Bombay High Court
Azharuddin Zahiruddin Shaikh vs The State Of Maharashtra on 25 September, 2017
Bench: A.M. Badar
501-APPEALS-677-2013-1263-2013-700-2014-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.677 OF 2013
WITH
CRIMINAL APPLICATION NO.523 OF 2017
IN
CRIMINAL APPEAL NO.677 OF 2013
RAJU @ RONI RATAN PRADHAN )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
WITH
CRIMINAL APPEAL NO.1263 of 2013
WITH
CRIMINAL APPLICATION NO.627 OF 2014
AND
CRIMINAL APPLICATION NO.961 OF 2014
AND
CRIMINAL APPLICATION NO.522 OF 2017
AND
CRIMINAL APPLICATION NO.876 OF 2017
IN
CRIMINAL APPEAL NO.1263 OF 2013
AMIN FARUKH MORDIYA )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
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501-APPEALS-677-2013-1263-2013-700-2014-J.doc
WITH
CRIMINAL APPEAL NO.700 OF 2014
AZHARUDDIN ZAHIRUDDIN SHAIKH )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.S.D.Kavathekar i/b. Mr.Pankaj Kavale, Advocate for the
Appellant in Criminal Appeal No.1263 of 2013.
Ms.Nasreen S.K.Ayubi, appointed Advocate for Appellants in
Criminal Appeal Nos.677 of 2013 and 700 of 2014.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
RESERVED ON : 22nd SEPTEMBER 2017
PRONOUNCED ON : 25th SEPTEMBER 2017
ORAL JUDGMENT :
1 Criminal Appeal bearing no.677 of 2013 is filed by the
original accused no.1 Raju Pradhan, Criminal Appeal bearing
No.1263 of 2013 is filed by the original accused no.2 Amin
Mordiya, whereas, Criminal Appeal bearing no.700 of 2014 is filed
by original accused no.3 Azharuddin Shaikh. By these appeals,
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they are challenging the judgment and order passed by the
learned Additional Sessions Judge, Borivali Division, Dindoshi,
Mumbai, in Sessions Case No.50 of 2012, thereby convicting all of
them of offences punishable under Sections 341 read with 34,
392 and 397 of the Indian Penal Code (IPC). For the offence
punishable under Section 341 read with 34 of the IPC, they all are
sentenced to suffer simple imprisonment for 1 month apart from
direction to pay fine of Rs.500/- and in default, to suffer further
simple imprisonment for 8 days, by each of them. For the offence
punishable under Section 392 of the IPC, appellants / accused are
sentenced to suffer rigorous imprisonment for 7 years apart from
direction to pay fine of Rs.5,000/- and in default to undergo
further rigorous imprisonment for 2 years. Similar punishment is
imposed on all of them for the offence punishable under Section
397 of the IPC. The learned Additional Sessions Judge has
directed that substantive sentences shall run concurrently.
2 Brief facts leading to the institution of these appeals
can be summarized thus :
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(a) PW1 Mahendra Malvia is the First Informant. On the day of
the incident i.e. on 25th January 2012 itself, he lodged a report
which resulted in registration of Crime No.23 of 2012 for offences
punishable under Sections 399, 397 read with 34 of the IPC as
well as under Section 135 of the Maharashtra Police Act with
Kasturba Marg Police Station, Mumbai. According to the
prosecution case, PW1 Mahendra Malvia along with his friend
PW4 Mansi Sawant were chitchatting near the wall of Sanjay
Gandhi National Park at Borivali. At that time, all appellants /
accused by threatening them with a deadly weapon indulged in
commission of robbery. At the point of knife, informant PW1
Mahendra Malvia was robbed off his cell phone, cash amounting
to Rs.300/- as well as ear ring. Similarly, the cell phone of PW4
Mansi Sawant is also robbed in the incident in question.
According to the prosecution case, accused persons have also
taken documents such as identity card etc. from First Informant
Mahendra Malvia.
(b) Immediately after the incident of robbing themselves, PW1
Mahendra Malvia and PW4 Mansi Sawant raised hue and cry,
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thereby attracting the public at large. The mob which gathered on
the spot started chasing accused persons who were attempting to
flee from the spot. Accused persons started pelting stones at the
mob and threatening them with knives. At that time itself, police
arrived at the spot in the patrolling van. The incident was made
known to PW2 Mohd. Majawar, Assistant Sub Inspector from the
police van. By that time, the mob had encircled accused persons.
