Wednesday, 20 January 2016

How to prove identity of mobile telephone instrument in criminal case?

Question is, whether the identity of the said mobile telephone
instrument, as the same one, that had been robbed, has been
satisfactorily established.  It may be recalled that the IMEI number
of   the   mobile   telephone   instrument   has   not   been   brought   on
record.  It was easily possible for the investigating agency to have
collected such information, so as to fix the identity of the mobile
telephone instrument, as the same that was being used by the first
informant Ashok.   Even assuming that Ashok did not know the
IMEI number, it was easily possible to ascertain the same from the
connectivity number i.e. the mobile telephone number itself.  The
same, however, has not been done.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1291 of 2012
ARUN MARUTI WAGHCHAURE 
V/s.
THE STATE OF MAHARASHTRA 
CORAM : ABHAY M. THIPSAY, J.
DATE : 19th MARCH 2015.
Citation; 2015 ALLMR(CRI)4339 Bom

1 This appeal is directed against the judgment and order
dated   1st  December   2011,   passed   by   the   Additional   Sessions
Judge,   Raigad,   Alibaug,   in   Sessions   Case   No.51   of   2012,
convicting the appellant of an offence punishable under Section

395 of the Indian Penal Code (IPC) and sentencing him to suffer
Rigorous Imprisonment for a period of seven years and to pay a
fine of Rs.3,000/­, in default, to suffer Rigorous Imprisonment for
2 months.   The appellant was the accused no.1 in the said case
and there were four others, who were also prosecuted along with
the appellant.   However, the learned Additional Sessions Judge
found the said four persons not guilty and acquitted them.
2 The prosecution case, as found in the 'brief facts of the
case',   mentioned   in   column   no.17   of   the   printed   prescribed
proforma of the Police Report, is, as follows :
That, on 12th September 2007, at about 10.00 p.m., the First
Informant – Ashok Joshi – was driving his motor vehicle – Tavera
car – on the Mumbai – Pune Road.  When the First Informant got
down from the car to remove a stone that was lying on the road,
the   appellant     and   the   other  accused  robbed   him  of   his   gold
bracelet, mobile telephone and gold chain, totally worth about
Rs.36,000/­, and thereby, committed an offence punishable under
Section 395 of the IPC.

3 In order to prove its case against the appellant and the
other accused, the prosecution examined eight witnesses during
the trial.   As aforesaid, upon considering the evidence adduced,
the learned Additional Sessions Judge found the appellant guilty,
but, the others not guilty.
4 I have heard Mr.Satyavrat Joshi, the learned counsel
for the appellant.   I have heard Mr.Deepak Thakre, the learned
APP for the State.  With their assistance, I have gone through the
entire evidence adduced during the trial.   I have also carefully
gone through the impugned judgment.
5 The details of the prosecution case are to be found in
the   testimony   of   the   First   Informant   –   Ashok   Jadhav   (PW4).
According to him, he was working as a driver on Tavera jeep,
owned by one Manish Vishwanath Balavali.   This is inconsistent
with   the   facts   of   the   case   mentioned   in   the   printed   prescribed
proforma of the chargesheet, where the First Informant is said to be
the 'owner' of the Tavera vehicle in question.   This, though shows

non­application   of   mind   by   the   Investigating   Officer   while
submitting   the   police   report,   is   actually   of   no   consequence   in
determining the guilt or innocence of the appellant.   It has been
mentioned only to point out how careless the Investigating Officer
has been, even in mentioning the 'facts of the case' in the police
report.   The evidence of Ashok Jadhav (PW4) shows that on 12th
September 2006, he took passengers in the said Tavera jeep from
Borivali to Pune.   Those passengers – husband and wife – were
dropped at Pune Airport, at about 6.30 p.m.   Ashok was then
coming back to Borivali.  After he had crossed Khalapur Chowk,
he saw that two stones had been put on the road.  He, therefore,
reduced the speed of the Tavera jeep.  At that time, two persons
came and stopped in front of the Tavera jeep.  At the same time,
about 4 to 5 persons came from behind and dragged Ashok out of
the jeep.  The said persons snatched the gold chain, gold bracelet,
mobile telephone instrument of Nokia company, a wrist watch and
cash of Rs.7,000/­ from Ashok and ran away.  Ashok, then, went
to Borivali, and told about the incident to his master.  On the next
day, he lodged a report with the Khalapur Police Station, which

