Bombay High Court
Shailesh S/O. Bhaskarrao Masram vs The State Of Maharashtra Thr. Police … on 20 December, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:14086
250.Cri.Apeal.599.2018.jud.+14.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 599/2018
WITH
CRIMINAL APPEAL NO. 404/2017
WITH
CRIMINAL APPEAL NO. 412/2017
WITH
CRIMINAL APPEAL NO. 428/2017
WITH
CRIMINAL APPEAL NO. 430/2017
WITH
CRIMINAL APPEAL NO. 431/2017
WITH
CRIMINAL APPEAL NO. 436/2017
WITH
CRIMINAL APPEAL NO. 445/2017
WITH
CRIMINAL APPEAL NO. 450/2017
WITH
CRIMINAL APPEAL NO. 454/2017
WITH
CRIMINAL APPEAL NO. 472/2017
WITH
CRIMINAL APPEAL NO. 473/2017
WITH
CRIMINAL APPEAL NO. 478/2017
WITH
CRIMINAL APPEAL NO. 535/2017
*******************
250.Cri.Apeal.599.2018.jud.+14.odt
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CRIMINAL APPEAL NO. 599 OF 2018
Pankaj S/o Vinayak Kanoje,
Aged : 31 years, Occu - Labour,
R/o. Itkheda, Dist. Gondia,
Presently in Central Prison,
Nagpur, C- 9766. .... APPELLANT
// V E R S U S //
The State of Maharashtra
Through Police Station Officer,
Police Station - Karanja (Ghadge),
Tahsil Karanja (G), District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 404 OF 2017
1. Ravindra @ Ravi S/o. Sampatrao
Madekar, Aged : 32 years,
Occu. :Labourer, R/o. Wanadongri,
Hingna, Nagpur.
2. Sallukumar @ Selvakumar
Balsubramanyam Kaunder,
Aged : 27 years, Occu.: Education,
R/o. Gopal Nagar, Usman Layout,
Nagpur, Dist. Nagpur.
3. Ashwind Singh @ Sonu
S/o. Shatrughnasingh Chavan,
Aged :28 years, Occu.: Labourer,
R/o. Kampti Road, Kamgar Nagar,
Teka Naka, Nagpur, Dist. Nagpur. .... APPELLANTS
// V E R S U S //
250.Cri.Apeal.599.2018.jud.+14.odt
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The State of Maharashtra
Through Police Station Officer,
Police Station Karanja (Ghadge),
Tah. Karanja (G), Dist. Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 412/2017
Sachin S/o. Chandraprakash Shrivastav,
Aged: 34 years, Occu. : Property Dealer,
R/o. Plot No. 243, Govt. Press Colony,
Dabha, Dist. Nagpur.
(Presently District Prison at Wardha) .... APPELLANT
// V E R S U S //
State of Maharashtra
Through Police Station Officer,
Police Station Karanja (Ghadge),
Tah. Karanja (G), District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 428/2017
1. Prashant S/o. Rambali Waghmare,
Aged : 40 years, Occu.: Business,
R/o. Near Bhankheda Sidhartha Library
Gandhibagh Nagpur, District - Nagpur.
2. Ravi @ Chhotu S/o. Tikaram Bagade,
Aged : 34 years, Occu. : Business,
R/o. Rani Durgavati Chowk,
Sanjaygandhi Nagar, Nagpur. .... APPELLANTS
// V E R S U S //
State of Maharashtra
250.Cri.Apeal.599.2018.jud.+14.odt
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Through Police Station Officer,
Karanja (Ghadge) Tahsil Karanja,
District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 430/2017
Rehaan Baig S/o. Akram Baig,
Aged : 26 years, Occu.: Business,
R/o. Shanti Nagar, Nagpur,
District - Nagpur. .... APPELLANT
// V E R S U S //
State of Maharashtra,
Through Police Station Officer,
Karanja (Ghadge) Tah : Karanja,
District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 431/2017
Sheikh Mustaq @ Sameer S/o Sheikh
Habib, Aged: 36 years,
Occu.: Labourer, R/o. Om Nagar,
Near Wox Cooler Company,
Koradi Road, Nagpur, District - Nagpur
(Presently Central Prison at Nagpur) .... APPELLANT
// V E R S U S //
The State of Maharashtra,
Through Police Station Officer,
Police Station Karanja (Ghadge),
Tah- Karanja (G), District -Wardha. ... RESPONDENT
250.Cri.Apeal.599.2018.jud.+14.odt
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WITH
CRIMINAL APPEAL NO. 436/2017
1. Mohd. Sadiq S/o Sheikh Mehaboob,
Aged: 39 years, Occu. :- Labourer,
R/o. Ward No. 14, Near Badi Masjid
Sindi (Rly.), Tah- Seloo,
District - Wardha.
2. Sheikh Altaf S/o. Sheikh Munaf,
Aged : 42 years, Occu. :- Labourer,
R/o Ward No. 6, Pathanpura,
Nachangaon, District- Wardha. .... APPELLANTS
// V E R S U S //
The State of Maharashtra,
Through Police Station Officer,
Police Station Karanja (Ghadge),
Tah- Karanja (Ghadge),
District- Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 445/2017
Mr. Mangal @ Satyaprakash S/o Nandlal
Yadav, Aged: 44 years Occu.: Business,
R/o. Plot No. 57/3, Deonagar,
Khamla Road, Nagpur. ... APPELLANT
// V E R S U S //
State of Maharashtra,
Through Police Station Officer,
Police Station Rajapeth,
Karanja (Ghadge),
District - Wardha. ... RESPONDENT
250.Cri.Apeal.599.2018.jud.+14.odt
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WITH
CRIMINAL APPEAL NO. 450/2017
Shailesh @ Ravi S/o Bhaskarrao
Masram, Aged: 38 years, Occu.: Nil,
R/o. Durga Nagar, Plot No.9,
Hingna Road, MIDC, Nagpur,
District Nagpur.
(Presently lodged in Central Prison,
Nagpur) ... APPELLANT
// V E R S U S //
The State of Maharashtra
Through its Police Station Officer,
Police Station Karanja (Ghadge),
Tahsil- Karanja (Ghadge),
District- Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 454/2017
Sau. Sadhna W/o Kishor Itale,
Aged: 53 years, Occu.: Household,
R/o. 11/7 MIG Housing Board Colony,
Trimurti Nagar, Nagpur. ... APPELLANT
// V E R S U S //
State of Maharashtra,
Through Police Station Officer,
Karnaja (Ghadge), Tah- Karanja,
District- Wardha ... RESPONDENT
250.Cri.Apeal.599.2018.jud.+14.odt
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WITH
CRIMINAL APPEAL NO. 472/2017
Suleman S/o Yunus Surya,
Aged: 46 years, Occu.: Business,
R/o. Ward No. 7, Sindi (Rly.),
Tahsil- Seloo, District- Wardha. ... APPELLANT
// V E R S U S //
State of Maharashtra,
Through Police Station Karanja
(Ghadge), Tah- Karanja (G),
District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 473/2017
Mobin Ahmad Khan S/o. Saifulla Khan,
Aged : 35 years, Occu : Cultivator,
R/o. Oknath, Post - Chincholi,
Tahsil - Dhamangaon, Dist. Amravati ... APPELLANT
// V E R S U S //
State of Maharashtra,
Police Station Karanja (Ghadge),
Tah. Karanja, District - Wardha. ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 478/2017
Mohd. Shamim S/o Abdul Ajij,
Aged : 34 years, Occu. : Mechanic,
R/o. Indira Gandhi Nagar,
Baramail Chowk, Kanji House Chowk,
Yashodhara Nagar, Nagpur. (In Jail) ... APPELLANT
250.Cri.Apeal.599.2018.jud.+14.odt
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// V E R S U S //
The State of Maharashtra,
Through Police Station Officer,
Police Station Karanja (Ghadge),
District - Wardha ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 535/2017
Chandrashekhar Subhrahmanyam
Mudliyar, Aged: 44 years,
Occu: Property Dealer, R/o. Koradi
Road, Near Railway Naka Koradi,
Tah & Dist. Nagpur. ... APPELLANT
// V E R S U S //
State of Maharashtra,
Through Police Station Officer,
Karanja (Ghadge), Tah- Karanja,
District - Wardha. ... RESPONDENT
-----------------------------------------------------------------------------------------------
Mr Adwait Manohar, Amicus Curiae appointed by the Court
Mr Atharva Manohar, Advocate (appointed) for the appellant in Appeal No.599/2018
Mr C. R. Thakur, Adv. alongwith Mr L. B. Khergade, Advocate for the appellants in
Appeal No. 404/2017 and 431/2017.
Mr Bhushan Dafale, Advocate for the appellants in Appeal No.412/2017 &
478/2017
Mr Y. B. Mandpe, Advocate for the appellants in Appeal No. 428/2017 & 535/2017
Mr R. M. Daga, Advocate for the appellant in Appeal No.430/2017
Mr. A. C. Jaltare, Advocate for the appellant in Appeal No. 436/2017
Mr Vishwajit Sambre, Adv. holding for Mr R. R. Vyas, Advocate for appellant in
Appeal No. 445/ 2017.
Mr. P. A. Abhyankar, Advocate for appellant in Appeal No.450/2017
Mr A. H. Joshi, Advocate for appellant in Appeal No.454/2017
Mr M. M. Agnihotri, Advocate for appellant in Appeal No. 472/2017
Mr P. K. Bezalwar, Advocate for the appellant in Appeal No. 473/2017
Mr. Amit Chutke and Mr Piyush Pendke, APPs for the State in all connected appeals
-----------------------------------------------------------------------------------------------
250.Cri.Apeal.599.2018.jud.+14.odt
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CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 29.11.2024
JUDGMENT PRONOUNCED ON : 20.12.2024
JUDGMENT :
1 All these appeals are arising out of the judgment
and order dated 17.08.2017 passed by the learned Additional
Sessions Judge, Wardha (for short, ‘the learned Judge’) and
therefore, the appeals are being disposed of by common
judgment. The particulars with regard to the accused numbers,
appeal numbers and sentence can be tabulated as follows:
Accused Criminal Name of accused Sentence
No. Appeal No.
1. 535 of Chandrashekhar 1. To suffer rigorous
2017 s/o Subhrahmanyam imprisonment for seven
Mudliyar (7) years and to pay a fine
4. 450 of Shailesh @ Ravi of Rs.10,000/- each and
2017 Bhaskarrao in default of payment of
Masram fine to suffer Simple
imprisonment for six (6)
5. 412 of Sachin S/o.
months each for the
2017 Chandraprakash
offence punishable under
Shrivastav
Section 395 of the IPC.
2. To suffer rigorous
imprisonment for two (2)
years and to pay a fine of
Rs.5,000/- each and in
default of payment of fine
250.Cri.Apeal.599.2018.jud.+14.odt
10
to suffer simple
imprisonment for three
(3) months each for the
offence punishable under
Section 120-B of the IPC
3. To suffer rigorous
imprisonment for six (6)
months and to pay a fine
of Rs.1,000/- each and in
default of payment of fine
to suffer simple
imprisonment for one (1)
month each for the
offence punishable under
Section 342 of the IPC.
Accused Criminal Name of accused Sentence
No. Appeal No.
2. 404 of Sallukumar @ Selvakumar To suffer rigorous
2017 Balsubramanyam Kaunder imprisonment for
10. 404 of Ravindra @ Ravi S/o. three (3) years and
2017 Sampatrao Madekar to pay a fine of
Rs.10,000/- each
11. 445 of Mangal @ Satyaprakash and in default of
2017 S/o. Nandlal Yadav
payment of fine to
12. 428 of Prashant S/o. Rambali suffer Simple
2017 Waghmare imprisonment for
13. 428 of Ravi @ Chhotu S/o. six (6) months each
2017 Tikaram Bagade for the offence
punishable under
14. 436 of Mohd. Sadiq S/o. Section 412 of the
2017 Sheikh Mehaboob IPC.
15. 472 of Suleman S/o. Yunus
2017 Surya
250.Cri.Apeal.599.2018.jud.+14.odt
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16. 473 of Mobin Ahmad Khan
2017 S/o. Saifulla Khan
17. 436 of Sheikh Altaf S/o.
