{"id":151641,"date":"2011-10-05T00:00:00","date_gmt":"2011-10-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangal-vs-the-state-of-maharashtra-on-5-october-2011"},"modified":"2017-12-19T07:03:37","modified_gmt":"2017-12-19T01:33:37","slug":"mangal-vs-the-state-of-maharashtra-on-5-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangal-vs-the-state-of-maharashtra-on-5-october-2011","title":{"rendered":"Mangal vs The State Of Maharashtra on 5 October, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mangal vs The State Of Maharashtra on 5 October, 2011<\/div>\n
Bench: U.V. Bakre<\/div>\n
     HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                      1\/18\n\n\n                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                  NAGPUR BENCH AT NAGPUR.\n\n\n\n\n                                                                                                      \n                                  CRIMINAL APPEAL NO. 242 OF 2008\n                                              WITH\n                                  CRIMINAL APPEAL NO. 312 OF 2008\n\n\n\n\n                                                                      \n                                              WITH\n                                  CRIMINAL APPEAL NO. 795 OF 2008\n\n     CRI. APPEAL NO. 242\/08 :\n\n\n\n\n                                                                     \n                Mangal s\/o Tularam Warkhade,\n                aged about 31 yrs., Occp. Nil,\n                r\/o Lohara, Tah. & Distt. \n                Chandrapur.       ::                                          APPELLANT\n\n\n\n\n                                                     \n                -: Versus :-\n\n\n\n                Chandrapur.\n                            \n                The State of Maharashtra,\n                through P.S.O., City Police Station,\n                                                              ::                   RESPONDENT\n                        ............................................................................\n                           \n                           Mr. A. H. Lohiya, Advocate for the appellant.\n                       Mr. P. D. Kothari, A.P.P. for the respondent-State.\n                        ...........................................................................\n\n     CRI. APPEAL NO. 312\/08 :\n      \n\n\n          1. Mahadeo s\/o Jalpat Todase\n   \n\n\n\n             aged about 35 yrs., Occp. Labour,\n             r\/o Chandrapur,\n             Tah. & Distt. Chandrapur.\n\n          2. Pramod s\/o Mahadeo There,\n\n\n\n\n\n             aged about 20 yrs., Occp.  Labour\n             r\/o Morwa, Tah. & Distt. Chandrapur\n\n          3. Ajay s\/o Kanhoji Raut,\n             aged about 20 yrs., Occp. Driving,\n             r\/o Morwa, \n\n\n\n\n\n             Tah. & Distt. Chandrapur.      ::                                APPELLANTS\n\n                        -: Versus :-\n\n                The State of Maharashtra,\n                through P.S.O., City Police Station,\n                Chandrapur.                                   ::                   RESPONDENT\n                        ............................................................................\n                           Mr. R. M. Daga, Advocate for the appellants.\n                       Mr. P. D. Kothari, A.P.P. for the respondent-State.\n                        ...........................................................................\n\n\n\n\n                                                                      ::: Downloaded on - 09\/06\/2013 17:49:08 :::\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                                       2\/18\n\n\n     CRI. APPEAL NO. 795\/08 :\n\n                Chunnilal s\/o Tulshiram Borkar,\n\n\n\n\n                                                                                                               \n                aged about 45 yrs., Occp. Labour,\n                r\/o Nehru Nagar, Chandrapur,\n                Tah. & Distt. Chandrapur,\n\n\n\n\n                                                                              \n                Presently at District Prison, \n                Chandrapur.         ::                                                 APPELLANT\n\n                -: Versus :-\n\n\n\n\n                                                                             \n                The State of Maharashtra,\n                through P.S.O., City Police Station,\n                Chandrapur.                                        ::                    RESPONDENT\n             .............................................................................................................\n            Mr. A. H. Lohiya, Advocate (appointed through Court) for the appellant.\n\n\n\n\n                                                        \n                             Mr. P. D. Kothari, A.P.P. for the respondent-State.\n                              ...........................................................................\n\n     CORAM : \n                              ig                 : U. V. BAKRE, J.\n     DATE OF RESERVING JUDGMENT         : 12TH SEPT., 2011\n     DATE OF PRONOUNCING JUDGMENT :  05TH OCT., 2011\n                            \n                                                      J U D G M E N T \n<\/pre>\n
                         These   appeals,   being   disposed   of   by   common   judgment,   are <\/p>\n
     arising   out   of   the   judgment   and   order   dated   15\/5\/2008,   passed   by   the <\/p>\n
     learned   Additional   Sessions   Judge,   Chandrapur   in   Sessions   Trial   No. <\/p>\n
     18\/2006.  The appellants of Criminal Appeal No. 312\/08 were accused Nos.\n<\/p>\n
     1, 2 and 3; the appellant of Criminal Appeal No. 242\/08 was accused No. 4;\n<\/p>\n
     whereas  the  appellant   of  Criminal   Appeal  No.  795\/08     was  accused   No.5.\n<\/p>\n
     The appellants shall hereinafter be referred to as the accused persons as per <\/p>\n
     their numbers in the Sessions Trial.\n<\/p>\n
     2.          Accused Nos. 1 to 5 were tried for offence punishable under Section <\/p>\n
     395 read with Section 397 of the Indian Penal Code (for short, I.P.C.) and <\/p>\n
     Section 3 read with Section 25 of the Arms Act, 1959.\n<\/p>\n
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      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                   3\/18<\/p>\n
     3.            Vide the impugned judgment and order, accused Nos. 1 to 5   are <\/p>\n
     acquitted of the offence under Section 3 read with Section 25 of the Arms Act.\n<\/p>\n
     They are held guilty of the offence punishable under Section 395 read with <\/p>\n
     Section   397   of   I.P.C.   and   convicted   and   sentenced   to   undergo   rigorous <\/p>\n
     imprisonment for seven years and to pay fine of Rs.2,000\/- each in default to <\/p>\n
     undergo rigorous imprisonment for further period of one year.\n<\/p>\n
     4.                 Case of the prosecution, in short, is as follows :-\n<\/p>\n
                        (i)       Mr.   Shridharan   Nair   was   working   as   Deputy   Executive
\n                               ig Engineer with Maharashtra State Electricity Transmission
\n                                  Company   and   was   posted   at   Ballarshah   whereas   Mr.
