2008 ALL MR (Cri) 1563
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. LAVANDE AND A.B. CHAUDHARI, JJ.

Raya S/O. Gopal Moon & Ors.Vs.State Of Maharashtra

Criminal Appeal No. 56 of 2007,Criminal Appeal No. 330 of 2007

28th March, 2008

Petitioner Counsel: Shri. R. N. KHARE
Respondent Counsel: Shri. T. A. MIRZA

Penal Code (1860), S.395 - Sentence - Dacoity - Dacoity is the most serious crime which is difficult to detect in the sense of bringing home the offence to the culprits and it is an offence which gives rise to a great deal of misery - In absence of any satisfactory proof of the mitigating circumstances, the sentence on the accused should be heavy and deterrent. 2004 ALL MR (Cri) 874 (S.C.) - Ref. to. (Para 15)

Cases Cited:
Rajesh Govind Jagesha Vs. State of Maharashtra, 2000 ALL MR (Cri) 258 (S.C.)=2000 Cri.L.J. 380 [Para 3]
Dana Yadav alias Dahu Vs. State of Bihar, 2002 ALL MR (Cri) 2548 (S.C.)=2002 Supreme Court 3325 [Para 3]
Amjad Khan s/o. Ibrahim Khan Vs. State of Maharashtra, 2007 ALL MR (Cri) 2683 [Para 5,10]
Ashfaq Vs. State (Government of NCT of Delhi), 2004 ALL MR (Cri) 874 (S.C.) [Para 9,17]


JUDGMENT

A. B. CHAUDHARI, J.:- These two appeals are against the common judgment and order dated 12-1-2007, passed by the Additional Sessions Judge-2, Wardha. Criminal Appeal No.56/2007 has been preferred by the appellants/accused who are four in number against conviction awarded to them under Section 395 of Indian Penal Code and sentencing them to undergo Rigorous imprisonment for five years and to pay a fine of Rs.1,000/-, in default of payment of fine Simple Imprisonment for three months. Criminal Appeal No.330/2007 has been preferred by the complainant - State of Maharashtra being aggrieved by the quantum of sentence and with a prayer for enhancement of sentence awarded to the respondents.

2. Briefly stated, the prosecution case is that on 19-6-2005 at about 9.30 p.m., P.W.4 Nilesh Prabhakarrao Boke was watching television in the house of his relative Ratnamalabai, while P.W.2 Ratnamalabai was in the house of Nilesh, situated nearby her house. All the accused persons numbering five entered the house of Ratnamalabai and one of them caught hold of the neck of Nilesh and pushed him towards the wall in the house. He took out a knife from his waist and touched the same to his neck and snatched a golden chain weighing 15 grams worth Rs.5,500/- on the point of knife. Another accused asked Nilesh about the keys of almirah. But since Nilesh did not disclose, he was beaten by fist and kick blows and with the handle of knife on his face. Thereafter, one of the accused opened the fridge and removed cash of Rs.15,000/- after throwing sarees and clothes from the fridge and, thereafter, all of the accused started leaving the house. Nilesh then climbed on the roof top and started shouting "Chor" "Chor". Ratnamalabai, who was sitting in the house, came having been informed by Nilesh. Both of them i.e. P.W.4 Nilesh and P.W.2 Ratnamalabai sat on the motorcycle for going to Police Station. Near the Hanuman temple they saw the same five persons. One of them took out a sword and showed it to Nilesh and being afraid, he drove the motorcycle with speed towards Police Station and upon reaching the Police Station lodged oral report (Exh.59). After registration of the offence under Section 395 of I.P.C. in crime No.182/2006, investigation was undertaken and Nilesh was referred to hospital. The Investigating Officer visited the spot and prepared spot panchanama. Thereafter, Investigating Officer arrested accused No.1 Raya Moon on 6-7-2005, accused No.2 Amjadkhan Pathan on 26-7-2005, accused No.3 Sheikh Nyama @ Nyamu on 2-8-2005. Accused No.4 Vishal Dhanke remained absconding till he came to be arrested. The last accused Anil is still absconding. Thereafter, during interrogation accused No.2 Amjadkhan disclosed the place where he kept the knife, which was seized under memorandum (Exh.51) and seizure memo (Exh.52). Accused No.2 Amjadkhan, accused No.3 Sheikh Nyama @ Nyamu upon disclosure statement told about the balance amount of Rs.1,000/- and Rs.300/- and thereupon the amount of Rs.1,000/- was seized from accused Raya Moon, while Rs.300/- was seized from accused Sheikh Nyama @ Nyamu. The Investigating Officer, thereafter, caused Test Identification Parade conducted through Executive Magistrate P.W.3 Vidyasagar Bhimrao Chavan and, thereafter, filed charge-sheet against the accused persons. Since accused Vishal Dhanke who was absconding was traced out almost after recording of evidence against other accused persons, a separate supplementary charge-sheet was filed against him and accordingly there were two Session Trials, namely S.T. No.155/2005 and S.T. No.146/2006. Since accused Vishal Dhanke was traced out at later point of time, all the witnesses who were examined in earlier Session Trial No.155/2005 were again examined in Sessions Trial No.146/2006. The learned Trial Court framed charge against all the accused persons under Section 395 of Indian Penal Code. Since all the accused persons pleaded not guilty, trial was held. After appreciating the evidence, the learned Trial Court found all the accused persons guilty for the offence for which they were charged and convicted them. Hence, these appeals.