2017 Sheikh Munaf
19. 454 of Sau Sadhna W/o.
2017 Kishor Itale
20. 404 of Ashwind Singh @ Sonu
2017 S/o. Shatrughnasingh
Chavan
Accused Criminal Name of accused Sentence
No. Appeal No.
7. 431 of Sheikh Mustaq @ To suffer rigorous
2017 Sameer S/o. Sheikh imprisonment for
Habib seven (7) years and
8. 430 of Rehaan Baig S/o. to pay a fine of
2017 Akram Baig Rs.10,000/- each
and in default of
21. 599 of Pankaj Vinayak Kanoje payment of fine to
2018 suffer Simple
imprisonment for
six (6) months each
for the offence
punishable under
Section 412 of the
IPC.
Accused Criminal Name of accused Sentence
No. Appeal No.
23 478 of Mohd. Shamim S/o 1. To suffer
2017 Abdul Ajij rigorous
250.Cri.Apeal.599.2018.jud.+14.odt
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imprisonment for
seven (7) years and
to pay a fine of
Rs.10,000/- and in
default of payment
of fine to suffer
Simple
imprisonment for
six (6) months for
the offence
punishable under
Section 397 of the
IPC.
2. To suffer
rigorous
imprisonment for
two (2) years and to
pay a fine of
Rs.5,000/- and in
default of payment
of fine to suffer
Simple
imprisonment for
three (3) months
for the offence
punishable under
Section 120-B of
the IPC.
3. To suffer
rigorous six (6)
months and to pay
a fine of Rs.1,000/-
and in default of
payment of fine to
suffer simple
250.Cri.Apeal.599.2018.jud.+14.odt
13
imprisonment for
one (1) month for
the offence
punishable under
Section 342 of the
IPC.
Total 22 accused faced the trial before the learned
Additional Sessions Judge, Wardha. Accused Nos.3, 9, 22, and
24 are acquitted of the offences punishable under Sections
395, 120-B, 342, 356, 407, 408, 409, 412 and 414 of the
Indian Penal Code (for short, ‘the IPC‘). Accused Nos. 1 to 5, 7
to 17, 19 to 24, except two absconding accused were acquitted
of the offences punishable under Sections 356, 357 and 414 of
the IPC. Sessions Trial No. 131 of 2013 has been kept pending
for trial of absconding accused Nos. 6 and 18.
2 Background facts:
The informant is PW-5 Domnik Ganiyan. The
case of the prosecution, which can be gathered from the report
and other materials, is that the Axis Bank had appointed
250.Cri.Apeal.599.2018.jud.+14.odt
14Security Trans India Private Limited for the transportation of
cash from the currency chest of their bank to different branches
of the Axis Bank. The Security Trans India Private Limited
would transfer the cash through a cash van. The cash van was
always maned by the custodian, gunman and other staff. On
05.03.2013, a cash van bearing registration No. MH-31/CQ-
4758 was deployed at Axis Bank Currency Chest, Lakadganj,
Nagpur. The custodian Domnik Ganiyan (PW-5) and his team
were directed to bring cash from Axis Bank, Jalna. PW-5,
accused No. 3 Wasim, gunman Sunilsingh (PW-7), gunman
Wasudeo Khandare (PW-18) and the driver of the van Rajesh
Virkhare (PW-6) proceeded for Jalna at about 11:00 a.m. They
reached Jalna at around 01:30 p.m. On the next day, they
collected the cash from Axis Bank, Jalna and brought the same
to Axis Bank, Akola. They reached Akola at around 12:30
midnight. At Axis Bank, Akola the cash was unloaded. PW-5
and other members stayed at Akola.
250.Cri.Apeal.599.2018.jud.+14.odt
15
3 It is stated that on the next day i.e. on 07.03.2013,
they collected/loaded a sum of Rs.2,36,50,000/- (Rupees Two
Crores Thirty Six Lakhs Fifty Thousand only) from the Axis
Bank, Akola and started their journey for Nagpur at about
10:30 a.m. On the way, they took a brief halt for a meal at
Badnera. Thereafter, they proceeded towards Nagpur. In the
afternoon hours, they reached the tollbooth at Karanja. From
Karanja, they proceeded towards Nagpur. On the way, after
crossing village Thanegaon, one black colour four-wheeler
vehicle came from the back side. The occupants of the said
vehicle gave a stop signal to the driver and forced the occupants
to stop the cash van. It is stated that on the windshield of the
said vehicle a piece of paper with the sign ‘On Duty’ was
affixed. Two persons from that vehicle got down and came
towards the informant, who was sitting beside the driver seat.
Those two persons demanded a gun licence. In the meantime,
another person got down from that vehicle and came towards
250.Cri.Apeal.599.2018.jud.+14.odt
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the van. Out of the first two persons one person took out the
pistol and pointed it at the head of PW-5. Other person went
towards the gunman and pointed the pistol at his head. One
person went towards the driver of the cash van and brought
down the driver from the van and dragged him in their vehicle.
One person occupied the driver’s seat of the van and followed
the black colour vehicle. Both vehicles crossed village Kondhali.
After crossing village Kondhali, the vehicle of the accused
persons took a left turn on kaccha road. The cash van followed
the said vehicle.
4 After traveling some distance, they took the cash
van in one field. The vehicles were stopped and thereafter,
both the custodians Domnik and accused -Wasim were forcibly
brought down from the cash van and made to sit in the black
vehicle. It is stated that the person from the black vehicle
opened the cash van and loaded the currency notes in gunny
bags. They filled cash in two gunny bags. Thereafter, the
250.Cri.Apeal.599.2018.jud.+14.odt
17
driver of the cash van was instructed to drive the van and follow
the black colour vehicle. After travelling a distance of 12-13
km, both vehicles stopped in the forest. At the said place, the
accused shifted the trunks loaded with cash in a black vehicle.
The occupants of the black vehicle took search of the occupants
of the cash van and snatched their mobile phones. It is stated
that those persons locked the occupants of the cash van in the
vault of the cash van and fled with the cash from the spot. The
occupants of the cash van, with the help of the local people,
broke open the door of the cash van and freed themselves.
Thereafter, they went to Kondhali police station and reported
the matter to the police. They were taken from Kondhali police
station to Karanja (Ghadge) Police Station. At Karanja Police
Station, PW-5 lodged the report of the incident.
5 Based on this report, crime bearing No. 30 of 2013
was registered. Initial investigation was carried out by Police
Inspector Deepak Wanjari (PW-48). On the next date i.e., on
250.Cri.Apeal.599.2018.jud.+14.odt
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08.03.2013, police inspector Deepak Wanjari, the informant
and the panchas went to the spot of the incident. The spot was
pointed out by the informant. The informant initially pointed
out the place where the cash van was stopped by the robbers.
The vehicle was taken to village Sonpur Shivar. PW-48 drew
the spot panchanama. The investigating officer seized the
articles found on the spot, namely five locks, one tommy, one
iron chain, four empty cash bags, pieces of nylon rope, one
paper having letters ‘On Duty’, pieces of label put around
currency notes, one empty bag of fertilizer and two stones.
PW-5 took the investigating officer and panchas to the forest
area where the vehicle was in abandoned condition. The
panchanama of the vehicle/ condition of the vehicle was drawn.
The services of the finger print expert had been availed to
obtain the finger print on the empty cash box.
6 The first arrest in the crime was made on
09.03.2013. The investigating officer arrested accused No.1
250.Cri.Apeal.599.2018.jud.+14.odt
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Chandrashekhar Mudliyar at Koradi and took him to the
Gittikhadan Police Station, Nagpur. Accused No.1
Chandrashekhar made a confessional statement and pursuant to
the statement, the amount of Rs.37,50,000/- (Rupees Thirty
Seven Lakhs Fifty Thousand Only) was seized from him. At
the instance of accused No.1-Chandrashekhar, the Tata Safari
Vehicle bearing registration No. MH-40/137, used in the
crime, was seized from the house of accused No. 5 Sachin
Shrivastav. The empty cash boxes were recovered at the
instance of the accused Chandrashekhar from the farm house of
accused No.4 Shailesh Masram. At the instance of accused
Chandrashekhar, an amount of Rs.4,30,000/- (Rupees Four
Lakhs Thirty Thousand only) was recovered from the
possession of accused No.2 Sallukumar @ Selvakumar
Kaunder. The interrogation of accused No.1 Chandrashekhar
and accused No.2 Selvakumar revealed the involvement of
accused No.3-Wasim Sheikh, who was the cash officer of the
250.Cri.Apeal.599.2018.jud.+14.odt
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cash van. Thereafter, accused No. 3 Wasim was arrested.
7 On 11.03.2013, Police Inspector, Local Crime
Branch, received secret information that accused No. 4 Shailesh
and accused No. 5 Sachin, involved in the crime, were coming
to Nagpur. Accordingly, the trap was laid at Wadi Road
tollbooth. Accused Nos. 4 and 5 came to that place in a Pajero
vehicle. They were accosted and arrested. In the search of the
vehicle, the amount of Rs.26,40,000/-(Rupees Twenty Six
Lakhs Forty Thousand only) was found. The cash bundles were
rapped with the label of Axis Bank. Two mobile phones were
found in the car. The articles were seized. The accused were
arrested. The arrested accused Chandrashekhar, gave the clue
with regard to the involvement of the other accused. The
remaining accused were arrested. The cash was recovered from
them. These accused, according to the prosecution, dishonestly
received the property stolen in the commission of dacoity. On
10.04.2013, on the basis of the secret information, accused No.
250.Cri.Apeal.599.2018.jud.+14.odt
21
7 -Sheikh Mustaq @ Sameer was arrested. The search of his
red colour Balero vehicle was carried out and in the search, one
country made pistol, two bullets, one mobile of Lava Company,
one mobile of Nokia Company, amount of Rs.9,750/- (Rupees
Nine Thousand Seven Hundred and Fifty Only) and the bag
containing Rs.90,000/- (Rupees Ninety Thousand only) were
seized. As per the confessional statement of accused No. 7
Sheikh Mustaq @ Sameer, the amount of Rs.72,00,000/-
(Rupees Seventy Two Lakhs only) concealed at the house of his
friend Pintu resident of Nagpur was recovered. The accused
No.23 Mohammad Shamim and accused No. 24-Vijay Sonekar
were arrested. One pistol, one magazine and three bullets were
recovered from them. During the course of investigation, the
amount of Rs.1,97,07,300/- (Rupees One Crore Ninety Seven
Lakhs seven thousand three hundred only) was recovered. The
amount was deposited in the bank as per the order of the Court.
8 After the arrest of the main accused, involved in the
250.Cri.Apeal.599.2018.jud.+14.odt
22
first part of the incident, the test identification parade through
the eye-witnesses was conducted. The investigation conducted
by the police revealed the involvement of all 24 accused. The
charge-sheet was filed in the Court of Judicial Magistrate First
Class, Karanja (Ghadge). Learned Magistrate committed the
case to the Sessions Court. The learned Sessions Judge framed
the charge against the accused. The accused pleaded not guilty
to the charge. Their defence is of false implication. The
prosecution, in order to bring home the guilt of the accused,
examined fifty witnesses. During the pendency of the case, the
accused Nos.6 and 18 absconded. The learned Judge separated
their trial. Learned Judge, on consideration of the evidence,
held the appellants guilty and sentenced them as above. The
original accused Nos.3, 9, 22 and 24 were acquitted of the
offences punishable under Sections 395, 120B, 342, 356, 407,
408, 409, 412 and 414 of the IPC. The appellants are before
this court against the judgment and order passed by Additional
250.Cri.Apeal.599.2018.jud.+14.odt
23
Sessions Judge, Wardha.
9 I have heard the learned Advocates for the
appellants. The appellant in appeal No. 599 of 2018 was not
represented by any advocate. Therefore, Advocate Mr Atharva
Manohar is appointed to represent the said appellant.
