Bombay High Court
Surindra Shishidhran Shetty vs The State Of Maharsthra on 4 March, 2021
Bench: S. K. Shinde
17-APEAL-516-1998.odt
Shambhavi
N. Shivgan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
Shambhavi N. CRIMINAL APPELLATE JURISDICTION
Shivgan
Date: 2021.03.06
17:23:42 +0530
CRIMINAL APPEAL NO.516 OF 1998
Shri Michel Anthony Nadar,
age adult, Occ: Mechanic,
residing at Room No.6,
Laxman Nagar, Kurar
Village, Malad (East),
Mumbai
at present appellant/accused
is in Thane Jail ... Appellant
Vs
The State of Maharashtra ... Respondents
WITH
CRIMINAL APPEAL NO.550 OF 1998
Shri Surendra Shashidharen Shetty
age about 22 years
Occ: Service,
Residing at: Dattaguru Housing
Society, B-Wing, Air India Colony,
Tank Road,
Nalasopara (E) ...Appellant.
Vs.
State of Maharashtra
at the instance of Sr. Inspector
of Police Vile Parle P.S. vide
their CR No. ...Respondent
...
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Mr. Mandar Soman appointed advocate for the
Appellants.
Mr. Yogesh Dabke, APP for the Respondent-State.
CORAM : SANDEEP K. SHINDE J.
DATE : 4th MARCH, 2021.
ORAL JUDGMENT :
The learned Additional Sessions Judge, Greater
Bombay, convicted accused nos.1 and 2, appellants herein,
for the ofences punishable under Sections 392 read with
Section 34 of the Indian Penal Code, 1860 and sentenced to
sufer rigorous imprisonment for four years and fne of
Rs.100/- each with default stipulation.
2 Briefly stated, prosecution case is that on 9 th
June, 1995, at about 12 noon, Dipendra R. Shah (P.W.1) and
his ofce colleague, Vilas Chavan were travelling on scooter
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on Western Express Highway towards South Mumbai. A
Maruti car came from behind and dashed the scooter, as a
consequence, Shah and Chavan fell down. Whereupon
three persons alighted from the car, each of them were
armed with chopper. One of those persons, cut the rope by
which brief-case of Shah, one that was tied to the scooter
and took away brief-case with Rs.13,400/- kept therein.
Another person snatched bag of Vilas Chavan and fled the
scene of ofence. That while carrying away, the brief-case,
accused put Mr. Shah and Chavan in fear of hurt by waiving
and brandishing the weapons. It appears incident was
reported on telephone to the police by Mr. Shah from one
shop, which was near the place of incident. Thereafter,
witnesses lodged the report to Vile-Parle Police Station
whereupon the crime came to be registered against the
unknown persons under Sections 397, 307, 392 read with
Section 34 of the IPC. In the course of the investigation,
appellant-accused nos.1 and 2 were arrested on transfer
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warrant on 11th January, 1996. Thereafter, on 3rd February,
1996, a test identifcation parade was held wherein P.W.1
and P.W.2 identifed the accused. Be that as it may, it is
reported that the accused no.3 has absconded after
releasing him on bail and his whereabouts are not known.
3 The learned Trial Judge on 21 st January, 1998
framed the charge under Sections 397, 392 read with
Section 34 of the IPC; and thereafter on 11th February,
1998, charge under Section 307 of the IPC was also framed
The learned Trial Court upon appreciating the evidence,
acquitted the accused of the ofences punishable under
Sections 397 and 307 of IPC, but convicted for an ofence
punishable under Section 392 of IPC and sentenced to
sufer rigorous imprisonment for four years vide judgment
and order dated 27th March, 1998. Against conviction and
sentence, this appeal is preferred.
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4 Mr. Mandar Soman, learned counsel (appointed)
has taken me through the evidence of Shah (P.W.1), Chavan
(P.W.2) and evidence of Special Executive Magistrate- Mr.
Kamble (P.W.3). Mr. Soman, submits that the alleged
incident had taken place on the busiest highway in Mumbai
at around 12 noon. He submits, allegations are improbable
in the sense that, neither P.W.1 nor P.W.2, who were riding
the scooter @ 40 km per hour, sustained any injuries nor
there was single dent to a scooter. He submits that the
complainant had disclosed the registration number of the
vehicle, which allegedly dashed the scooter but for the
reasons not known, prosecution has not investigated into
this aspect to trace whereabouts of its owner. Mr. Soman
further submits that there is neither recovery of weapons
nor of the brief-case nor the amount allegedly robbed of.
Mr. Soman also submits that there was no substantive
evidence on record to establish complicity of the appellants
in the crime. It is further submitted that the learned Trial
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Court founded the conviction on the testimony of Shah
(P.W.1) and Chavan (P.W.2) and largely relied on the 'test
identifcation' parade, held on 3 rd February, 1996 wherein
the witnesses had identifed the accused nos.1 and 2. On
these grounds, the learned counsel for the appellants seek
acquittal.
5 Per contra, Mr. Dabke, the learned Additional
Public Prosecutor, supports the conviction and sentence.
6 Indisputably, the incident had taken place in a
broad day light at 12 noon in Mumbai on the Western
Express Highway. Admittedly, neither the complainant had
sustained injuries nor scooter was damaged. Panchanama
of the scooter fortifes this fact. Accused herein were
arrested on transfer warrant on 11th January, 1996 and the
test identifcation parade was held on 3 rd February, 1996. It
may be stated that the Investigating Ofcer did not make
any eforts to trace the registered owner of the car, which
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allegedly dashed the scooter. Likewise the Investigating
Ofcer did not bother to examine any person from shop, M/
s. Giriraj Marbles wherefrom witness Mr. Shah had informed
the police about the incident. Thus, evidence was not only
scanty to establish the alleged 'robbery' but in fact renders
prosecution case improbable, for want of material evidence.
7 In, so far as the test identifcation, parade is
concerned, it was held on 3rd February, 1996, Prosecution
had examined Mr. Kamble, Special Executive Magistrate as
P.W.3. Evidence of Mr. Kamble clearly suggests that pancha
witness, Mr. Rajbali Pande on his instructions went out of
parade room to call the witnesses, only after the accused
were given position in the row of the suspects in the parade
room. As such evidence of Special Executive Magistrate
suggests, that there was enough opportunity for the panch
witnesses and the complainant to deliberate and inter-act,
before the complainant identifed the accused nos.1 and 2.
In view of the evidence of this kind, it is not safe to rely on
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test identifcation parade, which otherwise is not
substantive evidence.
8 In view of the facts of the case and the evidence
as discussed above, in my view, prosecution has not proved
beyond reasonable doubt that on 9th June, 1995, the
appellants committed robbery. As a result, appeal is
allowed. Impugned conviction and sentence passed in
Sessions Case No.388 of 1997 is set aside. Bail bonds of
the appellants are cancelled. Sureties are discharged. Fine
amount, if any, paid by the appellants be refunded to them.
9 Both the appeals are disposed of.
(SANDEEP K. SHINDE, J.)
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