Dismissed

Viru @ Virendra S/O Ramkrishna Hingve v. the State of Mah Thr Pso Butibori

Bombay HC2 Apr 2024APEAL/60/2009

Case brief

AI extract

What is this about?

Appeals against conviction for robbery under Sections 394/34 IPC based on dock identification without test identification parade and recovery of the complainant's motorcycle and gold ornaments at the accused's instance. Court held court identification is substantive evidence and Investigating Officer's recovery evidence suffices; appeals dismissed.

What the court decided

AI extract

Viru @ Virendra S/O Ramkrishna Hingve Vs the State of… — Cheating and Forgery | Bombay HC (2024)

¶1

2024:BHC-NAG:3844

¶2

203 apeals60 & 180.09

¶3

Judgment

¶4

¶5

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

¶6

CRIMINAL APPEAL NO.60 OF 2009 WITH CRIMINAL APPEAL NO.180 OF 2009

¶7

CRIMINAL APPEAL NO.60 OF 2009

¶8

Viru @ Virendra s/o Ramkrishna
Hingve, aged about 25 years,
occupation : private job, r/o Swawlambi
Nagar, Dupare Layout, Nagpur. ….. Appellant.

¶9

:: V E R S U S ::

¶10

The State of Maharashtra,
through the PSO Butibori,
Nagpur. ….. Respondent.
===================================
Shri M.B.Agasti & Shri V.W.Meshram, Counsel for the Appellant.
Shri A.B.Badar, Additional Public Prosecutor for the State.

¶11

===================================

¶12

CRIMINAL APPEAL NO.180 OF 2009

¶13

Amar s/o Saktyanarayan Suryawanshi,
aged about 27 years, occupation : private,
r/o Chandan Nagar, Piple Lay-out,
district Nagpur.

¶14

:: V E R S U S ::

¶15

State of Maharashtra,
through PSO Butibori,
district Nagpur. ….. Respondent.
===================================
Shri Shyam Jaiswal, Counsel appointed for the Appellant.
Shri A.B.Badar, Additional Public Prosecutor for the State.

¶16

===================================

¶17

CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 12/03/2024
PRONOUNCED ON : 02/04/2024

.....2/-

Judgment

203 apeals60 & 180.09

¶22

COMMON JUDGMENT

¶23

1. By these appeals, appellants (the accused persons) have
challenged judgment and order of sentence and conviction dated
21.1.2009 passed by learned Ad hoc Additional Sessions Judge-

¶24

5, Nagpur (learned Judge of the trial court) in Sessions Trial
Nos.515/2007 and 27/2008.

¶25

2. By the said judgment impugned, learned Judge of the
trial court convicted the accused persons for offences punishable
under Section 394 read with Section 34 of the Indian Penal Code
and sentenced them to suffer rigorous imprisonment for four
years and to pay fine Rs.1000/- by each of them, in default, to
suffer further rigorous imprisonment for six months.

¶26

3. Brief facts of the prosecution case run as under:

¶27

On the date of incident i.e. 15.7.2005, Arvind Rajmalwar
(complainant), after attending a religious function, was
returning back with his wife on motorcycle bearing
No.MH-32/F/2644 from Nagpur-Wardha Highway. When he
reached near Kamalkunj Farmhouse, rain started and, therefore,

¶28

.....3/-

¶29

Judgment

¶30

203 apeals60 & 180.09

¶31

¶32

he parked his motorcycle near gate of Kamalkunj Farmhouse and
took a shelter under the said Farmhouse and was sitting along
with his wife on steps. When they were sitting on steps, at
about 5:30 pm, the accused persons along with other two co-
accused came there armed with sharp edged weapons like knife
and gupti. Two accused caught hold him and caused hurt and
also robbed Rs.500/- in cash and stolen his motorcycle. At the
relevant time, one of the accused persons, by pointing out a
sharp edged weapon, demanded money, gold ear rings, and
mangalsutra from his wife Anita. On protest by his wife, the
accused persons caused hurt to her and robbed her by obtaining
her ornaments and cash Rs.400/-. She sustained bleeding injury
and the accused persons fled away from the spot.

¶33

4. The complainant succeeded to stop a vehicle and
approached Butibori Police Station and lodged a report about
the incident. On the basis of the said report, police registered
the crime vide Crime No.114/2005 under Sections 394 read
with 34 of the Indian Penal Code.

