State of Maharashtra vs Nababai Abdul Hasan and another

Tated, J.—The State preferred this appeal against the judgment and order dt. 20th August, 1980 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 376 of 1979, acquitting the respondents 1 and 2 of the charge under S. 397 read with S. 34 and further acquitting respondent 1 of the charge under S. 397 read with S. 392, Penal Code.

The prosecution case lies in a very narrow compass. The complainant Bhanudas Satwa Kamble (P.W. 1) is a taxi driver. On the night between 28th and 29th June, 1978 the complainant Bhanudas was plying his taxi. At about 2.00 a.m. While he was waiting on the road leading to Sion Bus Station, accused 1 and 2 approached him and hired his taxi. Both the accused boarded the taxi and asked the complainant to take the taxi towards Kalina Church. From Kalina Church they took the taxi towards Municipal School building and when the taxi was near the Municipal School, the accused asked the complainant to stop the taxi. Accordingly, the complainant stopped the taxi. Accused 1 asked the complainant about the fare. The complainant in order to have the reading of the meter learned towards the meter. At that time accused 1 who was sitting by the side of the driver removed the ignition key by one hand and obtained knife from accused 2, who was sitting on the rear seat by the other hand. He opened the knife and at the point of knife the complainant was asked to hand over to the accused whatever valuables he had with him. Accused 1 thus putting the complainant under instant fear of hurt or death snatched the wrist watch which the complainant has on his wrist. Accused 2 also took out the amount of Rs. 35/- from the pocket of the complainant. After removing the wrist watch and the money from the complainant the accused got down from the taxi, threw the ignition key on the road and started running away. At that time the complainant raised shouts "chor, chor, Pakdo Pakdo". On hearing his shouts two Police constables who were on patrol duty in civil dress approached the complainant and on learning from the complainant that the accused were running away they running away they chased the accused. The two other constables who were in uniform also arrived there and they also joined in the chase of the accused. The accused were ultimately caught and were brought near the taxi by these four constables. The constables called two Panchas. P.W. 2, Gajanan Kalu Bure is one of those Panchas and in the presence of Panchas searched the persons of the accused and in the search a knife was found in the pocket of each of them. The wrist watch of the complainant and his money which the accused had removed from the complainant were also found with the accused. All these articles were seized by drawing a panchanama, Exhibit-7. The Police constables took the accused the complainant and the articles found with them to the Police Station. At the Police station the complainant lodged F.I.R. which was recorded by P.S.I. Gangadhar Bapusaheb Surve (P.W. 4). The accused were put under arrest. The panchanama of the scene of the offence was drawn. The persons of the accused were also searched and panchanama was drawn up. Thus after completing the investigation accused 1 and 2 were prosecuted for the offences mentioned above.

The accused denied the charges levelled against them. According to them, the Police constables took them to the Police Station on one day while they were passing near Kalina Church, knives were planted on their persons and they were falsely implicated in the crime. They led no defence evidence.

The learned trial Judge after considering the evidence adduced by the prosecution acquitted the accused. Feeling aggrieved the State has preferred this appeal.

The learned Public Prosecutor took us through the evidence on record and the judgment of the trial Court. According to the learned Public Prosecutor, the accused were caught red-handed immediately after the incident and the stolen property was recovered from them. The matter was reported to the Police within an hour or so after the incident and the whole investigation was complete on that very night. He submits that the evidence of taxi driver B. S. Kamble and of the panch Gajanan (P.W. 2) and the Police constable Atmaram Yeshwant Tambave (P.W. 3) was discarded by the learned Addl. Sessions Judge on mere conjectures and surmises. According to the learned Public Prosecutor, there was nothing to discard the testimony of the taxi driver and the other witnesses examined by the prosecution in this case and the learned Addl. Sessions Judge has wrongly discarded their evidence and acquitted the accused.

Before proceeding to appreciate the evidence on record, we would like to consider the law on the point of appreciation of evidence by the Appellate Court and interference with the findings of facts recorded by the trial Court. Their Lordships of the Supreme Court in the case of Radha Prasad Singh Vs. Gajadhar Singh and Others, of the report stated the law thus :

"The position in law, in our opinion, is that when an appeal lies on facts it is the right and duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge''s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion in based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."

