Dismissed

Pramod Bhanudas Soundankar v. the State of Mahrashtra

Bombay HC13 Jun 2012APEAL/260/2011

Case brief

AI extract

What is this about?

Bench dismissed criminal appeals against convictions for dacoity and receiving stolen property. Court held recovery of valuables from appellants and absence of visual identification in court were not fatal due to complainant's medical condition and adequate explanation for T.I.P. delays.

What did the court decide?

All appeals dismissed; bail bonds of certain appellants cancelled.

Pramod Bhanudas Soundankar Vs the State of Mahrashtra — Criminal Trial and Appeal | Bombay HC (2012)

¶1

(1) Cri. Appeal-283.2011+

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

BENCH AT AURANGABAD

¶4

CRIMINAL APPEAL NO. 283 OF 2011

¶5

1) Vishwanath S/o Gyanba Gavali

¶6

Age : 32 years, Occupation : Labour, R/o Limbala (M),

¶7

Taluka & District Hingoli

¶8

2) Hanuman S/o Taktya Kale, Age : 47 years, Occupation : Labour, R/o Jawala Panchal,

¶9

Taluka Basmat, District Hingoli

¶10

3) Kathalu @ Sigret S/o Sahebrao Pawar, Age 42 years, Occupation : Labourer, R/o As above

¶11

4) Khetrya S/o Manik Pawar, Age : 27 years, Occupation : Labour, R/o Kharbi, Taluka and District Hingoli

¶12

5) Kiran S/o Jilanya Pawar, Age : 26 years, Occupation : Agriculture, R/o Limbala (M), Taluka and District Hingoli

¶13

6) Shivaji S/o Navathya Kale, Age : 42 years, R/o Pardhiwada, Jawala (B), Taluka Aundha, District Hingoli

¶14

(2) Cri. Appeal-283.2011+

¶15

7) Sanjay @ Kaliya S/o Pandit Kale,
 Age : 25 years,
 Occupation : Labour,
 R/o Limbala (M),
 Taluka and District Hingoli Appellants

¶16

 (Orig. Accused
 nos.1,2,3,5,7,8,9)

¶17

VERSUS

¶18

The State of Maharashtra,
Through the Police Inspector,
Police Station, Hingoli (Town),
Taluka and District Hingoli Respondent

¶19

WITH

¶20

CRIMINAL APPEAL NO. 305 OF 2011

¶21

Roshan @ Dhonya S/o Rangnath Kale,
Age : 30 years, Occu: Labour,
R/o Pardhi Wada, Jawala Bazar,
Tq. Aundha Nagnath Dist. Hingoli Appellant

¶22

(Ori. Accused no.6)

¶23

VERSUS

¶24

The State of Maharashtra,
Through Police Station, Hingoli City Respondent

¶25

AND

¶26

CRIMINAL APPEAL NO. 260 OF 2011

¶27

Pramod Bhanudas Soundankar,
Age : 46 years, Occu.: Gold-Smith,
R/o : Mangalwar-Peth, Basmath,
Tq. : Basmath, District : Hingoli Appellant
(Ori. Accused no.11)

¶28

VERSUS
The State of Maharashtra Respondent

¶29

....

¶30

Mr. V.N. Damle, Advocate h/f. Mr. V.G. Sakolkar,
Advocate for the Appellants (In Criminal Appeal
no. 283 of 2011)

¶31

Mr. H.I. Pathan, Advocate for the appellant in
Criminal Appeal no. 305 of 2011.

¶32

(3) Cri. Appeal-283.2011+

¶33

Mr. Joydeep Chatterji, Advocate for the appellant
(Criminal Appeal no. 260 of 2011)

¶34

Mr. T.S. Lodhe, A.P.P. for the respondent-State in
all the Appeals

¶35

....

¶36

CORAM : M.T. JOSHI,J.

¶37

DATE OF RESERVING : 25.04.2012

¶38

DATE OF PRONOUNCING: 13.06.2012

¶39

JUDGMENT:

¶40

1.Aggrieved by the conviction for the offences
punishable under section 395, 397 of the Indian Penal
Code, the appellants in Criminal Appeal no. 283 of
2011 as well as appellant in Criminal Appeal no.305
of 2011 have preferred the present Appeals.
Appellant (original accused no.11) Pramod Soundankar
in Criminal Appeal no. 260 of 2011 was convicted in
the same trial for the offence punishable under
section 412 of the Indian Penal Code and sentenced to
suffer R.I. for three years and to pay fine of Rs.
1000/-.