was treated as the First Information Report (FIR).  Ashok showed
the   spot   of   the   incident   to   the   police.     In   the   course   of
investigation,   the   police   called   Ashok   to   Tahsildar   Office,   at
Khalapur.  There, he identified the appellant.  Some articles were
shown to Ashok in his examination­in­chief, which he identified as
the   same   articles,   that   were   snatched   away   from   him   by   the
culprits.  
6 It is evident that the appellant – and even the other
accused – were not previously known to Ashok.   The evidence
against the appellant consists of his identification, as one of the
culprits, by Ashok, and the recovery of certain articles, said to be
part of the robbed property, at the instance of the appellant.
7 Mr.Satyavrat   Joshi,   the   learned   counsel   for   the
appellant, submitted that, the evidence of identification of the
appellant, as one of the culprits, was not at all satisfactory, and
that, as a matter of fact, the evidence in respect of the appellant's
identification – as one of the culprits – in the Test Identification

Parade,   was   not   believed   by   the   learned   Additional   Sessions
Judge.  He also submitted that the evidence of recovery of part of
the robbed property, allegedly, at the instance of the police, was
also not reliable.  He submitted that the identity of the recovered
articles, as the same that were robbed, was not at all established.
8 I   have   examined   the   evidence,   adduced   during   the
trial, on these aspects.  
9 The first circumstance against the appellant is of the
alleged   recovery   of   a   mobile   telephone   instrument   of   Nokia
company, and also of a gold bracelet – both said to be a part of the
robbed property, allegedly at his instance.  
The   prosecution   case   is   that   pursuant   to   the
information   disclosed   by   the   appellant,   a   mobile   telephone
instrument, which formed part of the robbed property, came to be
recovered from Sameer Bhase (PW1) under a panchnama.  In this
context,   the   evidence   of   Sameer   Bhase   (PW1)   and   that   of
Ravindra Patil (PW6) – who is a panch in respect of the said
recovery, is relevant, apart from the evidence of P.I. Devkar (PW8).

10 The   evidence   of   Sameer   shows   that   Police   Officer
Devkar of Khalapur Police Station (PW8) had come to him for
making enquiries in respect of a mobile, and that, he produced a
mobile of Nokia company before Devkar.  Sameer, then, states that
the said mobile had been given to him by the appellant, saying
that he was in need of money, and that, the appellant had taken
an amount of Rs.2,000/­ from Sameer, against the said mobile.
That, the Police Officer told Sameer that the mobile was part of
the property involved in the offence of dacoity, and that, therefore,
he gave the same to the police.  A mobile telephone, marked as
Article No.5, was shown to him, when he identified it, as the same
that had been given to him by the appellant.
11 In his cross­examination, he admitted that such type of
mobile handsets are available in the market.  He, however, denied
that he was making a false allegation against the appellant, at the
instance of the police.

12 Ravindra   Patil   (PW6)   –   a   panch,   however,   did   not
support the case of the prosecution.  According to him, the police
had called him and one Bhagwan Chavan ­ the other panch – in
Tahisldar  Office, on  17th  October  2006,  and  they  obtained his
signature   and   that   of   Bhagwan   Chavan,   without   making   any
enquiries or without telling anything to them.  Ravindra Patil was
declared hostile, and in the questions put by the learned APP to
him, thereafter, he admitted that Sameer Bhase had produced one
mobile   before   the   Police,   in   his   presence.     In   the   cross
examination, that was taken on behalf of the accused, he admitted
that Sameer Bhase had taken him and the panch to Khalapur
Police Station, and that Sameer Bhase instructed them to sign the
panchanama.  According to him, he came to know the contents of
the panchanama from Sameer Bhase.  The evidence of this witness
is rather absurd and is not worth taking into consideration, either
for or against the prosecution. 

13 Ashok did identify the mobile telephone instrument
that   was   shown   to   him   during   his   evidence.     However,   the
question is, whether the identity of the said mobile telephone
instrument, as the same one, that had been robbed, has been
satisfactorily established.  It may be recalled that the IMEI number
of   the   mobile   telephone   instrument   has   not   been   brought   on
record.  It was easily possible for the investigating agency to have
collected such information, so as to fix the identity of the mobile
telephone instrument, as the same that was being used by the first
informant Ashok.   Even assuming that Ashok did not know the
IMEI number, it was easily possible to ascertain the same from the
connectivity number i.e. the mobile telephone number itself.  The
same, however, has not been done.
14 Certainly,   merely   because   the   IMEI   number   of   the
mobile   telephone   instrument   has   not   been   established   or
attempted to be established, the evidence of the identity thereof,
as   the   same   article   of   which   Ashok   was   robbed,   may   not   be

