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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
CRIMINAL APPEAL NO. 242 OF 2008
WITH
CRIMINAL APPEAL NO. 312 OF 2008
WITH
CRIMINAL APPEAL NO. 795 OF 2008
CRI. APPEAL NO. 242/08 :
Mangal s/o Tularam Warkhade,
aged about 31 yrs., Occp. Nil,
r/o Lohara, Tah. & Distt.
Chandrapur. :: APPELLANT
-: Versus :-
Chandrapur.
The State of Maharashtra,
through P.S.O., City Police Station,
:: RESPONDENT
............................................................................
Mr. A. H. Lohiya, Advocate for the appellant.
Mr. P. D. Kothari, A.P.P. for the respondent-State.
...........................................................................
CRI. APPEAL NO. 312/08 :
1. Mahadeo s/o Jalpat Todase
aged about 35 yrs., Occp. Labour,
r/o Chandrapur,
Tah. & Distt. Chandrapur.
2. Pramod s/o Mahadeo There,
aged about 20 yrs., Occp. Labour
r/o Morwa, Tah. & Distt. Chandrapur
3. Ajay s/o Kanhoji Raut,
aged about 20 yrs., Occp. Driving,
r/o Morwa,
Tah. & Distt. Chandrapur. :: APPELLANTS
-: Versus :-
The State of Maharashtra,
through P.S.O., City Police Station,
Chandrapur. :: RESPONDENT
............................................................................
Mr. R. M. Daga, Advocate for the appellants.
Mr. P. D. Kothari, A.P.P. for the respondent-State.
...........................................................................
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CRI. APPEAL NO. 795/08 :
Chunnilal s/o Tulshiram Borkar,
aged about 45 yrs., Occp. Labour,
r/o Nehru Nagar, Chandrapur,
Tah. & Distt. Chandrapur,
Presently at District Prison,
Chandrapur. :: APPELLANT
-: Versus :-
The State of Maharashtra,
through P.S.O., City Police Station,
Chandrapur. :: RESPONDENT
.............................................................................................................
Mr. A. H. Lohiya, Advocate (appointed through Court) for the appellant.
Mr. P. D. Kothari, A.P.P. for the respondent-State.
...........................................................................
CORAM :
ig : U. V. BAKRE, J.
DATE OF RESERVING JUDGMENT : 12TH SEPT., 2011
DATE OF PRONOUNCING JUDGMENT : 05TH OCT., 2011
J U D G M E N T
These appeals, being disposed of by common judgment, are
arising out of the judgment and order dated 15/5/2008, passed by the
learned Additional Sessions Judge, Chandrapur in Sessions Trial No.
18/2006. The appellants of Criminal Appeal No. 312/08 were accused Nos.
1, 2 and 3; the appellant of Criminal Appeal No. 242/08 was accused No. 4;
whereas the appellant of Criminal Appeal No. 795/08 was accused No.5.
The appellants shall hereinafter be referred to as the accused persons as per
their numbers in the Sessions Trial.
2. Accused Nos. 1 to 5 were tried for offence punishable under Section
395 read with Section 397 of the Indian Penal Code (for short, I.P.C.) and
Section 3 read with Section 25 of the Arms Act, 1959.
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3. Vide the impugned judgment and order, accused Nos. 1 to 5 are
acquitted of the offence under Section 3 read with Section 25 of the Arms Act.
They are held guilty of the offence punishable under Section 395 read with
Section 397 of I.P.C. and convicted and sentenced to undergo rigorous
imprisonment for seven years and to pay fine of Rs.2,000/- each in default to
undergo rigorous imprisonment for further period of one year.
4. Case of the prosecution, in short, is as follows :-
(i) Mr. Shridharan Nair was working as Deputy Executive
ig Engineer with Maharashtra State Electricity Transmission
Company and was posted at Ballarshah whereas Mr.
Shamrao Balki was also working in the same departmentas Assistant Engineer and posted at Mul.
(ii) On 29/7/2005, Mr. Nair received the sum of
Rs.6,64,190/- from the Division office, Ballarshah towardspayment of salary to staff members. Out of the above
amount, he handed over Rs.1,24,410/- to one Mr. Shukla,
the Assistant Engineer of Sub-station, Gadchiroli and also
distributed Rs.11,400/- towards the payment of salary oftwo employees of his office.
(iii) Mr. Nair handed over an amount of Rs.1,04,630/- to Mr.
