Judgment:
Shrihari P. Davare, J.
1. The challenge, in this appeal, is to the conviction and sentence inflicted upon the appellant by judgment and order dated 31.10.2009, rendered by learned Additional Sessions Judge, Nandurbar, in Sessions Case No. 13 of 2008, thereby convicting the appellant/accused herein for the offence punishable under Section 328 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for five years and to pay fine of Rs. 500/ with default condition for nonpayment of fine amount, to suffer further Rigorous Imprisonment for one month, and also convicting the appellant/accused for the offence punishable under Section 379 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for two years and to pay fine of Rs. 500/ with default condition for nonpayment of fine amount, to suffer further Rigorous Imprisonment for one month. Both the afore said sentences were made to run concurrently.
2. The factual matrix of the prosecution case, can be summarized as under:
It is alleged that on 5.3.2008, PW4 Pradipkumar Hambram i.e. the complainant herein, resident of Hariyarpur, Post Jamuva, District Giridi, Jharkhand, who was serving at Surat, was proceeding from Surat to Bhusawal and boarded SuratBhusawal passenger train at Surat at about 4.00 to 4.40 p.m. in general boggy. At this juncture, one person, aged 25 to 26 years, having slim built, medium height and semi dark complexion, boarded the said boggy and occupied a seat in front of PW4 Pradipkumar. After casual talk between them, he purchased two pouches containing water at Nandurbar and poured the same in his water bottle and he offered the said water to PW4 Pradipkumar. The said person took out one packet of cream biscuit from his bag and offered the same to PW4 Pradipkumar, but PW4 Pradipkumar declined therefor. However, the said person persuaded and insisted PW4 Pradipkumar to take at least one biscuit. Then PW4 Pradipkumar took one biscuit from his packet and ate it. After eating the said biscuit, PW4 Pradipkumar, who was sitting near window, slept there only losing his consciousness, and regained his consciousness on the next day evening and found himself admitted in the hospital at Bhusawal. On inquiry, he came to know that he was found by railway police in an unconscious condition at Bhusawal railway station, and thereafter he was admitted in the hospital by police personnel. He also came to know that there was no luggage found with him, and accordingly his VIP suit case containing six sarees, a lady wrist watch, cash of Rs. 5,800/ with some clothes were missing. Thereupon, he realised that his copassenger had administered him some intoxicating substance through water and cream biscuits and thereafter he lost his consciousness and thereupon the said copassenger committed the theft of his baggage. Accordingly, PW4 Pradipkumar lodged the first information report before the railway police at Bhusawal, which was forwarded to Nandurbar railway police station and crime was registered at C.R. No. 7 of 2008 under Sections 328 and 379 of the Indian Penal Code.
3. It is the case of prosecution that PW7 Rajendra Bhavsar was working as P.S.I. on 6.3.2008 at Nandurbar railway police station and on 8.3.2008 he received the first information report (Exh. 21) recorded by Bhusawal railway police under Zero number lodged by PW4 Pradipkumar and on the said basis, he recorded C.R. No. 7 of 2008 at Naudurbar railway police station as crime had taken place within the jurisdiction of Nandurbar railway police, and accordingly investigation in the crime was initiated. PW7 Rajendra recorded supplementary statement of PW4 Pradipkumar. The police personnel prepared the sketch of the suspect with the assistance of PW4 Pradipkumar. Moreover, PW4 Pradipkumar was taken to Surat railway station to search the suspect. Accordingly on 9.3.2008 at about 4.30 p.m. PW4 Pradipkumar found the suspect and he caught hold of him and the said suspect was holding a bag in his hands and was about to board the passenger train, and therefore, the police personnel brought him to Nandurbar railway station. He was asked his name and address and he gave his name as Ramu Vijay Mandal i.e. the accused/appellant herein. PW4 complainant Pradipkumar confirmed that the person apprehended was the said person who had given water and biscuits containing intoxicating substance to him and thereby he lost his consciousness. Accordingly, two panchas were called and personal search of appellant was conducted in their presence and one brown money purse containing cash of Rs. 1,500/ and 14 pink tablets of Weyeth company and one railway ticket dated 9.3.2008 for the journey from Surat to Jalgaon were found in his possession and the said articles were seized under panchanama. The accused/appellant came to be arrested on 9.3.2008.
