Thursday, 14 April 2016

Whether trial will be vitiated if identical questions were put up to all accused under S 313 of CRPC?

Lastly, an attempt is also made by learned counsel for the Accused
to submit that, here in the case, the Trial Court has committed an error
while recording the statements of Accused under Section 313 of Cr.P.C.
as identical sets of questions were asked to the different Accused, which
practice is deprecated by our own High Court and the Apex Court also. In
support of his submission, he has relied upon the Judgment of this Court
in Swapnali @ Sapana Sharad Mahadik Vs. The State of Maharashtra,
(in Criminal Appeal No.415 of 2010, along with connected matters,
dated 22nd April 2015), in which various Judgments of Supreme Court
were relied upon. However, in our considered opinion, this Judgment
cannot be made applicable to the facts of the present case, because in
the said case the roles played by Accused Nos.5, 6 and 7, even according
to prosecution case, were different one. Accused Nos.5 and 6 were
guarding at the gate of the building and Accused No.7 passed on the
information to Accused No.5, who executed the plan. Accused No.7 was

not present on the spot. Hence, it was held that there was no meaning in
putting all 66 questions to each of the Accused. As against it, in the
present case, the role of all the Accused persons is identical. At-least, no
material is brought on record to show that they had played any different
role.
45. Moreover, no material is brought on record to show as to what and
in which manner the prejudice, if any, is caused to any of the Accused.
More so, all the Accused were aware of the accusation and the charge
against them. It is not the case of any of the Accused that some
incriminating evidence was not put to them and hence they could not offer
their explanation for the same; therefore, any prejudice was caused to
them. Conversely, each and every piece of incriminating material and
evidence is put up to them and their explanation for the same was
obtained. Only when there is omission to put up the incriminating material,
it can prove fatal to uphold the conviction. As a matter of fact, as per the
law laid down by the Apex Court in Shivaji Vs. State of Maharashtra,
1973 SCC (Cri.) 1033, mere omission to put incriminating material to the
Accused also, does not ipso facto vitiate the proceedings. The burden lies
on the Accused to prove that prejudice was occasioned by such defect.
46. Here in the instant case, the Accused have not succeeded in

bringing to the notice of this Court that any incriminating material was not
put up to them and it has resulted into causing prejudice to them in their
defence and thereby resulted in failure of justice. In such situation, the
above said authority is also not applicable to the facts of the present case.
47. Further, even assuming that the statements of all the Accused in the
present case are identical, considering the fact that the role played by
them is identical, the evidence against them was also, more or less, the
same in respect of the homicidal death and recovery of the gold
ornaments, it cannot become fatal. If some additional material is also put
to them in their statement recorded under Section 313 of Cr.P.C. than the
actual role played by them, there is no question of any prejudice being
caused to them, as the incriminating material appearing against each
individual Accused was also put up to them in addition to incriminating
material appearing against the other Accused. Thus, there was no
omission in putting up to the Accused any incriminating material and
hence no prejudice being caused to the Accused on account of mere
irregularity in recording the statements of the Accused, it has to be held
that this submission also fails.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.441 OF 2005
Futarmal Kapurji Borana 

 Versus
The State of Maharashtra ]

CORAM : SMT. V.K. TAHILRAMANI, ACTING C.J. &
DR. SHALINI PHANSALKAR-JOSHI, J.

PRONOUNCED ON : 17TH DECEMBER, 2015
Citation; 2016 ALLMR(CRI)901

1. These three Criminal Appeals are arising out of the one and same
Judgment and Order dated 23rd November 2004 in Sessions Case No.270
of 2002 of Additional Sessions Judge, Greater Bombay; hence, they are
being decided by this common Judgment. These Appeals are preferred by
Original Accused Nos.2, 3 and 4 and, for the sake of convenience, in
these Appeals also, the Appellants are referred by their original
nomenclature as “Accused Nos.2, 3 and 4”. By the impugned Judgment,
they have been convicted for the offence punishable under Section 396 of
IPC and sentenced to suffer R.I. for life and to pay fine of Rs.1,000/- each,
in default to suffer further R.I. for four months; for the offence punishable
under Section 395 of IPC and sentenced to suffer R.I. for life and to pay
fine of Rs.1,000/- each, in default to suffer further R.I. for four months; for
the offence punishable under Section 449 of IPC and sentenced to suffer

imprisonment for life and to pay fine of Rs.500/- each, in default to suffer
R.I. for four months, with a further direction that all the substantive
sentences of imprisonments are to run concurrently.
2. Facts of the Appeals can be stated, in brief, as follows :-
PW-1 Chetan Shah has been doing the wholesale business of
jewelery in the name of 'K.K. Jewellers' along with his father at Kalbadevi
on the Second Floor, above Heera Misthan in Room No.5. On 11th
October 2001, he attended the shop upto 7:45 pm, took the stock of gold
ornaments, which were weighing about 2,300 gms., and kept those
ornaments in the safe in drawers of the cupboard. He also counted the
cash, which was of Rs.1,00,000/-. He kept it in another Godrej cupboard.
Further, he kept the key of safe in the drawer and the key of the drawer in
the cupboard of front cabin. As usual, he carried with him the key of the
front cabin cupboard and the main door of the shop. The spare key of the
main door of the shop used to be with the deceased Premaram, who was
working in the said shop as skilled labour. On that day, Premaram
remained in the shop, when PW-1 Chetan left the shop in the night at
about 7:45 pm.
3. On the next day, when PW-1 Chetan came to the shop, as usual, at
about 12:30 pm, he found that the main door of the shop was locked only

