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2014 DIGILAW 1878 (BOM)

State of Maharashtra v. Mohammad Jave

2014-08-26

ANUJA PRABHUDESAI, P.V.HARDAS

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JUDGMENT : P.V. HARDAS, J. 1. This is an Appeal against acquittal filed by the Appellant-State questioning the correctness of the Judgment of the District Judge - IV and Assistant Sessions Judge dated 28.7.2009, in Sessions Case No. 60 of 2007 acquitting the Accused/Respondents 1 to 3 for offence punishable under Sections 395, 395 r/w. 397 of the Indian Penal Code and under Section 3 r/w. 25 of the Indian Arms Act. This Court had granted leave to file Appeal and had admitted the Appeal on 8.3.2010 and had directed that action under Section 390 of the Code of Criminal Procedure be taken, it further appears that Respondent No. 2/Accused No. 2 was duly served but Respondent Nos. 1 and 3 could not be served. This Appeal has been pending for the last 4 years for effecting service on Respondent Nos. 1 and 3. With the assistance of the learned APP we had perused the findings recorded by the Trial Court and we had also considered the evidence of the witnesses, which was made available for our perusal by the learned APP and on such perusal, according to us, this Appeal need not be kept pending for effecting service on Respondent Nos. 1 and 3. By our order dated 25.8.2014, we had appointed Advocate Mr. Aniket Vagal, a Counsel to represent Respondent No. 2, who has been served in the Appeal. 2. The Respondent/Accused were prosecuted for the aforesaid offences on the allegations that on 15.2.2006, the Respondents had committed dacoity in the shop of PW-1 Hitendrakumar Jain and had committed dacoity of 4 gold chains worth Rs. 24,000/-. It is also allegation of the prosecution that the accused were armed with revolver and knives. 3. In support of its case, prosecution had examined PW-1 Hitendrakumar, who deposed that at about 1.30 p.m. one person entered his shop and inquired from him if a ring of white gold was available in the shop. Hitendrakumar informed the accused that ring of white gold was not available. The accused then told Hitendrakumar that he would give white gold and requested Hitendrakumar to prepare the ring. The other accused came behind him and thus 4 accused had entered his shop. The first accused was armed with revolver while 2 other accused were armed with knife and the 4th accused was carrying only plastic bags. The accused then told Hitendrakumar that he would give white gold and requested Hitendrakumar to prepare the ring. The other accused came behind him and thus 4 accused had entered his shop. The first accused was armed with revolver while 2 other accused were armed with knife and the 4th accused was carrying only plastic bags. They brandished the revolver at Hitendrakumar and asked him to sit down. Thereafter, a bullet was fired at the head of Hitendrakumar and Hitendrakumar sustained a contused lacerated wound on his forehead. Meanwhile, PW-4 Mukesh, a servant in the shop of Hitendrakumar sounded the alarm and the accused then fled from the shop carrying with them 4 gold chains. Hitendrakumar was referred for medical examination and was examined by PW-10 Dr. Maneka Patil, who found a contused lacerated wound on his forehead 2 x 1 x 0.5 c.m. and abrasion 1 x 1 c.m. irregular in shape. The injury certificate is at Exhibit 80. 4. In order to establish the complicity of the accused with the commission of the crime, prosecution has examined PW-5 Sikandar Singh, who deposed that Accused No. 3 while in police custody had given a memorandum to point out the shop of the goldsmith to whom one chain had been sold. Memorandum of Accused No. 3 was scribed in the presence of panchas at Exhibit 49. Accused No. 3 led the police and the panch to the Swama-Ganga Jewellery shop. From the said shop the Police seized a chain under panchnama at Exhibit 51. Prosecution has not been able to produce any receipt issued by the jeweller in the name of Accused No. 3 regarding the purchase. Thus, the learned Judge found that the prosecution had not been able to establish the sale of the gold chain by Accused No. 3 to the jeweller. Moreover, there is no identification of the said chain. 5. Prosecution had examined PW-6 Naresh Jain, who deposed that one Nalini Tevar had come to his shop and had sold 2 chains about 2 months prior to 31.8.2006. The said chains were seized by the police. No nexus has been established by the prosecution between the accused and the said Nalini Tevar who had sold the chains. 6. Prosecution also relied on the testimony of PW-7 Satish More in respect of the seizure of a knife at the behest of Accused No. 2 Santosh. The said chains were seized by the police. No nexus has been established by the prosecution between the accused and the said Nalini Tevar who had sold the chains. 6. Prosecution also relied on the testimony of PW-7 Satish More in respect of the seizure of a knife at the behest of Accused No. 2 Santosh. The said knife has not been identified as the same knife with which Accused No. 2 was armed on the day of the incident. 7. The Trial Court further found that no reliance could be placed on the test identification parade which had been held 7 months after the incident. Moreover, the Trial Court came to the conclusion that there was no satisfactory evidence that the witnesses had no opportunity of seeing the accused before the holding of the test identification parade. In respect of the charge under the Arms Act, the Trial Court found that there was no sanction of the District Magistrate and consequently, the said offence against the Accused was not proved. 8. We have heard the learned APP and the learned Counsel appointed on behalf of the accused and on perusal of the findings recorded by the Trial Court as well as on the basis of the evidence on record, in our opinion, the Judgment of the Trial Court needs no interference. 9. Consequently, Criminal Appeal is dismissed confirming the acquittal of the Respondents. 10. The non-bailable warrants issued against Accused Nos. 1 and 3 stand cancelled. Fees payable to the learned Counsel appointed for the Appellant quantified at Rs. 5,000/-. Appeal Dismissed.