4. The prosecution case further recites that PW7 P.S.I. Rajendra sent the said articles to the Chemical Analyser's office for examination purpose along with the forwarding letter through P.C. PW8 carrier Anildhavan Vasave on 6.4.2008 and obtained acknowledgment (Exh.33). Thereafter, the report dated 3.5.2008 (Exh.34) from the Chemical Analyser was received, which was positive for psychotropic substance, namely Lorazopam (Weyeth company) in orange colour tablets and hazy liquid, but no poison was detected. PW7 P.S.I. Rajendra recorded the statements of witnesses during the course of investigation.
5. After completion of investigation, PW7 P.S.I. Rajendra filed the charge sheet against the accused/appellant and the said case was committed to the court of Sessions, since charges levelled against he accused/appellant were under Sections 328 and 379 of the Indian Penal Code. Accordingly, learned Additional Sessions Judge, Nandurbar framed the charge against the appellant/accused under the said Sections at Exh. 6 on 4.11.2008.
6. To substantiate the said charges, the prosecution examined in as much as eight witnesses, as mentioned below:
PW1 Maheshpalsing Jasbirsing Thakur, seizure panch, who recorded the panchanama (Exh.13) of personal search of the appellant on 9.3.2008 at Nandurbar railway police station - turned hostile.
PW2 Pravin Shivdas Choudhary, another panch of the said seizure panchanama (Exh.13) recorded at Nandurbar railway police station on 9.3.2008.
PW3 Sk. Khalil Sk. Sardar, Police Head Constable, who accompanied with the complainant to Surat railway station from Nandurbar and in whose presence the appellant was apprehended at Surat railway station on 9.3.2008.
PW4 Pradipkumar Rabhan Hambram, complainant
PW5 Dr. Devarshi Virendranath Ghoshal, who examined the complainant at Municipal Hospital, Bhusawal on 6.3.2008.
PW6 Sanjay Chudaman Salunke, A.S.I. who removed the complainant to the Municipal Hospital, Bhusawal on information of one Gautam Shirsath on 6.3.2008 in an unconscious condition.
PW7 P.S.I. Rajendra Dagadu Bhavsar, the investigating officer. PW8 Police Constable Anildhavan Bibishan Vasave, carrier.
7. The defence of the appellant/accused was of total denial, but the appellant did not examine any defence witness.
8. After scrutinizing and appreciating the evidence on record, learned Additional Sessions Judge, Nandurbar held the appellant guilty for the offences punishable under Sections 328 and 379 of the Indian Penal Code and convicted and sentenced him as afore stated. Being aggrieved and dissatisfied by the said conviction and sentence rendered by learned Additional Sessions Judge, Nandurbar by the judgment and order dated 31.10.2009, the appellant/accused has preferred the present appeal praying for quashment thereof.
9. To deal with the submissions advanced by the learned Counsel for the appellant and the learned Additional Public Prosecutor for the respondent, it is necessary to advert to the material evidence adduced and produced by the prosecution on record.