by its self-lock. He opened the door with the key with him, entered inside
the shop and found all the articles therein lying scattered. The wooden
cupboard and the Godrej Almirah was damaged and opened. The safe
and drawers were also opened and all the gold ornaments were found
missing from the shop. As he noticed that deceased Premaram was also
not there, he phoned Jeevankumar Jain, his sister's husband, and also
informed the said fact to his paternal uncle Kantilal Jain. Both of them
came there within 10 to 15 minutes.
4. Kantilal Jain was having the shop adjacent to the shop of PW-1
Chetan and, there, the employees in both the shops used to sleep, as it
was having the facility of kitchen, bath-room and latrine. Meanwhile,
Premaram's brother Ruparam was also informed and he also rushed
there. When Kantilal's shop was opened, they found the mattresses kept
one upon another in disorderly manner. On looking carefully, they noticed
the portion of the foot of a human being. On removal of the mattresses,
they saw the dead body of Premaram with injuries on his chest and
hands. His legs were tied with nylon rope from back side. His mouth was
gagged with red cloth, whereas, his neck was compressed with clutch
wire. The information was then, accordingly, given to L.T. Marg Police
Station on phone.

5. On receipt of this information, PW-21 PSI Maruti Shinde, along with
PW-25 ACP Anil Nalawade came to the spot of incident. There he
recorded the complaint (Exhibit-18) of PW-1 Chetan Shah and on phone
obtained Crime No.253/2001, which came to be registered for the
offences punishable under Sections 452, 392, 394 and 302 of IPC.
Thereafter he made Inquest Panchanama (Exhibit-31) and sent the dead
body for postmortem examination. PW-21 PSI Shinde then made the
Scene of Offence Panchanama (Exhibit-33) of both the shops and
collected some incriminating articles, which he deposited after returning to
L.T. Marg Police Station in the Muddemal Property Room.
6. Further investigation of the case was taken over by PW-25 ACP Anil
Nalawade. He recorded the statements of witnesses and from the
statement of PW-2 Ram Yadav, the names of the Accused were
transpired. On 15th October 2001, PW-22 API Ramchandra Dhawale
arrested Accused No.1 Chhagan and Accused No.2 Laxman and seized
from their possession various stolen articles and gold ornaments, like, two
gold pendents from Accused No.1 and one wrist watch of Titan Make and
two gold pendents from Accused No.2. The blood stains were found on
the shirt of Accused No.2 Laxman. These articles were seized under
Panchanama. As abrasion marks of 3 to 4 days old were found on the
chest of Accused No.2 Laxman and Accused No.1 Chhagan, both of them
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were referred for medical examination.
7. On 16th October 2001, PW-22 API Dhawale arrested Accused No.3
Shankar. On his person also, 4 to 5 days old abrasions were found on his
chest and hand. Hence, after the Arrest Panchnama (Exhibit-52), he was
also referred for medical examination. On 17th October 2001, API Parab
recorded the statement of PW-3 Venudas Vaishnava and seized stolen
property produced by the said witness. On 19th October 2001, API
Mallesh, who was assisting PW-25 ACP Nalawade, recorded the
Memorandum Panchanama of Accused No.1 Chhagan, which led to the
discovery of stolen property. It was identified by PW-1 Chetan Shah on
20th October 2001. On 22nd October 2001, at the instance of Accused No.3
Shankar, some more stolen property was discovered, which came to be
seized in pursuance of Memorandum Panchanama (Exhibit-48) and
Seizure Panchanama (Exhibit-48A).
8. On the basis of the information received, PW-25 ACP Nalawade
sent PW-23 PI Tukaram Wahile to Bhuvneshwar. There, on 25th October
2001, Accused No.4 Futarmal and Accused No.5 Pradeep came to be
nabbed. Their personal search was taken and they were arrested vide
Panchanama (Exhibit-90). They were also referred for medical
examination. They were produced at L.T. Marg Police Station on 27th
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October 2001. During custodial interrogation, Accused No.5 Pradeep
showed willingness to point out the place from where he has collected the
clutch wire and also to point out the place where he had concealed stolen
articles. Accordingly, the Memorandum Panchanama (Exhibit-42) was
made and thereafter Accused No.5 guided the Police and Panch to the
room where PW-10 Rajendra Vichare was present and at the instance of
Accused No.5, he produced the key of the suite-case, in which various
gold ornaments were kept. They were seized under Panchanama (Exhibit
42-A). On 7th November 2001, again at the instance of Accused No.4
Futarmal, some more stolen gold ornaments came to be seized from PW-
15 Hajarimal Gujar on 2nd November 2001 and on 13th November 2001,
Test Identification Parades of Accused Nos.1 to 3 and Accused Nos.4 and
5 were held, respectively, by PW-16 Special Executive Officer Dushant
Oza. The Postmortem Report (Exhibit-83) was received on 2nd January
2002. Hence, further to completion of investigation, PW-25 ACP Nalawade
filed Charge-Sheet in the Court of Metropolitan Magistrate, 28th Court,
Esplanade, Mumbai, against the Accused.
9. On committal of the case to the Sessions Court, the Trial Court
framed charge against the Accused vide Exhibit-6. The Accused pleaded
not guilty to the charge and claimed trial, raising the defence of denial and
false implication.
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10. In support of its case, prosecution examined in all 25 witnesses and
on appreciation of their evidence, the Trial Court was pleased to hold the
guilt of all the 5 Accused to be proved beyond reasonable doubt and
convicted and sentenced them, as aforesaid.
11. This Judgment of the Trial Court is challenged in these Appeals. As
regards Accused No.1 Chhagan, his Criminal Appeal No.417 of 2005
came to be disposed of in pursuance of the finding that he was juvenile-inconflict-with-law
at the time of incidence and hence he was released from
Jail on 21st July 2015.
12. As regards Accused No.5 Pradeep, as per the Report submitted by
the Superintendent of Nashik Road Central Jail, he is reported to be dead
on 24th August 2008, while he was undergoing the sentence of
imprisonment in Jail and was released on parole. Hence Appeal preferred
by him, if any, stands abated.
13. In these Appeals, we have heard learned counsel for Accused
Nos.2 to 4 Mr. Vagal, who has challenged the Judgment of the Trial Court
