JUDGMENT
D.G. Deshpande, J.
1. Heard Mr. Chomal for the appellants
original accused Nos. 2 and 3, and Mr. Pravin
Singhal, learned APP for the State.
2. Appellants before this court are original
accused Nos. 2 and 3. Accused Nos.2 and 3 have
been convicted under Section 392/397 of Indian Penal
Code and have been sentenced to R.I. for 10 years
and fine of Rs.500/- in default R.I. for one month.
They are also convicted under Section 454 of Indian
Penal Code and sentenced to suffer R.I. for 10
years and fine of Rs.500/- in default R.I. for one
month. They are further convicted under Section
3/25(1) of Arms Act and sentenced to suffer R.I.
for one year and fine of Rs.500/- in default R.I.
for one month.
3. Prosecution case in brief was as under:
Complainant Harilal Jethava had a house
in Vijay Nagar, Nashik. In fact he had three houses
on plots bearing No. 25, 26 and 27. He was
residing in a house situate on Plot No. 27 with his
wife, and his daughter was residing in a house
situate on Plot No. 26. On 19.9.1995 Mira – the
daughter of the complainant at about 1 p.m. had
gone to the house of one Mohanbhai for meals. She
had locked her house. After taking meals she was
returning to her house. She went to another house
of her father situate on plot No. 25. At that time
Prashant Patwardhan (P.W.7) informed Harilal that
some persons had entered the house of his daughter
and one person was standing in front of House No.
26. Two motorcycles were there in front of that
house. Thereafter, Harilal went to the house of his
daughter Mira, saw those unknown persons and
motorcycles. He questioned the unknown person,
unknown person started running away. Harilal tried
to catch him. In the meanwhile three unknown
persons came out of the house of Mira and they
started running. Harilal also tried to catch them
but they pushed him. In the meantime Prashant
Patwardhan arrived there. He tried to nab them.
There was a scuffle between him and those 3, one of
the thieves was having a revolver and other was
having a knife. One of the thieves was trying to
start motorcycle, when Prashant Patwardhan pushed
him and at that time one of the thieves who was
running fired two rounds of the revolver. Out of
those two rounds, one round hit witness Sachin
causing bullet injury to his hand but even then the
witnesses were successful in catching accused No.2
Rajkumar who was having knife in his hand. On
hearing shouts residents of the locality gathered
and in the meantime police had also arrived there.
Police took Rajkumar Gupta – Accused No.2 to the
police chowky and other accused i.e. original
accused No. 1 was also nabbed. In the search of
original accused No.1 revolver was found with three
rounds, the gold rings and wrist watch were also
found, and from the search of accused No.2 Rajkumar
Gupta a Rampuri knife,, gold mangalsutra, gold
bangles, silver bangles, ear rings and one wrist
watch were found and the same were seized by the
police under panchnama. P.I. Kale (P.W. 12)
recorded the complaint of Harilal vide Exhibit 21.
Then scene of offence panchnama was made in the
house of Harilal. Motorcycles were seized under
Spot Panchnama Exhibit 23. Sachin (P.W. 5) witness
injured by bullet was treated by doctor, and both
the accused i.e. original accused Nos. 1 and 2
were also referred to the hospital as they had
sustained injuries. Complainant Mira identified the
ornaments which were recovered from both the
accused.
4. On 17.12.1995 original accused No.3
Rakesh Pande came to be arrested at Bodhpur (UP).
He was brought and transferred in this case. On
28.6.1996 Special Judicial Magistrate Shri Pawar
held Identification parade and this accused was
arrested.
5. For proving offence complainant examined
Harilal Jathva ( P. W. 1), Prashant Patwardhan
(P.W. 7), Mira Rathod ( P.W. 3) and other
witnesses, recoveries were proved, injuries to the
witness Sachin Purohit ( P.W. 5) were also proved,
and since trial court accepted the case of the
prosecution, accused came to be convicted as stated
above, hence this appeal.
6. It was strenuously urged by Mr. Chomal
that the evidence of the prosecution was full of
contradictions and improvements on all material
aspects, that there was variance between each of the
witness as each was giving a different story, that
the evidence of Prashant Patwardhan was nothing but
improvements, that name of the accused No.3 was
different and he was wrongly identified, that even
though the accused No.3 had no fingers to his right
hand, the same fact was not mentioned any where in
the description of the said accused in the
panchnama, and therefore his identification is
totally wrong and therefore for all these reasons
the accused were entitled for acquittal.