10. In the said context, coming to the deposition of PW4 complainant Pradipkumar, who deposed that he is resident of Jharkhand State and was serving at Surat since 1998 and on 5.3.2008 he was proceeding from Surat to Jharkhand, and therefore boarded Surat Bhusawal passenger train at Surat railway station at 4.00 to 4.30 p.m. in a general boggy. At this juncture, one person, aged 25 to 26 years boarded at Surat and occupied a seat in front of him. He was having slim built, medium height and semi dark complexion. He was chitchatting with him. He purchased two pouches containing water at Nandurbar and poured the same in his water bottle. There was small quantity of water in the bottle before pouring water from the pouches. By that time, train reached to next small station and said person took out one packet of biscuit from his bag. As per the request of said person, he took two sips of water from his bottle. The said person also asked him to take some biscuits, but he declined therefor. However, the said person insisted him to take at least one biscuit. Then PW4 Pradipkumar took one biscuit from his packet and ate it. Thereafter train left the station. PW4 Pradipkumar was sitting near window. After eating the said biscuit, PW4 Pradipkumar, slept there only and lost his consciousness, and woke up from the sleep on the next day evening and found himself admitted in the hospital at Bhusawal and at that time it was 4.00 to 5.00 a.m. Accordingly he was unconscious for 6 to 7 hours. Some police personnel were present there. On inquiry, he revealed that he became unconscious as some intoxicating substance was given by the copassenger (accused/appellant) to him mixing in the water and through biscuits and he also lost his baggage containing six sarees, a lady wrist watch, cash of Rs. 5,800/ and some clothes. Thereafter PW4 Pradipkumar lodged the report with Bhusawal police station and the first information report (Exh.21) came to be lodged accordingly.
11. PW4 Pradipkumar further stated that on the next day he was taken to Jalgaon to prepare sketch of the appellant and photo sketch of the accused was prepared. Thereafter he was taken to Surat on 9.3.2008 and he searched for the accused on the platform at Surat with the assistance of police and found the accused there and thereupon he caught hold of him and handed him over to police. A water bottle, one biscuit packet, small vial of medicines and a news paper were found in a black bag in his possession. Thereafter PW4 Pradipkumar stated that the accused was taken to railway station at Nandurbar.
12. During the crossexamination, he stated that he drank water first and went to sleep within two minutes after eating the biscuit. He further stated that he searched the accused with the assistance of police in civil dress on 9.3.2008 on the platform at Surat railway station and found him there. In the said context, he stated that after watching the accused, he first caught hold of him and then told the police that he was the same person. He also stated that the accused attempted to run away, but immediately thereafter police caught him. He also stated that personal search of the accused was taken by police after taking him in a room on the first floor, but no panchanama was prepared at that place. He further stated that there was nobody in the godown room where the accused was taken.
13. Having the comprehensive view of the testimony of PW4 complainant Pradipkumar, pertinently PW4 Pradipkumar stated in his crossexamination that they searched and found the appellant/accused on platform No. 1 only and they had not gone to any other platform; whereas the theory of prosecution is that the appellant was found and caught hold on platform No. 3 of railway station at Surat, as revealed in the testimony of PW7 P.S.I. Rajendra. Moreover, PW4 Pradipkumar stated in the crossexamination that personal search of the appellant was taken by the police after taking him in a room on first floor at Surat and no panchanama was drawn at that place and there was nobody in the godown room where the accused was taken. However, the theory advanced by prosecution through the testimony of PW7 Rajendra is that after accosting the accused on the platform at Surat railway station, he was brought by same train to Nandurbar and after coming to Nandurbar, two panchas were called and personal search of the accused was conducted and in their presence, one brown money purse containing cash of Rs. 1,500/, 14 pink tablets of Weyeth company and one railway ticket dated 9.3.2008 for journey from Surat to Jalgaon were found and said articles were seized, as well as leather shoulder bag was found on the person of the accused and same was searched and articles therein were seized. Accordingly, there appears to be clear variance in the testimonies of PW4 complainant Pradipkumar and PW7 P.S.I. Rajendra in respect of search of the appellant and seizure of articles.