3. Shri. R. N. Khare, learned Counsel for the appellants in Criminal Appeal No.56/2007 made the following submissions in support of the appeal.

(1) The Test Identification Parade that was carried out by the Executive Magistrate was not proper and the same is liable to be rejected outright because according to panch witness P.W.2 Sunil Harichandra Chaware, all the accused persons were shown to P.W.4 Nilesh before the test identification parade was held. Further the two accused who were said to be identified in the parade by P.W.4 Nilesh were mixed with 21 persons and at that time as stated by P.W.2 Sunil in the cross-examination, police informed P.W.4 Nilesh to identify the persons from amongst those at serial No.6 and 18 as accused persons. Moreover, the memorandum of parade (Exh.55) recorded by the Executive Magistrate does not show the names of the accused persons who were identified by the witnesses.

(2) The conviction has been based by the Trial Court on the strength of identification made in the Court for the first time and the same was after a gap of about one year and two months and, therefore, it was risky to place reliance on the testimony of the witnesses identifying the accused persons for the first time in the Court. In support of his submissions, Advocate Shri. Khare placed reliance on the following decisions.

(i) 2000 Cri.L.J. 380 : [2000 ALL MR (Cri) 258 (S.C.)] (Rajesh Govind Jagesha Vs. State of Maharashtra).

(ii) AIR 2002 Supreme Court 3325 : [2002 ALL MR (Cri) 2548 (S.C.)] (Dana Yadav alias Dahu and others Vs. State of Bihar).

(3) The recovery of amount of Rs.1,000/- and Rs.300/- is of no consequence and there is nothing incriminating against the accused persons on the basis of seizure of the currency notes.

(4) The recovery of knife from accused Amjadkhan Pathan cannot also be an incriminating circumstance against him.

(5) The time of dacoity allegedly being in the night and looking to the fact that the accused persons were shown to the witnesses prior to holding of the parade, benefit of doubt must go to the accused persons.

He, therefore, prayed for allowing the appeal filed by the appellants/accused persons.

4. Per contra, Shri. T. A. Mirza, learned A.P.P. for respondent-State opposing the submissions made by the learned Counsel for the appellants argued that P.W.4 Nilesh identified accused Nos.1 and 2 in the parade, while P.W.6 Ratnamalabai identified accused No.3 Sheikh Nyama @ Nyamu. Accused No.4 Vishal was absconding, but when he was traced out, he was also identified by these witnesses. The Investigating Officer was not confronted with the stand taken by the appellants that they were shown to the witnesses and were asked to identify the accused persons before the parade and, therefore, mere admission by P.W.2 Sunil should not be taken into consideration. According to Shri. Mirza, learned A.P.P., the witnesses identified the accused persons in the Court and the time gap was hardly of one year and two months and it can be said that the witnesses had imprints of all the accused persons in their mind since the witnesses had seen them for sufficiently long time and at any rate Nilesh was injured and accused persons were with Nilesh for sufficiently long time in the house and even thereafter one of them had shown sword near Hanuman temple. It is not the case of the accused persons that there were no lights in the house and on the contrary since Nilesh was watching television, electric supply was on. According to A.P.P. Shri. Mirza, there is no rule that conviction cannot be based on the identification made in the Court for the first time and in the instant case looking to the special features, identification in the Court is trustworthy. The recovery of knife and the currency notes are corroborative pieces of evidence. The testimony of the witnesses on the point of identification in the Court has not at all been shaken in the cross-examination and in fact there is no serious challenge to the same. He, therefore, prayed for dismissal of the appeal preferred by the appellants.

