Kalicharan Mansaram @ Maniram Snaziand and ors. Vs. State of Maharashtra - Court Judgment

M.S. Jamdar, J.

1. The appellants in Cr. Appeal No. 940 of 1984 (who are hereinafter referred to as the accused) were charged and tried for offences under sections 400, 402, 120-B, 457, 458 read with 120-B, 342, 394, 395 and 397 I.P.C. for being members of a gang of dacoits, for assembling for the purpose of conspiring to commit dacoity and for having committed house breaking and three dacoities in succession in three different localities in the city of Pune.

2. The first dacoity was committed in the early hours of 2nd December, 1983 in the flat occupied by Sanjay Girme (P.W. 9) in the building known as Datta Kripa, situated in Madhav Baug Society at Kothurd, Pune. The second dacoity was committed during the night between 2nd and 3rd December, 1983 in the bunglow 'Ashish' belonging to Bhagchand Karanvat (P.W. 13), situate in Sector No. 27-A of the Pune Township and within the jurisdiction of Pimpri Police Station. While the third dacoity was committed during the night between 3rd and 4th December, 1983 in the house of Sakharam Hadke (P.W. 16) situated in Sadhana Housing Society at Hadapsar.

3. The trial Judge acquitted the accused of the offences under sections 400 and 402 read with 120-B IPC and convicted them for offences under sections 457, 458, 392, 394 and 395 I.P.C. and inflicted various terms of common sentences in respect of three different offences, which were tried together. While the accused have preferred Criminal Appeal No. 940 of 1984, the State has preferred Appeal Nos. 48 to 50 of 1985 against the acquittal of the accused for the offences under sections 400 and 402 I.P.C. read with 120 I.P.C.

4. Sanjay Girme (P.W. 9) speaks about the dacoity committed in his flat. According to him, at about 2-45 to 3-00 a.m. he heard the noise of entrance door being dashed and saw about 4/5 persons entering his flat. He woke up on hearing the noise, but pretended to be asleep. He claims that in the light of night lamp and in the light of torches flashed by the dacoits he saw five persons, two of whom had muffled their faces. He identified accused Nos. 1, 4 and 5 in Court as the persons who entered his bed room on that night. According to Sanjay, after the dacoits entered his bed room, they started removing the ring from his right hand finger and also asked him to remove his locket and accordingly he handed over to them his locket, wrist watch and ring. His wife Sadhana also parted with her mangalsutra ear-ring and wrist watch. Sanjay went on to say that after dispossessing him and his wife of the ornaments, which they were wearing the dacoits turned their attention to the dressing table, kept in the bed room, searched the drawers and removed two boxes which contained currency notes worth Rs. 1300/- and two silver rings. The dacoits took those articles, tied the hands of Sanjay and his wife and then left the flat. According to Sanjay, one of the three persons, who were not masked, had straight nose and round face; while the second was having thick hair on his body. After the five persons left his flat. Sanjay raised shouts 'Chor-Chor' opened the door of the flat and came out. He then ascertained what articles were stolen by the dacoits and then went to Erandavana Police Station and informed the police man on duty and returned to his flat and lodged his complaint Ex. 39, with P.S.I. Inamdar, who had arrived there in the meanwhile. In this complaint, he gave the description of the ornaments and other articles worth Rs. 13, 890 of which he was robbed by the dacoits.

5. It appears that just before or after Sanjay Girme's house was broken into the dacoits also effected entry in the flat of Sanju Inamdar (P.W. 8) and ransacked his flat and removed a B.P.L. two-in-one transistor-cum-tape recorder bearing Model No. R.T. 2007 Chassis No. 21061. While lodging his complaint, Ex. 39, Sanju also made a mention of this theft and gave complete description of the two-in-one tape recorder which was stolen from the flat of Sanju Inamdar. Sanju's statement was also recorded immediately after the panchnama of the scene of offence was made.

6. Bhagchand Karanvat (P.W. 13) described how dacoits effected entry in his bunglow and robbed him, his wife, and daughter of gold ornaments and silver utensils. On 2nd December Bhagchand Karanvat had returned from a visit to a village in Parnev taluka and being tired, fell asleep on a coach in the hall while reading newspapers after finishing his dinner. According to him, at about 1-00 or 1-30 a.m. he heard the sound of something being hammered on the entrance door. He noticed that the wooden door between the verandah and hall was being broken open. He, therefore, ran to the passage and closed the door from inside, but the dacoits broke open that door also and effected their entry in the passage. While four persons entered into the passage, two were standing in the hall. One of the four persons, who entered the passage, dealt a stick blow on his head and on receiving this injury, he fell down. The second one removed his wrist watch and tried to snatch his ring, while the third one broke open the door of the children's bed room. He claims that as his ring could not be easily removed by the dacoit, he himself removed it and handed it over to the person who was trying to remove it. He went on to say that one of the dacoits snatched the mangalsutra from the neck of his wife and also snatched one of the ear-rings from her person. Bhagchand Karanvat claims that apprehending that the dacoits will beat his children, he asked his wife to open the steel cupboard, which was kept in the master bed room and accordingly his wife showed the keys of the cupboard to the dacoits, who then opened the cupboard, took out some ornaments, currency notes, worth Rs. 300/- and put them into Aristocrat make bag and left the premises. According to him, besides, wrist watch and ring removed from his person and ear ring and mangalsutra, which was snatched from the person of his wife, two gold bangles, one another gold mangalsutra, one gold chain of pearls and stones, 5 to 6 silver key chains, two silver toys (Khulkhule), one silver gulabdani, one silver wati, silver spoons, silver waist band were taken away by the dacoits. After the above persons left his bunglow, Bhagchand came out running and met Dr. Saxeria. He narrated the incident to Dr. Saxeria. Thereafter Dr. Parathe was called. He gave first-aid to Bhagchand and thereafter Bhagchand went to Pimpri Police Station and lodged the first information report, Ex. 49, giving complete details of the ornaments, worth Rs. 16,150/- stolen by the dacoits on that night. According to Bhagchand, the dacoits were of black complexion and were short in height and well built. Besides describing the incident and giving details of the ornaments stolen from his house on that night, he also gave the above description of the dacoits in the first information report. He identified Article 6 silver wati, and Article 5, Silver toys Khulkhula and Article 7 two silver ring which were recovered at the instance of accused No. 5 as some of the articles which were stolen from his house on that night.