14. That takes me to the testimony of PW2 Pravin Choudhary, panch witness, who stated in his deposition that he sales tea at railway station Nandurbar and on 9.3.2008 at about 10.00 p.m. he was called by police at Nandurbar railway police station for drawing panchanama and accused was present there. His name was disclosed to him and the accused was having a black colour shoulder bag. It is also stated that accused was searched in his presence and cash of Rs. 1 ,500/ and 10 to 15 small tablets in a packet were found in his pant pocket. Moreover, some clothes and one bettle nut cutter, one packet containing cream biscuits and water bottle were found in his shoulder bag. Accordingly, panchanama (Exh.13) was executed and his signature was obtained thereon.
15. During crossexamination, PW2 Pravin Choudhary admitted that since he sales tea at railway platform, he regularly comes in contact with railway police. Hence, suggestion was given to him that he signed on several panchanamas, but the same was denied by him. However, he admitted that he obeys directions of the police if they assign him any work. Pertinently, PW2 Pravin Choudhary stated in the crossexamination that when he went to the police station, all these articles were kept on a table. He further admitted that when he went there, the panchanama was ready and his signature was obtained thereon. He further stated that another panch had accompanied him and they went to police station together. It is also stated that panchanama was going on for half an hour. He further admitted that nothing was seized from the accused in his presence. He also admitted that police personnel told him what to depose in the court.
16. Considering the testimony of PW2 panch witness Pravin Choudhary, it is amply clear that after accosting the appellant at Surat railway station, his personal search was not taken at Surat railway station and PW2 Pravin Choudhary falsified the version of PW4 Pradipkumar complainant in that respect. It is further clear that the accused was brought to Nandurbar and further to railway police station Nandurbar and there his search was taken and articles in his possession were seized under the panchanama (Exh.13) at Nandurbar. However, as stated by PW2 panch witness Pravin Choudhary, when he entered into police station along with the copanch, all the articles were kept on the table and panchanama was ready and his signature was obtained thereon and nothing was seized from the accused in his presence, which itself clarifies that no search of the accused and seizure of articles was effected in presence of PW2 panch witness Pravin Choudhary and the said alleged search and seizure from the accused comes under cloud of suspicion.
17. Coming to the testimony of PW3 Head Constable Sk. Khalil Sk. Sardar, who stated that he was serving as Head Constable at Nandurbar railway police station and at the relevant time on 9.3.2008, he, PSI PW7 Rajendra Bhavsar and other staff members had gone along with PW4 complainant Pradipkumar to Surat and searched the accused at railway station area and found the accused on platform No. 3 and he was apprehended there and on inquiry he disclosed his name as Ramu Vijay Mandal i.e. accused herein. He further stated that the said accused was brought to railway police station, Nandurbar and PW7 PSI Rajendra searched his person and articles were found on his person, as well as his bag was searched and articles were found therein and the said articles were seized under the seizure panchanama Exh.13 in presence of panchas after labeling with signature and sealing the same.
18. However, during the crossexamination, PW3 HC Sk. Khalil categorically stated that accused was merely apprehended at Surat where he was found and he was arrested after he was brought at Nandurbar police station. He further stated that since the train for returning to Nandurbar was due for journey, they did not draw arrest panchanama on the spot. He also stated that he cannot tell why the accused was not arrested in the train.
19. Considering the testimony of PW3 HC Sk.Khalil, it is evident that he accompanied with the complainant to Surat railway police station from Nandurbar on 9.3.2008. It is amply clear from his testimony that accused was merely apprehended at Surat where he was found and thereafter he was brought to Nandurbar police station and was arrested thereafter. Moreover, it is further clear that arrest panchanama was also drawn at Nandurbar and not at Surat. Hence, it is amply clear that after apprehending the accused at Surat railway station, his search was not conducted at Surat and he was not arrested at Surat, but he was brought to Nandurbar railway police station and there his search was conducted and articles from his possession were seized under seizure panchanama Exh.13 and he was arrested at Nandurbar, and accordingly the version of PW3 Sk.Khalil is contradictory to the testimony of PW4 Pradipkumar i.e. complainant in respect of the very search of the accused and seizure of the articles from him, and therefore also, the very alleged search of the accused and seizure of the articles from his possession come under the doldrums.