\n                                  Shamrao Balki was also working in the same department <\/p>\n
                                  as Assistant Engineer and posted at Mul.\n<\/p><\/blockquote>\n
                        (ii)      On   29\/7\/2005,   Mr.   Nair   received   the   sum   of
\n                                  Rs.6,64,190\/- from the Division office, Ballarshah towards <\/p>\n
                                  payment   of   salary   to   staff   members.     Out   of   the   above <\/p>\n
                                  amount, he handed over Rs.1,24,410\/- to one Mr. Shukla,
\n                                  the Assistant Engineer of Sub-station, Gadchiroli and also
\n                                  distributed Rs.11,400\/- towards the payment of salary of <\/p>\n
                                  two employees of his office.\n<\/p><\/blockquote>\n
                        (iii)     Mr. Nair handed over an amount of Rs.1,04,630\/- to Mr.
\n                                  Balki for distributing the salary of employees of the office <\/p>\n
                                  at Mul and kept Rs.4,31.350\/- in a VIP suitcase of brown
\n                                  colour.   Mr.   Balki   kept   the   amount   given   to   him   by   Mr.
\n                                  Nair in a bag which was with him.<\/p><\/blockquote>\n
                        (iv)      Thereafter Mr. Nair, Mr. Balki, the driver of Mr. Nair by
\n                                  name  Bhujade,  the helper  to Mr.  Nair  by name  Shende,
\n                                  Mr.   Askar   and   Smt.   Bharti     sat   in   the     jeep   bearing
\n                                  No. MZV-4500 in order to go to Chandrapur. The suitcase <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                 4\/18<\/p>\n
                                  containing the   amount along with two other brief cases
\n                                  which also contained money, were kept in the rear portion <\/p>\n
                                  of the jeep which was driven by Mr. Balki. Near Prasanna
\n                                  Petrol Pump, Smt. Bharti and Mr. Askar got down from the <\/p>\n
                                  jeep and the jeep proceeded further.\n<\/p>\n
                        (v)       When   the   jeep   was   passing   through   bypass   and   had <\/p>\n
                                  reached   near   railway   over-bridge,   at   about   5.10   p.m.,   a
\n                                  Tata   Sumo   jeep   overtook   the   jeep   No.   MZV-4500   and
\n                                  hence the said jeep  had to stop.\n<\/p>\n
                        (vi)      About 6-7 persons were in that Tata Sumo, out of which
\n                               ig two armed with country made gun and knife alighted and
\n                                  one of them who had the gun went near Mr. Balki and the
\n                                  other   with   knife   went   near   Mr.   Nair.   Weapons   were <\/p>\n
                                  pointed out to both of them. Thereafter, two more persons
\n                                  from the Tata Sumo got down, went to the rear side of the
\n                                  jeep No. MZV-4500, collected the suitcase and brief cases, <\/p>\n
                                  put   them   in   Tata   Sumo   and   all   of   them   went   away
\n                                  towards Chandrapur.\n<\/p>\n
                        (vii)     Mr. Nair and Mr. Balki came with the jeep to Ramnagar
\n                                  police station.  They had noted the registration number of <\/p>\n
                                  the Tata Sumo to be MH-15\/R-4680.  Mr. Nair lodged the
\n                                  report.\n<\/p>\n
                        (viii) Crime was registered.   The Tata Sumo along with driver <\/p>\n
                                  Mr.   Mangal   Turankar   was   nabbed.     An   amount   of
\n                                  Rs.6,000\/-   was   found   in   that   Tata   Sumo,   which   was
\n                                  attached.     Mr.   Mangal   pointed   out   the   spot   in   jungle
\n                                  where the suitcase  was partly burnt  and from that spot,
\n                                  the labels showing the name of the bank and partly burnt
\n                                  suitcase was attached.\n<\/p>\n
                        (ix)      Accused No.5 is history sheeter.  When his photograph was <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                   5\/18<\/p>\n
                                  shown to Mangal, he identified accused No.5 as one of the
\n                                  culprits.   The cellphone  of accused No.5 was traced and <\/p>\n
                                  from   that   clue,   accused   Nos.   1   and   3   were   arrested   on
\n                                  17\/8\/2005 whereas accused Nos. 2 and 4 were arrested <\/p>\n
                                  on 19\/8\/2005.\n<\/p>\n
                        (x)       Cash   of   Rs.22,000\/-   on   one   occasion   and   cash   of <\/p>\n
                                  Rs.22,325\/- on subsequent occasion was recovered at the
\n                                  instance of accused No.1.  A Television set was also seized
\n                                  from his house.   The country made gun and Rs.43,300\/-
\n                                  were recovered at the instance of accused No.2.  The cash <\/p>\n
                                  of Rs.35,000\/-  was  recovered  at the  instance  of accused
\n                               ig No.3.     The   cash   of     Rs.54,000\/-   was   recovered   at   the
\n                                  instance   of   accused   No.4.     Mr.   Mangal   Turankar   was
\n                                  released   under   Section   169   of   the   Code   of   Criminal <\/p>\n
                                  Procedure.  The Test Identification Parade of accused Nos.
