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2013 Supreme(Bom) 2529
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
P. V. HARDAS & P. N. DESHMUKH, JJ.
Sudesh Maniken Nair & Ors.
Vs.
The State of Maharashtra
Criminal Appeal No. 906 of 2006 with Criminal Appeal No. 157 of 2008 with Criminal Appeal Nos. 1071, 1128 of 2005.
Decided On : 17th December, 2013.
Advocate Appeared:
Mr. R.D. SURYAWANSHI for Appellants in Cri. Appeal No. 906/06 and for Appellant in Cri. Appeal No. 157/08 i.e. Original Accused Nos.1, 2, 4 & 6.
Mr. A.P. MUNDARGI, Sr. Adv., with Mr. S.R. MITHARE for Appellant in Cri. Appeal No. 1071/05 i.e. Original Accused No.5.
Mr. GANESH GOLE for Appellant in Cri. Appeal No. 1128/05 i.e. Original Accused No.3.
Mr. H.J. DEDHIA, APP for State in all Appeals.
Headnote:Indian Penal Code, 1860 - Sections 364-A, 395 and 34 - Evidence Act, 1872, Sections 3 and 9 - Conviction and sentence under. - Where accused persons kidnapped complainant for ransom and badly assaulted him and snatched his brief case containing cash of Rs. 13000/- and gold bars therefore they rightly convicted and sentenced for said offence. - It would, thus, be seen that it is not a rule of universal application that in the absence of reliable evidence of identification of the accused by the witnesses in a Test Identification Parade, the substantive identification of the accused in the Court would be rendered valueless. In the present case, that reliance can certainly be placed on the identification of the accused in the Court by the witnesses, particularly PW 1 Yatin. Though the trial Court has declined to place any reliance on the evidence of the Test Identification Parade, that Yatin had spent a considerable time in the company of the accused. Yatin had observed the accused from close quarters and had also spoken to them. The accused had assaulted Yatin at the farmhouse. Yatin was, thus, in the company of the accused and certainly had more than adequate opportunity of observing the features of the accused. Thus, the identification by Yatin in the Court would not be vitiated because of absence of reliable evidence of identification in the parade. The prosecution contends that the gold ornaments had been purchased by the accused from out of their share of the ransom amount. The prosecution has made no endeavour to establish by evidence the date of purchase of the gold ornaments and in fact, whether they have been purchased by the accused. No attempt has been made by the prosecution to prove that the cash recovered from the accused formed part of the ransom amount. In the absence of such reliable evidence, the recovery of the cash as well as the ornaments and other articles at the behest of the accused would not lead the Court to draw an irrefutable inference that the accused had received their share of the ransom money and out of their share of the ransom money, they had purchased these articles. Thus, the recovery of these articles does not, in any manner, establish the offence against the accused, nor does it further the prosecution case.
P. V. HARDAS, J. :- The appellants/original accused nos. 1 , 2, 3, 4, 5 and 6, who stand convicted for offence punishable under Sections 364-A read with Section 34, 395 and 397, 387 read with Section 34, 342 read with Section 34 of the IPC and 3(1)(ii), 3(2), 3(4) of the MCOC Act and sentenced to imprisonment for life and to each pay fine of Rs.1,000/-, in default of which to undergo imprisonment for three months, RI for seven years and each to pay a fine of Rs.1,000/-, in default of which to undergo RI for three months on each count, imprisonment for five years and to each pay fine of Rs.1,000/- in default of which to undergo imprisonment for three months, imprisonment for one year and imprisonment for ten years and to each pay a fine of Rs.5,00,000/-, in default to undergo further imprisonment for three years, by the Special Judge (M.C.O.C. Act), Thane, by judgment dated 20/10/2005 in M.C.O.C. Special Case No.3 of 2002, by these appeals question the correctness of their conviction and sentence.
2. Facts in brief as are necessary for the decision of these appeals may briefly be stated thus:
PW 48 - PI Ashok Survade, who, on 24/5/2001, was attached to the Murbad Police Station, was informed at about 2 a.m. that PW 1 - Yatin Shah had left for Kalyan in his car along with his mother and driver after closing his shop, but had not reached home at Kalyan. He accordingly instructed the station diary incharge Head Constable to record an entry in the station diary and, therefore, an entry was recorded at Serial No.2 on 25/5/2001. PW 48 - PI Survade gave message to the nearby police station and the control room about missing of Yatin Shah. He deputed a police team to search for Yatin at Kalyan. In the morning, PW 2 Sudhir Shah came to the police station at about 6.10 a.m. and informed PW 48 - PI Survade that the missing person had not returned home and that the driver of the car and the mother of the missing person were taken by some unknown persons to a unknown destinations. Accordingly, another entry was taken in the station diary at Serial No.9. Sudhir Shah asked if he want to lodge report, but he declined. On 31/5/2001 when PW 48 - PI Survade was in the police station, PW 1 - Yatin came to the police station, along with his relatives. Yastin Shah had sustained an injury to his right leg and was walking with difficulty. His complaint was accordingly recorded at Exh. 60. On the basis of the said complaint at Exh. 60, an offence vide Crime No. 87 of 2001 was registered under Sections 397 and 341 of the IPC. The investigation was undertaken by PW 48 – P1 Survade. Thereafter, statements of Dinesh, Dhanesh, Shailesh and driver of the car - Mohd. Pathan were recorded. Statements of Naresh Shah and Sudhir Shah and Dinesh Shah were also recorded. Mother of PW 1 Yatin was not in a position to give her statement and, therefore, her statement could not be recorded. On the same day, PW 48 – PI Survade visited the spot at Murbad bridge, which was pointed out by PW 5 - Mohd. Pathan, the driver. PW 5 - Mohd. Pathan then took the police towards Karjat via MIDC area and Mhasa and pointed the other places. Accordingly the panchanama was drawn in the presence of panchas at Exh. 72. Naresh Shah had also pointed out certain places and the description of those places was also included in the panchanama at Exh. 72.
The police party was sent in search of the accused and on 30/6/2001 PW 5 - Mohd. Pathan, the driver of the car of PW 1 - Yatin was arrested. Statements of witnesses were recorded. Further investigation was thereafter handed over to PSI Tambe of the L.C.B. Crime.
3. PW 43 - PSI Dayaneshwar Baburao Tambe, who, in May 2001, was attached to the L.C.S., Thane, Rural, was entrusted with the investigation of Crime No.87 of 2001 registered at the Murbad Police Station. On 30/7/2001, the investigation was entrusted to him. The printout of the mobile phone numbers mentioned in the report of PW 1 - Yatin was obtained. Statement of one Nilesh Shelar w