20. Turning to the deposition of PW7 PSI Rajendra Bhavsar, who was working as P.S.I. at Nandurbar railway police station at the relevant time in March, 2008, and on 8.3.2008 he received first information report recorded by railway police Bhusawal at Zero number lodged by PW4 Pradipkumar (Exh.21). Accordingly, on the basis of the said first information report, PW7 PSI Rajendra registered Crime No. 7 of 2008 at Nandurbar police station. He also stated that he carried out the investigation in the said case and recorded supplementary statement of the complainant. On 9.3.2008 he, PW3 HC Sk. Khalil, PW4 complainant Pradipkumar and other staff members went to Surat railway station and searched for the accused. At about 4.30 p.m. on platform No. 3 where Surat Bhusawal down passenger had arrived for leaving Surat station, the complainant pointed out towards a person holding the bag boarding the said train, and therefore, they caught hold of him and brought him by the said train to Nandurbar. On inquiry, he gave his name as Ramu Vijay Mandal i.e. the appellant herein. The complainant confirmed that he was the same person who gave him water and biscuit containing intoxicating substance, whereby he lost his consciousness after consuming the water and eating the biscuit. PW7 PSI Rajendra further deposed that after coming to Nandurbar police station, he called two panchas and took personal search of the accused and found cash of Rs. 1,500/, 14 pink tablets of Weyeth company and one railway ticket dated 9.3.2008 for journey from Surat to Jalgaon, and said articles were seized. He also stated that they found leather shoulder bag on the person of accused containing articles therein and same were seized. He further stated that he arrested the accused on 9.3.2008 under the arrest panchanama and the seized articles were sent to Chemical Analyser's office for examination on 6.4.2008 and the report from the Chemical Analyser was received, which was produced at Exh.34.
21. In the crossexamination, PW7 PSI Rajendra admitted that he did not investigate as to from where the accused had brought Bisleri bottle. He further stated that although the accused was taken into custody at Surat railway station, he was not arrested there. In the said context, he further stated that due to heavy crowd, it was not possible to draw panchanama at Surat railway station. Besides that, he also stated that panchas speaking Marathi language were not available. He, however, admitted that Marathi knowing passengers travel from Surat, but such persons were not ready to act as panchas. He further stated that they tried to obtain panchas, but could not succeed. The accused does not understand Marathi language and cannot read and write in Marathi language. He further stated that he did not feel it necessary to hold test identification parade.
22. On the background of the afore said material evidence on record, learned Counsel for the appellant canvassed that the recovery of articles from the possession of the appellant/accused and bag allegedly held by him are doubtful and reliance cannot be placed on seizure panchanama (Exh.13), since it was not prepared at Surat railway station immediately after apprehending the accused, but it was prepared at Nandurbar police station after bringing the accused at Nandurbar. Moreover, it is also submitted that although the accused was apprehended at Surat and though his search was taken in godown room, as stated by PW4 complainant Pradipkumar, no panchanama was prepared at that place and there was nobody in the said godown room where accused was taken, as contended by PW4 complainant Pradipkumar and there is variance between the testimonies of PW4 complainant Pradipkumar on one part and PW2 panch witness Pravin Chowdhary, PW3 H.C. Sk. Khalil Sk. Sardar and PW7 P.S.I. Rajendra Bhavsar on the other part, and independent panch witness PW2 Pravin Chowdhary and other police witnesses i.e. PW3 H.C. Sk.Khalil Sk. Sardar and PW7 P.S.I. Rajendra Bhavsar falsified the version of the complainant, and hence, the alleged search, recovery and seizure of the articles from the possession of the accused comes under suspicion.
