Full Judgment Text
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2007:BHC-AS:9336
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SIDE JURISDICTION SIDE JURISDICTION SIDE JURISDICTION
CRIMINAL APPEAL NO.553 OF 2006 CRIMINAL APPEAL NO.553 OF 2006 CRIMINAL APPEAL NO.553 OF 2006
1. Subhash Hariram Rajbhar
R/o. Sabre Chawl,
Near Shivshakti Chawl,
Gandhi Nagar Cutting No.10,
Kurar, Malad (E), Mumbai.
2. Ghanshyam Hariram Rajbhar
R/o. Sabre Chawl,
Gandhi Nagar Cutting No.10,
Kurar, Malad (E), Mumbai.
3. Ramdular Ramnihar Bhardwaj
R/o. Sabre Chawl,
Near Shivshakti Chawl,
Gandhi Nagar Cutting No.10,
Kurar, Malad (E), Mumbai.
4. Babulal @ Bablu Satyanarayan Maurya
R/o. Shivshakti Chawl,
Cutting No.10, Bhim Nagar,
Kurar Village, Malad (E),
Mumbai- 400 097.
5. Dinesh Ramchandra Rajbhar
R/o. Shivshakti Chawl,
Cutting No.10, Bhim Nagar,
Kurar Village, Kurar,
Malad (E), Mumbai- 400 097. ...Appellants.
V/s.
The State of Maharashtra
(at the instance of Kurar Police Station
vide C.R.NO.137/05) ...Respondents.
Ms. Anjali Patil, advocate for the Appellants.
Ms. M.M.Deshmukh, APP for the Respondent/State.
CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J.
DATE : 5th June, 2007. DATE : 5th June, 2007. DATE : 5th June, 2007.
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ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT:
1. The appellants, who are original accused nos.1
to 5, have preferred this appeal challenging the
judgment and order passed by 3rd Ad-hoc Additional
Sessions Judge, Bombay in Sessions Case No.791 of 2005,
whereby all the appellants were convicted for the
offences punishable under Sections 399 and 402 of the
I.P.C. They were sentenced to undergo R.I. for 5 years
and to pay a fine of Rs.1,000/- each for the offence
punishable under Section 399 of the I.P.C. and were
sentenced to undergo R.I. for 3 years and to pay a fine
of Rs.500/- each for the offence punishable under
Section 402 of the I.P.C.
2. Prosecution case in brief is that, on 11-8-2005
at about noon time, P.W.1 Head Constable Sunil Hosalkar,
P.W.5 API Jitendra Koli and API Patil got reliable
information from a police informer that in one room of
Sabre Chawl 4 or 5 persons had assembled with weapons.
In view of this information, police decided to raid that
place. Accordingly two panch witnesses were called and
the police party alongwith the panchas went to the said
spot at about 12.45 hours. The police party was divided
into two groups. One group stood near the door of the
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room and some staff members stood near a window of that
room for a few minutes. They heard conversation, which
was going on inside the room. As per the F.I.R. lodged
by Head Constable Sunil Hosalkar, police heard somebody
in the room saying that "Babloo Saman Thik Kiya Kya
Nahi, Saman Barabar Hai, Dukan Ki Zhadi Karke Aya Ke
Nahi, Jagha Ka Zadi Ho Gaya Hai." After hearing some
conversation police party became sure that the persons
inside the room had assembled with weapons for
committing dacoity. Therefore, police party led by API
Koli pushed the door and entered into the room. API
Koli pointed his service revolver to those five persons,
who were present in the room. After that personal
search of all five persons was taken in presence of the
panch witnesses. One country made revolver with one
live round and 2 separate live rounds were found in
possession of accused no.1 Subhash. One Kukri was also
found inserted into right side of his pant. Accused
no.2 Ghanshyam was found in possession of one kukri.
Accused no.3 Ramdular was found in possession of country
made revolver with one live round and one separate round
in the right pocket of his pant. Accused no.4 Bablu was
found in possession of country made revolver with one
live round and two more live rounds in right pocket of
his pant. Accused no.5 Dinesh was found in possession
of country made revolver with one live round in it. All
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these weapons were separately wrapped in polythene bags
and were seized and sealed under panchanama. Accused
persons and the weapons were taken to the Kurar Police
Station where F.I.R. was lodged by Head Constable Sunil
Hosalkar.