Police took them in custody. Personal search of accused persons
came to be conducted and looted articles came to be recovered.
Routine investigation followed which ultimately resulted in filing
of the charge-sheet.
(c) The accused persons, after hearing the charge, pleaded not
guilty and claimed trial. In support of the charge, prosecution has
examined in all five witnesses and ultimately the learned
Additional Sessions Judge was pleased to convict all appellants /
accused persons and they were sentenced as indicated in the
opening paragraph of this judgment.
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3 I have heard Ms.Nasreen Ayubi, the learned advocate
appointed to represent appellants / accused in Criminal Appeal
Nos.677 of 2013 and 700 of 2014. Similarly, I have heard Shri
S.D.Kavathekar, the learned advocate appearing for appellant /
accused no.2 Amin Mordiya in Criminal Appeal No.1263 of 2013.
In submission of learned advocates appearing for appellants /
accused, evidence of prosecution witnesses is discrepant and
inconsistent. PW1 Mahendra Malvia has narrated the
incident to police in the van and then accused persons came
to be arrested. As against this, PW2 Mohd. Majawar, A.S.I.,
has deposed that initially personal search of accused persons
was taken as they were already apprehended and thereafter
PW1 Mahendra Malvia and PW4 Mansi Sawant had disclosed
the incident to police. PW1 Mahendra Malvia is deposing
about personal search of the accused resulting in recovery of
mobile. The spot cum seizure panchnama as well as arrest
panchnama is not properly proved by the prosecution and
no documentary evidence of ownership of looted articles is
placed on record by the prosecution. As against this, the learned
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APP justified the impugned judgment and order of conviction by
stating that with the help of consistent evidence, guilt of the
accused persons is proved by the prosecution.
4 I have carefully considered the rival submissions and
also perused the record and proceedings including deposition of
witnesses and documentary evidence adduced by the prosecution.
Let us now examine whether the prosecution has established that
appellants / accused, on 25th January 2012, had wrongfully
restrained PW1 Mahendra Malvia and PW4 Mansi Sawant in
furtherance of their common intention and whether there upon
appellants / accused had robbed cell phones / cash amounting to
Rs.300/-, gold ear ring and other articles from them by using
deadly weapon like knife in commission of robbery.
5 Considering the case set up against appellants /
accused persons, evidence of victims of the crime in question is of
great importance. Let us, therefore, first put on record what PW1
Mahendra Malvia and PW4 Mansi Sawant are stating about the
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incident in question. Both of them, in unison, have deposed that
on 25th January 2012, they were chitchatting near the wall of
Sanjay Gandhi National Park. At that time, as per version of both
these witnesses, appellant / accused no.1 Raju had slapped PW1
Mahendra Malvia and pointed a knife at his neck. PW1 Mahendra
Malvia was threatened and then appellant / accused no.1 Raju
relieved him of his cell phone as well as cash amounting to
Rs.300/-, and identity card kept in his wallet. Both these
witnesses congruously deposed that at the same time, appellant /
accused no.2 Amin Mordiya pointed a knife at the neck of PW4
Mansi Sawant and snatched her cell phone. So far as third
accused i.e. appellant / accused Azharuddin Shaikh is concerned,
both these witnesses have stated that he gave a fist blow on the
abdomen of PW1 Mahendra Malvia and snatched his gold ear
ring.
6 PW1 Mahendra Malvia and PW4 Mansi Sawant have
stated that after committing this daring robbery, appellants /
accused attempted to flee from the spot and therefore, both of
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them raised hue and cry for help. As per version of both these
witnesses, then public from the vicinity gathered and attempted to
apprehend culprits. However, accused persons started pelting
stones towards the crowd gathered there and threatened the
crowd by pointing a knife at them.
7 PW1 Mahendra Malvia and PW4 Mansi Sawant
consistently deposed that then police jeep came there and police
apprehended all three accused persons.
8 Both these victims of crime namely PW1 Mahendra
Malvia and PW4 Mansi Sawant were cross-examined at length but
nothing could be brought on record from their cross-examination
to disbelieve their version about the incident in question. The
incident lasted for few minutes enabling them to have every
opportunity to identify appellants / accused persons, who were
apprehended on the spot itself by the police. Evidence of First
Informant Mahendra is gaining corroboration from the First
Information Report (FIR) lodged by him with promptitude. The
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FIR at Exhibit 19 lodged by PW1 Mahendra Malvia soon after the
incident is fully supporting his version about the incident in
question. Except a few insignificant variations, entire evidence of
PW1 Mahendra Malvia and that of PW4 Mansi Sawant is in tune
with the prosecution case.