Considering the bulky record and the intricate issues involved
in all these appeals, learned Advocate Mr Adwait Manohar is
appointed as an Amicus Curiae to assist the Court. Learned
Advocate Mr Adwait Manohar has made submissions as an
Amicus on all the points involved in the case. Learned
Advocate Mr Adwait Manohar has made the following
submissions:
The prosecution has failed to establish that the
amount of Rs.2,36,50,000/- (Rupees Two Crores Thirty Six
Lakhs Fifty Thousand only) was loaded in a cash van on
07.03.2013 by the officials of the Axis Bank, Akola. The
250.Cri.Apeal.599.2018.jud.+14.odt
24evidence of PW-50 – Amit Laturiya, the Assistant Manager of
the Axis Bank, Akola, falls short to prove this principal aspect.
The documentary evidence at Exh. 1588 a remittance register
extract does not show that the amount of Rs.2,36,50,000/- was
loaded in the cash van. The number of the currency notes of
the particular denomination mentioned in the chart does not
tally with the total amount of Rs.2,36,50,000/-. The calculation
of the amount as per number of the currency notes of particular
denomination would show that it is less than what is stated in
the said document. There is no investigation on this aspect by
the investigating officer. It was the duty of the investigating
officer to interrogate the officials of the bank and obtain the
evidence to prove that the cash worth Rs.2,36,50,000/- was
loaded on the given date in the cash van. The document
produced on record also does not support the case of the
prosecution inasmuch as the relevant entries of the document
do not bear the stamp of the bank. PW-5 has admitted that,
250.Cri.Apeal.599.2018.jud.+14.odt
25
after loading the cash in the van, the denomination slip of the
amount loaded in the van was handed over to him. The said
slip has neither been collected during the investigation nor
produced before the Court. The record from the bank has not
been produced to prove that the cash of Rs.2,36,50,000/- was
loaded in the cash van on 07.03.2013 for being carried to
Nagpur. Learned Amicus submitted that, on this count, the
investigation is faulty and the same would show that there is no
material to prove that the informant and his companions were
carrying an amount of Rs.2,36,50,000/-. In the absence of
proof of this fact, the case of the prosecution becomes doubtful.
10 Learned Advocates appearing for accused Nos.1, 4,
5 and 23 adopted the submissions advanced by the learned
Amicus.
11 The learned APP Mr Amit Chutke submitted that
the accused have not disputed throughout that the cash of
250.Cri.Apeal.599.2018.jud.+14.odt
26
Rs.2,36,50,000/- was not loaded in the cash van at Akola. The
witness PW-50 examined by the prosecution, who is Assistant
Manager of the Axis Bank, Akola has produced on record the
original cash remittance register. The cash remittance register
at Exh. 1588 shows that the cash of Rs.2,36,50,000/- was
loaded in the cash van. The learned APP submitted that while
making entry of the currency notes of Rs.100/- denomination,
entry made was of ‘19500’ currency notes. The learned APP
submitted that while noting down the total number of notes of
Rs.100/- denomination, the concerned officer has failed to add
one ‘0’ to 19500. It is pointed out that the total against the
denomination of Rs.100/- and number of notes is
Rs.1,95,00,000/- (Rupees One Crore Ninety Five Lakhs only).
It is submitted that this was an unintentional mistake. It is
submitted that therefore, on this ground, there is no substance
in the submissions advanced by the learned Amicus.
12 Before proceeding to appreciate the evidence
250.Cri.Apeal.599.2018.jud.+14.odt
27
adduced by the prosecution, it is necessary to note down the
undisputed facts relevant for addressing this issue. Alongwith
PW- 5 Domnik Ganiyan, Mr Wasim, was the cash officer in the
van. Mr Wasim was made an accused in this case, being part of
the conspiracy, with the other accused, who had committed the
dacoity. The investigating officer has admitted that the
statement of the then Manager of the Axis Bank, Akola branch,
was not recorded. It has come on record that during the
investigation neither the inquiry was made with the officials of
the Axis Bank, at Branch Akola nor the relevant record was
collected to establish that on 07.03.2013 the cash of
Rs.2,36,50,000/- was loaded in the cash van. It has come on
record that the relevant documents, namely Exh. 1587, 1588
and 1589 had been produced for the first time by PW-50, in
the Court, at the time of his evidence. It has come on record
that the police suspected the involvement of the occupants of
the cash van in the crime. It has come on record that PW-5
250.Cri.Apeal.599.2018.jud.+14.odt
28
Domnik Ganiyan and other occupants of the cash van had been
detained in the police station for 11 days for the purpose of
inquiry. In this backdrop, it is necessary to consider the
evidence of PW-50.
13 PW-50 Amit Laturiya has stated that when this
offence took place, he was not serving in the said branch. The
then branch Manager of the Axis Bank has not been examined.
He has stated that the cash remittance register has columns to
show the dates of receipt and delivery of the cash, time, total
amount, denominations, the name of the escorting officer,
signature of the escorting officer, guard name, vehicle number
and signature of the branch head/Manager. He has stated that
on 07.03.2013, the bank had loaded cash of Rs.2,36,50,000/-
in vehicle No. MH-31/CQ-4758. It was received by the
escorting officers Wasim Sheikh and Domnik Ganiyan. He has
also produced on record the account statement at Exh. 1591.
The account statement shows the transaction details. It shows
250.Cri.Apeal.599.2018.jud.+14.odt
29
that the transaction total is Rs.2,36,50,000/-. Perusal of this
document does not show that the transaction amount was
loaded in cash van on 07.03.2013. In this context, perusal of
his cross-examination would be necessary. He has stated that
the police, during the investigation, had obtained certain
documents from the Branch Manager. Those documents have
not been produced on record by the police. He has admitted
that the entries in the remittance register are not in his
handwriting. He has stated that the police might have seen the
remittance register. He has stated that on the remittance
register they used to obtain the stamp of the security company.
He has admitted that against the entry in question there was no
stamp. He was not working in the branch on 06.03.2013 and
07.03.2013. He has stated that he does not know that the then
branch Manager was suspected to be involved in this case by
the police.
14 Perusal of the extract of remittance register at Exh.
250.Cri.Apeal.599.2018.jud.+14.odt
30
1588 would show the denomination of the currency notes and
the number of currency notes of a particular denomination. It is
as follows:
100 X 19500 = 19,50,000 (written as 1,95,00,000/-)
50 X 63000 = 31,50,000
20 X 9000 = 1,80,000
10 X 82,000 = 8,20,000
= 61,00,000
It shows that the total of the cash would come to
around Rs.61,00,000/-. It is true that the mistake can occur
while preparing the documents. It is to be noted that this entry
was made by the responsible officer of the bank. Bank officials
could have detected this mistake. The investigating officer was
required to collect relevant documents during the investigation
and record the statement of the concerned witness to rectify
such a mistake. In my opinion person who had made this entry
would have been the proper person to depose about this
mistake and circumstance under which this mistake had
250.Cri.Apeal.599.2018.jud.+14.odt
31occurred. Prosecution has not examined such witness. It is
evident that this mistake was not rectified at the stage of the
evidence, when PW-50 deposed before the Court. He could
have stated that while recording the number of the currency
notes of denomination of Rs.100/-, one ‘0’ was not added to the
total of currency notes of this denomination. The total of
Rs.100/- denomination notes recorded in this register comes to
100 X 19500 = 19,50,000/-. In the remittance register the total
against the 100 denomination notes was mentioned as
Rs.1,95,00,000/-. In my view, this is a basic flaw in this case.
There was no investigation on this point. Learned Amicus
brought this important fact to the notice of the Court. On
appreciation of the material on record and more particularly in
the absence of any explanation as to the occurrence of this
mistake, the document has to be read as it is. If the document is
read as it is and one ‘0’ is not added to ‘19500’ it would show
that there were 19500 currency notes of Rs.100/-
250.Cri.Apeal.599.2018.jud.+14.odt
32
denomination. The total of currency notes of 100
denomination as per this entry come to Rs.19,50,000/-. On this
point, the investigating officer is silent. There is no explanation
for not conducting the investigation on this basic or
foundational fact. In my view, this defect noticed, at this stage,
would go to the very root of the case of the prosecution.
15 There are two sets of accused in this case. The first
set of the accused are those who were involved in the actual
incident of dacoity. The second set of the accused are those
who have been convicted for the offences punishable under
Section 412 and 414 of the IPC. I will first deal with the case
of the prosecution against the first set of accused.
16 The learned Amicus Mr Adwait Manohar took me
through the record and made the following submissions:
The prosecution has failed to examine independent
witnesses as to the first part of the incident that occurred on the
250.Cri.Apeal.599.2018.jud.+14.odt
33highway. Failure to examine an independent witnesses, who in
the ordinary circumstances would have been easily available, is
fatal to the case of the prosecution. The manner of the
occurrence stated by all the witnesses creates a doubt about the
occurrence of the incident, as narrated by them. Perusal of the
evidence would show that these witnesses have suppressed the
actual incident that had occurred and the place of the
occurrence of the incident. There was a Global Positioning
System (for short ‘the GPS’) installed in the vehicle. But it was
not seized. Failure on this count is an attempt to suppress the
genesis of the incident. The important witness, who had helped
the occupants of the cash van to come out of the van in the
forest, has not been examined. There are material
inconsistencies and discrepancies in the evidence of the material
witnesses, which creates a doubt about the occurrence of the
incident. The first information report is ante-time to suppress
the material facts. The facts recorded in the spot panchanama
250.Cri.Apeal.599.2018.jud.+14.odt
34as well as in the panchanama of the vehicle clearly suggest that
the true version of the case of the prosecution has not been put
forth. The test identification parade of the accused conducted
by the investigating officer has been vitiated inasmuch as the
evidence of the witnesses on record proves beyond doubt that
all the accused identified by the witnesses had been shown to
the witnesses in the police station. The conduct of the
occupants of the cash van is suspicious and doubtful. The police
suspected their involvement in the commission of the crime.
Accused Wasim, the cash officer, was arrested in this crime,
being a member of the conspiracy, to commit the dacoity with
other accused. The remaining occupants of the cash van, who
have been examined as a witnesses, had been detained in the
Karanja Police Station for 11 days. They were threatened and
pressurized to act as per the suggestions of the police. Their
statements had been recorded on a number of occasions and
their statements, found suitable to the case of a prosecution,
250.Cri.Apeal.599.2018.jud.+14.odt
35
were finally approved and made a part of the charge-sheet. The
learned Amicus submitted that all these circumstances, if
considered in totality, create a doubt about the occurrence of
the incident at the given time and place and in the manner
stated by the witnesses. It is submitted that overall perusal of
the evidence shows that the police, in order to stop the public
outcry, concocted the case and prosecuted the appellants.
17 Learned Advocates appearing for accused Nos. 1, 4,
5 and 23 adopted the submissions advanced by the learned
Amicus. Besides, they took me through the record and
proceedings and pointed out the fundamental drawbacks and
defects in the conduct of the investigation by the investigating
officer. On the basis of this material, they submitted that in
order to show that a difficult case was solved within no time,
they have committed various irregularities and those
irregularities and defects are sufficient to conclude that the
appellants have been falsely implicated in this case.
