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Bombay High CourtIndian Cases

Sagar @ Dharamsingh @ Motilal @ Daku Jain … vs The State Of Maharashtra on 12 August 2002

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Bombay High Court
Sagar @ Dharamsingh @ Motilal @ Daku Jain … vs The State Of Maharashtra on 12 August, 2002
Equivalent citations: (2003)105BOMLR291
Author: V.K. Tahilramani
Bench: V.K. Tahilramani
JUDGMENT

V.K. Tahilramani, J.

1. The instant Appeal is directed against the Judgment and Order dated 21.8.1999 passed by the learned Additional Sessions Judge, Ratnagiri in Sessions Case No. 3 of 1997 whereby the Additional Sessions Judge convicted the Appellants who were original Accused Nos. 1. 4, 5 for the offence punishable under Sections 302 r/w 34 and Sections 396 r/w 397 of the Indian Penal Code and sentenced them to life imprisonment and fine of Rs. 1000/-

i.d. R.I. for six months on each count. They were also convicted under Sections 457 r/w 34 of the I.P.C. and sentenced to suffer R.I. for seven years and to fine of Rs. 1000/- i.d. R.I. for six months. Original Accused No. 7 was convicted only for the offence punishable under Section 412 of the Indian Penal Code and punishment: of R.I. for seven years and fine of Rs. 1000/- i.d. R. I. for six months was imposed on her for the said offence.

2. The case of the prosecution is that the deceased Ashok Ambre who was a doctor by profession was residing along with his family members at village Pirlote, District Ratnagiri. Nalini Ambre (P.W. 1) is his wife. She is a doctor by profession. One Shobha Tambe was working with them as a maid servant and residing at. the residence of deceased Ashok along with her one daughter i.e. Sujata Tambe P.W. 2 and two sons. One of her sons being Santosh P.W. 3.

3. On the night of 23.3.1996 after having dinner all of them were watching a movie on television and then at about 1.00 a.m. in the said night deceased Ashok along with his wife and children went in the bed room for sleeping whereas Shobha and her daughter Sujata went to sleep in the drawing room. Her son Santosh went to sleep in the adjoining room and her another son Sanjay had gone out for sleeping. As per the prosecution version in the said night deceased Ashok and his wife Nalini awoke from their sleep on account of some noise. Ashok then went in the drawing room followed by his wife Nalini. Lights were put, on by Ashok and then they saw three persons in the said drawing room and the door had been broken. One of the three persons was having an axe in hand. He gave a blow of the said axe on the head of Ashok as a result of which he sustained injury on the head and collapsed on the floor. In the meantime, Savitribai i.e. mother of Ashok, Shobha and her daughter Sujata also awoke. These three were assaulted by remaining two assailants with iron bars and sticks. The assailants demanded keys of the cupboard from them and they went inside the bed room and collected gold ornaments, silver ornaments, cash amount and other valuable articles. The assailants also snatched ornaments from the persons of Nalini. In the meantime three more persons also entered into the said residence. On hearing the sound Santosh P.W. 3 tried to come out of the room where he was sleeping but he found that the door was chained from outside. He, however, managed to enter into the room adjoining the drawing hall and through the slit of partially open door of the said room, he saw the assailants standing in the drawing hall with weapons and Ashok lying on the ground. He also saw that some of the assailants were in the bed room and they were taking away ornaments from the person of Nalini and from the cupboard. The assailant with the axe pushed him inside the room and thereafter they went away from the house.

