Jafar Shahjman Irani vs State Of Maharashtra
2022 Latest Caselaw 12848 Bom

                                                      1 / 21          [email protected]

                                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                              CRIMINAL APPELLATE JURISDICTION

                                                  CRIMINAL APPEAL NO.545 OF 2022

                                                               WITH

                                             INTERIM APPLICATION NO.1610 OF 2022
                                                             IN
                                               CRIMINAL APPEAL NO.545 OF 2022

                             Jafar Shahjman Irani
                             Age : 40 years, Occ.:NA
                             Residing at - Shindemala,
                             Kanjar Vasti, Wakhari To. Daund,
                             Dist. Pune
                             (presently lodged in
                             Yerawada Central Jail, Pune)                     .... Appellant/
                                                                                   Applicant

                                         versus

                             State of Maharashtra
                             (Through Wakad Police Station)                   .... Respondent
                                                          .......

                             •       Ms. Roohita Shaikh a/w Mr. Javed Shaikh a/w Mr. Vilas
                                     Bambarde a/w Mr. Anil Nile, Advocate for
                                     Appellant/Applicant.
                             •       Mr. S. R. Agarkar, APP for the State/Respondent.

                                                         CORAM    : SARANG V. KOTWAL, J.
                                                         DATE     : 12th DECEMBER, 2022

                             JUDGMENT :

Digitally signed by MANUSHREE MANUSHREE V NESARIKAR V NESARIKAR Date:

2022.12.15 17:09:27 +0530

1. The Appellant has challenged the Judgment and Order Nesarikar 2 / 21 [email protected]

dated 27/04/2022 passed by the Special Judge under MCOC

Act, Pune, in Special Case (MCOCA) No.11/2018. There were

two accused before the trial Court. The Appellant was the

accused No.1. Though both the accused were similarly convicted

and sentenced, there was nothing to show that the accused No.2

preferred any Appeal. The only Appeal before the Court is that

of the present Appellant. He was the original accused No.1.

2. The Appellant and his co-accused were convicted and

sentenced as follows :

(i) They were convicted for commission of offence punishable u/s 392 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for six years each and to pay fine of Rs.25,000/- each and in default of payment of fine to suffer simple imprisonment for six months each.

(ii) Both of them were convicted for commission of offence punishable u/s 3(1)(ii) of The Maharashtra Control of Organised Crime Act, 1999 (for short 'MCOCA') and and were sentenced 3 / 21 [email protected]

to suffer rigorous imprisonment for five years each and to pay fine of Rs.5,00,000/- each and in default of payment of fine to suffer simple imprisonment for one year each.

(iii) Both of them were convicted for commission of offence punishable u/s 3(2) of the MCOC Act and and were sentenced to suffer rigorous imprisonment for five years each and to pay fine of Rs.5,00,000/- each and in default of payment of fine to suffer simple imprisonment for one year each.

(iv) Both of them were convicted for commission of offence punishable u/s 3(4) of the MCOC Act and and were sentenced to suffer rigorous imprisonment for five years each and to pay fine of Rs.5,00,000/- each and in default of payment of fine to suffer simple imprisonment for one year each.

(v) All the substantive sentences were directed to run concurrently.

(vi) Both of them were given set off u/s 428 of Cr.P.C.

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3. Heard Ms. Roohita Shaikh, learned counsel for the

Appellant and Mr. S. R. Agarkar, learned APP for the State.

4. The prosecution case is that, on 28/05/2017 P.W.1

Suajata Shivaji Jagtap was travelling on the motorcycle driven

by her husband. Their speed reduced because of a speed breaker.

Both the accused came from behind on their motorcycle and

snatched her gold ornaments consisting of Ranihar, Ganthan and

Mangalsutra. Both the accused went away on their motorcycle.

5. P.W.1 lodged her FIR with Wakad police station, which

was registered vide C.R.No.322/2017. The Appellant was

arrested on 01/06/2017 in connection with some other offence.

During the course of investigation it was revealed that he was

involved in the present offence. In the meantime on 04/06/2017

recovery of huge number of ornaments and cash was recovered

at his instance from his house concealed in false ceiling. During

investigation it was revealed that the accused were involved in

many similar offences. In some of those, charge-sheets were 5 / 21 [email protected]

filed and cognizance was taken by the competent Courts.

Therefore approval u/s 23(1) of MCOCA was granted and the

investigation was carried out by the authorized officer. At the

conclusion of the investigation, sanction u/s 23(2) of MCOCA

was obtained and the charge-sheet was filed. The case was tried

in Sessions Court as mentioned earlier.

