Bala Pandurang Kesarkar and another vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 392

IN THE HIGH COURT OF BOMBAY
Vishnu Sahai T.K. Chandra Shekhara Das, JJ.
Bala Pandurang Kesarkar and another ..... Appellants
Versus
The State of Maharashtra ..... Respondent.
Criminal Appeal No. 785 of 1997, along with Criminal Appeal No. 348 of 1998, decided on 8-6-1999.
Advocates appeared :
V.R.Naik, and R.E. Zarpkar in Cri.Appl. No. 785 of 1997, for appellant No. 1.
Ganesh Gole, in Cri. Appl No. 785 of 1997, for appellant No. 2.
Ms. Usha Kejriwal, A.P.P., in Cri. Appl No. 785 of 1997, for respondent and in Cri. Appl. No. 348 of 1998, for State.
R.E. Zarapkar, in Cri. Appl. No. 348 of 1998, for the appellant. (Absent)

Headnote:-Section 3-ldentificationEvidence-Offence under Sections 34, 392 and 297, IPC-Offence occurred in right time-No proof of sufficient light-No presumption can be drawn about sufficiency of light-Burden of proof lies on prosecution.-In cases resting on identification evidence, the burden of proving that there was light always rests on the prosecution and never shifts from it and it is only where the prosecution has discharged that burden the defence, if it wants to show that there was no light, would have to demolish the existence of light through cross-examination.
       Sections 3, 8, 9, 101 and 114(a)-See Indian Penal Code, 1860, Sections 34, 392, 397, 406 and 411.
       Section 9 and Penal Code, Sections 392 and 397-0ffence of robbery, dacoity-In cases resting on test identification evidence, the burden of proving that there was sufficient light wherein the victim and witnesses identified the miscreants at the time of incident always rests on the prosecution and never shifts from it and it is only where the prosecution has discharged that burden the defence if it wants to show that there was not light would have to demolish the existence of light through cross examination-If the prosecution does not discharge its burden, no presumption can be raised about the sufficiency of light and accused cannot be convicted on solitary identification by the victim.
       Section 114-PresumptionC5ffence under Sections 34, 392 and 397, IPC-Robbed property not recorded immediately but after six days-Held, no presumption of dacoity or robbery can be drawn.-It is true that in cases where the recovery has been immediately effected this Court can draw an inference under Section 114(a) of the Indian Evidence Act and convict the accused for the substantive offence of theft or robbery or dacoity or dacoity with murder etc. as the case may be. But in the instant case, the recovery is not immediate. It was effected on 4:10.1991 i.e. six days after the incident. In view of this belated recovery, it was felt that the offence of robbery would not be established against this appellant and only one under Section 411 of the IPC would be made put against him.
       Sections 34, 292, 397, 406 and 411-Evidence Act, 1872, Sections 3, 8, 9, 101 and 114(a)-Robbery-Committed at midnight-Robbed articles recovered after 6 days-Conviction Appeal-Conviction based on identification parade-No source of light mentioned by prosecution who is responsible and not accused-Two independent witnesses testifying facts their evidence consisting and reliable-Held, delay in recovery of robbed articles alters conviction to one under Section 411/IPC and sentence reduced to period already undergone.-It should be borned in mind that in cases resting on identification evidence, the burden is on the prosecution to prove that there was sufficient light wherein the victim and witnesses identified the miscreants. No presumption can be raised about the sufficiency of light which to Court regret was sought to be raised by the learned Judge in the instant case.
       The question of demolishing light through cross-examination would only have arisen had the prosecution established the light through examination-in-chief of the informant-victim and his FIR gone through the evidence of A.PI. S and N and Court find that the same is implicitly reliable. Both these witnesses were cross-examined but nothing could be elicited there from which would discredit the said recovery evidence in any manner. It should be borned in mind that both these witnesses are wholly independent witnesses having no axe to grind against this appellant. In our view their evidence inspires confidence.
       It is true that in cases where the recovery has been immediately effected this Court can draw an inference under Section 114(a) of the Indian Evidence Act and convict the accused for the substantive offence of theft or robbery or dacoity with murder etc. as the case may be. But in the instant case, the recovery is not immediate. It was effected on 4.10.1991 i.e. six days after the incident. In view of this belated recovery, Court feel that the offence of robbery would not be established against this appellant and only one under Section 411; IPC would he made out against him.

