AMIT DATTATRAYA DIGHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Criminal Appeal No. 196/2007 has been filed by Amit Dattatraya Dighe who was the original accused no.1 in Sessions Case No. 8 of 2005. CRIMINAL Appeal No. 116/2007 has been filed by Kumar @ Sujit Menath Devkule who was original accused no.4 in the same sessions case. Since both these appeals impugn the same judgment and order passed by the Adhoc Additional Sessions Judge, Satara, on 27-12-2006 in Sessions Case No. 8/2005, the same are being disposed off by this common judgment and order. By the impugned judgment and order, both the aforesaid appellants have been convicted for committing an offence punishable under Section395 of Indian Penal Code and have been sentenced to undergo RI for five years each and to pay a fine of Rs. 2,000/- each, in default of payment of fine, to undergo further RI for six months. Three other accused i. e. original accused no.2 Umesh Eknath Kadam, original accused no.5 Amol Vishwas Ohol @ Amol Ramesh Kadam and original accused no.6 Brijendra Anik Yadav were also convicted alongwith appellants. Accused No. 3 Mahadeo Vitthal Divate was however, acquitted by the trial Court. All the accused were given benefit of set off and the cash amount which was recovered is directed to be returned to the Maloji Raje Sahakari Griha Taran Sanstha Ltd. , Phaltan.

(2.) The brief facts of the case were as under : - (a)On 8-10-2004 PW-1 Rajendra Tilekar was serving as a cashier in Maloji-Raje bank situated in Phaltan town. Satish Ramchandra Mulik was a peon. He was also working in the said bank. Amongst the duties entrusted to PW-1 Rajendra Tilekar, was to credit the collections of the bank for a day with the Phaltan Urban Co-operative bank. Accordingly, on8-10-2004 after the transactions for a day were completed by about3. 00 P. M. , Rajendra counted monies and found that amount of Rs. 2,25,950/- was the balance lying with him. He filled in slip of the Phaltan Urban Bank and put the aforesaid cash amount in a black regzine bag. He and PW-12 Satish Mulik then took the motor cycle of the manager and started driving the same, alongwith cash, towards Phaltan Urban bank. THE peon Satish was driving the motor cycle and Ravindra was sitting on the pillion. THE cash bag was put in between them. (b)When this duo reached to the bungalow of the Nagar-sevak Dilip Bhosale, one indica car of silver colour came from the rear side and dashed against them. Ravindra and satish fell down. THEy saw 3 persons get down from the car. One of them i. e. accused no.1 threw chilly powder in the eyes of the peon Mulik, the 2nd person i. e. accused no.5 gave a stick blow on the hand of Ravindra and snatched the bag containing the money. Ravindra raised a hue & cry and therefore, these persons boarded the car and car sped away towards the temple of Poplekar Maharaj. Though Ravindra could not read the registration number of the car, he could recollect that it started with MH/12 or 42 He noticed that the number plate of the car was yellow in colour. (c)On hearing hue and cry of Ravindra, a person by name Nimbalkar was asked to chase the car. Nimbalkar did so accordingly. Subsequently, Ravindra and Mulik returned to the bank and narrated the incident to their manager. Later accompanied by the manager, they went to the Phaltan police station to lodge the FIR. (d)THE FIR was reduced to writing by PI Joshi in the presence of PW-19 PSI Ranjit Narayan Sawant. PI Joshi directed PSO Kharche to register the crime and accordingly PSO Kharche registered the crime under C. R. No. 193/2004 and handed over the investigation of the crime to PW-19 PSI Ranjit Sawant. (e)PSI Ranjit Sawant sent a copy of the FIR to the Court. He then visited the spot of the incident which was pointed out by the informant and prepared a panchanama of the spot of the incident (Exh. 79 ). At the spot, they found a broken packet of chilly powder, which alongwith the chilly powder lying on the spot was seized. On the same day, he recorded the statements of two witnesses, one of whom had noticed a part of the registration of the plate of the indica car. On 9-10-2004, the investigating officer recorded statements of three witnesses. He then contacted RTO Pune and made enquiries with him. He learnt from the RTO Pune, that a silver colour indica car bearing registration no. MH-12/ar-8651, having a yellow registration plate had been registered in the name of one Manoj Champalal Navlakha who was a resident of Gultekdi, Pune. On the same day at about9. 