5. While arguing in support of his appeal i.e. Criminal Appeal No.330/2007 for enhancement of sentence, A.P.P. Shri. Mirza vehemently argued that five accused persons entered the house of Ratnamalabai with deadly weapons and on the point of knife committed robbery. Nilesh was put under fear of life and was also injured by them by means of handle of knife and fist and kick blows. Daring of the accused persons to enter the house with deadly weapons at 9:30 p.m. clearly shows the element of criminality of the accused persons. The sentence of five years imposed by learned Trial Court is wholly inadequate and is liable to be interfered with. Accused Nos.1 to 3 have criminal records, particularly in relation to the offence of robbery etc. Accused No.2 Amjadkhan Pathan has to his credit record number of 28 criminal cases with two murder cases and majority cases of robberies. The police could search these accused persons with great difficulty. He relied on the following decision of this Court in support of his argument in both these appeals.

(i) 2007 ALL MR (Cri) 2683 (Amjad Khan s/o. Ibrahim Khan Vs. State of Maharashtra).

6. Advocate Shri. Khare, opposing the appeal preferred by the State of Maharashtra for enhancement of sentence argued that it is doubtful whether the offence under Section 395 of I.P.C. would be made out when only four accused persons have been charge-sheeted. The sentence of five years awarded to the accused persons is more than adequate and there is no justification for claiming enhancement of sentence. Advocate Shri. Khare, therefore, prayed for dismissal of appeal filed by the State of Maharashtra.

7. With the assistance of learned Counsel for the rival parties, we have gone through the entire evidence on record, documentary as well as oral and we have carefully reappreciated the entire evidence on record. Coming to the testimony of P.W.4 Nilesh Boke, we find that he was watching television in the house of Ratnamalabai at the relevant time which means that the electric supply was on. Two boys entered the compound of the house and they asked Nilesh whereabouts of a lady from Lingu File. Nilesh told them that he did not know her and asked them as to how they entered the house. At that time, three more persons entered the house through gate and then one of the first two held him and pushed him inside the house. Then he took out the knife and touched it to his neck and snatched his golden chain weighing 15 grams and that person was accused No.1 Raya Moon. Nilesh tried to shout but then accused No.1 Raya Moon threatened him with life. Other accused persons who were nearby started giving fist blows on his face and by the wooden handle of knife. The three boys entered in the third room of the house, removed the articles and threw them here and there. One of those boys again came to Nilesh and asked about the keys of almirah and pulled him inside the room. Nilesh told that the key was with Ratnamalabai. Then one boy (accused No.1 Raya Moon) started breaking the almirah. The other boy (accused No.2 Amjadkhan Pathan) assaulted him with leg and Nilesh fell down. Thereafter, again Nilesh was taken to the last room and was confined in that room with a warning not to leave the room. Thereafter, they started leaving the house.

8. Now perusal of the above testimony of P.W.4 Nilesh, to our mind clearly shows that all the five accused persons had done several acts during the course of the commission of crime and that too for sufficiently long period. Not only that right from the beginning of their entry in the house, Nilesh had several encounters with them and the faces of the accused persons must have got imprinted in the mind of Nilesh since he was taken out from one room to another. He then identified the accused persons in the Court to which there is no serious challenge.