250.Cri.Apeal.599.2018.jud.+14.odt
36
18 The learned APP Mr Amit Chutke submitted that
the investigating officers, during their evidence, have crystalized
all the relevant factual aspects. The informant and other
occupants of the cash van had no reason to falsely implicate the
accused. The dacoity committed by the accused was pursuant
to the conspiracy hatched by them. One occupant of the cash
van by name, Wasim was instrumental in hatching the
conspiracy and in providing the information with regard to
their movement throughout. The evidence of PW-5, 6, 7 and
18 is consistent. The failure of the investigating officer to seize
the GPS gadget may not go against the prosecution inasmuch as
the prosecution on the basis of the evidence of the material
witnesses, has established the occurrence of the incident at
various spots in great detail. PW-5, 6, 7 and 18 had sufficient
opportunity to see the accused at the time of commission of the
offence and therefore, all these accused were identified by them
in the test identification parade conducted by PW-31 Ganesh
250.Cri.Apeal.599.2018.jud.+14.odt
37
Barve. Learned APP submitted that the incident had occurred
in a broad daylight. It is submitted that the serious nature of
the incident and threat extended to the occupants of the cash
van at gunpoint by the accused is the circumstance in favour of
the prosecution. The mistakes committed by the witnesses
while narrating the incident would not be sufficient to discard
the evidence of the eyewitnesses. The evidence of the
eyewitnesses has been supported by the contemporaneous
documentary evidence and other evidence collected during the
course of the investigation. The cash, which was the subject
matter of the dacoity, was seized at the instance of accused
Nos.1, 4 and 5. This is a strong circumstance to corroborate
the evidence of the eyewitnesses as to the occurrence of the
incident. The accused have not explained the recovery of the
cash from their respective possession. Though the panch
witnesses have turned hostile, the recovery of the cash and
other articles has been proved through the evidence of the
250.Cri.Apeal.599.2018.jud.+14.odt
38
investigating officer. The learned APP submitted that on the
basis of the evidence, the involvement of the accused Nos. 1, 4,
5 and 23 has been established beyond reasonable doubt with
other absconding accused in the incident of dacoity. Learned
APP took me through the judgment and order passed by the
learned Judge and submitted that the learned Judge has
thoroughly appreciated the evidence and on appreciation of the
evidence, has recorded the cogent reasons in support of his
findings.
19 I have carefully perused the record and
proceedings. I have gone through the evidence of the material
witnesses. The incident in this case occurred in a broad
daylight. As per the case of the prosecution, the cash van was
stopped on the national highway by the accused. There is no
independent witness to the occurrence of this incident. The
prosecution, in order to prove this incident on the highway and
thereafter, in the agricultural land and in the forest, has placed
250.Cri.Apeal.599.2018.jud.+14.odt
39
heavy reliance on the evidence of PW-5, 6, 7 and 18. The first
part of the incident occurred on the national highway after the
tollbooth. It has come on record in the evidence of PW-5 that
the incident on the highway lasted for about 10-15 minutes.
PW-6 has stated in his evidence that approximately 50 vehicles
pass on this highway in one minute. The evidence of the
witnesses deserves minute scrutiny to consider the probability/
possibility of the incident on the highway. The manner of the
occurrence of the incident on the highway for 10-15 minutes,
narrated by PW-5, 6, 7 and 18, would show that the same
would have attracted the attention of the persons passing
through the highway. I may now deal with that part of the
evidence.
20 PW-5 has stated that when they crossed
Thanegaon, one black colour four-wheeler vehicle came from
behind and therefore, the driver of the cash van gave a side to
that vehicle. He has stated that thereafter the said vehicle came
250.Cri.Apeal.599.2018.jud.+14.odt
40
parallel to their vehicle and when the said vehicle was parallel to
their vehicle, one person sitting in that vehicle gave a stop
signal to their vehicle by showing his hand. He has stated that
on the rear side glass of that vehicle ‘On Duty’ sticker was
pasted. He has stated that said vehicle overtook their van and
after overtaking, the accused stopped their vehicle. He has
stated that two persons got down from the said vehicle and
came towards their vehicle. Those two persons came to him
(PW-5) and asked for a gun licence. He has stated that he
thought that those persons were police officers and therefore,
he asked his gunman to show his gun licence. He has stated
that a third person from the black four-wheeler vehicle came
down and approached their vehicle. Out of the first two
persons, one person took out the pistol and pointed at his head.
Another person went towards the gunman and pointed his
pistol at his head. The third person went towards the driver,
caught hold him and dragged him into their black vehicle. The
250.Cri.Apeal.599.2018.jud.+14.odt
41
third person again came back towards the van and occupied the
driver’s seat and then drove the cash van behind the black
colour vehicle. So this is his version as to the occurrence of the
incident.
21 At this stage, it is necessary to mention that there
were two gunmen in the cash van, namely PW-7 Sunil Singh
and PW-18 Wasudeo Khandare. Their guns were loaded each
with two bullets. PW-5 has nowhere stated that those persons
overpowered Wasim. It has come on record that neither PW-5
nor two gunmen either obstructed or resisted the force used by
the accused.
22 PW-6 Rajesh Virkhare is the driver of the cash van.
He has stated that on the spot one vehicle came behind their
vehicle. That vehicle gave horn for 2-3 times. He has stated
that his vehicle was in a right lane and after blowing the horn
by the said vehicle, he took his vehicle in a left lane. He has
250.Cri.Apeal.599.2018.jud.+14.odt
42
stated that the black colour vehicle came parallel to their vehicle
and thereafter came in front of their vehicle. He was required
to stop his vehicle. In his evidence, he has not stated that one
of the occupants of the said black vehicle gave a stop signal. He
has stated that thereafter, two persons got down from the
middle seat of that vehicle. One person came from the driver
side and the other person came from the conductor side. He
has stated that one person came towards him and asked him for
his driving licence. The said person climbed on the vehicle and
opened the door and thereafter that person kept a gun at this
neck. This part of the evidence of PW-6 is contrary to the
evidence of PW-5. PW-5 has nowhere stated that one of the
occupants of the said black vehicle pointed a gun at the neck of
the PW-6. This shows that there is variance in the evidence of
the PW-5 and 6 on these material aspects. He has stated that
he was dragged from his seat and taken to the black colour
vehicle. He has stated that he was made to sit in the middle seat
250.Cri.Apeal.599.2018.jud.+14.odt
43
of the vehicle and then he was not able to see anything
happening outside.
23 PW-7 Sunil Singh is the gunman. As far as this part
of the incident is concerned, he has stated that after Thanegaon,
after 10-12 km, one black vehicle came from behind. The
driver of the said vehicle blew the horn. He has stated that
PW-6 took the cash van in the left lane. The black vehicle
overtook their vehicle and came across their vehicle. Therefore,
their vehicle was stopped. Two persons from the middle seat of
the said vehicle came towards the cash van. One went towards
the driver and another came from the conductor side. The
person coming from conductor side pointed a pistol at the head
of Domnik (PW-5). The said person demanded a gun licence.
The person going to the driver’s seat dragged the driver from
the driver’s seat and took him in their vehicle. The said person
came back and sat behind him in the cash van. He was sitting
on the rear seat of the cash van. He has stated that those
250.Cri.Apeal.599.2018.jud.+14.odt
44
persons assaulted Domnik and Wasim and snatched their
mobile phones. He has nowhere stated that two persons
carried the pistol. He has nowhere stated that the pistol was
pointed at his head by one of those persons. This is contrary to
the evidence of PW-5 Domnik. His evidence that those
persons assaulted Domnik and snatched their mobiles is also
contrary to the evidence of PW-5 and 6. It is not the case of the
prosecution that their mobile phones had been snatched at the
said place. It is the case of the prosecution that their mobile
phones had been snatched in the forest when they were put in
the cash van. He has further stated that out of two persons
sitting in the cash van, one was holding a pistol and another was
holding barber’s knife razor. This is also contrary to the
evidence of PW-5 and PW-6.
24 PW-18 is another gunman. As far as this part of the
incident is concerned, he has stated that after crossing Karanja
(Ghadge) tollbooth, near village Thanegaon, one black colour
250.Cri.Apeal.599.2018.jud.+14.odt
45
safari came from behind at a fast speed. The person sitting in
the black safari shouted like a police man and told them to stop
the cash van. He has stated that the black safari came across the
vehicle and therefore, the driver was forced to stop the cash van.
He has stated that they shouted by saying, “Ruk ja kaise gadi
chala raha hai”. He has stated that when their vehicle was
stopped, two persons got down from the said black safari
vehicle. One person climbed into their vehicle from the driver
side and another person climbed from Domnik side. The
person climbing from the side of Domnik was holding the
pistol and kept the said pistol at the head of Domnik. He has
stated that after keeping the pistol at the head of Domnik, that
person came inside the vehicle. He has stated that the person
climbing into their vehicle from the driver side was holding a
pistol. He has stated that two persons dragged their driver from
the driver’s seat and took him in their vehicle. His evidence is
contrary to the other witnesses on material aspects. PW-6, 7
250.Cri.Apeal.599.2018.jud.+14.odt
46
and 18 have nowhere stated that they saw sticker ‘On Duty’
pasted on the backside glass of the said Tata Safari vehicle. It
has come on record that Domnik was occupying the conductor
seat beside the driver. PW-18 was sitting just behind the driver
on back seat. Sunil Singh was by his side and by the side of
Sunil Singh, Wasim was sitting. The driver could have noticed
the said sticker on the vehicle. Except Domnik, no other
witnesses stated that they saw the sticker with the words ‘On
Duty’ pasted on the vehicle. PW-7 and PW-18 nowhere stated
that the pistol was pointed at the head of Sunil Singh.
25 It is true that in such an incident the occupants are
bound to get frightened. It needs to be stated that they were
not the ordinary occupants of any vehicle carrying the
passengers. They were doing their duty on a cash van
employed for the transportation of the cash from one bank to
another bank. They had their protocol. The guns are provided
to the security guards to protect the vehicle and cash in such an
250.Cri.Apeal.599.2018.jud.+14.odt
47
incident. It is to be noted that the cash van was 407 Tata make
mini truck. It is not easy to enter this vehicle like a Car. One
has to climb and then open the door and then get entry into the
vehicle. It is not the case of Domnik that their gunmen had no
licence. The conduct of Domnik would assume importance in
this situation. He would have taken out the gun licences from
the gunmen and shown them to that officer. Domnik,
considering their protocol, would have alerted the gunmen and
taken the account of the situation. The two gunmen did not
move an inch from their place, which is not acceptable. They
would have shown a due diligence and protested this act. So on
this first part of the incident, there are major inconsistencies in
their evidence. The incident of dragging the driver from the
cash van to their vehicle by force and then taking control of
their vehicle at the gunpoint on the highway lasted for 10-15
minutes. It is to be noted that such an incident would not have
gone unnoticed by the passersby. It has come on record that
250.Cri.Apeal.599.2018.jud.+14.odt
48
from the spot the vehicles proceeded on the highway for 4-5
km. There was no protest as well as there was no due diligence
to protect their van. Domnik and other occupants within no
time would have realized that the occupants were not the police
officers. Their conduct in this factual position appears to be
inconsistent. It creates a doubt about the occurrence of the
incident in the manner narrated by them on the highway in a
broad daylight.
26 The next part of the incident occurred in the field
at Sonpur Shivar. PW-5, as to this part of the incident, has
stated that the cash van followed the black colour vehicle of the
accused. After crossing Kondhali, the black colour vehicle took
a left turn on kaccha road and they followed the said vehicle.
After travelling for 4-5 km, the vehicles were stopped in one
field having a hut. He has stated that at that place he and
Wasim were brought down by force from the cash van and
taken in a black safari vehicle and made to sit on a middle seat.
250.Cri.Apeal.599.2018.jud.+14.odt
49
He has stated that the accused opened the back door of the cash
van. It is to be noted at this stage that the van was a packed
vehicle meant for carrying the cash. The cash van had security
features. PW-5, being the senior cash officer, was supposed to
have the keys of the lock. He has not stated that the accused
demanded the keys from him and he provided the keys to the
accused. On this aspect, all the witnesses are silent. It is not the
case that the accused at this spot broke open the lock of the cash
van. He has stated that they loaded the cash in two gunny bags
and then closed the door of the van. Thereafter, they brought
their driver to the cash van and told him to drive the cash van
behind the black colour vehicle. As far as this part of the
incident is concerned, PW-6 has stated that after taking a left
turn at Thanegaon, they followed the black colour vehicle. He
has further stated that when they stopped the vehicle they were
giving command as ‘Chabi Lelo Jaldi Jaldi Nikalo’. He has
stated that they released his hand and made him occupy the
250.Cri.Apeal.599.2018.jud.+14.odt
50
driver’s seat of the cash van. PW-5 Domnik is silent about this
part of the incident. He has also not stated that they loaded the
cash from the trunks in the gunny bags. He is silent about the
opening of the door of the cash van.
