Manoj Mahadev Bandre vs The State Of Maharashtra on 15 April, 2026

   2026:BHC-AS:17770



                                                                              2.revn.244.2003 @1.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                          CRIMINAL REVISION NO.244 OF 2003
       Digitally
       signed by
       VINA
VINA   ARVIND          Manoj Mahadev Bandre                         ... Applicant /
ARVIND KHADPE
KHADPE Date:                                                          Orig. Accused No.2
       2026.04.16
       15:26:09
       +0530
                                Versus

                       The State of Maharashtra                 ... Respondent
                                                      ***
                       Ms. Aishwarya Sharma (appointed through Legal Aid), for the
                       Applicant.
                       Mr. Tanveer Gurvinder Khan, APP for Respondent - State.
                                                      ***

                                                             CORAM : M.M. SATHAYE, J.

                                                             DATE    : 15th APRIL, 2026
                       P.C. :

1. Heard the learned counsel for the Revision Applicant - Accused No.2 and the learned APP for the Respondent - State. Perused the record.

2. Revision is filed by Accused No.2 challenging the impugned Oral Order dated 04.04.2003, passed by the Additional Sessions Judge, Gr. Bombay, in Criminal Appeal No.193 of 2002, thereby dismissing the appeal filed by the Revision Applicant, thereby confirming the Order dated 13.11.2002, passed by the Metropolitan Magistrate, 18th Court, Girgaon, Mumbai, in C.C. No.182/P/2002, by which, the Revision-Applicant is convicted of offence punishable under Section 457 read with Section 34 of the Indian Penal Code, 1860 ("IPC for short"), and is sentenced to suffer rigorous imprisonment (RI) for ten months and to pay fine of Rs.2000/- and

2.revn.244.2003 @1.doc

in default to suffer simple imprisonment (SI) for two months. The Revision Applicant is also convicted of offence punishable under Section 380 read with Section 34 of IPC, and sentenced to suffer RI for three months and to pay fine of Rs.1000/- and in default suffer SI for one month.

3. The case of the prosecution, in short, is that the complainant (PW-1) is running a diamond business where both Accused Nos.1 and 2 were working as servants. On 04.01.2002, the complainant received a phone call from other servant stating that doors of the office were opened and cash and other property like diamonds had been stolen. When the complainant went to his office, he saw that the doors were open and all drawers were empty and articles were missing. He also saw that sliding window and partition window were open and broken. On verification, he came to know that cash as well as diamonds to the extent of 2486 carat were missing. The total costs of diamonds were about 60 Lakhs.

4. The prosecution examined PW-1 the complainant, PW-2 a relative of the complainant working in the same business, PW-3 who is a pancha witness, PW-4 who is a panch witness of the recovery panchnama, PW-5 is also a pancha witness, PW-6 a key maker, PW-7 who is a witness at whose residence the stolen property was recovered and PW-8, an investigating officer (IO).

5. Learned counsel for the Revision-Applicant submitted that he is Accused No.2, who is convicted only on the basis of Panchnama dated 06.01.2002, which is a recovery panchnama. She submitted

2.revn.244.2003 @1.doc

that the said panchnama includes a re-iteration of alleged confession (inculpatory statement) given by the Revision Applicant regarding the alleged offence. She submitted that the recovery panchnama records exact carat-weights of the diamonds allegedly recovered on 06.01.2002, when admittedly the stolen property was identified by the complainant on 07.01.2002 when Complainant had brought the weighing machine. She submitted that the said panchnama is faulty and runs afoul of Section 27 of the Indian Evidence Act,1872. She subkitted that except for the recovery-panchnama, there is nothing else to connect Accused No.2 with the alleged offence. She submitted that the recovery has taken place in the house of PW-7 and therefore the possibility of an alternative hypothesis that 'somebody else might also have been involved in the commission of offence' ought to have been overruled. She submitted that since the stolen goods were not found 'in possession of the Revision-Applicant' but in possession of PW-7, PW-7 should have also been investigated. She submitted that reliance placed on Section 114 illustration (a) of the Indian Evidence Act,1872 is illegal. She relied on the Judgment in the case of Manjunath and others Vs. State of Karnataka - 2023 SCC OnLine SC 1421 in support of her submissions regarding Section 27 of the Indian Evidence Act. She further relied upon the Judgment of the Hon'ble Supreme Court in Venkatesh Alias Chandra and another Vs. State of Karnataka - 2022 SCC OnLine SC 765 , especially paragraph 23 thereof, to contend that the practice of prosecuting agency in recording entire statement rather than only that part of the statement which leads to the discovery of facts, is deprecated by the Hon'ble Supreme Court as such a practice has direct tendency to influence