\n                                  1 to 4 was conducted, in which they were identified by the
\n                                  witnesses.\n<\/p>\n
                        (xi)      Accused   No.5   was   arrested   on   31\/12\/2005   and   the <\/p>\n
                                  suitcase containing rubber stamps of the office of Mr. Nair,
\n                                  identity   card,   etc.   were   recovered   at   his   instance.   Test
\n                                  Identification Parade of accused No.5 was held and he was <\/p>\n
                                  also identified by the witnesses.\n<\/p>\n
                        (xii)     It   was   revealed   that   two   more   persons   namely:   Mr.
\n                                  Mahesh   Golapalli   @   Gurle   and   Sanu   Badwal     had   also <\/p>\n
                                  taken part in the dacoity.  They could not be traced.\n<\/p>\n
                        (xiii) Charge-sheet came to be filed against accused Nos. 1 to 5.\n<\/p>\n
                                  The two persons who could not be nabbed were shown as
\n                                  absconders.\n<\/p>\n
     5.                 The prosecution examined altogether 18 witnesses.  They may be <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                6\/18<\/p>\n
     categorized as under:-\n<\/p>\n
                        (A)          EYE WITNESSES  :-\n\n\n\n\n                                                                                          \n                              (i)       P.W.-2 Mr. Shridharan Nair, who lodged report.\n                              (ii)      P.W.-3 Shamrao Balki.\n\n\n\n\n                                                                  \n                              (iii)     P.W.-11 Mangal Turankar.\n\n\n                        (B)          PANCH WITNESSES  :-\n\n\n\n\n                                                                 \n                              (i)       P.W.-1   Bhaskar   Sahare,   for   spot   panchanama   (Exh.\n<\/pre>\n
                                        37);   spot   panchanama   (Exh.40);   panchanama   of
\n                                        seizure   of   Tata   Sumo   jeep   and   cash   (Exh.41);   and <\/p>\n
                                        disclosure   statement   and   recovery   panchanama   in
\n                                        respect of Rs.54,000\/- at the instance of accused No.4
\n                             ig         (Exhts. 42 and 43).\n<\/p>\n
                              (ii)      P.W.-4   Ajit   Vishwas     for   disclosure   statement   of
\n                                        accused   No.1   and   panchanama   of   recovery   of
\n                                        Rs.22,000\/- at his instance (Exhs. 66 and 67).\n<\/p>\n
                              (iii)     P.W.-5 Rajkumar Meshram, second panch witness for <\/p>\n
                                        exhibits 66 and 67.\n<\/p>\n
                              (iv)      P.W.-7   Laxman   Kalar,   for   recovery   of   suitcase <\/p>\n
                                        containing  rubber   stamps  at  the  instance  of  accused
\n                                        No.5;   and   for   recovery   of   country   made   gun,   some
\n                                        cash and clothes at the instance of accused No.2.\n<\/p>\n
                              (v)       P.W.-18,   Sanjay   Ghate,   for   recovery   of   cash   and
\n                                        country made gun at the instance  of accused Nos. 1
\n                                        and 3.\n<\/p>\n
                        (C)          WITNESSES FOR PROVING NEXUS  :-\n                              (i)       P.W.-6 Sanjiv Gothe, with whom absconding accused \n                                        Sonu Badwal had deposited Rs.25,000\/-.\n\n\n\n\n                                                                  ::: Downloaded on - 09\/06\/2013 17:49:08 :::<\/span>\n<\/pre>\n
      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                7\/18<\/p>\n
                              (ii)      P.W.-8  Shriram Upganlawar with whom accused No.3
\n                                        had   placed   order   for   gold   coins   by   handing   over <\/p>\n
                                        demand draft of Rs.28,100\/-.\n<\/p>\n
                              (iii)     P.W.-9 Akshay Andhalkar, who sold T.V. Set.\n<\/p>\n
                              (iv)      P.W.-10 Namdeo Nimbhare,  at whose  work  place  (a <\/p>\n
