(a) First Informant Ashish Chitnis (PW1) was working as a Supervisor as well as a driver of the jeep of Purushartha Petrol pump owned by one Anusuya Padir.PW2 Pravin Darwada was working as an Accountant at the said Petrol pump.PW3 Balkrishna Padir is son of Anusuya Padir, who happens to be owner of the said Petrol pump.They all used to reside at Neral whereas the Petrol pump was situated at Kalamboli.These witnesses used to come to the Petrol pump at Kalamboli by a jeep bearing registration no.MH-46- P-4446 of Mahendra make owned by PW3 Balkrishna Padir.(b) As usual on 26th June 2013 PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir came to the Petrol pump at Kalamboli in the morning hours.After completing the day's work, they left the Petrol pump in the evening hours for going back to Neral.On the way, then went to avk 3::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc pick up Anusuya Padir, who, at the relevant time, was at the house of her daughter situated at Sector No.4, Nildhara Society, New Panvel.On reaching Nildhara society of New Panvel, the jeep was parked in front of the gate of the society and PW3 Balkrishna Padir went to the house of his sister for taking his mother Anusuya Padir.PW1 Ashish Chitnis and PW2 Pravin Darwada were sitting in the jeep with closed window glasses by putting on the Air conditioner.MH-46-P-4446, there was robbery of valuables including bags.On this aspect, evidence of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir, so also that of PW5 Vinaykumar Bhola Singh - panch witness, is material.Congruous and consistent evidence of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir shows that on the day of the incident i.e. on 26 th June 2013, they reached to their workplace i.e. Purushartha Petrol pump, Kalamboli, in the morning at about 9 - 9.30 a.m. It is further seen from their evidence that they left the petrol pump at about 4.45 p.m. by jeep bearing registration no.MH-46-P-4446 of Mahendra make for going back to Neral.On the way, they went to Nildhara Society in Sector 4 of New Panvel for picking up Anusuya Padir from the house of her daughter.6 What happened thereafter is disclosed by PW1 Ashish Chitnis and PW2 Pravin Darwada.As per their version, at about 5.30 p.m. of 26th June 2013, when they both were sitting in the vehicle by putting on the Air Conditioner, all of a sudden four persons came and encircled the jeep.These four persons then started breaking the windshield of the vehicle by iron pipes and sickles.They were threatening the inmates of the jeep by uttering that if they attempted to alight, they would be killed.PW1 Ashish Chitnis and PW2 Pravin Darwada further deposed that, then those four persons had broken the windshield of the jeep and took three bags viz., a leather bag, a green coloured bag and a sack which were kept in the jeep.As per version of PW2 Pravin Darwada, out of the articles taken from the jeep, his sack was also looted by the robbers.PW1 Ashish Chitnis and PW2 Pravin Darwada further deposed that when the robbers were taking out the bags from the avk 11::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc jeep, they started shouting.PW3 Balkrishna Padir corroborated their version by stating that on hearing shouts, he rushed to the gate of the society and saw PW1 Ashish Chitnis and PW2 Pravin Darwada alighting from the jeep and shouting "thief thief".All these three witnesses deposed that four robbers ran along with the bag and boarded the Maruti Esteem car bearing registration no.10 The Mahendra Jeep bearing registration no.The appellant/accused has communicated to this court that he has completed sentence of more than 6 years of rigorous imprisonment out of total sentence of 7 years imposed on him, avk 1::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc and therefore, his appeal be heard finally.By this appeal, the appellant/accused no.2 is challenging the judgment and order dated 31st March 2017 passed by the learned Special Judge under Maharashtra Control of Organized Crimes Act, 1999 (hereinafter referred to as MCOC Act for the sake of brevity) and Additional Sessions Judge, Raigad at Alibaug in Special MCOC Case No.1 of 2014 thereby convicting appellant/accused no.2 of offences punishable under Sections 392 and 427 read with 34 of the Indian Penal Code.For the offence punishable under Section 392 read with 34 of the Indian Penal Code, the appellant/accused no.2 is sentenced to suffer rigorous imprisonment for 7 years apart from direction to pay fine of Rs.500/- and, in default, to undergo further rigorous imprisonment for 1 year.For the offence punishable under Section 427 read with 34 of the Indian Penal Code, he is sentenced to suffer simple imprisonment for 1 month apart from payment of fine of Rs.500/- and in default, simple imprisonment for 1 week.Substantive sentences are directed to run concurrently by the learned trial court.avk 2::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc 2 Facts in brief, leading to the prosecution of the appellant/accused no.2 along with co-accused, can be summarized thus :::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(c) At