7. Three witnesses deposed about the dacoity committed in the house of Sakharam Hadke i.e. Sakharam himself (P.W. 16), his married daughter Shailaja (P.W. 14), who lodged the first information report, Ex. 53, and Shaleja's husband Madhav (P.W. 15). Sakharam stated that at about 2-00 a.m. he heard the entrance door of his bunglow being broken open and hence he got up and switched on lights and proceeded a little ahead. At that time 4/5 persons entered his house and the person, who was heading them, gave a stick blow on his head and on receiving this blow he become giddy and fell down. He identified the two-in-one cassette recorder (Article 11) (hereinafter called the Cassette Recorder) as the one which was kept on the show case in the hall and which was stolen on that night. As Sakharam fell giddy and regained consciousness in the hospital, he was obviously, not expected to give other details of the activities of the dacoits. Shailaja, who gave the first information gave the details. According to her, after her father fell down, the dacoits entered the bed room in which she was sleeping along with her husband. According to her, one of them removed four bangles, gold necklace, gold ring, one Dorle having two gold beads, from her person. Gold ornaments, viz. gold necklace (Ganthan), 2 gold bangles and a pair of gold ear-rings were removed from the person of her mother. According to her, while snatching one of the ear rings, the lowest part of her mother's ear was torn. Her husband was also assaulted and given stick blows and on receiving the same, he fell down and the gold ring which was on his person was removed by the dacoits. The dacoits then turned their attention to the Godrej make steel cupboard kept in the bed room, ransacked it removed certain ornaments from the said cupboard and from some other cupboards fixed in the walls and made good their escape. After the dacoits left, Sakharam who was unconscious, was taken to Sane Guruji Hospital by Madhav (P.W. 15) and the police were informed. The police arrived at the scene at about 3-00 a.m. and recorded the first information, Ex. 53, lodged by Shailaja. According to Shailaja all the dacoits were masked and only their eyes and noses were visible. Madhav corroborated in material particulars the evidence of his wife. Both of them identified the Cassette Recorder, Article 11, as belonging to Sakharam.

8. After the dacoity in Sakharam's house, information about the crime was relayed immediately to various police stations in Pune City and at about 4-30/5-00 a.m. P.S.I. Jadhav alerted Police Constable Punde and other policemen who were posted for night round duty on the beat between Tadi Gutta and Dalvi Wasti. Thereafter, while patrolling, Police Constable Punde noticed five to six persons running from the railway station side towards Jadhav Vasti and hence Punde raised shouts 'Chor-Chor'. On hearing the shouts Ramdas Jagtap (P.W. 1) came out of his hut and noticed 6/7 persons wearing lungi with cross stripes and blackish dirty looking shirts running towards sugarcane crop near the Shrike Zopadpatti. According to Ramdas, Namdeo Bawane also came out of his hut and that he himself and Namdeo chased the aforesaid persons and caught accused No. 2, who was one of the persons who were running away. He also stated that one of the persons who escaped, left his pant and pair of shoes while running away. Ramdas stated that by that time some policemen came there from the road leading to Bharat Forge Company and that he and Namdeo handed over accused No. 2 to the said policemen. Punde confirmed in his evidence that accused No. 2 was detained by Ramdas and one another person and that the said accused was handed over to him by Ramdas and his companion. Ramdas and Police Constable Punde specifically stated that thereafter accused No. 2 was taken to the gate of the Bharat Forge Company where after arrival of PI Prabhu, the cloth bundle which accused No. 2 was carrying with him was examined and the contents of the said bundle were attached under panchnama. Both of them stated that the bundle contained the tape recorder, Article 11, a pair of plastic chappals (Article 12) and a torch (Article 15). The panchnama Ex. 27, under which the said articles were attached is proved by panch witness Ovhal (P.W. 2) and P.I. Prabhu. The pant and pair of shoes, discarded by one of the persons, who ran away, were also attached alongwith currency notes found in this pant, under the panchnama, Ex. 28. This is also attested by Babu Ovhal (P.W. 3). As mentioned above, the Cassette Recorder (Article 11) was identified by Shailaja, Sakharam and Madhav as the one which was stolen from Sakharam's house, during the early hours of that morning.

9. Accused Nos. 3 and 4 were accosted at about 4-00 p.m. on 4-12-1983 by Constable Dhumal (P.W. 4) and P.I. Prabhu near a canal near about the Shankar Maharaj Math when they were approaching Pune-Solapur Road. Two torches, one bed sheet, one lungi, currency notes worth Rs. 300/- and Shabnam bag were attached from accused No. 3 while accused No. 4 was found carrying two bed sheets and currency notes worth Rs. 390/-.

10. Accused No. 3 was interrogated by the Police Officers, including the Dy. S.P. Ishwarsingh (P.W. 37) on 4-12-1983, 7-12-1983, 14-12-1983, and 19-12-1983, while accused No. 4 was interrogated on 8th December, 1983. During his interrogation on 8th accused No. 4 stated that they had left behind two sticks at a particular spot and offered to show the place and produce those sticks. Memorandum, Ex. 63 incorporating this statement was drawn by Dy. S.P. Ishwarsingh. Thereafter accused No. 4 took the policemen and panchas to a nalla beyond kachha road leading to the railway crossing at Hadapsar and produced two sticks, Article. 38, and one axe blade Article 39, kept concealed under some bushes at that spot. These articles were attached under panchnama, Ex. 64, which alongwith memorandum, Ex. 63, was proved by panch witness Sawalaram Waghmare (P.W. 19). Some cigarette butts, etc. which were found at that spot, were also attached under the panchnama. The axe blade, which according to the panch witness was having some stains was forwarded to the chemical analyser along with the door planks of Sakharam Hadke's house which was broken by the dacoits. The report, Ex. 148, given by the chemical analyser shows that this axe blade had stains of yellow paint which was similar to the one found on the planks of the door. The Chemical Analyser also found that the cigarette butts found in front of Shri Hadke's house as also at the spot from where accused No. 4 produced the two sticks were of similar make and were of similar chemical composition.

