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1997 Supreme(Bom) 106
IN THE HIGH COURT OF BOMBAY
Vishnu Sahai Mrs. R.P. Desai, JJ.
Vasant alias Roshan Sogaji Bhosale .... Appellant.
Versus
The State of Maharashtra.... Respondent.
Criminal Appeal No. 607 of 1984, decided on 27-2-1997.
Advocates appeared :
Ms. Anita Agarwal, for the appellant.
M.P. Galeira, A.P.P., for the respondent.
Headnote:Sections 395, 397 and 411-Evidence Act, 1872, Section 114 illustration (a)-Appeal against conviction-Dacoity committed and ornaments looted In the field of complainant-Seizure of theft after one month 10 days-Evidence Act under Section 114(a) presumption can be raised-Acquittal under Sections 385 and 397 and conviction under Section 411 Penal Code imposition of sentence to period already undergone of Rs. 3,000/.-It is true that out of two public panchas, one namely Madhukar Sutar turned hostile but the evidence of the second panch. PW 10, which Court meticulously perused along with that of the PSI Gavade. the Investigating Officer, inspires confidence. The statement Baba Ghavte. PW 10 reveals that he is a man of status owning 20 acres of land and has no grudge against the appellant. It is true that PSI Gavade is a police witness but, that would be no ground to reject his testimony. In the his statement. Court found no such infirmity on the basis of which Court could reject the same. Court accept the said recovery it is significant to point out that Sakhubai PW 5, mother of the informant recognised the three golden beads and the two golden vatis, when they were shown to her during trial as articles which were parts of the Mangal Sutra of her daughter in law. The trial Court was justified in believing the evidence of recovery.
The trial Court was grossly unjustified merely on the basis of the evidence of recovery in convicting and sentencing the appellant under Sections 395 and 397, IPC. It is true that under Section 114(a) of the Indian Evidence Act.
Court may presume:
(a) that a man who is In possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
Since a perusal of Sections 390 and 395, IPC shown that dacoity is an aggravated form of theft the presumption contained in this provision would also be applicable to the offence of dacoity.
As the offence was under Sections 395 and 374, IPC, there is a reasonable likelihood of the appellant having been in jail for sometime as an undertrial. It would not be expedient in the interest of justice, to send the appellant to jail and a sentence of fine instead would meet the ends of justice.
In the result, this appeal is partly allowed and partly dismissed. Court acquit the appellant for offences under Sections 395 and 397, IPC and set aside his sentence of five years and seven years respectively on those counts. Instead Court convict him under Section 411, IPC. For that offence. Court reduce his sentence to the period already undergone by him and impose a fine of Rs. 3,000/- and six months RI in the default. The said fine should be deposited by him within a period of 3 months from today in the trial Court.
In case the appellant does not pay the fine within 3 months from today, as directed by Court, he shall undergo the sentence of 6 months RI imposed in its default. In case the appellant pays the fine within the stipulated period, his bail bonds shall stand cancelled and sureties discharged.
2.The case for the prosecution is that on the night of 17th/18th March, 1983 the appellant along with five others committed dacoity in the agricultural field of the complainant Digambar Bandal, P.W. 1 situated within the limits of village Karade, and during the course of dacoity, he and his associates are alleged to have looted valuables belonging to Sakhubai Bandal, P.W. 5 and Saraswatibai, the mother and the wife of the informant respectively. It is also said that during the course of dacoity, the dacoits snatched both the earrings of Sakhubai and 3 golden beads and 2 golden vatis of the Mangalsutra of Saraswatibai and caused injuries to the complainant, Sakhubai and Chimaji (father of the complainant). The dacoit are alleged to have been recognised in torch light.
3.The F.I.R. of the incident was lodged by Digambar Bandal, P.W. 1 on 18-3-83 at 8 a.m. at Shirur Police Station. It is at Exhibit 7. In the said F.I.R., the appellant is not nominated.
4.The injuries of the complainant, Sakhubai and Chimaji were medically examined. The medical evidence shows that all of them had blunt weapon injuries. It further shows that one of the injuries of Sakhubai was grievous in-as-much as 5th, 6th and 7th rib of her left side were fractured. This has come in the evidence of Dr. Anil Shah, P.W. 8.
5.The investigation was conducted in the usual manner. On 23-5-1983, P.S.I. Gavade of Jejuri Police Station, received a wireless message about the arrest of the appellant. During the course of interrogation, the appellant stated that he could get the looted property recovered. Consequently, on 26-5-1983, in the presence of P.S.I. Gavade, public panchas Madhukar Sutar, P.W. 9 and Baba Dhavate, P.W. 10, on the pointing out of the appellant, from inside his house, which was found to be locked; the lock having been broken by him, three golden beads and two golden vatis, wrapped in a paper, were recovered, from the surface of the wall and a wooden plank was kept above the paper in which they were wrapped.
6.The case was committed to the Court of Sessions in the usual manner. In the trial Court, the appellant was charged for offences under sections 395 and 397 I.P.C. To the said charges, he pleaded not guilty and claimed to be tried.
During trial, the evidence adduced against the appellant was of a two-fold nature:-
(a) Identification by witnesses in the Court; and
(b) recovery of golden ornaments on his pointing out.
The trial Judge rejected the evidence of identification on the ground that identification for the first time in Court could not be relied upon. He, however, convicted the appellant on both the charges i.e. 395 and 397 I.P.C. On the basis of recovery of three golden bead and two golden vatis on his pointing out.
7.We have heard Ms. Anita Agarwal for the appellant and Mr. M.P. Galeira, Additional Public Prosecutor, for the State of Maharashtra-respondent. The short point in this appeal is firstly whether the evidence of recovery of golden ornaments on the pointing out of the appellant inspires confidence and secondly if it does; would it be sufficient for sustaining the conviction of the appellant for the offences in question.
Our answer to the first question is in the affirmative and to the second in the negative.
It is true that out of two public panchas, one namely Madhukar Sutar turned hostile but, the evidence of the second panch Baba Ghavte, P.W. 10, which we have meticulously perused along with that of the P.S.I. Gavade, the Investigating Officer, inspires confidence. The statement of Baba Ghavte, P.W. 10 reveals that he is a man of status owning 20 acres of land and has no grudge again
