{"id":91471,"date":"2009-12-02T00:00:00","date_gmt":"2009-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-raju-netrapal-walmiki-vs-convict-prisoner-no-c11309-on-2-december-2009"},"modified":"2018-08-03T14:45:32","modified_gmt":"2018-08-03T09:15:32","slug":"rajendra-raju-netrapal-walmiki-vs-convict-prisoner-no-c11309-on-2-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-raju-netrapal-walmiki-vs-convict-prisoner-no-c11309-on-2-december-2009","title":{"rendered":"Rajendra @ Raju Netrapal Walmiki vs Convict Prisoner No.C\/11309 on 2 December, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rajendra @ Raju Netrapal Walmiki vs Convict Prisoner No.C\/11309 on 2 December, 2009<\/div>\n
Bench: J. H. Bhatia<\/div>\n
                                        1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n               APPELLATE CRIMINAL JURISDICTION\n\n\n\n\n                                                                       \n                   CRIMINAL APPEAL NO.655 OF 2000\n\n\n\n\n                                               \n     Rajendra @ Raju Netrapal Walmiki           ..Appellant.(Org.Accd.no.1)\n     Convict Prisoner No.C\/11309\n     Yerwada Central Prison,\n     Pune- 411 006.\n\n\n\n\n                                              \n     v.\n     The State of Maharashtra                   ...Respondent.\n\n                             WITH\n                   CRIMINAL APPEAL NO.815 OF 2000\n\n\n\n\n                                  \n     Rajveer @ Raju Karansingh Walmiki\n                      ig                       ...Appellant.(Org.accd.no.3)\n     Convict Prisoner No.C\/11311\n     Yerwada Central Prison,\n                    \n     Pune- 411 006.\n     v.\n     The State of Maharashtra                  ...Respondent.\n      \n\n\n                   CRIMINAL APPEAL NO.917 OF 2000\n   \n\n\n\n     Pradeep Dhondiram Salvi                ...Appellants(Org. Accused no.4)\n     Convict Prisoner No.C\/11310\n     Yerwada Central Prison,\n\n\n\n\n\n     Pune- 411 006\n     v.\n     The State of Maharashtra                   ...Respondent.\n                                                   (Org. Complt.)\n\n\n\n\n\n     Mr.Arfan A. Sait Advocate Appointed For the Appellants.\n     Smt.R.V.Newton, APP For the Respondent\/State.\n\n\n                           CORAM : J.H. BHATIA, J.\n<\/pre>\n
                           DATED : 2nd December , 2009<\/p>\n
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\n                                          2<\/span><\/p>\n
     ORAL JUDGMENT:\n<\/p>\n
     1     All these three appeals arise out of the judgment in Sessions Case<\/p>\n
     No.965\/97 passed by the learned Additional Sessions Judge, Bombay.\n<\/p>\n
     Said appeals are filed by the original accused nos.1,3 and 4 respectively<\/p>\n
     against the sentences awarded to them.\n<\/p>\n
     2     Present appellants, i.e., the accused nos.1,3 and 4 and the accused<\/p>\n
     no.2, were convicted of the offences punishable under Sections 120-B<\/p>\n
     and were sentenced to undergo R.I. for ten years and to pay fine of Rs.\n<\/p>\n
     1,000\/- each. Accused Nos.1 and 2 were convicted for the offences<\/p>\n
     punishable under Sections 450, 397 and 398 of the I.P.C. and under<\/p>\n
     Sections 37(1-b) read with Section 135 of the Bombay Police Act and<\/p>\n
     awarded sentence of imprisonment for varying periods. Accused no.2<\/p>\n
     was also convicted and sentenced for the offences punishable under<\/p>\n
     Section 394 and 307 of the I.P.C. Accused no.2 had preferred an appeal<\/p>\n
     which was dismissed long back. Therefore, now we are concerned with<\/p>\n
     these 3 appeals filed by the accused nos.1,3 and 4 only.\n<\/p>\n
     3           Prosecution case in brief is that P.W.1 Mrs. Beryl , her<\/p>\n
     husband P.W.2 David and their daughter P.W.3 Dr. Naomi used to reside<\/p>\n
     in flat no.1, ground floor at Jackson House, BPT Colony, Colaba,<\/p>\n
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\n                                         3<\/span><\/p>\n
     Mumbai-5. On 21.5.97 at about 5.45 a.m. the door bell of the house<\/p>\n
     rang. Presuming her maid servant Sudha at the door, P.W.1 Beryl opend<\/p>\n
     the door. At that time, a person entered into the house and showed a<\/p>\n
     piece of paper to P.W.1 Beryl and asked whether she had placed an order.\n<\/p>\n
     She replied in negative but at the same time said person put a knife on<\/p>\n
