Dismissed

State of Maharashtra v. Rajendrasingh Bhagwansingh Babri and Others

Bombay HC22 Sept 2016APEAL/268/1998

Case brief

AI extract

What is this about?

In a criminal appeal against acquittal for dacoity with murder, the High Court upheld the trial court's decision by rejecting the approver's testimony due to lack of statutory inquiry into his pardon, discrediting evidence of recovery, and finding the identification parade defective due to irregularities.

What did the court decide?

Acquittal of respondents; appeal dismissed.

State of Maharashtra Vs Rajendrasingh Bhagwansingh… — Criminal Trial and Appeal | Bombay HC (2016)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.268 OF 1998

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The State of Maharashtra,
Through P.S.O., Sailu P.S.O.,
Dist. Parbhani..Appellant
(Prosecution)

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Vs.

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1. Rajendrasingh s/o. Bhagwansing Babri, Age 35 years, r/o. Partur, Dist. Jalna (Deleted as per Court's order dated 11.1.2000)

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2. Rajendrasingh s/o. Bahadursing Tak, Age 22 years, r/o. As above

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3. Ajitsing s/o. Khushalsing Juni, Age 28 years, r/o. As above

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4. Bichusingh s/o. Bhimsingh Bhond, Age 27 years, r/o. As above

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5. Digamber s/o. Dattatraya Shahane, Age 32 years, r/o. As above ..Respondents

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(orig. accused)

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Mr.A.R.Borulkar, A.P.P. for applicants

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Mr.P.P.Kothari,Advocatei/b.Mr.S.S.Bora,
Advocate for respondent nos.2 and 4

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Mr.B.U.Sagade, Advocate for respondent no.3

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Mr.M.M.Joshi, Advocate for respondent no.5

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CORAM : S.S. SHINDE AND
 SANGITRAO S. PATIL, JJ.
DATE : SEPTEMBER 22, 2016

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JUDGMENT (PER SANGITRAO S. PATIL, J) :

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This appeal challenges the judgment and
order dated 20.05.1998 passed in Sessions Trial

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No.127 of 1996 by the learned Addl. Sessions
Judge, Parbhani, whereby the respondents came to

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be acquitted of the offences punishable under
Sections 396 and 397 of the Indian Penal Code
(“I.P.C.”, for short).

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2.Briefly stated, it is the case of the

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appellant (hereinafter referred to as “the
prosecution”) that on 02.04.1995 at about 2.00
a.m., the informant Rohini Sanjay Rajurkar,

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resident of Babasaheb Road, Sailu, heard shouts of

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the parents of her husband. Her husband and
herself got up from the sleep. Her husband opened

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the door of their own room. They found that 7 to 8

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dacoits had entered into their house and that they
were beating the parents of the husband of the
informant. The husband of the informant namely,

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Sanjay went to rescue his parents. At that time,
the dacoits beat him also. The dacoits were
holding iron bars and knives. They had worn
banians and underpants. They had covered their
faces with black clothes. Their eyes only were
visible. One of them had worn a blue coloured
sweater and he was talking in Hindi. The other
dacoits were talking in Marathi. They threatened

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the father-in-law of the informant as he was
shouting and asked him to deliver to them whatever

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he had. They severely beat the father-in-law,
mother-in-law, brother-in-law and husband of the
informant. The father-in-law of the informant
sustained serious injuries. He became unconscious.

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The dacoits took away the gold rings, which were

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in the fingers of her husband and that of the

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brother-in-law; two gold bangles weighing four

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tolas; one gold locket weighing one tola; one gold
locket of the husband of the informant; all the
ornaments which were on the person of the mother-
in-law of the informant and all the cash amount
that was in the house. The dacoits had broken the
iron shutter of the house of the informant and
entered into it for committing dacoity.