¶41

2.In all 10 accused were convicted for the
offences punishable under section 397 of the Indian
Penal Code. Out of them, accused no.10 Sk. Javed Sk.

¶42

(4) Cri. Appeal-283.2011+

¶43

Maheboob did not prefer any Appeal. Thus, except
him, all the accused convicted and sentenced for the
offences as described above, are before this Court.
The appellants would be termed as accused as arrayed
before the learned Sessions Judge.

¶44

3. The prosecution case in short is as under:-

¶45

.A dacoity has occurred in the house of P.W.4
Complainant Rameshchandra Sawarmal Bagdiaya in the
night between 17th July 2009 and 18th July, 2009 at
about 1.00 pm. in his house situated at Akola Road,
Hingoli. In all six people had entered the house by
breaking open the channel gate of the entrance with
knife, dagger etc. in their hands. They had
threatened the complainant and his wife Kirandevi and
forced them to give the keys of almirah. Therefrom,
they took away the gold, silver ornaments as well as
valuables amounting to 8,75,000/-.

¶46

.During investigation, all the 10 accused

¶47

were arrested at different point of time from the
information received from the accused already
arrested. All the 10 accused were placed for test
identification parade at different point of time in

¶48

(5) Cri. Appeal-283.2011+

¶49

batches, as per their arrest. They were identified
by the complainant. Further, all of them had made a
statement leading to the recovery of various articles
from different places, including the houses of the
respective accused-appellant. Sofar as accused no.11
i.e. the appellant in Criminal Appeal no.283 of 2011
is concerned, he is prosecuted for the offence of
knowingly receiving the stolen property, having
reason to believe that the same has been stolen.
Appellant no.8 i.e. accused no.8 Shivaji Kale in
Criminal Appeal no. 283 of 2011 made a statement
which ultimately led to the recovery of four silver
chips from the possession of this appellant, he being
the jeweller of Jawala Bazar.

¶50

4.Before the learned Sessions Judge, in all 20
witnesses were examined. They included the
complainant, various witnesses to the statement made
by the various appellants leading to the recovery of
the respective articles, Special Executive Magistrate

¶51

as well as the panch witnesses, as regards the
evidence of test identification parade and
Investigating Officers-P.W.20 P.I. of Local Crime
Branch Shaikh Abdul Rauf a leading Investigating

¶52

(6) Cri. Appeal-283.2011+

¶53

Officer. While most of the panch witnesses as
regards the recovery evidence except P.W.16 and P.W.
10 who spoke about the recovery made by accused no.6
Roshan and accused no.9 Sanjay alias Kaliya
respectively, turned hostile to the prosecution.
Complainant P.W.4 failed to identify any of the
accused nos.1 to 10 in the witness box, though it is
claimed that he has identified all of them during the
test identification parade.

¶54

5.The learned Sessions Judge, however,
believed the prosecution case on the ground that the
complainant was apprehensive in the witness box.
Further, his cross-examination would show that there
was high level of increase in sugar, while he was
deposing in the witness box. Therefore, his non-
identification of the accused nos.1 to 10 in the
witness box, according to learned Sessions Judge,
would not lead to dis-believe the prosecution case.
Further, as regards the recovery evidence, the same
was believed and, therefore all the accused came to
be convicted.

¶55

6.The learned counsel for the accused nos.1 to

¶56

(7) Cri. Appeal-283.2011+

¶57

9 submitted before me that the Court failed to take
into consideration that the substantive evidence of
identification in the Court hall was absent and there
was no independent witness except about two accused,
as referred above about the recovery evidence.
Besides this, pointing number of infirmities in the
prosecution case, like delay in holding of test
identification parades, non-examination of watchman-
Sheshrao who was claimed to be present at the time of
occurrence and the alleged recovery statement said to
have been made after a period of four to five months
of the incident, the learned counsels wanted that the
Appeals be allowed.

¶58

7.On the other hand, the learned A.P.P.

¶59

submitted that the complainant P.W.4 has given a
plausible explanation for inability in identifying
the accused nos.1 to 10 in the Court hall. He
further submitted that due to election duty of the
Executive Magistrate, the identification parades
could not be held immediately. He further submitted
that large number of valuables are recovered by the
Police from the accused persons. It thus cannot be
said that those valuables were foisted upon the

¶60

(8) Cri. Appeal-283.2011+

¶61

respective accused by the Police. In the
circumstances, he submitted that the Appeals be
dismissed.

