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2019 DIGILAW 1128 (BOM)

Deepak Yashwant Shinde v. State Of Maharashtra

2019-04-24

REVATI MOHITE DERE

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JUDGMENT Revati Mohite Dere, J. - The Appellants vide Judgment and Order dated 12th June, 2012, passed by learned Additional Sessions Judge, Greater Mumbai, at Sewree in Sessions Case No.635 of 2011, have been convicted and sentenced as under:- - for the offence punishable under Section 392 r/w 34 of the Indian Penal Code to suffer rigorous imprisonment for 4 years each and to pay fine of Rs.1,000/- each, in default, to suffer 2 months rigorous imprisonment each. - Vide the same Judgment and Order dated 12th June, 2012, the learned Additional Sessions Judge, was pleased to acquit co-accused - Suresh alias Bhayalu Babu Rajput (Original Accused No.4) and co-accused '' - Bharat Narayanji Thakkar (Original Accused No.5). - The Appellants were also acquitted of the offence punishable under Section 395 of the Indian Penal Code. 2. According to the prosecution, the incident took place on 9th May, 2011, at about 5.00 to 5.10 p.m., in the office of "Nice Marketing", Room No.3, Upadhyay Compound, Jijamata Road, Pump House, Andheri (East), Mumbai - 400 093, where the complainant - Divya Satham (PW1) was working as a telephone operator. According to the prosecution, the complainant - Divya Satham (PW1) had informed appellant - Yogesh Gawade, to collect the money, pursuant to which, appellant - Yogesh reached the office; that within three minutes, appellants - Deepak Shinde, and Nikesh alias Raj Bharat Thakkar, along with another co-accused entered the office with their faces half covered and took an amount of Rs.40,000/- from the drawer. Appellants - Deepak, Nikesh alias Raj and another co-accused are also alleged to have taken the complainant''s gold ring. After the incident, appellants - Deepak, Nikesh alias Raj and another co-accused left the office, latched the door from outside and fled. The complainant - Divya informed her employer about the incident and thereafter lodged a complaint as against the accused including the appellants for the offences punishable under Sections 392 r/w 34 of the Indian Penal Code. During the course of investigation, the appellants were arrested. At the instance of appellants - Deepak and Nikesh alias Raj, cash and gold ring were recovered from their residence. During investigation, it was revealed that the robbery was committed by the appellants - Deepak, Nikesh alias Raj and other co-accused in connivance and on the instructions of appellant - Yogesh. During the course of investigation, the appellants were arrested. At the instance of appellants - Deepak and Nikesh alias Raj, cash and gold ring were recovered from their residence. During investigation, it was revealed that the robbery was committed by the appellants - Deepak, Nikesh alias Raj and other co-accused in connivance and on the instructions of appellant - Yogesh. In the identification parade, which was held, the complainant - Divya identified the appellants - Deepak and Nikesh alias Raj. On completion of investigation, charge sheet was filed as against the appellants and others for the offence punishable under Section 395 of the Indian Penal Code. Since the offence under Section 395 of I.P.C. was triable by the Sessions Court, the case was committed to the Court of Sessions. Charge was framed, as against the appellants, to which the appellants pleaded not guilty and claimed to be tried. The prosecution in support of his case examined 10 witnesses. PW1 - Divya Satham (complainant) ; PW2 - Ashokrao Phadtare, the owner of the rickshaw. (According to PW2 - Phadtare, Original Accused No.5 was driving his rickshaw at the relevant time); PW3 - Abdul Khalid Malik Shaikh, panch to the recovery of articles, at the instance of appellant - Nikesh alias Raj i.e. cash of Rs.23,070/-, gold ring of the complainant, one envelope, one handkerchief and knife; PW4 - Amirali Ibrahim Tayyab Birya and PW9 - Sanjay Vasant Khade, who had paid an amount of Rs.20,000/- each to the complainant on the date of the incident; PW5 - Vaidyanath Iyyer (not relevant); PW6 - Ashwini Ashok Powale, Nayab Teshildar, who conducted the Test Identification Parade; PW7 - Dattatray Tukaram Phate, panch to the recovery of cash, at the instance of appellant - Deepak; PW8 - A.P.I. Prakash Shantaram Bacchav and PW10 - P.I. Sudhakar Nivrutti Tilekar (Investigating Officers in the said case). The defence of the appellants was that of total denial and false implication. The learned Additional Sessions Judge, after considering the evidence on record, vide Judgment and Order dated 12th June, 2012 convicted and sentenced the appellants, as mentioned in paragraph 1 of this judgment. 