7. On the other hand, learned APP contended
that conviction was perfectly justified and proper
because two out of the three accused were caught on
the spot, stolen property was recovered from them
for which they had no explanation and the property
was identified by Mira as belonging to her, that
ornaments were recovered from the two accused and
therefore there was nothing to create doubt about
the prosecution case. So far as accused No.3 is
concerned, the learned APP contended that there is
nothing on record to show that at the time of the
incident the accused No.3 did not have fingers to
his right hand. It could be that this disability
cropped up during the period the accused No.3 was
absconding and therefore that could not be a reason
to reject the evidence of identification. About the
improvements and contradictions in the evidence of
the witnesses, the learned APP contended that the
reasons given by the trial court were justified and
there was no reason to interfere.
8. There cannot be any dispute that accused
No.2 with absconding original accused No.1 were
caught on the spot along with revolver, chopper and
the ornaments, which were identified by Mira.
Admittedly accused had no concern with the house of
Mira. They were strangers and the manner and the
circumstances in which they were caught on the spot
and attempted to escape, they are being caught on
the spot and beaten by the mob is also supported by
the injuries which the accused No.2 had on his
person as proved by the doctor. Report was also
lodged immediately. Evidence of Harilal P.W 1,
F.I.R. lodged by him at Exhibit 21, evidence of
Mira – P.W. 3 evidence of Sachin ( P. W. 5) a
person who was injured by fire of the bullet and
evidence of Prashant Patwardhan (P.W. 7) prove
beyond reasonable doubt that accused No.2 was caught
on the spot along with absconding accused No.1.
After the accused was arrested, a panchnama was made
of his arrest and the same is proved at Exhibit 24.
In the personal search of accused No.2 – Rajkumar
Gupta, it is noted that there was swelling to his
lips because of beating, that 15″ Rampuri knife was
snatched from his hand by the people and following
ornaments were found with accused No.2, mangalsutra
of 15 gms. artificial pearl bangles, a chain and
tops, a pair of silver bangle, gold tops. Again
golden tops, wrist watch of Simplex company, golden
ring with red stone, another ring with green stone,
one golden chain, a gold ring and silver ring.
Similarly the live cartridges were also recovered.
This recovery of ornaments from accused No.2 on the
spot and identification of the ornaments by Mira and
P.W. 1 Harilal are the clinching pieces of evidence
against accused No.2, from which he has no escape
nor any explanation the manner in which the incident
occurred after it was reported to Harilal has been
given by him and since accused No. 2 was caught on
the spot with stolen articles, there cannot be any
dispute about his involvement in the offence and in
the incident. The scene of offence – panchnama
Exhibit 23 is also proved that house of Mira was
looted and robbed. Two motorcycles were also found
which neither the complainant nor his daughter nor
any of the witnesses claimed.
9. It is true that there are improvements in
the story of Prashant Patwardhan (P.W. 7) and
contradictions in the evidence of the witnesses but
even if all those contradictions and omissions are
set aside, the case against accused No.2 is full
proof case.
10. So far as accused No.3 is concerned, it
was contended by Mr.Chomal that accused was arrested
after about three months and since in the FIR
complainant has not given the description of this
accused No.3, no reliance can be placed on the
identification of this accused in the identification
parade held by Special Judicial Magistrate Shri
Pawar on 28.6.1996. Complainant has stated that in
all four persons had entered the house of Mira. All
the four were tried to be caught, there was scuffle
between the accused and Prashant Patwardhan (P.W.
7) and ultimately accused No.1 and 2 were caught on
the spot and when questioned those accused gave the
name of other accused as Vinod Gupta, Tilak Nagar,
Indore and Rakesh Sharma, Laxman Talav, Gwalior.
11. Mr. Chomal contended that in the FIR the
name of the accused No.3 was given as Rakesh Sharma
and in fact his name is Rakesh Pande, therefore
benefit of doubt should be given to the accused. I
do not find any merit in this contention. The
question is that the name of the accused No.3
tallies with the name given in the FIR. There is
change in the surname but even in the appeal memo
the address of accused No.3 is shown as
Laxmantaliya, Gwalior, and in the FIR the address of
Rakesh Sharma is as Laxmantaliya, Gwalior. It is
clear that even the accused No.3 is not disputing
that he is residing at the address given in the FIR.