¶62

8.On the basis of this material, following
points arise for my determination:

¶63

(I)Whether the prosecution has proved
that the original accused nos.1 to 9
i.e. the present appellants before me
have participated in the commission of
dacoity at the residence of the
complainant, by using deadly weapons?

¶64

II) Whether the prosecution has further
proved that accused no.11 Pramod
Soundankar had received the stolen
property belonging to the complainant,
knowingly or having reason to believe
that the same has been transferred by
the commission of dacoity?

¶65

My findings to above points are in the affirmative.

¶66

All the Appeals are therefore dismissed for the
reasons to follow.

¶67

REASONS :

¶68

9.The immediately filed complaint of P.W.4
would reveal that three finger rings, one mangalsutra

¶69

(9) Cri. Appeal-283.2011+

¶70

( gold necklace ), one gold locket, two gold bangles, two ear tops, one gold bar weighing three tolas (30 gm), one ladies finger ring, two thick bangles ( patlya ), silver chips weighing 1 Kg., 150 silver coins and cash of 1,93,000/- were taken away by the dacoits.`

¶71

10.Accused no.1 Vishwanath was arrested by
Investigating Officer i.e. P.W.11 Shaikh Noor
Mohammad after four months i.e. on 13.11.2009. Only

¶72

thereafter, the rest of the accused came to be
arrested. Immediately after their arrest, according
to the prosecution, each of these accused nos.1 to 10
made statements leading to the recovery of valuables
like silver chips, pair of bangles and ring, ear
tops. According to the prosecution, these valuables
were kept by the respective accused in their house or

¶73

concealed at some other places like field. The panch
witnesses to this exercise except the exercise as
regards accused no.6 Roshan and accused no.9 Sanjay
alias Kaliya turned hostile.

¶74

11.On the strength of this fact, the learned
counsels for the appellants vociferously submitted

¶75

(10) Cri. Appeal-283.2011+

¶76

that when the recovery evidence could not be proved
from the mouth of an independent witness, the learned
Sessions Judge ought not have believed the same.

¶77

12.It is however to be noted that accused no.1
Vishwanath was arrested on 13.11.2009, who is said to
have made a statement leading to recovery of silver
brick on 26.11.2009 from his own house.

¶78

13.Thereafter, different accused came to be
arrested on the basis of the information received
during the interrogation made by the Police with this
accused. Accused no.5 Khetrya was arrested on
15.2.2010. According to the prosecution, he made a
statement leading to the recovery of pair of bangles,
ring jaded with stones and five silver coins at
article 48/1/2 which has been identified by the
complainant in the Court. Besides this, according to
the prosecution, specific ornaments like ear-tops and
rings etc. were also recovered on the basis of
statement made by accused no.9 Sanjay alias Kaliya
after the arrest on 15.12.2010.

¶79

14.As already pointed out while description of

¶80

all the looted property was given in the FIR at

¶81

(11) Cri. Appeal-283.2011+

¶82

exhibit 44, immediately after the dacoity of
18.7.2009, large number of same valuable gold and
silver articles came to be recovered at different
point of time. The learned Sessions Judge believed
the testimony of Investigating Officer in this
regard.

¶83

15.In the circumstances, though the panch
witnesses to all these recovery panchanamas (except

¶84

2) did not support the prosecution case, it cannot be
said that the prosecution has failed to prove that

¶85

the respective accused had made statements leading to
the recovery of the valuable articles which were
identified by the complainant in the Court.

¶86

16.This takes us to consider the case of
identification of the accused persons. As regards
accused nos.1 to 4, while they were arrested in the
month of November, 2009, their test identification
parade was held on 30.12.2009. While one of the

¶87

panch witness i.e. P.W.2 Nagorao, to the test

¶88

identification parade turned hostile, P.W.8 Manoj
Sharma, another panch witness has generally supported

¶89

the prosectuion case. He however, admitted in cross-

¶90

(12) Cri. Appeal-283.2011+

¶91

examination that he himself alongwith the previous
hostile panch Nagorao were working with the
complainant during the relevant period. In the
circumstances, it was argued that even the
identification during the test identification parade

¶92

is doubtful. It should, however, be noted that
inspite of the fact of P.W.2 Nagorao is working with
the complainant, still, he did not support the
prosecution that in his presence complainant
Rameshchandra had identified accused nos.1 to 4.

¶93

17.As regards accused no.5 Khetrya, accused no.
6-Roshan, accused no.7-Kiran and accused no.8-
Shivaji, panch to test identification parade is P.W.
17 Jagdish Sharma. He is also the employee of
complainant Rameshchandra. Though, he deposed that
in the test identification parade, his employee has
identified the respective accused persons, he does
not know the contents of the panchanama and further
deposed that he cannot remember the names which were
told by the respective accused persons.