Their Lordships of the Supreme Court in the cease of Narotam Singh Vs. State of Punjab and Another, , on the appreciation of the evidence of witnesses who gave evidence long after the date of incident observed thus :- (Para 3)

"Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The ''sacred cows'' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home. By these guidelines, the conviction of the appellant must stand, although we do not detain ourselves to discuss the details of the evidence."

A reading of the judgment of the trial Court shows that the learned Judge has given much importance to certain omissions in the statements of the witnesses recorded under S. 162 Cr.P.C. by treating them as contradictions. Each and every omission in the statement under S. 162 cannot be treated as contradiction of the evidence of the witnesses on oath given in the Court. What omissions in the statements under S. 162 should be considered as contradictions have been considered by the Supreme Court in the case of Tahsildar Singh and Another Vs. The State of Uttar Pradesh, of the report stated the law thus :

"From the foregoing discussion the following propositions emerge : (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradictions : (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases; (i) when a recital is necessarily implied from the recital or recitals found in the statement : illustration : in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement : illustration : in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when that statement before the police and that before the Court cannot stand together : illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true the other must necessarily be false.

The aforesaid examples are not intended to be exhaustive but only illustrative. The same instance may fall under one or more heads. It is for the trial Judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness box, to give a ruling, having regard to the aforesaid principles, whether the recital intended to be used for contradiction satisfies the requirements of law."

The Supreme Court again in the case of Matadin and Others Vs. State of U.P., , stated the law thus :

"The learned Sessions Judge had rejected the evidence of the eye-witnesses on wrong, unconvincing and unsound reasons. The Sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the Police and on the basis of these omissions doubted the witnesses as liars. The Sessions Judge did not realise that the statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self-contained liars."

Keeping in mind the aforesaid law regarding the appreciation of evidence and use of the omissions in the statement recorded under S. 162 for contradiction of the evidence of the witnesses in the Court, we proceed to consider the evidence on record.

The complainant, B. S. Kamble (P.W. 1) is a taxi driver. He has answered in detail how the accused hired his taxi on the night of the incident and took him from place to place and thereafter asked him to stop it near a Municipal School. There accused 1 asked him what were the meter charges. In order to read the meter he put on the meter light and leaned towards the meter to take the meter reading. He states that accused 1 who was sitting by his side removed the ignition key from the switch by his left hand and he stretched his right hand towards accused 2 who was sitting on the rear seat and asked him to give him the valuables and at that time the complainant found an open knife in his hand. He deposed that accused 1 pointed the knife over the left side of his abdomen and asked him to hand over whatever he had with him and also threatened him with dire consequences in case he raised shouts. In the meanwhile accused 2 put his hand in the right pocket of complainant''s shirt and took out the amount of Rs. 30/- to Rs. 35/- which he had collected as hire charges on that night. Thereafter accused 1 snatched away the wrist watch which the complainant had on his wrist. The wrist watch was of Henry Sandoz make. After robbing the complainant of all the valuable articles he was having accused 1 threatened him that in case he shouted he would be killed. Accused 1 asked the complainant to go away quietly. Thereafter accused 1 and 3 got gown from the taxi. Accused 1 threw the ignition key on the road and both the accused ran towards the church. Thereafter the complainant shouted "chor, chor, pakdo, pakdo". (thief, thief, catch, catch). He states that the two police Constables in Mufti approached him and asked him what was the matter and thereupon he told them that the two persons robbed him at the point of knife and they were running away. He also pointed the persons who were running away to those constables. He further states that those two constables started chasing the accused and in the meanwhile two other constables in the uniform arrived there. They also chased the accused and within 5/7 minutes the accused were brought by these constables at the place where he was standing near the taxi. He also states that both the accused were searched in the presence of Panchas and Panchanama was prepared. According to him, an amount of Rs. 35/- was found in the pocket of accused 2. One knife each was also found in the pockets of those two persons. His wrist watch was also found in the pocket of accused 1. He identified the wrist watch (article 2) and the currency notes which were seized from these accused persons. He states that ignition key was found lying at a distance of 15 to 20 ft. from the taxi. According to him, Police constables took him to the Police Station and at the Police Station he lodged his report which was recorded by P.S.I. G. B. Surve (P.W. 4). The FIR is at Exhibit-7. The testimony of the complainant is fully corroborated by the FIR Exh. 7 and also by Police Constable, Atmaram Yeshwant Tambave (P.W. 3) who had taken part in chasing and apprehending the accused. There is nothing in the lengthy cross-examination of the complainant B. S. Kamble to indicate that the complainant bore any grudge against the accused and on that account he made a false report against them. The complainant did not know the accused 1 and 2 before the date of the incident and, therefore, there was no reason whatsoever for the complainant to make false report against them. The learned trial Judge doubted the testimony of the complainant that he had put on a light of the meter as he had not stated that fact in his statement before the Police. Whether the light of the meter was put on by the complainant when he was taking meter reading is not such a vital omission in the statement before the police on the basis of which the complainant should have been disbelieved. It is just natural that he must have put on the light of the meter when he was taking meter reading. His testimony on that point could not be contradicted by mere omission of such statement in the statement before the Police.