27 PW-7 has stated that after taking a left turn at
Thanegaon, they traveled 15-20 km by inside road and in the
field, the vehicles were stopped. PW-5 and 6 have stated that
they traveled 4-5 km. PW-7 has stated that they traveled 15-20
km. He has stated that after stopping vehicles, the accused
brought down the custodians and opened the cash van. He is
also silent as to whether the cash van was opened with the keys
snatched or provided by the custodian. He has stated that when
he was sitting in the vehicle, he heard the sound of breaking of
something. It is not the case of the prosecution that the lock
was broke open by the accused.
28 PW-18 has stated that the accused were telling
250.Cri.Apeal.599.2018.jud.+14.odt
51
them to show road. He has stated that thereafter the vehicles
were taken in a barren field. He has stated that after stopping
the vehicles, he heard the loud sound of breaking of the safe
vault. He has stated that the person holding the pistol was
beside them and he was shouting ‘Gold dikhao bore bharo’. He
has stated that thereafter they told the driver of the cash van to
drive the cash van. It is to be noted that at this place also there
was no resistance to the accused by these persons. The
gunmen were expected to show due diligence. They could have
fired the bullets. It is to be noted that this most important fact,
which has not been noticed by the learned Judge, has a great
significance. The accused knew that the cash van was fully
protected. They had seen the two security guards with two
guns. In ordinary circumstances, the first thing that the accused
would have done was to have snatched the guns from the
security guards and kept the same in their vehicle or with one of
them. In my view, this circumstance is very material. It was
250.Cri.Apeal.599.2018.jud.+14.odt
52
not possible for the accused to anticipate that the two security
guards with loaded guns would not fire the bullets on them.
29 Before proceeding to the third and the most
important part of the incident in the forest area, it would be
necessary to consider the description/condition of the cash van.
The description of the cash van can be seen from the
panchanama at Exh. 1358. The cash van was a Metadoor
model 407 bearing registration No. MH-31/CQ-4758. It was
packed and fully protected. It had all security features. On the
front side windshield, the protective iron net was fixed. The
panchanama shows that the front side windshield was broken
on the driver side and two stones were stuck in the net. It is not
the case of the prosecution that for the purpose of stopping this
vehicle, the accused pelted stones. It is also not the case of the
prosecution that the front side windshield was broken by the
accused. It is important to note that on the backside there were
two compartments to this van. It can be seen that the first gate
250.Cri.Apeal.599.2018.jud.+14.odt
53
from the backside of the van was opened. Similarly, the door of
the cash vault was also opened. The first compartment on the
backside was meant for sitting of the security guards. In the
cash vault, the door with all security features was fixed. It is not
clear from this description as to whether the door to the cash
vault had an auto-lock facility or locking facility with the latch.
It is the case of the prosecution that after unloading the cash
from the trunks, the occupants of the van were forcibly pushed
in the cash vault and the door was locked from outside. It is
stated that before fleeing from the spot, the accused had
snatched the mobile phones of the occupants. The articles
which were found on the spot contained a broken handle of the
gate. In my view, the description of van and articles found on
the spot would assume significance while appreciating the
evidence.
30 PW-5 and other witnesses have deposed that from
the field, the driver of the cash van instructed them to follow
250.Cri.Apeal.599.2018.jud.+14.odt
54
the black coloured Tata Safari vehicle. They took the cash van
in the forest area. They had no bags to unload the cash.
Therefore, they opened the cash vault and unloaded all the
trunks in the black safari vehicle. It is to be noted that the size
of the trunks has not been stated anywhere. Therefore, the
question is whether it was possible to load 4-5 trunks filled with
the cash in a Tata Safari vehicle. This is another important
circumstance to create a doubt about the occurrence of the
incident in the manner stated by them. It has come on record
in their evidence that thereafter, the accused persons took them
in a cash vault. They searched them and snatched their mobile
phones. They have stated that they locked them in a vault and
ran away with the cash in a black coloured vehicle. They have
stated that they could not open the door. After some time, one
person on a two-wheeler was passing by the cash van. They
shouted and called him. They told him to open the backside
door of the cash van. They have stated that the said person
250.Cri.Apeal.599.2018.jud.+14.odt
55
could not open the back door. The said person gave an iron rod,
lying near the van, to them and they opened the back door of
the cash van with the help of that rod. Thereafter, they came
out of the vehicle. It is to be noted that the backside window
glass of the van was broken. The backside of the vehicle was
divided into two parts. The first part was cabin meant for the
guard and thereafter, there was a cash vault. Perusal of the
description of the vehicle would show that there was no glass to
the cash vault. The witnesses have not stated that they broke
the window glass. It is pertinent to note that if all the witnesses
had been locked in the cash vault then they would have broken
that part of the glass and tried to come out of the vehicle. In
my view, this is a very doubtful circumstance. Perusal of the
evidence would show that the person, who was passing by the
van, could not open the door even with the help of the rod.
The door was locked. It is evident that there is complete
vacuum on this important part of the case of the prosecution
250.Cri.Apeal.599.2018.jud.+14.odt
56
and which creates a doubt. If the person on the outside of the
vehicle was not able to break open the door or lock, how the
witnesses who were inside the cash vault could have opened
that door. It is further seen on perusal of their evidence that the
lock put to the door from outside was not broken. Even if it is
assumed that they broke open the door from inside either by
pushing or with the help of the tommy, then the latch with the
intact lock would have either fallen on the ground or partially
attached to that door. The panchanama of the vehicle shows
that the broken handle of the door was lying on the spot. If the
handle was broken, then it would have been with the lock,
which was not admittedly broken. It is further pertinent to
note that the said person who had helped the occupants of the
cash van has not been examined as a witness by the prosecution.
Similarly, the statement of the said person was not recorded. In
my view, this is a very important circumstance against the case
of the prosecution.
250.Cri.Apeal.599.2018.jud.+14.odt
57
31 It has come on record in the further evidence that
Sunil Singh (PW-7) tried to search for someone to get the
mobile phone and contact their office at Nagpur. It has come
on record that he went to one field and brought one person to
the spot, who was having the mobile phone. PW-5 then
contacted their incharge Mr Barman, at Nagpur and informed
him about the incident. It is not their case that the person who
helped them to break open the door was not having the mobile
phone. In my view, this exaggerated account is also doubtful.
The person, who had helped them to come out of the cash vault
as well as who provided them the mobile phone would have
been the proper witnesses. The investigating officer was
required to record the statements of such an important
independent witnesses. It is therefore apparent that the
condition of the vehicle on the spot is such that it creates a
doubt about the occurrence of the incident in the manner
narrated by them. In my view, in this backdrop, the failure on
250.Cri.Apeal.599.2018.jud.+14.odt
58
the part of the investigating officer to seize the GPS system
installed in the said vehicle is another circumstance against the
case of the prosecution. The seizure of the GPS system and
analysis of the gadget could have given the exact time, the
location and the movement of the vehicle during this period.
In my view, this is a very vital and important circumstance
against the case of the prosecution.
32 In the above background, the submission advanced
by the learned Amicus that the FIR in this case was ante-timed
needs consideration. PW-5 has stated that, after the incident,
in the forest, the people from nearby villages started gathering
near the cash van. In his evidence, he has stated that at about
6:00 p.m., police from Kondhali and Karanja Police Stations
came to the spot and took them to Kondhali Police Station. In
his examination-in-chief, he has nowhere stated that he
personally informed Mr Barman, their superior at Security
Trans India Private Limited, Nagpur, about the occurrence of
250.Cri.Apeal.599.2018.jud.+14.odt
59
the incident. PW-7, in his evidence, has stated that he made a
phone call to Barman after getting the mobile phone from the
villager. He has stated that Domnik (PW-5) had also talked
with Barman. He has stated that after some time, police came to
the spot. PW-6 has not stated that before the arrival of the
police to the spot, he had personally informed the police about
the occurrence of the incident. It is further seen that PW-5 and
7 are silent about the actual information given to Mr. Barman
at Nagpur. PW-5, in his further evidence, has stated that from
the spot they were taken, first to the Kondhali Police Station,
and from the Kondhali Police Station they were taken to the
Karanja (Ghadge) Police Station. He has stated that at Karanja
Police Station he lodged the report. The report is at Exh. 435.
In this backdrop, it is necessary to mention that the FIR was
registered at Karanja police station at 5:15 p.m. PW-5 has
stated that the incident occurred between 4:00 p.m. and 6:00
p.m. PW-5, 6, 7, and 18 have stated that at about 7:30 p.m.
250.Cri.Apeal.599.2018.jud.+14.odt
60
they were at the Kondhali police station. They have stated that
they left for Karanja police station around 8:30 to 9:00 p.m. It
has further come in their evidence that after reaching Karanja
police station, the police inquired with them about the incident
for 2 to 3 hours. They were interrogated till 5:00 a.m. in the
morning of 08.03.2013. PW-5 has admitted that his statement
was recorded by the police on the next morning and prior to
that his signature was not obtained on any paper. The first
information report, which was registered at 5:15 p.m., bears the
signature of the informant PW-5. It therefore goes without
saying that the report was ante-timed and ante-dated.
33 PW-4 Leeladhar Ukande, the police constable, who
registered the FIR, has stated that his duty hours on
07.03.2013 were from 14:00 hours to 20:00 hours and during
his duty hours, police inspector Deepak Wanjari (PW-48)
reduced into writing the report of PW-5. As per the evidence
of PW-4, the report was lodged before 08:00 p.m. on
250.Cri.Apeal.599.2018.jud.+14.odt
61
07.03.2013. Perusal of the evidence of the informant would
show that by 8:00 p.m. on 07.03.2013 they were at the
Kondhali police station. PW-6, in his evidence, has stated that
they reached Karanja police station at 12 in the midnight and
writing work started around 08:00 a.m. on the next day. PW-5
has stated in para No. 14 of his cross-examination that from
07.03.2013, the police made an inquiry with him. The police
had suspicion that he was involved in this crime. He has
admitted that police kept him in custody and inquired with
him. He has stated that the police assaulted them in the police
station inasmuch as the police had suspicion on him. He has
stated that the police interrogated him till 05:00 a.m. He has
further admitted that he put his signature on papers on the say
of the police. He has further admitted that he, alongwith his
colleagues, was detained at Karanja police station for 11 days.
34 In this context, it would be necessary to consider
the evidence of DW-2 Suresh Sheshrao Mude (ASI) attached to
250.Cri.Apeal.599.2018.jud.+14.odt
62
the Kondhali Police Station, at the relevant time. He was
examined to prove the station diary entry dated 07.03.2013
made at police station Kondhali. He has stated that on
07.03.2013 at about 16:40 hours telephonic information was
received from one retired colonel Vijay Premraj Barman. Mr.
Barman had informed that his 407 Metador carrying cash of
Rs.2,50,00,000/- was robbed by six unknown persons. He has
stated that on the basis of this information, subsequently, an
offence was registered at Karanja police station. He has stated
that after receiving this information, the police staff went to the
spot. It is undisputed that the FIR was registered at 5:15 p.m.
at Karanja police station. PW-5 has stated that in the morning
of 08.03.2013, at about 8:00 a.m., his signature was obtained
for the first time on the paper. It is therefore apparent that the
FIR is ante-dated and ante-timed. It has been established on
the basis of evidence of PW-5.
35 In this context, the learned Amicus relied upon the
250.Cri.Apeal.599.2018.jud.+14.odt
63
decision of the Apex Court in the case of Meharaj Singh .v/s.