¶94

18.For test identification parade of accused
no.9 Sanjay, panch was very same P.W.8 Manoj Sharma.

¶95

(13) Cri. Appeal-283.2011+

¶96

19.From all this evidence on record, it is

¶97

clear that the panch witnesses to the exercise of

¶98

test identification parade were the employees of the
complainant. Generally, they had supported the
prosecution case that the complainant has identified
the accused persons in the test identification
parade, though they failed to give specific details
as detailed supra. Above all, the complainant could

¶99

not identify any of the accused nos. 1 to 10 from the
witness box.

¶100

20.The learned counsel for the respective

¶101

appellants/accused relied on the ratio of the
following cases :

¶102

"1) Ramu Dhanbahadur Thapa Vs. State of
Maharashtra 2007(1) Mah.L.J. (Cri.) 654.

¶103

2) Chhabya Dhondya Bhosale Vs State of
Maharashtra 2001(2) LJ SOFT 76.

¶104

3) Ankush Bansi Wagh and anr. Vs. State of
Maharashtra 2008 (12) LJ SOFT 87."

¶105

In the case of Ramu Thapa (cited supra) the facts

¶106

were that the dacoity had occurred at the spot where

¶107

there were ornaments and the complainant did not
assert in the examination-in-chief, that he was in a

¶108

(14) Cri. Appeal-283.2011+

¶109

position to see the assailant. In the circumstances,
the fact that the accused persons were identified by
the witnesses in Court was held to be of no avail to
the prosecution. Further, there was unexplained
delay in the test identification parade. In all these
circumstances, the prosecution case in this regard
was not believed.

¶110

21.In the case of Chhabya Dhondya (cited

¶111

supra), admittedly the eye witnesses failed to
identify the robbers due to the darkness. The
appellant therein however was in custody for 11 years
and the recovery at his behest was not challenged by
him. Therefore, holding that he was in possession of
certain articles for which he has no explanation, he
was convicted for minor offence and was released.

¶112

22.In the case of Ankush Bansi Wagh (cited
supra) there was delay in holding the test
identification parade and the witnesses admitted that

¶113

they had an opportunity to interact with each others
after the rounds of identification parade were held.
Further, it was the prosecution case itself that the
dacoits before entering the house, had broken the

¶114

(15) Cri. Appeal-283.2011+

¶115

electric bulbs. In the circumstances, the prosecution
case was not believed.

¶116

23.In the present case before us, the complaint
shows that the unknown dacoits had entered the house
with torches with them. They first made enquiry
about the keys of the almirah. Thereafter, they took
out all the articles from it and carried valuables
only with them. Thus, there was sufficient
opportunity for the complainant to watch the dacoits.

¶117

As regards the delay in holding the test
identification parade, as regards accused nos.1 to 4,
the test identification parade was held just within
six weeks of their arrest, though arrest could be
made after four months of the incident. In the
circumstances, it cannot be said that there was a
deliberate delay in holding the test identification
parade.

¶118

24.As regards the test identification parade of
accused nos.5 to 8, while they were arrested in the
month of February, 2010, the test identification
parade was held on 13th May, 2010. P.W.13 Naib
Tahsildar Anandrao Salonke, who has held the test

¶119

(16) Cri. Appeal-283.2011+

¶120

identification parade deposed in his cross-
examination, that due to election period, he could
not arrange the test identification parade earlier.
Thus, the delay in holding the test identification
parade is explained. As regards the accused no.9
Sanjay alias Kaliya arrested on 15.12.2009, the test
identification parade was held on 21.1.2010. In the
circumstances, there was no delay in conducting the
same.

¶121

appellants/accused however vociferously submitted
that since the complainant failed to identify any of
the accused from the witness box, a substantive
evidence regarding the identification of the accused
is absent in the present case. According to them,
the identification during the test identification
parade is merely a step in the investigation and
cannot be called a substantive piece of evidence.

¶122

26.It is generally true that the identification

¶123

of the person as the perpetrator of the crime, by the
person who has opportunity to watch him during that
period in the Court would be a substantive piece of

¶124

(17) Cri. Appeal-283.2011+

¶125

evidence. In the present case, however, what we find
is that the complainant, a 65 years old man entered
the witness box. The learned Sessions Judge has
opportunity to note his demeanor, as is found in the
judgment. It would show that the complainant was
very apprehensive. Besides, he explained that due to
the sudden rise in the sugar, he being a diabetic, he

¶126

was not able to see properly in the Court hall and,
therefore, was unable to identify any of the accused.
He was however emphatic that in the past, during the
test identification parade, he had identified the
very dacoits. It is the prosecution case that the
watchman was confined by tying his hands outside of

¶127

the house before entry of dacoits in the house. In

¶128

the circumstances, non-examination of the said

¶129

watchman would not lead us to the conclusion that the
prosecution case is false.