11. As mentioned above, accused No. 3 was interrogated on four occasions and at the time of the third interrogated on 14th December he pointed out the shop of one Rajesh Bansal (P.W. 21) from whom he had purchased the Shabnam bag found in his possession at the time when he was accosted by P.I. Prabhu. During the interrogation made by Dy. S.P. Ishwarsingh on 29th, accused No. 3 agreed to point out the tape recorder which he had concealed near Kirloskar Cummius area. Memorandum Ex. 41, of his statement was drawn and thereafter accused No. 3 led by Dy. S.P. Ishwarsingh and panchas to the spot near about Kirloskar Cummius company and produced the Cassette recorder, Article 11, under the heap of leaves near a drum placed at a distance of about 200 to 300 feet from a high tension electric pole. This Cassette Recorder, which contained a cassette bearing initials 'SMI' was attached under the panchnama Ex. 42, which along with the memorandum Ex. 41 was proved by panch witness Mushtaq Ahmed Motiwala (P.W. 10).

12. Accused No. 6 was found at about 1-00 a.m. on 15-12-1983 when he was concealing himself near platform No. 1 of Pune Railway Station. Some articles, which were identified by Sanjay Girme, Sakharam Hadke and Bhagchand Karanvat were recovered at his instance on 20th December, 1983.

13 Accused No. 1 could not be traced at Pune. He was found at Delhi, a Place from where he hailed, in May 1984. He was brought to Pune and thirteen witnesses were made to identify him in an identification parade held by the Executive Magistrate Eknath Kadam (P.W. 32) on 12-5-1984 in the precincts of Yeravada Jail. Out of thirteen witnesses Sanjay Girme (P.W. 9), Bhagchand Karanvat (P.W. 13), Shailaja (P.W. 14), Madhav (P.W. 15), Sakharam Hadke (P.W. 16) and hotel keeper, Jaya Shetty (P.W. 18), identified him in this parade. No identification parade was held in respect of accused Nos. 2 to 5 at any stage of the investigation.

14. It is in evidence that after lodging of the first information reports, finger print expert Jadhav (P.W. 25) visited the scene of three dacoities along with photographer Shri Tote and took the photographs of the chance finger prints found at these places. Three chance finger prints were found in Sanjay Girme's house, two of them on the nail polish remover and one the sliding glass of the dressing table two chance finger prints were found in Bhagchand's house, one or the empty perfume bottle and the other on empty medal box. One more chance finger print was found on the glass of the T.V. Cup-board in Sakharam Hadke's house. The specimen finger prints of accused Nos. 2 to 5 were also taken and were handed over to Shri Jadhav for comparison. Shri Jadhav arranged to get enlarged photographs of the chance prints as well as of the specimen finger impressions of the accused. As stated by him, Exs. 78-A, 78-B, 78-C are enlarged photographs of the chance finger prints found in the house of Sanjay Girme, while Exs. 80-X and 80-Y are chance finger prints found in the house of Bhagchand Karanvat and Ex. 81-A is enlarged photograph of the chance finger print found in the house of Sakharam Hadke. Exs. 86, 90 and 92 are the enlarged photographs of specimen finger impression of accused No. 2 Ex. 88 is enlarged photograph of finger impression of accused No. 3. Ex. 82 is enlarged photograph of finger impression of accused No. 4, while Ex. 84 is enlarged photograph of finger impression of accused No. 5. On comparison of the chance finger prints with the specimen finger impressions with the help of enlargements, Shri Jadhav found that the chance finger prints at Ex. 98-C, 80-Y and 81-A were identical with the specimen finger prints, Ex. 86, 90 and 92, which, as mentioned above, are enlarged photographs of the finger impressions of accused No. 2. Shri Jadhav also came to the conclusion that the finger impression Ex. 80-X, is identical with Ex. 88, which is enlarged photograph of finger impression of accused No. 3; that the chance finger print Ex. 78-A is a identical with finger impression Ex. 82 of accused No. 4 and that chance finger print Ex. 788, is identical with finger print impression Ex. 84, of accused No. 5. Shri Jadhav have reasons for his opinion separately in respect of each of the chance finger prints. These reports are at Ex. 83, 85, 87, 89, 91, 93. Report, Ex. 83 relates to the chance finger print, Ex. 78/A. Report, Ex. 85, relates to the chance print, Ex. 78/B. Report Ex. 83, is in respect of chance finger print. Ex. 78-C. Report Ex. 89 is in respect of finger print Ex. 78x. Report Ex. 91 is in respect of finger print Ex. 80-Y while report Ex. 93 is in respect of chance finger print, Ex. 81-A. The evidence of Shri Vijay Tote and finger print expert Shri Jadhav (P.W. 25) in respect of taking and development chance finger prints and in respect of the comparison of the chance finger prints with the specimen finger impressions remained practically unchallenged.

15. The learned trial Judge accepted this evidence and held the accused guilty of offences under sections 457, 458, 392, 394 and 395 IPC. He, however, found that there was nothing on record to show that there was a gang of dacoits to which the accused belong or that they had assembled any time for the purpose of committing the decision in question. From the circumstances established on record, he was also unable to spell out the offences of conspiracy.