¶34

.....4/-

¶35

Judgment

¶36

203 apeals60 & 180.09

¶37

¶38

5. After registration of the crime, wheels of investigation
started rotating. During course of investigation, the
investigating officer seized the motorcycle of the complainant
from present accused Virendra. Present accused Virendra
disclosed that he sold ornaments to Vishal Parkhe (original
accused No.3). Accordingly, recovery panchanama was drawn.
On the basis of the investigation carried out, chargesheet was
filed against the accused persons along with other co-accused
persons.

¶39

6. After framing charge (Exhibit-8), the prosecution

¶40

examined in all five witnesses, as follows:

¶41

1. Arvind Nanaji Rajmalwar vide Exhibit-26 (PW1), the complainant;

¶42

2. Anita Arvind Rajmalwar vide Exhibit-28 (PW2);

¶43

3. Haribhau s/o Ramaji Raut vide Exhibit-30 (PW3), pancha on spot panchanama;

¶44

4. Namdeo Bapurao Dongre vide Exhibit-38 (PW4), Investigating Officer, and

¶45

5. Uttam s/o Vithalrao Dakhore vide Exhibit-51 (PW5),
Investigating Officer.

.....5/-

Judgment

203 apeals60 & 180.09

¶50

7. Besides the oral evidence, the prosecution placed reliance
on report Exhibit-27, spot panchanama Exhibit-31, medical
certificate of injured Exhibits-32 and 33, First Information
Report Exhibit-39, recovery panchanama Exhibit-53, seizure
memo Exhibit-54, seizure of motorcycle Exhibit-55, arrest
panchanama Exhibits-56 and 57.

¶51

8. On the basis of the oral as well as documentary evidence, learned Judge of the trial court held the accused persons guilty and sentenced them as the aforesaid.

¶52

9. Heard learned counsel Shri M.B.Agasti for accused
Virendra; learned counsel Shri Shyam Jaiswal appointed for
accused Amar Suryawanshi, and learned Additional Public
Prosecutor Shri A.B.Badar for the State.

¶53

10. Learned counsel Shri Shyam Jaiswal, submitted that no
identification parade was held to ascertain involvement of the
accused in the alleged crime. The First Information Report is
against unknown persons. Witnesses have admitted that the
accused persons are identified by them on say of police. As the

.....6/-

Judgment

203 apeals60 & 180.09

¶58

accused persons were unknown, their identifications were
required. Insofar as recovery part is concerned, pancha on spot
PW3 Haribhau Raut has not supported the prosecution case.
The medical officer is not examined to prove medical
certificates. Thus, the entire prosecution is not sufficient to
warrant the conviction against the accused persons.

¶59

11. Learned counsel Shri M.B.Agasti, submitted that there
was no identification of gold ornaments. Thus, nexus as to the
involvement of the accused persons is not established. Thus,
there is absolutely no evidence to connect the accused persons
with the alleged offence.

¶60

12. Per contra, learned Additional Public Prosecutor for the
State submitted that recoveries of the vehicle, owned by
complainant PW1 Arvind Rajmalwar, from accused Virendra, and
gold ornaments at his instance, sufficiently show involvement of
the accused persons in the alleged offence. The evidence of the
Investigating Officer shows that accused Virendra was arrested
when he was proceeding on the motorcycle. During
investigation, it further revealed that he had changed original

¶61

.....7/-

¶62

203 apeals60 & 180.09

¶63

¶64

Judgment

¶65

registration number of the vehicle and affixed a number plate of
a new number to the vehicle of the complainant. Recovery
panchanamas are proved by the prosecution on the basis of the
evidence of the Investigating Officer. The defence admitted
contents of injury certificate which sufficiently proves that
complainant PW1 Arvind Rajmalwar and his wife PW2 Anita
Rajmalwar have sustained injuries in the alleged incident. They
both identified the accused persons before the court. The
identification before the court is a substantial evidence. As such,
no interference is called for and appeals deserve to be dismissed.

¶66

13. Perusal of the evidence of complainant PW1

¶67

14. Perusal of the evidence of complainant PW1 Arvind
Rajmalwar shows that he narrated the incident took place on
15.7.2005 which shows that on the day of the incident, due to

¶68

rain, he took a shelter along with his wife in Kamalkunj
Farmhouse. At the relevant time, four unknown persons
approached and robbed them. They snatched amount Rs.900/-
and also snatched gold ear rings of 4 grams and mangalsutra of

¶69

6 grams. Immediately, after the incident, they approached the

¶70

.....8/-

¶71

Judgment

¶72

203 apeals60 & 180.09

¶73

¶74

police and lodged the report. The evidence further shows that
he and his wife were treated for their injuries. During cross
examination, he admitted that when he went in the police
station, the police told them that these are accused persons.
Except this admission, no effective cross examination is carried
out.

