{"id":243690,"date":"2002-02-13T00:00:00","date_gmt":"2002-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shree-rajkumar-asaram-gupta-age-vs-the-state-of-maharashtra-at-the-on-13-february-2002"},"modified":"2016-01-25T12:52:02","modified_gmt":"2016-01-25T07:22:02","slug":"shree-rajkumar-asaram-gupta-age-vs-the-state-of-maharashtra-at-the-on-13-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shree-rajkumar-asaram-gupta-age-vs-the-state-of-maharashtra-at-the-on-13-february-2002","title":{"rendered":"Shree Rajkumar Asaram Gupta, Age … vs The State Of Maharashtra (At The … on 13 February, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shree Rajkumar Asaram Gupta, Age … vs The State Of Maharashtra (At The … on 13 February, 2002<\/div>\n
Author: D Deshpande<\/div>\n
Bench: D Deshpande<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.G. Deshpande, J.<\/p>\n
 1. Heard Mr. Chomal for the appellants
\noriginal accused Nos. 2 and 3, and Mr. Pravin
\nSinghal, learned APP for the State.\n<\/p>\n
 2. Appellants before this court are original
\naccused Nos. 2 and 3. Accused Nos.2 and 3 have
\nbeen convicted under Section 392\/397 of Indian Penal
\nCode and have been sentenced to R.I. for 10 years
\nand fine of Rs.500\/- in default R.I. for one month.
\nThey are also convicted under Section 454 of Indian
\nPenal Code and sentenced to suffer R.I. for 10
\nyears and fine of Rs.500\/- in default R.I. for one
\nmonth. They are further convicted under Section
\n3\/25(1) of Arms Act and sentenced to suffer R.I.
\nfor one year and fine of Rs.500\/- in default R.I.
\nfor one month.\n<\/p>\n
 3. Prosecution case in brief was as under:
\nComplainant Harilal Jethava had a house
\nin Vijay Nagar, Nashik. In fact he had three houses
\non plots bearing No. 25, 26 and 27. He was
\nresiding in a house situate on Plot No. 27 with his
\nwife, and his daughter was residing in a house
\nsituate on Plot No. 26. On 19.9.1995 Mira – the
\ndaughter of the complainant at about 1 p.m. had
\ngone to the house of one Mohanbhai for meals. She
\nhad locked her house. After taking meals she was
\nreturning to her house. She went to another house
\nof her father situate on plot No. 25. At that time
\nPrashant Patwardhan (P.W.7) informed Harilal that
\nsome persons had entered the house of his daughter
\nand one person was standing in front of House No.\n<\/p>\n
26. Two motorcycles were there in front of that
\nhouse. Thereafter, Harilal went to the house of his
\ndaughter Mira, saw those unknown persons and
\nmotorcycles. He questioned the unknown person,
\nunknown person started running away. Harilal tried
\nto catch him. In the meanwhile three unknown
\npersons came out of the house of Mira and they
\nstarted running. Harilal also tried to catch them
\nbut they pushed him. In the meantime Prashant
\nPatwardhan arrived there. He tried to nab them.
\nThere was a scuffle between him and those 3, one of
\nthe thieves was having a revolver and other was
\nhaving a knife. One of the thieves was trying to
\nstart motorcycle, when Prashant Patwardhan pushed
\nhim and at that time one of the thieves who was
\nrunning fired two rounds of the revolver. Out of
\nthose two rounds, one round hit witness Sachin
\ncausing bullet injury to his hand but even then the
\nwitnesses were successful in catching accused No.2
\nRajkumar who was having knife in his hand. On
\nhearing shouts residents of the locality gathered
\nand in the meantime police had also arrived there.
\nPolice took Rajkumar Gupta – Accused No.2 to the
\npolice chowky and other accused i.e. original
\naccused No. 1 was also nabbed. In the search of
\noriginal accused No.1 revolver was found with three
\nrounds, the gold rings and wrist watch were also
\nfound, and from the search of accused No.2 Rajkumar
\nGupta a Rampuri knife,, gold mangalsutra, gold
\nbangles, silver bangles, ear rings and one wrist
\nwatch were found and the same were seized by the
\npolice under panchnama. P.I. Kale (P.W. 12)
\nrecorded the complaint of Harilal vide Exhibit 21.
\nThen scene of offence panchnama was made in the
\nhouse of Harilal. Motorcycles were seized under
\nSpot Panchnama Exhibit 23. Sachin (P.W. 5) witness
\ninjured by bullet was treated by doctor, and both
\nthe accused i.e. original accused Nos. 1 and 2<\/span>
\nwere also referred to the hospital as they had
\nsustained injuries. Complainant Mira identified the
\nornaments which were recovered from both the
\naccused.\n<\/p>\n
 4. On 17.12.1995 original accused No.3
\nRakesh Pande came to be arrested at Bodhpur (UP).
