supreme Court in the case of Hari Nath and another v. State of U.P., . The learned Counsel Mrs. Ansari has also relied upon the unreported judgment of this Court in the case of Nana Yadavrao Wankhede v. State of Maharashtra, Criminal Appeal No. 211 of 1990 decided on 9-1-1992 by the Division Bench. In both the cases original non appellant accused was acquitted inspite of the fact that no appeal was preferred. Relying on these cases referred to (supra) we propose to acquit non-appellant accused Devdas Tumbadu Bhil. In this behalf we would like to mention that it is the prosecution case that accused No. 1 Chhagan and non-appellant were the two persons who were present on the spot at the time of commission of
offence. It is the prosecution case that these two accused armed with axes caused damage to the vehicle and forcibly took away the cash amount of Rs. 60/- and V.I.P. suitcase containing clothes. The evidence brought by the prosecution on the point of identification of these two accused is liable to be rejected. Sattarsingh P.W. 3 and Sahebrao Dhobi P.W. 4 have testified in their evidence that the persons who appeared on the spot at the time of the commission of offence had covered their faces by the piece of cloth. Under the circumstances the claim made by the P.W. 3 and P.W. 4 with regard to their identification cannot be accepted. The original accused No. 1 Chhagan Bhil is acquitted, obviously the non-appellant Devdas Tumbadu Bhil is also liable to be acquitted. We, therefore, set aside the order of conviction and sentence passed against the non-appellant Devdas Tumbadu Bhil. Accused Devdas Thumbadu Bhil is acquitted of the offences punishable under section 395, 397 and 427 of the Indian Penal Code. Fine amount, if deposited, be refunded to the non-appellant accused Devdas Tumbadu Bhil. The non-appellant accused Devdas Tumbadu Bhil be set at liberty forthwith if not required in any other case.
31. Mrs. Ansari, learned Advocate has rendered valuable assistance to us while disposing of the Criminal Appeal No. 125 of 1998. She has been appointed to defend the original appellant accused Chhagan Bhil. Her fees are quantified at Rs. 500/-.
32.
Appeal allowed.