Shaukatali Abdulsalem Shaikh vs The State Of Maharashtra
2022 Latest Caselaw 10391 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO.202 OF 2019

Shaukatali Abdulsalem Shaikh                 .... Appellant
            Versus
The State of Maharashtra                     .... Respondent

                                ......
Mr. Vinay Bhanushali, Advocate a/w. P.K. Sanghrajka, Sanmit
Vaze, for the Appellant.
Mr. S.R. Agarkar, APP, for the Respondent-State.
                                 .....

                          CORAM : SARANG V. KOTWAL, J.

                          DATE     : 10th OCTOBER, 2022

ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 17.1.2019 passed by the Additional Sessions Judge, Thane

in Sessions Case No.37/2011. The appellant was convicted for

commission of offence punishable under Section 392 read with 34

of the Indian Penal Code and was sentenced to suffer RI for seven

years and to pay fine of Rs.1,000/- and in default of payment of

fine to suffer RI for three months. He was also convicted for

commission of offence punishable under Section 397 read with 34

of IPC and was sentenced to suffer RI for seven years and to pay

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fine of Rs.1,000/- and in default of payment of fine to suffer RI for

three months. Both the sentences were directed to run

concurrently. He was granted set off under Section 428 of Cr.P.C.

for the period of detention undergone as under-trial prisoner.

2. Initially, there were two accused in the case. However,

accused No.2 Mhammaad Mehtabli was absconding and,

therefore, the trial was conducted only against the present

appellant.

3. The prosecution case is that on 14.9.2009 after

midnight i.e. between the intervening night of 13.9.2009 and

14.9.2009, the first informant was waiting to go home after

reaching Thane. Two persons came in Indigo car, offered him lift

and when he sat in the car, he was taken to a distant place. He

was shown knife by one of them. He was assaulted by the same

person. Both the persons then took away his golden ornaments

and mobile phone. The prosecution case is that the appellant was

driving the car when his companion showed knife and took away

the ornaments and mobile phone. The first informant was allowed

to go. Thereafter, he lodged his FIR on 15.9.2009 vide C. R.

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No.I-163/2009 at Rabodi police station, Thane.       The appellant

was arrested on 3.10.2019 by laying a trap because there were

allegations of commission of similar offences. At that time, the

informant's mobile phone was found on his person. The appellant

was arrested on 3.10.2009. In the meantime, the investigation

was commenced. There was recovery of ornaments at the

instance of the appellant. At the conclusion of the investigation,

the charge-sheet was filed and the case was tried before the

Sessions Court.

4. During trial, the prosecution examined seven

witnesses including the first informant, the Medical Officer who

examined him, the panchas for recovery, a jeweller to whom the

appellant had sold the golden ornaments, the Special Executive

Magistrate who conducted test identification parade and the

investigating officer. The defence of the appellant was of total

denial.

5. Heard Shri Vinay Bhanushali, learned counsel for the

appellant and Shri S.R. Agarkar, learned APP for the State.

6. The prosecution case naturally depends on the

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evidence of PW-1 Rakesh Kanwade the victim. He has deposed

that on 12.9.2009 he had gone to Sangamner. He returned from

there on 13.9.2009. He reached Thane at around midnight. He

wanted to go to his residence at Sawarkar Nagar in a rickshaw. At

that time, one Indigo car came there. There were two persons in

the car. The driver offered him lift till Nitin Company. They

showed willingness to drop him there for Rs.10/-. He sat in the

car. The other person, who was described as a 'slim person', sat

besides the informant on the back seat. The car reached Cadbury

junction. The informant entertained some doubt and, therefore,

asked the driver to stop the car there. However, the car was taken

in high speed beyond Nitin Company and it was driven towards

Nashik. The 'slim person', who was sitting next to the informant,

showed a knife to him. It was pointed to the chest of the

informant. It was also kept on the right knee of the informant. He

demanded payment of money that the informant possessed. The

informant resisted. That person then gave a punch with an iron

fighter on the informant's nose. According to the informant, he

became semi-conscious. The car was stopped near a temple

below the bridge. The person carrying knife then forcibly took

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away the informant's golden chain, bracelet, three golden rings, a

mobile phone and Rs.2,000/-. The informant was pushed outside

the car; and then both those persons went towards Kasarvadavali.

