Criminal Appeal No. 79 of 1986

24th October, 2001

Petitioner Counsel: Mr. A.M.SHRINGARPURE
Respondent Counsel: Mrs. SHARMIK KAUSHIK

JUDGMENT

RAJIV S. MOHITE, J.:- This is an appeal against an acquittal filed by the State of Maharashtra impugning the judgment and order dated 15.10.1985 passed by the Additional Sessions Judge, Greater Bombay, acquitting the Respondent Nos. 1 & 2 (Original Accused No. 1 & 2) from the charge of the offences punishable under Section 367 read with 109, 394 and 392 read with 397 of the Indian Penal Code.

2. The facts of the prosecution case as brought on record through the evidence of the first informant Shrikrishnaraj (P.W.1) are as follows :-

(a) A Government of India undertaking by name "Film Manufacturing Company Limited" is situated at Dr. Annie Besant road Worli, Bombay. P.W.1 Shrikrishnaraj was working as a Cashier in the said Company. The said company had a bank account with the State Bank of India, Worli Branch. It was the duty of the said Cashier to go to the said bank every day for depositing the cash and cheques received by the said company.

(b) On 16.5.1984 at about 12.05 p.m. P.W.1 Shirkrishnaraj was going to the said Bank accompanied with a peon Mr. Pandurang Sawant (Prosecution Witness No.2). They boarded a taxi in front of their office and asked the taxi driver to take them to Bank Box side where their bank was situated. The taxi driver did so accordingly. However, when he reached near Buddha Mandir, which was on the way, he stopped the taxi and allowed accused no.1 and 2 to get inside the taxi. Accused No.1 sat in the front by the side of taxi driver and accused No.2 sat in the rear next to P.W.1 Shrikrishnaraj. P.W.1 protested to the taxi driver and asked him as to why he had allowed the strangers to board the taxi. The reply given by the taxi driver was that the two accused were his friends and they also wanted to get down at Bank Box. A little further, down the road, instead of taking a right turn leading to the Bank, the taxi driver took a turn on the left. At this, both Shrikrishnaraj and Pandurang got frightened and they started shouting "Chor Chor". To prevent such cries, accused No.2 gagged P.W.1 Shrikrishnaraj with a cloth. Accused No.1 took out a sword from a cloth bag which he was carrying and pointed the same towards Shrikrishnaraj and asked him to hand over the brief case. Shrikrishnaraj caught hold of the sword to protect himself and according to him, he received bleeding injury on his right hand palm at two places, i.e. in between thumb and index finger and below the little finger. Accused No.2 gave a fist blow to Shrikrishnaraj. In view of this struggle within the taxi, the taxi driver proceeded in a zig-zag motion towards Worli Diary. The struggle inside the taxi continued and, at one stage Shrikrishnaraj managed to snatch the sword from the hands of accused No.1. In doing so, he fell on the ground, out of the taxi and received an injury on his right hand elbow. Pandurang Sawant also got down from the taxi without the brief case. The brief case was left in the taxi by Pandurang. In the meanwhile, accused No.1 and 2 and the driver drove away the taxi alongwith the brief case. Shrikrishnaraj was left standing on the road carrying the sword, which he had snatched from accused No.1 and he alongwith Sawant and some members of the public ran in the direction in which the taxi had gone. In the meanwhile, the taxi had stopped near the garden by name 'Shastri Garden' where the taxi driver and the two accused got down and started fleeing. Shrikrishnaraj saw the taxi driver carrying the brief case. According to Shrikrishnaraj, he and some members of the Public were able to catch hold of accused No.2. He saw one police constable running alongwith some members of public towards Podar hospital and, therefore, he went towards Podar hospital. There he saw accused No.1, who was caught hold by police constable. Therefrom, accused No.1 & 2 were first taken by Shrikrishnaraj to his office accompanied by a police constable, where Shrikrishnaraj conveyed the incident to his Manager. Thereafter Shrikrishnaraj was taken to the hospital of Dr. Masana, which is situated near his office. According to Shrikrishnaraj, he had sustained an injury on his nose, right hand and left palm. After treatment by the Doctor, Shrikrishnaraj came back to his office, where he saw the police wireless Van. Accused No.1 & 2, Shrikrishnaraj, Pandurang, Manager of the Company and the police constable were taken in a police wireless van to the police station, where Shrikrishnaraj lodged complaint, which was treated as the First Information Report in the case. The Crime at C.R.No. 335 of 1984 was registered by the Worli Police Station and Sub Inspector Sagare, attached to said police station proceeded with the investigation of the Crime.