3. Learned Counsel for the appellants submitted that there is no material to connect the appellant - Yogesh with the alleged offences. The learned Additional Sessions Judge, after considering the evidence on record, vide Judgment and Order dated 12th June, 2012 convicted and sentenced the appellants, as mentioned in paragraph 1 of this judgment. 3. Learned Counsel for the appellants submitted that there is no material to connect the appellant - Yogesh with the alleged offences. She submitted that the prosecution has not collected any material to show that there was any nexus between the appellant - Yogesh and appellants - Deepak, Nikesh alias Raj and other accused, in the form of Call Detail Record (C.D.R) or any other material. She submitted that the appellant - Yogesh cannot be convicted only on the basis of his conduct and his reactions, when co-accused entered the office. As far as appellants - Deepak and Nikesh alias Raj are concerned, learned counsel submitted that the Test Identification Parade suffers from infirmities. She submitted that according to the complainant, the faces of appellants - Deepak and Nikesh alias Raj were half covered, however, in the Test Identification Parade, which was held, they were not in a similar condition i.e. their faces were not covered. She submitted that even the evidence of recovery at the instance of appellants - Deepak and Nikesh alias Raj is suspect. 4. Learned APP supported the impugned Judgment and Order of conviction and sentence and submitted that no interference was warranted in the same. 5. Heard learned counsel for the parties and perused the papers with the assistance of the learned counsel. 6. A perusal of the evidence of PW1 - Divya Satham (complainant) shows that she was working as a Telephone Operator in "Nice Marketing" at Andheri (East), Mumbai; that her job was to collect the papers pertaining to four wheelers for the purpose of loan, which documents were later submitted in the Bank. She has stated that after the loan was sanctioned, for registration purpose, the papers were taken to R.T.O. Thane, where one Ravi Kadam was working for them. According to PW1 - Divya, Ravi had appointed appellant - Yogesh for collecting the papers as well as cash. She has stated that she knew the appellant - Yogesh since April, 2011 and that appellant - Yogesh had carried a sum of Rs.15,000/- from their office in the month of April, 2011. According to PW1 - Divya, Ravi had appointed appellant - Yogesh for collecting the papers as well as cash. She has stated that she knew the appellant - Yogesh since April, 2011 and that appellant - Yogesh had carried a sum of Rs.15,000/- from their office in the month of April, 2011. According to PW1 - Divya the incident took place on 9th May, 2011, when she was in the office. She has stated that as per the instructions of her employer - Rajesh Kotiyan, she contacted Ravi and apprised him that certain amount is to be received from a party. She has stated that Ravi informed her that after the said amount is received, she should contact the appellant - Yogesh who was in the said area. She has stated that as she had received Rs.40,000/- from two parties i.e. Rs.20,000/- from each of them, she kept an amount of Rs.40,000/- in one envelope and kept the said envelope in the drawer and affixed the stamp of the office on that envelope. She has stated that after receiving the said amount she contacted the appellant - Yogesh; that at about 4.00 p.m., appellant - Yogesh contacted her and enquired, whether there was anybody else in the office and that when she informed him that except herself, nobody else was there in the office, appellant - Yogesh came to the office within 5 to 10 minutes; that the appellant - Yogesh sat on the chair and suddenly three persons with their faces covered with handkerchief entered the office; that the person who had covered his face with red handkerchief pointed out a knife at her and asked her to handover the cash; that pursuant thereto, she opened the drawer of the table and pulled out the envelope and handed over the same to the said person; that one of the accused removed the gold ring from her left hand and also pulled out the cash from her bag, which was hung on the handle of an ironcupboard; that while leaving the accused Nos.2 to 4 threatened her not to apprise the police; that the appellant - Yogesh was standing and did nothing. She has stated that while leaving the office, the said three persons i.e. appellants - Deepak, Nikesh alias Raj and another co-accused latched the door from outside; that she informed her employer about the incident and thereafter went to Meghwadi Police Station, Mumbai and lodged a complaint. She has stated that the appellant - Yogesh was also present with them when they went to the Police Station. PW1 - Divya has also given the description of the person, who removed the gold ring from her hand by pointing out a knife, in the FIR. In the identification parade, PW1 - Divya identified appellant - Deepak as being the person who pointed out the knife and who removed the gold ring from her hand and appellant - Nikesh alias Raj who removed the cash from her drawer. 