on the ground that the circumstances on which the prosecution has relied
upon are not established satisfactorily beyond reasonable doubt,
whereas, learned A.P.P. Mr. Dedia has supported the Judgment of the
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Trial Court with a fervent plea that prosecution has not only established
the incriminating circumstances against Accused, but those circumstances
are also of a clinching nature and no other inference, but that of the guilt
of the Accused can be drawn from those circumstances. In our considered
opinion, before adverting to the rival submissions advanced by them, it
would be useful to refer to the evidence on record.
14. As to the homicidal death of Premaram, there is evidence of PW-1
Chetan Shah, who was first in time to find his dead body concealed in the
mattresses in Room No.5, where Deceased Premaram used to sleep.
There is corresponding evidence of PW-21 PSI Shinde, who has
conducted Inquest Panchanama (Exhibit-31) on the dead body and sent it
for postmortem examination. The postmortem was conducted by PW-20
Dr. Kalyani Joshi at G.T. Hospital, Mumbai. On examination, she found
following external and internal injuries :-
External Injuries :
 One ligature mark seen encircling right wrist over
flexor aspect admeasuring 10 cm x 0.5 cm.
 One ligature mark seen encircling left wrist over flexor
aspect and lateral part of extensor aspect measuring
15 cm x 0.05 cm.
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 One ligature mark seen on let forearm measuring 5
cm above wrist over flexor aspect and lateral part of
extensor aspect, measuring 15 cm x 0.5 cm.
 Two ligature marks seen (i) on left ankle and (ii) above
lateral aspect of flexor part, both measuring 9 cm x
0.5 cm.
 One ligature mark seen above right ankle lateral
aspect admeasuring about 6 cm x 0.5 cm.
 Ligature mark seen at the root of neck, below thyroid
cartilage transverse encircling around the neck half
cm in width, grooved in front and lateral aspect. Width
is broader at back about one cm. Brownish colour.
Haemorrhages seen around ligature marks, right
lateral aspect and back. When neck is extended,
ligature is 8 cm below chin and 4 cm below angle of
mouth, when stretched to opposite side.
Internal Injuries :-
 On dissection of neck anteriorly and posteriorly in
layers, haemorrhages seen in right submandibular
region – platysma.
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 Haemorrhages seen in back of neck muscles around
ligature mark.
 Congestion of trachea present above ligature mark.
 Soft tissues congested above ligature mark.
 All bones of internal neck part are intact.
15. According to PW-20 Dr. Kalyani Joshi, the external injuries were
antemortem and the death must have taken place 34 to 36 hours prior to
the postmortem examination. She has opined the cause of the death as
“asphyxia due to strangulation by a ligature around neck i.e. unnatural”.
According to her, the ligature mark found surrounding the neck could be
caused by the clutch wire (Article No.30), whereas, other injuries found on
wrist, forearm and ankles were possible by the nylon rope (Article No.31)
and green wire (Article No.29). In her cross-examination, it is also brought
on record that the injuries found on the dead body are possible, if the
force is applied by two to three persons for strangulation and for tying the
hands and legs of the Deceased. There is absolutely nothing in her crossexamination
to disprove the cause of the death. Otherwise also, learned
counsel for the Accused has fairly conceded that, in the instant case, he is
not disputing the fact that Deceased was subjected to homicidal death.
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16. The only real question for consideration, according to learned
counsel for the Accused, is, 'whether prosecution has succeeded in
bringing cogent and reliable evidence on record to prove the involvement
of the Accused either in the death of the Deceased or in the offence of
dacoity?'.
17. To prove the involvement of the Accused, the prosecution has
mainly relied upon the evidence relating to recovery of stolen articles from
the possession of the Accused or at their instance. The prosecution has
also, to some extent, relied upon the evidence of PW-2 Ram Yadav, who
was working as employee in the Sweet Meat and Farsan Shop of Hira
Misthan and used to sleep in a room attached to the said shop along with
other workers. In the same building, the shop of PW-1 Chetan in the name
of K.K. Jewellers was situated on the Second Floor.
18. According to PW-2 Ram Yadav, he was knowing Accused No.4
Futarmal as he was earlier working in the shop of PW-1 Chetan Shah,
which fact is deposed to by PW-1 Chetan also. His further evidence
reveals that on the date of incident, i.e. on 11th October 2001, at about
9:30 pm, he came out of his room and sat on a bench near the Pan Stall
adjacent to their building. He was sitting there upto 11 pm. At about 9:45
pm, he saw Accused No.4 Futarmal, along with four other persons, near
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the gate of their building. They sat there for two – three minutes. Then
they crossed the road and sat at the other side of the road in front of their
building. After some time, again they came to the gate of their building. It
was around 11 to 11:15 pm. At that time, he even talked with Accused
No.4 Futarmal as to why he was not seen for many days. He has made
enquiry with Accused No.4 Futarmal as to what he was doing and where
he was working and Accused No.4 Futarmal told him that he was working
as Commission Agent. At that time, he also saw those four persons, who
were discussing among themselves, and then all the five of them entered
inside the building, whereas, he himself went to his shop. On the next day,
when he came to know about murder in the K.K. Jeweller's shop and
Police made enquiries with him, he has narrated this entire incidence of
seeing Accused No.4 Futarmal along with four other persons entering
inside the building on that night. He also gave description and particulars
of those four persons and Accused No.4. Thereafter, in the Test
Identification Parade held by PW-16 SEO Dushant Oza on 2nd November
2001, he has identified Accused Nos.1, 2 and 3 and on 13th November
2001, he has identified Accused Nos.4 and 5. He has given evidence in
detail about the Test Identification Parades.
19. The Memorandums of Test Identification Parades (Exhibits 69 and
70) are also proved on record through the evidence of PW-16 SEO
