Back
2019 Supreme(Bom) 1390
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
R.B. DEO, J.
Rajnish Purushottam Pogade and Ors. – Appellants
Versus
State of Maharashtra – Respondent
Criminal Appeal 786, 787 of 2018
Decided On : 10-06-2019
Advocate Appeared:
For the Appellant : Anil Mardikar, Senior Counsel assisted by Rishabh Khemuka
For the Respondents: T.A. Mirza, Additional Public Prosecutor
Headnote:
Indian Penal Code, 1860 - Sections 394, 397, 392, 34, 396 - Code of Criminal Procedure, 1973 - Section 313 - Indian Evidence Act - Section 27 - Evidence Act - Section 9 - Incident - Investigating Officer - Seized Knife - I have heard learned senior counsel for accused and learned Additional Public Prosecutor for respondent/State and with their able assistance I have scrutinized evidence on record and reasons recorded by trial Court - Currency notes allegedly seized were not produced before trial Court seizure of motorcycle is not proved as is rightly held by trial Court would submit that trial Court gravely erred in basing conviction on identification of accused in TIP and then in Court by PW 1 - Contours and sweep of submission of learned senior counsel touching aspects on identification in Court and in TIP shall be considered in some detail at a later stage in judgment - Held, In order to bring home guilt of accused persons it is duty of prosecution to prove that stolen property was in possession of accused persons or that accused had knowledge that property was a stolen property or accused persons had converted stolen property - No such recovery was made to connect appellants and other non-appealing accused persons with crime - I am satisfied that there is no substantive evidence of identification of accused in Court evidence of TIP which in any event is not substantive evidence is even otherwise unacceptable for reasons recorded supra - Moreover there is no established incriminating material in shape of recovery of stolen articles to connect accused with crime - Learned Sessions Judge has based conviction substantively if not entirely on identification of accused - I am therefore not persuaded to uphold judgment impugned - Appeal are allowed.
JUDGMENT :
R.B. Deo, J.
1. These appeals assail the judgment dated 19.11.2018 rendered by the Sessions Judge, Bhandara in Sessions Trial 33 of 2015, by and under which, the accused are convicted for offence punishable under section 394 and 397 of the Indian Penal Code (IPC) and are sentenced to rigorous imprisonment for seven years on each count and to payment of fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for three months. Criminal Appeal 786 of 2018 is preferred by accused 1 - Rajnish Pogade and accused 3 - Monu Bokade and Criminal Appeal 787 of 2018 is preferred by accused 2 - Govind Sorte.
2. The prosecution case:
(i) The incident occurred on 11.4.2015. The driver of Bolero-pickup vehicle one Naresh Shende - who is the informant and conductor Paras kamble were proceeding from Lakhani to Bilaspur at 7.45 p.m. or thereabout. The vehicle was forced to stop at Sakoli bus stand by three persons riding on a green motorcycle. One person approached the informant and dragged him out of the Bolero vehicle and other person checked the pockets of the informant to which the informant objected. The person who dragged the informant out of the Bolero then whipped out a knife and inflicted a wound to the right hip of the informant and snatched a mobile phone (Nokia) from the shirt pocket of the informant. The person who checked the pockets of the informant snatched a black coloured leather wallet from the trouser pocket of the informant, which wallet contained one Adhar Card and Driving Licence. The said person also relieved the informant of Rs. 1400/- cash.
(ii) The informant lodged police report at the Sakoli Police Station pursuant to which Crime 49 of 2015 was registered for offence punishable under section 392, 394 read with section 34 of the IPC and the informant was sent to the Rural Hospital, Sakoli for treatment.
(iii) The informant stated in the First Information Report (Exh. 49) that he is in a position to identify the culprits. The informant ventured to narrate the description and distinctive features of the culprits, in the First Information Report.
(iv) The Sakoli police arrested accused 1 Rajnish and accused 2 Govind on 12.4.2015 and accused 3 Monu on 15.4.2015. Perusal of the remand papers would reveal that the arrests were effected on suspicion.
(v) The Investigating Officer PSI Shri Ganesh Khandare seized currency of Rs. 1400/- from accused 1 - Rajnish and the clothes allegedly worn by the said accused on the date of the incident. The Investigating Officer seized knife from the residence of accused 3. The motorcycle was also seized. The Investigating Officer requested the Naib Tahsildar to conduct the Test Identification Parade (TIP) of the accused. Statements of witnesses were recorded and upon culmination of the investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Sakoli.
(vi) The Judicial Magistrate First Class, Sakoli committed the proceedings to the Court of Sessions which framed charge under section 394 and 397 read with section 34 of the IPC (Exh. 26). The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the text and tenor of the cross-examination and the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication. The defence of false implication is predicated on the assertion that there was previous enmity between the accused and the informant on the issue of carrying passengers in the vehicle.
3. The prosecution examined as many as eleven witnesses. PW 1 Naresh Shende is the informant. PW 2 - Dr Rupesh Badwaik examined the informant. PW 3 - Vinayak Mungmode is the witness to the spot panchanama and the seizure of clothes of the informant. PW 4 - Arvind Nimbekar is the panch witness to the seizure of currency of 1400/- and clothes from accused 1. PW 5 - Ramesh Ramteke is the witness to the seizure of clothes of accused 3 - Monu and the knife a