¶75

15. The evidence of PW2 Anita Rajmalwar, the wife of the
complainant, is also on similar lines. She also stated the entire
incident and identified the accused persons before the court. As
per her evidence, when they were siting in Kamalkunj
Farmhouse to protect themselves from rain, three persons came
there covering their faces and assaulted and caught hold them
and snatched gold ornaments and cash amount from them.
Though she is cross examined, nothing incriminating came on
record.

¶76

16. Insofar as the spot panchanama and seizure of clothes
are concerned, pancha on spot PW3 Haribhau Raut has not
supported the prosecution case. The spot panchanama is proved
through the evidence of Investigating Officer PW5 Uttam

.....9/-

Judgment

203 apeals60 & 180.09

¶81

Dakhore, who testified that he immediately visited the spot of
the incident along with panchas and drawn spot panchanama, as
per situation. There were broken pieces of bangles on the spot
which he has seized. He also observed dried blood stains at
several places on flooring. He collected said blood stains also
and drawn panchanama. His evidence further shows that during
the investigation, present accused Virendra was arrested and on
26.8.2005 he recorded memorandum statement of accused
Virendra from which it revealed to him that gold ornaments are
sold to Parve Jewellers. He led them to Parve Jewellers. The
owner of the Parve Jewellers, viz. Vishal Parve, was arraigned
as an accused and from him gold weighing 6.217 grams was
seized. Accordingly, panchanama was drawn which is at Exhibit-
53. On 25.8.2005, from present accused Virendra, he has seized
motorcycle owned by the complainant. During the investigation,
it revealed to him that the motorcycle, seized originally having
registration No.MH-32/F/2644, was scored by him and affixed a
new number as MH-31/AX/5768. Accordingly, seizure
panchanama was drawn which is at Exhibit-55.

¶82

.....10/-

¶83

Judgment

¶84

203 apeals60 & 180.09

¶85

¶86

17. Thus, the evidence of the Investigating Officer shows that

¶87

gold ornaments and the motorcycle of the complainant were
seized at the instance of present accused Virendra.

¶88

18. As regards possession of the motorcycle of the
complainant, no explanation is put forth by the accused.
Though the defence counsel has cross examined the
Investigating Officer, nothing incriminating came on record.

¶89

19. Thus, the prosecution mainly relied upon two
circumstances i.e. seizure of the motorcycle of complainant PW1
Arvind Rajmalwar at the instance of present accused Virendra
and seizure of gold ornaments on the basis of memorandum
statement of accused Virendra.

¶90

20. Learned counsel Shri Shyam Jaiswal, vehemently
submitted that test identification parade is not held, which was
required. In absence of the test identification parade, the
evidence of the prosecution witnesses cannot be accepted.

¶91

21. In support of his contentions, learned counsel Shri
Shyam Jaiswal placed reliance on the decision of the Honourable

.....11/-

Judgment

203 apeals60 & 180.09

¶96

Apex Court in the case of Mukesh Singh vs. The State (NCT of
Delhi)1 wherein it is held that test identification parade is a part
of investigation and investigation of the case is to be conducted
by investigating agency. It is further held that purpose of
conducting a test identification parade is that persons who claim
to have seen offender at the time of occurrence identify them
from amongst other individuals without tutoring or aid from any
source. An identification parade, in other words, tests memory of
witnesses, in order for the prosecution to determine whether any
or all of them can be cited as eyewitness to the crime.

¶97

He further placed reliance on the decision of the Madhya
Pradesh High Court in the case of Santosh s/o Keshar Singh and
anr vs. State of M.P.2wherein it is held dock identification of
accused is not sufficient for holding them guilty.

¶98

He further placed reliance on the decision of the
Honourable Apex Court in the case of Rameshwar Singh vs.
State of J&K3wherein it is held that evidence relating to
identification of accused – necessity of - as accused person, not

¶99

1 2023 AIR (SC) 4097

¶100

2 2004(1) RCR (Criminal) 267

¶101

3 1972 AIR (SC) 102

.....12/-

Judgment

203 apeals60 & 180.09

¶106

known previous to occurrence occurrence, to such witness,
identifying accused at the trial - identification by such witness
soon after accused’s arrests is of vital importance, in the interest
of justice and fair play, both to the accused and to the
prosecution.

¶107

22. Learned Additional Public Prosecutor for the State
submitted that holding test identification parade is not rule of
law, but rule of prudence. Identification of accused by victim
first time in the court is admissible.

