Bombay High Court
Rohan Nandkishor Nage vs State Of Maharashtra on 22 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:31512
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.694 OF 2024
Rohan Nandikishor Nage .... Appellant
versus
The State of Maharashtra .... Respondent
.......
• Mr. Pawan Mali, Advocate for Appellant.
• Ms. Ranjana D. Humane, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 22nd JULY, 2025
JUDGMENT :
1. The Appellant was the original accused No.2 in MCOC
Case No.6/2017 before the Additional Special Judge under
MCOC Act, Pune. There was one more accused in the said case
i.e. the accused No.1 Salim @ D. Badshaha Babu Tamboli.
The result of the trial was as follows -
Digitally
signed by
MANUSHREE
MANUSHREE NESARIKAR
(i) The learned Judge vide his Judgment and Order
NESARIKAR Date:
2025.07.28
18:24:22
+0530 dated 05/07/2023 convicted both the accused for
commission of the offence punishable u/s 397 r/w
Nesarikar
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34 of the Indian Penal Code and both of them were
sentenced to suffer rigorous imprisonment for 10
years and to pay a fine of Rs.1,00,000/- each and in
default of payment of fine to suffer simple
imprisonment for six months.
(ii) They were also convicted for commission of the
offence punishable u/s 341 r/w 34 of the Indian
Penal Code and they were sentenced to suffer
rigorous imprisonment for three months and to pay
a fine of Rs.1,000/- each and in default of payment
of fine to suffer simple imprisonment for 15 days.
(iii) The substantive sentences were directed to run
concurrently.
(iv) Both the accused were in jail since 28/11/2016.
They were granted set off for the period already
undergone in jail.
(v) Both of them were acquitted from the charges of
offence punishable u/s 3(1)(ii) and 3(4) of the
Maharashtra Control of Organised Crime Act, 1999.
2. Heard Mr. Pawan Mali, learned counsel for the Appellant
and Ms. Ranjana D. Humane, learned APP for the State.
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3. The prosecution case is that one Ganesh Bhandalkar
and Sikandar Sattar Shaikh were travelling in a goods carrier.
Ganesh was the driver and Sikandar was the cleaner in that
vehicle. In the night between 10th and 11th September 2016, at
about 02.50 a.m. at Dive Ghat District Pune, both the accused
intercepted their vehicle and climbed the vehicle. The Appellant
was having a Koyta. He opened the window on the cleaner's
side. They entered the vehicle and robbed both Ganesh and
Sikandar of their articles and money. They then went away on
their two wheeler. They had also committed similar robbery in
respect of another vehicle. The police were informed. Some of
the police officers chased that two wheeler. While going away,
both the accused fell from their motorcycle and they were
arrested. The stolen articles were found in their possession. The
FIR was lodged and the investigation was carried out. The Spot
Panchanama was conducted. The injured victims were sent for
medical examination. During the course of investigation it was
revealed that there were other antecedents against the accused.
This offence was committed as a part of the organized crime.
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Therefore, proposal was sent for applying provisions for MCOC
Act. The approval u/s 23(1) of the MCOC Act was granted. The
investigation was carried out by the specially appointed Police
Officer under that approval order. At the conclusion of the trial,
the charge-sheet was filed with the sanction of the competent
authority u/s 23(2) of MCOC Act. The trial was conducted
before the Special Court for MCOCA, at Pune.
4. During the trial, the prosecution examined 13
witnesses including the aforementioned Ganesh Bhandalkar and
Sikandar Shaikh, the Panchas, the Medical Officer and the Police
Officers. The defence of the accused was of total denial.
5. The learned Judge considered the evidence on record
and the defence raised by the accused. He heard the arguments.
The learned Judge convicted and sentenced the accused as
mentioned earlier. The learned Judge however acquitted both
the accused from the charges of the offences punishable under
the provisions of MCOC Act. This Appeal as mentioned earlier is
preferred only by the original accused No.2.