00 P. M. the investigating officer alongwith police staff went to the house of Manoj Navlakha and learnt from him that though he was the registered owner of the car, the car belonged to his brother-in-law Manoj Harakchand Dhoka (PW-5) who resided in Somwar peth, Pune. THE investigating officer was further informed that the driver of Manoj Dhoka i. e. Umesh Eknath Kadam is accused no.2 had taken the car to Solapur on hire basis for use by persons known to him and had returned back to Pune. THE investigating officer and his police party then made enquiries in the Somwar peth area and found Umesh Kadam. Umesh Kadam was interrogated. THE car was found in the possession of PW-5 Manojkumar Dhoka. Investigating Officer then took search of that car and it was found that chilly powder was spread on the back seat and below the seat. During his interrogation, accused no.2 Umesh Kadam confessed that he alongwith his 3 associates committed the present offence. He disclosed the name of the co-accused as Amit Dighe, resident of Balaji nagar (accused no.1 ). THE police team then took search and found accused no.1 Amit Dighe in the area of Balaji nagar. THEn alongwith two accused and the car they returned back to Phaltan police station and reached the Phaltan police station in the night at late hour. (f)On 11-10-2004 the investigating officer arrested accused nos. 1 & 2 under an arrest panchanama. At the time of the arrest, accused no.1 Amit Dighe produced cash amount of Rs. 15,000/- and some clothes. THE same were seized under a panchanama (Exh. 77 ). This cash amount was produced as article-3 before the trial Court and the clothes produced by accused no.1 were produced as article-4 before the trial Court. THE investigating officer then produced both the accused before the JMFC and obtained the police custody remand. (g)On further interrogation, accused no.2 Umesh Kadam disclosed that he had concealed some amount which had come to his share in the panel of the door at the driver's side of the car. His memorandum of statement was recorded at Exh. 84. Accordingly, in pursuance of his statement, accused opened the door and the panel inside the door with the help of screwdriver and took out currency notes of the total value of Rs. 13,600/ -. THEse were seized under a panchanama Exh. 85 in the presence of panch witnesses. THE notes seized from the car as produced before the Court were article-5. On the same day, the investigating officer seized the indica car in the presence of panch witnesses, under a seizure panchanama Exh. 76. THE investigating officer seized the chilly powder spread in the back seat and below it. He came to know the names of the co-accused were Mahadev Divte, Sujit Dinanath Divkar, Amol Kadam and Brijesh Yadav. THEreafter, till 14-10-2004 he could not carry out any investigation as he was given the duty of bandobast during election of the legislative assembly. On further interrogation of accused nos. 1 & 2, the investigating officer received the mobile telephone number of accused no.6. He sent a letter to Airtel company seeking details. On 17-10-2004 he found accused no.3 Madhav in his rikshaw and arrested him. On 17-10-2004 accused no.2 Umesh Eknath Kadam confessed that the amount which has come to his share was concealed by him in his house in a tin. THE investigating officer recorded his memorandum statement (Exh. 87 ). Accordingly, police staff, 2 panch witnesses went to his house situated in Pune. THEy went to his house in a private jeep and in the house accused no.2 took out one carry bag kept in the tin of his house. In this bag, various currency notes of different denominations having total value of Rs. 14,000/- were found. THE same were seized under a panchanama (Exh. 88) and this cash amount was produced before the trial Court as article-10. On the same day, the investigating officer seized the clothes purchased by accused no.1 Amit Dighe from the stolen amount. Since the clothes had been purchased from the shop of one Mukesh Jain, the investigating officer recorded the statement of Mukesh Jain. THE investigating officer then made a search for accused no.6 Brijendra Anik Yadav and found him in Pune and returned to Phaltan police station. On 18-10-2004, the investigating officer took a personal search of accused no.4 Mirajkumar Deokule and arrested him under a panchanama. On that day accused no.4 Mirajkumar produced four bundles of notes of various denominations. THE total amount seized from accused no.4 was Rs. 45,000/ -. Of the various bundles seized from accused no.4, two were bearing labels of Malojiraje Griha Taran Sanstha, one bundle was bearing the label of Jabreshwar Sahakari Patsanstha and one bundle was bearing the label of Govind milk and milk products. Panchanama was exhibited at trial court at Exhibit-74 and cash was produced as muddemal article no.7. Investigating officer then produced accused no.4 before the Court and obtained police custody remand. Since during the investigation it had transpired that there were six accused, the offence under Section395 was added by the Investigating officer. On 29-10-2004 accused no.1 Amit Dighe confessed that he has purchased a mobile hand set from the stolen amount and concealed the same alongwith his share in his house. THE memorandum was reduced to writing at Exhibit-91. Consequently accused no.1 led the police party to his house and