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2015 DIGILAW 2570 (BOM)

State of Maharashtra v. Shirish

2015-12-09

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. (Oral) – Being aggrieved by the judgment and order dated 31/07/2002 passed by the Judicial Magistrate First Class, Bhandara in Regular Criminal Case No.100/2001, by which the trial Judge recorded the order of acquittal of respondent-Shirish Vasant Mutkure for the charge under Sections 457 and 380 of the Indian Penal Code, the present appeal was filed by the State of Maharashtra. 2. In support of appeal, Ms. N.P. Mehta, learned Assistant Public Prosecutor for the State vehemently submitted the reasoning given by the trial Judge for acquitting the respondent is clearly perverse and the trial judge ignored the fact that recovery of the stolen goods was made from the respondent. She further submitted that the respondent did not give any explanation as to how the stolen goods came into his possession and, therefore, in the case of theft or housebreaking, it is not always possible to have a direct evidence and, therefore, the evidence of recovery from his possession is the clinching evidence, but the trial Judge had no reason to ignore such important piece of evidence and acquitted the respondent. She further submitted that the order of acquittal deserves to be reversed, as the 14 cases have been registered against the respondent of similar nature i.e. theft and housebreaking and, thus he is a regular thief and must be punished. 3. Per contra, Ms. S.H. Bhatia, learned appointed Counsel for the respondent-accused submitted that the view taken by the trial Court is a possible view and, therefore, this Court should not interfere in the order of acquittal. She then submitted that the submission made by Ms. Mehta, learned A.P.P. for the State in respect of earlier 14 cases is to prejudice the mind of the Court, but fact remains that he was acquitted in some cases and some cases are pending and, therefore, the same cannot be taken into consideration. She further submitted that the respondent was in jail as an under trial for about 14 months and now for further two weeks due to the arrest made by the police on 24/11/2015. She further submitted that the respondent was in jail as an under trial for about 14 months and now for further two weeks due to the arrest made by the police on 24/11/2015. She then submitted that after 2008, not a single case of the similar type was registered against the respondent, because his wife has prevailed over him to desist from his ways of committing theft and housebreaking, and thus he has mended his ways and this Court should, therefore, give a chance of improvement. She then submitted that the wife of respondent has to maintain her two kids and requires the presence of her husband with her for upbringing the children as she is also working and earning. The learned Counsel, therefore, prayed for leniency in case of reversal of order of acquittal. 4. I have considered the reasons given by the learned trial Judge in the impugned judgment and order. I do agree with the submission made by the learned A.P.P. that there may not be evidence in the nature of direct evidence in the cases of theft and housebreaking. It is, however, a fact that the prosecution has proved that the recovery was made of the identified stolen articles from the respondent-accused. The clinching evidence was also in the form of a fixed deposit receipt, which was prepared in favour of his wife after selling the stolen property namely the gold ornaments. It is surprising that the trial Judge rejected the evidence of Police Officer by saying that PW-3 Vasant Shirbhate, the Investigating Officer, could not be relied for the purpose of recovery, because he was an interested witnesses. There is no other reason given for rejecting the testimony of PW-3 Vasant Shirbhate. In my opinion, the reason given by the trial Judge rejecting the evidence of PW-3 Vasant Shirbhate is clearly faulty. To expect the independent evidence in such a case without accepting the evidence of PW-3 Vasant Shirbhate, merely because he was a Police Officer, is not legal and proper. The Court should not have rejected his testimony in respect of recovery of the property stolen by the respondent. To expect the independent evidence in such a case without accepting the evidence of PW-3 Vasant Shirbhate, merely because he was a Police Officer, is not legal and proper. The Court should not have rejected his testimony in respect of recovery of the property stolen by the respondent. I quote the reasons to that effect thereby the trial judge has observed from paragraph 5, which reads thus : "No doubt there is a corroboration to the evidence of PW-3 Vasant Shirbhate in the form of PW-1 Mitaram, so far as recovery of Articles A and B are concerned. PW-3 Vasant Shirbhate, I.O. is the Police Officer and, therefore, he is interested witness of the prosecution and, therefore, he is bound to support prosecution. After careful scrutiny of the evidence of PW-1 Mitaram, I do not find it safe to rely for inviting conviction to the accused for the reasons, there is no independent corroboration to the evidence of PW-1 Mitaram." 5. From the above, it is clear that the trial Judge expected independent or corroborative evidence, which is not possible in the cases of theft and housebreaking. The trial Judge, therefore, clearly committed an error in acquitting the respondent. That apart, it is seen that there were 14 cases against the respondent of similar nature i.e. theft and housebreaking and it is stated that in some of the cases, he has already been acquitted. Thus, it clearly appears that the respondent was a regular thief, which was his profession. 6. The sentence provided for the offences punishable under Sections 457 and 380 of the Indian Penal Code is higher. The sentence, which should be imposed on the respondent for these offences could be on a higher side. But, looking to the fact that after 2008, the respondent has not committed any similar type of offence and looking to the further fact that wife of the respondent has to look after two small children and she wants her husband-respondent to be with her and also looking to the further fact the respondent has already undergone about 14 months imprisonment and further imprisonment from 24/11/2015 till date, I think the interest of justice should be sub-served, if the respondent is sentenced to imprisonment already undergone. Hence, I pass the following order : ORDER 1. Criminal Appeal No.613 of 2002 is allowed. 2. Hence, I pass the following order : ORDER 1. Criminal Appeal No.613 of 2002 is allowed. 2. The impugned judgment and order dated 31/07/2002 passed by the Judicial Magistrate First Class, Bhandara, in Reg. Criminal Case No.100/2001 acquitting the respondent-accused is set aside. 3. Respondent-Shirish s/o Vasant Mutkure is hereby convicted for the offences punishable under Sections 457 and 380 of the Indian Penal Code and sentenced to suffer rigorous imprisonment, which he has already undergone. 4. The respondent-accused be released forthwith from jail, if not required in any other crime. 5. Fees for learned Counsel appointed for the respondent is quantified to Rs. 5,000/- (Rupees Five Thousand Only).