Appa Bhagwan Patil v. The State of Maharashtra

1. Heard Mr. V.S. Mhaispurkar, learned Advocate for the Applicant and Ms. D.S. Krishnaiyer, learned APP for the State.

2. This Criminal Revision Application takes exception to the twin judgments passed by the learned Trial Court and the Appeal Court. Order of conviction and sentence dated 10.3.1995 passed by the J.M.F.C. Railway Court, Kalyan in Criminal Case NO. 69/1994 has been upheld by the Additional Sessions Judge, Kalyan in Criminal Appeal No. 52 of 1996. The Sessions Court’s order dated 13.11.2002 is therefore under challenge in the present Criminal Revision Application. There are two concurrent orders. Conviction is under Section 392 of the Indian Penal Code, 1860 (for short "IPC") and sentence awarded to Revision Applicant is six months rigorous imprisonment and payment of fine of Rs.1,500/- and in default, to suffer two months rigorous imprisonment.

3. Under Section 392 IPC it is stated that punishment for Robbery is rigorous imprisonment for a term which may extend to 10 years and it shall also be liable to fine and if robbery committed on the highway between sunset and sunrise, the imprisonment may extend to 14 years. Robbery is defined under Section 390 and it states that in all robbery there is either theft or extortion.

4. In the backdrop of the above legal provisions, learned Trial Court and learned Appeal Court has found the Revision Applicant viz. Appa Bhagwan Patil - Accused No.1 guilty and has convicted him. Originally, there were two accused viz. Applicant - Appa Bhagwan Patil (Accused No.1) and Manojlal Ramjilal Varma (Accused No.2). The learned Trial Court acquitted Manojlal Ramjilal Varma and convicted the Revision Applicant.

5. The facts of the case are that on 2.1.1994, at about 11.30 am, both Accused by sharing a common intention collected cash amount/ money by threatening passengers traveling in the general compartment of Pawan Express by wielding and under the threat of knife. They were charged with Section 392 r/w. 34 IPC. According to prosecution, both accused entered the train compartment with a knife and threatened Complainant and other co-passengers and demanded money from them in the running train. Train originated from Kurla Terminus and between Kurla and Dombivali, the incident took place. Since the train stopped near Dombivali due to chain pulling, both accused got down from the train and started to flee but both were chased down by passengers and RPF personnel and apprehended. Government Railway police arrived at the incident spot and took custody and arrested both accused. Personal search was conducted on the accused and Rs.275/- was seized from accused No.1 in the denomination of Rs.10/- and Rs.5/-. One of the train passenger viz. PW-6, the Complainant recorded his complaint at the police station on the same date. Offence was registered bearing Crime No. 3/1994. Chargesheet was filed on 31.5.1994. Both accused pleaded not guilty to the charge below Exhibit -7. Prosecution in all examined seven witnesses to bring home the guilt of Accused. Out of which PW-1 and P-2 were panch witnesses. PW-1 was the Station Master from Kalyan Police Station. PW-4, PW-5, PW-6 and PW-7 are police personnel who deposed. PW-2 examined as panch witness below Exhibit 16 claimed to be an eye witness to the incident. His deposition, therefore, needs to be considered. Though this Court is aware about its limitations while considering a Revision Application under the provisions of 397 of Cr.P.C. and it cannot sit in appeal and re-appreciate the evidence considered by the Courts below, but in order to understand the veracity, legality and propriety of the conviction and sentence based on the submissions made by Mr. Mhaispurkar, the relevant evidence in that regard will have to be looked into for consideration.

6. In the present case, PW-2 is the eye witness, who has been examined by prosecution. In his deposition, he has stated that he was traveling along with complainant by Pawan Express and the train commenced its journey from Kurla Terminus at