3. According to the prosecution on the next day,
accused no.1 Subhash made a statement before the police
that he was ready to show the shop where they had kept
watch to commit robbery. Accordingly he led the police
and the panchas to jewellery shop of one Mahendrakumar
Jematraj Jain. His statement was recorded under
memorandum and about showing the shop a panchanama was
prepared. Police recorded statements of some witnesses
from the locality. Material seized in the incident was
referred to Chemical Analyser and the Ballistic Expert’s
report revealed that country made revolvers or shotguns
could be used as weapons and cartridges could also be
fired from the said shotguns. After investigation
charge-sheet was filed by API Koli for the offences
punishable under Sections 399 and 402 of the I.P.C.,
Sections 3 and 4 read with Section 25 of the Arms Act
and Section 37(1)(a) read with Section 135 of Bombay
Police Act.
4. Charge was framed against all five accused
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persons vide Exhibit 2 for the offences punishable under
Sections 399 of the I.P.C., under Sections 3 and 4 read
with Section 25 of the Arms Act and under Section
37(1)(a) read with Section 135 of Bombay Police Act.
Accused persons pleaded not guilty. According to them,
accused Subhash, Ghanshyam and Dinesh were residing in
the said room for about one year. Accused Bablu was
also residing in the said room for about 4 months and
accused Ramdular had came to stay in that room on the
previous day. They claimed to be innocent. According
to them, they have been falsely implicated in this case
and no weapons were recovered from them.
5. On behalf of the prosecution, in all 5
witnesses were examined and some documents were also
placed on record. After hearing the evidence and
arguments on both sides, the 3rd Ad-hoc Additional
Sessions Judge convicted all the five accused persons
for the offences punishable under Sections 399 and 402
of the I.P.C. and sentenced them as stated above.
However, he acquitted them for the charges under the
Arms Act and Bombay Police Act.
6. Heard Ms. Anjali Patil for the
accused/appellants and Ms. Deshmukh the learned APP for
the State. Perused the record and proceedings of the
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trial Court.
7. Out of five witnesses examined by the
prosecution, P.W.1 Sunil Hosalkar, who is police Head
Constable had lodged F.I.R. in this matter. P.W.5 API
Koli attached to Kurar Police Station was Detection
Officer. Evidence of these two police officers revealed
that Head Constable Sunil Hosalkar had got some reliable
news from some informer that in one room of Sabre Chawl
near Shivshakti Chawl at Gandhi Nagar, Kurla village,
five persons had assembled with weapons with intent to
commit dacoity. In view of this information the police
officers decided to arrange a trap and accordingly two
panch witnesses, including P.W.4 Sanjay Borade, were
called. They went near the said spot at about 12.30
p.m. As per the evidence of these two police officers
and the panch witness, P.W.4 Sanjay Borade, it appears
that the police party was divided into two teams. One
group was standing near the window of the room and
another group was standing near the door of that room.
P.W.1 Head Constable Sunil Hosalkar and some other
member of the police staff were standing near the
window, while P.W.5 API Koli and P.W.4 Sanjay Borade
were standing near the door of that room. As per the
evidence of Head Constable Sunil Hosalkar, he heard
voice from the room "Whether they are ready". He did
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not say anything more than that. P.W.4 Sanjay Borade
deposed that the police heard low sounds of those
persons in the room and after that police and panchas
entered into the room and apprehended those persons.
P.W.4 Sanjay Borade did not depose that he had heard any
conversation of the accused indicating that accused
persons had prepared or planned to commit any offence
and particularly dacoity. P.W.5 API Koli, however,
claims to have heard that "Babloo Saman Thik Kiya Kya
Nahi, Saman Barabar Hai, Dukan Ki Zhadi Karke Aya Ke
Nahi, Jagha Ka Zadi Ho Gaya Hai." As per the evidence
panchas and the police party entered into the room and
took the personal search of all the five accused persons
and weapons were recovered from each of them as stated
in the earlier part of the judgment. Those weapons were
duly wrapped, sealed and seized under panchanama Exhibit
18. According to API Koli, he referred those weapons to
Chemical Analyser with covering letter Exhibit 22 and
received C.A.Reports Exhibits 23 and 24. As per his
evidence, accused no.1 Subhash, accused no.3 Ramdular,
accused no.4 Dinesh and accused no.5 Bablu were found in
possession of country made revolvers and live rounds.
Accused no.2 Ghanashyam was found in possession of one
kukri. Thus, according to the prosecution in all 4
country made revolvers with live cartridges were
recovered. The Ballistic Expert report revealed that
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all these country made hand guns were in working order
and they were capable of chambering and firing 12 bore
shotgun cartridges.
8. P.W.2 Darogalal Shrivastav is the landlord of
that room where all these five accused persons were
found. According to him he had let out the said room to
one Radheshyam, who is brother of accused no.2 Ramesh @
Ghanshyam. His evidence shows that accused no.2 used to
reside in that room alongwith his brothers and sister.
According to him many persons used to come and stay in
the said room and accused no.2 Ghanshyam @ Ramesh used
to tell him that they were the persons from his village
and they were returning back soon. On the day of
incident, he came to know that five or six persons were
arrested in the room.