4. An information was given to the police station. Police came to the residence of Dr. Ashok and found that Dr. Ashok had succumbed to injury. Complaint was recorded on the information given by Nalini and on that basis crime was registered. Information was sent to the other police stations to arrange nakabandi. Various police stations arranged nakabandi. P.S.I. Arjun Rane (P.W. 12) who was then on duty as P.S.I, at. Alore Police Station had received such message whereupon he had made arrangement for such nakabandi near Pophali village on a road leading to Karad from Chiplun. In the morning at about 7.00 a.m., in the ghat near Pophali village on the Karad Chiplun road, he was checking the vehicles and in that process at about 7.00 a.m. he stopped one Chiplun-Kolhapur S. T. Bus. P.S.I. Rane was standing near the driver’s cabin. He sent the police staff from the passengers’ door into the Bus for checking. At that time, P.S.I. Rane saw one passenger throwing a white handkerchief out of the Bus window, P.S.I. Rane picked up the handkerchief and found that there was one Mangalsutra in the handkerchief. The person who threw the handkerchief was accused No. 1. P.S.I. Rane immediately suspected that the offenders were in the Bus and shouted to the police staff that they were in the Bus. At that time three passengers jumped down from the Bus and ran away. However, the other accused who were travelling in the said Bus were accosted by P.S.I. Rane. After accosting the accused travelling in the S. T. Bus. he conducted the search and seized various articles and ornaments allegedly stolen from the house of deceased Ashok and then handed them over to P. I. Gajanan Juikar (P.W. 13) who was investigating the crime.

During the course of investigation weapons were recovered at the instance of accused No. 4 Charansingh. Identification Parade was conducted. Properties were sent to Chemical Analyser for analysis. The dead body of Dr. Ashok was sent for post-mortem. Injured persons were sent for examination and treatment and other necessary investigation was conducted. On the conclusion of the investigation charge-sheet was submitted against the accused which included not only the present appellants/accused but other accused as well including those who were absconding. Four out of the 8 accused Who faced the trial were acquitted by the Trial Court.

5. As there was no possibility of immediate arrest of the absconding accused, the trial against eight accused i.e. original accused Nos. 1 to 8, was separated by the Trial Court and the charge was framed against these eight accused for the offences punishable under Sections 457 r/w 34. 302 r/w 34 and Sections 396 and 397 of the Indian Penal Code. All these accused pleaded not guilty to the said charge and claimed to be tried. Defence of all these accused is of denial. As already indicated, the Trial Court acquitted four accused persons i.e. original accused No. 2 Vasudeo Anant @ Shankar Mali @ Kanjarbhat, original accused No. 3 Firoz Khan Salim @ Rajput @ Kanjarbhat, original accused No. 6 Anil @ Ankush & Bacehaya Newale and original accused No. 8 Deokany Kashinath Banjara @ Rajput @ Kanjarbhat. The Trial Court convicted the original accused No. 1 Sagar @ Dharamsingh @ Motilal @ Daku Jain @ Rajput @ Kanjarbhat, original accused No. 4 Charansingh @ Charu Ramesh Varaskar and original accused No. 5 Ram Basnya @ Hari & Chavan @ Choudhari @ Kanjarbhat for the offence punishable under Sections 302 r/w 34, 457 r/w 34 and 396 r/w 397 of the Indian Penal Code. The Trial Court convicted accused No. 7 for the offence under Section 412 of the I.P.C. and sentenced her to 7 years R. I. and fine of Rs. 1000/- i.d. R. I. for six months. Hence this Appeal by original Accused Nos. 1, 4, 5 and 7. The other accused namely accused Nos. 2, 3, 6 and 8 were acquitted giving them benefit of doubt. So also accused No. 7 was acquitted of the other offences with which she was charged.

6. Before the Trial Court in all 13 witnesses were examined. P.W. 1 Nalini, P.W. 2 Sujata and P.W. 3 Santosh were examined as eye witnesses. P.W. 4 Eknath, P.W. 5 Muktar and P.W. 10 Pradeep Ambre are the Panch witnesses. P.W. 11 Ravi Patil is the Executive Magistrate who conducted the Identification Parade. P.W. 7 Shriram Janvalkar, P.W. 12 Arjun Rane and P.W. 13 Gajanan Juikar are the Police Officers. P.W. 5 Vidhyadhar Karade is a passenger travelling to Kolhapur from Chiplun by the S. T. Bus in which the accused were travelling and has been examined as regards accosting of the accused by the police when they were travelling by the said Bus. P.W. 6 Deepak Chavan, an Iron Smith, has been examined for providing the purchase of the axe by accused No. 1-Sagar and accused No. 6 Anil and for identification of the axe. Lastly P.W. 8 Rajaram Chavan, the Conductor of the Bus concerned was also examined as regards accosting of the accused by P.S.I. Rane and as regards throwing out gold ornament by one of the passengers sitting in the front side of the Bus. The doctor who conducted the autopsy has not been examined.