Balki for distributing the salary of employees of the officeat Mul and kept Rs.4,31.350/- in a VIP suitcase of brown
colour. Mr. Balki kept the amount given to him by Mr.
Nair in a bag which was with him.
(iv) Thereafter Mr. Nair, Mr. Balki, the driver of Mr. Nair by
name Bhujade, the helper to Mr. Nair by name Shende,
Mr. Askar and Smt. Bharti sat in the jeep bearing
No. MZV-4500 in order to go to Chandrapur. The suitcase
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containing the amount along with two other brief cases
which also contained money, were kept in the rear portion
of the jeep which was driven by Mr. Balki. Near Prasanna
Petrol Pump, Smt. Bharti and Mr. Askar got down from the
jeep and the jeep proceeded further.
(v) When the jeep was passing through bypass and had
reached near railway over-bridge, at about 5.10 p.m., a
Tata Sumo jeep overtook the jeep No. MZV-4500 and
hence the said jeep had to stop.
(vi) About 6-7 persons were in that Tata Sumo, out of which
ig two armed with country made gun and knife alighted and
one of them who had the gun went near Mr. Balki and the
other with knife went near Mr. Nair. Weapons were
pointed out to both of them. Thereafter, two more persons
from the Tata Sumo got down, went to the rear side of the
jeep No. MZV-4500, collected the suitcase and brief cases,
put them in Tata Sumo and all of them went away
towards Chandrapur.
(vii) Mr. Nair and Mr. Balki came with the jeep to Ramnagar
police station. They had noted the registration number of
the Tata Sumo to be MH-15/R-4680. Mr. Nair lodged the
report.
(viii) Crime was registered. The Tata Sumo along with driver
Mr. Mangal Turankar was nabbed. An amount of
Rs.6,000/- was found in that Tata Sumo, which was
attached. Mr. Mangal pointed out the spot in jungle
where the suitcase was partly burnt and from that spot,
the labels showing the name of the bank and partly burnt
suitcase was attached.
(ix) Accused No.5 is history sheeter. When his photograph was
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shown to Mangal, he identified accused No.5 as one of the
culprits. The cellphone of accused No.5 was traced and
from that clue, accused Nos. 1 and 3 were arrested on
17/8/2005 whereas accused Nos. 2 and 4 were arrested
on 19/8/2005.
(x) Cash of Rs.22,000/- on one occasion and cash of
Rs.22,325/- on subsequent occasion was recovered at the
instance of accused No.1. A Television set was also seized
from his house. The country made gun and Rs.43,300/-
were recovered at the instance of accused No.2. The cash
of Rs.35,000/- was recovered at the instance of accused
ig No.3. The cash of Rs.54,000/- was recovered at the
instance of accused No.4. Mr. Mangal Turankar was
released under Section 169 of the Code of Criminal
Procedure. The Test Identification Parade of accused Nos.
1 to 4 was conducted, in which they were identified by the
witnesses.
(xi) Accused No.5 was arrested on 31/12/2005 and the
suitcase containing rubber stamps of the office of Mr. Nair,
identity card, etc. were recovered at his instance. Test
Identification Parade of accused No.5 was held and he was
also identified by the witnesses.
(xii) It was revealed that two more persons namely: Mr.
Mahesh Golapalli @ Gurle and Sanu Badwal had also
taken part in the dacoity. They could not be traced.
(xiii) Charge-sheet came to be filed against accused Nos. 1 to 5.
The two persons who could not be nabbed were shown as
absconders.
5. The prosecution examined altogether 18 witnesses. They may be
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categorized as under:-
(A) EYE WITNESSES :-
(i) P.W.-2 Mr. Shridharan Nair, who lodged report.
(ii) P.W.-3 Shamrao Balki.
(iii) P.W.-11 Mangal Turankar.
(B) PANCH WITNESSES :-
(i) P.W.-1 Bhaskar Sahare, for spot panchanama (Exh.
37); spot panchanama (Exh.40); panchanama of
seizure of Tata Sumo jeep and cash (Exh.41); and
disclosure statement and recovery panchanama in
respect of Rs.54,000/- at the instance of accused No.4
ig (Exhts. 42 and 43).
(ii) P.W.-4 Ajit Vishwas for disclosure statement of
accused No.1 and panchanama of recovery of
Rs.22,000/- at his instance (Exhs. 66 and 67).
(iii) P.W.-5 Rajkumar Meshram, second panch witness for
exhibits 66 and 67.