9. P.W.3 Parvati Kaikade was a neighbour.
According to her she came to know that some persons were
caught by the police in the room of accused Ramesh @
Ghanshyam.
10. Thus the prosecution case is based mainly on
the evidence of P.W.1 Head Constable Sunil Hosalkar,
P.W. 4 Sanjay Borade and P.W.5 API Koli. As stated
above their evidence only goes to prove that four of the
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accused persons were armed with fire arms and one
accused was having sharp and cutting weapon. They were
all found present in the room, where the accused no.2
Ghanshyam used to reside regularly. Evidence of Head
Constable Sunil Hosalkar revealed that he had heard "
Whether they are ready". It does not indicate anything
about preparation or intention to commit dacoity. Words
heard by him are materially different from what API Koli
claims to have heard. P.W.5 API Koli claims to have
heard "Babloo Saman Thik Kiya Kya Nahi, Saman Barabar
Hai, Dukan Ki Zhadi Karke Aya Ke Nahi, Jagha Ka Zadi Ho
Gaya Hai." It should be noted that API Koli and Sanjay
Borade standing together by the side of the door of that
room. It is difficult to understand how API Koli could
hear said conversation while the panch witness Sanjay
Borade could not hear a word. According to him police
had heard something in low voice. It means that he
could not hear anything or atleast whatever was being
talked inside was inaudible. For a moment, even if the
evidence of API Koli is believed, this conversation
heard by him does not lead to a conclusion or inference
that the accused persons had prepared and assembled to
commit dacoity.
11. The learned trial Court found a support to this
inference against the accused on the basis of some more
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evidence of API Koli, which needs to be mentioned. As
per the evidence of API Koli, accused no.1 Subhash was
ready to make voluntary statement and, therefore, he
called two panch witnesses. Accused no.1 Subhash stated
that he was ready to show the place where they were
about to commit dacoity. This statement was recorded as
memorandum Exhibit 20. After that police, panchas and
accused no.1 Subhash went to Kandivali (West) Bus Depot.
Accused No.1 Subhash pointed out jewellery shop of
Mahendrakumar Jematraj Jain as a place where they had
planned to commit dacoity. This was recorded under
panchanama Exhibit 21. The learned trial Court relied
upon this evidence of API Koli for the offences
punishable under Section 399 or 402 of the I.P.C.
Preparation to commit dacoity and to assemble for that
purpose are themselves offences punishable under the
law. If the accused states before the police that he
and other accused had planned and prepared to commit
dacoity at a particular place, that amounts to
confession of the offence punishable under Section 399
and 402 of the I.P.C. Under Section 25 of the Evidence
Act "No confession made to a police officer, shall be
proved as against a person accused of any offence."
Under Section 26 of the Evidence Act "No confession made
by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of
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a Magistrate, shall be proved as against such persons."
It is not the case of the prosecution that when the
accused no.1 Subhash made the confession recorded in the
memorandum Exhibit 20 and panchanama Exhibit 21, any
Magistrate was present. Therefore, confession made by
the accused no.1 Subhash is hit by the provisions of
Section 25 and 26 of the Evidence Act and it would be
inadmissible in evidence. Section 27 of the Evidence
Act is however, an exception or a proviso to Sections 25
and 26 of the Evidence Act. While a confession made
before the police or while in police custody is
inadmissible under Sections 25 and 26 of the Evidence
Act, when any fact is deposed to as discovered in
consequence of information received from a person
accused of any offence, in the custody of a police
officer, so much of such information, so much of such information, whether it amounts so much of such information,
to a confession or not, as relates distinctly to the as relates distinctly to the as relates distinctly to the
fact thereby discovered, may be proved. fact thereby discovered, may be proved. Therefore, only fact thereby discovered, may be proved.
that part of the information, which may be in the nature
of confession, is admissible which relates distinctly to
the discovery of fact which is admissible under the law.
If on the basis of information given by the accused no.1
police would have discovered some fact relevant for this
case, that statement would be admissible in evidence
under Section 27 of the Evidence Act. However, no
recovery of any material was made nor any fact was
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discovered as a result of the alleged confession or
information given by the accused no.1. Alleged
statement made by the accused no.1 before the police and
panchas is a confession of the offence simplicitor
without leading to any discovery. Therefore, in my
considered opinion, the said statement or confession was
hit by Sections 25 and 26 and is inadmissible under the
law. It could not be admitted in evidence under Section
27 because it did not lead to any discovery nor it was
distinctly related to discovery of any fact. It is
material to note that prosecution had not examined any
panch witness and the learned trial Court placed
implicit reliance on API Koli and admitted in evidence
the confession, which was inadmissible under the law.