     her throat and knocked her down. Meanwhile 5 or 6 persons armed with<\/p>\n
     different weapons followed that person and closed the door. She shouted<\/p>\n
     for help and her husband and daughter woke up and came. One of the<\/p>\n
     culprits demanded keys of the cupboard from her husband, who refused<\/p>\n
     to give. On that, said person assaulted David with a chopper on his head<\/p>\n
     and other parts. Their daughter Naomi intervened but she was also<\/p>\n
     assaulted and several injuries were caused on her head, neck and her two<\/p>\n
     fingers, which were cut. At that stage, Mrs. Beryl ran towards the rear<\/p>\n
     door of the house and shouted for help. Due to this culprits ran away<\/p>\n
     from the front door of the house. P.W.2 David and P.W.3 Naomi were<\/p>\n
     taken to the hospital in serious injured condition. After getting<\/p>\n
     telephonic information about the incident P.W.16 PSI Pramod<\/p>\n
     Makeshwar rushed to the spot and then went to the hospital where David<\/p>\n
     was admitted. He recorded F.I.R (Exhibit 10) of Mrs.Beryl (P.W.1). On<\/p>\n
     the spot of the incident besides broken pieces of glass and broken pieces<\/p>\n
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\n                                          4<\/span><\/p>\n
     earthern pots, he also found a letter or note, Exhibit 11. That letter was<\/p>\n
     allegedly given by P.W.1 Beryl to their servant accused no.3 Rajveer @<\/p>\n
     Raju Karansingh Valmiki so that by showing that letter to the security<\/p>\n
     guard he could get entry in the house. Accused nos.1,4 and 5 were<\/p>\n
     arrested on 3.6.97; accused no.3 was arrested on 6.6.97 and accused no.2<\/p>\n
     was arrested on 8.6.1997. Three more persons, who were allegedly<\/p>\n
     involved in the said incident, could not be arrested. During the<\/p>\n
     investigation a knife was recovered on the basis of information given by<\/p>\n
     the accused no.1 Rajendra @ Raju Netrapal Valmiki and on the basis of<\/p>\n
     information given by the accused no.2 Govind,                 a chopper was<\/p>\n
     recovered. Clothes of David and the weapons were referred to C.A.\n<\/p>\n
     C.A.Reports were received. After investigation, police filed chargesheet<\/p>\n
     against the accused nos.1 to 5 and 3 absconding accused persons.\n<\/p>\n
     4           On the basis of charge-sheet filed by the police, Sessions<\/p>\n
     Court charged accused nos.1 to 5 for the offences of conspiracy<\/p>\n
     punishable under Section 120-B. Accused nos.1 and 2 were also charged<\/p>\n
     for different offences for which they have been convicted. On behalf of<\/p>\n
     the prosecution, in all 17 witnesses were examined.\n<\/p>\n
     5           To prove the evidence, prosecution mainly relied on<\/p>\n
     evidence of P.W.1 Mrs.Beryl, P.W.2 David, their daughter P.W.3<\/p>\n
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\n                                          5<\/span><\/p>\n
     Dr.Naomi and also the evidence of P.W.4 Rohit Daniel who resides in the<\/p>\n
     same building. Evidence of these witnesses goes to show that P.W. 1 to 3<\/p>\n
     were residing in the flat no.4 in Jackson House BPT Quarters while P.W.\n<\/p>\n
     4 Rohit was residing in flat no.2 in the same building. Accused No.3<\/p>\n
     Rajveer @ Raju and accused no.4 Pradeep were previously working as<\/p>\n
     servants at the house of P.W.1 to 3. Accused No.4 Pradeep had left the<\/p>\n
     job 1 or 2 months prior to the incident. Accused no.3 Raju had left their<\/p>\n
     job only one day before the incident. On 21.5.1997 at about 5.45 a.m.<\/p>\n
     door bell of the house of P.W.1 Mrs.Beryl           rang      and, therefore,<\/p>\n
     presuming that it might be their maid servant Sudha, she opened the door<\/p>\n
     but abruptly one person, who was identified as accused no.1, entered into<\/p>\n
     the house and he was followed by 5 or 6 more persons . All of them were<\/p>\n
     armed with weapons. Accused no.1 who had entered the house first<\/p>\n
     showed a piece of paper to P.W.1 Mrs. Beryl and asked whether she had<\/p>\n
     placed an order. She denied. However, abruptly accused no.1 took out<\/p>\n
     knife and put on her neck and knocked her down. Hearing her shouts,<\/p>\n
     her husband and daughter also came there. One of the culprits, who was<\/p>\n