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3.As the wife of the brother-in-law of the
informant namely, Kanchan informed the police on
phone about the incident, the police arrived at
the spot of the incident. The informant narrated
about the incident before the police, which was
reduced into writing in the form of the First
Information Report (“F.I.R.”, for short). On the
basis of that F.I.R., Crime No.37 of 1995 came to

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be registered against unknown persons for the
offence punishable under Section 397 of the I.P.C.
The injured family members of the informant i.e.

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father-in-law namely, Prabhakar Rajurkar, brother-

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in-law namely, Raju, husband of the informant
namely, Sanjay and the informant herself were
taken to the Doctor for medical treatment. Since

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Prabhakar Rajurkar succumbed to the injuries
sustained by him, the offence punishable under
Section 396 of the I.P.C. also came to be added.

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4.The investigation followed. The spot
pachnama was prepared. The statements of the
witnesses were recorded. Respondent nos.1 to 4

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came to be arrested on 11.05.1995. The amount of
Rs.29,200/- came to be seized from the house of
respondent no.2 consequent upon the disclosure
statement made by him on 03.06.1995. He gave one

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more disclosure statement on 06.06.1995, on the
basis of which a tin box containing gold ornaments
worth Rs.46,000/- came to be recovered from under

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a drainage. One Vishwambhar Bahiwal had found a

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tin box under a drainage wherein there were gold

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ornaments. He sold out a pair of Zumbers to one

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Rambhau Kukde, who produced the same before the

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police on 09.06.1995. It was transpired from the
statement of Vishwambhar Bahiwal that other gold
ornaments were given by him to respondent no.5.
Therefore, respondent no.5 also came to be
arrested. One Sundar Mundhe, who allegedly was the

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driver of the Trax car, in which the dacoits had

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gone to the house of the informant for committing
dacoity, came to be arrested. Respondent no.4 –

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Bichusingh and the said Sundar Mundhe were
subjected to test identification parade on
07.08.1995. They were identified by the informant,
her husband Sanjay, her brother-in-law Raju and

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the wife of her brother-in-law namely, Kanchan.
Sundar Mundhe offered to confess the guilt and
become an approver. Accordingly, he was produced
before the learned Chief Judicial Magistrate,
Parbhani, who recorded the statement of Sundar
Mundhe as an approver.

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5.Post moretm of the body of Prabhakar

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Rajurkar was conducted by Dr.Kulkarni, who opined
that Prabhakar Rajurkar died due to shock due to
head injury.

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6.After completion of the investigation, it
was found that the respondents and other six
persons committed dacoity and committed murder of
Prabhakar Rajurkar while committing dacoity.
Therefore, the Charge Sheet came to be filed
against the respondents and other six absconding
accused in the Court of the learned Judicial
Magistrate First Class, Sailu on 11.09.1995. Since
the case was exclusively triable by the Court of
Session, the learned Judicial Magistrate First
Class committed it to the Sessions Court for trial
vide order dated 04.10.1996.

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witnesses to bring home guilt of the respondents.

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After evaluating the evidence produced by the

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prosecution, the learned trial Judge found that no

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offence has been established against the
respondents. He, therefore, acquitted them of the
offences punishable under Sections 396 and 397 of

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the I.P.C. as per the impugned judgment and order.
The case of the prosecution is mainly depending on
the following circumstances :-

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1. The evidence of the approver namely, Sundar Mundhe (PW 1).

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2. Recovery/discovery of the stolen articles.

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3. Identification of respondent no.2 in test identification parade.

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THE EVIDENCE OF THE APPROVER NAMELY, SUNDAR MUNDHE (PW 1)

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8. Sundar (PW 1)(Exh.42) claims himself to be

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an accomplice to the offence of committing dacoity
and murder. An accomplice means a guilty associate

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or partner in the crime. He is a person who is

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believed to have participated in the offence. He
must admit that he had conscious hand in commission
of the offence. He should be a person supposed to

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have directly or indirectly concern in or privy to
the offence. Therefore, it will have to be seen,
whether Sundar (PW 1) can be characterised as an
accomplice.