(c) Shrikrishnaraj and Pandurang were first sent to Podar hospital, after they were brought from there, a panchanama of the scene of offence was prepared with the help of panchas, indicating the place from where Shrikrishnaraj fell out of the taxi and the place where the taxi was abandoned. The taxi was searched, some documents were taken charge of and some on the spot measurements were done under the panchanama at Exh. 34. Thereafter, P.S.I. Sagare recorded the statement of Mr. Sawant and Police Naik Magar. Witnesses were then sent to modus operandi bureau for identification of photograph of the absconding taxi driver. On the same day, Investigating Officer recorded the statement of P.S.I. S.D.Tawade, who was attached to the Police Wireless Van and who had prepared a panchnama in respect of the briefcase found in one of the lavatory under construction. P.S.I. Tawade produced the panchanama and the muddemal articles attached thereunder before the Investigating Officer. In the meanwhile, the accused who had been sent to Podar Hospital had been admitted in the hospital as indoor patients and were found to be having some injuries, which according to the prosecution were caused when they were manhandled by the public. Accused No.1 was discharged from the hospital on 19.5.1984 whereas the accused No.2 was discharged on 21.5.1984.

(d) On 17.5.1984 Investigation of the crime was handed over to S.I.Surve. On 18.5.1984 S.I. Surve with two panchas again took search of the taxi bearing No. MRT 305, which was stationary on the road. It is alleged that one sword which was wrapped in paper was seen lying in front of the said taxi and therefore seized under a panchanama (Exhibit 36).

(e) It is alleged that the finger print expert by name A.H.Hegiste was able to trace seven chance prints on the taxi, namely two on dash board, three on left rear door glass and two on the right door glass. It was alleged that the number of the taxi which was shown as MRK 305 was not genuine and that the real number of the said taxi was MRO 5946 and in view of this fact the statement of the owner-cum-driver of the taxi was recorded. The clothes of the accused persons were also seized and they were sent to the Chemical Analyser for report. Chemical Analyser's report was received in due course. The opinion of the finger print expert was also received and that on 14.9.1984, the charge-sheet came to be filed against the accused before the Learned Metropolitan Magistrate, 7th Court Dadar and since the offence was exclusively triable by the Court of Sessions, the Learned Metropolitan Magistrate, by his order dated 15.10.1984 committed the accused to the Court of Sessions.

(f) In the Court of Sessions, Charge came to be framed against accused at Exh.1 and accused pleaded not guilty to the charge.

3. During the Course of trial, the prosecution has attempted to prove its case by examining 20 witnesses and by producing numerous documents. Statements of the accused under Section 313 of the Code of Criminal Procedure came to be recorded. However, ultimately, after considering all the material on record, by his Judgment and Order dated 15.10.1985, the Learned Additional Sessions Judge Greater Bombay was pleased to acquit all the accused of the offences charged against them in Sessions Case No. 627 of 1984.

4. Being aggrieved by the said decision of acquittal the State has filed the aforesaid Appeal, which is before us for consideration today.

5. At the very outset, it must be stated that this being an Appeal against Acquittal, under Section 378 of the Code of Criminal Procedure, 1973, a proper approach, would be to peruse the record with a view to first seek an answer to the question as to whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the answer to the above question is in the negative, the order of acquittal cannot be interfered with. Conversely, for the reasons to be recorded, if we find that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it is then and then only we reappraise the evidence with a view to arrive at our own conclusions.

6. Keeping this position of law in view, we have perused the judgment of the trial Court, the evidence on record and the Statement of the Accused Under Section 313 of the Code of Criminal Procedure recorded by the Court of Sessions. We find that the judgment of the trial Court cannot be said to be palpably wrong, manifestly erroneous or demonstrably unsustainable. The impugned judgment is found to be reasonable and is a possible view based upon the evidence on record.

7. The impugned judgment of the Sessions Court would indicate that the trial Court disbelieved the prosecution case for the following broad reasons :-

(a) that there was variance in the evidence given by P.W.1 Shrikrishnaraj, P.W.2 Mr.Pandurang Sawant regarding the genesis and occurrence of the incident. The illustrations given by the trial court in this regard were as under.

(i) That while P.W.1 Shrikrishnaraj talked about catching hold of the sword brandished by accused No.1 and receiving bleeding injury on the right side of palm and also other two injuries between thumb and index finger and other below the little finger. P.W.2 Pandurang Sawant, in addition, had talked about P.W.1 being given a blow by the sword, brandished by accused No.1 on his nose, which was not at all the version of P.W.1.