The learned trial Judge also doubted the testimony of the complainant that there was sufficient light from the electric lamp post by the side of the road. The complainant stated in his deposition that the bulb on the lamp post was burning at the time of the incident. The said testimony of the complainant was doubted by the learned trial Judge on the ground that no such statement was made by the complainant in the statement made before the Police. Here also the learned trial Judge was not right in considering the said omission as vital and testimony of the complainant in the Court and the statement made by him before the Police are not reconcilable. Unless what is stated in the deposition is irreconcilable with the Police statement the omission in the statement before the Police cannot be regarded and used as contradiction of the evidence given in the Court.

In this connection reference may be had to the decision in Tahsildar Singh''s case referred to above. In that case the witness stated in the Court that there was a gas lamp and that some of the miscreants scrutinised the faces of the dead bodies. In their statement before the Police they did not mention the said two facts and some of the witnesses stated that there were lanterns. On such omissions and discrepancy in their evidence in the Court their testimony was attacked as unreliable. Their Lordships repelled the contentions of the defence Counsel and observed Tahsildar Singh and Another Vs. The State of Uttar Pradesh, of the report thus :-

"would those two omissions satisfy the test laid down by us ? The witness stated in the Court that there was a gas lamp and that some of the miscreants scrutinised the faces of the dead bodies. In their statements before the Police they did not mention the said two facts and some of the witnesses stated that there were lanterns. Taking the gas lamp first : the scene of occurrence was not a small room but one spread over from the well to Bankey''s house. From that omission in the statement it cannot necessarily be implied that there was no gas lamp in any part of the locality wherein the incident took place; nor can it be said that, as the witnesses stated that there were lanterns, they must be deemed to have stated that there was no gas lamp, for the word "lantern" is comprehensive enough to take in a gas lantern. It is also not possible to state that the statements made before the Police and those made before the Court cannot co-exist, for there is no repugancy between the two, as even on the assumption that lantern excludes a gas lantern, both can exist on the scene of occurrence. The same can be said also about the scrutiny of the faces of the dead bodies. In the statements before the police, the movements of the appellants were given. It was stated that they shot at the people and decamped with the gun of Bharat Singh. The present evidence that in the course of their pursuit, they looked at the faces of two of the dead bodies does not in any way contradict the previous versions, for the said incident would fit in with the facts contained in the earlier statements. The appellants could have shot at the audience, pursued them, taken the gun of Bharat Singh and on their way scrutinized the dead bodies. The alleged omission does not satisfy any of the principles stated by us."

In the present case also the testimony of the complainant cannot be doubted simply because he did not state in his statement before the Police that the bulb on the electric lamp post was burning. There were two electric lamp posts, one was at a distance of about 20 ft. and another was at a distance of about 70 ft. from the place where the incident took place and the car was parked. There was also light of the electric meter and the evidence of complainant and the that of Police Head Constable Atmaram (P.W. 3) and the Panch Gajanan (P.W. 2) shows that there was sufficient light and in that light the accused were searched and Panchanama was drawn. Had the learned trial Judge borne in his mind the principles laid down in the case of Tahsildar Singh he would not have fallen into the error of discarding the evidence of the complainant only on the ground that in respect of some minor points there are some omissions in the statement of the complainant before the Police. We find that the learned trial Judge was completely wrong in doubting the testimony of the complainant on the grounds mentioned above. The testimony of the complainant, as stated earlier, is fully supported by other witnesses, who arrived at the scene of offence immediately after the complainant was robbed and took part in chasing the accused. The testimony also is supported by the recovery of the knives from the pockets of the accused and also stolen articles, wrist watch and currency notes from their pockets. His testimony is also supported by FIR which was lodged within an hour of the incident. Taking into consideration all these aspects, we find that the learned trial Judge was wrong in doubting the testimony of the complainant; and disagreeing with the learned trial Judge, we find the testimony of the complainant truthful.