¶130

27.As already pointed out, large quantity of
valuable articles were seized at different point of

¶131

time. Further, arrest of one accused lead to the

¶132

arrest of another one. Further, only due to the

¶133

sudden rise in the sugar in the blood of the old
complainant, he was unable to identify the accused

¶134

(18) Cri. Appeal-283.2011+

¶135

persons in the Court hall. Delay in holding one of
the test identification parade is duly explained.

¶136

28.In all these circumstances, according to me,
the learned Sessions Judge has rightly concluded that
the prosecution has proved beyond reasonable doubt
that the present accused nos. 1 to 10 have committed
the dacoity, with deadly weapons.

¶137

29.As regards the accused no.11, it is to be
noted that he is jeweller by occupation. Accused no.
8 Shivaji Kale was arrested on 2.2.2010 from Wapi,

¶138

Gujrat. According to the prosecution, the said
accused made a statement that he has sold four silver
chips to the present appellant/accused. Those silver

¶139

chips, according to the P.W.20 P.I. Shaikh Abdul
Rauf, were recovered from the present appellant.
Panch witness to the memorandum of statement as well
as the recovery panchanama, namely, P.W.2 Nagorao and

¶140

P.W.3 Gajanan both of them have turned hostile,

¶141

though employees of the complainant.

¶142

30.The learned Sessions Judge, has believed the
straightforward testimony of the Investigating
Officer i.e. Police Inspector, who has given the

¶143

(19) Cri. Appeal-283.2011+

¶144

chronological account of the events.

¶145

31.It was alternatively submitted on behalf of
the accused, that even if it is held that the present
accused have received the property from accused no.8
Shivaji, yet it cannot be said that he has knowledge
that the property was a stolen property. It may
however, be noted that this appellant-accused is the
jeweller by occupation and he has received four

¶146

silver chips from an ordinary person. In the
circumstances, this very fact shows that the present
appellant had knowledge that the property must not
have been a normal property. In the circumstances,
the finding of the learned Sessions Judge in this
regard also cannot be faulted with.

¶147

32.The learned counsels however alternatively
submitted that since only evidence regarding recovery

¶148

of valuables at the behest of the concerned accused
persons is there, they cannot be convicted for the
offence punishable under section 395 or 397 of the
Indian Penal Code and at the most the conviction
could be under section 412 of the Indian Penal Code.

¶149

Cri. Appeal-283.2011+

¶150

.In support of the proposition, the learned
counsels for the appellants/accused relied on the
following authorities :

¶151

" (i) Pandurang @ Sanjay Gangaram Pawar @ Bhosale Vs. State of Maharashtra 2004(8) LJSOFT 50.

¶152

(ii) Vijay Dadasaheb Bhosle and anr. Vs. State of Maharashtra 2006(12) LJSOFT 252.

¶153

 (iii) Amit Dattatraya Dighe Vs. State of
 Maharashtra 2009(1) LJSOFT 43."

¶154

.In all these cases however, the Court has

¶155

come to the conclusion that the identity of the

¶156

accused as a dacoit was not proved and only material
available against the accused was of recovery of
valuables at his instance. In the present case,
however, we find that the prosecution has proved that
the respective accused has committed dacoity.
Therefore, the argument cannot be accepted. In the
result, all the Appeals fail and are therefore
dismissed accordingly.

¶157

33.Accused no.3/appellant no.3-Kathalu alias
Sigret Sahebrao Pawar in Criminal Appeal no. 283 of
2011 and accused no.11/appellant no.11-Pramod
Bhanudas Soundankar in Criminal Appeal no. 260 of

¶158

(21) Cri. Appeal-283.2011+

¶159

2011 being already released on bail, their bail bonds
shall stand cancelled and they shall surrender before

¶160

the concerned Court to serve the sentence.

¶161

Sd/-

¶162

[M.T. JOSHI, J.]

¶163

ARP/

Pramod Bhanudas Soundankar v. the State of Mahrashtra

Case brief

What is this about?

What did the court decide?

Pramod Bhanudas Soundankar v. the State of Mahrashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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