(ii) That while it was the version of P.W.1 when the taxi reached behind Worli Dairy, accused No.1 stopped his taxi and he alongwith the driver got down from the taxi and pulled him out of the taxi. At that time, he could snatch the sword from the hand of accused No.1; but he fell on the ground and sustained injuries on his right hand elbow, at that time Pandurang Sawant also got down from the taxi; but without briefcase and that the briefcase was left in the taxi itself. He stated that P.W.2 Sawant was then able to get down at which moment, the accused and the driver drove the taxi to the North side. P.W.2 Pandurang Sawant, however, stated that when the taxi was stopped behind Worli Dairy and the driver and the accused had got down from the taxi, they pulled out the cashier from the taxi. He also got down with the briefcase. At that time the driver gave a push to the cashier and cashier fell down. Thereafter, the driver snatched the briefcase from his hand and entered the taxi alongwith the accused and the taxi was driven away thereafter.

(b) that there was also a variance in the evidence of P.W.1 Shrikrishnaraj, P.W.2 Pandurang Sawant and P.W.3 Police Naik Magar regarding the manner and route by which the accused were chased and arrested. The illustrations given by the trial court in this regard were as under :

(i) P.W.1 was pointedly asked in his examination-in-chief about the manner in which and the route by which he had chased the culprits. He had, however, evaded giving a clear reply and had mainly confined himself to stating we were able to catch hold of accused No.2.

(ii) P.W.2 Pandurang Sawant had, however, stated that Shrikrishnaraj was running ahead of him while chasing the culprits and while running he looked back and saw one policeman coming in a taxi, up to the circle of Shastri Garden. He therefore, waived his hands and asked the policeman to run. Accordingly, the policeman started running and by this time P.W.1, who was ahead already crossed the Garden. That he and policeman i.e. P.W.3 followed him right up to bottom of the hill, where they started searching the culprits by going through the lanes of the roads. However, the culprits could not be found during the search of the huts. The culprits were searched in the area where the repairs of the latrine was going on. This witness and the police went there, he found accused No.1 and arrested him and was taken into custody by the policeman and brought down the hill to Thadani and brought down the hill to Thadani Marg. It was, at this juncture, according to the P.W.2 Sawant, he saw P.W.1 Shrikrishnaraj, who was near the Petrol Pump and had caught hold of accused No.2 near the Petrol Pump. He and Shrikrishnaraj were standing surrounding by some 30 to 40 members of the public.

(iii) The version given by police Naik P.W.5 Magar, however, was completely contradictory to the evidence of P.W.2 Pandurang Sawant. The said Police Naik P.W.3 Magar had stated that about 12.10 or 12.15 noon, one unknown boy came running to Hill Top hill Police Chowki and informed him that there was commotion on the road near Shastri Garden and that stones were pelted and, therefore, according to him he engaged one taxi and went to Shastri Garden and that there he saw a mob of 20 to 25 persons and one taxi bearing No. MRF 305 standing stationary near the Circle of the Garden and having its main screen glass broken. He, therefore, enquired with some of the persons present there and according to him one of them told him that three persons ran away with cash belonging to two of the persons who were seen running behind those culprits. He was also informed that out of the three persons, who were running ahead, one of them was a driver of the taxi. He states that he, therefore, looked in that direction and saw those three persons who were running and two other persons following them. He also started running behind them, he states that the last person was about 10 to 15 feet ahead of him and hence, he could catch up with that person, namely, P.W.2 Pandurang Sawant, by running fast. According to him, they met before the rocky foot track begins. He states, that then he and Sawant went to the centre of the rocky foot track and from there, they got down and came near wall of Anand Nagar Zopadpatti (Slum). They searched for the person who was running by the side of the wall behind Anand Ashram building, at that time, he noticed that the inmates of the huts came out and they were looking towards the latrine side. He and Sawant, therefore, went to the latrine, which was unconstructed and entered the latrine. Accused No.1 was found in the central lavatory and, therefore, was caught hold of by him. Number of persons gathered there and he, therefore, took accused No.1 and brought him down the hill to Thadani Marg, Ashram Building and Neelam Building. Then he saw that one person having a sword in his hand i.e. accused No.2 had been caught hold by one person. He then took accused No.1 and 2 and Shrikrishnaraj by taxi and on the request of Shrikrishnaraj, they first went to their office.