6. During trial, the prosecution examined six witnesses

including the first informant, Panchas, valuer of the ornaments

and the Investigating Officer. The defence of the Appellant was

of total denial. At the conclusion of the trial learned Judge

believed the identification of the Appellant and also the recovery

and identification of the ornaments. He took into consideration

the earlier charge-sheet of which the cognizance was taken and

at the conclusion of the trial, convicted and sentenced the

Appellant as mentioned earlier.

7. The prosecution case is deposed by the P.W.1 Sujata

Jagtap. She has stated that on 28/05/2017 she and her husband

had gone to attend a wedding at Ravet. In the evening, at about 6 / 21 [email protected]

05.00 p.m., they were returning back. They had reached near

Tathvade Chowk. There was a speed breaker. Their speed was

reduced. At that time, from the left side two persons came on a

motorcycle. The pillion rider pulled three ornaments from her

neck and they went away. She identified the Appellant before

the Court. Immediately after the incident she and her husband

went to Wakad police station and lodged her FIR. She showed

the spot of incident. She deposed that the Court had returned

her ornaments which were made after melting of the metal.

After about 6-7 months from the incident she was called to

Yerwada prison for identification parade. There she identified

the Appellant.

In the cross-examination she admitted that the spot of

incident was surrounded by the residential buildings. There was

a traffic signal. There were vehicles all around. She denied the

suggestion that the face of the Appellant could not be seen as the

accused were wearing helmets. About one hour after searching

for the offenders, they went to the police station. She has 7 / 21 [email protected]

deposed that on 24/11/2017 she was called by the police at

Wakad police station. That time she was told that test

identification parade was to be held. Importantly she has

deposed that when the accused were arrested, she was called to

the police station. She specifically admitted that, at that time the

police had shown the Appellant to her. In respect of test

identification parade she has deposed that both the accused

were put in the parade at the same time. She denied the

suggestion that since the Appellant was shown in the police

station, she could identify him in the test identification parade.

The memorandum of test identification parade was brought on

record at Ex.26.

8. The FIR lodged by her was produced on record at

Ex.25. She had given description of both the offenders. She has

also given description of three ornaments. The first one was the

gold Ganthan weighing 6.5 Tolas, the second one was Ranihar

weighing 3 Tolas and the third one was mini Ganthan weighing

1 Tola. The FIR substantially corroborates the deposition.

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9. P.W.2 Amit Mahendra Kamble was a Pancha. He was

called at police station on 04/06/2017. There was another

Pancha. The Appellant gave memorandum statement showing

his willingness to show the place where he had concealed the

stolen property. Thereafter the police, the Panchas and the

valuer along with the Appellant went to a house. The Appellant

told that it was his house. The key of the house was with the

police. The house was opened. The Appellant stood on the

kitchen platform and removed the false ceiling. He removed two

bags. One of them was containing gold ornaments and the other

one was having cash. After verification it was found that the

cash amount was of Rs.62,00,000/-. There was some foreign

exchange also. The memorandum statement is produced on

record at Ex.31 and Panchanama of the seizure is produced at

Ex.32. The Panchanama shows that there were 109 ornaments.

According to learned APP Mr. Agarkar, the ornaments at Sr.

No.48, 49 and 50 matched with the description in the FIR.

Those were the ornaments of the first informant.

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In his cross-examination P.W.2 admitted that he was

working as an Instructor in a gym. He deposed the Crime Branch

Office was near his work place. He admitted that some of the

police staff and even accused used to come to his gym. He could

not name the vehicle in which he had accompanied the police.

10. P.W.3 Amol Dadarao Veer has deposed that he was

called to the police station on 28/09/2017. In his presence the

Appellant showed willingness to show the spot where the

Appellant had committed the offence. This witness's evidence is

hardly of any value, because the spot of incident was already

known. The police had conducted the Spot Panchanama.

11. P.W.4 Ghanshyam Satyanarayan Zanvar was the valuer.

He was called to Crime Branch Office on 04/06/2022. He had

accompanied the police party to the house of the Appellant.

From there ornaments and the cash were recovered. He valued

the gold ornaments, which is reflected in the Panchanama Ex.32.

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12. P.W.5 API Mahadev Narayan Waghmode was the

Investigating Officer at the relevant time. He was attached to

Crime Branch Unit - 5. On 01/06/2017 they received a secret

information pursuant to which the Appellant was arrested. He

was a gold snatcher and he had many antecedents. His

motorcycle was seized. He was initially arrested in connection

with C.R. No.160/2017 of Kondhwa Police Station. On

02/06/2017 his house was searched. At that time, ornaments

worth Rs.5 lakhs, cash amount of more than 4 lakhs, camera,

mobile handset, laptop etc. were recovered. Other documents

were also recovered. His vehicles were seized. On 04/06/2017

as mentioned earlier, ornaments and cash amount were

recovered from his house at his instance, which is recorded

under Ex.31 and 32. At that time police had the key which they

had seized at the time of his house search under Panchanama.