     identified as accused no.2, demanded keys of the cupboard and on<\/p>\n
     refusal to hand over the keys, said accused no.2 assaulted P.W.2 on his<\/p>\n
     head with the chopper. Their daughter P.W.3 Naomi intervened but she<\/p>\n
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\n                                         6<\/span><\/p>\n
     was also seriously injured    with the chopper. Several injuries were<\/p>\n
     sustained by P.W.2 and 3. Evidence reveals that P.W.1 Mrs. Beryl went<\/p>\n
     to the backside door and shouted for help and many persons from the<\/p>\n
     same building came out. However, being alarmed, culprits escaped from<\/p>\n
     the front door of the house. P.W.4 Rohit claims to have heard shouts and<\/p>\n
     come to the spot. According to him, he had seen three persons running<\/p>\n
     away from the house of P.W.1.\n<\/p>\n
     6           After the said incident, P.W.2 David and P.W.3 Dr. Naomi<\/p>\n
     were taken to the hospital.     P.W.7 Dr.Anil     and P.W.10 Dr. Sanjay<\/p>\n
     Kalgutkar had examined P.W.3 Dr. Naomi and proved injuries which she<\/p>\n
     had suffered in the said incident. She had suffered number of incised and<\/p>\n
     cut wounds on her head, hands and two of her fingers. All these injuries<\/p>\n
     required suturing. P.W.11 Dr. Vijaykumar examined P.W.1 David and<\/p>\n
     proved injuries suffered by him. P.W.14 Madhavan Menon was clinical<\/p>\n
     assistant of Dr. Bhagwat in Bombay Hosptial. P.W.15 Dr. Rajkumar had<\/p>\n
     also attended P.W.1 David at Bombay Hospital. These three witnesses<\/p>\n
     proved several injuries, which were suffered by P.W.2 David in the said<\/p>\n
     incident. As per the evidence of these doctors injuries suffered by P.W.2<\/p>\n
     David and P.W.3 Naomi could be caused by sharp and cutting weapons<\/p>\n
     like knife and chopper. Evidence of these witnesses was not seriously<\/p>\n
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\n                                            7<\/span><\/p>\n
     challenged as far as the incident is concerned or about the injuries<\/p>\n
     suffered by P.W.2 and P.W.3.\n<\/p>\n
     7              From the evidence, it is established that 5 or 6 persons had<\/p>\n
     trespassed into the house of P.W.1 to 3 with intention to commit robbery<\/p>\n
     and they were armed with weapons and they had come prepared to cause<\/p>\n
     injuries to or death of inmates for the purpose of committing offence of<\/p>\n
     robbery. In that attempt atleast one of them had caused injuries to P.W.1<\/p>\n
     and 3 with sharp and cutting weapons. Therefore, it must be held that<\/p>\n
     the offences<\/p>\n
                      punishable under Section 450, 394, 397, 398 and 307 of<\/p>\n
     the I.P.C. were committed. It is also established by the prosecution that<\/p>\n
     the Deputy Commissioner of Police had issued a Notification on 28th<\/p>\n
     April, 2007 published in the gazette on 2nd May, 1997 whereby he had<\/p>\n
     under Section 37(1) and (2) of the Bombay Police Act put a ban on<\/p>\n
     carrying of any arms, weapons, etc. from 3rd May to 2nd June, 1997. It is<\/p>\n
     also proved that besides publication in the Gazette, it was actually given<\/p>\n
     publicity and, therefore, that order under Section 37(1) and (2) was in<\/p>\n
     force when the incident of this case occurred on 21.5.1997. Thus, it is<\/p>\n
     proved   that culprits had violated prohibition under Section 37(1-b)<\/p>\n
     punishable under Section 135 of the Bombay Police Act.\n<\/p>\n
     8              P.W.5 Manish Sawant, who was Special Executive Officer<\/p>\n
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\n                                           8<\/span><\/p>\n
     has proved that he had held test identification parade on 26.7.1997 for<\/p>\n
     identification of five suspects. For that purpose he divided those suspects<\/p>\n
     into two groups. Test Identification Parade was held within the premises<\/p>\n
     of Arthur Road Jail. According to him, firstly three suspects alongwith 13<\/p>\n
     dummies were put to test identification parade and in second lot two<\/p>\n
     suspects with different sets of dummies were put to test identification<\/p>\n
     parade.   In the first lot P.Ws. 1, 2 , 3 and 4 identified the accused nos.3<\/p>\n
     and 4, who were standing at Sr.Nos. 10 and 13 alongwith the dummies.\n<\/p>\n