16. Accused No. 1 is convicted solely on the basis of his identification parade held on 12th May, 1984. As mentioned above, accused No. 1 was apprehended at Delhi some days before he was brought to Pune in May 1984. Admittedly, nothing was recovered from his possession nor any incriminating article was discovered at his instance. As mentioned above, he was identified in the identification parade by Sanjay Girme (P.W. 9), Bhagchand (P.W. 13), Shailaja Madhav and Sakharam (P.Ws. 14 to 16 respectively) and hotel keeper Shri Jaya Shetty. According to Sanjay Girme, accused No. 1, was one of the three persons who had not muffled the face and that he had seen accused Nos. 1, 4 and 5 in the light of the night lamp and also in the light of torches flashed by the dacoits. He claims to have identified accused No. 1 on the basis of his straight nose and round face, the description which he gave in the first information report Ex. 39. However, in the first information report, there is no mention that any night lamp was kept burning in the bed room. There is absolutely no reference to any night lamp in the panchnama of the scene of offence Ex. 47. Sanjay claims that he had pointed out the night lamp at the time of the panchnama, but the police failed to make a notice of it. It is difficult to accept this claim. We also cannot accept the contention that even though he pointed out the night lamp to the panchas they did not make mention of the same in the panchnama. There was no reason for the Police Officer and the panchas to purposely omit mentioning this important circumstance. The only inference that can be drawn is that there must not have been any night lamp in the bed room in which Sanjay Girme was sleeping. No doubt, the dacoits might have flashed torches while ransacking the furniture, including the dressing table in the bed room and that Sanjay and his wife might have had fleeting glimpses of the dacoits, especially those whose faces were not muffled. But, considering the panicky situation that must have prevailed in the house at that time and the mental frame of the inmates, it would be difficult to identify a person on the basis of a feting glimpse. Moreover, Sanjay's wife, who had a better opportunity to see atleast those dacoits, who dispossessed her of the ornaments which she was wearing, was not examined, obviously because she failed to identify accused No. 1 in the identification parade.

17. Bhagchand was floored by the first blow given to him by the dacoits as soon as they entered the passage. Admittedly, he did not get up till the dacoits left. His claim, therefore, that even while lying injured on the ground, he was in a position to clearly see the dacoits so as to identify them after a lapse of time, cannot be accepted. So far as dacoits, who entered the house of Sakharam Hadke, all of them had muffled their faces. As admitted by Shailaja, only nose and eyes were visible. Clearly, therefore, inmates of Sakharam's house had no opportunity to see the faces of the dacoits.

18. The identification parade was also a farce. As mentioned above, 13 witnesses were asked to identify accused No. 1 on 12-5-1984 and only seven of them could identify him. The panchnama in respect of these identification parades are at Exs. 101 to 106. It will be seen from these panchnamas that all the dummies, who were made to stand in the identification parade, were inmates of Yeravada Jail and their personal numbers were also displayed on the jail uniforms which they were wearing. Shailaja has confirmed the position that the only person who was not in the jail uniform was accused No. 1. There could not have been any difficulty in identifying him. Clearly, therefore, the identification parade was stage-managed. Such an identification is absolutely worthless apart from the fact that, as observed above, the identifying witnesses had no opportunity of properly observing the dacoits. Hence, the sole basis of conviction of accused No. 1 is removed. As there is no other evidence against accused No.1, except identification, his conviction will have to be quashed.

19. This bring us to the case against accused No. 2 to 5. As observed above, there is no evidence of identification against them. In fact, no identification parade was held in respect of these accused. It appears that these accused were shown to some of the witnesses who spoke about the dacoity, but statements of those witnesses were not recorded even after following this unusual method of identification. We do not feel that not holding an identification parade in respect of accused Nos. 2 to 5 was an inadvertent lapse on the part of the investigating machinery. In our view, the only inference that can be drawn from this circumstances is that none of the persons, who had occasion to see the dacoits, was in a position to identify accused Nos. 2 to 5 and, hence, no attempt even was made to hold an identification parade in respect of these accused.

20. The evidence against accused Nos. 2 to 5 consists of opinion of the finger print expert Shri Jadhav and recoveries made at the instance of these accused of the incriminating articles. So far as accused Nos. 3 to 5 are concerned, no incriminating articles i.e. stoles articles, were recovered from their possession when they were apprehended by the police. The evidence on this point against accused No. 2, however, is very clinching. We have already narrated in nut-shell the manner and the circumstances in which accused No. 2 came to be apprehended immediately after commission of the dacoity in the house of Sakharam Hadke. The evidence of Ramdas (P.W. 1) and that of the Constable Punde (P.W. 3) is not only consistent but is very cogent and natural. Madhukar Punde, who was on night round, near about the spot where accused No. 2 was accosted, was already alerted by PSI Jadhav and was, therefore, on the look out of the dacoits. According to him, after he was alerted by PSI Jadhav, he saw 5/6 persons running from Railway station towards Jadhav Vasti and hence he raised shouts 'Chor-Chor'. He claimed that his colleagues, including PSI Jadhav, started chasing those persons and when they reached Jadhav Vasti during that chase, they noticed two persons detaining one of the persons who were running away. He also stated that the two persons handed over the custody of the detained man. His evidence is completely corroborated by Ramdas who stated that in the early hours of 4th December, 1983 he heard shout 'Chor-Chor', hence he got up and came out of his hut and found 6/7 persons running towards Sugar cane crop near Zopadpatti. According to him, he himself and Namdeo, who had also come out of his hut, chased the said persons and caught one of them and handed him over to the policeman who arrived on the scene. He identified accused No. 2 as the person whom he and Namdeo caught and handed over to the policemen on that day. Ramdas further corroborated the evidence of Madhukar Punde that the accused was then taken to the gate of Bharat Forge Company; the cloth bundle, which accused No. 2 was carrying, was searched and the cassette recorder (Article 11) and other articles which were found in the cloth bundle were attached under a panchnama. He also stated that when this panchnama was going on, he went to his house, changed his clothes and returned to the spot. This sounds absolutely natural, because, he came out of his hut on hearing shouts and accompanied the policeman to the gate of Bharat Forge Company in the same condition in which he came out of his hut.