\nHe was brought and transferred in this case. On
\n28.6.1996 Special Judicial Magistrate Shri Pawar
\nheld Identification parade and this accused was
\narrested.\n<\/p>\n
 5. For proving offence complainant examined
\nHarilal Jathva ( P. W. 1), Prashant Patwardhan
\n(P.W. 7), Mira Rathod ( P.W. 3) and other
\nwitnesses, recoveries were proved, injuries to the
\nwitness Sachin Purohit ( P.W. 5) were also proved,
\nand since trial court accepted the case of the
\nprosecution, accused came to be convicted as stated
\nabove, hence this appeal.\n<\/p>\n
 6. It was strenuously urged by Mr. Chomal
\nthat the evidence of the prosecution was full of
\ncontradictions and improvements on all material
\naspects, that there was variance between each of the
\nwitness as each was giving a different story, that
\nthe evidence of Prashant Patwardhan was nothing but
\nimprovements, that name of the accused No.3 was
\ndifferent and he was wrongly identified, that even
\nthough the accused No.3 had no fingers to his right
\nhand, the same fact was not mentioned any where in
\nthe description of the said accused in the
\npanchnama, and therefore his identification is
\ntotally wrong and therefore for all these reasons
\nthe accused were entitled for acquittal.\n<\/p>\n
 7. On the other hand, learned APP contended
\nthat conviction was perfectly justified and proper
\nbecause two out of the three accused were caught on
\nthe spot, stolen property was recovered from them
\nfor which they had no explanation and the property
\nwas identified by Mira as belonging to her, that
\nornaments were recovered from the two accused and
\ntherefore there was nothing to create doubt about
\nthe prosecution case. So far as accused No.3 is
\nconcerned, the learned APP contended that there is
\nnothing on record to show that at the time of the
\nincident the accused No.3 did not have fingers to
\nhis right hand. It could be that this disability
\ncropped up during the period the accused No.3 was
\nabsconding and therefore that could not be a reason
\nto reject the evidence of identification. About the
\nimprovements and contradictions in the evidence of
\nthe witnesses, the learned APP contended that the
\nreasons given by the trial court were justified and
\nthere was no reason to interfere.\n<\/p>\n
 8. There cannot be any dispute that accused
\nNo.2 with absconding original accused No.1 were
\ncaught on the spot along with revolver, chopper and
\nthe ornaments, which were identified by Mira.
\nAdmittedly accused had no concern with the house of
\nMira. They were strangers and the manner and the
\ncircumstances in which they were caught on the spot
\nand attempted to escape, they are being caught on
\nthe spot and beaten by the mob is also supported by
\nthe injuries which the accused No.2 had on his
\nperson as proved by the doctor. Report was also
\nlodged immediately. Evidence of Harilal P.W 1,
\nF.I.R. lodged by him at Exhibit 21, evidence of
\nMira – P.W. 3 evidence of Sachin ( P. W. 5) a
\nperson who was injured by fire of the bullet and
\nevidence of Prashant Patwardhan (P.W. 7) prove
\nbeyond reasonable doubt that accused No.2 was caught
\non the spot along with absconding accused No.1.
\nAfter the accused was arrested, a panchnama was made
\nof his arrest and the same is proved at Exhibit 24.
\nIn the personal search of accused No.2 – Rajkumar
\nGupta, it is noted that there was swelling to his
\nlips because of beating, that 15″ Rampuri knife was
\nsnatched from his hand by the people and following
\nornaments were found with accused No.2, mangalsutra
\nof 15 gms. artificial pearl bangles, a chain and
\ntops, a pair of silver bangle, gold tops. Again
\ngolden tops, wrist watch of Simplex company, golden
\nring with red stone, another ring with green stone,
\none golden chain, a gold ring and silver ring.
\nSimilarly the live cartridges were also recovered.