     In the second lot all these four witnesses identified the accused nos.1 and<\/p>\n
     2, who were standing at Sr.Nos.4 and 10. He clarified that after<\/p>\n
     identification by every witness, he had offered accused persons to change<\/p>\n
     their clothes or their location in the line alongwith dummies but the<\/p>\n
     suspects had refused to change either their clothes or the location. P.W.1<\/p>\n
     Mrs.Beryl, P.W.2 David, P.W.3 Dr. Naomi and P.W.4 Rohit also proved<\/p>\n
     these facts during their evidence before the Court. While P.W. 2, 3 and<\/p>\n
     4 identified the accused nos.1 to 4 , P.W.1 identified the accused nos.2 to<\/p>\n
     4. It is material to note that she claimed to have identified the accused<\/p>\n
     no.1 during the test identification parade but during the evidence before<\/p>\n
     the Court she pointed to accused no.5 as accused no.1. However, as per<\/p>\n
     the Memorandum of Test Identification Parade prepared by P.W.5<\/p>\n
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\n                                           9<\/span><\/p>\n
     Manish, she had identified the accused no.1 and not accused no.5 during<\/p>\n
     the test identification parade. Her evidence was recorded before the<\/p>\n
     Court two years after the incident and, therefore, there could be loss of<\/p>\n
     memory due to lapse of long time. Fact remains that P.W.2, 3 and 4<\/p>\n
     identified the accused nos.1 to 4 not only during the test identification<\/p>\n
     parade but also at the time of the recording of their evidence.\n<\/p>\n
     9            It is material to note that accused nos.3 and 4 were in the<\/p>\n
     employment of P.W.1 prior to the incident and, therefore, they were<\/p>\n
     known to them and, therefore, their identification at the time of test<\/p>\n
     identification parade or before the Court does not itself go to establish<\/p>\n
     that they had also participated in the said attempt to commit robbery or in<\/p>\n
     the assault. Infact, none of them deposed before the Court or the Special<\/p>\n
     Executive Magistrate at the time of test identification parade that the<\/p>\n
     accused nos.3 and 4 were present at the time of incident. If they would<\/p>\n
     have been present at the time of incident, these witnesses could have<\/p>\n
     easily given the names of those persons in the F.I.R. and the statements<\/p>\n
     recorded by the police. Fact remains that in the F.I.R. lodged by P.W.1<\/p>\n
     Mrs.Beryl and the statements made by other three witnesses before the<\/p>\n
     police they had stated that the culprits were unknown persons. It is not<\/p>\n
     the case of the prosecution that the accused nos.3 and 4 had actually<\/p>\n
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\n                                         10<\/span><\/p>\n
     participated in the incident. Test identification parade was held to link<\/p>\n
     them with this crime on the ground that there was conspiracy                  and<\/p>\n
     charge under Section 120-B was framed against all the five persons<\/p>\n
     including absconding accused. I will deal with charge under Section<\/p>\n
     120-B at the later stage. At this stage it may be noted that it has been<\/p>\n
     proved by the prosecution that the accused nos.1 and 2 were the persons,<\/p>\n
     who were involved in the actual incident and they were identified as such<\/p>\n
     not only   during the test identification parade but also during the<\/p>\n
     evidence before the Court.\n<\/p>\n
     10          Investigating Officer, P.W.17 PSI Abdul Rauf Mohd. Ismail<\/p>\n
     and P.W.6 Narayan, who was a panch witness, proved that on the basis<\/p>\n
     of information given by the accused no.1, the knife, Article 3 was<\/p>\n
     recovered. In the first part of the panchanama Exhibit 23 circumstances<\/p>\n
     leading to recovery of knife were recorded and Exhibit 23A is the second<\/p>\n
     part of the panchanama whereunder knife article 3 was recovered and<\/p>\n
     seized. P.W.17 PSI Abdul Rauf Ismail and P.W.8 Mohammed proved<\/p>\n
     recovery of chopper article 2 on the basis of information given by the<\/p>\n
     accused no.2 as per the panchanama Exhibit 28 and 28A. Evidence of<\/p>\n
     these witnesses could not be shattered in the cross-examination on behalf<\/p>\n
     of the accused. As per the C.A. Reports, blood group of P.W.2 David<\/p>\n