¶108

23. In support of his submissions, learned Additional Public
Prosecutor for the State placed reliance on the decision of the
Honourable Apex Court in the case of S. vs. Sunil Kumar and
anr4 wherein it is held that test identification parade is not rule
of law, but rule of prudence. Identification of accused by victim
for the first time in court is credible wherein nature of offence
that took place in broad day light, affording to prosecutrix
sufficient time to imprint upon her mind, identity of offender.

4 (2015)8 SCC 478

.....13/-

Judgment

203 apeals60 & 180.09

¶114

24. Thus, it is submitted that in absence of test identification

¶115

parade of accused in the court is not sufficient to hold accused
guilty. There is no dispute that complainant PW1 Arvind
Rajmalwar has admitted that police called him in the police
station and shown the accused persons. It is also a fact that no
test identification parade was held during the investigation. The
evidence shows that as there was raining, test identification
parade and PW2 Anita, wife of the complainant, halted under a
shelter of Kamalkunj Farmhouse and it was about 5:30 pm.
Thus, the alleged incident has not taken place in the dark, but it
was taken place in the evening at 5:30 pm when sufficient light
is available and an opportunity was with the witnesses to see
assailants.

¶116

25. It is settled position of law that identification of accused
before the court by witnesses is a substantive piece of evidence.
While identification during test identification parade is only a
corroborative piece of evidence. If witness identifies accused
before court, it provides necessary corroboration to testimony
of witnesses.

.....14/-

Judgment

203 apeals60 & 180.09

¶121

26. Here, it is not case of the defence that before their
depositions the accused persons were shown to witnesses by the
police. The cross examination shows that it was put to
complainant PW1 Arvind Rajmalwar that after the incident, the
accused persons were shown to them in the police station. Th
depositions of witnesses were recorded on 1.8.2008. Whereas
the alleged incident has taken place on 15.7.2005. Thus, the
accused persons are identified by witnesses after three years of
the incident. The purpose of holding test identification parade is
to ascertain whether investigation is carried out in a proper
manner or not. Merely because test identification parade is not
held, it is not sufficient to discard the evidence of the
prosecution witnesses when it is corroborated by other
circumstantial evidence.

¶122

27. The other circumstance, on which the prosecution relied
upon, is, seizure of the motorcycle owned by complainant PW1
Arvind Rajmalwar from the possession of accused Virendra.

¶123

The evidence of complainant PW1 Arvind Rajmalwar

¶124

shows that on the day of the incident, he was proceeding on the

.....15/-

Judgment

203 apeals60 & 180.09

¶129

motorcycle and rain started and, therefore, he parked his
motorcycle and took a shelter in Kamalkunj Farmhouse wherein
the alleged incident took place. His motorcycle was also taken
by the accused. During the investigation, it revealed that the
police were searching the accused persons and in night of
23.8.2005, the Nagpur Crime Branch, during the course of
patrolling, caught accused Virendra and accused Deepak who
were proceeding on the motorcycle. After seeing them, they
started running and the police apprehended them. During the
investigation, it revealed that the motorcycle on which the
accused persons were proceeding was of the complainant. They
seized the motorcycle and also gold ornaments were seized at
the instance of accused No.3 Vishal by effecting recovery
panchanama. As far as this evidence of the Investigating Officer,
regarding recovery of the motorcycle and gold ornaments, is
concerned, the said evidence is not shattered during cross
examination of the Investigating Officer. In fact, the
Investigating Officer is not cross examined on that aspect. It is
submitted by learned counsel for the accused persons that
pancha witnesses are not examined and panchanamas as to

.....16/-

Judgment

203 apeals60 & 180.09

¶134

recovery are not proved. As far as legal position is concerned,
the evidence of the Investigating Officer for proving recovery can
be considered in the light of wise presumption of law in view of
Section 114 of the Evidence Act. This position of law on this
aspect is aptly summarized by the Honourable Apex Court in the

¶135

case of Rameshbhai Mohanbhai Koli vs. State of Gujarath5

¶136

wherein it is observed in para Nos.23, 24, and 25, as under:

¶137

“23. An argument was advanced about reliance
based on the evidence of investigating officer. This
Court in State of U.P. vs. Krishna Gopal and
another, (1988) 4 SCC 302 has held that courts of
law have to judge the evidence before them by
applying the well recognized test of basic human
probabilities. Prima facie, public servants must be
presumed to act honestly and conscientiously and
their evidence has to be assessed on its intrinsic
worth and cannot be discarded merely on the
ground that being public servants they are
interested in the success of their case. [vide State
of Kerala vs. M.M.Mathew & Anr., (1978) 4 SCC
65)].