(iv) P.W.-7 Laxman Kalar, for recovery of suitcase
containing rubber stamps at the instance of accused
No.5; and for recovery of country made gun, some
cash and clothes at the instance of accused No.2.
(v) P.W.-18, Sanjay Ghate, for recovery of cash and
country made gun at the instance of accused Nos. 1
and 3.
(C) WITNESSES FOR PROVING NEXUS :-
(i) P.W.-6 Sanjiv Gothe, with whom absconding accused
Sonu Badwal had deposited Rs.25,000/-.
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(ii) P.W.-8 Shriram Upganlawar with whom accused No.3
had placed order for gold coins by handing over
demand draft of Rs.28,100/-.
(iii) P.W.-9 Akshay Andhalkar, who sold T.V. Set.
(iv) P.W.-10 Namdeo Nimbhare, at whose work place (a
farm house), accused Nos. 1 to 5 used to come and
use telephone. P.W.-10 has turned hostile.
(v) P.W.-13 Mahadeo There, the father of accused No.2,
who produced Rs.8,000/-.
(vi) P.W.-14 Gajanan Chandankhede, who prepared the
sketch of the spot of occurrence.
(vii) P.W.-16 Vijay Mohurle, a police constable who carried
the country made gun to Ballistic Expert.
(D) EXECUTIVE MAGISTRATE :-
P.W.-12 Tulshidas Gedekar, who conducted the Test
Identification Parade in respect of accused Nos. 1 to 4.
(E) POLICE WITNESSES (INVESTIGATION ) :-
(i) P.W.-15 Chandraprakash Mehra, P.S.I., who registered
the offence upon receipt of written report of Mr. Nair.
(ii) P.W.-17 Krushnara Adewar, who carried out further
investigation.
6. The case of the accused persons was of denial simplicitor. They did
not examine any witness in defence.
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7. Upon consideration of the entire evidence on record, the learned
Trial Judge found that there was no sanction under Section 39 of the Arms
Act procured by the prosecution. Hence, the accused persons were acquitted
of the offence under Section 3 read with Section 25 of the Arms Act. The trial
Judge has further held that accused Nos. 1 to 5 have been identified by the
eye witnesses, to have participated in the dacoity and they were armed with
country made gun, knife or kukri which are deadly weapons. Accused Nos. 1
to 5 have, therefore, been convicted and sentenced as stated earlier.
8. Heard arguments. Learned Advocate Shri A. H. Lohiya argued on
behalf of accused Nos. 3 and 5 whereas learned Advocate Shri R. M. Daga
argued on behalf of accused Nos. 2, 3 and 4. Learned A.P.P. Shri P. D.
Kothari argued on behalf of the State.
9. Perused the record and proceedings.
10. Let us first see if any recovery establishing nexus of the accused
with the crime is proved.
11. The learned trial Judge has not discussed the evidence of any of
the witnesses examined by the prosecution for proving recoveries at the
instance of the accused persons and other recoveries. In paragraph 39 of the
impugned judgment, the trial Judge has observed thus :-
“…For a moment let us accept that the discovery in respect of cash
amount at the behest of accused Nos. 1, 2, 3 and 4 is not
established in real sense as contemplated under Section 27 of the
Evidence Act. Nevertheless, it remains fact that in all total cash of::: Downloaded on – 09/06/2013 17:49:08 :::
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But, it is curious enough that no witness is coming forward toclaim this cash except the office of Mr. Nair and Mr. Balki as per
application Exh.12 which was allowed by my predecessor. Whenthese amounts were seized from various houses or from witness
like father of accused No.2 and witness Mr. Sanjay Ghote
(P.W.-6), it is the prosecution version that absconding accused Mr.
Sonu Badwal had deposited Rs.25,000/- with Sanjiv Ghote and heproduced the same which was seized under panchanama Exh.75.
However, this witness had also not claimed that it was his
amount. These circumstances clearly show that the amounts atleast seized during investigation were the booty of dacoity…”
12. First of all, the recoveries at the instance of the accused persons
are not proved beyond reasonable doubt. Secondly, the numbers of the
currency notes which were robbed by the dacoits are not known and hence
they cannot be identified. The fact that the amount recovered being,
cumulatively, big and cannot be expected to have been planted, coupled with
the fact that the accused persons have not claimed that amount to be
belonging to them, may be one of the circumstances against the accused
persons. But the same cannot be, in itself, held to be sufficient to prove the
guilt of the accused persons.