\nThis recovery of ornaments from accused No.2 on the
\nspot and identification of the ornaments by Mira and
\nP.W. 1 Harilal are the clinching pieces of evidence
\nagainst accused No.2, from which he has no escape
\nnor any explanation the manner in which the incident
\noccurred after it was reported to Harilal has been
\ngiven by him and since accused No. 2 was caught on
\nthe spot with stolen articles, there cannot be any
\ndispute about his involvement in the offence and in
\nthe incident. The scene of offence – panchnama
\nExhibit 23 is also proved that house of Mira was
\nlooted and robbed. Two motorcycles were also found
\nwhich neither the complainant nor his daughter nor
\nany of the witnesses claimed.\n<\/p>\n
 9. It is true that there are improvements in
\nthe story of Prashant Patwardhan (P.W. 7) and
\ncontradictions in the evidence of the witnesses but
\neven if all those contradictions and omissions are
\nset aside, the case against accused No.2 is full
\nproof case.\n<\/p>\n
 10. So far as accused No.3 is concerned, it
\nwas contended by Mr.Chomal that accused was arrested
\nafter about three months and since in the FIR
\ncomplainant has not given the description of this
\naccused No.3, no reliance can be placed on the
\nidentification of this accused in the identification
\nparade held by Special Judicial Magistrate Shri
\nPawar on 28.6.1996. Complainant has stated that in
\nall four persons had entered the house of Mira. All
\nthe four were tried to be caught, there was scuffle
\nbetween the accused and Prashant Patwardhan (P.W.\n<\/p>\n
7) and ultimately accused No.1 and 2 were caught on
\nthe spot and when questioned those accused gave the
\nname of other accused as Vinod Gupta, Tilak Nagar,
\nIndore and Rakesh Sharma, Laxman Talav, Gwalior.\n<\/p>\n
 11. Mr. Chomal contended that in the FIR the
\nname of the accused No.3 was given as Rakesh Sharma
\nand in fact his name is Rakesh Pande, therefore
\nbenefit of doubt should be given to the accused. I
\ndo not find any merit in this contention. The
\nquestion is that the name of the accused No.3
\ntallies with the name given in the FIR. There is
\nchange in the surname but even in the appeal memo
\nthe address of accused No.3 is shown as
\nLaxmantaliya, Gwalior, and in the FIR the address of
\nRakesh Sharma is as Laxmantaliya, Gwalior. It is
\nclear that even the accused No.3 is not disputing
\nthat he is residing at the address given in the FIR.\n<\/p>\n
 12. It is true that there is no
\nidentification parade of this accused. However, the
\nother evidence on record is strong enough and
\nsufficient enough, as rightly found by the trial
\ncourt to connect accused No.3 with the crime. When
\nabsconding accused No.1 and the appellant – accused
\nNo.2 were caught on the spot in the manner stated
\nabove, enquiry made from them revealed that they
\nwere staying in Kala Lodge situate at Malviya Road,
\nPanchvati, Nashik. The incident has taken place on
\n19.9.1995 and P.W. 8 Smt. Shobha wife of Machindra
\nRoyziyani has stated that she was owner of the said
\nKaka Lodge and on 19.9.1995 at about 11.30 a.m while
\nshe was at the counter, four persons with two
\nmotorcycles came to her lodge. One of them enquired
\nabout the room for their stay. She asked them from
\nwhere they had come and she was told that they had
\ncome from Indore. She therefore made entry in the
\nhotel register and entry was made in the name of
\nVinod Gupta for Room No.20. The Room was booked for
\ntwo days and she was paid Rs.230\/- towards two days
\ncharges. She identified accused Nos. 2 and 3 to be
\npersons out of those four. She has further stated
\nthat after taking meals they went outside on their
\nmotorcycles between 12 to 12.30 noon and thereafter
\nthey did not return to their lodge and on the same
\nday in the afternoon at 3 p.m. police came with
\nthose two persons in the lodge. Therefore, apart
\nfrom eye witnesses who identified accused No.3 there
\nis direct evidence of the owner of the lodge who
\nidentified the accused No.3. Nothing is brought out
\nin the cross-examination of this witness to
\ndiscredit her and she had denied suggestions of
\nfalsely implicating accused Nos. 2 and 3.\n<\/p>\n
 13. So far as other eye witnesses are
\nconcerned, accused No.3 has been identified by
\nHarilal to be the person who was standing in
\nVaranda, that he went to house of his daughter Mira.
\nFurther, accused No.3 is identified by Prashant
\nPatwardhan (PW 7).\n<\/p>\n
 14. It was contended by Mr. Chomal that the
\nevidence of identification of these two eye
\nwitnesses, particularly of accused No.3 cannot be
\naccepted because they saw the accused for a short
\nwhile. This argument cannot be accepted. The
\nincident has taken place in broad day light.
