Rajendra Sopan Mahambare And Anr vs State Of Maharashtra
2023 Latest Caselaw 10177 Bom

2023:BHC-AS:28953



                                                                                    (16)IA-3496-2023.doc


      rajshree


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION
                                     INTERIM APPLICATION NO.3496 OF 2023
                                                             IN
                                        CRIMINAL APPEAL NO.1068 OF 2023


                    Rajendra Sopan Mahambare & Anr.                    ]       ..       Appellants
                                            vs.
                    State of Maharashtra                               ]       ..       Respondent


                    Mr.Suyash Khose a/w Balaji Gawade for the Applicants.
                    Mr.S.R. Agarkar, APP for the State.
                    PSI Sagar Bamane, Chakan Police Station present.


                                                  CORAM : BHARATI DANGRE, J

                                                  DATE   :        3rd October, 2023.

                    P.C.

                    1]     By the present Interim Application, the Applicants seek
                    suspension of sentence           imposed on them, vide the impugned
                    Judgment dated 06.09.2023, delivered by the Additional Sessions
                    Judge, Khed-Rajgurunagar, Pune in Sessions Case No.126/2014 on
                    being convicted under Section 394, 364-A of the Indian Penal Code.
                    They also seek release on bail.


                    2]     Heard the learned counsel for the Applicants and the learned
                    APP for the Sate.



                                                                                                         1/4



                 ::: Uploaded on - 04/10/2023                          ::: Downloaded on - 05/10/2023 03:40:09 :::
                                                                 (16)IA-3496-2023.doc



 3]      Perusal of the impugned Judgment would reveal that conviction
 of the Applicants is based on the identification in the Police Station by
 recording the supplementary statement.
         During the course of examination of the complainant, he failed to
 identify the accused in the Court. During his evidence, he deposed
 about the incident dated 20.07.2011, when he was enroute his home,
 in his car and he felt that he had dashed against a bike and thinking
 that the persons riding on the bike have fallen down, he stopped his
 car and alighted. At that time, third person came from the back side of
 the car, opened the left side door and one person took control of his car
 and compelled him to get inside the car, on the pretext that they will go
 to Police Station. However, realising that the he was taken on some
 different route, they robbed him of cash amount of Rs.15,000/- to
 Rs.16,000/-, and a gold chain.
         According to the complainant, he was taken to a forest and his
 hands were tied and his mouth was covered so that he would not raise
 any cry for help.             Thereafter, some false story was narrated in an
 attempt to extract money from him. He was, thereafter, rescued and
 reached to his own house. It is alleged that the persons withdrew an
 amount of Rs.1,10,000/- from various ATM centres.
         He lodged the report 3-4 days after the incident. However, he
 failed to recognize the accused persons.


 4]      The investigating Officer, in his cross-examination clearly
 admitted that he had not conducted test Identification Parade during
 investigation, but he volunteered that the complainant identified the
 accused after their arrest, when they were in the lock up.




                                                                                     2/4



::: Uploaded on - 04/10/2023                       ::: Downloaded on - 05/10/2023 03:40:09 :::
                                                                  (16)IA-3496-2023.doc



 5]      The learned Judge, prima facie has fallen into a grave error in
 relying upon the aforesaid evidence of the prosecution, for convicting
 the Applicants for offence punishable under Section 394, 364A of the
 IPC, particularly when there is no identification of the accused persons
 during the course of investigation and it has come on record that the
 identification was in the police lock up, which is no identification in the
 eyes of law.
         Since there is substantial merit in the Appeal, which is already
 admitted, the interim Application deserve to be allowed.                   Hence, the
 following order :
                                       ORDER

                  i]       Interim Application is allowed.


                  ii]      The sentence imposed upon the Applicants vide

Judgment and order passed by the Additional Sessions Judge, Khed-Rajgurunagar, Pune, dated 06.09.2023 in Sessions Case No.126/2014, is hereby suspended, during the pendency of the Appeal.

iii] Applicants Rajendra Sopan Mahambare and Santosh Ganapat Kamble, shall be released on bail in connection with C.R.No.180 of 2011 registered with Chakan Police Station, (SC No.126/2014) on furnishing P.R. bond to the extent of Rs.25,000/- each, with one or two sureties of the like amount.

iv] The applicants shall mark their appearance at the concerned Police Station on first Monday of every trimester between 5.00 p.m. to 6.00 p.m.

(16)IA-3496-2023.doc

v] Upon release, the Applicants shall furnish their contact numbers and permanent residential address to the Investigating Officer and shall keep him updated in case of change in the same.

[BHARATI DANGRE, J]