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Dushant Oza. According to him, on 2nd November 2001, he held Test
Identification Parade in two parts, as three Accused persons were to be
identified. In the first round, two suspects, i.e. Accused No.1 Chhagan and
Accused No.2 Laxman, were placed and in the second round, Accused
No.3 Shankar was placed. PW-2 Ram Yadav had identified all the three
Accused in two rounds of Test Identification Parade. Further Test
Identification Parade was held by him on 13th November 2001, in which
PW-2 Ram Yadav identified Accused Nos.4 and 5.
20. The evidence relating to the identification of the Accused by this
witness PW-2 Ram Yadav is challenged by learned counsel for Accused
on the ground that he had no sufficient opportunity to observe these
Accused. It is submitted that, except for Accused No.4 Futarmal, he was
not knowing any other Accused. He had seen them for the first time on
that day, as admitted by him in his cross-examination. Further it is
submitted that he has seen these Accused from the distance of about 11
to 20 feet. He has not given information about it to the Police immediately,
but two days after the incident. Hence, according to learned counsel for
the Accused, his evidence cannot be considered as reliable.
21. In our considered opinion, however, none of these grounds, on
which the evidence of this witness is challenged, can be upheld, because
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the evidence of this witness clearly goes to prove that he had sufficient
opportunity to observe these five persons. Out of them, he was knowing
Accused No.4 Futarmal very well; since prior to the incident as Accused
No.4 Futarmal used to work in the shop of PW-1 Chetan Shah. As regards
remaining Accused, at the first occasion, at 9:45 pm, he might have seen
the Accused from a distance of 11 to 20 feet, but, as his evidence
discloses, on the second occasion, at 10:45 to 11 pm, on the very night,
he saw them from a very close distance as he has made enquiries with
Accused No.4 Futarmal as to where he was working and why he was not
seen for so many days. As per his evidence, at that time, Accused No.1
Chhagan and other three Accused were very much present there,
discussing among themselves. His evidence also reveals that there was
sufficient street-light for him to know their features and to remember them.
He has given the description, including complexion of the Accused, in his
statement recorded by Police and he has also identified them properly in
the Test Identification Parades held immediately on 2nd November 2001
and 13th November 2001 i.e. within a period of one month from the date of
incident. Not only that, he has identified them properly in the evidence
before the Court also.
22. The evidence relating to Test Identification Parades is challenged
also on the ground that PW-16 SEO Dushant Oza has not taken sufficient
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precautions while conducting them. According to learned counsel for the
Accused, Panchas were brought by the Police, then the dummies used for
the two rounds of Test Identification Parades, held on 2nd November 2001,
were the same. Those dummies were also not of the same age group and
hence the evidence relating to the Test Identification Parades cannot be
held admissible. To substantiate his submission, learned counsel for the
Accused has relied upon Mahesh Rohidas Kinalkar & Ors. Vs. State of
Goa, 2005 (2) Bom.C.R.(Cri.) 670.
23. However, in our considered opinion, the above said case law cannot
be made applicable to the facts of the present case, because, in that
authority, it was brought on record that the Test Identification Parade was
held in two phases. In the first phase, four Accused were paraded and in
the second phase other four Accused were paraded; while the thirteen
dummies in both the phases remained the same. Further, the Special
Executive Officer, who conducted the Parade, admitted in his evidence
that one of the Accused had requested him to allow him to remove the
beard, but he had declined his request without ascertaining as to whether
any other dummies were having such beard or not. Further it was pointed
out in the said authority that some persons were standing and some
persons were sitting at the time of Test Identification Parade, but
Magistrate could not give the exact number of persons who were sitting.
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The evidence of Magistrate gave the impression that Parade was
organized not in the orderly but in chaotic manner and hence it was held
that the identification of Accused in such Test Identification Parade cannot
be relied upon.
24. As against it, in the present case, no such fatal infirmities or lapses
on the part of PW-16 SEO Dushant Oza in conducting the Test
Identification Parades are pointed out. Though it is submitted that Police
had brought the Panchas, his evidence reveals that, out of the four
persons brought by the Police, he himself has selected three persons to
act as Panchas. He had made enquiry with them and got confirmed that
those persons were not related with the crime under consideration. He
also made enquiry about their antecedents and involvement in any other
case. Even as regards the dummies, according to him, the age of
Accused No.1 Chhagan was 25 years, whereas, age of Accused No.2
Laxman was about 30 to 32 years and the dummies were selected from
the age group of 20 to 28 years. While selecting the dummies, he took
into consideration the age, height, weight, mustache, beard etc. He also
took precaution to see that the hall in which the Test Identification Parade
was held was not having any window. Though he has admitted that he has
personally not gone through the guidelines of the High Court laid down in
Criminal Manual regarding holding of Test Identification Parade, he has
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made himself acquainted with those guidelines from his senior colleagues.
As per the guidelines, in one Test Identification Parade, he has put only
two Accused and fourteen dummies. The entire procedure for conducting
the Test Identification Parade was as per the procedure laid down in the
Criminal Manual. It is recorded in the Memorandum Statement and his
cross-examination does not reveal that any fatal lapses were committed
by him in conduct of Test Identification Parades.
25. Otherwise also, even if it is assumed that there are some infirmities
or lacunae in conduct of Test Identification Parade, as observed by the