JUDGMENT - VISHNU SAHAI, J.:---Since both these Criminal Appeals arise out of the same set of facts and a common impugned judgment, we are disposing them off by one judgment.

2. Through these appeals, the appellants challenge the judgment and order dated 1st October, 1997, passed by the Additional Sessions Judge, Greater Mumbai, in the Sessions Case Nos. 80 of 1994 and 834 of 1997 convicting and sentencing them in the manner stated hereinafter:-

Under section 392 read with 34 of I.P.C. to seven years R.I. and to pay a fine of Rs. 500/- in default to suffer further R.I. for three months.

The appellant Devendra Krishna Kalsekar was further convicted under section 397 I.P.C. and sentenced to undergo seven years R.I. and to pay a fine of Rs. 500/- in default to undergo R.I. for three months.

The substantive sentences of the appellant Devendra Krishna Kalsekar were ordered to run concurrently.

3. In short, the prosecution case runs as under :

The informant-victim Rambahadur M. Tiwari, P.W. 1 in the year 1991 was working as a Press Photographer. On 28-9-1991 he left his house located in Shamji Morarji Bldg. C.B. Road, Bombay 10, for Goregaon. He worked in Goregaon till 5.30 p.m. After 6.00 p.m. he went to Govandi after catching a train at Dadar Railway Station and was there till 10.00 p.m., at which time he left for his residence. He reached Ghatkopar Railway Station at about 11.00 p.m. Since from the said station, bus was not available he started proceeding for his residence on foot via Jagdushaw Nagar Road. When at about 11.30 p.m. he had reached Manisha Apartment, on the said road, he saw a person standing in a lane. The said person whom he identified in the Court as appellant Mohd. Yusuf Gaus Gausmohd enquired from him the time and when he replied that it was 11.30 p.m. pushed him in the lane where three persons were standing. One of them whom he identified in Court as appellant Devendra Kalsekar brandished a knife and put the same on his stomach and another person whom he identified in the Court as appellant Bala Pandurang Kasarkar assaulted him with fists and removed his purse containing Rs. 25/-. Another person whom he identified in the Court as Zulfikar D. Abdul Sattar Khan removed his bag containing camera etc. After robbing the informant-victim, the appellants and Zulfikar D. Abdul Sattar Khan ran away.

4. F.I.R. of the incident was lodged by the informant-victim the same night at about 12.30 a.m. at Ghatkopar Police Station and on its basis A.P.I. Shegar P.W. 4 registered C.R. No. 385/91.

5. Investigation was conducted in the usual manner by A.P.I. Shegar, P.W. 4. On 30-9-1991, the appellants were apprehended and brought to Ghatkopar Police Station where they were arrested in C.R. No. 385 of 1991. On 2-10-1991 they were put up for test identification, which was conducted by S.E.M. Sayyad Hussein Noor Mohd. P.W. 2 and wherein informant-victim correctly identified them.

During the course of interrogation on 4th October, the appellant Mohd. Yusuf agreed to get looted property recovered. The said disclosure made by him was recorded in the panchanama Exh. 13 in the presence of public pancha Narendra Kamble P.W. 3. Thereafter the appellant Mohd. Yusuf led A.P.I. Shegar and Narendra Kamble in the police jeep to his house situated in Ghatkopar and removed a bag which was hanging on a wall and handed over the same to A.P.I. Shegar. In the said bag were found a camera, lense and flash. The said articles during the trial were identified, not only by the informant-victim but also by Narendra Kamble.

On 28-11-1991 A.P.I. Shegar arrested the Zulfikar @ D. Abdul Sattar Khan and put him for test identification on 5th January, 1992 where he was identified by the informant-victim.

After completing investigation the appellants and Zulphikar @ D. Abdul Sattar Khan were charge-sheeted.

6. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for the offences punishable under sections

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