2.revn.244.2003 @1.doc

and prejudice the mind of the Court.

6. On the other hand, the learned APP submitted that the Magistrate Court as well as the Sessions Court had concurrently held that the guilt is proved beyond reasonable doubt and the finding of facts need not to be interfered in the limited jurisdiction under Section 401 of the Criminal Procedure Code, 1973 ('CrPC' for short). He submitted that the inculpatory part of the statement recorded is only in the memorandum of seizure, and the actual recovery panchnama is in the later part. He further submitted that the mention of carat-weight etc., cannot be held to be fatal to the case of conviction, particularly when on the next day, the complainant verified the recovered / stolen property, for which a separate panchnama dated 07.01.2002 was drawn. He submitted that in the panchnama dated 07.01.2002, it is recorded that the complainant has brought the necessary measuring instruments. He submitted that therefore there is no breach of Section 27 of the Indian Evidence Act, certainly not so much as to discard the recovery panchnama dated 06.01.2002 completely. He further submitted that the spot of the recovery that is the residence of PW-7 had come from the exclusive knowledge of Revision-Applicant - Accused No.2. He therefore prayed the dismissal of the revision.

7. I have carefully considered the rival submissions and have perused the record.

8. The Sessions Court has considered the evidence of PW-4 (Mr. Adiratan Shah Modi - Panch witness of Recovery Panchnama dated

2.revn.244.2003 @1.doc

06.01.2002) in paragraph 6 of the impugned order and noted follwing aspects-

8.1. That the said witness was requested to act as pancha and the Revision Applicant - Accused No.2 was present in the police station who had made a voluntary statement that he had kept the stolen property at Bhayandar.

8.2. That the Revision Applicant - Accused No.2 took the police and the panchas to the third floor of one building where one lady (PW-7) was present in the said flat. That thereafter the Accused No.2 asked the said lady to hand over one bag which was accordingly handed over in the presence of PW-4.

8.3. That when the said bag was opened, six packets containing diamonds were seen and certain cash was found.

8.4. That this witness has identified the said property as well as the packets in which diamonds were kept. That this witness was again called to the police station on 07.01.2002, and at that time, the Complainant was present and Accused No.2 was also present and the bag seized by the police was opened and the Complainant was shown the property who had identified it and measured the weight of the diamonds with the help of weighing machine brought by him.

8.5. That the Complainant identified the diamonds to be of his own as well as the cash amount and accordingly, the panchnama was prepared and it was signed by this pancha.

2.revn.244.2003 @1.doc

9. I have perused the oral evidence of PW-4 who was cross- examined on behalf of Accused No.2. The only suggestion that seems to have been given is that Accused No.2 was not present in the police station at all.

10. In this case, undisputedly the incident had occurred in the night between 03rd and 04th January, 2002, and both of accused were arrested on 05.01.2002, and the recovery panchnama has been drawn on 06.01.2002. Considering this proximity of the events, the learned Magistrate has relied on Section 114, illustration (a) of the Indian Evidence Act, and has drawn presumption about the person who is found in possession of stolen property immediately after the theft. The Magistrate has proceeded to consider that during the statement of Accused No. 2 under Section 313 of Cr.P.C., where Accused No.2 tried to give explanation about possession of the stolen property with him that the said bag was handed over to him by Accused No.1. The Magistrate has held that except these words, there is no other justification as to how he has accepted the said bag and for what purpose. It is held that merely by giving the name of Accused No.1, Accused No.2 cannot be said to have reasonably explained the possession of said bag with him. This is how the participation of Accused No.2 has been considered.