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\n                                         11<\/span><\/p>\n
     and of P.W.3, Naomi was ‘B’ and blood of the ‘B’ group was also found<\/p>\n
     on the chopper. Chopper was recovered on the basis of information given<\/p>\n
     by the accused no.2. Presence of blood group ‘B’ which could be of<\/p>\n
     P.W.2 and 3, on the chopper provides corroboration to the prosecution<\/p>\n
     story that accused no.2 had actually assaulted P.W.2 and P.W.3 with the<\/p>\n
     chopper   and caused serious injuries to them. It is proved that the<\/p>\n
     accused no.1 had participated in the incident and recovery of weapon<\/p>\n
     from him, also provides corroboration against him. In view of the<\/p>\n
     evidence on record, it must be held that charges under Sections 450, 397<\/p>\n
     and 398 of the I.P.C. and under Section 37(1-b) read with Section 135 of<\/p>\n
     the Bombay Police Act were proved against the accused nos.1 and 2. It<\/p>\n
     is not necessary to deal with specific charges only against the accused<\/p>\n
     no.2.\n<\/p>\n
     11          Now we are left with charge under Section 120-B for which<\/p>\n
     all the present appellants\/accused nos.1,3 and 4 alongwith the accused<\/p>\n
     no.2 were convicted. It is settled position of law that charge of<\/p>\n
     conspiracy can be proved by direct as well as circumstantial evidence<\/p>\n
     and most of the times, direct evidence to prove the charge of conspiracy<\/p>\n
     is not available because conspiracy is generally hatched in secrecy and<\/p>\n
     executed in dark. However even when direct evidence to prove the<\/p>\n
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\n                                          12<\/span><\/p>\n
     charge of conspiracy is not available, it is necessary for the prosecution<\/p>\n
     to establish the charge beyond the reasonable doubt                   for which<\/p>\n
     prosecution may rely on the circumstantial evidence. When the<\/p>\n
     prosecution relies on the circumstantial evidence, chain of all the<\/p>\n
     circumstances must be complete to rule out any hypothesis of innocence.\n<\/p>\n
     In the present case, there is no direct evidence of conspiracy. Prosecution<\/p>\n
     relied only on a letter or note Exhibit 11 which was allegedly given by<\/p>\n
     P.W.1 Mrs. Beryl to the accused no.3 so that he could get entry in the<\/p>\n
     house. She deposed that she had given that letter or note on the letter-\n<\/p>\n
     head of her husband David to the accused no.3 so that he could show it<\/p>\n
     to the security guard for getting entry. Accused no.3 had left the job day<\/p>\n
     before the incident as per the evidence. However, immediately after the<\/p>\n
     incident, note Exhibit 11 was found at the scene of the offence and it was<\/p>\n
     recovered and seized under spot panchanama. According to the<\/p>\n
     prosecution, the presence of that note, Exhibit 11 on the spot of the<\/p>\n
     incident goes to show that there must have been some conspiracy<\/p>\n
     involving the accused nos.3 and 4, who were previous employees of the<\/p>\n
     P.W.1 and that the note Exhibit 11 was given by accused no.3 to the<\/p>\n
     actual culprits so that they could get entry into the house with the help of<\/p>\n
     that note. The learned trial Court convicted the accused nos.1 to 4 for the<\/p>\n
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\n                                          13<\/span><\/p>\n
     offence of conspiracy punishable under Section 120-B only on the basis<\/p>\n
     of recovery of that note, Exhibit 11 from the scene of the offence.\n<\/p>\n
     Though in the cross-examination on behalf of the accused no.3, it was<\/p>\n
     never suggested by the learned defence counsel             that the said note<\/p>\n
     Exhibit 11 was not given to the accused no.3, he pointed out in the<\/p>\n
     cross-examination that on the said note, name of the person to whom it<\/p>\n
     was issued was not written. The learned counsel for the appellants<\/p>\n
     vehemently contended that as per the evidence of P.W.2 number of<\/p>\n
     persons had served at their house at different times and it is possible that<\/p>\n
     this note might have been given to any of them. However, it is material<\/p>\n
     to note that as per the evidence of P.W.1, she had given this note to the<\/p>\n
