Santosh Devidas Chavan and Others vs The State of Maharashtra

P.V. Hardas, J.

The appellants/Original Accused Nos. 1, 2, 3, 5 and 7, who stand convicted for offence punishable under Sections 395, 394, 342 and 452 of the Indian Penal Code and sentenced to imprisonment for life and each accused to pay fine of Rs. 10,000/-, in default of which to undergo further SI for six months, RI for ten years and each accused to pay fine of Rs. 10,000/-, in default of which to undergo further SI for six months, RI for one year and each accused to pay fine of Rs. 1000/-, in default of which to undergo further SI for one month and RI for seven years and each accused to pay fine of Rs. 5000/-, in default of which to undergo further SI for two months, with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Palghar, by judgment dated 19/10/2012, in Sessions Case No. 16 of 2008, by these appeals challenge their conviction and sentence.

Facts, as are necessary for the decision of these appeals, may briefly be stated thus:

"PW 9 - API Sitaram Gupta, who was attached to the Talasari Police Station, was entrusted with the investigation of the crime, which was registered on 6/8/2006. The aforesaid crime had been registered on the basis of the report of PW 1 - Neelam at Exh. 63. On being entrusted with the investigation, PW 9 - API Gupta proceeded to the scene of the incident and drew the scene of the incident panchanama, in the presence of panchas, at Exh. 112. From the scene of the incident, he seized blood stained articles and seized samples of blood stains. He recorded the statements of witnesses and on 6/8/2006 at about 9.05 p.m. arrested accused No. 1 - Santosh and seized the clothes on his person under seizure memo at Exh. 113. On 7/8/2006, at about 10.05 a.m., during custodial interrogation, accused No. 1 - Santosh expressed his willingness to point out the place where the weapons and cash amount had been concealed. A memorandum was accordingly drawn, in the presence of panchas, at Exh. 114. Accused No. 1 - Santosh led the police and the panchas to the Highway and requested them to stop near the Vishwa Hindu Parishad. A truck was noticed parked there. Accused No. 1 - Santosh opened the driver''s cabin of the truck and produced a cloth bundle, containing Rs. 32000/- in various denominations and also produced two iron rods, clothes, chappals, battery, torch, handkerchief. The aforesaid articles were seized under seizure memo at Exh. 115. On 7/8/2006, PW 9 - API Gupta proceeded to the Hariya Hospital, Vapi, where the three injured i.e. PW 1 - Neelam, PW 3 - Rajvi and others were being treated. The clothes of the injured, which were blood stained, were seized under seizure memo at Exh. 78. Further investigation was thereafter handed over to PW 7 - PI Pandharinath Mandhare."

PW 7 - PI Mandhare, who was also attached to the Talasari Police Station, was entrusted with the investigation on 9/8/2006. He accordingly recorded the statements of witnesses and on 10/8/2006 seized clothes on the person of the accused No. 3 - Shankar and accused No. 2 - Anil under panchanama at Exh. 79. Accused No. 2 - Anil, on 13/8/2006, during custodial interrogation, expressed his willingness to point out the place where the ornaments had been concealed. Accordingly, a memorandum was drawn, in the presence of panchas, at Exh. 80. Accused No. 2 - Anil led the police and panchas to the Sutrakar Cross Road near the Mumbai - Ahmedabad Road. After passing certain distance, the accused pointed out a tree and requested the police party to stop. Accused went near the tree and after removing the stones, produced a plastic bag which contained two gold chains, weighing approximately 10 gms. each, two gold ear rings, weighing approximately 5 gms. each and one gold ring weighing approximately 2 gms. The aforesaid articles were seized under panchanama, in the presence of panchas, at Exh. 81.

