Partly allowed

Somnath Shankar Dhotre v. the State of Maharashtra

Bombay HC12 Jul 2012APEAL/534/2012

Case brief

AI extract

What is this about?

The High Court altered the appellant's conviction for an offence under Section 392 read with 397 IPC to one under Section 392 only, as the use of a deadly weapon was not proved. The sentence was reduced accordingly, and the related bail application was disposed of.

What did the court decide?

Conviction altered to Section 392 IPC; sentence reduced to five years rigorous imprisonment with fine of Rs. 1,000.

Somnath Shankar Dhotre Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2012)

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APEAL-OJ- 534 OF 2012

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vks

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.534 OF 2012 WITH CRIMINAL APPLICATION NO.844 OF 2012 IN CRIMINAL APPEAL NO.534 OF 2012

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Somnath Shankar Dhotre,

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age: 29 years, residing at : Akashganga Society, Wadarwadi, Pune.

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at present lodged in Yerwada Prison .. Appellant.

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Ori. Accused No.1.

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V/s.

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The State of Maharashtra

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.. Respondent.

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Mr. Satyavrat Joshi, for the Applicant

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Mr. J. P. Kharge, Additional Public Prosecutor for the Respondent State

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CORAM : R.C.CHAVAN, J.

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DATE : 12th July, 2012

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Oral Judgment

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This appeal is directed against the appellant's conviction for the offence punishable under Sections 392 read with 397 of the Indian Penal Code and sentence of rigorous imprisonment for 7 years with fine of `.1,000/- or in default further imprisonment for three months, imposed upon the appellant and co-accused No.2, after conclusion of Sessions

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APEAL-OJ- 534 OF 2012

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Case No.536 of 2009, by the learned Additional Sessions Judge, Pune.

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Facts which are material for deciding this appeal are

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as under:-

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On 31^st August, 2006, when one Dhananjay Temghire was in front of Hotel Garden Court on way to National Defence Academy from Chandani Chowk, the appellant and the co accused are alleged to have called him, held him from behind, showed revolver and robbed him of his belongings including key of his motorcycle No.MH-12-DK-704. The appellant and the co-accused assured Dhananjay that he would get his motorcycle after a short ride. They proceeded on his motorcycle and robbed Kishor Rathi and his fiancee about 500 meters away from the spot. The miscreants then went away on the motorcycle. On a report given by Kishor Rathi, an offence was registered and in the same investigation, robbery suffered by P. W. 5 Dhananjay Temhire was also dealt with. It appears that the appellant and the co-accused were arrested in another crime of having made preparation to commit dacoity. On 28^th October, 2006 the custody of the accused persons was taken for investigation of this crime. In the course of investigation, police recovered the motorcycle from parking lot of Chinchwad Railway

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APEAL-OJ- 534 OF 2012

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station on 2^nd November, 2006. Police also recovered some ornaments on 5^th November, 2006. The ornaments were recovered at the instance of accused No.3 Ganesh Harishchandra Dhanawade, who has been acquitted by the learned trial Judge. After completion of investigation, chargesheet for offence punishable under Section 392 of the Indian Penal Code was sent to the Court of Chief Judicial Magistrate, Pune. The learned Chief Judicial Magistrate, charged the appellant and the co-accused of offence under Section 392 and 411 of the Indian penal Code on 23^rd September, 2008. Since they pleaded not guilty, they were put on trial. In the course of the trial learned Chief Judicial Magistrate, recorded evidence of 7 witnesses. It seems that thereafter the learned Magistrate, who tried the case of appellant and co-accused, was transferred, and his successor found that the evidence disclosed use of deadly weapon and therefore, added Section 394 read with 397 of the Indian Penal Code and committed the case to the Court of Sessions.

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Learned Additional Sessions Judge, to whom the case was made over, charged the appellant and the co-accused of offences under Section 394, 397, 341 read with Section 34 of the Indian Penal Code and charged the accused No.4 of offence punishable under Section 411 of the Indian penal Code.

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APEAL-OJ- 534 OF 2012

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Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 7 witnesses in its attempt to bring home the guilt of the accused persons. After considering the prosecution case in the light of defence raised, the learned Judge acquitted accused Nos 3 & 4 Ganesh Dhanawade and Vikram Kusumbekar and convicted & sentenced the appellant and the accused No.2 as indicated above. Aggrieved thereby the appellant has preferred this appeal.

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Accused No.2 is stated to have not preferred any

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appeal.