                                        farm house), accused Nos. 1 to 5 used to come and
\n                                        use telephone. P.W.-10 has turned hostile.\n<\/p>\n
                              (v)       P.W.-13 Mahadeo There, the father of accused No.2, <\/p>\n
                                        who produced Rs.8,000\/-.\n<\/p>\n
                              (vi)      P.W.-14   Gajanan   Chandankhede,   who   prepared   the
\n                                        sketch of the spot of occurrence.\n<\/p>\n
                              (vii)     P.W.-16 Vijay Mohurle, a police constable who carried
\n                                        the country made gun to Ballistic Expert.\n<\/p>\n
                        (D)          EXECUTIVE MAGISTRATE  :-\n<\/p>\n
                                        P.W.-12 Tulshidas  Gedekar,   who  conducted  the  Test
\n                                        Identification Parade in respect of accused Nos. 1 to 4.\n<\/p>\n
                        (E)          POLICE WITNESSES (INVESTIGATION )  :-\n                              (i)       P.W.-15 Chandraprakash Mehra, P.S.I., who registered \n<\/pre>\n
                                        the offence upon receipt of written report of Mr. Nair.\n<\/p>\n
                              (ii)      P.W.-17   Krushnara   Adewar,   who   carried   out   further
\n                                        investigation.\n<\/p>\n
     6.            The case of the accused persons was of denial simplicitor.  They did <\/p>\n
     not examine any witness in defence.\n<\/p>\n
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      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                        8\/18<\/p>\n
     7.                 Upon consideration of the entire evidence on record, the learned <\/p>\n
     Trial Judge found that there was no sanction under Section 39 of the Arms <\/p>\n
     Act procured by the prosecution.  Hence, the accused persons were acquitted <\/p>\n
     of the offence under Section 3 read with Section 25 of the Arms Act. The trial <\/p>\n
     Judge has further held that accused Nos. 1 to 5 have been identified by the <\/p>\n
     eye witnesses, to have participated in the dacoity and they were armed with <\/p>\n
     country made gun, knife or kukri which are deadly weapons.  Accused Nos. 1 <\/p>\n
     to 5 have, therefore, been convicted and sentenced as stated earlier.\n<\/p>\n
     8.               Heard arguments.   Learned Advocate Shri A. H. Lohiya argued on <\/p>\n
     behalf of accused Nos. 3 and 5 whereas learned Advocate Shri R. M. Daga <\/p>\n
     argued   on   behalf   of   accused   Nos.   2,   3   and   4.     Learned   A.P.P.   Shri   P.   D.\n<\/p>\n
     Kothari argued on behalf of the State.\n<\/p>\n
     9.                 Perused the record and proceedings.\n<\/p>\n
     10.                Let us first see if any recovery establishing nexus of the accused <\/p>\n
     with the crime is proved.\n<\/p>\n
     11.                The learned trial Judge has not  discussed the evidence of any of <\/p>\n
     the   witnesses   examined   by   the   prosecution   for   proving   recoveries   at   the <\/p>\n
     instance of the accused persons and other recoveries.  In paragraph 39 of the <\/p>\n
     impugned judgment, the trial Judge has observed thus :-\n<\/p>\n
                        “…For a moment let us accept that the discovery in respect of cash
\n                        amount   at   the   behest   of   accused   Nos.   1,   2,   3   and   4   is   not
\n                        established in real sense as contemplated under Section 27 of the
\n                        Evidence Act. Nevertheless, it remains fact that in all total cash of  <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                     9\/18<\/p>\n
                        Rs.2   lakhs and   more is  at least seized  during  the  investigation.
\n                        But,   it  is  curious   enough   that   no  witness  is   coming   forward   to  <\/p>\n
                        claim this cash except the office of Mr. Nair and Mr. Balki as per
\n                        application Exh.12 which was allowed by my predecessor.  When  <\/p>\n
                        these amounts  were seized from various houses or from witness
\n                        like   father   of   accused   No.2   and   witness   Mr.   Sanjay   Ghote
\n                        (P.W.-6), it is the prosecution version that absconding accused Mr.
\n                        Sonu Badwal had deposited Rs.25,000\/- with Sanjiv Ghote and he  <\/p>\n
                        produced the same which was seized under panchanama Exh.75.