there, he produced a mobile handset kept behind the cupboard. This was taken into custody by the investigating officer and exhibited as Exhibit-90 at the trial. Accused no.4 Brijesh led the investigating officer to his house situated in Somwar peth and there he produced one rexine bag containing notes of various denominations. THEse were also seized under a separate panchanama Exhibit-92. This cash amount was produced in the Court as article-11. THE investigating officer then recorded the statement of the owner of the shop from where accused no.4 had purchased the mobile handset. He also collected a zerox copy of the bill. On 23-10-2004 the investigating officer recorded the statement of the owner of the rikshaw which has been purchased by accused no.3 from the stolen amount. He recorded the statement of the Manager of the lodge where the accused had halted on7-10-2004. On 24-10-2004 the investigating officer recorded the statement of the shop owner from whom the accused had purchased chilly powder. THEreafter he took permission from the Court for holding an identification parade for accused nos. 1, 2 & 4 and sent a request letter to the Special Judicial Magistrate, Phaltan, Exhibit-104 for conducting identification parade. On 7-11-2004 two identification parades were conducted in the premises of Phaltan Court. In the first parade, PW-1 and PW-12 identified accused nos. 1 & 2 In the second identification parade on the same day PW-1 & PW-12 identified accused no.4. THE investigating officer then sent the chilly powder for examination to the Food & Drugs Department for analysis. He received the analysis report and later, produced the same in the Court. On 7-1-2005 he filed the charge-sheet. (h)That, after filing of the charge-sheet on17-3-2005, accused no.5 Amol Vishwas Ohol was arrested by the Pune police in a different crime. THE investigating officer then took custody of accused no.5 in the present crime and under interrogation accused no.5 disclosed that he had thrown the stick used by him under a babool tree on the Phaltan-Shinganapur road. He also confessed that he had spent the amount of his share in dance bars and for a tour. On 22-3-2005 accused no.5 made a statement that the stick used by him was concealed by him in the shrub on Shinganapur road. This statement was reduced to writing and thereafter accused no.5 led the police party and the panchas, who have been called, to a shrub situated on the Phaltan-Shinganapur road within the area of village Devsheri and produced a stick hidden in the shrub. THE stick in question was then seized under a panchanama Exhibit-130. THEn after obtaining the permission of JMFC, the Investigating officer sent a request letter to Tahsildar, Satara Exh. 116 for conducting an identification parade of accused no.5. He received information that crime branch of Pune had taken accused no.6 into custody. Investigating officer then took custody of accused no.6 from crime branch on27-6-2005 and arrested him. On 30-6-2005, while the accused no.6 was in custody, he confessed that he had purchased a hand-cart from the amount which has come into his share and that the same cart was kept at the corner of the road in the area of Sarasbag. Investigating officer then prepared a memorandum statement Exh. 133 of the accused in the presence of panchas. Accused no.6 then led police and the panchas to Sarasbag road and pointed out the hand-cart. Investigating officer seized the same hand-cart in presence of panchas under a panchanama at Exh. 134. He then obtained the permission of JMFC Phaltan and sent a request letter to Tahsildar, Satara requesting him to conduct the identification parade of accused no.6. On 15-7-2005 after completion of investigation, investigating officer submitted a supplimentary charge-sheet against accused no.5 on21-6-2005. Similarly, he sent a supplimentary charge-sheet against accused no.6 on18-6-2005. After receiving report of identification parade and report of analysis from Chemical Analyser, he submitted the same in the Court on27-3-2006. C. A. report was subsequently exhibited in the Court at Exhibit-135.

(3.) The Advocate appearing for accused no.1 relied upon several judgments in support of a proposition that the delay in conducting test identification parade would vitiate the evidentiary value of the said parade. Reliance was placed upon the judgment of the Apex Court in the case of Hari Nath & Anr. Vs. State of U. P., 1988 1 SCC 14, in which the Apex Court observed as under :- " THE value of the test identification, apart altogether from the other safeguards appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. THEre might conceivably, be occasions, when there could be justification, or acceptable explanation, for the delay. THEre are cases where the delay was at the instance of the accused persons themselves. But if there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself, detracts from the credibility of the test. "