23. According to the learned Counsel for the appellant, PW2 panch Pravin Choudhary has stated in his deposition that when he was brought to police station, all the articles were kept on the table and panchanama was already prepared, and therefore, such seizure panchanama (Exh.1 3) which was already prepared prior to arrival of panch PW2 Pravin Choudhary in the police station, cannot be believed. Moreover, since all the articles were kept on the table, as stated by PW2 panch Pravin Choudhary, it is crystal clear that the said articles were not seized from the possession of accused in presence of said panch witness, and hence, the liability of the said articles cannot be foisted upon the accused/appellant herein.
24. Learned Counsel for the appellant further submitted that although the alleged search of the accused was conducted on 9.3.2008 and seizure of the articles was effected from the possession of the accused on 9.3.2008, as contended by the prosecution, the seized articles were sent to the Chemical Analyser's office after substantial period i.e. on 6.4.2008 and there is nothing on record about the proper custody of the said seized articles during the said period, and hence, possibility of tampering of the said seized articles during the said period cannot be ruled out, and therefore, the Chemical Analyser's report (Exh.34) cannot be tacked with the said seized articles. It is further submitted by learned Counsel for the appellant that the prosecution failed to conduct the test identification parade of the appellant, since the appellant was not known to the complainant, and the apprehension of the appellant by the complainant at Surat railway station on 9.3.2008 as the same person who allegedly gave water and biscuits containing intoxicating substance therein to the complainant, is under suspicion.
25. It is further canvassed that the said aspect is further strengthened, since PW7 PSI Rajendra stated in his deposition that the appellant was apprehended on platform No. 3 of Surat railway station, as well as PW3 HC Sk. Khalil stated that the appellant was apprehended on platform No. 3 of Surat railway station; whereas PW4 complainant Pradipkumar in his examinationinchief is silent regarding giving the number of the platform of Surat railway station, on which the accused was accosted, but PW4 Pradipkumar stated in his crossexamination that they searched the accused and accused was found on platform No. 1 only and they had not gone to any other platform.
26. In the circumstances, learned Counsel for the appellant urged that the connecting link of recovery of articles from the possession of the accused and the accused herein is under cloud of suspicion, and hence, there is no legal evidence to connect the accused with alleged crime, and therefore, the present appeal is required to be allowed quashing the conviction and sentence inflicted upon the appellant and acquitting him from the charges levelled against him.
27. Shri S.D. Kaldate, learned Additional Public Prosecutor countered the said arguments and submitted that the Trial Court has rightly believed the testimonies of PW4 complainant Pradipkumar, PW5 Dr. Devarshi Ghoshal, who examined the complainant on 6.3.2008 at Bhusawal and PW6 A.S.I. Sanjay Salunke, who removed the complainant to hospital on information of Gautam Shirsath, and rightly convicted the appellant for the offence with which he was charged, and submitted that the reasoning adopted therefor by the learned Trial Judge cannot be faulted with. Accordingly, learned Additional Public Prosecutor supported the judgment and order of the Trial Court convicting and sentencing the appellant and submitted that the learned Trial Judge has appreciated the evidence in proper perspective, and therefore, no interference therein is warranted in the appellate jurisdiction.