Therefore, that part of the evidence has to be ignored
while deciding this matter.
12. As far as the conversation of the accused
persons inside the room at the time of raid is
concerned, there is no witness except API Koli and the
conversation heard by him also does not indicate that
the accused persons had planned, prepared or assembled
to commit any dacoity. If the prosecution evidence is
to be believed at the most it is proved that they were
found in possession of certain weapons but merely
because weapons were in their possession, an inference
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can not be drawn that they had planned, prepared and
assembled to commit dacoity. In support of this
contention, Ms. Anjali Patil placed reliance upon
Mohammad Hussain and etc. v. State of Bihar 1987 Mohammad Hussain and etc. v. State of Bihar 1987 Mohammad Hussain and etc. v. State of Bihar 1987
Cri.L.J. 1391 Cri.L.J. 1391 and Chaturi Yadav and others v. State of Chaturi Yadav and others v. State of
Cri.L.J. 1391 Chaturi Yadav and others v. State of
Bihar AIR 1979 Supreme Court 1412. Bihar AIR 1979 Supreme Court 1412. In the case of Bihar AIR 1979 Supreme Court 1412.
Mohammad Hussain, Mohammad Hussain, according to the prosecution during Mohammad Hussain,
the night time 20 persons were found sitting in the
orchard in the suspicious condition. On seeing flash of
torch by the police party, those persons started running
away. After a chase five persons were caught. They
were holding some arms. Besides the fact that they were
found sitting in suspicious circumstances in the orchard
in the night time and they were found with deadly
weapons, there was no material to show that they have
prepared or assembled to commit dacoity. In view of
this, while allowing the appeal against the conviction,
Patna High Court observed as follows in paragraph 13:
"13. In the present case also, the
prosecution has miserably failed to prove that
the appellants alongwith with other companions
had assembled at that lonely orchard for the
purpose of committing dacoity and not for any
other purpose. There is also no material from
which it can be said with any amount of
certainty that they had made preparation for
committing dacoity. Mere possession of
firearms cannot be sufficient to prove that
they intended to commit dacoity and not any
other offence. In such circumstances, there is
no option but to hold that the prosecution has
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failed to prove the charge under S.399 or under
S.402 of the Indian Penal Code against the
appellants."
13. In Chaturi Yadav Chaturi Yadav some accused persons were Chaturi Yadav
found to have assembled at lonely place at 1.00 a.m.
and could not explain their presence at such odd hours.
Evidence led by the prosecution merely showed that 8
persons found in the school premises and some of them
were armed with guns and some had cartridges. In view
of this fact, the Supreme Court held that mere fact that
these persons were found at 1 a.m. did not by itself
prove that they had assembled for the purpose of
committing dacoity or making a preparation to commit
such a dacoity. Their Lordships observed that the
possibility that the appellants might have collected for
the purpose of murdering somebody or committing some
other offence could not be safely eliminated. In such
circumstances the Supreme Court allowed the appeal of
the accused persons against the conviction and acquitted
them for the offences punishable under Sections 399 and
402 of the I.P.C.
14. It is material to note that besides the
weapons, no material or property was recovered from the
accused on the basis of which it could be held that they
had committed any robbery or dacoity prior to this
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incident. There was no criminal antecedents of these
persons. It appears that after arrest of these persons
in the present case, they were also booked in another
robbery case but the learned counsel for the
accused/appellants makes a statement that after trial
they were acquitted in that case also.
15. The above referred two authorities are aptly
applicable to the facts of the present case. Merely
because accused persons were found present in the
residential house of the accused no.2 with certain
weapons, it can not be inferred or presumed that they
had made preparation or had assembled to commit dacoity.
It may be noted that the trial Court had framed charge
only for the offence punishable under Section 399 of the
I.P.C. and under the Arms Act and Bombay Police Act as
stated above. Accused persons were acquitted of the
charges under the Arms Act and Bombay Police Act. No
charge was framed under Section 402 of the I.P.C.
against the accused persons. In spite of this the
learned trial Court convicted all the five accused
persons not only for the offences punishable under
Section 399 but also under Section 402 of the I.P.C.,
which shows lack of application of mind to the facts of
the case. Any how, taking into consideration the facts
and the evidence on record, the impugned judgment and
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order of conviction and sentence can not be sustained.
The accused are entitled to be acquitted of the charges
under Sections 399 and 402 of the I.P.C.
16. Appeal is allowed. The impugned judgment and
order convicting the accused/appellants are hereby set
aside. Accused persons are acquitted of the charges
under Sections 399 and 402 of the I.P.C. They be set at
liberty forthwith if not required in any other case.
(J.H.Bhatia,J.) (J.H.Bhatia,J.) (J.H.Bhatia,J.)
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