21. It is in evidence that PI Prabhu also arrived at about the time when accused No. 2 was taken to the gate of Bharat Forge Company and that the panchnama of the articles found in possession of accused No. 2 was drawn at that spot. Panchnama, Ex. 27 is proved by the panch witness Babu and there is absolutely nothing in the cross-examination of the panch witness to discredit his testimony. Much was sought to be made of the statement made by PI. Prabhu that accused No. 2 was holding the Cassette Recorder in his right hand and was holding the cloth bundle in his left. This, it was urged by Mrs. Bhonsale, learned Counsel for accused No. 2, completely discredits the evidence of panch witness Babu, P.C. Punde and Ramdas to the effect that the cassette recorder was found in the bundle which was opened and searched in the presence of the panchas. It is, however, pertinent to note that in his further cross examination Pl. Prabhu was allowed to make amends. He stated that he was unable to remember whether the cassette recorder was in the hand of the accused No. 2 or in the bundle which he was carrying. He further asserted that the contents of panchnama, Ex. 27, are correct. Recitals in the Panchnama, Ex. 27, completely corroborate the version given by the panch witness that the cassette recorder was found in the cloth bundle which was searched. We, therefore, feel that the earlier statement made by Pl. Prabhu was just a mistake caused because of lapse of time. The evidence of Ramdas (P.W. 1), Madhukar Punde (P.W. 3), Babu (P.W. 2) and Pl Prabhu (P.W. 28), leaves absolutely no doubt that accused No. 2 was accosted while running away immediately after the dacoity in the house of Sakharam Hadke and that amongst other things cassette recorder (Article 11) was recovered from his possession.

22. The cassette recorder (Ex. 11), which was recovered from possession of accused No. 2 was, as stated in panchnama, Ex. 27, of Pioneer make, having inscription of the name S.G. Hadke, Sakharam Hadke, is daughter Shailaja, and her husband Madhav Ghate (P.W. 15) have identified this article as belonging to Sakharam. As mentioned above, it was specifically stated in the first information report, Ex. 53, filed within short time after the dacoity, that cassette recorder of Pioneer Co., was stolen by the dacoits. The evidence of Sakharam, Madhav and Shilaja on this point is very consistent. The only discrepancy that was sought to be made much of is about the spot in the house where this cassette recorder was kept, whether it was on the show case or inside it. As a matter of fact, from the cross-examination of these three witnesses, it is clear that the fact that the said tape recorder was stolen from the house of Sakharam Hadke and the tape recorder/cassette recorder (Article 11) belong to Sakharam was not challenged at all. Moreover, accused No. 2, does not claim this article as belonging to him. There is, therefore, absolutely no doubt that accused No. 2 was accosted in suspicious circumstances within hours after dacoity in the house of Sakharam Hadke. He was found to be in possession of the cassette recorder, Article 11, which was stolen from Sakharam's house. An inference can, therefore, be legitimately drawn that accused No. 2 must be one of the dacoits in the house of Sakharam Hadke.

23. The tape recorder (Article No. 11) is said to have been discovered at the instance of accused No. 3 Panch witness Mushtaq Ahmed (P.W. 10) and Dy. S.P. Ishwarsing (P.W. 37) speak about the discovery. According to them, accused No. 3 made statement on 29-12-1983 and agreed to point out the tape recorder which he had kept concealed in Kothurd area. They also stated how after memorandum Ex. 41, was drawn, accused No. 3 led them to Kirloskar Cummius factory, then asked the driver of the jeep to take a right turn and when the jeep passed two high tension electricity poles, he asked the driver to stop the jeep. Thereafter all of them got down and then accused No. 3 led them to a place where there were trees around which iron drums were kept, at a distance of about 200 to 300 feet from the spot where they got down and took out the tape recorder, Article 11, which was wrapped in a partly torn chaddar, from under a heap of leaves. They also stated that a cassette bearing the initials 'SMI' was found inserted in the tape recorder. Panch witness Mushtaq Ahmed proved the panchnama, Ex. 42, under which this tape recorder was seized and attached. Mrs. Bhosale attacked this evidenced on two grounds and contended that this discovery was stage-managed. The first ground is lapse of considerable time between the arrest of accused No. 3 and the alleged recovery and the second above contradiction about the place where panchnama, Ex. 42 was drawn. She pointed out that accused No. 3 was interrogated atleast on three occasions on three different dates, but nothing incriminating was discovered at his instance during all these three interrogations, it is, therefore, implausible, according to her, that after a lapse of 15 days after the third interrogation accused No. 3 would suddenly offer to point out some property stolen in the dacoity. No doubt, there is some force in this submission, but simply because of the delay, it cannot be said that discovery was stage-managed. There is absolutely nothing on record to show that this tape recorder had come to the hands of the police in some other manner and from some other person. There is no doubt about the fact that this tape recorder was stolen from the house of Shri Inamdar (P.W. 8) in the first dacoity which took place in the early hours of 2nd December. There is, therefore, no scope for urging that some article which was not stolen, was obtained by the police and that it was foisted on accused No. 3 in order to implicate him in the crime. Much cannot also be made of the contradiction as to where exactly the panchnama was drawn. Even assuming that the panchnama was drawn in the office of Dy. S.P. Ishwarsingh, as admitted by the panch witness, that would not vitiate the discovery. It is clear from the evidence of panch witness and Dy. S.P. Ishwarsingh that the tape recorder (Article 1) was produced by accused from a far all secluded place after making a statement, admitting authorship of concealment of the said articles.