7. The fact that Ashok met homicidal death was not disputed before the Trial Court nor before us by the learned Counsel for the appellants. Even otherwise having gone through the evidence of P.W. 1 Nalini, P.W. 2 Sujata and P.W. 3 Santosh and the Post-Mortem Report, Exh. 54 it gives us little room for differing with the conclusion arrived at in this regard by the Trial Court that the prosecution has proved that the deceased Ashok met with homicidal death as a result of assault on him. We, therefore, uphold the finding in this regard as recorded by the Trial Court. The aspect of the commission of dacoity, was not disputed by the appellant either before the Trial Court or even before us in this appeal.

8. What is necessary in this Appeal for us now is to find out whether the appellants original accused Nos. 1, 4, 5 and 7 along with others are involved in the commission of dacoity and are responsible for causing the homicidal death of deceased Dr. Ashok as alleged by the prosecution.

9. The appellant No. 1 Sagar @ Dharmasing (c) Motilal @ Daku Jain @ Rajput @ Kanjarbhat is original accused No. 1. The appellant No. 2 Charansingh @ Cheru Ramesh Varaskar is the original accused No. 4, appellant No. 3 Ram Hasnya @ Hari (r) Chavan @ Choudhari @ Kanjarbhat is original accused No. 5 and appellant No. 4 Dhodi @ Andhera Ryukdiya @ Suraj @ Rajput @ Kanjarbhat is original accused No. 7. For the sake of convenience they shall be referred to as accused Nos. 1, 4, 5 and 7 respectively.

10. We have heard Mr. C. M. Kothari the learned Counsel appearing for original accused Nos. 1, 4 and 5 and Mr. Dhakephalkar learned Counsel appearing for original accused No. 7 and learned A.P.P. for the State. We have also perused the entire material on record. After utmost circumspection, we have reached to the conclusion that this appeal deserves to be allowed as far as accused Nos. 4, 5 and 7 are concerned.

11. The conviction of the accused persons is mainly founded on the occular account rendered by three eye-witnesses i.e. P.W. 1 Nalini Ambre, P, W. 2 Sujata Tambe and P.W. 3 Santosh Tambe and on the basis of recoveries and seizures of certain articles from them.

The evidence of P.W. 1 Nalini shows that on the relevant night, they heard sound of the door and she woke up from sleep. Her husband went towards the door. She also followed him. They saw three persons in the room. One of the persons gave blow of axe on the head of her husband. Her husband collapsed on the floor because of the said injury. The other two persons were having iron bars with them. Thereafter, blows of iron bar were given on her back by those persons. Her mother-in-law, her maid Shobha. Sujata (P.W. 2) and Santosh (P.W. 3) also came to the said room. They were also assaulted by those persons by rods. Those persons demanded the keys of the cupboard and from the said cupboard they took gold ornaments, cash and other valuables.

12. P.W. 2 Sujata Tambe is the daughter of the maid servant of Dr. Ashok. Her deposition is similar to that of Nalini Ambre. The testimony of P.W. 3 Santosh who is an eye witness to the incident, is similar to that of P.Ws. 1 and 2. Thereafter, all these three persons were called for Identification Parade in which P.W. 1 has identified some of the accused persons. However, before the Court, P.W. 1 did not identify any of the accused persons.

13. P.W. 2 Sujata Tambe has identified accused Nos. 1 and 4 before the Court as well as in the Identification Parade. She has identified accused No. 4 as the person who was holding an iron bar with him at the time of incident. She has identified accused No. 1 as the person who was having an axe with him.

14. P.W. 3 Santosh Tambe was also called for the Identification Parade. He has identified accused Nos. 1. 4 and 5 in the Test Identification Parade as well as in the Court. He has identified the accused No. 1 as a person holding an axe, accused No. 4 as the person holding an iron bar and accused No. 5 as the person who was holding a stick at the time of the incident.