¶138

24. In Modan Singh vs. State of Rajasthan, (1978)
4 SCC 435, it was observed that where the
evidence of the investigating officer who recovered
the material objects is convincing, the evidence as
to recovery need not be rejected on the ground that
seizure witnesses did not support the prosecution
version. Similar view was expressed in Mohd.Aslam
vs. State of Maharashtra, (2001) 9 SCC 362. In

¶139

5 2010 ALL MR (Cri) 3868 (S.C.)

¶140

.....17/-

¶141

Judgment

¶142

203 apeals60 & 180.09

¶143

¶144

Anter Singh vs. State of Rajasthan, (2004) 10 SCC
657, it was further held that even if panch
witnesses turn hostile, which happens very often in
criminal cases, the evidence of the person who
effected the recovery would not stand vitiated.

¶145

25. This Court has held in large number of cases
that merely because the panch-witnesses have
turned hostile is no ground to reject the evidence if
the same is based on the testimony of the
Investigating Officer alone. In the instant case, it is
not the case of defence that the testimony of
Investigating Officer suffer from any infirmity or
doubt. [Vide Modan Singh's case (supra), Krishna
Gopal’s case (supra) and Anter Singh's case
(supra)].”

¶146

It is thus clear that the evidence as to the recovery need not be rejected on the ground that the prosecution witnesses need not support the prosecution version. Even, the evidence of the Investigating Officer can be considered for proving recovery as official acts are regularly done is wise presumption of law recognized by the legislature as seen from provisions of Section 114 of the Evidence Act.

¶147

Now, a question falls for consideration is, whether the

¶148

judgment impugned calls for any interference.

¶149

.....18/-

¶150

Judgment

¶151

203 apeals60 & 180.09

¶152

¶153

Learned Judge of the trial court while passing the judgment impugned considered the evidence of recovery and observed that the evidence as to the recovery is not shattered during the cross examination and no probable explanation is put forth by the accused persons as to the said recovery. It is also transpired from the evidence that accused Virendra made altercation in the original registration number of the motorcycle of complainant PW1 Arvind Rajmalwar and the said motorcycle was seized from his possession. The gold ornaments are also seized at his instance and by taking help of Section 114 of the Indian Evidence Act, presumption is attracted and learned Judge of the trial court convicted the accused persons rightly.

¶154

In the light of the discussion above, I do not find any error of law committed by learned Judge of the trial court while holding the accused persons guilty. The circumstances discussed above are sufficient to connect the accused persons with the alleged offence. The accused persons are further identified by both witnesses before the court below which a is substantial evidence.

¶155

.....19/-

¶156

203 apeals60 & 180.09

¶157

¶158

Judgment

¶159

In this view of the matter, as no ground is made out to interfere with the judgment impugned and findings of learned Judge of the trial court, both appeals are devoid of merits and liable to be dismissed and the appeals are dismissed .

¶160

Appeals stand disposed of .

¶161

Fees of learned counsel Shri Shyam Jaiswal appointed for accused Amar Suryawanshi are quantified and the same be paid to him as per Rules.

¶162

 (URMILA JOSHI-PHALKE, J.)

¶163

!! BrWankhede !!

¶164

...../-

Viru @ Virendra S/O Ramkrishna Hingve v. the State of Mah Thr Pso Butibori

Case brief

What is this about?

What the court decided

Viru @ Virendra S/O Ramkrishna Hingve v. the State of Mah Thr Pso Butibori

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ajay @ Daud S/O. Bharat Arjunkar Vs the State of Mah. Thr. Pso, Ps Padoli, Tq. and Dist. Chandrapur.

Arjun Sahebrao Jadhao Vs State of Mah. Thr. Its Pso, Ps, Umarkhed Tah. Umarkhed Dist. Yavatmal and Another.

Manoj S/O. Jaisingh Hiranwar Vs State of Mah. Thr. Pso, Ps Ambazari, Nagpur

Shivam S/O. Gunavantrao Kakde Vs State of Mah. Thr. Os, Parshivni, Ps Parshivni, Saoner Road, Nagpur and Another

Gunaram S/O. Shravanji Bondre Vs State of Mah. Thr. Its Pi Ps Kalamna, Dist. Nagpur.

Chandrakant S/O. Bhaiyyaji Rakhunde Vs State of Mah. Thr. Pso, Ps Ranapratap Nagar, Nagpur and Another.