9 The prosecution has also adduced evidence regarding
post event happenings on the scene of occurrence. PW3 Sandeep
Bij is a witness, who is a resident of Sanjay Gandhi National Park.
On 25th January 2012, he had been to darshan of Gaondevi
Mandir and while returning he witnessed the post event
happenings. As per version of this witness, three thieves were
running and persons from adivasipada were chasing them. This
witness has stated that those thieves were threatening the mob by
pelting stones. This witness had also joined the mob for
attempting to apprehend appellants / accused. As per version of
this witness, then police came and with the help of people, police
apprehended appellants / accused persons. This witness has also
deposed about personal search of accused persons and recovery of
looted articles from them.
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10 PW1 Mahendra Malvia, PW4 Mansi Sawant as well as
PW3 Sandeep Bij have categorically identified appellants /
accused persons. PW1 Mahendra Malvia and PW4 Mansi Sawant
have, on identification of appellants / accused in dock,
categorically ascribed role played by each of them in the incident
of robbery with deadly weapons. Both of them have stated that
appellant / accused no.1 Raju by pointing a knife at the neck of
PW1 Mahendra Malvia had snatched a cell phone, cash amounting
to Rs.300/- and identity card from PW1 Mahendra Malvia. Both
these witnesses have stated that appellant / accused no.2 Amin
Mordiya by pointing out a knife at the neck of PW4 Mansi Sawant,
had snatched a cell phone from her whereas, appellant / accused
no.3 Azharuddin by giving a fist blow on abdomen of PW1
Mahendra Malvia had snatched a gold ear ring from him.
11 Seizure has been effected by PW2 Mohd. Majawar
A.S.I., who had also witnessed post event happenings in this
crime. As per his version, during the course of patrolling, he along
with Mhaiskar, driver of the patrolling vehicle, reached Sanjay
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Gandhi National Park at Borivali and found that three persons
were threatening the crowd by pointing knife and pelting stones.
As per version of this witness, then PW1 Mahendra Malvia and
PW4 Mansi Sawant approached him and disclosed the incident of
robbing them, after he as well as other staff apprehended
appellants / accused persons. PW2 Mohd. Majawar, A.S.I., stated
that then personal search of appellants / accused was conducted
on the spot itself in the presence of panch witnesses. Evidence of
this witness reveals that apart from one knife, during personal
search of appellant /accused no.1, a cell phone, cash amounting to
Rs.300/- and identity card of PW1 Mahendra Malvia came to be
recovered. From appellant /accused no.2 Amin Mordiya, cell
phone of PW4 Mansi Sawant came to be recovered whereas, from
appellant / accused no.3 Azharuddin, gold ear ring of PW1
Mahendra Malvia came to be recovered. Evidence of this witness
is fully corroborated by contemporaneous seizure panchnama.
There is nothing in his cross-examination to disbelieve his version
about the incident in question. Articles recovered from
appellants /accused persons were duly identified by PW1
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Mahendra Malvia and PW4 Mansi Sawant. Articles robbed where
articles of day to day use, and as such, their identification cannot
be doubted, nor it is necessary that documents about ownership
should have been produced before the trial court. Such argument
is devoid of merit. Similarly, in the light of foregoing discussion, I
do not find evidence of prosecution in the case to be inconsistent
and contradictory. All prosecution witnesses are deposing in the
line of prosecution case against appellants / accused persons and
therefore, evidence is fully corroborating and supporting the
prosecution case. Insignificant inconsistencies and variations is of
no assistance to appellants / accused.
12 In the light of foregoing discussion, the prosecution
has established that on 25th January 2012, at Sanjay Gandhi
National Park, Borivali, appellants / accused had wrongfully
restrained PW1 Mahendra Malvia and PW4 Mansi Sawant and
threatening them with deadly weapon, committed robbery of their
belongings. Sentence imposed on them for proved offences is also
in consonance with offences held to be proved against them.
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13 Resultantly, the appeals are devoid of merit and
therefore the order :
ORDER
i) Appeals are dismissed.
ii) In view of dismissal of appeals, pending applications also
stand disposed of.
(A. M. BADAR, J.)
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