13. P.W.-6 Sanjiv Gothe has spoken about Sanu Badwal, who is
absconding and who has not been tried by the trial Court. The alleged
accused Sanu Badwal had no opportunity to cross examine P.W.-6. The
evidence of P.W.-6 is not at all relevant as against accused Nos. 1 to 5.
Therefore, attachment of amount of Rs.25,000/- handed over by P.W.-6 to the
police, by saying that it was given to him by Sanu Badwal, has nothing to do
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with accused Nos. 1 to 5, since the nexus of that money with them has not
been proved.
14. P.W.-1, allegedly taken as one of the panch witnesses for the
panchanamas Exhts. 40, 41, 42, and 43, being a regular witness for
Chandrapur police for the last 5-7 years, signing panchanamas drawn by the
police officers of Chandrapur police station, every year in about 10 cases, he
is not at all reliable panch witness for disclosure and consequent recovery
under section 27 of the Indian Evidence Act. P.W.-17, the Investigating
Officer has admitted in his cross-examination that P.W.-1 is a stock panch
witness. P.W.-18 Sanjay Ghate was the second panch witness for the
panchanama (Exh.40) regarding the spot shown by Mangal Turankar and
attachment of partly burnt pieces of paper, lock plate and hook of burnt
suitcase. But, P.W.-18 is totally silent on this panchanama. The second
panch witness taken for panchanama (Exh.41) of attachment of Rs.6,000/-
from Tata Sumo jeep and for the disclosure/recovery panchanama (Exhts 42
and 43) of Rs.54,000/-, allegedly at the instance of accused No.4, have not
been examined. Hence, the recovery of cash of Rs.6,000/- and Rs.54,000/-,
as the booty of dacoity, is not proved.
15. P.W.-4 does not say that accused No. 1 had made a disclosure
that he concealed the amount. P.W.-4 says that accused No.1 stated that he
could take out amount from his house and then took out Rs.22,000/- from the
wooden cot of his house. Thus, accused No.1 is not proved to be the author
of concealment. In his cross-examination, P.W.-4 has stated that he did not
visit the police station, Ramnagar and that the accused after taking them to
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his house made the disclosure. He says that disclosure statement as well as
recovery panchanama were prepared at the house of the accused. The above
is contrary to the panchanama and disclosure statement (Exhts. 66 and 67).
The above is also not in accordance with section 27 of the Evidence Act.
Because of the above evidence of P.W.-4, as an afterthought,the second panch
witness (P.W.-5) was examined by the prosecution. P.W.-4 was not declared
hostile. His evidence cannot be discarded just like that. Since the evidence of
P.W.-5 is contrary to that of P.W.-4, even P.W.-5 cannot be relied upon.
Hence, the said amount of Rs. 22,000/- cannot be held as the booty of
dacoity.
16. Neither P.W.-2 nor P.W.-3 has stated that he had with him any
suitcase containing papers, rubber stamps, etc. Even otherwise, such suitcase
was recovered from an open public place accessible to all on 3/1/2006 which
is after more than five months. The evidence of P.W.-7 does not prove
recovery of the said suitcase, etc. at the instance of any of the accused
persons. His evidence also does not prove that cash of Rs.43,300/- was
recovered at the instance of accused No.2 or that cash of Rs.10,000/- was
recovered at the instance of accused No.3. The case of the prosecution,in this
regard, has only remained on papers.
17. It is not known as to in what manner the draft of Rs.28,100/-
given by accused No.3 to Gold Quest International Private Ltd. for purchase of
gold coin is relevant to the present case. It cannot be understood as to why
the police asked P.W.-8 to get the said amount of Rs.28,100/- invested by
accused No.3 transferred to his name and as to why after such transfer, the
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said amount was attached from P.W.-8. The evidence of P.W.-8 cannot prove
nexus of the said amount of Rs.28,100/- with the booty of dacoity.
18. The evidence of P.W.-9 reveals that one television set was
purchased on 30/7/2005 from the shop where he was working. The
relevancy of said television set with the present crime is not proved.
19. P.W.-13 has denied that his son, accused No.2, had handed over
the amount of Rs.8,000/- to him and that accused No.2 took out the said
amount and handed it over to the police. Hence the recovery of Rs. 8,000/-,
allegedly at the instance of the accused No. 2, is not proved.
20. Lastly, the evidence of P.W.-18, is not of such worth which can
prove that cash of Rs.1,000/- was recovered at the instance of accused No.2
or that cash of Rs.20,000/- was recovered at the instance of accused No. 3 or
that cash of Rs.10,000/- was recovered at the instance of accused No.1.