Thereafter, PW 1 - Neelam and others were called to the police station and the witnesses identified the ornaments, which were shown to them. Supplementary statements of the witnesses were also recorded. One jeweller by name Madan Varma was called in the police station to examine the articles and confirm that they were made of gold. One gold chain was found to weigh 13 gms. And 400 milligram, while other gold chain was found to weigh 14 gms. The weight of the ear rings was 6 gms. And the ring was found to weigh 2 gms. Statement of the jeweller was accordingly recorded. Statement of the driver of the police jeep was also recorded. A letter was addressed to the Magistrate, seeking permission for conducting the Test Identification parade and a letter was also issued to the Tahsildar on 15/8/2006 at Exh. 100. On 15/8/2006, PW 6 - Dinesh Kurhade conducted the Test Identification Parade. On 23/8/2006 the seized articles were referred to the Chemical Analyzer under requisition at Exh. 101. Statement of injured Madanlal was recorded on 28/8/2006. Statement of injured Deepak was also recorded.

On 9/10/2006, a letter was again addressed to the Tahsildar for conducting the Test Identification Parade. The said letter is at Exh. 102. On 10/10/2006, PW 6 - Dinesh Kurhade conducted the Test Identification Parade. Supplementary statements of the identifying witnesses were recorded and further to the completion of investigation, a charge-sheet against the accused was submitted.

PW 8 - PSI Ramesh Chavan, who was also attached to the Talasari Police Station, arrested accused No. 8 - Murli on 8/8/2010.

We have heard the learned counsel for the appellants and the learned APP and in order to effectively deal with the submissions advanced by before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses.

Prosecution has examined PW 1 - Neelam, who deposes that she was residing along with her husband PW 3 - Rajvi and her brother-in-law PW 2 - Umeshsingh and his wife. According to her, her husband was running a Kirana Shop, while her brother-in-law was running a hotel. In respect of the incident, Neelam deposes that on the day of the incident, they had taken their dinner at about 11 p.m. and thereafter had retired to their bed-rooms for sleeping. According to her, on the day of the incident, one Ashoksingh and one servant were also present in the house. Brother of Ashoksingh was also working in the Kirana Shop. At about 2 a.m. they heard the sound of the door of the bed-room being unlatched. She, therefore, went towards the door, but it was suddenly opened due to the push given from outside and, therefore, Neelam fell against the cupboard. Her husband, PW 3 - Rajiv, was also awakened. Five thieves have entered in the bed-room and one of them given a blow of iron rod to PW 3 - Rajiv, but Rajiv evaded the said blow. Another thief then gave blow of iron rod on the head of Rajiv due to which Rajiv sustained bleeding injury. The thieves demanded the keys of the cupboard and since Neelam did not give the keys, the thieves broke opened the cupboard and took cash of Rs. 32,000/- kept in the cupboard. The thieves then pushed Neelam in the corner and threatened her and thereafter snatched two gold chains, a pair of ear rings and one gold ring. The accused then took Neelam in the hall and enquired from Neelam as to who were the other occupants of the house. Hearing the huge and cry, other people were seen coming towards the house of Neelam and, therefore, the thieves fled from the house of Neelam. Neelam then went to the first floor towards the bed-room of her brother-in-law and noticed that the bed-room was latched from the outside. She unlatched the door and her brother-in-law and his wife came out. Neelam informed the incident and her brother-in-law and his wife went towards the bed-room of Neelam. The thieves had also assaulted both the servants. After sometime, police arrived at the house and Neelam disclosed the incident to them. In the morning, she lodged her report at the police station at Exh. 63.

The injured had been taken in the hospital for treatment. Neelam states that thereafter she had been called to identify the accused in the Test Identification Parade and had identified accused No. 1 - Santosh Chavan as the person who had removed the ear rings as she had noticed Mehandi on the palm of the said accused. She identified stolen articles i.e. the gold chain and the ear rings as well as the ring to be the articles belonging to her. She identified accused No. 3 -Shankar, accused No. 5 - Rajendra and accused No. 7 -Bansi @ Laxman as the thieves who had come to her house.

In cross-examination, she has admitted to have stated in her report that the accused, when they entered her room, had covered their faces with handkerchief. She volunteered that when those persons had brought her outside the room, they had removed the handkerchiefs from their faces. Omission has duly elicited that she had not stated in her report about the accused removing the masks/handkerchiefs from their faces when Neelam was brought outside the room. She has admitted to have stated in her previous statement that the police had shown her the accused, who had Mehandi on his palm, before the holding of the Test Identification Parade. She has admitted that after PW 3 - Rajiv received a blow on his head, he became unconscious.