The informant's shirt was stained with blood. He threw it in a

dustbin. On 15.9.2009, he lodged his FIR with Rabodi police

station. According to the first informant, because of the assault,

he had sustained fracture of his neck. He was scared and,

therefore, till the afternoon of 15.9.2009 he had not lodged the

FIR. The FIR is produced on record and marked as Exhibit-62.

The FIR describes the incident in similar manner as was deposed

by him. It also describes the stolen property which included a

mobile phone of Nokia company being Model No.5130 IMEI

No.356944030516552 with a SIM-card. The FIR also mentions

description of those two persons.

On 24.10.2009, the police called him to the office of

Thane Crime Branch. They showed him golden ornaments and a

mobile phone. He identified those. He received back his mobile

phone and golden ornaments under the orders of the Court. On

9.12.2009, he was called for test identification parade. He

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identified the 'slim person' but that accused was not before the

Court.

In the cross-examination, he has admitted that he had

attended the court on 10-15 occasions for giving evidence. He

also admitted that he had seen the accused in the Court and he

had also admitted that he was shown the accused in the office of

Thane Crime Branch for the first time. Thereafter he was cross-

examined on the conduct of test identification parade.

7. PW-7 Dr. Prashant Male has deposed that he had

examined PW-1 on 15.9.2009 and he had found following two

injuries :

(i) CLW on the right side chest below nipple, &

(ii) CLW on right babck.

The first injury was of the size 2 x 1 x 1 cm and other

was of the size 2 x 2 x 1 cm.. The injuries were simple and they

could have been caused by a sharp weapon. He admitted that

there was a possibility of using any other object to cause these

injuries.

8. PW-5 Smt. Jyoti Wagh was the Naib Tahsildar who had

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conducted the test identification parade on 8.12.2009. She used

twelve dummy persons provided by the jail authorities. Both the

accused were asked to stand in the parade. According to her, PW-1

identified the present appellant but did not identify the other

accused. She produced memorandum of panchnama of test

identification at Exhibit-102.

This evidence will not be of any help to the

prosecution in this particular case because PW-1 has admitted that

the accused were shown to him for the first time in the office of

the Crime Branch. Moreover, he has not identified the appellant

before the Court. He has deposed that he had identified other

accused in the test identification parade. He had not even

deposed that he had identified the present appellant at the time of

test identification parade. Therefore, the evidence of test

identification and identification of the appellant by PW-1 is not

sufficiently proved beyond reasonable doubt by the prosecution

and, therefore, the evidence regarding the identification of the

appellant will have to be ignored.

9. PW-2 Sanjay Ghole was the pancha, in whose

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presence, the appellant had given memorandum statement

pursuant to which the ornaments were recovered from a jeweller

PW-4 Hiralal Jain. PW-2 has deposed that the appellant had made

a statement showing willingness to produce those ornaments. He

then led the police and the panchas to Madhuri Jewellers, Antop

Hill, Wadala. A gold-chain and a bracelet were produced by the

shop-keeper who informed that the appellant had come to his

shop with a lady to sell these articles. The memorandum of the

statement is produced on record at Exhibit-85 and the panchnama

is produced at Exhibit-86.

10. PW-4 the jeweller Hiralal Jain was examined on the

same point and he has deposed that the appellant had come to his

shop on 15.9.2009 to sell a golden chain and a bracelet. He was

his old customer and, therefore, the jeweller purchased those

articles for Rs.46,000/-. After about 20-22 days, the police

officers came to his shop with the appellant and on that day the

recovery was effected as was deposed by PW-2 Sanjay Ghole.