Accused No. 7 was not identified by any witness in the parade or in the Court as having taken part in the incident.

15. The learned Counsel appearing for the accused Nos. 1, 4 and 5 has contended that all the accused persons who had entered the house of P.W. 1 Nalini had covered their faces and hence, in such circumstances, it was not possible for any of the witnesses to identify any of the accused persons. He has urged that P.W. 1 Nalini has specifically stated in her F.I.R. that cloth was tied on the face of the accused persons. However, it is to be noted that Nalini has not stated in her deposition before the Court that any of the accused were masked. In our opinion in view of the fact that no such contradiction has been specifically put to Nalini by following the necessary procedure of drawing the witnesses attention to the specific part in her statement and seeking her explanation thereon, and as no such contradiction has been got proved by the defence as required, hence the defence cannot make use of any such contradiction. It is well settled that a F.I.R. is not a substantive piece of evidence. A statement in an F.I.R. can normally be used only to contradict its maker as provided in Section 145 of the Evidence Act. In view of the contradiction not being got proved by the defence there is no legally admissible evidence to show that cloth was tied on the face of the accused.

16. The learned Advocate has further contended that the Test Identification Parade was a farce and it cannot be relied upon. It was contended that no reliance can be placed on the said Identification Parade due to the following reasons :

(1) There was an opportunity for the witnesses to see the accused before the Parade. The learned Advocate has pointed out that accused No. 1 was taken to the house of P.W. 1 on 28th March, 1996. The Investigating Officer P. I. Gajanan Juikar has stated that accused Sagar (accused No. 1) was taken to the house of Nalini P.W. 1, on 28th March, 1996 at about 9 a.m. It was pointed out that the Parade in this case was held on 2.4.1996. In fact, the Identification Parades of accused Nos. 1 to 6 were all held on that day. The learned Counsel has submitted that P.W. 2 and P, W. 3 were the children of the maid servant of P.W. 1 and they were all residing in the house of P.W. 1. Thus, when the accused No. 1 was taken to the house of P.W. 1 on 28th March, 1996, there was every opportunity for all the three identifying witnesses to see accused No. 1. Thus, it was urged that in such circumstances, no reliance can be placed on the identification of accused No. 1 in the Parade.
The learned Advocate pointed out that in each of the Parades there were five dummies and out of these five dummies, some of the dummies were known to the witnesses. One of the dummies in the Parade relating to the accused No. 4 was Sanjay Dadba Ambre. P.W. 1 has specifically stated in her cross-examination that he was her nephew. The learned Advocate has urged that there are only there eye witnesses in the present case who have been examined by the prosecution i.e. P. Ws. 1, 2 and 3. P. Ws. 2 and 3 were residing in the house of P.W. 1. Thus, in such a case, when one of dummies was the nephew of P.W. 1 no reliance can be placed on identification of accused No. 4 in such Parade. P.W. 1 has stated that she knew Sanjay Dagadu Nalavade and Dilip Nagu Nalavade. These persons were the dummies in the Parade relating to accused No. 1. P.W. 1 has stated that she knew Govind Sitaram Gamare. He was one of the dummies in the Parade relating to the accused No. 5. Thus it is contended that in each of the Parades relating to accused No. 1, accused No. 4 and accused No. 5, out of the five dummies at least one of the dummies was known to the witnesses.

3. The learned Counsel has further pointed out that five separate Identification Parades were held on 2.4.1996 for accused Nos. 1, 2, 4, 5 and 6, however many of the dummies were repeated in the Parades. Out of the five dummies, three of the dummies in the Parade relating to accused Nos. 1 and 5 were the same. Four out of the five dummies in the Parades relating to accused Nos. 1 and 2 were the same. Three dummies i. e. Satish Dattaram Pawar, Laxraan Jagannath Chavan and Mahendra Ramchandra, Dalvi, stood as dummies in the Parades relating to accused Nos. 1, 2 and 3. Santosh Laxman Jadhav stood as a dummy in the Parade relating to accused Nos. 4 and 6.