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9.Sundar (PW 1) deposed that he was the

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owner and driver of the Trax car bearing

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registration number MH-21-A-8394. According to him,
respondent no.3 – Ajitsing and the accused
Dharasing had booked the Trax car for going to
attend a marriage ceremony. They had agreed to pay

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him Rs.500/- as the fare. Accordingly, he took his
Trax car to the house of accused no.4 – Bichusing
at Partur. Respondent nos.2 to 4 and other six

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persons boarded into that car. Sundar (PW 1) drove
that car to Sailu, as directed by respondent no.4.

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When the car was at the distance of about 3 kms.

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away from Sailu, accused – Gokulsing asked Sundar
(PW 1) to stop the car by pointing a knife to him.
Accordingly, he stopped the car. He states that
accused – Gokulsing informed that they were going

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for committing theft, asked him not to disclose
that fact to anybody and threatened that otherwise,
he would be finished. Accused – Rupsing and
Gokulsing compelled him to accompany them under the
threat that otherwise, he would be finished. When
he expressed his reluctance, accused – Rupsing beat

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him. Due to the fear of the accused persons, he
accompanied them and went to Babasaheb Mandir at
Sailu. There was a bungalow near that Mandir.
Respondent no.3 – Ajitsing and Rupsing went near

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the gate of that bungalow. Sundar (PW 1) further
states that the accused Gokulsing was standing near
him pointing a knife to him. Rest of the accused

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surrounded the bungalow from all the sides.
Respondent no.3 – Ajitsing and Rupsing entered that

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bungalow by breaking open its collapsible gate. The
accused Gokulsing took him to that collapsible gate
and threatened him to stand near the gate by
pointing the knife to him. Thereafter, the accused
Rupsing pushed the bell of that bungalow, whereon
one old aged woman opened the door from inside.
Then, the accused Rupsing gave two slaps to that
old woman. She started shouting. Thereafter, one
aged person came from inside the house. Respondent
no.3 – Ajitsing and Rupsing entered into the
bungalow and started beating that old man.
Respondent no.3 – Ajitsing demanded keys from that
old man and asked as to where money was kept. When
that old man did not hand over the keys, he was
again beaten. The other inmates of the bungalow
also came and they dashed the head of respondent
no.3 – Ajitsing against the wall of the bungalow.
Respondent no.3 became unconscious and fell on the
ground. Thereafter, accused – Rupsing, Zipusing and
Dharasing entered into that bungalow and started

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beating the inmates of the bungalow. The accused –

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Dharasing gave blow of iron bar on the head of the
old man, who was inside the bungalow. By that time,
respondent no.3 regained consciousness and stood up

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from the place where he was lying. There were 4-5
female members inside the bungalow. Respondent no.3
demanded keys of the underground treasure from
them. One of the female members gave the keys to
respondent no.3. Thereafter, respondent no.3 and
accused – Rupsing opened the room by means of the

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said keys and brought money therefrom. Sundar (PW

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1) further states that he wanted to run away, but
the accused Rupsing and Gokulsing beat him and did
not allow him to run away. He further states that

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he was not ready to go back to Partur but the
accused persons beat him and compelled him to take
all the nine persons back to Partur. He states that
he took the car to the house of respondent no.4,
when all the nine accused persons alighted from the
car and dispersed.

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10.Sundar (PW 1) states that on the next day

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morning, he met the Police Head Constable Guthe and
Constable Kakde in a hotel at Mondha and narrated
them the incident. They took him to the Deputy
Superintendent of Police – Babasaheb More at
Partur. Sundar (PW 1) narrated about the incident
to Dy.S.P. - Babasaheb More also. Dy.S.P. -
Babasaheb More asked to meet him in the Rest house
at Mantha in the evening. Accordingly, he went to
the Rest House at Mantha in the evening and
narrated the entire incident to Dy.S.P. - Babasaheb
More. Dy.S.P. Babasaheb More advised him to go out
of Partur for 20-25 days in order to save himself
from the accused persons. Accordingly, he remained
outside Partur. Thereafter, the accused persons
were arrested. He came back to Partur after about
one and half months and thereafter, he was
arrested.