On 06/06/2017, the Appellant showed willingness to show the

place where he had committed the offences of chain snatching.

They were 26 such places.

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13. P.W.5 has further deposed that on 12/06/2017 P.W.1

was called at his office and she identified her ornaments, which

were recovered by this witness. Those ornaments were returned

to P.W.1 under the order of the Court. He was asked about the

arrest and recovery Panchanama in the cross-examination.

However, there was no specific cross-examination and in

particular there was no suggestion that P.W.1 had not identified

the ornaments recovered from the Appellant.

14. P.W.6 Assistant Commissioner of Police Vikram Bhimrao

Patil, was investigaing this offence. He took over the

investigation on 06/10/2017. He verified the complaint of P.W.1

and recorded her statement. He collected the charge-sheets filed

against the Appellant. Those, charge-sheets were produced on

record at Ex.54/1 to 54/15. He collected the details of bank

account of the accused. He also took steps to find out the

property which was purchased by the Appellant using the

amount collected illegally by committing offences.

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15. He made arrangements for conducting test

identification parade in November 2017. It was conducted on

24/11/2017. Sanction u/s 23(2) of MCOCA was given by the

Additional Director General of Police on 21/03/2018. After that,

the charge-sheet was filed. He denied that he had shown

photographs of the Appellant to the informant before the test

identification parade.

16. The charge-sheets were produced at Ex.54/1 to 54/15.

Cognizance was taken by the competent Courts in more than

one cases. Those were the charge-sheets in respect of

C.R.No.399/2014 of Kondhwa police station, C.R.No.83/2014 of

Hadapsar police station, C.R.No.220/2016 of Hadapsar police

station, C.R.No.841/2016 of Hadapsar police station,

C.R.No.127/2017 of Hadapsar police station, C.R.No.249/2017

of Hadapsar police station. Cognizance was taken of all these

charge-sheets.

This in short is the evidence of the prosecution.

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17. Learned counsel for the Appellant submitted that the

identification of the Appellant in this case is not proper and

therefore that circumstance cannot be held against the

Appellant. She submitted that the P.W.1 had admitted that the

Appellant was shown to her in the police station after his arrest

and therefore her identification of the Appellant in test

identification parade loses its importance and this circumstance

cannot be used against him.

18. She further submitted that the gold ornaments were

returned to P.W.1 after they were melted and remoulded and

therefore there cannot be proper identification of those

ornaments. There was no other incriminating circumstance as

far as the incident dated 28/05/2017 is concerned and therefore

she submitted that the prosecution has not proved its case.

According to her, since the offence is dated 28/05/2017, is not

proved, there was no question of applying the provisions of

MCOCA to this offence. Therefore conviction and sentence

under those provisions needs to be set aside.

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19. Learned APP opposed these submissions. According to

him, the Investigating Officer has denied that any photograph of

the Appellant was shown to the first informant. In any case she

has identified the Appellant also in the Court, which is a

substantive piece of evidence and therefore even if the

identification in the test identification parade is ignored, the

identification before the Court is sufficient to find him guilty. He

further submitted that the golden ornaments snatched from the

P.W.1 were mentioned by her in the FIR and they are

incorporated in Ex.32. They exactly match Sr.No.48, 49 and 50.

The Investigating Officer also deposed that the ornaments were

identified by the P.W.1. Therefore that circumstance is

incriminating. All the requirements of MCOCA are fulfilled.

Charge-sheets of the offences of which cognizance is taken and

in which the Appellant was an accused along with his

companion, are produced on record. In respect of those charge-

sheets, the cognizance was taken by the competent Courts.

Therefore all the requirements under the MCOCA are fulfilled

and therefore offence under MCOCA is properly proved.

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20. I have considered these submissions. So far as

identification of the Appellant is concerned, I find force in the

submission of learned counsel for the Appellant that his

identification in the test identification parade as well as in the

Court is seriously affected by her admission that the Appellant

was shown to her in the police station after his arrest. Once the

police had shown the Appellant to the P.W.1, her identification in

test identification parade and in the Court was a formality and

therefore it was not proper identification. Hence that

circumstance against the Appellant will have to be ignored.

21. However, the recovery of ornaments is equally serious

incriminating circumstance. In this case, the recovery was huge.