4. No care was taken to see that dummies were similar to that of the accused persons.

5. In respect of Identification Parade, P.W. 2 has specifically stated that the accused persons were handcuffed. In such case, it was urged that no reliance could be placed on the identification of any of the accused persons by the witnesses.

6. The S.E.M. had not followed the guidelines for holding the Identification Parades. The S.E.M. has specifically admitted that instructions and the form provided in Criminal Manual regarding Identification Parades were not followed by him. The S.E.M. had not asked any of the witnesses whether the accused persons were shown to them earlier nor had he asked the accused persons whether they were shown to the witnesses earlier.

7. The witnesses who had already identified the accused in the Parade and the witnesses who were yet. to identify the accused were made to sit in one room.

Thus, it was urged that in view of above lacunas relating to the Identification Parades, the identification of accused Nos. 1. 4 and 5 by any of the eye witnesses could not be relied upon. The learned Counsel has placed reliance upon the judgment Sanjay alias Gangadhar Vishvarup Shelke and Anr. v. State of Maharashtra 1993 (3) Mh. L.J. 71. On the point of identification, the learned Advocate for the accused has also placed reliance on a case reported in Sanjay alias Gangadhar Vishvarup Shelke and Anr. v. State of Maharashtra 1993 (3) Mh. L.J. 71. He has relied upon this authority on three aspects viz. (1) possibility of accused persons being shown to the witnesses, (2) dummies not being similar to the accused persons, (3) S.E.M. had not made enquiries with the witnesses whether the accused were shown to them prior to the Parade. Reliance was also placed upon the case in State of Maharashtra v. Suresh . In the said case, the accused persons were taken from one place to another and there was no evidence led to show that their faces were covered when they were so taken. It was contended that in the present case, no evidence has been led to show that on 28.3.1996 i.e. the day when the accused No. 1 was taken to the house of P.W. 1 his face was covered.

17. The learned A.P.P., has relied on certain cases on the aspect of Identification Parade. But, however, the said authorities do not cover any of the points urged by the learned Advocate for the accused. She has placed reliance on the case, Dayasing v. State of Haryana 2001 AIR S.C.W. 936 and , in relation to the fact that P.W. 1 has not identified any of the accused persons in the Court. She has stated that P.W. 1 identified some of the accused persons in the Parade and therefore, identification of those accused persons by P.W. 1 in the Test Identification Parade should be taken into account against them. However, the situation in the case relied upon and the situation in the present case is exactly opposite. In that case, no Test Identification Parade was held as the accused refused to stand in the Parade. The witness had directly identified the accused persons in the Court. In the present case the accused had participated in the Parade. however, the witness i.e. P.W. 1 has not identified them in Court during the trial. It is well settled that substantive evidence is the one before the Court and identification in the Parade is not substantive evidence. In the second case relied upon by her also the facts therein are distinguishable from the facts in the present case and hence, it would be of no assistance to the learned A.P.P.

18. The cumulative effect of the above circumstances is such that we feel that it is highly unsafe to rely upon the identification of accused Nos. 1, 4 and 5 in the Parade. In this view of the matter, we feel that it is highly unsafe to rely upon the said Identification Parade. In our opinion, no evidentiary value can be given to this piece of evidence and so far as the Identification Parade is concerned, this illegality goes to the root of the matter. The result is that on its basis the participation of the accused in the said crime is not established beyond reasonable doubt.

19. The next circumstance against the accused is that of seizure of ornaments. P.W. 12 Arjun Rane has stated that he was on duty as P.S.I. at Alore Police Station on 23rd March, 1996. On the said date, a message was received from the Control Room regarding offence of dacoity at the house of Dr. Ambre and instructions for nakabandi were given. The said message was received on 23rd March, 1996 at 4.45 a.m. On receiving the message, immediately this officer alongwith staff went to Kumbharli Ghat near Pophali village. In the said Ghat alongwith police staff he was checking the vehicles. At about. 7 a.m. Chiplun-Kolhapur S. T. Bus came to the said spot. He stopped the said Bus. He was then standing near the door of the driver’s cabin and he sent police staff from the passengers’ door in the said Bus for checking. At that time, he had seen a passenger from the said Bus, throwing a white handkerchief out of the S. T. Bus from the window. The said handkerchief was picked up by P.S.I. Rane and in the said handkerchief there was a ‘Mangalsutra’. The said handkerchief was thrown by accused No. 1. He immediately suspected the offenders were in the said Bus. Hence, he shouted to the police staff saying that thieves are in the Bus. By that time, three passengers sitting in the said Bus had jumped from the S. T. Bus and they ran away in the nearby hill area. Thereafter, the rest of the accused who were in the Bus were accosted by this witness. There were six male and two female passengers. He brought them out of the Bus and made them sit in a police vehicle. Panchas were called and thereafter, these accused persons were searched and certain articles were found with them. Some articles were seized from accused Nos. 4, 5 and 7.

