STATE OF MAHARASHTRA Vs. KIRHOR DAULAT SHIRKE

JUDGEMENT

(1.) THIS is an appeal against an acquittal filed by the State of Maharashtra impugning the judgment and order dated 15-10-1985 passed by the Additional Sessions Judge, Greater Bombay, acquitting the respondent Nos. 1 and 2 (original accused Nos. 1 and 2) from the charge of the offences punishable under section 367 read with 109, 394 and 392 read with 397 of the Indian Penal Code.

(2.) THE facts of the prosecution case as brought on record through the evidence of the first informant Shrikirshnaraj (P. W. 1) are as follows : a) A Government of India undertaking by name Film Manufacturing Company Limited is situated at Dr. Anne Besant Road, Worli, Bombay. P. W. 1 Shrikrishnaraj was working as a Cashier in the said company. The said company had a bank account with the State Bank of India, Worli Branch. It was the duty of the said Cashier to go to the said bank every day for depositing the cash and cheques received by the said company. (b) On 16-5-1984 at about 12. 05 p. m. P. W. 1 Shrikirshnaraj was going to the said Bank accompanied with a peon. Mr. Pandurang Sawant (Prosecution Witness No. 2 ). They boarded a taxi in front of their office and asked the taxi driver to take them to Band Box side where their bank was situated. The taxi driver did so accordingly. However, when he reached near Buddha Mandir which way on the way, he stopped the taxi and allowed accused No. 1 and 2 to get inside the taxi. Accused No. 1 sat in the front by the side of taxi driver and accused No. 2 sat in the rear next to P. W. 1 Shrikrishnaraj. P. W. 1 protested to the taxi driver and asked him as to why he had allowed the strangers to board the taxi. The reply given by the taxi driver was that the two accused were his friends and they also wanted to get down at Band Box. A little further, down the road, instead of taking a right turn leading to the Bank, the taxi driver took a turn on the left. At this, both Shrikirhsnaraj and Pandurang got frightened and they started shouting Chor Chor. To prevent such cries, accused No. 2 gagged P. W. 1 Shrikrishnaraj with a cloth. Accused No. 1 took out a sword from a cloth bag which he was carrying and pointed the same towards Shrikirhsnaraj and asked him to hand over the brief case. Shrikrishnaraj caught hold of the sword to protect himself and according to him, he received bleeding injury on his right hand palm at two places, i. e. in between thumb and index finger and below the little finger. Accused No. 2 gave a fist blow to Shrikrishnaraj. In view of this struggle within the taxi, the taxi driver proceeded in a zig-zag motion towards Worli Diary. The struggle inside the taxi continued and, at one stage Shrikirhsnaraj managed to snatch the sword from the hands of accused No. 1. In doing so, he fell on the ground, out of the taxi and received an injury on his right hand elbow. Pandurang Sawant also got down from the taxi without the brief case. The brief case was left in the taxi by Pandurang. In the meanwhile, accused Nos. 1 and 2 and the driver drove away the taxi alongwith the brief case. Shrikrishnaraj was left, standing on the road carrying the sword, which he had snatched from accused No. 1 and he alongwith Sawant and some members of the public ran in the direction in which the taxi had gone. In the meanwhile, the taxi had stopped near the garden by name Shastri Garden where the taxi driver and the two accused got down and started fleeing. Shrikrishnaraj saw the taxi driver carrying the brief case. According to Shrikrishnaraj, he and some members of the public were able to catch hold of accused No. 2. He saw one Police Constable running alongwith some members of public towards Podar Hospital and, therefore, he went towards Podar hospital. There he saw accused No. 1, who was caught hold by Police Constable. Therefrom, accused Nos. 1 and 2 were first taken by Shrikrishnaraj to his office accompanied by a Police Constable, where Shrikrishnaraj conveyed the incident to his Manager. Thereafter Shrikrishnaraj was taken to the hospital of Dr. Masand, which is situated near his office. According to Shrikrishnaraj, he had sustained an injury on his nose, right hand and left palm. After treatment by the Doctor, Shrikrishnaraj came back to his office, where he saw the police wireless van accused Nos. 1 and 2, Shrikrishnaraj, Pandurang, Manager of the company and the Police Constable were taken in a police wireless van to the Police Station, where Shrikrishnaraj lodged complaint, which was treated as the First Information Report in the case. The Crime at C. R. No. 335 of 1984 was registered by the Worli Police Station and Sub-Inspector Sagare, attached to said Police Station proceeded with the investigation of the crime. (c) Shrikrishnaraj and Pandurang were first sent to Podar hospital, after they were brought from there, a panchanama of the scene of offence was prepared with the help of panchas, indicating the place from where Shrikrishnaraj fell out of the taxi and the place where the taxi was abandoned. The taxi was searched, some documents were taken charge of and some on the spot measurements were done under the panchanama at Exh. 34. Thereafter, P. S. I. Sagare recorded the statement of Mr. Sawant and Police Naik Magar. Witnesses were then sent to modus operandi bureau for identification of photographs of the absconding taxi driver. On the same day, Investigating Officer recorded the statement of P. S. I. S. D. Tawade, who was attached to the Police Wireless Van and who had prepared a panchanama in respect of the briefcase found in one of the lavatory under construction. P. S. I. Tawade produced the panchanama and the muddemal articles attached thereunder before the Investigating Officer. In the meanwhile, the accused who had been sent to Podar hospital had been admitted in the hospital as indoor patients and were found to be having some injuries, which according to the prosecution were caused when they were manhandled by the public. Accused No. 1 was discharged from the hospital on 19-5-1984 whereas the accused No. 2 was discharged on 21-5-1984. (d) On 17-5-1984 Investigation of the crime was handed over to S. I. Surve. On 18-5-1984 S. I. Surve with two panchas again took search of the taxi bearing No. M. R. T. 305, which was stationary on the road. It is alleged that one sword which was wrapped in paper was seen lying in front of the said taxi and therefore seized under a panchanama (Exhibit 36 ). (e) It is alleged that the finger print expert by name A. H. Hegiste was able to trace seven chance prints on the taxi, namely two on dash board, three on left rear door glass and two on the right rear door glass. It was alleged that the number of the taxi which was shown as M. R. K. 305 was not genuine and that the real number of the said taxi was M. R. O. 5946 and in view of this fact, the statement of the owner-cum-driver of the taxi was recorded. The clothes of the accused persons were also seized and they were sent to the Chemical Analyser for report. Chemical Analysers report was received in due course. The opinion of the finger print expert was also received and that on 14-9-1984, the charge-sheet came to be filed against the accused before the learned Metropolitan Magistrate, 7th Court Dadar and since the offence was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, by his order dated 15-10-1984 committed the accused to the Court of Sessions. (f) In the Court of Sessions, Charge came to be framed against accused at Exh. 1 and accused pleaded not guilty to the charge.

(3.) DURING the course of trial, the prosecution has attempted to prove its case by examining 20 witnesses and by producing numerous document. Statements of the accused under section 313 of the Code of Criminal Procedure came to be recorded. However, ultimately, after considering all the material on record, by his judgment and order dated 15-10-1985, the learned Additional Sessions Judge, Greater Bombay was pleased to acquit all the accused of the offences charged against them in Sessions Case No. 627 of 1984.