State of U.P. with Kalu .v/s. State of U.P. and others1. In this
case, the Apex Court has considered consequences of ante-
timed and ante-dated FIR. Paragraph 12 of this decision is
relevant. It is extracted below:
“12. FIR in a criminal case and particularly in a
murder case is a vital and valuable piece of evidence
for the purpose of appreciating the evidence led at
the trial. The object of insisting upon prompt
lodging of the FIR is to obtain the earliest
information regarding the circumstance in which
the crime was committed, including the names of
the actual culprits and the parts played by them, the
weapons, if any, used, as also the names of the
eyewitnesses, if any. Delay in lodging the FIR often
results in embellishment, which is a creature of an
afterthought. On account of delay, the FIR not only
gets bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured
version or exaggerated story. With a view to
determine whether the FIR was lodged at the time
it is alleged to have been recorded, the courts
generally look for certain external checks. One of
the checks is the receipt of the copy of the FIR,
called a special report in a murder case, by the local
Magistrate. If this report is received by the
Magistrate late it can give rise to an inference that
the FIR was not lodged at the time it is alleged to
have been recorded, unless, of course the
1 (1994) 5 SCC 188
250.Cri.Apeal.599.2018.jud.+14.odt
64prosecution can offer a satisfactory explanation for
the delay in despatching or receipt of the copy of
the FIR by the local Magistrate. Prosecution has led
no evidence at all in this behalf. The second
external check equally important is the sending of
the copy of the FIR along with the dead body and
its reference in the inquest report. Even though the
inquest report, prepared under Section 174 CrPC,
is aimed at serving a statutory function, to lend
credence to the prosecution case, the details of the
FIR and the gist of statements recorded during
inquest proceedings get reflected in the report. The
absence of those details is indicative of the fact that
the prosecution story was still in an embryo state
and had not been given any shape and that the FIR
came to be recorded later on after due deliberations
and consultations and was then ante-timed to give it
the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed
above, the FIR has lost its value and authenticity
and it appears to us that the same has been ante-
timed and had not been recorded till the inquest
proceedings were over at the spot by PW 8.”
36 In this case, the Apex Court has held that ante-
timed and ante-dated FIR is the strong circumstance in favour
of the accused. The FIR on this count loses its value and
authenticity. The ante-timed and ante-dated FIR, if proved,
suggest that it was a handy work of police to obviate the delay
250.Cri.Apeal.599.2018.jud.+14.odt
65
in lodging the FIR on account of due deliberation and
embellishment. The investigating officer PW-48 was
confronted with this factual position. The explanation sought
to be placed on record by him, contrary to the evidence of PW-
5 and other witnesses, is further creating doubt in the mind of
the Court. In my view, this ante-dated and ante-timed FIR is
the most important circumstance to create a doubt about the
occurrence of the incident in the manner stated by the
witnesses and the involvement of the accused in this crime.
37 In the above backdrop, it is necessary to consider
whether the evidence adduced by the prosecution with regard
to the identification of the accused in the test identification
parade and before the Court at the time of the evidence inspires
confidence or not. It is the basic contention of the accused that
the entire test identification parade has been vitiated inasmuch
as the witnesses, before the actual conduct of the test
identification parade, had an opportunity to see them in the
250.Cri.Apeal.599.2018.jud.+14.odt
66
police station. In order to appreciate these submissions, the
evidence of the witnesses and other materials is required to be
appreciated. PW-5, 6, 7 and 18 are the main witnesses to the
occurrence of the incident and, as such, for the identification of
the accused at the test identification parade. At the cost of
repetition, it is necessary to mention at this stage that the police
had a suspicion that all these witnesses were involved in the
crime. It has come on record in the evidence of PW-5, 6, 7 and
18 that from the time of the lodging report for 11 days they
were kept in Karanja police station. Accused Nos.1, 2 and 3
were arrested on 09.03.2013. Accused Nos.4 and 5 were
arrested on 11.03.2013. Accused No. 23 was arrested on
31.07.2013. It is the case of the prosecution that PW-5
identified accused Nos. 1 and 4 at the test identification parade
conducted on 08.04.2013. PW-5 identified accused Nos.5
and 6 at the test identification parade, conducted on
23.04.2013 and identified accused No. 23 in the test
250.Cri.Apeal.599.2018.jud.+14.odt
67
identification parade conducted on 21.08.2013. PW-5
identified all these above accused in the Court at the time of his
evidence. PW-6, the driver of the cash van, identified accused
Nos.1, 4 and 5 at the test identification parade. Similarly, he
identified these accused in the Court at the time of his
evidence. PW-7, the gunman, identified accused Nos.1, 4, 6,
23 and 24 at the test identification parade. Similarly, in his
examination-in-chief, he identified these accused. However, in
his cross-examination, conducted on behalf of the defence
advocate, he has admitted that he cannot identify the accused
involved in the incident. The learned Judge, in view of the
doubtful nature of his evidence, has discarded his evidence.
PW-18, the gunman, identified accused Nos.1, 4 and 6 at the
test identification parade. He has identified these accused in
the Court at the time of his evidence. He did not identify the
pistol. Similarly, PW-7 also did not identify the pistol.
38 The learned Amicus took me through the evidence
250.Cri.Apeal.599.2018.jud.+14.odt
68
of the above witnesses and submitted that their evidence proves
beyond doubt that this identification of the accused by these
witnesses was vitiated. All these witnesses had been subjected
to searching and grueling cross-examination touching the
relevant aspects as to the test identification parade. PW-5 has
admitted that the police had suspicion that they were involved
in the commission of the crime and therefore, from
07.03.2013, they were kept in the police station. In his cross-
examination, he has admitted that PW-7 and his other
colleagues were also with him at Karanja police station for 11
days. He has admitted that police inspector Bhusari told them
that they should narrate the incident as suggested by police
otherwise they would be booked in this crime. He has stated
that therefore they acted as per the say of police inspector
Bhusari. He has categorically admitted that during this period
of 11 days, police inspector Bhusari used to show all the
accused arrested by the police in the crime to them. He has
250.Cri.Apeal.599.2018.jud.+14.odt
69
admitted that during this period, the police showed the case
diary to them. In the case diary, there were photographs of the
accused persons arrested in the crime. He has further admitted
that at the time of the identification parade, police pointed out
the persons standing for the test identification parade to
ascertain their involvement in the incident. He has stated that
the same thing had happened while conducting a test
identification parade on three dates.
39 PW-6 has admitted that his statement was recorded
on 08.03.2013. He has admitted that the room for recording
the statement is at the entrance and besides that room there is a
lockup. He has further admitted that there was pressure on
police machinery to detect the crime in a short time. He has
stated that on the way to the central jail at Wardha, for the
purpose of test identification parade Police constable
accompanied them. The police constable was carrying the case
papers. He has denied the suggestions that police had shown
250.Cri.Apeal.599.2018.jud.+14.odt
70
the photographs of the accused to them. This statement is
contrary to the admission given by PW-5. He has further
admitted that during this period they were under pressure.
During this period of five days, the accused were arrested. He
has stated that they were kept in the wireless room of the police
station at Karanja. The lockup was by the side of this room.
He has stated that at the time of the test identification parade,
they had a discussion. He has categorically admitted that the
officer, who had accompanied them from Karanja Police
Station to jail, was sitting in front of the room where they were
brought for the test identification parade.
40 As far as evidence of PW-7 is concerned, it has
been discarded by the learned Judge. In his examination-in-
chief, he identified the accused persons present in the Court.
However, in his cross-examination he took a somersault. He
has admitted that for 11 days he, alongwith his other
colleagues, was kept at Karanja police station. He was under
250.Cri.Apeal.599.2018.jud.+14.odt
71pressure of the police authority. He has stated that due to the
pressure of the police, he followed the instructions of the police.
He has categorically admitted that at the test identification
parade, he identified the accused on the say of the police. He
has further admitted that at the time of test identification
parade, they all were under pressure of the police.
41 PW-18 identified some of the accused before the
Court at the time of his evidence. It has come on record in his
evidence that police recorded his statement 7-8 times during
this period. It has come on record that the statements of all
these witnesses were recorded multiple times. The witnesses
have stated that their fresh statements were recorded because
statements made by them were not found suitable by the police
for the case. PW-18, in his cross-examination, has categorically
stated that he was called for an identification parade only on
08.04.2013 and 23.04.2013 and thereafter, he was not called.
His examination-in-chief and other evidence would show that
250.Cri.Apeal.599.2018.jud.+14.odt
72
on 21.08.2013 he identified two accused at test identification
parade.
42 PW-5, 6, 7 and 18 are the main witnesses of the
prosecution to establish the identity and, as such, the complicity
of the accused persons in the offence of dacoity. In view of the
shaky nature of the evidence of these witnesses, it is not possible
to believe the evidence and ultimately the case of the
prosecution. The evidence of these witnesses is sufficient to
conclude that during the period of 11 days, when they were
detained in the Karanja police station, the accused arrested in
the crime and particularly the main accused were shown to
these witnesses.
43 Learned Advocate Mr Atharva Manohar, relying
upon a decision in the case of Gireesan Nair and others .v/s.
State of Kerala2, submitted that the test identification parade
2 (2023) 1 SCC 180
250.Cri.Apeal.599.2018.jud.+14.odt
73
conducted was mere formality having no legal value and
therefore has to be discarded. In this case, the Apex Court has
held as follows:
“In cases where the witnesses have had ample
opportunity to see the accused before the
identification parade is held, it may adversely affect
the trial. It is the duty of the prosecution to
establish before the court that right from the day of
arrest, the accused was kept “baparda” to rule out
the possibility of their face being seen while in
police custody. If the witnesses had the opportunity
to see the accused before the TIP, be it in any form
i.e. physically, through photographs or via media
(newspapers, television, etc.), the evidence of the
TIP is not admissible as a valid piece of evidence.
(Para 31)If identification in the TIP has taken place
after the accused is shown to the witnesses, then
not only is the evidence of TIP inadmissible, even
an identification in a court during trial is
meaningless.”
44 In the backdrop of the aforestated legal position
and the shaky evidence of the witnesses discussed above, the
submissions advanced by the learned Amicus deserve
acceptance. It is to be noted that in this case the police
250.Cri.Apeal.599.2018.jud.+14.odt
74
suspected the involvement of all the above-stated witnesses in
the crime. The investigation conducted in the crime has failed
to address more than one doubtful circumstance. On the
contrary, the evidence of these witnesses would show that the
police were in a tearing hurry to detect the crime and therefore,
they were pressurized to act as suggested by the police. While
appreciating the evidence of the witnesses as to the manner of
the occurrence of the incident, I have observed that the
evidence does not inspire confidence. There was no reason for
the police to detain the witnesses for 11 days in the police
station. Similarly, there was no reason to call all the witnesses
first to the Karanja Police Station and then to take them
together with the case record to Wardha Central Prison for a
test identification parade. In my view, the evidence of the
witnesses is sufficient to conclude that the test identification
parade loses its significance. In view of this, the identification
of the accused by the witnesses in the Court loses its value and
250.Cri.Apeal.599.2018.jud.+14.odt
75
credibility. It is evident that the investigating officer, on
account of supervision of the Superintendent of Police Wardha
District, was in a tearing hurry to detect the crime and answer
the public outcry and the perception.
45 PW-31 is the Nayab Tahsildar, who had conducted
the test identification parade. He was not concerned with the
investigation. He has prepared the record of the test
identification parade. The evidence of PW-31, as to the
conduct of the test identification parade, by itself would not be
sufficient to attach credibility to the factum of the identification
of the accused persons at the test identification parade as
recorded in the test identification parade memorandums. In
my view, therefore, the edifice of the case of the prosecution
with regard to the identification of the main accused involved
in the incident of dacoity falls flat. The evidence of the
witnesses as to the identification of the accused persons at the
test identification parade and at the time of their evidence in
250.Cri.Apeal.599.2018.jud.+14.odt
76
the Court is tainted. The evidence is shaky and doubtful.
Therefore, I am not inclined to accept the evidence of these
witnesses on the point of the identification of the accused at test
identification parade as well as in the Court.
46 Learned Amicus submitted that the role of the
police officers creates a doubt about the involvement of the
accused and the very genesis of the crime. It is submitted that
the overall investigation conducted in this crime was tainted.