20. The learned Advocate for the accused has pointed out that the panch witness relating to the seizure i. e. P.W. 4 Eknath Labhye has specifically stated that when he went to the spot, the accused persons were handcuffed and in front of each of the accused persons, the articles were kept. It was contended that in such circumstances, no reliance can be placed on the seizure of any of these articles from accused Nos.

1, 4, 5 and 7. The panch witness does not specifically state anywhere as to which of the articles were seized from which of the accused, so also, witness P.S.I. Rane has stated that it was not possible for him to state as to which of the articles were seized from which persons and from belongings of which accused. He has admitted that the belongings of the accused were found under the seat in the Bus. It was contended that nothing was found on the search of the accused persons but the articles were found under the seats of the Bus, hence, it was possible that some other passenger may have kept it there, more specifically the three passengers who ran away from the Bus may have kept it there. Moreover, 160 articles were seized in this case, therefore, in the absence of cogent evidence showing which articles were seized from which particular accused, it would not be possible to connect any specific article with any particular accused. There seems to be some merit in the contention that it cannot be specifically stated that the articles were seized from accused Nos. 4, 5 and 7.

The case of the accused No. 1 however, stands on a different footing. P.S.I. Rane has categorically stated that the Mangalsutra Article 19 was thrown out of the Bus by accused No. 1. P.W. 1 Nalini has identified the Mangalsutra. In the case of accused No. 1 even if the pancha stated that when he came the articles were in front of the accused it would not affect the prosecution case as far as seizure of Mangalsutra from accused No. 1 is concerned. The accused had thrown out Mangalsutra Article 19 because that was the only article he had in his possession which would have connected him with the crime. Unfortunately, for him P.W. 12 saw him throwing it out of the Bus. P.S.I. Rane-P.W. 12 has specifically stated that it was Accused No. 1 who had thrown out the Mangalsutra out of the Bus. This is a very strong circumstance against accused No. 1.

21. As far as accused No. 7 is concerned she has only been convicted under Section 412 of the I.P.C. It was urged that evidence in this case, does not reflect that she had taken part in the incident and she was not present at. the time when the incident had occurred in the house of P.W. 1. The only material gathered against her is that 7 to 8 accused persons were accosted in the Bus when the Bus was proceeding towards Chlplun from Karad in Kumbharali Ghat. The accused No. 7 was one of them and she was found with certain ornaments. However, in view of the categorical statement of the panch witness P.W. 4 Eknath Labhye that when he reached the place, he found that all the accused persons were sitting in handcuffed position and the articles were kept in front of each of the accused, and in view of the fact that no witness including P.S.I. Rane or the I.O. was able to say as which article is seized from accused No. 7, no reliance can be placed on such seizure.

22. As far as accused No. 4 is concerned, there is recovery of weapons at his instance i.e. axe article No. 132, two iron bars articles 140 and 141 and three sticks articles 142 to 144. However, none of these weapons were shown to any of the eye witnesses and thus none of the witnesses identified that these weapons were used at the time of incident. There is nothing concrete and specific on record which would connect the weapons recovered to the crime. Hence, no importance can be given to the recovery of these weapons,

23. The prosecution has examined P.W. 6 Deepak Chavan who is an Ironsmith. He has stated that, axe article No. 139 was got prepared by accused No. 1 about three years prior. Three contentions were raised on this aspect. The first was that, the axe has not been identified by any of the three eye witnesses as having been used in the incident. Secondly, there is nothing unusual in a villager getting an axe prepared from an ironsmith. The third contention is that this witness has identified accused No. 1 in the Test Identification Parade as one who had got prepared an axe from him and in respect of this Test Identification Parade, various flaws have already been pointed out and thus no reliance could be placed on such identification. The fourth contention is that the axe was not. recovered from accused No. 1. Looking to all these facts, we are not willing to hold this circumstance against accused No. 1.

