STATE OF MAHARASHTRA Vs. RAMAKANT GOSAVI PATIL

JUDGEMENT

(1.) THE State of Maharashtra, through this appeal has assailed the correctness of an order of acquittal dated 16/5/1988 passed in favour of the respondent. The respondent-accused was charged with having committed offences punishable under sections 392 and 397 of the I. P. C. It was alleged that on 9/5/1988 at about 11:45 a. m. that the complainant Sharma had gone to reserve a ticket for a train journey to Kota at the Western Railway reservation office. Since the tickets were not available a person behind him in the line is alleged to have suggested that he should go to the V. I. P. Counter in the main building where there was a possibility of securing a ticket. The person offered to take Sharma to the Counter and to assist him for which reason Sharma came to the main building in his company. He alleges that while they were on the staircase that person took out a knife, threatened him with it and snatched Rs. 400/- alongwith the reservation form which was in his hand and made good his escape. Sharma states that he was shaken by the incident and after some time when he recovered he looked for the culprit and finally reported the matter to a constable who sent him to be Azad Maidan Police Station from where he was sent to the Railway Police at Bombay Central. It is further alleged that the Police on suspicion arrested the accused at Elphinstane Road Railway Station on 12. 5. 1986 suspecting him to be a pick-pocket. While in custody he was interrogated and is alleged to have made a statement on 22-5-1986 persuant to which the police went with him to a hut at Garodianagar at Ghatkopar where he is alleged to have opened the hut and taken out a steel trunk, a knife, a reservation form and cash of Rs. 300/ -. On completion of the investigation, the accused was charge-sheeted and put on trial. The learned Additional Sessions Judge, Greater Bombay, after evaluating the material placed before him held that even though there was sufficient evidence to indicate that the incident which had been complained of had in fact taken place that the evidence in respect of the identification was unsatisfactory for the purposes of establishing the charge against the accused and the accused was given I benefit of doubt and acquitted. The State of Maharashtra has preferred this appeal whereby the order of acquittal has been called into question.

(2.) MR. Bagwe, the learned A. P. P. appearing in support of the appeal has submitted that the complainant Sharma in this case is a physicist attached to the B. A. R. C. He is a person of some status and there is no reason why the Court should discard his evidence Mr. Bagwe did conceded that the complainant was rather unsure on the question of identifying the accused the reason given by him was two fold; firstly that more than two years have elapsed since the incident and secondly that he had not registered any special distinguishing mark as far as the assailant was concerned. He has however stated in his evidence that he concludes that the accused who is before the Court is the-very person who had threatened him principally because the reservation form in his handwriting and the currency as also the knife had been recovered at the instance of the accused. He was also unable to identify the knife which was shown to him in the course of the trial. It is Mr. Bagwes contention that even if the complainant was in conclusive with regard to the identification, that the evidence in respect of the recovery particularly of the reservation form is strong enough to completely corroborate this evidence and in that view of the matter that the order of acquittal was improper. On the second head of evidence relating to the recovery of the items, we have the evidence of the panch P. W. 2 Mushtaq Ahmed as also the evidence of P. S. I. Gosawi. It is their case that the accused made a statement pursuant to which he led them to certain premises from where certain recoveries were made. Mr. Bagwe submitted that even if the police had arrested the accused in connection with some other offence in the course of the investigation, the police came to know that he was also involved in this incident On his making the statement in question them criminating material particularly the reservation form which was in the hand-writing of the complainant was recovered. He states that this particular recovery is a direct link between the accused and the incident and coupled with the fact that the knife and some currency were recovered that it would be impossible to argue that the accused was not connected with incident of 9/5/1986.

(3.) AS against this position, Mr. Mane, learned Counsel appearing on behalf of the respondent has pointed out to us that the learned Trial Judge has rightly discarded this entire head of evidence, because of a certain legal infinity. Though it is permissible to introduce in evidence that much statement of the accused leading to a discovery, in the present case, the police have followed a faulty procedure namely that they had taken down in form of a memorandum the virtual confession and the trial Court has unfortunately allowed this document to be introduced in evidence. Such confession in evidence cannot even be looked at by a Criminal Court admittedly the accused was, custody and. the statement was made by him to a Police Officer. If it is to be used to a limited extent under section 27, the procedure prescribed is that it will have to be a statement made in the presence of independent witnesses. Admittedly no panchnama was drawn and, therefore, the memorandum recording the statement is something that we refuse to even look at. It is pursuant to this memorandum that the accused is alleged to have led the police and the witnesses to Ghatkopar where the discoveries were made. With regard to this aspect of the matter, it needs to be pointed out that the identity of the currency notes cannot he fastened as being the very same ones which were involved in the incident. The complainant has not tried to even say so. As far as the knife is concerned, even though it would have been open to the complainant to state that the same or similar knife was used, he is truthful enough to admit that he is not in a position to identify the same. The tale-tell circumstance that remains is in relation to the reservation form in the handwriting of the complainant. It is true that the complainant in his evidence has admitted that the form produced by the prosecution namely the one recovered at the instance of the accused is the very same one which was snatched from him and has denied the suggestion that he had filled in such a form at the instance of the police, and handed it over to them. What is disturbing as far as this document is concerned, is the fact that assuming that the object of the activity was in order to get at the money which the complainant had with him, the reservation form was a worthless document and even if it happened to be snatched along with the currency, there is no ostensible reason why the accused would retain that form and hold on to it, because it was absolutely valueless to him. Under these circumstances, we are of the view that the findings of the learned Trial Judge wherein he has conclusively held that the evidence in respect of the discovery of the three items is not strong enough to form the basis of the conviction, will have to be sustained. If this head of evidence is itself of such a weak nature, then it only follows that the evidence of the complainant which in itself is inconclusive cannot be supported by the evidence of this type. We are unable 19 uphold the sublilissions canvassed by the learned A. P. P that even if one set of evidence is relatively weak and the other set of evidence falls in the same category, that the two of them put together could be good enough to sustain a conviction.