11.25 am. after which it halted near Central Cabin Dombivali due to chain pulling. He has stated that Accused No.1 entered the compartment in which he was traveling and demanded money from him and he paid Rs.10/- to Accused No.1. Next he has stated that both Accused were apprehended by the passengers after they got down from the train and were attempting to flee. Thereafter he has stated that Rs.275/- were seized from Accused No.1. He has stated that Accused No.1 had thrown the knife away and therefore it was not recovered and produced before the Court. Though PW-2 claims to be eye witness and has given direct evidence, he has not stated anything about Accused No.2. Hence the fact that there were two persons who extorted the money or who were apprehended by the passengers is not stated by him. Complainant's deposition and version is however different in evidence. This is a case where both accused were claimed to be arrested at the incident spot when they got down from the train after it slowed down near Dombivali due to chain pulling and attempted to flee. According to prosecution case, PW-4 and PW-7 i.e. police personnel were on duty at Dombivali during that time and they have deposed that they saw both Accused running and passengers chasing them and therefore they intercepted and apprehended them. However the evidence of PW-2, PW-4 and PW- 7 admittedly is lacking in the fact as to how and who intercepted, arrested both accused and most importantly what was seized from them. Neither PW-2 nor PW-4 nor PW-7 have stated in their deposition about details of the amount seized by them which remains unexplained. Case of prosecution is that only when body search of both accused was undertaken in presence of PW-3 and pancha according to PW-3, he saw recovery of currency notes, in denomination of Rs.20, Rs.10 and Rs.5. The deposition of all the four prosecution witnesses above does not throw light on the fact whether the monies recovered from Accused No.1 was extorted by him and Accused No.2 from the passengers traveling in the general compartment of Pawan Express which originated from Kurla Terminus. Their deposition is to the effect that the said general compartment of the train was crowded. If that be so, nothing precluded the prosecution from leading independent evidence of the passengers traveling in that train who could have corroborated and substantiated the prosecution case that both these accused had in deed attempted to extort monies from various passengers and also add up to the amount recovered i.e. Rs.275/-. If merely deposition of PW-2, eye witness to the incident is seen, he has stated that Accused No.1 took Rs.10/- from him. The Complainant in his complaint has stated that Accused No.1 took Rs. 5/- from him. If this evidence is scrutinized, prima facie, then it is seen that in order to possess four currency notes of Rs.20/- denomination, eight currency notes of Rs.10 denomination and three currency notes of Rs.5/- denomination, which the accused may have extorted, it adds only upto Rs.165/- and not the amount of Rs.275/- as stated in the Panchnama. However, there is no evidence placed on record by the prosecution through any of its witnesses to determine the extent of money extorted from the passengers who were traveling in the train at that time. There is a close void in the prosecution evidence and case to that effect. Both the lower Courts have not applied its mind to this crucial aspect of the money claimed to be extorted and the money actually recovered from Accused No.1.

6. Next it is seen that, there is a clear dichotomy in the prosecution evidence as to whether both accused boarded the train at Kurla Terminus itself in the general compartment or whether both accused entered the train after it commenced its journey from Kurla Terminus. In this regard, evidence of the prosecution witness viz. PW-2 the eye witness once again becomes relevant. It is but natural that passengers in such a situation are not expected to know the names of accused, but in such circumstances they are required to describe the accused on the basis of the clothes worn by them and their general features. The evidence of the PW-2 - eye witness as also the written complaint of complainant lodged on the date of incident are completely bereft of identifying both the accused by their description. All that PW-2 has stated is that, he was traveling in Pawan Express on the date of incident and two persons came inside the compartment and demanded cash amount from the passengers by pointing the knife. The case of the prosecution is that both accused attempted to flee after the train slowed down near Dombivali and passengers chased and apprehended them. If that was the case, then nothing prevented prosecution from leading evidence of the other independent eye witnesses or passengers who apprehended the accused to prove its case beyond all reasonable doubts. Merely on the testimony of PW-2, that accused entered the compartment and demanded money, the learned Trial Court has accepted the said evidence and version of PW-2 which states that it has gone unchallenged and held that PW-2 has no reason to depose against the accused and therefore his testimony is believable. This is only a ground which has been given by the learned Trial Court to award conviction to Accused No.1 in the present case while exonerating Accused No.2. If the train had commenced its journey from Kurla Terminus and if both accused would have entered the compartment at the inception itself, in the general compartment and it was crowded, then their presence will have been noticed by the co-passengers. There is no evidence coming from the prosecution on this aspect. Further, it would have been impossible for the accused to enter the compartment after the train commenced its journey since there is no evidence on record to suggest that both accused entered the compartment after the train had commenced its journey. Though both accused were apprehended and brought to the Station Master's cabin and the Station Master took down the complaint from Complainant on the same date itself, evidence of the Station Master PW-1 Mr. Ranjankumar Mukharji clearly shows that he failed to identify the accused.