about 5.30 p.m., when PW1 Ashish Chitnis and PW2 Pravin Darwada were waiting for PW3 Balkrishna Padir and his mother by sitting in the jeep, all of a sudden four robbers came there.Those robbers were having weapons like sickles and iron pipes.They started breaking the glasses of the jeep and threatening the inmates of the jeep.By breaking the back windshield of the jeep, the robbers took away three bags from the jeep.First Informant PW1 Ashish Chitnis and PW2 Pravin Darwada started shouting and PW3 Balkrishna avk 4::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc Padir also came out of the house of his sister.They witnessed the robbers running away from the spot by a car of Maruti Esteem model bearing registration no.In this way, according to the prosecution case, the appellant/accused no.2 along with his three associates had committed robbery of three bags containing an amount of Rs.13,000/-, cell phone, ATM cards and other sundry items.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(d) Immediately after the incident of robbery, PW1 Ashish Chitnis accompanied by PW2 Pravin Darwada and PW3 Balkrishna Padir started proceeding towards the police station for reporting the matter.On the way to the police station near Khanda Colony, they all witnessed that the Maruti Esteem car in which the robbers fled from the spot, met with an accident and lying at the flyover.They came to know that one of the robbers was caught by police, as the car met with the accident, and he was taken to the MGM Hospital for medical treatment.PW1 Ashish Chitnis then lodged the First Information Report (FIR) Exhibit 27A which avk 5::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc has resulted in registration of Crime No.52 of 2013 for the offence punishable under Section 392 read with 34 of the Indian Penal Code with Police Station Khandeshwar.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::(e) PW13 Pratap Bhosale, Assistant Police Inspector, conducted investigation.Accused no.1 Anandraj Harijan, who was injured in the accident of the Maruti Esteem car, came to be arrested.His voluntary disclosure statement Exhibit 58 came to be recorded on 27th July 2013 in presence of PW8 Sambhaji Jadhav - panch witness.Arrested accused were put up for identification parade and according to the prosecution case, the appellant/accused no.2 came to be identified by PW2 Pravin Darwada.avk 6::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.docPW15 Sheshrao Suryawanshi, Additional Commissioner of Police, then took up further investigation of the crime in question.After seeking sanction of PW16 Ashok Kumar Sharma, Commissioner of Police, the appellant/accused no.2 as well as the co-accused came to be charge-sheeted.(g) The learned trial court framed Charge for offences punishable under Sections 3(1)(2), 3(2) and 3(4) of the MCOC Act as well as under Sections 395 and 427 of the Indian Penal Code and under Section 37(1) read with 135 of the Maharashtra Police Act against the appellant/accused no.2 and the co-accused.They pleaded not guilty and claimed trial.avk 7::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc(h) In order to bring home the guilt to the appellant/accused no.2 and the co-accused, the prosecution has examined in all seventeen witnesses.Reliance is also placed on the documentary evidence.The defence of the appellant/ accused no.2 was that of total denial.(i) After hearing the parties, by the impugned judgment and order, the learned trial court was pleased to convict the appellant/accused no.2 as well as the co-accused Anandraj Harijan for offences punishable under Sections 392 and 427 of the Indian Penal Code.They were acquitted of other offences alleged against them.Co-accused Kannan Tewar came to be acquitted of all offences.Accordingly, the appellant/accused no.2 came to be sentenced, as indicated in the opening paragraph of this judgment.3 I have heard Mr.Nitin Sejpal, the learned counsel appearing for the appellant/accused no.2, at sufficient length of time.He had not given specific description of the robbers while recording his statement.As such, belated identification of the appellant/accused no.2, in the identification parade held after few months, is of no consequence.He further argued that recovery of a bag cannot constitute legally admissible evidence against the appellant/accused no.2, as such type of bags are easily available in the market.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::4 The learned APP supported the impugned judgment and order of conviction and resultant sentence.1 1994 SCC (Criminal) 292 avk 9::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc 5 I have carefully considered the rival submissions and also perused the record and proceedings including the oral as well as documentary evidence.At the outset, let us examine whether the prosecution has established the fact that by smashing the windshield of the jeep bearing registration no.These three witnesses have cogently stated that the jeep was parked in a narrow lane in front avk 10::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc of the gate of Nildhara society and then PW3 Balkrishna Padir went to fetch his mother Anusuya Padir from the house of his sister.