24. As described in the panchnama Ex. 42, the two-in-one tape recorder, produced by accused No. 3 was of BPL Make of four bonds, bearing No. RT 2007, Chassis No. 2160/00064 having two speakers with one Philips Company cassette of C-90 bearing initials still inserted in it. That is exactly the description of the tape recorder of Sanju Inamdar (P.W. 8) given in the First Information Report, Ex. 39. Inamdar has also asserted that the initials on the cassette are his initials and that the tape recorder belongs to him. It is significant to note in this context that not only the First Information Report, Ex. 39 was lodged immediately after the dacoity, but also Inamdar's statement was also recorded on the same morning, There is no cross-examination of Inamdar on this point. His claim that the tape recorder, Article 1, belongs to him and that it was stolen in the early hours of 2nd Dec., 1983, remained absolutely unchallenged. It is, thus, duly established that the tape recorder stolen in the first dacoity was recovered at the instance of accused No. 3.

25. The discovery at the instance of accused No. 4 is, however, not of much significance. According to the prosecution, accused No. 4 made the statement incorporated in the memorandum, Ex. 63, took the police and panchas to the nalla beyond the kacha road leading to railway crossing at Hadapsar, produced the sticks, Article 38, and axe blade, Article 39, from under some bushes, some cigarette butts and a cigarette packet were also found at that spot and all those articles were attached under panchnama, Ex. 64. As mentioned above, the axe blade was sent to the chemical analyser along with the planks of the door which was broken open at the time of dacoity in Sakharam Hadke's house and the report shows that there were some stains of yellow paint on the axe blade which were of the same colour and chemical composition as that of the paint of the door planks. The cigarette packet found at the spot from where the sticks and axe blade were produced were also found to be of the same chemical composition as that of the cigarette which was found in front of Shri Hadke's house. The sticks, Article 38, however, are not regular sticks. They are freshly cut branches of tree. It is also significant to note that the axe blade was not found at the spot from where the sticks were recovered. As admitted by panch witness Sawalaram Waghmare (P.W. 19), the axe blade was recovered from a spot, some space away from where the sticks were produced by accused No. 4. Moreover, accused No. 4 never made a statement admitting authorship of concealment of the axe blade and never offered to point out this axe blade. This position is categorically admitted by panch witness Sawalaram. Recitals in the panchnama also substantiate this position. It cannot, therefore, be said that accused No. 4 was in possession of the axe blade any time and that it was discovered at his instance. The sticks, Article 39 are innocuous articles and for want of identification it cannot be said that those sticks were used by the dacoits while committing the dacoities in question. No other article was either recovered from or discovered at the instance of accused No. 4.

26. This, however, is not the end of the matter so far as accused No. 4 is concerned. There is some other evidence which is of clinching and conclusive nature and that is the finding of chance prints at one of the scenes of the dacoities. We will discuss the evidence at a later stage as it is common to accused Nos. 2 to 5.

27. Accused No. 5 was found in suspicious circumstances at an odd hour near platform No. 1 of the Pune Railway Station. He was accosted by Police Inspector Kalghatgi (P.W. 24) and PC Hazi Abdul Gani Shaikh (P.W. 6). That accused No. 5 was found at Pune Railway Station, was not challenged. It is also in evidence that when accused No. 5 was interrogated by Dy. S.P. Ishwarsingh on 20th Dec. 1983, he offered to point out the spot where he had concealed the booty and thereafter took the Police Officer and panchas by the Solapur road to a cremation ground near the Railway crossing beyond the zopadpatti near Ramtekadi and removed a cloth bundle by digging the ground near some bushes. The bundle contained a steel contained (Dabba) on which the name Sakharam Ganpat Hadke was inscribed. This steel container, Article 54, contained three silver rings, two silver toys, one silver wati, one wrist watch and two sarees (Articles 2 and 7, 5, 6, 3 and 55, 56 respectively). All these articles were attached under the panchnama Ex. 46, which is proved by the panch witness Shaikh Usman (P.W. 11). His evidence which remained practically unshaken and which is supported by Dy. S.P. Ishwarsing, leaves no doubt that Articles 2,3,5,6, and 54 to 56 were recovered at the instance of accused No. 5. Silver ring, Article 2 and wrist watch, Article 3, are claimed by Sanjay Girme. Apart from the fact that the steel container, Article 54, bears inscription of Hadke's name, Sakharam Hadke claim this article as belonging to him, as the one which was stolen from his house. Similarly, Bhagchand Karanvat identified Articles Nos. 5 and 7, as belonging to him and which were stolen from his house by the dacoits. This evidence remained unchallenged.