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11.Sundar (PW 1) states that after about 8
days of his arrest, he was taken to Police Station,

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Sailu, where he narrated the incident in detail
before P.S.I. and C.P.I. He was then produced
before the learned Chief Judicial Magistrate –
Shri. Kamble, who recorded his statement.

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12.From the above evidence of Sundar (PW 1),

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by no stretch of imagination, it can be said that
he willingly participated in commission of the
alleged offence of dacoity. On the contrary, if his
version is accepted as it is, it will be clear that
he, in fact, was the victim and not a perpetrator
of the crime. According to him, the offence was
committed against his wish and that he acted under
the threats of being killed. He cannot be said to
be a co-accused or a person who consciously
participated in commission of the offence with
guilty mind. At the most, he can be characterised
as an eye-witness to the incident of dacoity.

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13.As seen from the evidence of Sundar (PW 1)
after about 8 days of his arrest, he narrated the

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entire incident before the P.S.I. and C.P.I. in

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Police Station, Sailu from where, he was produced
before the learned Chief Judicial Magistrate at
Parbhani, who recorded the statement. He does not

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state that he claimed pardon. There is nothing on
record to show that the learned Chief Judicial
Magistrate followed the procedure laid down in
Section 306 of the Code of Criminal Procedure

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(Cr.P.C.”, for short) for tendering pardon to
Sundar (PW 1). It was incumbent on the part of the

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learned Chief Judicial Magistrate to record
reasons for tendering pardon to Sundar (PW 1), as
mandated under sub-section (3) of Section 306 of
the Code. It was also necessary for him to record,

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whether the tender was or was not accepted by
Sundar (PW 1). The procedure laid down under
Section 306 of the Code has not at all been
followed by the learned Chief Judicial Magistrate.

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In the circumstances, Sundar (PW 1) cannot be
characterised as an approver.

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14.The evidence of Sundar (PW 1) as a witness

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does not at all inspire confidence. Had he narrated

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the incident on the next day morning of the
incident before the Police Head Constable Guthe and

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Police Constable Kakde in the police station
itself, necessary action against the dacoits would
have immediately been initiated by the police. It
is stated by Sundar (PW 1) that he was taken by
them to Dy.S.P. - Babasaheb More at Partur before
whom, also he narrated the incident, but no
cognizance was taken. It is strange to note that an
Officer of the rank of the Deputy Superintendent of
Police would not take any action immediately after
knowing about commission of a seriouis crime and
would advise Sundar (PW 1) to keep himself away

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from Partur for 20-25 days in order to save himself
from the dacoits. Even after knowing from Sundar
(PW 1) that a cognizable offence was committed, no

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Police Officer of the rank of the Deputy
Superintendent of Police would give such an advise.

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No Police Head Constable would ignore the

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information in respect of commission of such a
grave offence. The evidence of Sundar (PW 1) in
this regard is not at all belivable. It follows
that Sundar (PW 1) had not at all disclosed about
any incident to the above-mentioned Police Head
Constable, Police Constable or the Deputy

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Superintendent of Police, as claimed by him. It
further follows that it is only after about one and
half months of the incident, he disclosed about the

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alleged incident for the first time. The delay in

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disclosing the said incident after such a long

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time, without there being any reason, itself
indicates that Sundar (PW 1) was not knowing about

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the incident. It seems that after about one month

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of the incident, since there was no progress in the
investigation and considering unrest and uproar
because of the failure of the police to trace out

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the accused persons, an attempt was made to show
Sundar (PW 1) as an approver to anyhow connect

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somebody with the incident of dacoity. The evidence
of Sundar (PW 1) in respect of the alleged incident
of dacoity is not at all natural and believable.
He is obviously a got up witness. The learned trial
Judge has rightly disbelieved the evidence of this
witness.