Apex Court in the case of State of Maharashtra Vs. Suresh, 2000 SCC
(Cri.) 263, no Test Identification Parade as such is full proof and if the
lacunae, infirmities and pot-holes are to be ferreted out from the
proceedings of the Magistrate holding such parades, possibly no TIP can
escape from one or two lapses. If a scrutiny is made from that angle alone
and the result of the parade is treated as vitiated, every TIP would
become unusable. Hence, merely on the basis of some flaws in conduct
of Test Identification Parade, the evidence relating thereto cannot be
discarded.
26. Moreover, in the instant case, the evidence of PW-2 Ram Yadav is
not a solitary piece of evidence on which prosecution is relying, but there
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is ample other evidence on record which goes to connect and implicate
the Accused with the offence. The first piece of evidence in this respect,
on which the prosecution is placing reliance, is that of the evidence of
Finger Print Expert PW-17 Arun Shinde. According to his evidence, on 12th
October 2001, he was called by L.T. Marg Police Station at the scene of
crime to take the search of finger prints. There PW-21 PSI Shinde was
present at the spot. He examined the various articles found at the scene
of crime and with the help of finger print development powder, he found
chance palm prints on the sunmica of the table drawer and two chance
finger prints on the internal part of the door of the safe. He also got one
chance finger print on the side of small steel cupboard, which was broken.
On the receipt of the specimen finger prints of the Deceased, PW-1
Chetan Shah and that of the Accused persons, he compared those
chance finger prints with the specimen finger prints and found that those
chance finger prints were that of Accused No.1 Chhagan, Accused No.2
Laxman and Accused No.3 Shankar. He further found that the chance
finger prints on the internal part of the door of the safe was found to be
identical with the middle left finger print of Accused No.4 Futarmal. The
chance palm print was also found to be identical with the left hand palm
print of Accused No.4 Futarmal. His expert opinion, along with the
photographs of the chance finger prints, specimen finger prints and palm
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prints, are produced on record at Exhibits 74 and 75. There is hardly any
cross-examination of this witness. Thus, the presence of the finger and
palm prints of the Accused at the scene of offence necessarily and
unequivocally establishes their involvement in the crime, in the absence of
any explanation offered by them about it.
27. The prosecution has also relied on the evidence of PW-18 Dilip
Ahiwale, Government Handwriting Expert. As per evidence of PW-21 PSI
Shinde, at the time of the Scene of Offence Panchanama, they found one
white envelope containing one blank paper. On the envelope, it was
written in Hindi as “Raju Ke Alawa Koi Na Khole” (nobody should open the
envelop except Raju) and “Aai Lave Yu” (I love you). The same contents
were repeated on the blank paper, which was inside the envelope. The
said envelope and the blank paper therein was sent to PW-18 Handwriting
Expert Ahiwale through C.I.D. Crime, Maharashtra State. PW-18 Dilip
Ahiwale, who was working as Assistant State Examiner of Documents,
C.I.D., Crime, Maharashtra at Pune, was given nine sheets of specimen
handwritings of the Accused and on comparative examination, he found
that the handwriting on the said envelope and the blank paper therein was
identical to the specimen handwriting of Accused No.2 Laxman. This
opinion of Handwriting Expert is not at all challenged or assailed in crossexamination
in any way and it, thus, proves presence of Accused No.2
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Laxman at the scene of crime. No explanation is offered by Accused No.2
Laxman about the same.
28. The third and material piece of evidence, on which the prosecution
has placed reliance, is that of the recovery of various stolen articles from
the possession of these Accused and at their instance. The evidence of
PW-8 Panch Sandip Gamre and the evidence of PW-22 API Ramchandra
Dhawale goes to prove that, on 15th October 2001, i.e. within three days
from the date of incident, Accused Nos.1 and 2 were arrested. At that
time, personal search of Accused No.1 Chhagan was taken and two gold
pendents were found. In the personal search of Accused No.2 Laxman
also, two gold pendents and one wrist watch of Titan Make were found. All
these articles were seized, including the blood stained shirt of Accused
No.2 Laxman. The evidence of PW-1 Chetan Shah, the Complainant,
proves that he has identified these four gold pendents (Article No.4), as
belonging to him as there was mark of their shop on the said gold
pendents. He has also identified the wrist watch of Titan Make (Article
No.3). The said Seizure Panchanama is produced on record at Exhibit-40.
29. There is further evidence relating to recovery of gold ornaments at
the instance of Accused No.1 Chhagan, like, 4 ear rings, 22 ear tops in
pursuance of the Memorandum Panchanama of the disclosure statement
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given by him vide Exhibit-28. The evidence PW-12 Devraj Gaude and
PW-25 ACP Nalawade further goes to prove that, during custodial
interrogation, Accused No.3 Shankar gave a disclosing statement that he
has sold the stolen gold ornaments (screws) to one person at Vitthalwadi,
Kalbadevi and he would point out the said person. His statement was
reduced to Memorandum Panchanama (Exhibit-48). Thereafter, Accused
No.3 Shankar guided them to the stall of PW-11 Naresh Patil, who, at the
instance of Accused No.3 Shankar, produced the metal screws used for
ear-studs and ear-tops. They came to be seized under Panchanama
(Exhibit 48-A).
30. There is corresponding evidence of PW-11 Naresh Patil, who does
the work of purchasing gold from the skilled workers and then preparing
gold ornaments. According to him, he was knowing Accused No.3
Shankar and he has purchased the gold screws used for ear-tops and
ear-studs from Accused No.3 on 13th October 2001 at about 7:30 pm.
Those gold screws were weighing 392 grams and 450 mili-grams. He has
purchased the same for the cash of Rs.1,20,475/-. As per his evidence, on
22nd October 2001, when Accused No.3 Shankar came to his shop, along
with Police, he has produced those screws before Police, which were
seized under Panchanama (Exhibit-46). He has also signed on the said