21. The evidence of the investigating officer (P.W.-17) is also not of
the nature as could prove various disclosures allegedly made by accused
persons under Section 27 of the Evidence Act and consequent recovery at the
instance of each of the accused persons.
22. P.W.-2 and P.W.-3 have not mentioned the numbers on the
currency notes, which were with them, for the purpose of identification of the
cash recovered by the police vis-a-vis the cash looted by dacoits, though it was
possible to get the series nos. and serial nos. from the bank.
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23. In the circumstances above, the case of the prosecution rests
solely on the eye witnesses namely P.W.-2, P.W.-3 and P.W.-11.
24. According to the First Information Report prepared on the basis
of written report lodged by P.W.-2, the amount of Rs.5,39,780/- was kept in
brown coloured VIP suitcase. The denominations of currency notes are also
mentioned. But, in his deposition, P.W.-2 says that Mr. Balki was carrying an
amount of Rs.1,04,630/- given by him to Balki and an amount of
Rs.4,31,350/- was kept in brown suitcase. Even the total of Rs.4,31,350/-
and Rs.1,04,630/- is Rs.5,35,980/- and not Rs.5,39,780/-. In the report as
well as in the deposition, P.W.-2 has stated that he had received
Rs.6,64,190/- from the Division Office. He has stated that he gave
Rs.1,24,410/- to Shukla; Rs.11,400/- to two employees and Rs.1,04,630/-
to Balki. If the above was true, the remainder with P.W.-2 had to be
Rs.4,23,750/-. Though P.W.-3, in his deposition says that he was given an
amount of Rs. 1,04.630/- by P.W.-1, however he has been confronted with his
police statement wherein this fact is not mentioned.
25. There is variance in the testimony of P.W.-2, P.W.-3 and P.W.-11
regarding the fact as to how many dacoits had alighted from the jeep and
how many were inside the jeep. There is also variance on the facts as to what
exactly happened and in what manner.
26. Though P.W.-2, P.W.-3 and P.W.-11 say that they had identified
accused Nos. 1 to 4 in an Identification Parade, however, none of them has
stated in his deposition as to which of the accused Nos. 1 to 4 did what. All
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have deposed by saying that one did this and other did that and at the end
they have made a general statement that they identified accused Nos. 1 to 4,
in Identification Parade.
27. None of the witnesses says that accused No. 5 was identified by
him in Identification Parade. P.W.-2 and P.W.-3 have not identified accused
No.5 in the Court also.
28. P.W.-11, after he was recalled on 17/3/2008, has deposed that
accused No.5 had engaged his vehicle on the day of incident and had
removed the ignition key when his vehicle was halted near Junona Naka.
P.W.-11 has stated that it was accused No.5, who had lastly handed over Rs.
6,000/- to him. However, in his cross-examination, P.W.-11 has stated that
the news was published in the daily news paper that accused No.5 is
absconding and that his photograph was also published. It is quite possible
that on the basis of photograph of accused No.5 published in the newspaper
that P.W.-11 has identified accused No.5, in the Court. P.W.-11 has further
stated that he knows accused No.5 by his name. If that be so, there had to be
no difficulty for P.W.-11 to state on 4/7/2007 as to what all acts were done
by accused No.5, by referring to his name. P.W.-11 has not done so. As far as
accused Nos. 2 and 4 are concerned, he has referred to them specifically as
accused Nos. 2 and 4 only when they had initially boarded his vehicle along
with the third person. P.W.-11 has not referred to these accused persons
specifically by their numbers, thereafter.
29. In terms of the procedure mentioned in the Criminal Manual for
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holding identification parades, the following is a very important step and the
same is :-
“If there is only one accused person to be identified, there
should be at least half a dozen persons placed in the parade. If
two accused persons are to be identified, then there should be
about 10 or 12 persons in the parade. Not more than two
accused should be placed in any single identification parade; butthe Executive Magistrate/Honorary Magistrate should see that
they are persons of more or less the same physical appearance,
and approximately of the same age, as the person to beidentified. It is desirable that innocent persons to be mixed
should be different for each such parade.”
The evidence of P.W.-12, the Naib Tahsildar, reveals that all the
four accused persons were asked to stand in a line along with only eight
dummies and witnesses were called to identify them in single identification
parade. For this reason itself, the test identification parade loses its value
and cannot inspire confidence.