The learned Amicus took me through the evidence of witnesses
to fortify this submission. It is seen that PW-48 has deposed
about the recovery of the pistol from the Vainganga lodge at
Gadchiroli. PW-48 has deposed that accused No. 23 was
involved in this crime of dacoity and the pistol used by him was
recovered at his instance. PW-29 Devendra Bisen, the owner
of the lodge is examined to prove this fact. The panch witness
to this recovery of the pistol has not supported the case of the
prosecution. Exh. 1500 and 1501 are the bills of the lodge
250.Cri.Apeal.599.2018.jud.+14.odt
77
issued to the accused No. 23 and his companion. The bills
would show that they stayed at the lodge for more than a
month. PW-29 has admitted that the police used to regularly
visit their lodge and have an inspection on a routine basis and
used to make an inquiry about the persons staying in the lodge
for a long period. He has admitted that the registers were also
regularly submitted for police verification. The register
maintained at the lodge is not part of the record. The
documents, which are purported to be the bills issued to
accused Nos. 23 and 24, would show that these documents are
created just for the purpose of this case. The bills further show
that for a one month’s stay the accused Nos. 23 and 24 paid
only Rs.2000/-. Perusal of bill Exh. 1501 shows that in this
bill departure date and departure time is not mentioned. The
suitcase was kept in the storeroom. At the time of the visit of
the police that storeroom was locked. PW-29 has stated that
the Manager of the lodge broke open the lock of the storeroom.
250.Cri.Apeal.599.2018.jud.+14.odt
78
It is to be noted that when the luggage of a guest/visitor is kept
in the storeroom of the hotel or the lodge, the necessary entry is
made in the guest register. The suitcase was kept in the
storeroom for months together. It is to be noted that when the
guest checks out, the luggage kept with the hotel or lodge is
returned to the guest. The suitcase was lying in the storeroom
for months together. There is no contemporaneous record to
establish that any such suitcase was kept in the storeroom. It is
further seen that the electricity bill of the lodge/premises has
been produced. Perusal of the bills and electricity bill would
show that the pin code on the two bills and the electricity bill is
different. In my view, this circumstance clearly shows that the
investigation on this count is tainted.
47 PW-40 API Pravin Kale has stated that he arrested
accused No. 7 Sheikh Mustaq @ Sameer at Amaravati in a
Balero vehicle. He was shown arrested on 10.04.2013. PW-40
has admitted that on that day the location of his mobile phone
250.Cri.Apeal.599.2018.jud.+14.odt
79
might be at Wardha. In my view, this shows the extent of the
falsehood of the investigating officer. The accused was shown
to have been arrested from Amravati, whereas the location of
the mobile phone of PW-40 was at Wardha. As far as the
defective investigation is concerned, it is apparent that the first
part with regard to the loading of the actual cash in the cash van
was not at all investigated. The investigating officer was
required to collect the documentary evidence with regard to the
cash loaded in the cash van. The record was available with the
bank. Similarly, PW-40 has admitted that he is not aware of
the person who had obtained a description of the currency
notes of Axis Bank from Domnik. He has admitted that he had
not obtained any information about the description of the
currency notes prior to proceeding with the investigation. The
police have failed to seize the GPS system installed in the cash
van to cross-check or verify the story of the informant and his
companions. It is further seen that the investigating officer did
250.Cri.Apeal.599.2018.jud.+14.odt
80
not avail the services of the panch witnesses from the
Government offices. It has come on record that the station
diary entries were made by the police officer while proceeding
for the investigation. It is evident on perusal of these station
diary entries that the names of the panch witnesses were not
recorded in those station diary entries. The panch witnesses
have not supported the case of the prosecution.
48 As far as the genesis of the crime is concerned,
perusal of the evidence of PW-5, 6, 7 and 18 would show that
the police have suppressed the same. PW-5, 6, 7 and 18 have
admitted that they were kept at Karanja Police Station for about
11 days. The police initially suspected that this crime was the
handy work of PW-5, 6, 7 and 18. It has come on record in
their evidence that they were threatened by the police and their
statements were recorded multiple times. The witnesses have
stated that when the police were satisfied that the statements
made by them were proper to suit their purpose, those
250.Cri.Apeal.599.2018.jud.+14.odt
81
statements were finally made a part of the record. It therefore
goes without saying that the police have deliberately suppressed
the multiple statements made by these witnesses. It creates a
doubt that the police have put forth a fabricated and concocted
version of the prosecution case. The police have suppressed the
genesis of the crime namely, the actual cash loaded in the cash
van at Akola as well as the involvement of the real culprits.
49 The learned Amicus relied upon a decision of the
Division Bench of this Court, to which I was one of the
Member, in the case of Hasankhan Jabajkhan .v/s. State of
Maharashtra3 to substantiate his contention that the
suppression of the genesis of the case of the prosecution is very
fatal and as such, creates a reasonable doubt about the case of
the prosecution. This issue has been addressed in paragraph
No. 51 of the decision. Paragraph No. 51 is extracted below:
3 2022 (3) ABR (Cri.) 149
250.Cri.Apeal.599.2018.jud.+14.odt
82“51. The learned advocates for the appellants
placed reliance on the reported decisions to
substantiate their submissions. Learned advocate
Shri A.S. Manohar, relying upon the decision in the
case of Lakshmi Singh and others v. State of Bihar,
reported in AIR 1976 SC 2263, submitted that if
the evidence on record indicates conspiracy of all
witnesses to implicate innocent persons, then in
that situation, the truth and falsehood get
inextricably mixed together and it becomes difficult
to separate them. The learned advocate submitted
that benefit, in such a case, has to be extended to
the accused. On appreciation of the evidence, it is
found that it is not possible to disengage the truth
from falsehood. It is found that truth and falsehood
are so inextricably mixed together that it is difficult
to separate them. If an attempt is made to do so, it
would amount to reconstructing a new case for the
prosecution, which would not be permissible in a
criminal trial. Learned advocate Shri Manohar,
relying upon the decision in the case of Takhaji
Hiraji v. Thakore Kubersingh Chamansingh and
others, reported in (2001) 6 SCC 145 : (AIR 2001
SC 2328), submitted that if the best witness is not
examined then an adverse inference has to be
drawn against the case of the prosecution and in
favour of the accused. In this case, it is held that if
there is failure on the part of the prosecution to
examine material witnesses, then it becomes fatal to
the case of the prosecution. It is held that it is more
so when the evidence available on record creates a
doubt and is not sufficient to unfold the genesis of
the incident or an essential part of the prosecution
case. In the case on hand, it is found that the
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83prosecution has failed to examine material
independent witnesses, who could have unfolded
the genesis of the incident. The witnesses examined
have enmity with the accused and are interested
witnesses. In support of the above submission,
reliance is also placed upon the decision in the case
of Arshad Hussain v. State of Rajasthan, reported in
(2013) 14 SCC 104 : (AIR 2013 SC 3001). In this
case, it is held that when the genesis and the
manner of the incident is doubtful, the accused
cannot be convicted. Suppression of the genesis and
the manner of the incident is sufficient to create a
doubt about the case of the prosecution. The doubt
could be said to be, in such a situation, a reasonable
doubt. The proposition, in our opinion, would be
applicable to the present case.”
50 In this case, it is held that the suppression of the
genesis and the manner of the occurrence of the incident is
sufficient circumstance to create a doubt about the case of the
prosecution. In my view, the learned Amicus is supported on
this point by this decision. On analysis of the material on
record, I am satisfied that the police have suppressed the genesis
of the incident. It is the most doubtful circumstance.
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84
51 On minute scrutiny and appreciation of the
evidence, I am satisfied that the evidence does not inspire
confidence. The genesis of the incident has been suppressed by
the investigating officer. The FIR is ante-dated and ante-timed.
The test identification parade of the accused person is shaky
and doubtful. The evidence woefully fall short to prove that
the amount of Rs.2,36,50,000/- was loaded in the cash van at
Akola. In the facts and circumstances, therefore, the evidence
adduced by the prosecution cannot be made the basis of the
conviction of the accused, who have been held guilty of the
dacoity under Sections 395 and 397 of the IPC.
The charge under Sections 412 and 414 of the Indian Penal
Code
52 Learned Advocate Mr Atharva Manohar, appointed
to represent accused No.21, advanced the lead argument. The
advocates appearing for the remaining accused facing the
similar charge, submitted their written notes of arguments and
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85
at the stage of the arguments before the Court, adopted the
submissions advanced by the learned Advocate Mr Atharva
Manohar. Learned Advocate Mr. Atharva Manohar assailed the
findings of the learned Judge on multiple grounds. Learned
Advocate submitted that the prosecution is duty bound to
prove, by leading cogent evidence, that the accused had
knowledge or reasonable grounds to believe that the property
was stolen in dacoity. It is submitted that the dishonest intent
of the accused is crucial and as such, it must be proved by
leading cogent and concrete evidence. Learned Advocate
submitted that the prosecution has relied upon statements
made by the accused persons to the police officers with regard
to the possession of the money, which was the subject matter of
dacoity committed by the accused persons. Learned advocate
submitted that this evidence is inadmissible. The prosecution
has not adduced cogent and concrete evidence to attribute the
knowledge to the accused that any dacoity was committed and
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86
the money was subject matter of dacoity. Learned Advocate
submitted that the prosecution has relied upon the statements
of the co-accused made before the police officers, which led to
the recovery of the cash, as prime evidence. In the submission
of the learned Advocate, there is no independent evidence to
prove that the accused persons made memorandum statements
under Section 27 of the Indian Evidence Act, 1872 (for short,
‘the Evidence Act‘) and the statements made by the respective
accused led to the recovery of the cash. It is pointed out that
the panch witnesses, who are the stock witnesses of the Karanja
Police station, have turned their back to the prosecution. There
is hardly any independent evidence to prove the statements
made by the accused persons before the police officers, which
ultimately led to recovery of the money. Learned Advocate
submitted that the evidence of the investigating officers does
not inspire confidence. The investigation is faulty and
colourable. The investigating officers have suppressed the
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87
material facts. It is submitted that the investigating officer Mr.
Wanjari (PW-48), has failed to carry out the investigation and
establish that on 07.03.2013, the cash worth Rs.2,36,50,000/-
was loaded in the cash van. Learned Advocate submitted that
the failure to establish this fact is the strong circumstance to
conclude that the recovery attributed at the instance of the
accused persons was not pertaining to the dacoity. In order to
seek support to his submissions, learned Advocate has relied
upon the decision in the case of Shiv Kumar .v/s. State of
Madhya Pradesh4. In this case, the Hon’ble Apex Court has
held that in order to establish that the person is dealing with
stolen property, the ‘believe’ factor of the person is of stellar
importance. For successful prosecution, it is not enough to
prove that the accused was either negligent or that he had a
cause to think that the property was stolen or that he had failed
to make enough inquiries to comprehend the nature of the
goods procured by him. It is held that the failure of the
4 (2022) 9 SCC 676
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88
prosecution to establish mens rea or knowledge that the
property in question was stolen property is the strong
circumstance in favour of the accused.
53 Learned Advocate Shri R. M. Daga, appearing for
accused No. 8, in support of his submission, has placed heavy
reliance on the decision in the case of K. Venkateshwara
Rao .v/s. State represented by Inspector of Police, A.P. 5. In this
case, the Apex Court has held that the onus is on the
prosecution to establish that the accused had knowledge that
the property was stolen property or he has a reason to believe
that it is stolen property. It is further held that in the absence of
such proof, the accused could not be held guilty under Section
412 of the IPC, more so when he has specifically denied the
recovery.