12. It is true that there is no
identification parade of this accused. However, the
other evidence on record is strong enough and
sufficient enough, as rightly found by the trial
court to connect accused No.3 with the crime. When
absconding accused No.1 and the appellant – accused
No.2 were caught on the spot in the manner stated
above, enquiry made from them revealed that they
were staying in Kala Lodge situate at Malviya Road,
Panchvati, Nashik. The incident has taken place on
19.9.1995 and P.W. 8 Smt. Shobha wife of Machindra
Royziyani has stated that she was owner of the said
Kaka Lodge and on 19.9.1995 at about 11.30 a.m while
she was at the counter, four persons with two
motorcycles came to her lodge. One of them enquired
about the room for their stay. She asked them from
where they had come and she was told that they had
come from Indore. She therefore made entry in the
hotel register and entry was made in the name of
Vinod Gupta for Room No.20. The Room was booked for
two days and she was paid Rs.230/- towards two days
charges. She identified accused Nos. 2 and 3 to be
persons out of those four. She has further stated
that after taking meals they went outside on their
motorcycles between 12 to 12.30 noon and thereafter
they did not return to their lodge and on the same
day in the afternoon at 3 p.m. police came with
those two persons in the lodge. Therefore, apart
from eye witnesses who identified accused No.3 there
is direct evidence of the owner of the lodge who
identified the accused No.3. Nothing is brought out
in the cross-examination of this witness to
discredit her and she had denied suggestions of
falsely implicating accused Nos. 2 and 3.
13. So far as other eye witnesses are
concerned, accused No.3 has been identified by
Harilal to be the person who was standing in
Varanda, that he went to house of his daughter Mira.
Further, accused No.3 is identified by Prashant
Patwardhan (PW 7).
14. It was contended by Mr. Chomal that the
evidence of identification of these two eye
witnesses, particularly of accused No.3 cannot be
accepted because they saw the accused for a short
while. This argument cannot be accepted. The
incident has taken place in broad day light.
Harilal has seen accused No.3 specifically so also
Prashant Patwardhan (P.W. 7) and this
identification is supported by the particulars given
of this accused No.3 in FIR as information revealed
by the other accused to the complainant and to the
police and this is further corroborated by the
evidence of the owner of the lodge who identified
accused No.3 specifically and who stated that all
the four accused with two motor cycles came to their
lodge. All this is therefore sufficient to hold
that accused No. 3 was also present and there is no
mistaken identity.
15. The happening of the incident as alleged
by the prosecution witnesses is however proved by
bullet injury suffered by Sachin to his right hand.
Bullet was recovered from the hand of Sachin after
operation. This bullet was seized, sealed and sent
to C.A. The revolver was found. It was also sent
to C.A. and there is a report of the C.A. which
support the prosecution case about use of the weapon
at the time of robbery.
16. So far as improvements in the evidence of
witnesses or contradictions are concerned, it is
true that an important witness Prashant Patwardhan
(P.W. 7) has improved his story considerably. He
has been confronted with as many as 19 statements,
all of which are improvements. However, they are
all improvements regarding specific particulars with
reference to specific point, e.g. in the
cross-examination para 3 he stated :
1) I have also stated before police that as
soon as Jethava was entering his
bungalow, three persons came from the
inner side of the bungalow.
2) I have also stated before police that out
of other two persons, one came ahead near
the gate and asked me to open the gate by
showing chopper.
3) I have also stated before police that,
that time the another person who was
having revolver in his hand was trying to
fire at me and, therefore, I gave kick to
another motorcycle due to which that
motorcycle also feel down…..”
4) I also stated before the police that in
the meanwhile several persons assembled
there and we all nabbed that person.
Out of the 19 improvements made, I have quoted some
but all versions are of the same type and nature,
therefore they are as held by the trial court are
improvements with reference to particular statement
made before the police or the particulars given in
court but they do not affect the material part of
the evidence of witness Prashant Patwardhan that he
was present at the scene, he obstructed the accused,
he informed Harilal and his daughter, and witnessed
the entire incident and he was one of the person to
nab accused Nos. 1 and 2. Therefore merely because
this witness has made improvements or he has stated
something in the court which he did not told to the
police in the manner the questions are put, cannot
be a ground to reject his testimony.
17. Appreciation of evidence by the trial
court is proper, reliance on the testimony of
witnesses for convicting the accused is also proper
and all the circumstances brought on record
including recovery of the ornaments from the
accused, their immediate arrest, injury to Sachin
and similarity of particulars about the accused No.3
in the FIR, and identification in court by
independent witnesses and the lodge owner are all
sufficient to hold the accused guilty. Therefore,
appeal is required to be dismissed.
18. However, alternatively, it was contended
by Mr. chomal that considering the age of the
accused, the time gap and other circumstances,
punishment should be reduced. I therefore pass the
following order :
ORDER
19. Appeal is partly allowed. Conviction of
Accused Nos. 2 and 3 under Sections 392/397 of the
I.P.C. and under Section 454 of I.P.C. is
maintained. Sentence is however reduced to eight
years respectively. Their conviction under Section
3/25(1) of Arms Act and the sentence awarded is
maintained. Rest of the impugned order to remain
the same. Accused to surrender before the trial
court within four weeks from today. Thereafter,
their bail bonds will stand cancelled. Appeal
disposed of accordingly. Certified copy expedited.