28. This brings us to the most important piece of evidence in this case and that is about the chance finger prints of various accused found at the three scenes of dacoities in question. We have already referred to the evidence of finger print expert Shri Jadhav (P.W. 25) and the evidence of photographer Shri Vijay Tote (PW 23). Both of them have stated that the chance finger prints were developed and the photographs of the chance finger prints were taken at the respective scenes of offences immediately after the first information reports were lodged. According to Shri Tote, Shri Jadhav developed the chance finger prints and asked him to take the photographs. There is no challenge to the claim that the chance finger prints were developed and photographs were taken on the respective dates on which the dacoities were committed. The chance finger prints in Shri Sanjay Girme's house were taken on 2nd morning; chance finger prints in Bhagchand's house were taken on 3rd morning and the chance finger prints in the house of Shri Sakharam Hadke were taken on 4th morning. The claim of Shri Jadhav that he obtained the photographs of the chance finger prints, as well as of the specimen finger impressions of accused Nos. 2 to 5 and compared them, was also not disputed. As mentioned above, Exs. 78-A, 78-B and 78-C are enlargements of chance prints found respectively on the nail polish removers and the sliding glass of the dressing table kept in the bed room of Sanjay Girme. Ex. 80-X and 80-Y are enlargements of photographs of the chance prints found on empty perfume bottle and empty medal box respectively in Bhagchand's house and Ex. 81-A is the enlargement of the chance print found on the glass of T.V. showcase in Sakharam Hadke's house. It is also clear from the evidence of Shri Jadhav that Ex. 86, 90 and 92 are enlargements of the specimen finger impression of accused No. 2; Ex. 88 is enlargement of finger impressions of accused No. 3; Ex. 82 is the enlargement of finger impressions of accused No. 4 and Ex. 84 is the enlargement of finger impression of accused No. 5. Shri Jadhav opined that the chance finger prints Ex. 78-C, 80-Y and 81-A are identical with the specimen finger impressions of accused No. 2 at Ex. 86, 90 and 92; the Ex. 80-X is identical with Ex. 88, which is specimen finger impression of accused No. 3, that 78-A is identical with Ex. 82 which is specimen finger impression of accused No. 4 and that Ex. 78-B is identical with Ex. 84, which is finger impression of accused No. 5 Shri Jadhav has given cogent reasons for his conclusions. He has found thirteen points of similarity between the chance finger prints and specimen finger impressions of accused No. 2 to 5. Opinions in respect of chance finger prints of accused No. 2 are at Ex. 87,91 and 93. Opinion in respect of chance finger print of accused is at Ex. 89. Opinion in respect of the chance finger print of accused No. 4 is at Ex. 83. Opinion in respect of the chance finger print of accused No. 5 is at Ex. 85. In the case of chance finger print, Ex. 80-Y, Shri Jadhav has found 14 points of similarity with the specimen finger impressions Ex. 90. Shri Jadhav was not cross-examined on the point and no attempt was made to disprove his conclusion even in respect of one point of similarity. Mrs. Bhonsale, learned Counsel for appellants-accused could not persuade us to discard the opinions given by Shri Jadhav. We also scrutinized the enlargements and we could not find that the opinion given by Shri Jadhav was in any way wrong. On the contrary, we found that some of the similarities mentioned by Shri Jadhav are striking.

29. Some confusion was made by the learned trial Judge about the centre point of finger impressions examined by Shri Jadhav. Shri Jadhav admitted that the centre points were not shown in Exs. 78-A, 78-B, 78-C, 82, 84 and 86. In spite of categorical assertion of Shri Jadhav that the centre of the patterns were not missing, the learned trial judge understood the earlier admission to mean that the centre were found missing in the chance finger prints as well as in the specimen finger prints. Some capital was sought to be made by Mrs. Bhonsale of the so called admission given by Shri Jadhav. Shri Jadhav admitted that the centres were missing. The only thing he admitted was that he did not show those centres. He only denoted 13 or 14 points of similarity found by him and did not specifically denote the centres denoting them by giving them numbers. We ourselves examined all the enlargements and found that centres are present in all the finger impressions. The question of considering the effect of missing centre points of patterns does not therefore, arise for consideration at all. We have carefully read the evidence of Shri Jadhav on all points. i.e. finding of chance prints, developing them and comparing them with the specimen prints and found it to be very cogent. He had given elaborate reasons for his conclusions. His claim that he is an expert in examining finger prints was also not challenged.

30. Mrs. Bhonsale tried to urge that as the opinions given by Shri Jadhav were not verified by the Directorate of Finger Prints, they cannot be attached any weight. In support of this contention, Mrs. Bhonsale tried to place reliance on the evidence of Shri Jadhav to the effect that his opinions are forwarded to the Directorate of Finger Print Bureau who gets them scrutinised from a panel of 16 experts and after such verification, the Director of Finger Print Bureau sends his final opinion to the concerned police station. It was contended that only the final opinion of the Director has evidentiary value and that the opinion given by Shri Jadhav which was admittedly not scrutinised by the Director, cannot be attached any significance. It is difficult to accept this submission, because Mrs. Bhonsale could not point out any provision which makes the procedure cited by Shri Jadhav mandatory and which lays down that the only final opinion of the Director can be accepted in evidence. No doubt, if the opinion of the expert is sent to the Director and the Director after scrutinising the relevant finger impression gives his final opinion that opinion can go in evidence without examining the Director under section 293 of the Cri. P.C. But, that does not mean that the evidence of finger print expert must necessarily be scrutinised by the Director, and unless it is done, that the opinion has no legal value. What is necessary, is that the finger print expert, who gives his opinion, must assign reasons for his opinion and he must be examined at the trial before his opinion is accepted in evidence. This has been done in this case. Shri Jadhav is very much an expert and as pointed out above, his opinion is supported by cogent reasons.

31. The evidence of Shri Jadhav leaves absolutely no doubt that the chance finger prints of accused No. 2 were found at all the three places where dacoities were committed. His chance finger prints were found on the glass of the dressing table in Sanjay Girme's house; on the empty medal box in Bhagchand's house and on the glass of T.V. showcase in Shri Hadke's house. The opinion also shows that a chance finger print of accused No. 3 was found on the empty perfume bottle in Bhagchand's house, a chance finger print of accused No. 4 was found on the nail polish remover in Shri Girme's house and that a chance finger print of accused No. 5 was found on the nail polish's remover in Girme's house. The inescapable conclusion that arises from this clinching circumstance is that accused Nos. 2 to 5 were some of the dacoits who committed either all or some of the dacoities in question.

32. The prosecution has also sought to produce opinions given by the Director of Finger Print Bureau, to whom photographs of the chance finger prints and the specimen finger prints were sent for comparison. The opinions are produced at Exs. 137, 138 and 139. It was, however, found that Ex. 138 is carbon copy of Ex. 137 and the third opinion, which was sought to be produced was not incorporated in the record as expected. The third opinion was traced in the record as expected. The third opinion was traced in the record of the Court and as pointed out by the learned Addl. P.P., it appears that through mistake while accepting documents on record, original Exhibit 138 was kept aside and copy of Ex. 137 was taken on record and was given separate exhibit. We find that this was an inadvertent mistake and hence we allowed the civil application filed on behalf of the State of incorporate the third opinion in the record of the case and to mark it as Exhibit 138 in place of copy of Exhibit 137. The opinions at Exs. 137 to 139 completely support the conclusions arrived at by Shri Jadhav. However, much weight cannot be attached to these opinions, because as mentioned in the documents themselves, they are provisional opinions. The final opinions of the Director were not produced. However, as stated earlier, the opinions given by Shri Jadhav deserve to be accepted and the learned trial Judge was right in placing reliance on those opinions and holding that presence of accused Nos. 2 to 5 at the time of respective dacoities was duly established.