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::MH-04-AX-1755 and fled from the spot.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::7 As per congruous version of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir, then they proceeded to lodge report of the incident to the police station and on the way they had seen that the Maruti Esteem car, in which the robbers fled from the spot, met with an accident near Khanda Colony.The trio then proceeded further and PW1 Ashish Chitnis lodged report Exhibit 27A of the incident to Police Station Khandeshwar.8 At this juncture, it is apposite to refer to evidence of PW6 Gaurav Kumbhkarna, Police Constable attached to Khandeshwar Police Station.On the way, they noticed Maruti Esteem car bearing registration no.MH-04-AX-1755 being driven in rash and negligent manner.In the words of PW6 Gaurav Kumbhkarna, that car had given a cut to the passers-by, and therefore, they chased the said car.During the course of that chase, the car gave dash to the divider of the road and had turned turtle.Four persons alighted from that vehicle.PW6 Gaurav Kumbhkarna deposed that he and his colleague constable caught accused no.1 Anandraj Harijan, who was injured in that accident and had taken him to the MGM Hospital, Kamothe, for medical treatment.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::9 Evidence of PW5 Vinaykumar Bhola Singh - panch witness shows that on the day of the incident i.e. on 26 th June 2013 itself, he along with the co-panch had visited the spot of the incident where the Maruti Esteem car bearing registration no.MH- 04-AX-1755 met with an accident.As per version of this witness, he along with PW13 Pratap Bhosale, Assistant Police Inspector, avk 13::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc inspected that Maruti Esteem car and accordingly, Panchnama Exhibit 48 came to be prepared.Version of PW5 Vinaykumar Bhola Singh and that of PW13 Pratap Bhosale, Assistant Police Inspector, shows that the Maruti Esteem car was damaged and articles such as green coloured bag, one iron pipe and one sickle were found in that car.Accordingly, Panchnama Exhibit 48 was prepared.There is nothing in cross-examination of both these witnesses to disbelieve their version about witnessing the damaged Maruti Esteem car and seizure of green coloured hand- bag, iron pipe and a sickle from it.Panchnama Exhibit 48 corroborates the version of both these witnesses.This evidence coupled with the fact that accused no.1 Anandraj Harijan was apprehended from the spot of the incident by PW6 Police Constable Gaurav Kumbhkarna corroborates the version of PW1 Ashish Chitnis, PW2 Pravin Darwada and PW3 Balkrishna Padir in respect of the incident of robbery.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::MH-46-P- 4446 was also inspected by police in presence of panch witnesses.avk 14::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::Perusal of this panchnama shows that all windshields of the Mahendra Jeep bearing registration no.MH-46-P-4446 were found broken.In this regard, material elicited from cross-examination of PW1 Ashish Chitnis is relevant.Cross-examination of this witness reveals that the incident took avk 15::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc place in the crystal clear light of the day.Glasses / windshield of the Mahendra Jeep were transparent and inmates of that jeep namely PW1 Ashish Chitnis and PW2 Pravin Darwada were in a position to see even the robbers running away after the incident.It is also elicited from the cross-examination of PW1 Ashish Chitnis that he had an opportunity to see which of the robbers was driving the Maruti Esteem car while fleeing away from the spot of the incident.His cross-examination further reveals that the actual incident of breaking open the windshields of the Mahendra Jeep and taking away the bags from that vehicle took place in about five minutes and except from the front side, the Mahendra Jeep was attacked from the remaining three sides.The Maruti Esteem car by which the robbers came and subsequently fled from the spot was kept at a distance of about 15 feet from the Mahendra Jeep.This material elicited from the cross-examination of PW1 Ashish Chitnis, as such, shows that he as well as co-passenger PW2 Pravin Darwada had seen the robbers alighting from the Maruti Esteem car, breaking open the windshields of the Mahendra Jeep, taking away the bags and running away from the avk 16::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc spot of the incident by boarding the Maruti Esteem Car in broad daylight.