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RECOVERY/DISCOVERY OF THE STOLEN ARTICLES

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15.C.P.I. Narhari Thakur (PW 22) (Exh.134)

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states that when respondent no.2 was in the police
custody, he gave statement before two panchas and
offered to produce cash amount from his house.
Accordingly, memorandum (Exh.75) of his statement
was recorded. Respondent no.2 then took the panchas
to his house and produced an iron box wherein an
amount of Rs.29,200/- was kept. The said amount was
seized vide panchnama (Exh.76).

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16.Ramchandra (PW 9) (Exh.74) and Madhavrao
(PW 19) (Exh.112) happened to be the pancha

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witnesses to the memorandum (Exh.75) and the
panchnama (Exh.76). Both of them flatly denied that
respondent no.2 gave any discloser statement before
them as mentioned in panchnama (Exh.75). Their

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evidence is of no use to the prosecution to prove
discovery of Rs.29,200/- from the house of
respondent no.2 pursuant of his alleged discloser
statement. The cash amount does not have any
specific identification marks so that it can be
connected with the cash amount alleged to have been
stolen away from the house of the informant before
about two months of recovery thereof. In the
circumstances, the seizure of the amount of
Rs.29,200/- would be of no help to the prosecution
to connect respondent no.2 with the incident of
dacoity.

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17.C.P.I. Narhari Thakur (PW 22) further

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deposes that on 06.06.1995, when respondent no.2
was in the police custody, he gave a statement vide

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memorandum (Exh.113) and offered to produce a tin

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box from under a drainage near his house. He
further states that respondent no.2 took both the
panchas and himself to his house and took out a tin
box from under a drainage. He states that in that
tin box, there were two gold bangles, two pieces of
gold bangles, two gold lockets, seven pieces of
gold lockets, one pair of gold Zumbers, one small
gold box, 65 gold beads and seven pieces of
necklace, which came to be seized under panchanama
(Exh.114). Madhavrao (PW 19) and one Sudhakar
Padulkar (PW 20) happened to the witnesses to the
memorandum (Exh.113) and seizure panchnama
(Exh.114). They denied that respondent no.2 gave
the statement as mentioned in Memorandum (Exh.113)
and produced the tin box, as mentioned in panchnama
(Exh.114). Thus, their evidence is of no use to the
prosecution.

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18.Here, reference may be made to the
evidence of Vijay (PW 10) (EXh.77), who states that

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one Kachru and himself, being the sweepers, found a

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tin box containing gold ornaments i.e. gold
bangles, gold zumbers, gold beads, broken pieces of
gold chains etc. while cleaning drainage in the
Shikalkari Mohalla area at Partur. They took the
box containing the gold ornaments to respondent
no.5 and kept it with him on receiving Rs.1,300/-
and a pair of gold zumbers from him. They sold out

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the said pair of gold zumbers to Vishwambhar (PW
11). Vishwambhar (PW 11) also states that Vijay (PW
10) and the said Kachru had sold out a pair of gold
Zumbers to him for a consideration of Rs.2,000/-
and that after knowing that the said ornaments were
stolen property, he produced the said Zumbers in
the police station at his own.

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19.From the above evidence, it is clear that

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the tin box containing gold ornaments alleged to
have been stolen and concealed in drainage, was
already taken out by Vijay (PW 10) and Kachru. If

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that be so, the evidence of C.P.I. Narhari Thakur

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(PW 22) that the said tin box was again discovered
at the instance of respondent no.2 cannot at all be
believed. It is clear that the said tin box was

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subsequently planted to make a show of its
discovery at the instance of respondent no.2. In
the circumstances, the recovery of the said tin box
containing gold ornaments cannot be used against
respondent no.2.