54 Learned APP Mr. Pendke for the state submitted
5 (2002) 6 SCC 247
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that the evidence of the police officers is of stellar quality, and
on the basis of the evidence of the police officers, the
prosecution has established that the accused persons, while in
the custody of the police, made a statement with regard to the
concealment of the cash, the subject matter of dacoity and
pursuant to those statements, the cash had been recovered. In
the submission of the learned APP, the recovery of the cash at
the instance of the accused persons is a strong circumstance
against the accused. Learned APP submitted that the recovery
of the cash is sufficient to attribute the knowledge to the
accused that it was stolen property. It is submitted that, on the
basis of the recovery of the cash, reasonable grounds to believe
that the property was stolen in dacoity have to be attributed to
each one of the accused, albeit separately with regard to their
respective statement and recovery. Learned APP submitted
that the evidence of the police officers inspires confidence. The
failure of the panch witnesses to support the case of the
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90
prosecution is not always fatal to the prosecution case. It is
submitted that the accused persons have failed to establish their
right vis-a-vis the cash and the source of the cash. Learned APP
submitted that the learned Judge has properly appreciated the
evidence and has come to unassailable conclusion on this
point.
55 I have minutely perused the evidence adduced by
the prosecution. I have also gone through the reasons recorded
by the learned Judge in support of his findings. On going
through the available evidence on record and the reasons
recorded by the learned Judge, I am satisfied that the
prosecution, on this count, has miserably failed to prove its case
beyond reasonable doubt.
56 It has come on record that considering the
magnitude and seriousness of the crime, the police might be
under tremendous pressure to arrest the culprits and recover the
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91
cash. The panch witnesses to the memorandum and discovery
panchanamas, attributed to the respective accused persons, have
not supported the case of the prosecution. The panch witnesses
have turned hostile. It has come on record that the panch
witnesses selected even for the memorandum and discovery
panchnamas, conducted at Nagpur and other places, were from
Karanja. It has come on record that the services of one panch
witness have been availed of by the investigating officer for
multiple such memorandum and discovery panchnamas. On
this count, the police have committed a mistake. It appears that
the police were in a tearing hurry to arrest the culprits and
answer the public outcry. In a crime of such magnitude and
seriousness, the investigating officer is required to avail the
services of the panch witnesses from the government offices. It
is common knowledge that the panch witnesses from the
government offices, namely the government servants normally
do not turn hostile. Those panch witnesses support the case of
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92
the prosecution. In this case, the investigating officers were
required to avail the services of the panch witnesses from the
government offices. At the stage of investigation, the
investigating officer must ensure that the evidence collected
during the course of the investigation is sufficient to sustain the
charge against the accused. In case of availing the services of
the stock panch witnesses, there is always a danger of those
witnesses turning their back to the prosecution.
57 It is evident that the investigating officers, while
proceeding with the investigation with the panch witnesses,
have prepared the station diaries. It is seen on perusal of the
record that, barring one or two station diaries, the names of the
panch witnesses had not been mentioned. The station diary is
most important contemporaneous documentary evidence in
such a factual situation. It is to be noted that the investigating
officer must take proper care to maintain the contemporaneous
documentary evidence. When the panch witness turns hostile,
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93
the submission is advanced that the panch witness was not
present throughout and signatures of the panch witness were
obtained in the police station. In my view, in order to meet
such submission, there must be contemporaneous documentary
evidence. The panch witnesses have admitted their signatures
on the panchnamas. The panch witnesses have not supported
the prosecution with regard to the contents of the
memorandum and discovery panchnamas. In my view, this is a
vital circumstance against the case of the prosecution.
58 Section 27 of the Evidence Act allows for the
admissibility of only that part of the confessional statement
which lead to the discovery of a new fact. This means that if
the information provided by the accused results in the discovery
of something previously unknown to the police, then that part
of the statement can be used as evidence. The absence of
independent witnesses does not necessarily invalidate the
evidentiary value of the statement. However, the credibility
250.Cri.Apeal.599.2018.jud.+14.odt
94
and reliability of the statement need to be scrutinized more
vigorously by the Court. It is to be noted that the exact
information or a statement made by the accused, admissible
under law, must be proved. The information must be directly
related to the discovery of the fact and must be specific enough
to lead to the discovery. It has been held in the catena of
decisions that the discovered fact must be something that was
not previously known to the police.
59 In the case of Pulukuri Kottaya and others .v/s.
Emperor6, it has been held that only that part of the
confessional statement would be taken into account, which may
lead to the discovery of fact, and that discovery should be a
physical object and not only a mental fact. Therefore, the
actual statement made by the accused before police must be
specifically proved. It must be proved that the statement is
admissible as a confession and it must lead to the discovery of a
6 AIR (34) 1947 Privy Council 67
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95
physical object and not only a mental fact.
60 In this case, except for the statements of the
accused persons, there is no other independent evidence. The
prosecution, in order to prove this fact, has relied upon the
evidence of the investigating officers before whom the
statements had been made by the respective accused. It has
come on record that at multiple places the recovery of a cash
had been made. It is the submission of the learned APP, in the
backdrop of the recovery of such a huge cash, inference
consistent with the voluntary and truthful nature of the
confessional statements by the respective accused has to be
drawn. It is submitted by the learned APP that it would not be
possible for the investigating officer to plant the amount, which
runs into Rs.1,97,00,000/-. In my view, this submission cannot
be accepted for more than one reason. The prosecution has
failed to prove that the cash worth Rs.2,36,50,000/- was loaded
in the cash van on 07.03.2013. The documentary evidence on
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96
record beyond doubt proves that the cash worth Rs.61,00,000/-
was loaded in the cash van. PW-5, who was the cash officer and
incharge of the cash van, did not produce before the police the
denomination slip handed over to him, when the cash was
loaded in the van. Similarly, the investigating officer did not
conduct any investigation on this point. It is evident that the
remittance register was produced for the first time in the Court
at the time of the evidence of Assistant Manager (PW-50). In
my view, therefore, the submission of the learned APP that the
Court has to draw an inference that such a huge cash could not
be planted and it must be presumed to be the stolen cash
cannot be accepted.
61 It is to be noted that in order to attract the
provisions of Sections 412 and 414 of the IPC, the prosecution
is duty bound to prove that the amount recovered was stolen
cash of dacoity. The prosecution is duty bound to prove, by
leading cogent evidence, that the accused had knowledge or
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97
reasonable grounds to believe that the property was stolen in a
dacoity. The phrase “had a reason to believe” is crucial in legal
context, particularly in criminal law, as it pertains to the mental
state of the accused. In this case, the recovery at the instance of
the accused persons attributed to the respective accused has not
been proved by leading cogent, concrete and independent
evidence. The investigating officer in a tearing hurry proceeded
further with the investigation and availed the services of the
stock panch witnesses, who did not support the prosecution. I
have noticed number of lacunas and drawbacks in the
investigation. The investigation, by and large, was a defective
investigation. The investigating officer could not collect
evidence to establish the very genesis of the incident. In such a
crime, the dishonest intention of the accused is crucial and must
be demonstrated through evidence. The recovery of the cash
by itself would not be sufficient to conclude that it was stolen
property connected with the dacoity.
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98
62 In the facts and circumstances, I conclude that the
prosecution has miserably failed to prove the charge under
Sections 412 and 414 of the IPC. The confessional statements
have not been proved. Minute perusal of the evidence of the
police officers, would show that the police officers have not
categorically stated in their substantive evidence about the
actual statement made by the accused. It is seen that the
learned Judge at the stage of the evidence of the police officers,
despite objection on the part of the learned defence advocates,
admitted the entire memorandum panchanama in evidence. It
is necessary to mention that at the stage of the evidence, the
admissible portion of that confessional statement under Section
27 of the Evidence Act has to be categorically recorded before
the Court and that part of the statement from the
memorandum panchanama needs to be admitted in evidence.
The Court cannot leave the issue of admissibility of that part of
a statement for final adjudication. In view of this, I conclude
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99
that on this count also the evidence adduced by the prosecution
is awfully lacking. The defective investigation and the failure to
unearth the genesis of the crime by the investigating officer are
the strong circumstances to discard and disbelieve the case of
the prosecution vis-a-vis the charge under Sections 412 and
414 of the IPC. In my view, the interested evidence of the
police officers therefore cannot be accepted. It needs to be
stated that the evidence of the police officers cannot be thrown
overboard merely because the panch witness does not support
the case of the prosecution. The evidence of the investigating
officer can be made the basis of a conviction provided the
evidence inspires confidence. The evidence shall not give scope
to any inference other than the fact investigated and put forth
before the Court by the investigating officer. In this case, there
were multiple investigating officers. There was nothing wrong
on the part of the Superintendent of Police, Wardha to appoint
as many investigating officers as possible for conducting the
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100
investigation. However, it was necessary to maintain the proper
coordination amongst the investigating officers. In view of this,
I am not prepared to accept the evidence of the investigating
officers as a gospel truth to bring home the guilt of the accused
under Sections 412 and 414 of the IPC.
63 In view of the above, I conclude that the
prosecution has miserably failed to prove the guilt of the
appellants. The evidence adduced by the prosecution is
doubtful and shaky. The evidence awfully falls short to prove
the charge against the appellants. In view of this, the appeals
are deserves to be allowed.
64 Before parting with the matter, it is necessary to
acknowledge the assistance rendered by the learned Amicus
Curiae Mr Adwait Manohar, Advocate. Similarly, it is necessary
to acknowledge the assistance rendered by learned Advocate Mr
Atharva Manohar, who has been appointed to represent the
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101
appellant in Criminal Appeal No. 599 of 2018. Similarly, the
efforts put in by the remaining advocates also deserve to be
acknowledged. The efforts and assistance rendered by the
learned APP Mr Amit Chutke and Mr Piyush Pendke also need
acknowledgment. I place on record my appreciation for the
able assistance rendered by the learned Amicus curiae and
other advocates in the appeals. I also place on record my
appreciation for the able assistance rendered by learned APPs
Mr Amit Chutke and Mr Piyush Pendke. In view of this, I
proceed to pass the following order:
ORDER
1. All criminal appeals are allowed.
2. The judgment and order of conviction and
sentence passed by the learned Additional Sessions Judge,
Wardha dated 17.08.2017 to the extent of the appellants/
accused is quashed and set aside.
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102
3. Accused No.1 – Chandrashekhar s/o Subhrahmanyam
Mudliyar, accused No. 4 – Shailesh @ Ravi S/o. Bhaskarrao
Masram and accused No. 5 – Sachin S/o. Chandraprakash
Shrivastav are acquitted of the offences punishable under
Sections 395, 120-B and 342 of the Indian Penal Code.
4. Accused No. 2 -Sallukumar @ Selvakumar
Balsubramanyam Kaunder, accused No-10 Ravindra @ Ravi
S/o. Sampatrao Madekar, accused No.11-Mangal @
Satyaprakash S/o. Nandlal Yadav, accused No. 12- Prashant
S/o. Rambali Waghmare, accused No. 13- Ravi @ Chhotu S/o.
Tikaram Bagade, accused No. 14- Mohd. Sadiq S/o. Sheikh
Mehaboob, accused No. 15- Suleman S/o. Yunus Surya,
accused No. 16- Mobin Ahmad Khan S/o. Saifulla Khan,
accused No. 17- Sheikh Altaf S/o. Sheikh Munaf, accused No.
19 – Sau. Sadhna W/o. Kishor Itale and accused No. 20-
Ashwind Singh @ Sonu S/o. Shatrughnasingh Chavhan are
acquitted of the offence punishable under Section 412 of the
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103
5. Accused No. 7 -Sheikh Mustaq @ Sameer S/o.
Sheikh Habib, accused No. 8- Rehaan Baig S/o. Akram Baig
and accused No. 21- Pankaj S/o. Vinayak Kanoje are acquitted
of the offence punishable under Section 412 of the Indian
Penal Code.
6. Accused No. 23- Mohd. Shamim S/o. Abdul Ajij
is acquitted of the offences punishable under Sections 397,
120-B and 342 of the Indian Penal Code.
7. Their bail bonds stand cancelled.
8. Mr Atharva Manohar, learned Advocate appointed
to represent appellant in Criminal Appeal No. 599 of 2018, is
entitled to receive the fee. The High Court Legal Services Sub
Committee, Nagpur is directed to pay the fee of the learned
250.Cri.Apeal.599.2018.jud.+14.odt
104
appointed Advocate, as per the rules.
9. The criminal appeals stand disposed of,
accordingly. Pending applications, if any, also stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 21/12/2024 20:01:09