24. The learned A.P.P. has submitted that when the accused persons were accosted in the S. T. Bus and they came to be arrested, some of their clothes and other articles had blood stains and they came to be seized. The C, A. Report shows Human blood and blood of ‘A’ Group on some of the articles. We have carefully reflected over this submission and we found that the said articles were seized from these accused persons and other accused who were acquitted. In this case a large number of articles have been seized i.e. 160 articles were seized in this case. None of the witnesses have stated which article is seized from which accused nor is the letter forwarding the articles to the C. A. on record. In such circumstances, it is difficult to connect any of the present four accused with any of these articles which were sent to the C. A. Hence, this circumstance cannot be held against them.

25. As far as accused No. 1 is concerned P.W. 1 Arjun Rane has stated that he was on duty as P.S.I, at Alore Police Station on 23rd March, 1996. On the said date, a message was received from the control room regarding offence of dacoity at the house of Dr. Ambre and instructions for nakabandi were given. The said message was received on 23rd March, 1996 at 4.45 a.m. On receiving the message, immediately this officer alongwith staff went to Kumbharli Ghat near Pophali village. In the said Ghat alongwith police staff he was checking the vehicles. At about 7 a.m. Chiplun-Kolhapur S.T. Bus came to the said spot. He stopped the said bus. He was then standing near the door of the driver’s cabin and he sent police staff from the passengers’ door in the said Bus for checking. At that time, he had seen a passenger from the said Bus, throwing a white handkerchief out of the S. T. Bus from the window. The said handkerchief was picked up by him and in the said handkerchief there was a ‘Mangalsutra’. The said handkerchief was thrown by accused No. 1. He immediately suspected the offenders were in the said Bus. Hence, he shouted to the police staff saying that thieves are in the Bus. By that time, three passengers sitting in the said Bus near passengers’ door had jumped from S. T. Bus and they ran away in the nearby hill area. Thereafter, the rest of the accused who were in the Bus were accosted by this witness. There were six male and two female passengers. He brought them out of the Bus and made them sit in a police vehicle. Panchas were called and thereafter, these accused persons were searched and certain articles were found with them. He has identified the accused No. 1 as the person who threw out the Mangalsutra. The accused had thrown out Mangalsutra Article 19 because that was the only article he had in his possession which would have connected him with the crime. Unfortunately for him P.W. 12 saw him throwing it out of the bus. The incident in the present case has occurred at about 2. a.m. and the accused No. 1 was found in possession of article 19 Mangalsutra at 7 a. m. It has been identified by P.W. 1 Nalini as belonging to her. The learned A.P.P. has placed reliance upon Baiju v. State of Madhya Pradesh . The said case also was a case of murder and robbery and stolen property was recovered from the house of the appellant at his instance within a week’s time from the date of the commission of offence. In the said case, it was observed that :

