Allowed

Vijay Bhimrao Bharsangde v. the State of Maharashtra

Bombay HC10 Jan 2012APEAL/733/2009

Case brief

AI extract

What is this about?

In an appeal challenging a dacoity conviction, the High Court set aside the sentence due to material inconsistencies, including the omission of eyewitness cleaners, suspicious recovery timelines, and delays in conducting the test identification parade.

What did the court decide?

Conviction and sentence of five years rigorous imprisonment and fine set aside; appellant set at liberty.

Vijay Bhimrao Bharsangde Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2012)

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1Apeal 733-09.odt

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPEAL NO.733 OF 2009

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Vijay Bhimrao Bharsakade.Appellant
Age:22 yrs, Occu:Labourer,
R/o.At Palegaon, Taluka:
Panvel, District:Raigad
(Maharashtra)

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 V/s.

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The State of Maharashtra.Respondent

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Mrs.Anjali Waghmare, appointed Advocate, for the
Appellant
Mrs.P.P.Bhosale, APP, for the Respondent - State

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CORAM:R.C.CHAVAN, J.
DATE:10TH JANUARY, 2012

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ORAL JUDGMENT

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.This Appeal is directed against

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conviction of the appellant for the offence
punishable under Section 395 of the Indian Penal

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Code and sentence of rigorous imprisonment for

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five years with a fine of 5,000/- or in default rigorous imprisonment for six months`

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2Apeal 733-09.odt

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imposed upon the appellant by the learned 2nd Ad-
hoc Additional Sessions Judge, Raigad-Alibaug on
conclusion of Sessions Case No.155 of 2008
before him.

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2.Facts which are material for deciding
this Appeal are as under :-

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Surendra Singh had loaded on his trailer truck
bearing No.HR-38/J-9048, 24 tones and 700 Kgs of

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Iron coils from Uttam Galva Company on Pen
Khopoli road. He left with his trailer truck at
about 2:00 a.m. from the factory premises and at

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about 2:30 a.m. he stopped his trailer truck at
site of Toll Booth at Khalapur to answer call of

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nature. When he returned back to his trailer, a
Qualis Jeep came from Pen side and he was told

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that an officer from R.T.O. had called him as

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the trailer was overloaded. The first informant

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approached the jeep. 7-8 persons, who were in
the jeep forcibly pulled him inside the jeep,

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3Apeal 733-09.odt

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tied him up, beat him, took him to an isolated
place, tied him to a tree after robbing him of
cash with him and fled in the jeep. The first
informant some how managed have himself
released, approached the main road and with the
help of another truck driver went to police
station Khalapur and informed the police of the
incident. With the help of police he came to
the spot where he had left the trailer and found

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the trailer missing. He gave a report mentioning among other things that the miscreants had stolen a cash of 21,000/- from`

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him. An offence was registered on his report.

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been apprehended by Kalamboli Police Station and

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upon interrogation on 11th May, 2007, he agreed

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to show the place where he had left the trailer
truck. Accordingly, PSI Dhanvate of Kalamboli
Police Station effected a seizure of the said
trailer in presence of panchas. He informed

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4Apeal 733-09.odt

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Khalapur Police Station about the recovery. On
18/25th May, 2007, the appellant's custody was
transferred to Khalapur Police Station. The
other miscreants were also arrested. Two of the
persons, who had participated in the dacoity
were found to be absconding. The miscreants
arrested were put up at Test Identification
Parade on 12th June, 2007. The appellant and
some others were identified at the Test
Identification Parade. On completion of
investigation, charge sheet was sent up against

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in all nine persons, out of which two were
absconding.

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4.Upon commitment of the case by the

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learned Judicial Magistrate F. C., Khalapur, the
learned Additional Sessions Judge to whom the
case was made over charged the appellant and
others of the offence punishable under Section
395 of the Indian Penal Code. Since the accused
persons pleaded not guilty, they were put on

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5Apeal 733-09.odt

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trial at which the prosecution examined in all
seven witnesses in its attempt to bring home
guilt of the accused persons. After considering
the prosecution evidence in the light of defence
of false implication raised, the learned
Additional Sessions Judge acquitted all the
other accused persons put up for trial but
convicted and sentenced the appellant as
indicated earlier. Aggrieved thereby, the
appellant is before this Court.

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5.I have heard the learned counsel for

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the appellant and the learned APP for the

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respondent � State and with the help of both the
learned counsel I have gone through the record.
PW-1 Surendra Singh Nirmal Singh is the driver
of the truck, who had given the report at
Exhibit 37 on which the offence was registered.
Among other things, he states that there used to

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be two cleaners on trailer truck. There is,
however, no reference to these two cleaners in

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6Apeal 733-09.odt

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the charge sheet. He also states that on the
next day of his having given the report, the
stolen property along with goods was shown to
him in Kalamboli Police Station. He states
having identified the appellant at Test
Identification Parade held on 12th June, 2007.
Before that he claims that on 5th June, 2007 he

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had been called to Khalapur Police Station and
told that the miscreants had been arrested.
PW-2 Dr. Manish Keshav Kalambuskar had examined
Surendra Singh Nirmal Singh immediately after
report was given and has proved Medico-Legal
Certificate at Exhibit 47, which shows the first
informant had laceration and abrasion. PW-3
Executive Magistrate Anant Ganpat Sakpal claimed

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to have conducted Test Identification Parade on
12th June, 2007 in the premises of Tahsil office
at Khalapur. He stated among other things that
he had used same dummies for five rounds of

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Test Identification Parade at which the various
suspects including the appellant were paraded.

