Naresh @ Narendra Kavdidas ... vs State Of Mah. Thr. Pso Ps Chandur ...
2021 Latest Caselaw 17632 Bom

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                                                       2012 appa 667 of 2021.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR

         Criminal Application (APPA) No.667 of 2021
                              In
               Criminal Appeal No.495 of 2021
                 Naresh @ Narendra Kavdidas Chavhan (In Jail)
                                    Versus
                          The State of Maharashtra,
                        through Police Station Officer,
                       Police Station Chandur Railway,
                     Tq. Chandur Railway, Dist. Amravati

Office Notes, Memoranda of Coram,
appearances, Court's orders or directions                  Court's or Judge's orders
and Registrar's order
                    Shri P.R. Agrawal, Advocate for Applicant.
                    Shri I.J. Damle, APP for Respondent.

                    CORAM : VINAY JOSHI, J.

DATE : 20th DECEMBER, 2021

1. This is an application preferred by Naresh @ Narendra Kavdidas Chavhan seeking suspension of sentence imposed by the Trial Court in Special (MCOCA) Case No.103 of 2017, whereby the applicant was convicted for the offence punishable under Section 394 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for eight years and to pay a fine of Rs.10,000/- with default clause.

2. While claiming suspension of sentence, it has been canvassed that the Trial Court utterly failed in appreciating the evidence in proper manner and only on the basis of suspicion, the applicant was arrested and convicted without any specific evidence.

2012 appa 667 of 2021.odt

3. The learned APP for the respondent-State has resisted bail by filing reply-affidavit.

4. With the assistance of both the parties, I have gone through the impugned judgment and the evidence recorded during the trial. It was a case of road robbery committed by unknown persons. The prosecution witnesses PW 1 Pankaj and PW 2 Archana, while proceeding on motorcycle, were accosted by four unknown assailants, who, by giving threats, snatched gold article and cash amount of Rs.800/-. Both the victims went to the Police Station and informed the occurrence. The police showed them the photographs of some suspects, rather of history-sheeters, of whom they identified as assailants. Later on, the applicant and co-accused were arrested and made them to undergo the Test Identification Parade.

5. Since it was a case against the unknown assailants, the question of identification assumes significance. In this regard, the prosecution relied on the evidence of both the victims. The learned counsel for the applicant has pointed out that both the victims have not identified the assailants, particularly the applicant Naresh, in the Test Identification Parade. The said fact is not disputed by the prosecution. Thus, the only evidence available against the applicant is about his identification in Court.

6. It is argued that the Court identification is a weak type of evidence which cannot be relied on unless it is corroborated by other evidence. This is not the stage to comment on whether the conviction can be based on the

2012 appa 667 of 2021.odt

basis of sole evidence of Court identification. However, the learned counsel for the applicant has taken me through the evidence of both the witnesses, who stated that they have identified the applicant in Court. It is argued that there was no special feature of the applicant to particularly identify in the Court after a lapse of considerable period. It is argued that the incident occurred all of a sudden within few minutes and, therefore, the identification cannot be trusted. Though there is a seizure of Rs.600/- from the person of the applicant, however it is pointed out that the seizure being of ordinary currency notes, the Trial Court rejected the said evidence.

7. In the above circumstances, the applicant has made out sufficient grounds to be entertained at the time of final hearing of the appeal, rather I can say that the arguable case is made out.

8. During the trial, the applicant was on bail. He has deposited the entire amount of fine. Though two prior offences were registered against the applicant, however they were preceding to the year 2012. It is submitted that the applicant was acquitted of both the offences. The applicant was also charged for the offence under the MCOC Act. However, he was acquitted of the said charge. The appeal will take considerable time for hearing. In case the applicant succeeds in appeal, then the irreversible position of undertrial period would occur.

9. In the result, the applicant is allowed. The substantive sentence imposed by the learned Special

2012 appa 667 of 2021.odt

Judge (MCOC Act) and Additional Sessions Judge, Amravati, by his judgment and order dated 27-10-2021 passed in Special (MCOCA) Case No.103 of 2017, is hereby suspended till the final disposal of the appeal.

In the meantime, the applicant shall be released on bail on his furnishing a PR bond in the sum of Rs.50,000/- with one or two sureties in the like amount.

JUDGE.

Lanjewar