\n                        However,   this   witness   had   also   not   claimed   that   it   was   his
\n                        amount.   These circumstances clearly show that the amounts at  <\/p>\n
                        least seized during investigation were the booty of dacoity…”\n<\/p><\/blockquote>\n
     12.            First of all, the recoveries at the instance of the accused persons <\/p>\n
     are   not   proved   beyond   reasonable   doubt.   Secondly,   the   numbers   of   the <\/p>\n
     currency notes which were robbed by the dacoits are not known and hence <\/p>\n
     they   cannot   be   identified.   The   fact   that   the   amount   recovered   being, <\/p>\n
     cumulatively, big and cannot be expected to have been planted, coupled with <\/p>\n
     the   fact   that   the   accused   persons   have   not   claimed   that   amount   to   be <\/p>\n
     belonging   to   them,   may   be   one   of   the   circumstances   against   the   accused <\/p>\n
     persons. But the same cannot be, in itself, held to be sufficient to prove the <\/p>\n
     guilt of the accused persons.\n<\/p>\n
     13.                P.W.-6   Sanjiv   Gothe   has   spoken   about   Sanu   Badwal,   who   is <\/p>\n
     absconding   and   who   has   not   been   tried   by   the   trial   Court.     The   alleged <\/p>\n
     accused   Sanu   Badwal   had   no   opportunity   to   cross   examine   P.W.-6.     The <\/p>\n
     evidence   of   P.W.-6   is   not   at   all   relevant   as   against   accused   Nos.   1   to   5.\n<\/p>\n
     Therefore, attachment of amount of Rs.25,000\/- handed over by P.W.-6 to the <\/p>\n
     police, by saying that it was given to him by Sanu Badwal, has nothing to do <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                               10\/18<\/p>\n
     with accused Nos. 1 to 5, since the nexus of that money with them has not <\/p>\n
     been proved.\n<\/p>\n
     14.                P.W.-1,   allegedly   taken   as   one   of   the   panch   witnesses   for   the <\/p>\n
     panchanamas   Exhts.   40,   41,   42,   and   43,   being   a   regular   witness   for <\/p>\n
     Chandrapur police for the last 5-7 years, signing panchanamas drawn by the <\/p>\n
     police officers of Chandrapur police station, every year in about 10 cases, he <\/p>\n
     is not   at  all reliable  panch   witness  for  disclosure   and consequent  recovery <\/p>\n
     under   section   27   of   the   Indian   Evidence   Act.     P.W.-17,   the   Investigating <\/p>\n
     Officer has admitted in  his cross-examination  that P.W.-1 is  a stock  panch <\/p>\n
     witness.     P.W.-18   Sanjay   Ghate   was   the   second   panch   witness   for   the <\/p>\n
     panchanama   (Exh.40)   regarding   the   spot   shown   by   Mangal   Turankar   and <\/p>\n
     attachment   of   partly   burnt   pieces   of   paper,   lock   plate   and   hook   of   burnt <\/p>\n
     suitcase.     But,   P.W.-18   is   totally   silent   on   this   panchanama.     The   second <\/p>\n
     panch witness taken for panchanama (Exh.41) of attachment of Rs.6,000\/-\n<\/p>\n
     from Tata Sumo jeep and for the disclosure\/recovery panchanama (Exhts 42 <\/p>\n
     and 43) of Rs.54,000\/-, allegedly at the instance of accused No.4, have not <\/p>\n
     been examined.   Hence, the recovery of cash of Rs.6,000\/- and Rs.54,000\/-, <\/p>\n
     as the booty of dacoity, is not proved.\n<\/p>\n
     15.                P.W.-4 does not say that accused No. 1 had made a disclosure <\/p>\n
     that he concealed the amount.  P.W.-4 says that accused No.1 stated that he <\/p>\n
     could take out amount from his house and then took out Rs.22,000\/- from the <\/p>\n
     wooden cot of his house.  Thus, accused No.1 is not proved to be the author <\/p>\n
     of concealment.  In his cross-examination, P.W.-4 has stated that he did not <\/p>\n
     visit the police station, Ramnagar and that the accused after taking them to <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                              11\/18<\/p>\n
     his house made the disclosure.   He says that disclosure statement as  well as <\/p>\n
     recovery panchanama were prepared at the house of the accused.  The above <\/p>\n
     is contrary to the panchanama and disclosure statement (Exhts. 66 and 67).\n<\/p>\n
     The   above   is   also   not   in   accordance   with   section   27   of   the   Evidence   Act.\n<\/p>\n
     Because of the above evidence of P.W.-4, as an afterthought,the second panch <\/p>\n
     witness (P.W.-5) was examined by the prosecution. P.W.-4 was not declared <\/p>\n
     hostile. His evidence cannot be discarded just like that.  Since the evidence of <\/p>\n
     P.W.-5   is   contrary   to   that   of   P.W.-4,   even   P.W.-5   cannot   be   relied   upon.\n<\/p>\n
     Hence,   the   said   amount   of   Rs.   22,000\/-   cannot   be   held   as   the   booty   of <\/p>\n
     dacoity.\n<\/p>\n
     16.                Neither P.W.-2 nor P.W.-3 has stated that he had with him any <\/p>\n
     suitcase containing papers, rubber stamps, etc.  Even otherwise, such suitcase <\/p>\n
     was recovered from an open public place accessible to all on 3\/1\/2006 which <\/p>\n
     is   after   more   than   five   months.     The   evidence   of   P.W.-7   does   not   prove <\/p>\n
     recovery   of   the   said   suitcase,   etc.   at   the   instance   of   any   of   the   accused <\/p>\n
     persons.     His   evidence   also   does   not   prove   that   cash   of   Rs.43,300\/-   was <\/p>\n
     recovered at the instance  of accused No.2 or that cash of Rs.10,000\/- was <\/p>\n
     recovered   at the instance of accused No.3. The case of the prosecution,in this <\/p>\n
     regard, has only remained on papers.\n<\/p>\n