\nHarilal has seen accused No.3 specifically so also
\nPrashant Patwardhan (P.W. 7) and this
\nidentification is supported by the particulars given
\nof this accused No.3 in FIR as information revealed
\nby the other accused to the complainant and to the
\npolice and this is further corroborated by the
\nevidence of the owner of the lodge who identified
\naccused No.3 specifically and who stated that all
\nthe four accused with two motor cycles came to their
\nlodge. All this is therefore sufficient to hold
\nthat accused No. 3 was also present and there is no
\nmistaken identity.\n<\/p>\n
 15. The happening of the incident as alleged
\nby the prosecution witnesses is however proved by
\nbullet injury suffered by Sachin to his right hand.
\nBullet was recovered from the hand of Sachin after
\noperation. This bullet was seized, sealed and sent
\nto C.A. The revolver was found. It was also sent
\nto C.A. and there is a report of the C.A. which
\nsupport the prosecution case about use of the weapon
\nat the time of robbery.\n<\/p>\n
 16. So far as improvements in the evidence of
\nwitnesses or contradictions are concerned, it is
\ntrue that an important witness Prashant Patwardhan
\n(P.W. 7) has improved his story considerably. He
\nhas been confronted with as many as 19 statements,
\nall of which are improvements. However, they are
\nall improvements regarding specific particulars with
\nreference to specific point, e.g. in the
\ncross-examination para 3 he stated :\n<\/p>\n
 1) I have also stated before police that as
\nsoon as Jethava was entering his
\nbungalow, three persons came from the
\ninner side of the bungalow.\n<\/p>\n
 2) I have also stated before police that out
\nof other two persons, one came ahead near
\nthe gate and asked me to open the gate by
\nshowing chopper.\n<\/p>\n
 3) I have also stated before police that,
\nthat time the another person who was
\nhaving revolver in his hand was trying to
\nfire at me and, therefore, I gave kick to
\nanother motorcycle due to which that
\nmotorcycle also feel down…..”\n<\/p>\n
 4) I also stated before the police that in
\nthe meanwhile several persons assembled
\nthere and we all nabbed that person.\n<\/p>\n
Out of the 19 improvements made, I have quoted some
\nbut all versions are of the same type and nature,
\ntherefore they are as held by the trial court are
\nimprovements with reference to particular statement
\nmade before the police or the particulars given in
\ncourt but they do not affect the material part of
\nthe evidence of witness Prashant Patwardhan that he
\nwas present at the scene, he obstructed the accused,
\nhe informed Harilal and his daughter, and witnessed
\nthe entire incident and he was one of the person to
\nnab accused Nos. 1 and 2. Therefore merely because
\nthis witness has made improvements or he has stated
\nsomething in the court which he did not told to the
\npolice in the manner the questions are put, cannot
\nbe a ground to reject his testimony.\n<\/p>\n
 17. Appreciation of evidence by the trial
\ncourt is proper, reliance on the testimony of
\nwitnesses for convicting the accused is also proper
\nand all the circumstances brought on record
\nincluding recovery of the ornaments from the
\naccused, their immediate arrest, injury to Sachin
\nand similarity of particulars about the accused No.3
\nin the FIR, and identification in court by
\nindependent witnesses and the lodge owner are all
\nsufficient to hold the accused guilty. Therefore,
\nappeal is required to be dismissed.\n<\/p>\n
 18. However, alternatively, it was contended
\nby Mr. chomal that considering the age of the
\naccused, the time gap and other circumstances,
\npunishment should be reduced. I therefore pass the
\nfollowing order :\n<\/p>\n
 ORDER<\/p>\n
 19. Appeal is partly allowed. Conviction of
\nAccused Nos. 2 and 3 under Sections 392\/397 of the
\nI.P.C. and under Section 454 of I.P.C. is
\nmaintained. Sentence is however reduced to eight
\nyears respectively. Their conviction under Section
\n3\/25(1) of Arms Act and the sentence awarded is
\nmaintained. Rest of the impugned order to remain
\nthe same. Accused to surrender before the trial
\ncourt within four weeks from today. Thereafter,
\ntheir bail bonds will stand cancelled. Appeal
\ndisposed of accordingly. Certified copy expedited.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shree Rajkumar Asaram Gupta, Age … vs The State Of Maharashtra (At The … on 13 February, 2002 Author: D Deshpande Bench: D Deshpande 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 […]<\/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-243690","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShree Rajkumar Asaram Gupta, Age ... vs The State Of Maharashtra (At The ... on 13 February, 2002 - 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\/shree-rajkumar-asaram-gupta-age-vs-the-state-of-maharashtra-at-the-on-13-february-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shree Rajkumar Asaram Gupta, Age ... vs The State Of Maharashtra (At The ... on 13 February, 2002 - 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