28. I have perused the impugned judgment and order dated 31.10.2009, as well as record and proceedings and also scrutinized the evidence adduced and produced on record by the prosecution with the assistance of the learned Counsel for the appellant as well as the learned Additional Public Prosecutor for the respondent, and also considered the submissions advanced by the learned Counsel for the appellant and the learned Additional Public Prosecutor for the respondent anxiously, and I am inclined to accept the submissions canvassed by the learned Counsel for the appellant, since there is variance between the testimony of PW4 complainant Pradipkumar on one part and the testimonies of PW2 panch witness Pravin Choudhary, PW3 Head Constable Sk. Khalil and PW7 Police Sub Inspector Rajendra Bhavsar on the other part on the material points, such as apprehension and accosting of the accused whether on platform No. 3 or platform No. 1 of Surat railway station, as well as variances in the testimonies of PW4 complainant Pradipkumar and other afore stated witnesses on the point of personal search of accused, since PW4 Pradipkumar complainant stated that after apprehending the accused at Surat railway station, personal search of accused was taken by police after taking him in a room on first floor, but no panchanama was drawn at that place and there was nobody in the godown room where the accused was taken; whereas PW7 Police SubInspector Rajendra stated in his deposition that after apprehending the accused on platform No. 3 at Surat railway station, he was taken to Nandurbar by some train and brought to Nandurbar police station and thereafter panchas were called and personal search of the accused was taken and articles were seized from his possession under panchanamas Exhs.13 and 36 respectively; whereas PW2 panch witness Pravin Choudhary falsified the complainant PW4 Pradipkumar stating that he was called by police personnel to Nandurbar railway police station on 9.3.2008 and when he went to police station, all the articles were kept on a table and panchanama was already ready and his signature was obtained thereon and another panch was also accompanied with him and nothing was seized from the accused in his presence, and the said very infirmities and deformities in the search of the accused and the alleged seizure of the articles from the possession of the accused, come under the doldrums, and consequently, same cannot be connected with the accused, and further consequently, the accused/appellant cannot be connected with the alleged crimes.
29. Moreover, PW4 complainant Pradipkumar stated in his deposition that after apprehending the accused at Surat railway station, he was taken to the godown room on first floor and his personal search was taken by the police there; whereas PW7 Police SubInspector Rajendra, who also was one of the members of said accosting party, stated that they caught the accused while boarding Surat Bhusawal down passenger train and brought him by the said train to Nandurbar and further tried to give explanation that due to heavy crowd it was not possible to draw panchanama at Surat railway station and there is vital variance in the testimonies of both the said witnesses, which sustains fatal blow to the case of prosecution and hampers the case of prosecution.
30. Apart from that, as canvassed by the learned Counsel for the appellant, although the accused was apprehended on 9.3.2008 and his alleged search and seizure of articles in his possession was effected on the same day, the seized articles were sent for chemical analysis on 6.4.2008, after the lapse of substantial period and the prosecution has not given any plausible explanation in respect of proper custody of the said articles during the said period, and hence, possibility of tampering of the said articles, more particularly the alleged tablets, cream biscuits, hazy liquid in both the samples cannot be ruled out, and hence, the Chemical Analyser's report (Exh. 34) cannot be tacked therewith, and consequently, the accused cannot be connected with the alleged crimes.
31. Moreover, the testimonies of PW5 Dr. Devarshi Ghosal who examined the complainant at Bhusawal on 6.3.2008 and PW6 A.S.I. Sanjay Salunke who removed the complainant to hospital do not constitute material testimonies, since the said versions do not establish nexus between the appellant and the alleged crimes, and hence, explicit reliance placed on the said testimonies by trial Court to connect the appellant with alleged crimes is unwarranted, in the light of the absence of link between the appellant and the alleged seizure.
32. In the circumstances, the prosecution case does not inspire confidence and there are infirmities and deformities in the prosecution case, and there is no legal evidence to connect the appellant with the alleged crimes, and hence, the conviction and sentence awarded by learned trial Judge to the appellant is erroneous and unsustainable, and therefore, same shall not sustain, and hence, same is required to be quashed and set aside by allowing the present appeal.
33. In the result, present appeal is allowed and the conviction and sentence inflicted upon the appellant under Sections 328 and 379 of the Indian Penal Code by way of judgment and order rendered by learned Additional Sessions Judge, Nandurbar, in Sessions Case No. 13 of 2008, dated 31 .10.2009 stands quashed and set aside. The appellant/accused is acquitted of the offences with which he was charged and convicted. The appellant is in jail and he be released forthwith, if not required in any other case. Cash of Rs. 1 ,500/ allegedly recovered from the appellant as well as fine amount, if paid by the appellant, be refunded to him.