     accused no.3 and this was not denied specifically during the cross-\n<\/p>\n
     examination and therefore, it may be held that this note might have been<\/p>\n
     given to the accused no.3.\n<\/p>\n
     12           This much evidence, at the most, may lead to suspicion<\/p>\n
     against the accused no.3. The suspicion, howsoever strong it may be,<\/p>\n
     can not be a substitute for the evidence to prove the offence. In the<\/p>\n
     present case, except that, said note Exhibit 11 was previously given by<\/p>\n
     P.W.1 Mrs. Beryl to the accused no.3 and at the time of incident, this<\/p>\n
     note was found on the spot of the incident. There is no other evidence to<\/p>\n
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\n                                          14<\/span><\/p>\n
     prove conspiracy or participation of the accused no.3 in the offence. It is<\/p>\n
     material to note that in the statement recorded under Section 313<\/p>\n
     Cr.P.C., no question was put about the said note Exhibit 11 to any of the<\/p>\n
     accused persons and particularly, accused no.3. In question 2, which is<\/p>\n
     almost common in respect of every accused, complete prosecution story<\/p>\n
     is put and that question itself runs in one page.           However, in that<\/p>\n
     question also, there is no reference with regard to the note, Exhibit 11.\n<\/p>\n
     The trial Court solely relied upon the note Exhibit 11 and on the basis of<\/p>\n
     that document alone, came to conclusion that conspiracy to commit<\/p>\n
     offence was established. It is well settled position of law that any<\/p>\n
     material or circumstance, which may be used against the accused should<\/p>\n
     be put to him in the statement under Section 313 of the Cr.P.C. so that the<\/p>\n
     accused may get an opportunity to explain the circumstances and<\/p>\n
     material against him. It is also well settled that when any material or<\/p>\n
     circumstance is not put to the accused and opportunity is not given to<\/p>\n
     him to explain that material or the circumstance, that cannot be used<\/p>\n
     against him for the purpose of conviction. In the present case, the note<\/p>\n
     Exhibit 11 was not just one of the so many circumstances to establish the<\/p>\n
     fact, it was solitary circumstance on the basis of which prosecution<\/p>\n
     sought to prove the charge of conspiracy and, therefore, this document<\/p>\n
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\n                                         15<\/span><\/p>\n
     and the finding of that document on the scene of the offence was most<\/p>\n
     vital piece of evidence. It was absolutely necessary that to put the same<\/p>\n
     to the accused in the statement under Section 313 of the Cr.P.C. so that<\/p>\n
     he could get opportunity to explain the same. The learned counsel for the<\/p>\n
     accused\/appellants vehemently contended that there could be several<\/p>\n
     circumstances in which the note, presuming that it was previously in<\/p>\n
     possession of the accused no.3, could come to the hands of any other<\/p>\n
     person. According to him, once, the accused no.3 had left the job, this<\/p>\n
     note was of no use to him. It is possible that he might have thrown it<\/p>\n
     away and it might have been picked up by somebody else. It is also<\/p>\n
     possible that some person might have mislead him and taken possession<\/p>\n
     of that letter from him or somebody might have snatched away that letter<\/p>\n
     from him and misused the same.           It is not that any of               these<\/p>\n
     circumstances was infact available but when the possibility of such<\/p>\n
     circumstances can not be ruled out before the said document could be<\/p>\n
     used against the accused to prove the charge of conspiracy, it was<\/p>\n
     necessary to put the facts to him under Section 313 of the Cr.P.C. so that<\/p>\n
     he could explain the circumstances in which document came in<\/p>\n
     possession of the culprit who had been to the spot of the incident. No<\/p>\n
     such opportunity was given to the accused and, therefore, in view of the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:22:07 :::<\/span>
\n                                          16<\/span><\/p>\n
     settled position of law, this document and the circumstances in which it<\/p>\n
     was found at the scene of the offence could not be used against him to<\/p>\n