11. PW-3 Ashok Satam was another pancha. In his

presence the appellant showed willingness to produce the golden

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rings. The memorandum of this statement is produced on record

at Exhibit-88. The panchnama carried out pursuant to that

statement is produced on record at Exhibit-89. Those golden rings

were recovered at the appellant's instance from his hut.

12. PW-6 P.I. Ghosalkar is an important witness. He was

the investigating officer. He has deposed that there were two

offences registered at Rabodi police station i.e. C.R. No. I-

163/2009 which is the present subject matter of this appeal and

the other offence registered vide C.R. No.I-160/2009. The modus

operandi in both these offences was the same. In both these

cases, the accused had given lift to the passengers in the night and

had robbed them. The police, therefore, arranged to lay a trap.

On 3.10.2009 accordingly the Indigo car was intercepted. It was

driven by the appellant. There were two other persons in the car.

All of them were searched in presence of the panchas. The

appellant was having a steel fighter on his fingers. He was also

carrying a mobile phone and cash amount. One knife was

recovered from Mehtabali. The mobile phone belonging to the

informant in this case i.e. in C.R. No.I-163/2009 was found in

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possession of the appellant. He has then deposed about recovery

effected at the instance of the present appellant of the golden

ornaments and rings from the jeweller and from his own house.

He requested the Executive Magistrate to conduct test

identification parade which was accordingly conducted. He

obtained the injury certificate and then filed the charge-sheet.

In the cross-examination, he admitted that the articles

were not produced before the Court during trial. They were

returned to the complainant but no such panchnama was

prepared or produced before the Court when the ornaments were

returned to the complainant. He also admitted that the appellant

was acquitted in connection with C.R. No.I-160/2009.

13. Learned Judge recorded the statement of the appellant

under Section 313 of Cr.P.C.. There, his only defence was that he

was innocent and had not committed the offence. The trial Court

relied on the evidence of the prosecution case and held that the

case was proved beyond reasonable doubt and, therefore,

convicted the appellant, as mentioned earlier.

14. Learned counsel for the appellant submitted that the

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recovery evidence is doubtful. The PW-6 investigating officer as

well as PW-1 have not deposed about the IMEI number of the

mobile phone and, therefore, recovery of that mobile phone

cannot be held against the appellant. He submitted that since

admittedly the accused were shown to PW-1 in the Crime Branch

office at the first instance, the test identification parade loses its

significance. Moreover, the appellant has not been identified by

PW-1 during the course of trial. PW-1 has not even deposed that

he had identified the appellant during the test identification

parade.

15. He submitted that the medical evidence does not

support the ocular evidence of PW-1 and there is clear

exaggeration. It in fact falsifies the story of PW-1 and, therefore,

benefit of doubt must go the appellant. Neither the ornaments nor

the weapon nor the mobile phone was shown to the witness PW-1

in the court; and this lacuna in the prosecution case goes to the

root of the matter.

16. Learned APP, on the other hand, submitted that the

evidence of recovery is not seriously challenged by the appellant

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in the cross-examination. The IMEI number in the FIR tallies with

IMEI number mentioned in the arrest panchnama which is a

significant factor. He submitted that slight exaggeration in

describing the injury and the incident will have to be ignored. He

submitted that the test identification memo does show that the

appellant was identified by PW-1 during that parade.

17. I have considered these submissions. As far as PW-1

Rakesh Kanwade is concerned, there are some definite

improvements and exaggeration in his evidence. He has deposed

that a knife was put on the right side of chest and on his right

knee. He was also punched on his nose. He has further explained

that he had suffered fracture of his neck and a lot of blood was

oozing out. All this is exaggeration as in the evidence of the doctor

PW-7 Dr. Male there are only two injuries - one was on the back

and other on the chest. Both these injuries were minor injuries.