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::12 Evidence of PW2 Pravin Darwada is categorically clear on the aspect that in all four robbers came around the Mahendra Jeep and had broken the glasses of the vehicle with the help of sickle and iron pipe by giving threats.He has specifically deposed that after breaking open the backside windshield of the Mahendra Jeep, they had taken away the bags.He stated that after alighting from the Mahendra Jeep, they saw robbers sitting in the Maruti Esteem Car bearing registration no.MH-04-AX-1755 and they fled from the spot.His chief-examination reveals that his sack containing ATM card, Election card, Driving license and cash amounting to Rs.1,000/- came to be looted along with other articles from the Mahendra Jeep.On the way to the police station, he saw the very same Maruti Esteem Car lying on the road after having met with an accident.This witness identified the appellant/accused no.2 as the robber who had broken the glasses of Mahendra Jeep by means of a sickle.He identified his sack avk 17::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc which was looted in the incident of robbery.As per his version, the robbers were of light complexion and one of them was having beard.Evidence of this witness regarding identification of the appellant/accused no.2 is sought to be assailed on the ground that he had not given specific description of the assailant who was driving the car and who had given blows of sickle on the windshields of the Mahendra Jeep.In paragraph 5 of his cross- examination PW2 Pravin Darwada has admitted the fact that he had not given specific description of the robbers and has further stated that the incident of robbing had taken place on the backside of seat of the Mahendra Jeep.He admitted that till completion of the entire incident of the robbery, he had not seen backside of the vehicle.This admission is sought to be construed as demonstrating the fact that PW2 Pravin Darwada had not turned his neck to the backside of the car during happening of the robbery.What was put to him is he had not seen backside of the Mahendra Jeep till completion of the entire incident.This witness has given answer in affirmative to this question because as avk 18::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 ::: 1-APPEAL-348-2017-J.doc per his version, he was sitting inside the Mahendra Jeep till the entire episode of robbing was over.There was no question of his getting outside the Mahendra Jeep during happening of the incident of robbery.Therefore, this admission is of no assistance to infer that PW2 Pravin Darwada had not seen the robbers who were smashing the windshields of the Mahendra Jeep during the time span of about five minutes in the crystal clear day light.On the contrary, considering the fact that the entire incident of robbing continued for a fairly long period of five minutes, it needs to be held that this witness had an opportunity to see the robbers, and therefore, identification of the appellant/accused no.2 as one of the robbers deposed to by PW2 Pravin Darwada cannot be doubted.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::13 Evidence of PW2 Pravin Darwada shows that he had given description of the robbers to police though he admitted that the description was not very specific.There is no material on record to infer that this version of PW2 Pravin Darwada has surfaced by way of omission.::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::His evidence shows that immediately after his arrest, the appellant/accused no.2 had given a confessional statement to the effect that he would show the bag.Evidence of PW8 Sambhaji Jadhav shows that the appellant/accused no.2 had led the panch witness and police party to Village Tembhude and from the bamboo shrubs near the compound of Reliance Company, he took out a black coloured sack which was seized by police.True it is that the recovery was from the open place, but evidence of this panch witness coupled with Memorandum statement of the appellant/accused no.2 goes to show that the appellant/accused no.2 was exactly knowing the place where the bag was kept concealed.At his instance, the same was recovered.avk 20::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc 15 PW2 Pravin Darwada has identified the bag/sack recovered at the instance of the appellant/accused no.2, as belonging to him which was looted in the robbery.Thus, by this evidence, the prosecution has established the fact that the appellant/accused no.2 was knowing the place where the looted sack was kept concealed.However, evidence of PW2 Pravin Darwada shows that he was using the sack regularly and as such, he was in a position to identify the same.16 With this evidence adduced by the prosecution, it is established that the appellant/accused no.2 was one of the members of the gang which robbed the valuable articles from the Mahendra Jeep at the time of the incident.No infirmity can be found as such with the impugned judgment and order of conviction and the resultant sentence.Therefore, the order : avk 21::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::1-APPEAL-348-2017-J.doc ORDERi) The appeal is dismissed.ii) In view of disposal of the appeal, Criminal Application No.2049 of 2018 also stands disposed off.(A. M. BADAR, J.) avk 22::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::::: Uploaded on - 07/01/2019 ::: Downloaded on - 11/01/2019 05:10:51 :::

Sections cited: Section 427 in The Indian Penal Code, Section 392 in The Indian Penal Code, Section 395 in The Indian Penal Code