(c) On close scrutiny, the occular evidence of P.W.1, 2 and 3 is at variance with each other and there were several circumstances which made it difficult to accept that P.W.2 Sawant had accompanied Shrikrishnaraj at all or that P.W.3 Magar, could have been with him to chase the culprits. The evidence of the aforesaid witnesses did not indicate that the version given by the prosecution witnesses was true or probable. The illustrations given by the trial Court in this regard were as under:-

(i) P.W.1 Shrikrishnaraj in his testimony didn't admit the presence of P.W.2 Sawant alongwith P.W.3 Magar at the Petrol Pump. P.W.1 Shrikrishnaraj was definite that he had caught hold of accused No.2 with the help of members of the public and when he came to the Petrol Pump, he saw P.W.3 Magar running alongwith some other members of the public towards Podar Hospital. When he went near Petrol Pump, he saw that a policeman had caught hold of accused No.1. This version was not supported either by P.W.2 Sawant nor P.W.3 Magar and such contradiction in their testimonies was fatal to the very story, which the prosecution had propounded.

(ii) that the prosecution story was further rendered improbable and unnatural for the reason that it was the prosecution case that P.W.2 Sawant who was actually holding the brief case containing money, had not been targeted by the culprits which would have been natural course of events. Even though, P.W.1 claimed to have snatched away the sword from the hands of accused No.1, P.W.2 who had also alighted from the taxi did not make any attempt to run away and no injury was caused to P.W. 2 Sawant.

(d) that the medical evidence negated the possibility of P.W.1 sustaining injuries by the sword, in the manner suggested by him. The medical evidence which was brought on record, through P.W.11 Dr. Prakash Gosavi indicated that the injuries suffered by P.W.1 Shrikrishnaraj were as follows:

(i) contused lacerated wound (CLW) 1" x 1/2" over left (fourth) metacarpal region with tenderness; and

(ii) marked tenderness over right elbow joint.

The Doctor has specifically stated that such injury was impossible to receive by holding of the sword, to ward off the blow and could not be caused by the pulling of the sword while being held by P.W.1 Shrikrishnaraj. The Doctor had explained that if such an incident had occurred, his injury must necessarily appear on the Palmer aspect of the hand. Moreover, there was no nose injury to P.W.1 Shrikrishnaraj and, thus, the occular evidence was inconsistent with the medical evidence.

(e) that the evidence of witnesses indicate that P.W.1 Shrikrishnaraj had stated that the injuries caused were bleeding and, according to the complainant, therefore, his shirt (Article No.2) was stained with blood. However, the evidence of Dr. Gosavi indicated that there was no bleeding injuries whatsoever on the person of Shrikrishnaraj. Similarly, the version of Shrikrishnaraj at the trial was contradicted with his narration in the FIR. In the F.I.R, he has stated that he had sustained bleeding injury on his wrist, when no such injury was found on his wrist by the Doctor.

(f) that, in view of the aforesaid discrepancies between occular and medical evidence, matters could have been sorted out by examining Doctor Masand, who has treated both P.W.1 Shrikrishnaraj and P.W.2 Sawant at his dispensary, first in point of time. However, the prosecution chose not to record the statement of Doctor Masand, nor to examine him as a witness.

(g) that there was no explanation whatsoever given by P.W.2 or P.W.3 or any other witness as to how the taxi came to suffer such damages.

(h) that there were several contradictions in the version as narrated by P.W.3 Magar and his previous statement during the course of investigation. Mr. Magar had not stated before the police that he made inquiries with some of the persons in the mob and that one of them told him that three persons were running with cash belonging to two persons who were running behind them. Magar has also not stated before the police that he was shown the direction in which those persons were running. He also admitted that he did not state that of those three persons who were running ahead of him, one was driver. He did not state in his statement that P.W.2 was waiving his hands and gesturing him to go in any direction and me person was ahead of him at about 10 to 15 feet. He did not state in his previous statement before the police that he could meet Sawant at the end of Garden or where rocky foot tract begins. He did not refer to any rocky foot track or foot way as such, in his statement before the police. All this indicates that the evidence of P.W.3 Magar was shrouded with suspicion.

(i) That the topography indicated that hill road was a curved road ad the distance between the point where P.W.1 and 2 were thrown out of the taxi and place where the taxi was found abandoned, it was about 600 feet, that it would not have been possible for P.W.1 and 2 to see the taxi from the place where they had been dropped out.