     17.                It is not known as to in what manner the draft of   Rs.28,100\/-\n<\/p>\n
     given by accused No.3 to Gold Quest International Private Ltd. for purchase of <\/p>\n
     gold coin is relevant to the present case.  It cannot be understood as to why <\/p>\n
     the police asked P.W.-8 to get the said amount  of Rs.28,100\/- invested by <\/p>\n
     accused No.3 transferred to his name and as to why after such transfer, the <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                           12\/18<\/p>\n
     said amount was attached from P.W.-8. The evidence of P.W.-8 cannot prove <\/p>\n
     nexus of the said amount of  Rs.28,100\/- with the booty of dacoity.\n<\/p>\n
     18.                The   evidence   of   P.W.-9   reveals   that   one   television   set   was <\/p>\n
     purchased   on   30\/7\/2005   from   the   shop   where   he   was   working.     The <\/p>\n
     relevancy of said television set with the present crime is not proved.\n<\/p>\n
     19.                P.W.-13 has denied that his son, accused No.2, had handed over <\/p>\n
     the amount  of Rs.8,000\/- to him and that accused No.2 took  out  the  said <\/p>\n
     amount and handed it over to the police. Hence the recovery of Rs. 8,000\/-, <\/p>\n
     allegedly at the instance of the accused No. 2, is not proved.\n<\/p>\n
     20.                Lastly, the evidence of P.W.-18, is not of such worth which can <\/p>\n
     prove that cash of  Rs.1,000\/- was recovered at the instance of accused No.2 <\/p>\n
     or that cash of Rs.20,000\/- was recovered at the instance of accused No. 3 or <\/p>\n
     that cash of Rs.10,000\/- was recovered at the instance of accused No.1.\n<\/p>\n
     21.                The evidence of the investigating officer (P.W.-17) is also not of <\/p>\n
     the   nature   as   could   prove   various   disclosures   allegedly   made   by   accused <\/p>\n
     persons under Section 27 of the Evidence Act and consequent recovery at the <\/p>\n
     instance of each of the accused persons.\n<\/p>\n
     22.                P.W.-2   and   P.W.-3   have   not   mentioned   the   numbers   on   the <\/p>\n
     currency notes, which were with them, for the purpose of identification of the <\/p>\n
     cash recovered by the police vis-a-vis the cash looted by dacoits, though it was <\/p>\n
     possible to get the series nos.  and serial nos. from the bank.\n<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 17:49:08 :::<\/span><\/p>\n
      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                             13\/18<\/p>\n
     23.                In   the   circumstances   above,   the   case   of   the   prosecution   rests <\/p>\n
     solely on the eye witnesses namely P.W.-2, P.W.-3 and P.W.-11.\n<\/p>\n
     24.                According to the First Information Report prepared on the basis <\/p>\n
     of written report lodged by P.W.-2, the amount of Rs.5,39,780\/- was kept in <\/p>\n
     brown coloured VIP suitcase.   The denominations of currency notes are also <\/p>\n
     mentioned.  But, in his deposition, P.W.-2 says that Mr. Balki was carrying an <\/p>\n
     amount   of   Rs.1,04,630\/-   given   by   him   to   Balki   and   an   amount   of <\/p>\n
     Rs.4,31,350\/- was kept in brown suitcase.   Even the total of Rs.4,31,350\/-\n<\/p>\n
     and Rs.1,04,630\/- is Rs.5,35,980\/- and not Rs.5,39,780\/-.   In the report as <\/p>\n
     well   as   in   the   deposition,   P.W.-2   has   stated   that   he   had   received <\/p>\n
     Rs.6,64,190\/-   from   the   Division   Office.     He   has   stated   that   he   gave <\/p>\n
     Rs.1,24,410\/- to Shukla;      Rs.11,400\/- to two employees and Rs.1,04,630\/-\n<\/p>\n
     to   Balki.   If   the   above   was   true,   the   remainder   with   P.W.-2   had   to   be <\/p>\n
     Rs.4,23,750\/-.   Though P.W.-3, in his deposition says that he was given an <\/p>\n
     amount of Rs. 1,04.630\/- by P.W.-1, however he has been confronted with his <\/p>\n
     police statement wherein this fact is not mentioned.\n<\/p>\n
     25.                There is variance in the testimony of P.W.-2, P.W.-3 and P.W.-11 <\/p>\n
     regarding the fact as to how many dacoits had alighted from the jeep and <\/p>\n
     how many were inside the jeep. There is also variance on the facts as to what <\/p>\n
     exactly happened and in what manner.\n<\/p>\n
     26.                Though P.W.-2,  P.W.-3 and P.W.-11 say that they had identified <\/p>\n
     accused Nos. 1 to 4 in an Identification Parade, however, none of them has <\/p>\n
     stated in his deposition as to which of the accused Nos. 1 to 4 did what.  All <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                        14\/18<\/p>\n
     have deposed by saying that one did this and other did that and at the end <\/p>\n
     they have made a general statement that they identified accused Nos. 1 to 4, <\/p>\n
     in Identification Parade.\n<\/p>\n
     27.                None of the witnesses says that accused No. 5 was identified by <\/p>\n
     him in Identification Parade.  P.W.-2 and P.W.-3 have not identified accused <\/p>\n
     No.5 in the Court also.\n<\/p>\n
     28.                P.W.-11, after he was recalled on 17\/3\/2008, has deposed  that <\/p>\n
     accused   No.5   had   engaged   his   vehicle   on   the   day   of   incident   and   had <\/p>\n
     removed   the   ignition   key   when   his   vehicle   was   halted   near   Junona   Naka.\n<\/p>\n
     P.W.-11 has stated that it was accused No.5, who had lastly handed over Rs.\n<\/p>\n
     6,000\/- to him.   However, in his cross-examination, P.W.-11 has stated that <\/p>\n
     the   news   was   published   in   the   daily   news   paper   that   accused   No.5   is <\/p>\n
