Bombay High Court
Samayya Shankar Kedari And ... vs State Of Mah. Thr. Pso Ps ... on 14 February, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION (REVN) NO. 100 OF 2020
( Samayya Shankar Kedari & Anr. Vs. State of Maharashtra )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. R.R. Vyas, Advocate for the Applicants.
Mr. Amit R. Chutke, A.P.P. for the Non-Applicant/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 14th FEBRUARY, 2022.
Heard Mr. Vyas, learned counsel for the
applicants and Mr. Chutke, learned APP for the
non-applicant/State.
2. The application challenges the conviction of
the applicants for the offence punishable under Section
379 read with Section 34 of the Indian Penal Code. The
learned trial Court by the judgment dated 28.01.2019,
has held that the applicants are guilty of the offence
punishable under Section 379 read with Section 34 of the
Indian Penal Code and have sentenced each of the
accused to suffer Rigorous Imprisonment for two years
with a fine of Rs.10,000/- each, in default to suffer
further Simple Imprisonment for one month. The basic
fulcrum of the judgment of the trial Court is the
deposition of PW-3 and PW-5, as it is apparent from
para 12 of the said judgment, where it has opined, that
the evidence of PW-3 and PW-5 are quite clinching
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reliable, unimpeachable and trustworthy. The
presumption under Section 114 illustration (a) of the
Indian Evidence Act, has also been relied upon for the
purpose of conviction. The appellate Court has followed
suit in placing reliance upon the evidence of PW-3 and
PW-5 as well as the presumption under Section 114
illustration (a) of the Indian Evidence Act.
3. Mr. Vyas, learned counsel for the applicants,
by inviting my attention to the evidence of PW-3 submits,
that since there were two accused, the evidence, is bereft
of any details as to from which accused the vehicle has
been seized. Similar is the position in the evidence of
PW-5. Further placing reliance upon the timing of the
seizure, which is dated 10.05.2016 at 1800 hours and
the arrest which is dated 10.05.2016 at 2000 hours, it is
submitted, that the delay remains unexplained, as the
arrest ought to have been immediate upon the seizure.
He therefore submits, that based upon such sketchy
evidence and based upon the factum, that the possession
has not been legally established, the conviction cannot be
sustained. Further reliance is placed upon the fact, that
the owner of vehicle has not been examined.
4. In the instant matter, on 08.05.2016, the
motorcycle owned by Mr. Lochan Munghate, was stolen.
The report was lodged on 10.05.2016 at 03.00 p.m.
PW-3 claims to have seen the motorcycle standing at
Dhanora road, Shivaji Mahavidyalaya, as per his
evidence and claims to have made a call to the Police
Authorities, who came to the spot, whereupon, the
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motorcycle as well as the accused were shown to the
Police who were taken away by the Police and then the
offence was registered. What is material to be borne in
mind, is that there are two accused in the crime. The
evidence of PW-3 states, that when he had seen the
vehicle at Dhanora road, Shivaji Mahavidyalaya, at that
time, the motorcycle was in possession of the accused.
The word used is singular, and therefore, it was
necessary for the prosecution to have demonstrated, as
to which of the accused, was in actual physical
possession of the vehicle. The mode of the possession is
also not forthcoming, inasmuch as, PW-3 does not state
whether the accused were sitting on the motorcycle, were
having the key of the motorcycle, which was necessary
for the reason, that in the earlier part of his deposition, it
was stated, that the said motorcycle was found by him at
Dhanora road, Shivaji Mahavidyalaya, which would
indicated, the necessity of elucidation on the above
aspects. The evidence of PW-5, is also on the same lines,
as that of PW-3 and does not dilate as to which of the
accused was in possession of the vehicle or if there was a
joint possession, what was the mode of the possession,
whether the accused was sitting on the motorcycle,
whether they were in possession of the key, whether the
motorcycle was parked or was being driven. None of
these aspects, have been brought on record by the
prosecution. In order to attract the provisions of Section
114 illustration (a) of the Indian Evidence Act, it would
be necessary for the prosecution to establish the actual
possession of the motorcycle with any of the accused or
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both of them jointly, which unfortunately is lacking in
the present matter. It is only, if the prosecution
discharges its burden of establishing the possession of the
vehicle with the accused persons either singly or jointly,
then only the presumption as stated above can be
pressed into picture, for the purpose of convicting the
applicants. In the instant matter, a perusal of the
evidence of PW-3 and PW-5 indicate, that their evidence
as to the above position is woefully lacking, considering
which, the same could not have been relied to hold that
the applicants were in possession of the said vehicle nor
could the presumption under Section 114 illustration (a)
of the Indian Evidence Act, would have been taking into
account for the purpose of conviction.
5. In view of the above discussion, in my
considered opinion, both the judgments below cannot be
sustained, they are accordingly quashed and set-aside
and the conviction of the applicants for the offence
punishable under Section 379 read with Section 34 of the
Indian Penal Code is set-aside and they are acquitted
from the above charges. Their bail bonds are cancelled.
Since, the fine imposed is claimed to have been
deposited, the same would be refunded.
6. Revision Application is allowed accordingly.
No costs.
Signed By:SHRIKANT
DAMODHAR BHIMTE
JUDGE
Signing Date:15.02.2022 17:32
SD. Bhimte