There was no fighter punch injury on the nose and there was no

injury to his right knee. There, certainly, was no fracture of the

neck. All these show that the first informant had highly

exaggerated the incident. And, therefore, use of knife or fighter

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punch or causing hurt to the complainant by the appellant is

extremely doubtful and to that extent the appellant deserves to be

given benefit of doubt.

18. As discussed earlier, the evidence regarding

identification of the appellant is also doubtful. Therefore, even

that circumstance will have to be left out of consideration. The

only main consideration which is in favour of the prosecution

beyond reasonable doubt is that of recovery evidence. The golden

ornaments which were stolen from PW-1 were sold by the

appellant to a jeweller on that very day i.e. on 15.9.2009. There

is no reason to disbelieve the evidence of PW-4 Hiralal Jain. A

bracelet and a golden-chain were recovered from him, which were

sold by the appellant to him. Those ornaments were not produced

during trial. Those articles were returned to PW-1 during the

investigation phase itself. There is no serious challenge in the

cross-examination about the identity of those stolen articles.

Similarly PW-1's golden rings were also recovered at the instance

of the appellant from his own house. Even that evidence has

remained unchallenged.

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19. PW-1 has also not produced the blood-stained shirt,

which according to him was stained with blood during the offence

because of assault on him. This also is a circumstance in favour of

the appellant.

20. What weighs in faovur of the prosecution in particular

is the recovery of mobile phone. The first informant at the very

first instance while lodging the FIR had given the IMEI number of

his mobile phone. When the appellant was arrested on 3.10.2009

a mobile phone was recovered from his person bearing the same

IMEI number. This is seriously an incriminating circumstance

against the appellant. The appellant was found in a Indigo car

and the modus operandi was the same. This particular evidence

also has remained unchallenged and, therefore, the prosecution

has proved this recovery evidence against the appellant beyond

reasonable doubt.

21. Thus, from the above discussion it is established that

on that night PW-1 was robbed of his articles inside the car. The

appellant was driving the car according to the prosecution,

though, identification is not established. But the recovery of

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articles and the mobile phone connects the appellant with the

crime.

22. The next question is whether the offence would fall

within the meaning of Section 397 of IPC. Section 397 of IPC

reads thus :

"397. Robbery, or dacoity, with attempt to cause death or grievous hurt. - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

In this case, as discussed earlier, to that extent PW-1

has exaggerated his case and it will not be safe to hold that either

of the accused had caused or attempted to cause grievous hurt or

had even used a deadly weapon because the doctor has opined

that those two minor injuries could have been caused by any other

means. Therefore, the ingredients of Section 397 of IPC are not

fulfilled in this case. Therefore, at the highest the offence would

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fall within the provisions of Section 392 of IPC.

23. The appellant is already in custody since the date of

the impugned judgment and order i.e. from 17.1.2019. The

appellant is in custody continuously after his conviction. During

trial he was in custody from 3.10.2009 to 5.5.2010, as pointed out

by learned APP. Thus, the appellant was in custody for more than

four years. Therefore, interest of justice would meet if the

sentence imposed on him is reduced to a period of four years

under Section 392 of IPC.

24. Hence, the following order :

:: O R D E R ::

i. The appeal is partly allowed.

ii. The conviction and sentence of the appellant recorded under

Section 397 read with 34 of IPC is set aside.

iii. The conviction of the appellant under Section 392 read with

34 of IPC is maintained. However, the sentence imposed on

him for that offence is modified and instead of seven years,

the appellant is sentenced to suffer RI for four years and to

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pay fine of Rs.1,000/- (Rupees One Thousand Only) and in

default to suffer RI for three months.

iv. The appellant is entitled to get set-off under Section 428 of

Cr.P.C. for the period he has undergone in detention during

investigation and trial.

v. The articles returned to PW-1 can be retained by him.

vi. Criminal Appeal is disposed of accordingly.

                                                                              (SARANG V. KOTWAL, J.)

            Digitally signed
            by                 Deshmane (PS)
            PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE    Date:
            2022.10.12
            17:34:35
            +0530




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