PW 1 - Neelam has not identified accused No. 1 - Santosh Chavan as one of the thieves who had entered the house, though he was shown to her prior to the holding of the Test Identification Parade. Thus, in the substantive evidence PW 1 - Neelam has only identified accused No. 3 - Shankar, accused No. 4 - Santosh Nakate, accused No. 5 -Rajendra and accused No. 7 - Bansi @ Laxman. PW 1 - Neelam had not identified accused No. 3 - Shankar in the Test Identification Parade, though she has identified him in the court. PW 1 - Neelam had also not identified accused No. 7 - Bansi @ Laxman in the Test Identification Parade, though she has identified him in the court.

Prosecution has examined PW 2 - Umeshsingh, brother-in-law of PW 1 - Neelam. According to him, on the day of the incident, at about 2 a.m., he has heard some cry but could not open the door as the door was latched from outside. He thereafter telephoned his servant - Vinay, who was sleeping in the hotel and called him to the house. According to him, he had also telephoned PW 3 - Rajiv, but could not talk to him as he heard only the sound of gasping. According to him, from the window, he saw two persons and also noticed 4 to 5 persons running away from the house. According to him, PW 1 - Neelam came and unlatched the door and informed him about the incident. The servants, who were injured, were lying outside. His brother PW 3 - Rajiv had sustained a bleeding injury. PW 2 - Umeshsingh has identified accused No. 4 - Santosh Nakate, accused No. 2 - Anil, accused No. 3 - Shankar and accused No. 5 - Rajendra as the thieves whom he had seen running from the house.

In cross-examination, he has admitted that it was dark at the time of the incident and there was darkness outside the bungalow. He has admitted that when he had come to the ground floor, there was no electric supply as the button of the inverter has been switched off. He has admitted that there was another inverter on the second floor and there was light in his room. Omission has been elicited that he had not stated in his previous statement about hearing the cry at about 2 a.m. Omission is also elicited that he had not stated that he had telephoned his brother PW 3 - Rajiv and had heard the sound of gasping. He has also not stated in his previous statement about opening of the window and crying out for help. Omission is also elicited that he had not stated in his previous statement about noticing two persons outside the window and about seeing 4 to 5 persons running away from the house. He has admitted that prior to the incident, he had not seen the persons, whom he claims to have seen running from the house, on the day of the incident.

The identification of the accused by this witness is extremely doubtful. This witness has admitted that he had not seen the accused prior to the incident. This witness had only flitting glimpse of the accused when he had seen them running. Omission has been elicited that he had not stated in his previous statement about noticing 4 to 5 accused running from the house. He has admitted that there was darkness outside the house. In such circumstances, therefore, in our opinion, no reliance whatsoever can be placed on the evidence of this witness regarding the identity of the accused.

Prosecution has examined PW 3 - Rajiv, husband of PW 1 - Neelam. PW 3 - Rajiv deposes that in the night he had heard some sound and was, therefore, awakened. According to him, a zero bulb was burning in the room. 4 to 5 persons entered through the door, were armed with iron bars and one of the accused was armed with sickle. When PW 1 - Neelam questioned them as to who they were, one of the assailants gave a blow of iron rod on the head of PW 3 - Rajiv. Due to that blow, Rajiv fell on the ground and sustained injuries to his head. According to him, he was lying in his semi conscious stage and had noticed the accused demanding ornaments from PW 1 - Neelam. Cash amount of Rs. 32000/-, gold chain, mobile of Nokia Company as well as gold ornaments of PW 1 - Neelam were stolen. According to Rajiv, he was taken to the Hariya Hospital, where he was medically treated and first aid was administered. He has identified accused No. 5 - Rajendra to be the person who had assaulted him.

In cross-examination, he was asked whether the thieves had covered their faces and he admitted that all the thieves have not covered their faces. According to him, the thief who had assaulted him, had not covered his face. Omission has been elicited about a zero bulb burning in the room. Omission is also elicited that he had not stated in his previous statement that he had noticed the thieves demanding ornaments from PW 1 - Neelam. He was confronted with portion marked "A" from his statement that the thieves, who had entered the house, had covered their faces with handkerchiefs.