After accused persons had left the house, Nilesh went to the roof top and started shouting "Chor" "Chor". He tried to chase the accused persons but since the accused persons themselves started chasing him, he came back. Thereafter, he took out motorcycle and started moving towards the police station with P.W.2 Ratnamalabai. On way towards the police station, near Hanuman temple, he found those accused persons and he pointed them out to Ratnamalabai, but then the accused persons became alert and took out a sword and showed to Nilesh due to which Nilesh drove the motorcycle towards police station with high speed. Even at this juncture, the witnesses had last encounter with accused persons near Hanuman temple.

P.W.6 Ratnamalabai corroborates P.W.4 Nilesh about the commission of robbery by five persons and assault on him. She also corroborates the removal of Rs.15,000/- from the fridge which was kept by her. P.W.6 Ratnamalabai boarded the motorcycle driven by Nilesh and near Hanuman temple she saw with Nilesh those five persons and one of them rushed towards them with sword and that person showing sword was accused No.3 Sheikh Nyama @ Nyamu. She has clearly identified accused No.3 Sheikh Nyama @ Nyamu in the Court and we do not have any hesitation in placing reliance on her testimony about the identification of accused persons in the Court. The evidence of these witnesses inspires confidence and we have no doubt that accused persons who were tried in the two separate Sessions Trials in the present appeals were the same persons who had committed robbery. Exh.62 is the injury certificate which has been duly proved. Nilesh suffered those injuries as described by him in his evidence.

9. In the case of Ashfaq Vs. State (Government of NCT of Delhi) reported in 2004 ALL MR (Cri) 874 (S.C.) the Hon'ble Supreme Court in paragraph No.6 has stated as under :

"6. ..............Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of each case and there cannot be any abstract general formula for universal and ready application in all cases. Even the decision reported in 2000(1) SCC 358 (Ramanbhai Naranbhai Patel and others Vs. State of Gujrat) relied upon for the appellants, after dealing with the principles in general, adverts to the facts of the case and in so doing the learned Judges have categorically observed that since two eye-witnesses in the said case were assaulted and seriously injured in broad daylight, they could have easily seen the faces of the assailants and their appearance and identity would well remain imprinted in their minds and the third witness who was said to have seen the fatal assault on her husband could also be easily considered to have got imprinted in her mind the faces of the accused and that, therefore, the omission to hold the test identification parade did not affect the credibility or truthfulness of their evidence."

10. The Division Bench of this Court, in the case of Amjad Khan s/o. Ibrahim Khan Vs. State of Maharashtra, reported in 2007 ALL MR (Cri) 2683, following the ratio of the judgment of the Supreme Court, cited supra, in paragraph No.27 has stated as under :

"27. ...............In the instant case, we have already observed hereinabove, both the eye-witnesses, who were injured in the assault, had an ample opportunity to see the faces of the original accused nos.1 and 2. Therefore, their faces were imprinted in their minds and identification done by these injured witnesses in the Court does not lose its evidentiary value even if the prosecution would have failed to hold earlier the identification parade. In the instant case, the situation is otherwise. The injured witnesses have identified the assailants also in the identification parade though much importance cannot be attached to the said identification parade for the reasons stated hereinabove."

11. In our opinion, the facts in the case in hand are also similar and in the light of the legal position we have no hesitation in accepting the testimony of P.W.4 Nilesh and P.W.6 Ratnamalabai. In so far as accused Vishal is concerned, P.W.4 Nilesh and P.W.6 Ratnamalabai both have identified him as one amongst the five persons who had committed the robbery.

12. As regards the recovery of knife and currency notes, we do not think that the said evidence is of any evidentiary value in this case.

13. We have thus come to the conclusion that all the accused persons were identified by the witnesses and we need not look out for any corroboration since we are satisfied with the sworn testimony of the two witnesses in the form of direct evidence.

14. In the light of the reliance placed by us for identification of all the accused persons as the culprits in the crime having been identified before the Court in their substantive evidence, we do not find it necessary to comment on the merits of the test identification parade and at any rate, the test identification parade is not in the nature of substantive evidence. The appeal preferred by the appellants i.e. Criminal Appeal No.56/2007 therefore will have to be dismissed.