Panchanama and has identified Accused No.3 Shankar in the Court.
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These screws were identified by PW-1 Chetan Shah in his evidence
before the Court as belonging to his shop.
31. Prosecution has led the evidence of PW-24 one Ishwarbhai Joshi,
at whose house Accused No.4 Futarmal had kept one suite-case. He was
knowing Accused No.4 Futarmal as he used to take tiffin from his house.
According to him, on 12th October 2001, Accused No.4, who has
introduced himself as Sales-man, came to his residence along with briefcase
and requested him to keep that brief-case. Accused No.4 has further
told him that the brief-case was containing samples of ornaments and he
wanted to keep it safely as he was residing with 4 to 5 other persons. This
witness allowed him to keep that brief-case in his house and kept it below
the cot. On that day, Accused No.4 also gave him Rs.500/- towards tiffin in
advance. On 13th October 2001, Accused No.4 again came to his house at
about 9:30 pm with one plastic bag containing currency notes and kept
that bag also in the brief-case, which he had already kept under the cot,
and went away with tiffin. On 14th October 2001, Accused No.4 again
came to his house at 1 pm, took out some cash from the said brief-case
and with the said cash and the brief-case, he left without taking the tiffin.
This witness has identified Accused No.4 in the Test Identification Parade
and also in evidence before the Court.
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32. The evidence of PW-7 Panch Chandrashekhar Tatkare and PW-23
PI Tukaram Wahile proves that, during custodial interrogation, Accused
No.4 Futarmal showed his willingness to point out the place at
Jogeshwari, where he has kept the suite-case containing stolen gold
ornaments and further he would also point out the person to whom some
of the gold ornaments were handed over. His statement was reduced to
Memorandum Panchanama (Exhibit-36). Thereafter, Accused No.4 guided
them to one S.T.D. Booth at Jogeshwari. There, PW-15 Hajarimal Gujar
was present. On the request of Accused No.4 Futarmal, PW-15 Gujar
produced one suite-case and handed it over to him. Accused No.4 opened
the same and there, in the shirt pieces, some plastic sachets were kept.
Those plastic sachets were containing several gold ornaments, like,
pendents, finger-rings, neck-laces, chains, ear-studs, ear-tops etc., which
were seized under Panchanama (Exhibit-36A). All those gold ornaments
are identified by PW-1 Chetan Shah as belonging to his shop.
33. There is corroborating evidence about this discovery, which is of
PW-15 Hajarimal Gujar, who has deposed that he was knowing Accused
No.4 Futarmal, as he was hailing from his village. His family had good
relations with the family of Accused No.4. According to him, 20 to 25 days
prior to 7th November 2001, Accused No.4 had come to his telephone
booth along with one suite-case at about 4 pm and told him that he
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wanted to go to Bhayander to collect the payment. He requested this
witness to keep his suite-case at his telephone booth and he would collect
it while returning from Bhayander after about one hour. According to this
witness, he allowed Accused No.4 to keep his suite-case at his telephone
booth. Accused No.4, however, did not return on that day. On the next
day, Accused No.4 phoned this witness at about 8 am and confirmed that
the suite-case was still with him and further asked him to keep it safely.
Then, on 7th November 2001, when Police came to his telephone booth,
along with Accused No.4, he produced the suite-case. At that time, he
noticed that there were sachets of gold ornaments in pieces of shirt.
34. Prosecution has also led the evidence of PW-9 Panch Pervej
Shaikh and PW-23 PI Wahile to prove that, at the instance of Accused
No.5 Pradeep, since deceased, there was recovery of similar such gold
ornaments, which came to be identified by PW-1 Chetan Shah. The
prosecution has further relied upon the evidence of PW-10 Rajendra
Vichare in respect of recovery of gold ornaments at the instance of
Accused No.5 Pradeep, since deceased.
35. Another material circumstance relied upon by the prosecution is
about presence of various marks of injuries on the persons of the Accused
at the time of their arrest. PW-22 API Dhawale has arrested Accused
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Nos.1 and 2 on 15th October 2001 and at that time, he not only found that
the shirt on the person of Accused No.2 was having blood stains, but on
removal of clothes on their person, he noticed abrasion marks of 3 to 4
days old on the chest of Accused Nos.1 and 2. These injuries are also
noted in the Arrest Panchanama (Exhibit-40). On the next day, i.e. on 16th
October 2001, he has arrested Accused No.3 Shankar and on his chest
and hand also, abrasion marks of 4 to 5 days old were found. They are
noted in the Arrest Panchanama (Exhibit-52). All these three Accused
were referred for their medical examination and as per evidence of PW-20
Dr. Kalyani Joshi, on 16th October 2001, she has examined Accused
Nos.1 and 2 with the history of injuries and on their examination, she
found abrasions on their chest. As regards Accused No.2 Laxman, she
found one healing linear abrasion on left side of lower back, admeasuring
3 cm x 0.1 cm and another similar abrasion lower to above abrasion,
admeasuring 0.1 cm x 0.1 cm. She also noticed one healing abrasion,
admeasuring 0.2 cm x 0.2 cm, on left side of lower back, lower to above
said two abrasions. She had issued his Injury Certificates and also the
O.P.D. Papers vide Exhibit-96. In her opinion, these injuries were possible
in case victim tries to resist blows of assailants.
36. Accused No.3 Shankar was examined by Dr. Bobade on 16th
October 2001 and on his person also one abrasion was found over right
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hand, admeasuring 5 cm and one healing abrasion over upper part of
chest. According to her opinion, these injuries were also possible when
the victim was resisting the assault on him and such injuries are selfdefence
injuries by the victims. They can be caused by finger nails.
Accused Nos.2 and 3 have not offered any explanation for the presence of
these injuries on their person, which again necessarily leads to resistible
inference of their involvement in the incident.
37. The prosecution has further relied upon the evidence of PW-13
Achhelal Vishwakarma, who is having the Workshop, from where, as per