     prove the charge of conspiracy. For the same reasons, finding of this<\/p>\n
     document could also not be used against any other accused person<\/p>\n
     because none of them was given opportunity to explain the said<\/p>\n
     document or the circumstances. Once the document Exhibit 11 is kept<\/p>\n
     aside and is not taken into consideration, there is no          of evidence to<\/p>\n
     prove the charge of conspiracy against any of the accused persons and,<\/p>\n
     therefore, charge under Section 120-B must fail.\n<\/p>\n
     13           It also needs to be noted that while the prosecution relied<\/p>\n
     upon said note Exhibit 11 to prove the charge and to implicate accused<\/p>\n
     no.3 in the offence, there was no evidence on record to connect accused<\/p>\n
     no.4 either with the said document or with the commission of the<\/p>\n
     offence. There is no direct or circumstantial evidence against the accused<\/p>\n
     no.4. It is difficult to understand on what basis the learned trial Court<\/p>\n
     came to conclusion that charge of the conspiracy is established against<\/p>\n
     the accused no.4. Taking into consideration the evidence on record, it<\/p>\n
     must be held that even if note Exhibit 11 is taken into consideration, still<\/p>\n
     there is no material or evidence to prove the charge against the accused<\/p>\n
     no.4.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:22:07 :::<\/span>
\n                                           17<\/span><\/p>\n
     14             In view of the aforesaid facts and circumstances, it must be<\/p>\n
     held that prosecution has failed to prove the charge under Section 120-B<\/p>\n
     against any of the accused persons and, therefore, accused nos.1,3 and 4,<\/p>\n
     who are the appellants before this Court, are entitled to be acquitted of<\/p>\n
     that charge.\n<\/p>\n
     15             For the aforesaid reasons, Criminal Appeal No.655 of 2000<\/p>\n
     filed by the Accused\/Appellant No.1 Rajendra @ Raju Netrapal Walmiki<\/p>\n
     is hereby partly allowed. While his conviction and the sentence awarded<\/p>\n
     for the offences punishable under Sections 450, 397 and 398 of the<\/p>\n
     Indian Penal Code as well as for the offence punishable under Section<\/p>\n
     37(1-b) read with Section 135 of the Bombay Police Act are hereby<\/p>\n
     confirmed, conviction and the sentence awarded                for the offence<\/p>\n
     punishable under Section 120-B of the I.P.C. is hereby set aside.\n<\/p>\n
     16             Criminal Appeal No.815 of 2000 filed by the accused no.3<\/p>\n
     Rajveer @ Raju Karansingh Walmiki as well as Criminal Appeal No.<\/p>\n
     917 of 2000 filed by the accused no.4 Pradeep Dhondiram Salvi are<\/p>\n
     hereby allowed and the order of conviction and sentence under Section<\/p>\n
     120-B of the I.P.C. against them is hereby set aside.\n<\/p>\n
     17             As per the statement made by the learned APP on telephonic<\/p>\n
     instructions from Mr.Sorate from Yerwada Central Prison, Pune and<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:22:07 :::<\/span>
\n                                           18<\/span><\/p>\n
     Mr.Bohi from Kolhapur jail, taken by Jailor Patil, accused persons have<\/p>\n
     already been released after undergoing complete sentence. Hence, no<\/p>\n
     further order about their release.\n<\/p>\n
                                                (J.H. BHATIA,J.)<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:22:07 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rajendra @ Raju Netrapal Walmiki vs Convict Prisoner No.C\/11309 on 2 December, 2009 Bench: J. H. Bhatia 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.655 OF 2000 Rajendra @ Raju Netrapal Walmiki ..Appellant.(Org.Accd.no.1) Convict Prisoner No.C\/11309 Yerwada Central Prison, Pune- 411 006. v. The State […]<\/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-91471","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRajendra @ Raju Netrapal Walmiki vs Convict Prisoner No.C\/11309 on 2 December, 2009 - 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\/rajendra-raju-netrapal-walmiki-vs-convict-prisoner-no-c11309-on-2-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra @ Raju Netrapal Walmiki vs Convict Prisoner No.C\/11309 on 2 December, 2009 - 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