The evidence of PW 6 - Dinesh Kurhade, a Nayab Tahsildar, indicates that PW 1 - Neelam had identified accused No. 1 - Santosh Chavan and accused No. 2 - Anil @ Dagdu Shinde in the Test Identification Parade. PW 3 - Rajiv had also identified accused Nos. 1 and 2 in the Test Identification Parade. PW 2 - Umeshsingh had also identified accused Nos. 1 and 2 in the Test Identification Parade. PW 1 - Neelam, however, could not identify accused No. 3 - Shankar in the Test Identification Parade. One Rakeshsingh also identified accused No. 3 - Shankar in the Test Identification Parade.

Another Test Identification Parade was conducted on 9/10/2006 in respect of accused No. 5 - Rajendra. PW 3 - Rajiv identified accused No. 5 - Rajendra in the Test Identification Parade. Another Test Identification Parade was conducted on 4/12/2008 regarding accused No. 7 - Bansi @ Laxman Kale. PW 3 - Rajiv identified accused No. 7 - Bansi @ Laxman Kale.

It would thus be seen that PW 1 - Neelam identified only accused Nos. 1 and 2 in the Test Identification Parade. However, PW 1 - Neelam has not identified those persons in the substantive evidence in the court. PW 1 - Neelam had failed to identify accused No. 3 - Shankar in the Test Identification Parade, though she has identified him in the court.

PW 3 - Rajiv had identified accused No. 5 - Rajendra and accused No. 7 - Bansi in the Test Identification Parade. PW 3 - Rajiv has identified accused No. 5 - Rajendra as the thief who had entered his house.

The dacoits, who had committed the dacoity at the house of PW 1 - Neelam, had covered their faces with handkerchiefs. Part of the faces of the dacoits were covered by the mask made of handkerchiefs. PW 1 - Neelam claims that the dacoits had removed the masks when Neelam was brought in the hall. An omission has been elicited that she had not stated so in her report. PW 3 - Rajiv has admitted that the accused had covered their faces, but claims that all the accused had not covered their faces. Admittedly, even according to PW 3 - Rajiv, he was assaulted immediately on the accused entering the bed-room. In further cross-examination, he was confronted with portion marked "A" from his statement wherein he had admitted that the dacoits had covered their faces. In such circumstances, therefore, in our opinion, the identification of the accused as the assailants or as the dacoits cannot be relied upon. The witnesses i.e. PW 1 - Neelam and PW 3 - Rajiv did not have adequate opportunity of observing the features of the accused and thereby retaining an impression about dacoits in their minds. Since the dacoits had covered their faces and since the incident had lasted hardly for five minutes, in our opinion, it would be humanly impossible for PW 1 - Neelam as well as PW 3 - Rajiv to have identified the assailants.

The evidence of the prosecution witnesses certainly indicates that from the possession of accused No. 2 - Anil, the gold ornaments were discovered.

As against accused No. 1 - Santosh Chavan, the prosecution has relied on the disclosure memorandum, leading to the seizure of the iron rods and cash amount of Rs. 32,000/-. In respect of the iron rods, we find that no reliance can be placed on the said discovery as there is no report of the Chemical Analyzer which would establish if the iron rods were stained with blood. There is no link evidence establishing the house of the iron rod by the accused. PW 1 - Neelam has also not identified the cash of Rs. 32000/- which was discovered by accused No. 1 - Santosh Chavan. In the absence of any evidence, establishing that the cash discovered by the accused was the same cash which was stolen from the house of PW 1 - Neelam, mere discovery of the said cash amount of Rs. 32000/- would not involve accused No. 1 in the commission of offence. Moreover, accused No. 1 has not been identified by PW 1 - Neelam as the dacoit who had entered in her house.

In respect of accused No. 2 - Anil, the prosecution has relied upon the disclosure memorandum leading to the discovery of the gold chain, ear rings and finger ring. PW 1 - Neelam has identified the said ornaments as belonging to her. PW 1- Neelam, however, has not identified accused No. 2 to be the dacoit who had entered the house. Thus, in our opinion, accused No. 2 also would be entitled to be given the benefit of doubt, but would be liable to be convicted for offence punishable under Section 412 of the IPC.