11. Considering the dates explained above and immediate recovery of stoles goods at the instance of the Revision Applicant - Accused No.2, no fault can be found with the reasoning adopted by the Magistrate, which is confirmed by the Sessions Court.

2.revn.244.2003 @1.doc

12. In Venkatesh alias Chandra (supra), the Trial Court had relied upon the inculpatory statements of the accused, as recorded in paragraph no. 23 itself. Such is not the case here.

13. I have also perused the panchnama dated 06.01.2002. As rightly pointed out by the learned APP, the said panchnama is written in two parts; the first part indicating the memorandum of seizure and second part recording the actual recovery of the stolen goods. The inculpatory statement recorded in the said panchnama is in the earlier part of the memorandum of seizure. In my view, it cannot be said that the said inculpatory statements have influenced and prejudiced the mind of the Court. The Courts have considered the material on record for conviction. As explained above, except stating that the said bag was handed over to him by Accused No.1, there is no other justification how Accused No.2 could lead to the recovery of cash as well as the diamonds.

14. For above reasons, the judgment of Venkatesh alias Chandra (supra) will not advance the case of the Revision-Applicant.

15. Insofar as the argument that the alternative hypothesis regarding the possibility of somebody else stealing and keeping the stolen goods with PW-7 is concerned, by way of abundant precaution, I have perused the oral evidence of PW-7. This witness has stated that she knows Accused No.2 because he resides in front of her house. She has stated that Accused No.2 had visited her house on 04.01.2002 in the morning at 9:30 am, and handed over one black bag stating that brother of Accused No.2 has locked the room and therefore, she

2.revn.244.2003 @1.doc

should keep the bag. She has further stated that Accused No.2 had promised that he would collect the bag in the evening, however, he did not turn up. She has further stated that two days later on 06.01.2002, Accused No.2 came along with two persons and the police officers and asked her to hand over the bag and therefore, the bag was handed over.

16. At the instance of Accused No.2, a question was asked in the cross examination about residence of the said lady. She has stated in the cross-examination that she is residing at the said address since one and half years. No suggestion seems to have been given about other persons residing in the house of PW-7 to give rise to any possibility of other persons involved.

17. The evidence of PW-7 as considered by the Courts below as well as myself, does not even remotely point to any such alternative hypothesis which was required to be considered. No such argument is shown to have been advanced before the Courts below. In that view of the matter, the said argument of an alternative hypothesis has no merit.

18. Perusal of Judgment of Manjunath and others (Supra) of which paragraphs 26 and 27 are relied upon by the learned counsel for the Applicant, shows that in paragraph 27, the Hon'ble Supreme Court has held that the discoveries made were either from a public place or from an area where other persons also resided and reliance thereupon could not be made. In the said Judgment, the recovery had taken place about a week later as can be seen from paragraph 28

2.revn.244.2003 @1.doc

thereof. Firstly, in the present case, the recovery has not taken place from any public place, and there is nothing on record to indicate that the place from where recovery took place (PW7's house), any other person resided. In that view of the matter, the said Judgment, in principle, will not advance the case of the Applicant.

19. In the aforesaid facts and circumstances, considering the limited jurisdiction that is exercised by this Court under Section 401 of the Cr.P.C., this is not a fit case to interfere with the concurrent finding of the facts. The Revision Application is accordingly dismissed.

20. Before parting, I must appreciate the assistance rendered by learned advocate Ms. Sharma appointed by Court to espouse the cause of Applicant. The Secretary, High Court Legal Services Committee, High Court, Mumbai is directed to pay her honorarium amount quantified at Rs. 15,000/-.

(M.M. SATHAYE, J.)