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I have heard learned counsel for the appellant and the learned Additional public Prosecutor for the State (for short called as, “APP”). With the help of both I have gone through the evidence on record. P. W. 1 Namdeo Kunjir is a panch on the arrest of appellant and the co-accused possibly for offence of having made preparation to commit dacoity where some firearm was allegedly seized from the present appellant. He turned hostile. There is absolutely no reference in the trial Court papers about seizure of any firearms. Police Officer, who effected said seizure, has not been examined.

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P. W. 2 Pandurang Dangat is another panch witness

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APEAL-OJ- 534 OF 2012

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of recovery made at the instance of accused No.3, who has been acquitted of this offence. Therefore, his evidence not relevant for assessing the complicity of the present appellant. P. W. 3 Sandesh Shirke, was Resident Naib Tahsildar, before whom test identification parade was held on 9^th November, 2006 at which the appellant and co-accused were identified by P. W. 4 Kishor Rathi and P. W. 5 Dhanajay Temghire. He proved the memorandum of test identification parade at Exh.38. Accused No.3 Ganesh Dhanawade was paraded before him, but he was not identified.

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P. W. 4 Kishor Rathi stated that he was sitting a little away from the Hotel Garden Court with his fiancee when two persons came on motorcycle, showed a revolver and robbed him of his Nokia hand set, 3 rings, gold chain, bracelet and cash of `.14,000/-. They also robbed his fiancee's gold ring and chain. He stated that the miscreants went on the motorcycle bearing No. MH-12/704. He could not identify the appellant and the coaccused before the trial Court though he had identified them at the test identification parade. Learned counsel for the appellant submitted that what is important is identification before the Court and the identification at the test identification parade only lends credence to the identification before the Court.

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APEAL-OJ- 534 OF 2012

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P. W. 5 Dhananjay Temghire is the person who was robbed first and his motorcycle had been taken away. He had identified the appellant and the co-accused at the test identification parade as also before the Court. Learned counsel for the appellant wondered as to how even though a report was made by this witness, it was not recorded as report by the police and as to why police did not proceeded to investigate into the offence independently. His report at Exh.43 refers to loss of his motorcycle bearing No.MH-12-DJ-704.

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P. W. 6 API Brahmanand Naikwadi stated that on 2^nd November, 2006, appellant Somath made a statement leading to discovery of the motorcycle in the parking lot in front of Chinchwad Railway Station. It is strange that when the police knew number of motorcycle which had been lost and which ordinarily should have been communicated to the neighbouring police stations, this motorcycle, which was lying in the parking lot in front of railway station, was not found till 2^nd November, 2006. Learned counsel for the appellant submits that parking lot is not unattended. It was looked after by one Ganesh Ahire, who has not been examined before the Court and therefore, the evidence in respect of recovery of motorcycle is suspicious.

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P. W. 7 Police Inspector Shrikant Navale is the

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APEAL-OJ- 534 OF 2012

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Investigating officer, who had received report and registered offence. He recorded panchnama of spot vide Exh.49. Further investigation was stated to have been done by PSI Patil, who has not been examined.

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Learned counsel for the appellant submitted first, that the complicity of the appellant in the crime is not at all indicated since P. W. 4 Kishor Rathi failed to identify the appellant before the Court. He submitted that the identification at the test identification parade cannot be substantive evidence but is corroborative evidence. He submitted that identification of the appellant by P.W.5 Dhananjay Temghire in the Court is suspicious since the whole story about his being robbed of his motorcycle would have to be discarded as first, the report of Dhananjay Temghire was not recorded by the police, and secondly, the motorcycle in question was recovered more than two months after the incident in a public place. Ganesh Ahire the person in whose possession parking lot was not examined. Therefore, he submits that the entire story of Dhananjay having been robbed of his motorcycle and motorcycle being subsequently recovered would have to be discarded. It may have been invented just to avoid the complicity of Dhananjay into crime since Kishor Rathi had given the number of motorcycle by which the robbers had come and the motorcycle

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APEAL-OJ- 534 OF 2012

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belonged to Dhananjay Temghire. He submits that ornaments have not at all been recovered, from appellant. Therefore, there is nothing on record to connect the appellant to crime. He further points out that though both the witnesses state about revolver or pistol being shown, the report of Kishor Rathi at Exh.41 shows that he was not sure of the weapon which was allegedly used. He states that the miscreants had only shown a pistol like weapon stuck at the waist. Learned counsel for the appellant submitted first, that witness has not seen the weapon actually brandished and secondly evidence is far too deficient to show that it was the appellant who brandished any such weapon. As already pointed out that the recovery of the weapon has not been proved and weapon was not before the Court. Learned counsel submits that P. W. 5 Dhananjay Temghire stated in his report at Exh.43 that he was assaulted by one of the miscreants from backside and revolver was pushed against his side under the armpit by another miscreant. Now if the revolver had been pushed at his side, Dhananjay would have no occasion to see the revolver. Therefore, learned counsel submitted that the entire story about use of revolver is only an attempt to aggravate the offence. He submitted that possibly aware of this lacuna, police first chargesheeted the accused person for offence punishable under Section 392 of the Indian Penal Code. The learned Chief Judicial Magistrate had