The evidence against accused No. 3- Shankar consists of the identification of accused No. 3 - Shankar by PW 1 - Neelam. However, PW 1 - Neelam could not identify accused No. 3 - Shankar in the Test Identification Parade. Her identification of the accused No. 3 for the first time in court, therefore, in our opinion, would not be sufficient for sustaining the conviction of accused No. 3. Accused No. 3 - Shankar, in our opinion, therefore, would be entitled to be given the benefit of doubt.

Accused No. 4 - Santosh Nakate has been identified by PW 1 - Neelam in the substantive evidence in court as one of the dacoits. However, accused No. 4 - Santosh Nakate has been acquitted by the trial court.

The evidence against accused No. 5 - Rajendra is the identification of this accused by PW 3- Rajiv. As pointed out by us above, evidence of PW 3 - Rajiv indicates that he was assaulted immediately on the thieves entering in the room and had lost his consciousness. Moreover, the evidence of PW 3 - Rajiv also indicates that the accused had covered their faces and, therefore, in our opinion identification of this accused by PW 3 - Rajiv cannot be the basis for sustaining the conviction of this accused. This accused has also been identified by PW 1 - Neelam in the substantive evidence in court. However, PW 1 - Neelam was not called upon to identify accused No. 5 - Rajendra in the Test Identification Parade. In the absence of some corroborative evidence by way of identification in the Test Identification Parade, in our opinion, the conviction of accused No. 5 - Rajendra cannot be sustained on the basis of evidence of PW 1 - Neelam.

The evidence against accused No. 7 - Bansi @ Laxman comprises of his identification by PW 1 - Neelam. However, accused No. 7 - Bansi was not identified by PW 1 - Neelam in the Test Identification Parade, though he was identified in the identification parade by PW 3 - Rajiv. PW 3 - Rajiv does not identify him in his substantive evidence. Accused No. 7 - Bansi @ Laxman, in our opinion, is entitled to be given the benefit of doubt.

We thus find that the prosecution evidence is wholly insufficient for establishing the identity of the accused as the dacoits/assailants. The prosecution has proved the recovery of stolen ornaments at the behest of accused No. 2 - Anil. However, accused No. 2 - Anil has not been identified in court by PW 1 - Neelam as the assailant/dacoit. The conviction of accused No. 2, therefore, will have to be set aside. However, since he was found in possession of stolen ornaments which have been duly identified by PW 1 - Neelam, the conviction of accused No. 2 will have to be altered to an offence punishable under Section 412 of the IPC.

Accordingly, Criminal Appeal No. 1343 of 2012 is allowed and the conviction and sentence of the appellant/Original Accused No. 1 - Santosh Devidas Chavan is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by him, be refunded to him.

Criminal Appeal No. 1324 of 2012 is allowed and the conviction and sentence of the appellant/Original Accused No. 5 - Rajendra is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by him, be refunded to him.

Criminal Appeal No. 1355 of 2012 is allowed and the conviction and sentence of the appellant/Original Accused No. 7 - Bansi @ Laxman Subrao Kale is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by him, be refunded to him.

Criminal Appeal No. 71 of 2013 is partly allowed. The conviction and sentence of appellant/Original Accused No. 3 - Shankar Lagman Kale is hereby quashed and set aside and he is acquitted of the offence with which he was charged and convicted. Fine, if paid by him, be refunded to him. The conviction and sentence of appellant/Original Accused No. 2/Anil @ Dagdu Bhimrao Shinde is hereby quashed and set aside and instead, he is convicted for offence punishable under Section 412 of the IPC and is sentenced to the period of imprisonment already undergone by him and to pay fine of Rs. 5000/-, in default of which to undergo further RI for one year. Time of four weeks'' is granted to accused No. 2 - Anil @ Dagdu Bhimrao Shinde for payment of fine amount.

Since all the appellants/Original Accused Nos. 1, 2, 3, 5 and 7 are in jail, they be released forthwith, if not required in any other case.