There were large number of ornaments recovered at his

instance. There was huge cash recovered at his instance. It was

concealed in a false ceiling in the house of the Appellant. During

house search some ornaments and some cash amount was

recovered. The key of the house was in possession of the police.

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It was seized during house search. But the major part of the

stolen property was concealed by the Appellant in the false

ceiling which was only to his exclusive knowledge. It was

recovered pursuant to the statement given by him admissible u/s

27 of the Evidence Act. Therefore that particular evidence is

admissible, which is properly proved by the prosecution. The

ornaments mentioned at serial No.48, 49 and 50 in Ex.32 were

the ornaments of the first informant which she has mentioned in

the FIR. There was no scope for manipulation. There was

absolutely no cross-examination of the Investigating officer on

this aspect. Therefore it can safely be held that there was

recovery of stolen ornaments involved in this particular offence

at the instance of the Appellant and that itself is sufficient to

base conviction so far as commission of offence of robbery dated

28/05/2017 is concerned.

22. The other question is regarding the conviction under

MCOCA. As rightly submitted by learned APP Mr. Agarkar that

requirements of MCOCA are fully proved by the prosecution.

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The previous charge-sheets were filed on record. The orders of

taking cognizance by competent Court are produced on record.

This shows that incident dated 28/05/2017 was a continuing

unlawful activity undertaken by the members of an organized

crime syndicate. Therefore the conviction is properly recorded

by the trial Court under MCOCA.

23. The next question would be about the sentence

imposed on the Appellant. Learned counsel for the Appellant

submitted that there are certain mitigating circumstances. She

submitted that the Appellant is continuously in custody since

01/06/2017. Thus more than 5 years and 6 months have

passed. The Appellant has three young children. The eldest

daughter is 14 years of age and there are two younger children.

His father is bedridden. There is nobody to look after his family.

His family is in a bad financial condition. She submitted that the

Appellant is facing trials in other cases and therefore all this will

cause immense hardship to his family.

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24. Learned APP submitted that the offence is serious and

there are many antecedents against the Appellant.

25. I have considered these submissions. Undoubtedly the

offence is serious. The maximum substantive sentence awarded

in this case is for 6 years. The State has not made any

application for enhancement of sentence. The Applicant has

almost completed the substantive sentence. The only reason why

he is not released so far in connection with the present case, is

because he has not been able to pay the fine. The sentence

imposed in default of payment of fine, is yet to get over.

26. Considering these aspects only to a very limited extent

the sentence imposed in default of payment of fine can be

reduced by a small extent. In my opinion, thus balance can be

maintained between the submissions made by learned counsel

for the Appellant and those made by learned APP as mentioned

hereinabove.

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27. To that extent, I am inclined to reduce the in default

sentence. The conviction and substantive sentence under the

heads of different offences are maintained. Only 'in default

sentences' are reduced as follows. Hence, the following order :

ORDER

(1) The Appeal is partly allowed.

(i) The Appellant's conviction for the offence punishable u/s 392 of the Indian Penal Code and substantive sentence of rigorous imprisonment for six years and imposition of fine of Rs.25,000/- are maintained. However, in default of payment of fine amount, the Appellant is now directed to suffer simple imprisonment for three months instead of original 'in default sentence' of simple imprisonment of six months.

(ii) His conviction for the offence punishable u/s 3(1)(ii) of the MCOC Act and and substantive sentence to suffer rigorous imprisonment for five years and fine of Rs.5,00,000/- are 20 / 21 [email protected]

maintained. However, in default of payment of fine, he is now directed to suffer simple imprisonment for a period of nine months instead of original 'in default sentence' of simple imprisonment of one year.

(iii) His conviction for the offence punishable u/s 3(2) of the MCOC Act and and substantive sentence to suffer rigorous imprisonment for five years each and fine of Rs.5,00,000/- are maintained. However, in default of payment of fine, he is directed now to suffer simple imprisonment for a period of nine months instead of original 'in default sentence' of simple imprisonment of one year.

(iv) His conviction for commission of offence punishable u/s 3(4) of the MCOC Act and and substantive sentence to suffer rigorous imprisonment for five years and fine of Rs.5,00,000/- are maintained. However, in default of payment of fine, he is directed now to suffer simple imprisonment for a period of nine months instead of original 'in default sentence' of simple imprisonment of one year.

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(v) All the substantive sentences are directed to run concurrently.

(vi) He is granted set off as originally granted by the trial Court u/s 428 of Cr.P.C.

(vii) All the other clauses of the operative part of the trial Court's order are retained as they are.

(2) With these directions, the Appeal is disposed of.

(3) With disposal of the Appeal, all the connected applications are also disposed of.

(SARANG V. KOTWAL, J.)