prosecution case, Accused No.5 Pradeep has collected the clutch wire,
which came to be used in commission of the offence.
38. In our considered opinion, this entire evidence is more than
sufficient to prove the involvement of the Accused in the commission of
the offence. However, according to learned counsel for the Accused, the
recovery evidence, in the instant case, is not convincing and reliable as
none of the witnesses have stated that the articles like the gold ornaments
seized from possession of the Accused or at their instance were sealed.
Moreover, even if they were sealed at the time of recovery, as the
evidence of PW-1 Chetan proves that he was shown those ornaments and
articles for the purpose of identification, and there is no evidence to prove
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that subsequent thereto, they were again sealed. To substantiate his
submission, the learned counsel for the Accused has relied upon the two
authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of
Maharashtra, 2000 CRI.L.J. 1566, and Amarjit Singh alias Babbu Vs.
State of Punjab, 1995 Supp. (3) SCC 217.
39. In our considered opinion, however, none of these authorities can
be made applicable to the facts of the present case, because, in the first
authority, issue was relating to human blood found on the recovered
articles, whereas, in the second authority the revolver found on the spot
was not sealed, hence it was held that the possibility of tampering could
not be ruled out. In the instant case, the articles seized are the gold
ornaments. Therefore, there was neither the possibility of tampering nor
that of the ornaments changing their character or colour in any way, even
if they were not sealed.
40. The learned counsel for the Accused has then relied upon Ahmad
alias Ahmad Chakri & Ors. Vs. The State of Maharashtra, 1994
CRI.L.J. 274, which deals with delay in discovery of the weapon at the
hands of Accused. This authority is also not applicable to the facts of the
present case as here recovery is in respect of the ornaments and not the
weapon.
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41. The next submission advanced by the learned counsel for the
Accused pertains to applicability of Section 396 of IPC. According to him,
the question 'whether murder was committed while committing dacoity?' is
a pure question of fact and in deciding the said question, the Court has to
consider whether the transaction of murder is separate or distinct from the
transaction of dacoity. According to him, there are two distinct transactions
in the present case, as the dead body was found in the adjoining room
and not in the room where dacoity took place and, therefore, the Accused
cannot be held liable for the murder of Premaram. The learned counsel for
the Accused has, in support of his submissions, relied upon Laliya & Ors.
Vs. State of Rajasthan, AIR 1967 Rajasthan 134, and Raghunath Dey
& etc. Vs. The State, 2003 CRI. L.J. 4592. In the first case, after the
dacoits looted the booty, the villagers chased them, then in the encounter,
that took place at some distance, one person received the injuries and
succumbed to those injuries. Hence, the argument was advanced that the
transactions of dacoity and murder were different as both the incidents
had happened at different places. However, this argument was rejected by
the High Court and it was held that, where the dacoits, by hot pursuit,
immediately after commission of the loot, were overtaken at a short
distance and there was an encounter between the dacoits and pursuers
and the dacoits had not abandoned the entire booty before the murder
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was committed, the transaction of encounter and murder were not
separate and distinct from the dacoity and as such the “murder was
committed while committing dacoity”.
42. In this authority, it was further held that the question whether murder
was committed while committing dacoity is a pure question of fact and of
decree; not to be determined by any general rule, but by special
circumstances of each case. Merely because the two incidents had taken
place at different places, they will not invariably be treated as different
transactions. Thus, this authority supports the prosecution and not the
Accused, as in the present case also, merely because the dead body of
Premaram was found in another room, considering the entire facts and
evidence on record, it cannot be said that his murder has no connection
with the offence of dacoity. He was very much having the key of the shop
from where the property was looted and when he resisted to hand over
the key of the shop to the Accused, the evidence on record proves that he
was done to death. Therefore, it has to be held that the dacoity and
commission of murder are forming part of one and same transaction. His
murder was committed for the purpose of committing dacoity.
43. As per the settled position of law, the presumption, as laid down
under Section 114(a) of the Evidence Act, applies to this case also;
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considering that the Accused were found to be in possession of the stolen
property, immediately after the incident, within a short gap of time of 2 to 3
days. No explanation being offered by the Accused for the possession of
such a huge quantity of gold ornaments, the presumption under Section
114(a) of the Evidence Act needs to be invoked for proving the offence
under Section 396 of IPC.
44. Lastly, an attempt is also made by learned counsel for the Accused
to submit that, here in the case, the Trial Court has committed an error
while recording the statements of Accused under Section 313 of Cr.P.C.
as identical sets of questions were asked to the different Accused, which
practice is deprecated by our own High Court and the Apex Court also. In
support of his submission, he has relied upon the Judgment of this Court
in Swapnali @ Sapana Sharad Mahadik Vs. The State of Maharashtra,
(in Criminal Appeal No.415 of 2010, along with connected matters,
dated 22nd April 2015), in which various Judgments of Supreme Court
were relied upon. However, in our considered opinion, this Judgment
cannot be made applicable to the facts of the present case, because in
the said case the roles played by Accused Nos.5, 6 and 7, even according
to prosecution case, were different one. Accused Nos.5 and 6 were
guarding at the gate of the building and Accused No.7 passed on the
information to Accused No.5, who executed the plan. Accused No.7 was