33. Mrs. Bhonsale tried to raise a basic objections to the finger print evidence in this case. Relying on the decision in Mohan v. State of Uttar Pradesh, Criminal Law Reports (S.C.), 1975 Vol. II, p. 614. Mrs. Bhonsale urged that the specimen finger prints of accused Nos. 2 to 5 were not taken before, or under the order of a Magistrate and, as such, the whole procedure followed for comparing the finger prints is illegal, being in contravention of section 5 of the identification of Prisoners Act. We are not able to accept this contention because section 5 of the Act is not applicable when the finger impression of a person, who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards is to be obtained. The Police Officer investigating such offence is empowered by virtue of section 4 of the said enactment to compel such a person to give his finger prints and allow his impressions to be taken in an appropriate manner.

34. Relying on the same decision Mrs. Bhonsale tried to urge that in the absence of any corroboration, conviction cannot be based merely on the opinion of the finger print expert. We went through the aforesaid decision and we could not find any warrant for the general proposition which is ought to be canvassed by Mrs. Bhonsale. It is on the facts of that particular case before their Lordships that they found it unsafe to place reliance on the solitary evidence about finding of the chance finger prints on the weapons of offence. In that case, there was no evidence to show that the weapon on which the chance finger prints were found, was actually used for commission of the murder. Rightly, therefore, no inference of guilt could be drawn against the accused in that case on the hypothesis that as his finger prints were found on the weapon, he must have committed the murder. In the present case the finding of chance finger prints of accused Nos. 2 to 5 is a very clinching circumstance and is conclusive enough to support their conviction without any corroboration. Accused Nos. 2 to 5 are total strangers to Pune City. The hail from Delhi and they had absolutely no occasion or opportunity or necessity to go to the houses in question for any other purpose than to commit dacoities in question. In such a case, conviction can be based on the finding of chance finger prints at the scene of offence. Moreover, as mentioned above, there is enough corroboration to the evidence of the finger print expert. Accused No. 2 was found in possession of stolen articles immediately after the dacoity. Stolen articles were recovered at the instance of accused Nos. 3 to 5 and that accused No. 4 was found in the company of the accused No. 3.

35. There is no basis for holding that accused were members of a gang of dacoits. There is also no evidence to show that they had assembled for the purpose of committing dacoities. The acquittal of the accused for offences under sections 400, 402 I.P.C. must, therefore, be maintained.

36. Shri Gangekhedkar, learned Addl. P.P., urged that the identical manner in which the three dacoities were committed, leaves no doubt that the accused must have conspired to commit those offences. According to him, no direct evidence of agreement to commit crime is necessary and that conspiracy can be spelt out from the actions of the alleged conspirators and other circumstances attendant to the offence alleged to have been committed in pursuance of such conspiracy. He rightly contended that the view taken by the learned trial Judge on this point is wrong. There is, however, no scope in this case to draw an inference of the conspiracy between accused Nos. 1 to 5. It is not established that all the accused participated in all the three dacoities. An observed above, complicity of accused No. 1 is not established at all in any of the three dacoities. Only accused No. 2, whose finger prints were found at all the three scenes of offence and from whose possession articles stolen in one of the dacoities were recovered and accused No. 5, whose finger impression was found in the house of Sakharam Hadke and from whose possession articles stolen in each of the three dacoities were recovered, can be said to have participated in all the three dacoities. So far as accused No. 3 is concerned his finger print was found in the house of Baghchand Karnavat and the property stolen in the first dacoity was recovered at his instance. He can, therefore, be said to have participated in the first and second dacoities. So far as accused No. 4 is concerned, his finger print was found at the scene of offence of the first dacoity, viz. in Sanjay Girme's house, but nothing incriminating was found from his possession or at his instance. It cannot, therefore, be said that accused Nos. 1 to 5 conspired to commit dacoities in question, or even one of the three dacoities in question. Unless it is established that the three dacoities were committed by the same persons, no inference can be drawn from the manner in which the dacoities were committed. The acquittal of accused Nos. 1 to 5 for the offence under section 120-B must, therefore, be maintained.

37. Mrs. Bhonsale contended that the sentence inflicted upon accused Nos. 2 to 5, especially accused No. 2, is harsh. She contended that accused No. 2 is an old man of 70 and deserves some sympathy looking to his age. We are unable to accept this submission, because it is duly established that accused No. 2 participated in all the three dacoities. Moreover, accused No. 2 and other accused are residents of Delhi. They, therefore, had no business to come down to Pune. It appears, that under the pretext of selling garments, they were looking for possible targets for their nefarious activities. The brutal manner in which the inmates of the houses in which the dacoities were committed were treated by the dacoits, cannot be ignored. Not only there is no justification for reducing the sentence, but in our view, the learned trial Judge has already shown some misplaced leniency. It is true that the previous convictions are not in respect of the property offences, but nevertheless previous convictions show that the accused have criminal tendency and as pointed out above, they shifted their activities to far off places where they were not known. We, therefore, think that it would be improper to interfere with the sentence inflicted on the accused. Hence, the following order :-

38. Criminal Appeal Nos. 48, 49 and 50 of 1985 are dismissed. Criminal Appeal Nos. 940 of 1984 is partly allowed. So far as accused No. 1 is concerned, order of conviction and sentence passed against accused No. 1 is set aside and he is acquitted of all the offences for which he has been convicted. Fine, if any, paid by him shall be refunded to him. Conviction of accused Nos. 2 to 5 is maintained and their appeals stand dismissed.