     absconding and that his photograph was also published.   It is quite possible <\/p>\n
     that on the basis of photograph of accused No.5 published in the newspaper <\/p>\n
     that P.W.-11 has identified accused No.5, in the Court.   P.W.-11 has further <\/p>\n
     stated that he knows accused No.5 by his name.  If that be so, there had to be <\/p>\n
     no difficulty for P.W.-11 to state on 4\/7\/2007 as to what all acts were done <\/p>\n
     by accused No.5, by referring to his name.  P.W.-11 has not done so.  As far as <\/p>\n
     accused Nos. 2 and 4 are concerned, he has referred to them specifically as <\/p>\n
     accused Nos. 2 and 4 only when they had initially boarded his vehicle along <\/p>\n
     with  the  third  person.     P.W.-11   has   not   referred  to   these   accused   persons <\/p>\n
     specifically by their numbers, thereafter.\n<\/p>\n
     29.                In terms of the procedure mentioned in the Criminal Manual for <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                   15\/18<\/p>\n
     holding identification parades, the following is a very important step and the <\/p>\n
     same is :-\n<\/p>\n
                                 “If there is only one accused person to be identified, there <\/p>\n
                        should be at least half a dozen persons placed in the parade.  If
\n                        two accused persons are to be identified, then there should be
\n                        about   10   or   12   persons   in   the   parade.     Not   more   than   two
\n                        accused should be placed in any single identification parade; but <\/p>\n
                        the  Executive  Magistrate\/Honorary  Magistrate   should  see that
\n                        they are persons of more or less the same physical appearance,
\n                        and   approximately   of   the   same   age,   as   the   person   to   be <\/p>\n
                        identified.     It   is   desirable   that   innocent   persons   to   be   mixed
\n                        should be different for each such parade.”<\/p><\/blockquote>\n
                        The evidence of P.W.-12, the Naib Tahsildar, reveals that all the <\/p>\n
     four   accused   persons   were   asked   to   stand   in   a   line   along   with   only   eight <\/p>\n
     dummies and witnesses were called to identify them in single identification <\/p>\n
     parade.     For this reason itself, the test identification parade loses its value <\/p>\n
     and cannot inspire confidence.\n<\/p>\n
     30.                In his cross-examination, P.W.-2 has stated that at the time of <\/p>\n
     incident, he had seen only 3 dacoits and two out of those three had concealed <\/p>\n
     their faces by means of cloth.  He has stated that the dacoits who had caused <\/p>\n
     injury to him and pointed a country pistol at Balki had covered their face by <\/p>\n
     means of cloth.  At the end, P.W.-2 has stated that on the spot, three dacoits <\/p>\n
     had covered their partial face by means of cloth.   The question arises as to <\/p>\n
     how   P.W.-2   could   identify   accused   Nos.   1   to   4   during   the   identification <\/p>\n
     parade.     P.W.-2   has   stated   that   he   had   not   identified   accused   Chunnilal <\/p>\n
     (accused No.5) in the identification parade.\n<\/p>\n
     31.                P.W.-3 has made some improvement.  He does not say that three <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                          16\/18<\/p>\n
     persons had covered their face with cloth.  P.W.-3 says that two persons had <\/p>\n
     come near him and one had pointed out pistol at his chest and the other had <\/p>\n
     pointed a knife on his abdomen.  He has  stated in the cross-examination  that <\/p>\n
     the dacoits who were standing by his side had concealed their entire face by <\/p>\n
     means of cloth except the eyes.  He then corrected himself by saying that his <\/p>\n
     face was only partially covered by cloth.\n<\/p>\n
     32.                P.W.-11 has made further improvement in the case as he does <\/p>\n
     not at all say that any of the dacoits had covered his face either partially or <\/p>\n
     completely, except the eyes, by means of cloth. P.W.-11, in fact, is the person <\/p>\n
     who had carried the dacoits in his Tata Sumo jeep from beginning till end and <\/p>\n
     was  arrested   initially   as   one   of   the   accused   persons   but   subsequently   was <\/p>\n
     released under Section 169 of the Code of Criminal Procedure and then he <\/p>\n
     was made a witness.  The evidence of such a witness cannot be wholly relied <\/p>\n
     upon since he is likely  to speak  that which  is wanted by the Investigating <\/p>\n
     agency, which discharged him as an accused.\n<\/p>\n
     33.                At page No.1 of his deposition, P.W.-11 has stated that accused <\/p>\n
     Nos.2 and 4 and the accused not present before the Court had boarded his <\/p>\n
     vehicle.   This was stated by P.W.-11 on 4\/7\/2007, before recess.   But, after <\/p>\n
     recess   when   his   examination-in-chief   resumed,   he   changed   his   version   by <\/p>\n
     saying that accused Nos. 1 and 3 had boarded his vehicle from Bengali Camp.\n<\/p>\n
     He has stated that after he was taken to police station along with his vehicle, <\/p>\n
     he was interrogated and for initial half an hour, he did not disclose truth to <\/p>\n
     the police and told them lies. The above facts also weaken the testimony of <\/p>\n
     P.W.-11.\n<\/p>\n
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      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                 17\/18<\/p>\n
     34.                The   two   eye-witnesses   namely   Bhujade   and   Shende   have   not <\/p>\n