The learned trial Judge was also not right in discarding the testimony of the Panch witness (Gajanan, P.W. 2). The testimony of the panch witness has been doubted no some conjectures and surmises. The incident took place after midnight and at that odd hour of the night the Police had to take services of only those who were found near about, as Panchas. Besides the panch, the complainant (P.W. 1) and Police Constable, Atmaram (P.W. 3) have deposed about the search of the accused and the articles found on their persons. On a closer scrutiny of the evidence of these witnesses and the sequence in which the events have taken place, we find that the learned trial Judge was not at all right in doubting the testimony of the Panch Gajanan (P.W. 2) and Head Constable, Atmaram (P.W. 3).

In the result, we find that the learned trial Judge discarded the evidence of the prosecution witnesses on flimsy grounds and the conclusions reached by him that the prosecution failed to prove the charges levelled against the accused is wholly unreasonable. On reappraisal of the whole evidence on record, we find that the evidence of the witnesses can be safely relied upon and their evidence satisfactorily proved beyond reasonable doubt the charges levelled against the accused. Only accused 1 had used the knife and the charge under S. 397 read with s. 397, I.P.C., is only against him and the charge has been satisfactorily proved. Similarly against the other accused charged for the offence under S. 397 read with S. 34 I.P.C. is also proved beyond reasonable doubt. Therefore, their acquittal by the learned trial Judge will have to be set aside and they will have to be convicted and sentenced for the charges levelled and proved against them.

At this stage the learned Counsel for the respondents-accused requests for adjournment for submitting his arguments on the sentence to be awarded to the accused. The matter is adjourned to 1st August, 1988.

In the result, the appeal is allowed. The acquittal of the respondents-accused 1 and 2 of the charges under S. 397 read with S. 397, I.P.C., and S. 397 read with S. 34, I.P.C., respectively is set aside and the respondent 1 accused is found guilty of the offence under S. 397 read with s. 397, I.P.C., and the respondent 2 accused 2 is found guilty of the offence under S. 397 read with S. 34 I.P.C.

The learned Counsel for the respondents-accused have been heard on the point of the sentence to be awarded to the accused. The learned Counsel for the accused contends that this is the first offence committed by the accused and, therefore, they be released on probation of good conduct under S. 4(1), Probation of Offenders Act, 1958. The learned Counsel for respondent 2-accused 2 also submits that respondent 2 has not used any weapon at the time of the incident and that he was under 21 years of age when the offence took place. He submits that he be released on probation of good conduct under S. 6(1) of the said Act.

Respondent 1 accused 1 has committed an offence punishable under S. 397 read with S. 397 I.P.C. Section 397 I.P.C. provides for the minimum sentence of R.I. for seven years and this Court cannot award sentence to respondent 1, for the offence under S. 397 read with S. 397 I.P.C., R.I. for less than seven years. Robbing of a taxi driver at night at the point of knife is a serious offence. Taxi drivers have to ply their taxis at night also for the convenience of the public. In case the offenders who are found to have robbed taxi drivers at the point of knife at night are not adequately punished, it would seriously affect the taxi services at night. The nature of the offence committed by respondent 1 is so serious that he cannot be dealt with under S. 4(1), Probation of Offenders Act, and cannot be released on probation of good conduct. The accused 1 will have to be awarded the minimum sentence of R.I. for seven years provided under S. 397, I.P.C. We accordingly convict respondent 1 of the offence under S. 397 read with S. 397, I.P.C., and sentence him to suffer R.I. for seven years. He is granted one month''s time to surrender.

The respondent 2-accused 2, was below 21 years of age at the time of the offence and this is his first offence and there is nothing against him to hold that it is not desirable to deal with him under S. 3 or 4, Probation of Offenders Act. Therefore, in view of the provisions of S. 6(1) of the said Act, he has to be dealt with under S. 4(1) of the said Act. We find respondent 2 guilty of the offence punishable under S. 397 read with S. 34 I.P.C. and, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond for a period of two years, with one surety in the sum of Rs. 1,000/- to appear and receive sentence when called upon during the said period of two years and in the meantime to keep the peace and be of good behaviour. At the request of the learned Counsel for respondent 2, respondent 2 is granted 15 days'' time to surrender and to execute the bond mentioned above.

Order accordingly.