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6. P.W.2 Ganesh Bhandalkar and P.W.9 Sikandar Shaikh
are the two most important witnesses in this case. P.W.2 Ganesh
stated that at the relevant period he was working as a driver
with M/s Protrans Supplier Company at Baramati. He was
driving Eicher 1059 bearing No.MH-42-M-3725. P.W.9 Sikandar
Shaikh was the cleaner on his vehicle. On 11/09/2016, as usual
he loaded curd in his vehicle at MIDC. He started from Baramati
at about 12.15 a.m. Sikandar was travelling with him. When
they reached a bridge near Pawar Wadi, which was after
Saswad, two unknown persons overtook and intercepted their
vehicle. P.W.2 questioned them. Both of them started abusing
them. P.W.2 also shouted at them. They removed a Koyta from
their sack and gave a blow on his vehicle's door. One of them
entered the vehicle and gave a blow on P.W.2's right thigh. The
other person went to the cleaner's side and broke the window
glass. That person gave blow from the backside of the Koyta on
the P.W.9 Sikandar. P.W.2 was assaulted by the blunt side of Koyta
on the thigh and he was assaulted on his right arm with the
sharp edge of Koyta. His jerkin was torn due to the assault. He
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had Rs.3,500/- with him. Both the accused took that money.
They also forcibly took the watch and the mobile phone from
P.W.9 Sikandar. P.W.2 has described both these accused. After
that, both the accused went away towards the Dive Ghat. There
was an injury to P.W.2's arm. He made a phone call to the police
by dialing 100. About half an hour after that, the police reached
the spot. They were attached to Saswad Police Station and
Mantarwadi Chowky. P.W.2 then took his vehicle to Mantarwadi
police chowky. Since the incident had taken place within the
jurisdiction of Saswad, they registered this FIR at Saswad Police
Station. He had shown the spot of incident to them. He gave his
FIR. It is produced on record at Ex.32. The police seized the torn
jerkin. After about 2 to 3 months, the police called him to
Yerwada Central Prison for attending the Test Identification
Parade. According to him, he identified both the accused in that
parade. He added that the Test Identification Parade was held
within a period of one and a half month. After registration of the
FIR, he was sent to the dispensary at Saswad for treatment.
Both the accused were shown to him on the screen in the Court.
He identified both the accused. According to him, the Appellant
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had given a blow on his vehicle and had assaulted P.W.9. When
P.W.2 had gone to the police station, there was one more driver
present in the police station. He was from Sangli. P.W.2
identified his jerkin in the Court.
The cross-examination of this witness is only about the
suggestion that he was deposing falsely. He was only suggested
that each and every statement he had made in the examination-
in-chief was not correct. This suggestion was duly denied by
P.W.2. The FIR produced by him at Ex.32, substantially
corroborates his version. The FIR was registered at Saswad
Police Station vide C.R.No.182/2016.
7. P.W.9 Sikandar Shaikh is another important witness. He
was the cleaner on the said Eicher tempo bearing No.MH-42-M-
3725. He has deposed that they were travelling from Baramati
to Pune. They were carrying curd from Baramati to Pune. He
was travelling with P.W.2. They started from Baramati in the
night. When they reached the spot near Pawar Wadi at about
02.15 a.m. two persons came on a two wheeler and intercepted
their tempo. They started quarreling with P.W.2 and P.W.9. They
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made allegations that their tempo had struck their two wheeler.
One of them slapped P.W.2. The other removed a Koyta from his
sack. He gave blows from the blunt side of the Koyta on the
P.W.2's legs and hands. P.W.9 was forced to get down from the
vehicle. They removed Rs.3,500/- and a mobile handset from
him. He has given description of both of them. They went away
on a motorcycle bearing No.MH-14-CB-2185. After that, P.W.2
made a phone call to police by dialing No.100. They went to the
police station. Then P.W.2 gave his FIR. The police sent P.W.9 for
medical treatment to Government Dispensary. His statement was
recorded. After a few months, P.W.9 was called to Yerwada
Central Prison for Test Identification Parade. He identified the
Appellant and then the accused No.1. He identified both of them
in the Court. Two months after the Test Identification Parade, he
was called to the Tahasildar's office at Saswad. He was shown
the recovered articles. He identified his watch of Titan company
and the mobile phone of Samsung company. He identified both
these articles which were produced in the Court.