7. In her cross-examination, PW1 - Divya has admitted that she had not apprised the appellant - Yogesh on phone that Rs.40,000/- were with her. She has also admitted that the appellant - Yogesh was unaware of the timings of the office and of the persons who visit the office. She has also admitted that the appellant - Yogesh had visited her office only once prior to the incident i.e., in the month of April, 2011 and that it was within 3 to 4 minutes after the arrival of the appellant - Yogesh that the other three persons entered the office. PW1 - Divya has identified the ring which was seized at the instance of appellant - Nikesh. PW1 - Divya, although in her cross-examination has admitted that appellants - Deepak, Nikesh alias Raj and other co-accused had covered their faces, however, has stated that she had identified them as she had seen their eyes and head and as their faces were covered with handkerchiefs below the nose. 8. The evidence of PW4 - Amirali Birya and PW9 - Sanjay Khade, shows that an amount of Rs.20,000/- each was paid by them to PW1 - Divya (complainant) on 9th May, 2011. As far as the appellant - Nikesh alias Raj is concerned, there is recovery of a gold ring, cash of Rs.23,070/-, envelope, handkerchief and knife, at his instance and a sum of Rs.8,000/- and a handkerchief at the instance of the appellant - Deepak. As far as the appellant - Nikesh alias Raj is concerned, there is recovery of a gold ring, cash of Rs.23,070/-, envelope, handkerchief and knife, at his instance and a sum of Rs.8,000/- and a handkerchief at the instance of the appellant - Deepak. Both the appellants - Deepak and Nikesh alias Raj have been identified in the test identification parade, which was held by PW6 - Ashwini on 16th June, 2011. As far as the formalities of conducting the test identification parade are concerned, there is compliance of the same. As far as identification of appellants - Deepak and Nikesh alias Raj is concerned, PW1 - Divya has clearly stated that she had identified them on the basis of their eyes and head. She has stated that the faces were covered below the nose and hence she has identified them. It is thus evident that as far as appellants - Deepak and Nikesh alias Raj are concerned, there is ample evidence to connect them with the alleged offences. However, as far as the appellant - Yogesh is concerned, the evidence on record, is not sufficient to connect the appellant - Yogesh with the alleged offences. The prosecution has not collected or adduced any evidence to show that the appellant - Yogesh was known to the co-accused i.e. appellants - Deepak, Nikesh alias Raj and another co-accused. No C.D.R was placed on record to show that the appellant - Yogesh was in touch with the co-accused. Admittedly, the appellant - Yogesh was present in the office with the complainant - PW1 - Divya, when the appellants - Deepak, Nikesh alias Raj and other co-accused entered the office after 3 to 4 minutes. It is pertinent to note, that according to PW1 - Divya, appellant - Yogesh reached the office within 5 to 10 minutes. There is nothing to show that appellant - Yogesh had knowledge that he would be called that day, as it is not the prosecution case, that appellant - Yogesh would visit the office everyday to collect money. Infact, the evidence of PW1 - Divya shows, that the appellant - Yogesh had been to the office only once prior to the incident in April, 2011. How a person reacts in a particular situation, one cannot presume or anticipate. Infact, the evidence of PW1 - Divya shows, that the appellant - Yogesh had been to the office only once prior to the incident in April, 2011. How a person reacts in a particular situation, one cannot presume or anticipate. Merely because appellant - Yogesh did not take part or did not react, does not show his complicity in the alleged offences. Sometimes survival instinct may also be a reason not to react. The evidence on record is not sufficient to connect the appellant - Yogesh with the alleged offences and therefore the appellant - Yogesh deserves to be acquitted of the offences for which he is convicted. 9. Accordingly, Appeal No.867 of 2012 is allowed. The appellant - Yogesh is acquitted of the offences punishable under Section 392 r/w Section 34 of the Indian Penal Code. It is informed that the appellant - Yogesh has undergone the entire sentence and is released. Fine amount, if paid, be returned to the appellant - Yogesh. 10. As far as appellants - Deepak Shinde and Nikesh alias Raj Thakkar, are concerned, the conviction and sentence awarded to them is confirmed. Criminal Appeal No.1195 of 2012 is accordingly dismissed. 11. I would like to record a word of appreciation for the able assistance provided and the efforts taken by Ms.Megha Bajoria, as an appointed advocate, in conducting the appeals. High Court Legal Services Committee to award fees of the learned Appointed Advocate, as per Rules. Order accordingly.