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proceeded with the trial as if the offence was only punishable under Section 392 of the Indian Penal Code. Appellant has suffered this conviction due to embellishment by the investigation machinery coupled with infirmity which the learned counsel points out which according to him entitles the appellant to clean acquittal.

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Learned APP on the other hand contends that though the weapon has not been produced before the Court, there is no doubt a weapon was recovered and there can be no doubt that the weapon was actually used as stated by the two witnesses. Now this contention of the learned APP cannot be accepted because if the prosecution suppressed the best evidence which is available to it, inference would be that the evidence was not produced because it did not suit the prosecution case. If weapon was indeed seized, there was no reason for the prosecution not to place it before the witnesses for enabling them to identify the weapon, as the one which was used for terrorizing them. In view of this, the contention of learned counsel for the appellant that the story of use of weapon is introduced only for the purpose of aggravating the offence may have to be accepted as probable.

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Learned APP submitted that even so the fact that P.

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APEAL-OJ- 534 OF 2012

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W. 4 Kishor Rathi and P. W. 5 Dhananjay Temghire were robbed cannot be denied. These two persons had absolutely no reason to file false report. He submits that though Kishor Rathi did not identify the appellant in the trial Court, P. W. 5 Temghire did identified the appellant. Therefore, as far as robbery to which Dhananjay was subjected, evidence may have to be accepted.

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The Learned counsel for the appellant thereupon submitted that this may be impermissible since charge is only in respect of robbing Rathi and fiancee Kavita, and not about the robbery of motorcycle and other valuables from Dhananjay Temghire. He points out that though two Additional Sessions Judges had framed charges against the appellant and the coaccused, it is unfortunate that both the Additional Sessions Judges had missed the charge about robbery of Dhananjay. It is true that the learned Additional Sessions Judges seems to have have framed the charge omitting reference to robbery to which Dhananjay Temghire was subjected. All the same as rightly pointed out by the learned Additional Public Prosecutor, the defect in charge cannot materially affect the trial so long as accused knew the charges that he was going to face. The police papers which had been submitted to the accused clearly mention the robbery of Dhananjay as well.

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APEAL-OJ- 534 OF 2012

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The learned APP also points out that in fact the accused persons had already faced trial on charge framed by the learned Chief Judicial Magistrate and he has mentioned that the appellant and the co-accused had committed robbery of mobile phone and motorcycle bearing No.MH-12-DK.704. Therefore, there is no question of trial being vitiated on account of defective charge.

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Considering the rival submissions it is clear that the use of deadly weapon is not proved in the robbery in question. The robbery of motorcycle of P. W. 5 Dhanjay is duly proved. Therefore, the conviction of the appellant for robbery would have to be maintained. The learned counsel for the appellant points out that the appellant has been in jail for about 5 years, 8 months and 13 or 14 days and, therefore, the appellant be released by reducing the sentence to the period already undergone. Learned counsel for the appellant submits that though the co-accused Rupesh Dinu Mandal @ Rafiq Usman Khan has not preferred any appeal since his role is not different from that of present appellant, even he should get benefit of any order that may be passed in case of present appellant. Considering all this the following order is passed.

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Appeal is partly allowed. The conviction of the

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APEAL-OJ- 534 OF 2012

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appellant for the offence punishable under Section 392 read with section 397 of the Indian Penal Code is altered to that for the offence punishable under section 392 of the Indian penal Code and the sentence of rigorous imprisonment for 7 years with fine of .1,000/- or in default of payment of fine S.I. for three months is reduced to rigorous imprisonment for 5 years with fine of .1,000/- or in default of payment of fine S.I. for three months.

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The conviction and sentence of the co-accused Rupesh Dinu Mandal @ Rafiq Usman Khan for the offence punishable under Section 392 read with section 397 of the Indian Penal Code is likewise altered.

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Criminal Application No.844 of 2012 for bail also stands disposed of.

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Somnath Shankar Dhotre v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Somnath Shankar Dhotre v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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