not present on the spot. Hence, it was held that there was no meaning in
putting all 66 questions to each of the Accused. As against it, in the
present case, the role of all the Accused persons is identical. At-least, no
material is brought on record to show that they had played any different
role.
45. Moreover, no material is brought on record to show as to what and
in which manner the prejudice, if any, is caused to any of the Accused.
More so, all the Accused were aware of the accusation and the charge
against them. It is not the case of any of the Accused that some
incriminating evidence was not put to them and hence they could not offer
their explanation for the same; therefore, any prejudice was caused to
them. Conversely, each and every piece of incriminating material and
evidence is put up to them and their explanation for the same was
obtained. Only when there is omission to put up the incriminating material,
it can prove fatal to uphold the conviction. As a matter of fact, as per the
law laid down by the Apex Court in Shivaji Vs. State of Maharashtra,
1973 SCC (Cri.) 1033, mere omission to put incriminating material to the
Accused also, does not ipso facto vitiate the proceedings. The burden lies
on the Accused to prove that prejudice was occasioned by such defect.
46. Here in the instant case, the Accused have not succeeded in

bringing to the notice of this Court that any incriminating material was not
put up to them and it has resulted into causing prejudice to them in their
defence and thereby resulted in failure of justice. In such situation, the
above said authority is also not applicable to the facts of the present case.
47. Further, even assuming that the statements of all the Accused in the
present case are identical, considering the fact that the role played by
them is identical, the evidence against them was also, more or less, the
same in respect of the homicidal death and recovery of the gold
ornaments, it cannot become fatal. If some additional material is also put
to them in their statement recorded under Section 313 of Cr.P.C. than the
actual role played by them, there is no question of any prejudice being
caused to them, as the incriminating material appearing against each
individual Accused was also put up to them in addition to incriminating
material appearing against the other Accused. Thus, there was no
omission in putting up to the Accused any incriminating material and
hence no prejudice being caused to the Accused on account of mere
irregularity in recording the statements of the Accused, it has to be held
that this submission also fails.
48. The upshot of our discussion therefore is, we have no hesitation in
holding that prosecution has succeeded in proving its case against the

Accused beyond reasonable doubt. The Appeals, therefore, hold no merit,
hence, stand dismissed, confirming the conviction and sentence of the
Accused, as recorded by the Trial Court.
49. As all the Accused are reported to be in Jail, Office to communicate
this order to them through the Superintendent of Nashik Road Central Jail,
Nashik.
 [DR. SHALINI PHANSALKAR-JOSHI, J.] [ACTING CHIEF JUSTICE]

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