In the cross-examination, he accepted that the road
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between Jejuri and Pune had traffic and in the evening also
there is traffic. The rest of the cross-examination is in the form
of mere suggestions and nothing much turns on this cross-
examination.
8. P.W.4 HC Mahesh Kharat had chased and arrested the
accused. He deposed that he was on patrolling duty in that area
during the night time between 10th and 11th September 2016. At
about 01.00 a.m. his companion PSI Tapare was called
telephonically by the Station House Officer of Saswad police
station Mahajan and informed him that a truck driver was
assaulted and robbery was committed. They were informed that
the two offenders had gone towards Saswad on a two wheeler.
They were travelling on a two wheeler bearing No.MH-14-CB-
2185. The description of both these offenders was also given.
P.W.4 along with his other team members proceeded in
that direction in a vehicle. When they got down at Dive Ghat,
API Hulwan told them that they had intercepted one suspicious
motorcycle. On further enquiry the police came to the
conclusion that those two person were not concerned with the
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offence. Therefore, they were let off. In the meantime, the SHO
Mahajan informed that there was a second incident of robbery
of a truck in the area which had taken place near Mohan Dhaba
on Saswad Jejuri Road. The complainant in that case had
reached Saswad police station. P.W.4 and his team was in the
Police Chowky at Uruli Chowky. P.W.2 had reached that Police
Chowky. He was sent to Saswad Police Station. P.W.4 and his
team waited at the same Police Chowky. In the meantime, one
Officer Jagtap saw the motorcycle going towards Pune side.
Immediately, P.W.4 and his team started chasing that motorcycle.
The persons riding the motorcycle realized that they were being
chased. They tried to drive faster. But their motorcycle slipped
and both of them fell down. P.W.4 and his team took them in
custody and brought them to Saswad police station. The said
motorcycle was driven by Police Naik Kolhe and he brought it to
Saswad Police Station. The search of both these persons was
conducted. The two wheeler had the same registration number
as per the information. The Police Officers were convinced that
those two persons were the offenders in the offence. Both of
them were the accused Nos.1 and 2 (the Appellant in this case).
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Their search revealed that the accused No.1 had Rs.10,000/- in
cash. There was one Samsung mobile handset, one ATM Card
and one more watch with him. The Appellant had three mobile
handsets of Samsung company. There was one more mobile
phone of Itel company and there was cash of Rs.4,300/-. He was
carrying a sack which contained some documents and a Koyta.
There was a driving license in the name of one Mahsh Mohite.
There was also one document related to a heavy vehicle. All
these articles were seized under the Panchanama. This witness
identified the articles produced in the Court.
In the cross-examination, he stated that he had made
an entry that he was on patrolling duty in the night. But he was
not aware whether the entry was produced in the documents in
the present case. He could not tell whether Mr. Tapare had taken
entry regarding the information given by SHO Mahajan. There
was also no note of the names or the details of the two suspects
who were let off. Apart from that, there were mere suggestions
put to him about this deposition that he was deposing falsely. All
these suggestions were denied by him.
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9. P.W.3 Prakash Jadhav is another important witness. He
was not directly connected with the present offence, but he was
similarly robbed at around 03.15 a.m. in that same area. He had
given the registration number of the two wheeler on which
those offenders had come. The number was MH-14-CB-2185,
which was the same motorcycle which was seized by P.W.4's
team. He had also identified the same accused in the Court on
VC. He had also identified him in the Test Identification Parade.
10. P.W.1 Dhanaji Pawar was a Pancha in whose presence
the tempo and the spot of incident were inspected. The
Panchanama is produced on record at Ex.30. The Panchanama
describes the damage suffered by the tempo because of the
blows given by the Koyta.