15. Adverting to the submissions made by Shri. T. A. Mirza, learned A.P.P. in Criminal Appeal No.330/2007 filed by the State for enhancement of sentence, we are not much impressed with the argument that the accused Nos.1 to 3 are facing large number of prosecutions of similar nature. That would be a matter of separate trials in those cases. While discussing the entire evidence in Criminal Appeal filed by the accused/appellants, we have held that the accused persons - respondents in this appeals have been correctly identified in the Court as the culprits in the crime in question. The Trial Court has handed out sentence of five years Rigorous Imprisonment with no reasons having been furnished when Section 395 of Indian Penal Code provides for punishment with imprisonment for life or up to ten years. What we find in the instant case is that the accused persons have committed dare devil dacoity inasmuch as all of them entered the house of Ratnamalabai at about 9:30 p.m. when Nilesh was watching television. They entered with deadly weapons and they had absolutely no fear whatsoever. They assaulted Nilesh with knife and injured him. They inflicted fists and kick blows and pulled and pushed him from one room to another. They threatened to kill him and on the point of knife snatched his golden chain. They had thrown the clothes and other articles from the fridge and removed the cash of Rs.15,000/- and lastly they had pushed Nilesh in the last room with warning not to come out or shout and thereafter all of them steadily walked away. Not only that when they were seen near Hanuman temple by Nilesh and Ratnamalabai, a sword was shown to them putting them in the fear of life. These salient features to our mind indicate the high degree of criminality possessed by the accused persons. Dacoity is a most serious crime which is difficult to detect in the sense of bringing home the offence to the culprits and it is an offence which gives rise to a great deal of misery. According to us, in the absence of any satisfactory proof of the mitigating circumstances, the sentence on the respondents in this case should be heavy and deterrent. In that view of the matter, we are of the firm opinion that the sentence of five years awarded by the learned Trial Court is wholly inadequate.

16. We have heard Advocate Shri. Khare for the respondents on the question of enhancement of sentence. He argued that the accused persons are young in age and no earlier crime has been proved against them. According to him sentence of five years awarded to them subserves the ends of justice and there is no need to interfere with the sentence.

17. The judgments cited by Advocate Shri. Khare are distinguishable on facts in the light of the judgment of the Supreme Court in the case of Ashfaq Vs. State (Government of NCT of Delhi), reported in 2004 ALL MR (Cri) 874 (S.C.).

18. In the light of the above discussion, we do not agree with the learned Counsel for the respondents. For the reasons stated herein above, we allow the appeal preferred by the State and we are of the opinion that the sentence of ten years Rigorous Imprisonment with fine of Rs.5,000/- each would subserve the ends of justice. Hence, the following order.

19. Criminal Appeal No.56/2007 preferred by the appellants/accused is dismissed. Criminal Appeal No.330/2007 preferred by the State of Maharashtra against the respondents is allowed. The impugned judgment, awarding sentence of five years Rigorous Imprisonment and to pay fine of Rs.1,000/- is modified and in its place sentence of Rigorous Imprisonment of ten years and to pay fine of Rs.5,000/- each is awarded to accused No.1 Raya s/o. Gopal Moon, accused No.2 Amjadkhan Anwarkhan Pathan, accused No.3 Sheikh Nyama @ Nyamu s/o. Sk. Harun and accused No.4 Vishal s/o. Shankar Dhanke and in default of payment of fine, the accused shall suffer Simple Imprisonment for six months. The appellant Nos.1 to 3 in Criminal Appeal No.56/2007 are on bail. Their bail bonds stand discharged. In so far as appellant No.2 - Amjadkhan Anwarkhan Pathan is concerned, presently he is in Wardha Jail in connection with some other crime. He will undergo sentence of imprisonment as ordered by this judgment. In so far as appellant Nos.1 and 3 are concerned, they be taken in custody forthwith and be sent to Prison.

Needless to mention that all the appellants/accused are entitled to set off in terms of Section 428 of the Code of Criminal Procedure.

At this stage, Advocate Mr. Khare seeks time of four weeks for the appellant Nos.1 and 3 to surrender. Considering the facts and circumstances of the case, we are not inclined to grant any time to appellant Nos.1 and 3 to surrender. Hence, request is rejected.

Ordered accordingly.