30. In his cross-examination, P.W.-2 has stated that at the time of
incident, he had seen only 3 dacoits and two out of those three had concealed
their faces by means of cloth. He has stated that the dacoits who had caused
injury to him and pointed a country pistol at Balki had covered their face by
means of cloth. At the end, P.W.-2 has stated that on the spot, three dacoits
had covered their partial face by means of cloth. The question arises as to
how P.W.-2 could identify accused Nos. 1 to 4 during the identification
parade. P.W.-2 has stated that he had not identified accused Chunnilal
(accused No.5) in the identification parade.
31. P.W.-3 has made some improvement. He does not say that three
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persons had covered their face with cloth. P.W.-3 says that two persons had
come near him and one had pointed out pistol at his chest and the other had
pointed a knife on his abdomen. He has stated in the cross-examination that
the dacoits who were standing by his side had concealed their entire face by
means of cloth except the eyes. He then corrected himself by saying that his
face was only partially covered by cloth.
32. P.W.-11 has made further improvement in the case as he does
not at all say that any of the dacoits had covered his face either partially or
completely, except the eyes, by means of cloth. P.W.-11, in fact, is the person
who had carried the dacoits in his Tata Sumo jeep from beginning till end and
was arrested initially as one of the accused persons but subsequently was
released under Section 169 of the Code of Criminal Procedure and then he
was made a witness. The evidence of such a witness cannot be wholly relied
upon since he is likely to speak that which is wanted by the Investigating
agency, which discharged him as an accused.
33. At page No.1 of his deposition, P.W.-11 has stated that accused
Nos.2 and 4 and the accused not present before the Court had boarded his
vehicle. This was stated by P.W.-11 on 4/7/2007, before recess. But, after
recess when his examination-in-chief resumed, he changed his version by
saying that accused Nos. 1 and 3 had boarded his vehicle from Bengali Camp.
He has stated that after he was taken to police station along with his vehicle,
he was interrogated and for initial half an hour, he did not disclose truth to
the police and told them lies. The above facts also weaken the testimony of
P.W.-11.
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34. The two eye-witnesses namely Bhujade and Shende have not
been examined and hence adverse inference is bound to be drawn as against
the prosecution.
35. Learned A.P.P. has relied upon the following citations :-
(a) Ankush Maruti Shinde Vs. State of Maharashtra
– (2009) 6 S.C.C. 667.
Proposition :-
“Object of TI parade is (i) to enable witnesses to satisfy
themselves that the person whom they suspect is really theone who was seen by them committing the offence; and
(ii) to satisfy investigating authorities that suspect is the
ig real person whom witnesses had seen in connection with
said occurrence.”
(b) Pravin Vs. State of Madhya Pradesh – (2008) 16 S.C.C.
166.
Proposition :-
“Where there is recovery of crime articles and no
explanation is given by accused as to the possession ofgun, a bag which belonged to a witness as well as huge
sum of money, this lends support to fair investigation.”
(c) Ram Babu Vs. State of U.P. – AIR 2010 S.C. 2143
Proposition :-
“Purpose of Test Identification Parade is to test and
strengthen trustworthiness of substantive evidence in
Court. Evidence with regard to T. I. Parade is used for
corroboration.”
36. There can be no dispute about the principles laid down in the
above citations, in the facts and circumstances of those cases. In the present
case, though there is recovery of huge amount and other articles like
television, money paid through demand draft, etc., and of the weapons,
however, such recoveries are not believed by the trial Court and this Court
also, after considering the evidence on record, has not believed the same. As
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far as the identification of accused persons is concerned, the accused persons
were not known previously to the witnesses and the case rests on the Test
Identification Parade only. The T.I. Parade as already stated above, does not
inspire confidence.
37. In all the circumstances above, I am of the view that the accused
persons are entitled for benefit of doubt. The impugned judgment and order
therefore warrants interference. Accused Nos. 1 to 5 are entitled for
acquittal, on benefit of doubt.
38.
In the result,
(i) The appeals are partly allowed.
(ii) The conviction and sentence of accused Nos. 1 to 5 is
quashed and set aside.
(iii) Accused Nos. 1 to 5 are all given benefit of doubt and
acquitted of the offence under Section 395 read with
Section 397 of I.P.C.
(iv) The bail bonds of accused Nos. 1 to 4 and of their sureties
are cancelled.
(v) Accused No.5 Chunnilal Borkar shall be released
forthwith, if he is not required in any other case.
(vi) The rest of the dictum pertaining to muddemal articles,
mentioned in paras (4) and (5) of the impugned order, is
maintained.
JUDGE
wwl
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