11. P.W.5 Yogesh Fadtare was a Pancha for arrest of the
accused and seizure of the articles. That Panchanama is
produced on record at Ex.39 and Ex.40.
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In the cross-examination, he stated that the police had
called him by making a phone call. He had gone to the police
station on 2 to 3 occasions. He denied the suggestion that he
had not read the Panchanama before signing. He denied the
suggestion that the search and seizure Panchanama was not
conducted.
12. P.W.7 Swapnil Gaikwad was a Pancha. His evidence is
not very material because in his presence the accused No.1 had
shown the spot from where the motorcycle was stolen. But
nothing was discovered or recovered pursuant to the statement
made by the accused No.1. Therefore, this evidence has no
importance at all.
13. P.W.6 Dr. Prachi Uttarwar had examined P.W.2 and P.W.9
medically. She has deposed that the P.W.2 had suffered following
injuries :
(1) Contusion abrasion right arm measuring 3 cm x 0.5 cm;
(2) Contusion below right elbow measuring 6 cm x 6 cm;
(3) Blunt trauma over right forearm measuring 8 cm x 8 cm;
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(4) Blunt trauma over right knee measuring 8 cm x 8 cm;
(5) Blunt trauma below right knee measuring 3 cm x 3 cm;
14. P.W.9 had suffered one contused abrasion over back left
infra scapular region measuring 3 cm x 0.5 c.m.
In the cross-examination, she stated that the injuries
suffered by P.W.2 were not possible by fall in an accident. The
injuries suffered by P.W.9 was possible by a fall. She had stated
in her examination-in-chief that the injuries sustained by both
the injured were possible by reverse side of the muddemal
'sickle'.
15. P.W.8 API Rajesh Malegave had investigated the case
from 11/09/2016 at about 08.30 a.m. The offence was
registered vide C.R.No.182/2016 at Saswad Police Station. He
conducted the Spot Panchanama, the Panchanama of damage to
the vehicles, arrest Panchanama and seizure of articles
Panchanama. He had recorded the statements of witnesses, had
seized the jerkin and tried to find the details of the motorcycle
stolen by the accused and used in this offence. He arranged to
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conduct the Test Identification Parade by giving a letter to the
Tahasildar.
In the cross-examination, he stated that he did not
remember whether they had taken any entry in the station diary
before going to the spot of incident. He did not remember how
many team members were there when they had gone to the
spot. He had arranged for the Pancha with the help of Police
Patil. But it was not mentioned in the Panchanama. The rest of
the cross-examination is full of suggestions which he had
denied.
16. P.W.11 PI Sureshsing Gaud had reached the Police
Chowky at Uruali Devachi. He has deposed about apprehending
the accused and their arrest and seizure of articles. During
investigation he found that the accused No.1 was involved in 9
previous offences and there was one offence against the present
Appellant. Therefore, he forwarded a proposal to apply the
provisions under MCOC.
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In the cross-examination, he stated that there used to
traffic on Pune Saswad Road. But he added that at the night
time traffic is less. It was one way road. There was no divider.
He denied that it was not possible to see vehicles because of
head light of the vehicles coming from the opposite side.
17. P.W.10 Vishwas Nangare Patil was the Inspector General
of Police at Kolhapur, at the relevant time. He had given
approval u/s 23 of MCOC Act, vide his order dated 08/11/2016.
18. P.W.12 Bipinbihari Singh was the Additional General of
Police during the relevant period. He had granted sanction u/s
23(2) of MCOC Act, for prosecuting the accused under the
provisions of MCOC Act.
19. P.W.13 Deputy Superintendent of Police had carried out
the investigation, as provisions of MCOC Act were applied. He
had filed the charge-sheet.