discarded, but in the instant case, the evidence of Sameer Bhase
and panch Ravindra Patil, which seeks to establish the recovery of
the mobile instrument at the instance of the appellant, is itself
highly unsatisfactory.   Sameer Bhase does not give any details,
such as the time and / or date of the appellant giving to him, or
handing over to him the mobile telephone. 
15 So far as the alleged recovery of the gold bracelet –
also said to be a part of the robbed property – pursuant to the
information disclosed by the appellant to the police is concerned,
the evidence that is relevant in that context is that of Kamlesh
Oswal   (PW3),   who   is   the   owner   of   a   jewellery   shop,   and
Bhausaheb Kolape (PW5).  According to Kamlesh Oswal, police of
Khalapur Police Station came to him with the appellant on 15th
October 2006, and made enquiries with him, when he told the
police that the appellant had pledged a bracelet with him, by
saying that his daughter was sick.  According to Kamlesh, he had
paid   Rs.3,000/­   to   the   appellant.     That,  he   produced   bracelet
before the police.  He identified the bracelet (Article No.3), which

was shown to him, as the same which was produced by him before
the police.   In the cross­examination, he admitted that, he had no
license   to   accept   the   gold   jewellery,   by   way   of   pledge.     The
omission to state before the police that the appellant had said that
his daughter was sick, and that, therefore, he was pledging the
ornament, was brought on record in the cross­examination.  In the
cross­examination, he claimed that he had noted in writing in his
notebook, the fact of the appellant having kept the bracelet with
him, and his having paid Rs.3,000/­ to the appellant, but that the
police did not seize the said notebook.  He also admitted in the
cross­examination, that  'the bracelet appeared to be newly made'.
The suggestion that Police Officer Devkar got the said bracelet
made from his shop, was denied by him.
16 Bhausaheb Kolape (PW5)  is one of the panchas, in
whose   presence,   the   bracelet   was   allegedly   recovered   from
Kamlesh Oswal.  Bhausaheb appears to have acted as a panch in
respect of different panchanamas.  He appears to have acted as a
panch in respect of a disclosure statement,  allegedly made by a

co­accused i.e. accused no.2 ­ Ram Hari Pawar also.  His evidence
is not at all satisfactory, but it is not necessary to discuss the same
in detail, in as much as, when the bracelet (Article 3) was shown
to him, he stated that he was unable to identify whether it was the
same bracelet.   Moreover, in the cross examination, he admitted
that when he went to the police station, the panchanama was
ready.  His evidence fails to lend any support to the testimony of
Kamlesh Oswal, which itself is highly unsatisfactory.
17 Thus, in my opinion, the evidence of recovery of a
bracelet and a mobile telephone instrument of a Nokia Company,
which are said to be part of the robbed properties at the instance
of the appellant, is not satisfactory.  In any case, the evidence fails
to establish the identity of these articles as the same that were
stolen.  It may be recalled that, admittedly, the bracelet appeared
to   be   new,   and   the   individuality   of   the   mobile   telephone
instrument,  which could have been easily established, was not
even attempted to be established.  

18 The question is now about the identification of the
appellant, as one of the culprits, as done by Ashok.  Interestingly,
Ashok was not asked 'whether any of the persons, who robbed him,
were present in the Court.'  He does not say so in his evidence.  As
a matter of fact, a reading of his evidence does not show that he
identified the appellant, as one of the culprits.   His evidence in
that regard, reads as under :­
“Police   called   me   to   Tahasildar
Office   at   Khalapur.     It   was   for
purpose   of   identification   of
accused. I identified one accused.
He is present in the Court. He is
accused no.1”
Thus, his statement about the identity relates to the identification
of the accused done by him in the Tahsildar Office.   In other
words, what he says is that, 'he identified the accused in the Test
Identification Parade.' I am afraid, this does not amount to his
identifying him, as one of the culprits.  The manner in which the
evidence   of   the   witness,   with   regard   to   the   identity   of   the

appellant, has been recorded, is far from satisfactory.   Anyway,
since   the  witness  has  claimed   that  he  identified  the appellant
because he had stood in front of the jeep, and that he had seen the
appellant in the head light of the jeep, it may be presumed that he
had identified the appellant in the test identification parade, as
one of the culprits, though the witness has not stated this directly. 
19 It is well settled that evidence of the identification of
the persons, not previously known to the identifying witness, for
the first time in court, is a weak piece of evidence.  It is because of
the possibility of witnesses making a mistake with respect to the
identity, which may result from the fact that a particular person is
already alleged to be the culprit.  It is for this reason, that, Test
Identification Parades are held.   The Test Identification Parades
serve a dual purpose.   First and foremost is, that, they give an
assurance  to  the  Investigating  Officer,  that the investigation is
proceeding on the right lines. The second purpose, which the Test
Identification   Parades   serve,   is   that,   they   lend   support   to   the
evidence of the identification, which the witness would give in the