     been examined and hence adverse inference is bound to be drawn as against <\/p>\n
     the prosecution.\n<\/p>\n
     35.                Learned A.P.P. has relied upon the following citations :-\n<\/p>\n
                       (a)        Ankush Maruti Shinde Vs. State of Maharashtra<\/p>\n<\/blockquote>\n
                                  – (2009) 6 S.C.C. 667.\n<\/p><\/blockquote>\n
                                  Proposition :-\n<\/p><\/blockquote>\n
                                  “Object of TI parade is (i) to enable witnesses  to satisfy
\n                                  themselves that the person whom they suspect is really the <\/p>\n
                                  one who was seen by them committing the offence; and\n<\/p><\/blockquote>\n
                                  (ii) to satisfy investigating authorities that suspect is the
\n                              ig  real person whom witnesses had seen in connection with
\n                                  said occurrence.”\n<\/p><\/blockquote>\n
                       (b)        Pravin   Vs.  State  of   Madhya   Pradesh   –   (2008)   16   S.C.C.\n<\/p><\/blockquote>\n
                                  166.<\/span><\/p>\n
                                  Proposition :-\n<\/p><\/blockquote>\n
                                  “Where   there   is   recovery   of   crime   articles   and   no
\n                                  explanation   is   given   by   accused   as   to   the   possession   of <\/p>\n
                                  gun, a bag which belonged to a witness as well as huge
\n                                  sum of money, this lends support to fair investigation.”\n<\/p><\/blockquote>\n
                       (c)        Ram Babu Vs. State of U.P. – AIR 2010 S.C. 2143<\/p>\n
                                  Proposition :-\n<\/p><\/blockquote>\n
                                  “Purpose   of   Test   Identification   Parade   is   to   test   and <\/p>\n
                                  strengthen   trustworthiness   of   substantive   evidence   in
\n                                  Court.   Evidence  with regard to T. I. Parade  is used for
\n                                  corroboration.”\n<\/p><\/blockquote>\n
     36.                There can be no dispute about the principles laid down in the <\/p>\n
     above citations, in the facts and circumstances of those cases.  In the present <\/p>\n
     case,   though   there   is   recovery   of   huge   amount   and   other   articles   like <\/p>\n
     television,   money   paid   through   demand   draft,   etc.,   and   of   the   weapons, <\/p>\n
     however, such recoveries are not believed by the trial Court and this Court <\/p>\n
     also, after considering the evidence on record, has not believed the same.  As <\/p>\n
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\n      HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
\n     \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt                                                  18\/18<\/p>\n
     far as the identification of accused persons is concerned, the accused persons <\/p>\n
     were not known previously to the witnesses and the case rests on the Test <\/p>\n
     Identification Parade only.  The T.I. Parade as already stated above, does not <\/p>\n
     inspire confidence.\n<\/p>\n
     37.                In all the circumstances above, I am of the view that the accused <\/p>\n
     persons are entitled for benefit of doubt.  The impugned judgment and order <\/p>\n
     therefore   warrants   interference.       Accused   Nos.   1   to   5   are   entitled   for <\/p>\n
     acquittal, on benefit of doubt.\n<\/p>\n
     38.<\/p>\n
\n                              \n                        In the result, \n                             \n                        (i)       The appeals are partly allowed.\n\n                        (ii)      The   conviction   and   sentence   of   accused   Nos.   1   to   5   is \n                                  quashed and set aside.\n      \n\n                        (iii)     Accused   Nos.   1  to  5   are   all   given   benefit   of   doubt   and \n<\/pre>\n
                                  acquitted   of   the   offence   under   Section   395   read   with <\/p>\n
                                  Section 397 of I.P.C.\n<\/p>\n
                        (iv)      The bail bonds of accused Nos. 1 to 4 and of their sureties
\n                                  are cancelled.\n<\/p>\n
                        (v)       Accused   No.5   Chunnilal   Borkar   shall   be   released
\n                                  forthwith, if he is not required in any other case.\n<\/p>\n
                        (vi)      The   rest   of   the   dictum   pertaining   to  muddemal  articles,
\n                                  mentioned in paras (4) and (5) of the impugned order, is
\n                                  maintained.\n<\/p>\n
                                                                                  JUDGE<\/p>\n
         wwl<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 17:49:08 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mangal vs The State Of Maharashtra on 5 October, 2011 Bench: U.V. Bakre HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR \/home\/lichade\/judgments\/UVB\/apeal242.08+.odt 1\/18 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-151641","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMangal vs The State Of Maharashtra on 5 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangal-vs-the-state-of-maharashtra-on-5-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangal vs The State Of Maharashtra on 5 October, 2011 - 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