20. Apart from this oral evidence, the prosecution
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produced the C.A. report at Ex.35. However, no blood was
detected either on the Koyta or the Jerkin. The memorandum of
Test Identification Parade was produced at Ex.76. That
memorandum is dated 20/10/2016. There is also another
Panchanama at Ex.77 where P.W.9 was made to identify the
articles seized from the accused. That Panchanama was
conducted on 29/12/2016. He had identified his watch and a
mobile phone.
21. Learned counsel for the Appellant made the following
submissions :
There is variance between the evidence of P.W.2 and
P.W.9. There is difference in the deposition regarding the genesis of
incident. P.W.9 has deposed that the accused entered their tempo
after picking up quarrel that their tempo had struck their
motorcycle. However, this particular portion is not deposed by
P.W.2. His only deposition was that both the accused intercepted
the vehicle and committed this robbery. Therefore, there is crucial
difference in their evidence.
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22. The spot of incident is not proved by the prosecution.
The Pancha for Spot Panchanama i.e. P.W.1 has not given cogent
evidence. This spot is different from the spot from where the
robbery was committed, which is deposed by P.W.3.
23. Though P.W.2 has deposed that he was assaulted with
the sharp side of Koyta and in the process his Jerkin was torn,
but the C.A. report does not show presence of blood on the
Jerkin. The evidence shows that there was heavy traffic on that
road, though no independent witness or truck driver or a cleaner
of other vehicles is examined by the prosecution.
24. P.W.4 has admitted that they had not taken any entries
in the station diary or anywhere else about receiving the
information and taking steps in arresting the accused. He
submitted that the evidence of Test Identification Parade and
identification of article is not free from doubt. He submitted that
the prosecution has failed to prove the case against the
Appellant. He further submitted that the acquittal of the accused
under MCOCA also should also be taken into consideration.
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25. Learned APP on the other hand submitted that there is
no material difference between the evidence of P.W.2 and P.W.9.
Their evidence is corroborated by recovery and identification of
the articles. The accused are identified not only in the Test
Identification Parade, but also in the Court. This was not an
isolated incident. In the same night, there was robbery
committed in respect of the another vehicle as is deposed by
P.W.3. All these events are brought out on record in the sequence
in which they had taken place. There is no scope to tamper with
the evidence by introducing false evidence. She, therefore,
submitted that the prosecution has proved its case beyond
reasonable doubt.
Reasons and conclusion -:
26. Before referring to the facts in the present case, it is
necessary to note that the Appellant was acquitted from the
charges of commission of offence punishable u/s 3(1)(ii) and
3(4) of the MCOC Act. Therefore, the evidence of P.W.10 and
P.W.12 is not material. The prosecution has not challenged the
acquittal of the Appellant from the provisions of MCOC Act.
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27. The main witnesses in this case are P.W.2 and P.W.9.
Though the learned counsel for the Applicant has submitted that
there is variance between their deposition, I do not find that
there was material difference in their stories. Both of them have
consistently deposed that the accused had intercepted and
stopped the vehicle driven by P.W.2, in which P.W.9 was
travelling. They entered the vehicle and committed the robbery.
All these factors are consistently deposed by both these
witnesses. Both of them were assaulted by the accused and their
deposition to that effect is supported by evidence of P.W.6 Dr.
Prachi Uttarwar. This ocular evidence is supported by the
medical evidence.
28. The accused were immediately arrested soon after the
incident when they were trying to run away on their two
wheeler. They were chased by the Police Officers on receiving
information regarding the two offences concerning the P.W.2 and
P.W.9 as well as P.W.3. As the Police officers were chasing them,
their motorcycle slipped and they were caught at the spot. At the
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time of their arrest the articles stolen by them from various
victims were found with them. Subsequently, the watch and the
mobile handset was identified by P.W.9 as those belonging to
him. In this case, a separate Panchanama and procedure was
followed in December 2016, wherein those articles were mixed
with similar looking articles and out of them P.W.9 identified his
own articles. Those articles were immediately seized from the
offenders soon after the incident. This is another strong
incriminating evidence against both the accused.