court.     The   fact   of   having   identified   the   person   as   the   culprit
previously, from amongst several others, would lend support to the
identification of the culprit, that would be subsequently made by a
witness,  during  his evidence before the court.   In  this case, the
evidence   of   the   Test   Identification   Parade   is   not   found   to   be
acceptable by the learned Additional Sessions Judge. He has not
placed any reliance on the evidence of the Test Identification Parade.
The learned Judge observed that, the  identification parade held by
Nayab Tahsildar – Chandrasen Pawar, was not in conformity with the
guidelines in that regard. If that was so, this was certainly not a case,
where implicit reliance on the identification of the appellant as one
of the culprits, could be placed. As already observed, Ashok, infact,
does not say that the appellant was one of the culprits, and the
evidence is not that he identified the appellant as the culprit, but the
evidence is that, 'he identified one of the accused in the office of the
Nayab Tahsildar, and that the person identified by him, at that time,
was the appellant.'  Thus, that the appellant was one of the culprits,
is   not   directly   stated   by   Ashok,   but   the   same   is   required   to   be
inferred, with the reasoning that, since he identified the appellant
in the office of Nayab Tahsildar, he must have identified him as

one of the culprits.  Not much value to such type of identification
can be given.
19 The weaknesses in the prosecution case were noticed
by the learned Additional Sessions Judge also, but he sought to
overcome them with a certain peculiar reasoning.   The learned
Judge observed that 'the identity of the recovered bracelet was not
satisfactorily   established',   but   still   accepted   the   theory   of   the
prosecution by observing that, 'though the bracelet appeared to be
newly made it was of 13 grams', and that, 'it was very unlikely that
the   jeweler   could   produce   gold   article   of   his   own   before   the
police.'  In other words, the learned Judge thought that, since the
bracelet had been given to the police by the jeweler Kamlesh
Oswal, it must have been given to him by the appellant.   This
reasoning is not correct.  When the claim was that it was the same
bracelet, which had been robbed by the appellant from Ashok,
why and how it could appear as new, needed some explanation,
which is not provided by the sort of reasoning resorted to, by the
learned Judge.   Moreover, there could be several reasons for a

jeweler, who is perhaps indulging into acts of receiving stolen
property,   to   handover   a   particular   article   to   the   police.     One
obvious   reason   would   be   to   avoid   himself   being   accused   of
knowingly receiving stolen property, arrested and prosecuted.
20 The   manner   in   which   the   evidence   was   recorded
during the trial, leaves much to be desired.   The evidence has
been   recorded   in   a   perfunctory   manner,   without   requiring
necessary details to be given by the witnesses.  For instance, even
Kamlesh   Oswal's   evidence   does   not   categorically   say   that  'the
appellant had pledged the bracelet with him', but what it says is,
that, 'the police came to him with the appellant, that, when the
police inquired with him, he told the police that the appellant had
pledged bracelet with him', and that, 'he then produced the bracelet
before the police.' Thus, his evidence only relates to what had
happened,  after  the police had come to him with the appellant,
and like in the case of identification of appellant by Ashok, we are
required to infer that 'since he told the police that the appellant
had pledged the bracelet with him, it had indeed happened that

way.'  The learned Judge did not realize that, the evidence of this
    witness is     not   that the appellant had pledged a bracelet with this
    witness, but the evidence is that, he     told   the police that appellant
had pledged the bracelet with him.
21 Considering that neither the recovery of the robbed
property,   allegedly   at   the   instance   of   the   appellant,   was
satisfactorily established, nor the evidence of the identification of
the appellant, as one of the culprits, was satisfactory, this was a
case, where the appellant should have been given the benefit of
doubt, and should have been acquitted. The order of conviction,
as recorded by the learned trial Judge, is not proper or legal.  
22 The Appeal is allowed. 
23 The judgment and order of conviction of the appellant,
as recorded by the learned Additional Sessions Judge and the
sentences imposed by him upon the appellant are set aside.

24 The appellant stands acquitted.
25 He  be  set  at  liberty  forthwith, unless required to be
detained in some other case.  
26 Fine, if paid, be refunded to him.
(ABHAY M. THIPSAY, J.)

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