(j) That there was no examination of any independent witness from the area of lavatory in which the accused No.1 was said to have been apprehended.

(k) That two inferences can be reasonably drawn for non-examination of the independent witnesses; firstly, that the incident did not appear to have taken place in the manner suggested by the prosecution witnesses and, secondly, there could not have been witnesses, witnessing the chasing of the culprits and/or catching hold of accused as asserted by the prosecution witnesses.

(l) That the story of finding of the briefcase was also not consistent. The said briefcase was allegedly found in one of the three W.C's under construction in the compound wall of Anand Ashram building. When found, the briefcase was unlocked. The said briefcase was found in the very lavatory that accused No.1 was earlier said to have been caught hold of by P.W.2 Sawant and P.W.3 Magar. The evidence of P.W.6 regarding finding of the brief case was full of contradictions. No attempt has been made to collect any chance print on the briefcase.

(m) That the said briefcase according to the prosecution had been carried by the driver and it was eventually improbable that the driver would have carried or stolen only a part of the amount of Rs.26,000/- keeping back an amount of Rs.40,600/- in the very briefcase.

(n) The finger print expert's evidence was not probable and believable as the findings of the finger print expert, P.W.16 about finding of chance prints and encircling them and protecting them with paper was not corroborated by the panch witness P.W.15.

(o) That no finger print impression of P.W.1 Shrikrishnaraj or P.W.2 Pandurang Sawant was sent to the Expert and, therefore, opinion of the expert would not inspire confidence. Even otherwise, the chance prints as shown in Exh.39 indicate that they were so smudged that it was difficult locate the ridges and bifurcation.

8. We have ourselves scanned the evidence and have satisfied ourselves that there are several circumstances that make it dangerous to accept the story of the prosecution, as has been sought to be brought out through the prosecution witnesses. There are also several other unexplained circumstances on the record, which go to the root of the matter. We find that to begin with, accused No.1 and 2 who said to have boarded the taxi, when the taxi driver permitted them to do so. Though the accused No.1 and 2 were arrested, surprising enough the police machinery failed to even identify the accomplice i.e. taxi driver. Accused No.1 is said to have boarded the taxi with a sword, concealed in a cloth bag. The said cloth bag has not been seized by the police. Further, we find that the distance where the P.W.1 and 2 were asked to get down is 600 feet away from the spot, where the taxi was finally, said to have been abandoned by the culprits and the road between these two points is a curved road and in ascending direction. An unexplained sword was found in the taxi. This sword (Article 14) was neither seized by the police nor sent to the Chemical Analyser. The injuries sustained by P.W.1 Shrikrishnaraj, are not in consonance with the occular evidence and according to the doctor could not have been caused in the manner suggested by the witnesses. The medical evidence does not indicate that P.W.1 had caught hold the sword in his hand as there is no incised wound on the inside of his palm. So also there is no sword wound on his hand or nose. It is, therefore difficult to believe that P.W.1 and P.W.2 chased the culprits who alighted from the taxi 600 feet ahead and then fled. It is difficult further to believe that either P.W. No.1 or P.W.No.2 could have any part in chasing or apprehending the accused. Furthermore, even assuming for the sake of arguments that P.W.1 and 2 had run in the direction of the taxi, then they must have witnessed the taxi being damaged by stone pelting since they would have to pass by the same taxi in order to descend down the hill on the other side. Their evidence, is silent as to how the taxi was damaged. It is further difficult to believe that accused No.1 was apprehended from the lavatory by P.W.2 and 3 and that after substantial time the briefcase containing the money was found in the same lavatory in which accused No.1 was said to have been earlier apprehended.

In this connection we cannot loose sight of the fact that it is never been the prosecution case that P.W.1 had run with the briefcase. In fact, it was their case that it was the taxi driver who had run with the briefcase. If it is so, it is surprising as to how the briefcase is said to have been found in the lavatory, allegedly occupied by accused No.1. The sword (Article No.1) was not tested for finger prints, although the finger print expert was available and had taken prints from the abandoned taxi. The Prosecutor made a reference on the injury on accused Ahire. The injuries on the accused are of no avail as beating by the public cannot by itself prove that they had committed the earlier incident of robbery. The age of such injury is also not given. We find that in the aforesaid circumstances finding given by the Sessions Judge to the effect that the prosecution story is improbable, is both, reasonable and possible. In view of the same, the said judgment is required to be confirmed.

9. In the result, we find that there is no substance in this appeal, the same is dismissed.

Appeal dismissed.