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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.282 OF 2003
1 Mangesh Ramchandra Karande )
Age: 25 years, Occ: Labourer )
R/at Khetwadi, 4th Cross Lane, )
Masjid Bldg No.11, Room No.2, )
Mumbai - 400 004. )
)
2 Liladhar Pralhad Patil, )
Age 25 years, Occ: Labourer )
R/at 1/102 Desai Bldg. )
Mumbai 400 004.
rdig
Dr. M. G. M. Marg, 3 Kumbharwada )
) ..... Appellants.
(Original accused Nos.1 & 2)
V/s
The State of Maharashtra )
(At the instance of L.T. Marg )
Police Station) ) ...... Respondent.
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Mr. A.P. Mundargi i/b Mr. S.P. Borade for the appellants.
Mr. Rajesh More, APP for the State.
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CORAM: V.M. KANADE, J.
DATE: 29th September, 2008
ORAL JUDGMENT:
1. Heard the learned Counsel for the appellants and the learned
APP for the State.
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2. Appellants have filed this appeal, challenging the judgment and
order passed by the Sessions Court, convicting the accused for an
offence punishable under section 394 read with section 34 of the
Indian Penal Code and under section 397 read with section 392 of the
Indian Penal Code. By the said judgment and order, the Sessions
Court was pleased to sentence both the accused to suffer rigorous
imprisonment for a period of 5 years and 7 years respectively and, in
default of payment of fine, to suffer further rigorous imprisonment for
two months respectively.
3.
Appellant No.1 (accused No.1) was arrested at the spot when
the robbery took place and, thereafter, he was released on bail. He
has undergone the sentence which was imposed by the Trial Court
and has been released after he has completed the sentence.
Appellant No.2 (accused No.2), however, was released on bail.
4. Prosecution case, in brief, is that the complainant, on the date
of the incident, was an employee of one Vijay Devrukar and he was
coming back from the house of his owner. He was having cloth bag in
which diamonds were kept in two aluminium boxes. At that time, all of
a sudden, accused No.1 came near the complainant and asked him
what was the time. By the time complainant looked at his watch and
informed him the time, accused No.1 took out a Gupti and put it on his
neck. Thereafter, accused No.2 i.e the present appellant No.2
reached there and he was having a big knife in his hand and he tried
to snatch the cloth bag from the complainant. It is the case of the
prosecution that the complainant resisted and did not leave the cloth
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bag and, therefore, accused No.2 gave a knife blow on the hands of
the complainant, as a result of which the complainant sustained
injuries on his hands. Both the accused, thereafter, ran away with the
cloth bag which was snatched by accused No.2, towards Churni Road
Railway Station. However, the complainant raised hue and cry and
the accused No.1 was arrested while he was sitting in taxi. The
accused No.2, however, got down from the taxi and threatened the
complainant and others with his knife and ran away towards the
Marine Lines. Accused No.1 was apprehended on the spot and,
thereafter, accused No.2 was arrested on the same day in the evening
at about 7.30 p.m. FIR was lodged and in the FIR it was mentioned
that an offence of robbery had been committed and the name of
accused No.1 was mentioned. The name of accused No.2 was not
mentioned and it was stated that one unknown person between the
age of 22 and 25 had committed an offence alongwith accused No.1.
Police, thereafter, recorded statements of eye witness P. W. 3 – Milind
Parsekar and one other eye witness P. W. 7 – Sandip Shinde in
respect of the place of offence. The identification parade was later on
held at the Police Station where both the accused were identified by
the complainant. A chopper was recovered at the instance of accused
No.2. Charge-sheet was filed. The Trial Court disbelieved the
identification of accused by the complainant in the identification
parade primarily because it was held in the Police Station. Two eye
witnesses viz. P. W. 3 – Milind Parsekar and P. W. 7 – Sandip Shinde
turned hostile and did not support the prosecution case. The other
panch witnesses also could not be traced and, therefore, the recovery
of the chopper at the instance of accused No.2 was not corroborated
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by an independent witness. The Medical Officer had been examined
and he submitted the medico-legal certificate at Exhibit-37 & 38 in
which he gave his opinion that the injuries which were sustained by
the complainant were caused by knife. The Trial Court, however,
relied on the evidence of P. W. 1 and more particularly his evidence
regarding identification of accused No.2 in court. The Trial Court
expressed its doubt regarding recovery of weapon at the instance of
accused No.2 and did not lay any emphasis on the said evidence
while convicting both the accused. On the basis of the said evidence,
the Trial Court was pleased to convict both the accused for the
aforesaid offences.