In the case in question the prosecution succeeded in proving beyond any doubt that the commission of the murders and the robbery formed part of one transaction, and the recent and unexplained possession of the stolen property by the accused appellant justified the presumption that it was he, and no one else, who had committed the murders and the robbery. The stolen property was recovered from the house of appellant or at his instance within a week’s time from the date of commission of offence. The appellant was given an opportunity to explain his possession, as well as his conduct in decoying the persons who died at his hand, but he was unable to do so. The question whether a presumption should be drawn under illustration (a) of Section 114 of the Evidence Act is a matter which depends on the evidence and the circumstances of each case. Thus the nature of the stolen article the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstances of its recovery the length of the intervening period, the ability or otherwise of the appellant to explain his possession, are factors which have to be taken into consideration in arriving at a decision. Further there are ample justification for reaching the inevitable conclusion that it was the appellant and no one else who had committed the four murders and the robbery.
In the case of Gulab Chand v. State of Madhya Pradesh , the only evidence against the appellant was that he was found in possession of the stolen ornaments. In the said case, it was argued on behalf of the appellant that but for possession of such ornaments even if stolen, no conviction under Sections 302, 394 and 397 of the Indian Penal Code, can be based and that possession of stolen articles ipso facto does not warrant a conclusion that such stolen articles were received by committing robbery and murder as alleged by the prosecution. He had, therefore, submitted that there has been gross miscarriage of justice so far as the appellant is concerned and this appeal should be allowed. The Apex Court observed that “in the instant case, it has been established that no plausible explanation for lawful possession of the said ornaments immediately after the murder, has been given by the accused. In the facts of this case.
It appears to us that murder and robbery have been proved to have been integral parts of the same transaction find therefore the presumption arising under illustration (a) of Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments. The Apex Court has also referred to the decision rendered in Tukaram v. State , wherein it was indicated that “the presumption permitted to be drawn under Section 114, illustration (a) of the Evidence Act has to be read alongwith the important time factor. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case.”
In a decision of this Court the conviction was based on identification and recovery of looted property, which is evident from para 15, In para 28-28A this Court has observed that “we make no bones in observing that in the instant case, even had there been no identification evidence the conviction of most of the appellants could have been sustained on the strength of mere recovery of stolen articles. In the instant case there can be no quarrel that the recoveries were made from the appellants soon after the incident, because they were made within 12 hours of the three incidents. As we have seen earlier recovered articles were identified by witnesses. A perusal of the statements of the appellants recorded under Section 313 of the Cr. P.C. would show that they have not been able to account for the possession of the recovered articles. In our view the said recoveries irresistibly lead to the inference that the appellants from whom they were made committed the offences for which they have been convicted”.
In the instant case, as stated earlier, the incident had occurred at 2 a.m. and on the very same morning at 7 a.m. i.e. just after five hours, accused No. 1 was in possession of the ‘Mangalsutra’ of the complainant. In the present case, the murder and robbery are both clearly part of one transaction and in such case, the recent and unexplained possession of the stolen property by accused No. 1, has justified the presumption that he was one of the persons who had committed the murder and the robbery. In such a case, we are of the opinion that the conviction of accused No. 1 under Sections 302, under Section 396 and under Section 457 read with Section 34 of the I.P.C. should be maintained so also sentence and fine as imposed upon him by the Trial Court.
26. For the said reasons, we feel that this is a fit case wherein the accused Nos. 4, 5 and 7 should be extended the benefit of doubt and they should be acquitted of the offences for which they have been convicted.

27. In the result, we allow this appeal partly and pass the following order :

Order The judgment and order of conviction dated 21.8.1999 passed by the learned Additional Sessions Judge, Ratnagiri in Sessions Case No. 3 of 1997 against accused No. 1 Sagar @ Dharmasingh @ Motilal @ Daku Jain @ Rajput @ Kanjarbhat for the offence under Sections 302, 396 and 457 read with Section 34 of the I.P.C. is confirmed so also sentence and fine imposed upon him by the Trial Court.
The accused No. 1 Sagar is in jail. He shall serve out the remaining sentence.
The appeal qua accused No. 1 is dismissed.
However, the judgment and order of conviction and sentence recorded by the learned Additional Sessions Judge, Ratnagiri against accused No. 4 Charansingh @ Cheru Ramesh Varaskar and accused No. 5 Ram Hasnya @ Hari @ Chavan @ Choudhari @ Kanjarbhat for the offences under Sections 302 read with Sections 34, 396 read with Sections 397 and 457 read with Section 34 of the I.P.C. and against accused No. 7 Dhodi @ Andhera Rukdiya @ Suraj @ Rajput @ Kanjarbhat for the offence under Section 412 of the I.P.C, is quashed and set aside.
The accused Nos. 4, 5 and 7 be set at liberty forthwith if not required in any other case.
Fine if any paid by accused Nos. 4. 5 and 7, be refunded.