29. Both the accused were subjected to Test Identification
Parade. The memorandum of said parade is produced on record
as mentioned earlier. There is no infirmity pointed out in respect
of the procedure followed in the Test Identification Parade.
There is hardly any dispute about the conduct of the Test
Identification Parade. The defence had not requested the Court
to permit cross-examination of the Tahasildar, who had
conducted the Test Identification Parade by calling him in the
Court. The evidence of the Test Identification Parade remained
unchallenged.
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30. Both the accused were also identified in the Court.
Even there is no challenge to their identification in the Court.
The articles produced in the Court are also identified by the
witnesses. Thus, there is a strong chain of circumstances proved
by the prosecution in this case. The police on the patrolling duty
were sharp and efficient enough to chase and apprehend the
accused. This is supported by the evidence of P.W.3 who had
reached the police station making grievance about the offence
committed in respect of his vehicle as well. The entire evidence
led by the prosecution is quite consistent and there is no weak
link in the entire chain of circumstances. The prosecution has
successfully proved its case beyond reasonable doubt against the
Appellant. In this case, the efforts put in by the police and the
efficiency shown by the police is appreciated. They have not
only acted efficiently, but had led proper evidence during the
course of the trial.
31. As a result of this discussion, I am of the opinion that
the prosecution has proved its case beyond reasonable doubt, as
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far as the commission of the offence is concerned. The next
question would be as to what should be the sentence. From that
point of view, I have heard learned counsel for the Appellant as
well as the learned APP. The Appellant was arrested on
11/09/2016 and since then he is continuously in custody.
Therefore, almost 9 years have passed. The maximum
substantive sentence imposed on the Appellant is 10 years. That
period would be almost over considering the remission to which
the Appellant would be entitled to. Therefore, I am inclined to
reduce the substantive sentence to the period that has already
undergone by him, since his arrest. The minimum sentence
provided u/s 397 of IPC is 7 years. Therefore, he has already
crossed that period. Apart from the substantive sentence, the
learned Trial Judge has imposed a fine of Rs.1,00,000/- and in
default of payment of fine, the Appellant is to suffer simple
imprisonment for six months. Considering that the Appellant is
in custody for a very long period, some leniency can be shown in
reducing the fine amount. It is also taken into consideration that
the Appellant is in custody since 11/09/2016 and therefore he
was not in a position to earn substantially to pay the fine
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amount of Rs.1,00,000/-. Therefore, I am inclined to show
leniency as far as quantum of fine and 'in default' sentence is
concerned. To that extent, the sentence can be modified.
Considering this discussion, the following order is passed.
32. Hence, the following order :
ORDER
(1) The Appeal is partly allowed.
(2) The conviction of the Appellant for commission
of offence punishable u/s 397 r/w 34 as well as
u/s 341 r/w 34 of the Indian Penal Code, passed
by the Additional Special Judge under MCOC
Act, Pune, in MCOC Case No.6/2017, vide the
Judgment and Order dated 05/07/2023, is
maintained. However, the sentence is modified
as under :
(i) For commission of offence punishable u/s
397 r/w 34 of the Indian Penal Code, the
Appellant is sentenced to suffer rigorous
imprisonment for the period he has
undergone from 11/09/2016 in custody
till today.
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(ii) The Applicant shall pay a fine of
Rs.5,000/- and in default of payment of
fine, he shall suffer simple imprisonment
for 15 days.
(iii) The sentence of three months and
payment of fine of Rs.1,000/- and in
default payment of fine to suffer simple
imprisonment for 15 days for commission
of offence punishable u/s 341 r/w 34 of
the Indian Penal Code, is maintained.
(iv) The substantive sentences are directed to
run concurrently.
(v) The Appellant is entitled for set off u/s
428 of Cr.P.C.
(vi) The Appeal is disposed of.
(SARANG V. KOTWAL, J.)