7. PW-2 eye witness has stated that both accused had threatened the passengers with a knife. But the prosecution and the investigating officer have not recovered the said knife. In view of this crucial fact and the alleged weapon not having been recovered and there is no recovery panchnama of the same, can the charge of robbery can be applied in such circumstances is not clear. This is so because, this is not a mere case of theft, since prosecution's case is that this is a case of extortion by both accused and while committing extortion it is done by showing a weapon i.e. a knife and the accused have put various persons in fear of instant death or instant hurt or instant wrongful restraint and induced them to deliver the things i.e. money. In the present case, according to prosecution there were two accused who threatened a multitude of passengers traveling in the general compartment of Pawan Express. This is not a case of the prosecution where there were sparse passengers in the train at that time. Merely on the basis of recovery of Rs.275/- effected from Accused No.1, in the denomination of Rs.20/-, Rs.10/- and Rs.5/- currency notes, it cannot be said that Accused No.1 had extorted the said amount from various passengers unless there is evidence placed on record by the prosecution to substantiate its case of extortion and robbery. This is coupled with the fact that PW-1 the Station Master who has in fact deposed that he was on duty on that date and made the announcement for GRP to accompany him to the incident spot when he saw two accused were arrested by RPF. He consulted the guard i.e. PW-7 who has also deposed and was informed that there was nuisance created by the two persons and those two persons were handed over to the GRP. Hence this evidence goes contrary to the prosecution case of extortion. In his cross examination, he has admitted that he has no knowledge about the incident and he did not make any inquiry. Cross examination of PW-1, is however contrary to his own examination-in-chief. In that view of the matter, the evidence of the prosecution witness viz. PW-1 cannot be considered at all to indict and convict both the accused. Needless to state that, it is only the accused No.1 who has been convicted and the trial Court has acquitted the Accused No.2 for want of evidence. The evidence of PW-2 - eye-witness virtually gives away the case of the prosecution. PW-2 has stated that he boarded the train at 8.30 am at Kurla and it started at 9.15 am and the compartment was crowded. He has next deposed that two-three persons entered the compartment in between Thane and Dombivali and one of the person came to him. He has deposed that the persons were armed with knife and demanded Rs.20/on the edge of knife, but he paid them Rs.10/-. This specific deposition of PW-2, the sole eye witness to the incident is contrary to the Complainant's version all together. There is a clear contradiction of various facts. It is highly unfathomable to believe that in a crowded train compartment two or three persons could commit the above act and thereafter they would exit the compartment and attempt to flee. PW-2 has stated that when the persons attempted to flee they were chased by the passengers and brought back in the compartment. He has in fact stated that when they were brought back, he could not say whether any amount was recovered from them. However, in his cross examination, he has admitted that though he remembered making a statement before the police by giving description of Accused No.1, the said statement however does not reflect the description of Accused No.1. Reading the deposition and cross examination of PW-2 qua the prosecution case through its other witnesses, I do not find any reason to proceed any further than to determine the present Revision Application. There is a clear dichotomy with respect to the number of people who committed the offence in the train compartment and also the fact that it was a crowded compartment according to the sole eye witness and therefore the prosecution has failed to prove its case beyond all reasonable doubts in indicting and convicting both the accused.

8. The Trial Court Judgment dated 10.3.1995 merely states that there is evidence against Accused No.1 and has exonerated Accused No.2. The Accused No. 1 has no antecedents whatsoever as informed by Mr. Mhaispurkar to this Court. There is a clear contradiction observed in the prosecution evidence which is thoroughly inconsistent with the number of persons involved in the offence, the amount of recovery, absence of recovery panchnama, deposition of PW-7 the guard of the train who deposed that the Accused were creating nuisance in the Compartment and therefore, the judgment of the Trial Court suffers from severe infirmities. In the facts of the above case based on the sole eye witness's account, the prosecution has miserably failed to prove its case against Accused No.1.

9. Both the judgments dated 10.3.1995 of the Trial Court and dated 13.11.2002 of the Additional Sessions Court merely proceeds on the applicability of Section 392 r/w. Section 390 IPC by accepting the evidence of PW-2, which falls short of any cogent proof of what transpired. The Complainant's version and deposition does not match with the version of PW-2. None of the ingredients of the said provisions have been proved by the prosecution in the present case when the evidence of the sole direct eye witness defers on all merits. The weapon i.e. the knife not having been recovered adds to the woes of the prosecution. The prosecution has not proved its case beyond all reasonable doubts. Thus it calls for interference of both the impugned judgment dated 10.3.1995 passed by the J.M.F.C. Railway Court, Kalyan and the judgment in Appeal dated 13.11.2002 passed by the Additional Sessions Judge, Kalyan which are clearly not sustainable. In view of the aforesaid observations and findings, both the judgements are quashed and set aside. Resultantly, the Accused No.1 along with Accused No.2 stand exonerated. The Bail Bond of the Accused No.1 stands canceled.

10. Criminal Revision Application is allowed and disposed. [MILIND N. JADHAV, J.] ANIL TIKAM