5. Mr Mundargi, the learned Senior Counsel appearing on behalf of
the appellants, submitted that so far as appellant No.1 (accused
No.1) is concerned, he had already undergone the sentence and was
released. However, so far as appellant No.2 (accused No.2) is
concerned, he submitted that the Trial Court had erred in relying on
the identification of accused No.2 in court for the purpose of convicting
him for the aforesaid offences. He submitted that the Trial Court,
having disbelieved the test identification parade which was held in the
Police Station, ought not to have relied upon the identification of
accused No.2 by the complainant in Court in view of the fact that the
first test identification was disbelieved and a logical inference which
could be drawn was that the accused No.2 could have been seen by
the complainant in the Police Station or could have been shown by the
Police before the test identification parade. He submitted that, that
being the position, no emphasis could have been laid on the fact that
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accused No.2 was identified in the Court Room subsequently. He
submitted that identification of accused No.2 was the only piece of
evidence which was available with the prosecution as there was no
other evidence for establishing the identity of accused No.2.
6. There is much substance in the submissions made by the
learned Senior Counsel appearing on behalf of the accused. The Trial
Court, having discarded the first test identification parade of accused
No.2, could not have relied on the identification of accused No.2 by
the complainant in court. Firstly, a logical inference which could be
drawn from the rejection of the first identification parade was that the
Police had an opportunity to show the accused No.2 to the
complainant in the Police Station. Accused No.2 having thus been
shown by the Police, his subsequent identification in court also cannot
be relied upon. Secondly, the Trial Court has clearly lost site of the
fact that the accused No.2 being shown to the complainant prior to the
identification by him in court, the said evidence of identification by the
complainant in court loses its significance and could not have been
relied upon by the Trial Court for the purpose of establishing his
identity in the commission of the said offences. Once it is held that the
identification by the complainant of accused No.2 cannot be relied
upon, there is no other evidence available with the prosecution on the
basis of which the appellant No.2 can be convicted.
7. P. W. 1, complainant herein, in his evidence has stated that
accused No.2 was having a big knife in his hand and that he had
inflicted injuries on his hands with the said knife. However, the
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weapon which is recovered by the Police at the instance of accused
No.2 is a chopper and not a knife. Apart from that, none of the panch
witnesses who have carried out the panchanama was ever examined
by the prosecution. No attempt had been made by the prosecution to
even make a statement before the Court that these witnesses could
not be traced. The Investigating Officer also has not stated what
steps were taken by him to locate these panch witnesses. The
recovery of chopper, therefore, at the instance of accused No.2 also is
not of any assistance to the prosecution. Even the name of accused
No.2 is also not mentioned in the FIR.
8. It is no doubt true that the Medical Officer who has been
examined has established that certain injuries were there on the
hands of the complainant but in the absence of any other proof, it
cannot be inferred that the accused No.2 was responsible for inflicting
these injuries. Further, it is an admitted position that the stolen
property was not recovered at the instance of the accused. Two eye
witnesses who were examined by the prosecution have turned hostile.
Therefore, in my view, the Trial Court clearly erred in relying solely on
the identification parade of accused No.2 by the complainant in court
more particularly when the Trial Court itself discarded the identification
of accused No.2 by the complainant in the Police Station.
9. Under these circumstances, in my view, the prosecution has
failed to establish that the accused No.2, appellant No.2 herein, was
involved in the commission of the said offences.
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10. Accordingly, the following order is passed:-
O R D E R
In the result the conviction of appellant No.1 (accused No.1) is
confirmed. He has already undergone the sentence and has been
released by the jail authorities.
The appellant No.2 (accused No.2) is hereby acquitted of the
offence punishable under sections 394, 397 read with sections 392
and 34 of the I.P.C. His bail bond stands cancelled.
Appeal is accordingly disposed of in the above terms.
(V.M. KANADE, J.)
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