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IDENTIFICATION OF RESPONDENT NO.2 IN TEST IDENTIFICATION PARADE

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20.Respondent no.4 and Sundar (PW 1) were
arrested on 11.05.1995. The test identification
parade has been conducted on 07.08.1995. It is the

¶158

case of prosecution that Raju (PW 5) (Exh.59),
Vimalbai (PW 4)(Exh.58), the informant – Rohini (PW
2) (Exh.52) and Kanchan Rajurkar identified
respondent no.4 during the test identification
parade. Moreover, the said witnesses and one Sanjay

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Rajurkar identified Sundar (PW 1) during the test

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identification parade. However, none of these
witnesses had given the features or description of
the dacoits in their statements before police. On

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the contrary, from their evidence, it is clear that
the dacoits had covered their faces with black
clothes and their eyes only were visible. They have
not even given the general features of the dacoits,

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like, having beard, worn turbans, were of any
particular ages etc., so as to connect the suspects
with that description. In the circumstances,
without even disclosing the characteristics or
features of the dacoits, pointing respondent no.4
and Sundar (PW 1) as the persons, who were involved
in the dacoity, cannot at all be believed.

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21.Mohd. Abdul Rashid (PW 14)(Exh.83), the

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Tahsildar,whohadconductedthetest

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identification parade of respondent no.4 and Sundar
(PW 1) in the presence of Abdul Gani (PW 17)

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(Exh.110) and one Deepak Dhapse. Mohd. Abdul Rashid

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(PW 14) states in his cross-examination, that he
was not aware about the rules framed by the High
Court for conducting the test identification
parade, as mentioned in the Criminal Mannual. The
test identification parade panchnamas Exhs.84 to 88
in respect of respondent no.4 contain the names of
the dummies, who were aged about 48 years, 62
years, 55 years, 50 years, 30 years, 27 years and
45 years. Respondent no.4 was aged about 27 years.
Mohd. Abdul Rashid (PW 14) states that he could not
get the persons similar to the age and appearance
of respondent no.4. Abdul Gani (PW 17) specifically
states that respondent no.4 alone had a turban on
his head and none else, at the time of the test
identification parade. In such circumstances, the
identification of respondent no.4 by the abovenamed
witnesses, cannot be attached with any evidentiary
value.

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22.The same is the position in respect of the
test identification parade of Sundar (PW 1). The
panchnamas Exhs.89 to 93 contain the names of the
dummies who were aged about 50 years, 35 years, 50
years, 30 years, 27 years, 55 years, and 45 years.
Sundar (PW 1) was aged about 19 years. The dummies
were not similar in age and appearance as that of
Sundar (PW 1). Moreover, none of the witnesses had
given description of Sundar (PW 1) or the role
played by him at the time of the alleged dacoity.
In the circumstances, the identification of Sundar
(PW 1) also cannot be attached with any evidentiary
value.

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23.The test identification parade was
conducted on 07.08.1995. There is absolutely no
reason assigned by the prosecution for this long
delay in conducting the test identification parade.
Considering the latches on the part of Mohd. Abdul
Rashid (PW 14) in conducting the test

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identification parade and unexplained delay in

¶175

holding the same, in view of the judgment in the
case of Satrughana alias Satrughana Parida and ors.

¶176

Vs. State of Orissa, 1995 Supp(4)SCC 448,
respondent no.4 cannot be connected with the
dacoity in question and cannot be convicted.

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24.As stated above, there is neither direct
nor circumstantial evidence worth believing to
connect the respondents with the above-mentioned
offences. The learned trial Judge has rightly
appreciated the facts of the case and the evidence
on record. He has rightly held the respondents not
guilty of the above-mentioned offences. The
impugned judgment is supported by the evidence on
record. We do not find any reason to interfere in
the findings recorded by the learned trial Judge
and the resultant acquittal of the respondents. The
appeal is devoid of substance. It is liable to be
dismissed.

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25.Hence, the order :-

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The appeal is dismissed.

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[SANGITRAO S. PATIL, J.][S.S. SHINDE, J.]

¶182

kbp

State of Maharashtra v. Rajendrasingh Bhagwansingh Babri and Others

Case brief

What is this about?

What did the court decide?

State of Maharashtra v. Rajendrasingh Bhagwansingh Babri and Others

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What did the court decide?

What the court decided

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