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7Apeal 733-09.odt

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However, it is significant to note that the
appellant was paraded in the first round itself
and therefore, he cannot have the benefit of
same dummies having been used by the Executive
Magistrate. PW-4 Kailas Chiraji Jaiswal is a
panch at the recovery effected by PW-6 Santosh
Narayan Dhanavate, PSI Kalamboli Police Station.
Though he states about recovery of trailer truck
along with the stolen goods, he does not
identify the appellant as the person at whose
instance the recovery was made. Both PW-4
Kailas Jaiswal and PW-6 Santosh Dhanavate stated
that the trailer truck was found on the road in
Taloja Industrial Area and the learned counsel
for the appellant may, therefore, be right in
submitting that this may not amount to
concealment. PW-5 P.I. Bhiva Shyamrao Devkar
and PW-7 A.P.I. Shirish Trimbak Jadhav conducted
investigation in part.

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8Apeal 733-09.odt

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6.The learned counsel for the appellant

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first submitted that even according to PW-1
Surendra Singh, there were two cleaners on his
trailer truck. If the first informant was
picked up by the appellant and others when he
had gone to answer call of nature, still trailer
truck would be guarded by the two cleaners and
could not have been taken away without their
knowledge. She submits that absence of

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reference to these two cleaners in the charge
sheet shows that some thing is amiss and that

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the story about the trailer truck having been

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stolen may not be true. The learned APP could

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not throw any light as to why the investigating

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officer could not find, who were those two
cleaners and what they observed. When it is
possible to have eye witnesses in such a serious

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case of dacoity, and the investigating officer
does not even choose to record their statements

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or array them as witnesses at the trial, it
would be hazardous to accept the word of the

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9Apeal 733-09.odt

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first informant alone to conclude that the
appellant was involved in the dacoity. This
assumes greater importance because of the fact
that PW-4 Kailas Jaiswal panch at the recovery
panchanama effected on 11th May, 2007 does not
identify the appellant. It is also significant
that though according to PW-4 Kailas Jaiswal and
PW-6 Santosh Dhanavate, recovery of trailer
truck and goods was made on 11th May, 2007, PW-1
Surendra Singh had stated that on the very next
day of the incident he was shown trailer truck
with goods in the Kalamboli Police Station.
This destroys the value of recovery. In any
case, as rightly pointed out by the learned
counsel for the appellant, the trailer truck
itself was found parked on a public road in
Taloja MIDC. If the trailer truck was indeed,
stolen, and report in respect of the theft was
given immediately, normally, the nearby police
stations would have been alerted by the
investigating officer to search for the truck.

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10Apeal 733-09.odt

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Truck is such a article which moves with a
considerable speed and therefore, ordinarily, if
there is report about theft of truck, the
officer concerned would alert not only nearby
police stations but also police stations on the
high way so that the truck could be seized.
Here, the truck was very much in the vicinity of
the place where from which it was allegedly
stolen. Therefore, this recovery, as rightly
pointed out by the learned counsel for the
appellant, is extremely suspicious.

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7.The learned counsel for the appellant

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submitted lastly that the appellant was arrested

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by Kalamboli Police Station 9th May, 2007 i. e.

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on the very next day of the incident. The
appellant was transferred to the custody of

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Khalapur Police Station soon thereafter and yet
Test Identification Parade was held on 12th June,

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2007 i. e. more than a month after the appellant
was arrested. Therefore, according to her, the

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11Apeal 733-09.odt

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value of the identification of the appellant at
Test Identification Parade is almost Nil. There

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is absolutely no explanation as to why the
appellant wasnotsubjectedtoTest

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Identification Parade soon after his arrest and
in any case, after recovery was made. It is
significant that PW-1 Surendra Singh had stated
that on 5th June, 2007 he was called at Khalapur
Police Station and told that the miscreants had
been arrested. There was absolutely no reason
for calling the first informant at the police
station to inform him about the arrest of
miscreants. He could as well have been called
at the Test Identification Parade itself.

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Calling the first informant in the police

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station when appellant was with police casts a
shadow of doubt on the identification of the
appellant at the Test Identification Parade.

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8.To sum up, principally, because two
cleaners, who were supposed to be with the

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12Apeal 733-09.odt

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trailer truck driver were not even named in the
charge sheet; secondly, because the first
informant had been shown the trailer truck in
Kalamboli Police Station on the very next day
against recovery shown to have been made after
three days, and lastly, because the Test
Identification Parade was held more than a month
after arrest after calling the first informant
in the police station a week before the parade,

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the evidence about the complicity of the
appellant in the crime does not inspire
confidence about appellant's involvement. The
learned trial Judge ought to have extended
benefit of doubt to the appellant.

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9.In view of this, Criminal Appeal is

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allowed. Conviction of the appellant for the

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offence punishable under Section 395 of the

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Indian Penal Code and sentence of rigorous

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imprisonment for five years with a fine of 5,000/- or in default rigorous imprisonment for`

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13Apeal 733-09.odt

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six months is set aside. Appellant be set at

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liberty, if not wanted in any other case.

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(R.C.CHAVAN, J.)

Vijay Bhimrao Bharsangde v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vijay Bhimrao Bharsangde v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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