1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.131 OF 2010 WITH CRIMINAL APPLICATION NO.127 OF 2010 Mohd. Mobin Sadique Khan ...Applicant. (Org. Accused) v. The State of Maharashtra ...Respondents. Mr. Sujit N. More, adv. For the Applicant. Ms. S.V.Gajare, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 11, 2010 P.C. 1 Heard the learned counsel for the applicant and the learned APP. Perused the copies of the evidence recorded before the trial Court. 2 Prosecution case in brief is that P.W.1 Mustafa had parked his Yamaha motor cycle bearing no. MH-04 K 2715 outside his hotel at Salt pan Road, Wadala. He closed the shutter of the shop and went to the house. Next morning, he found that the motor cycle was missing, therefore, he lodged a report exhibit P-3 at Antop Hill police station. Report was reduced to writing by P.W.4 PSI Khot. About one month after that said motor cycle with changed number plate was found in 2 possession of the accused. He could not explain possession and, therefore, motor cycle was seized from the accused under Section 41(d) of the Cr.P.C., by PSI Pandurang Bhosale, who was then attached to Borivali police station. With permission of the Court, he started investigation and then it was revealed that said motor cycle pertained to the crime no.304 of 2002 of Antop Hill Police Station. Therefore, motor cycle and the accused both were transferred to Antop Hill Police Station, with permission of the Court. After investigation charge-sheet was filed against the accused. 3 Accused pleaded not guilty to the charge under Section 379 of the I.P.C. On behalf of the prosecution, in all five witnesses were examined. Relying upon the prosecution evidence, the trial Court convicted the accused for the offence punishable under Section 379 of the I.P.C., and sentenced him to undergo R.I., for six months and to pay a fine of Rs.4,000/-. The order of conviction and sentence was challenged by the accused/applicant in Appeal No.256 of 2008. The appeal was dismissed by the learned Additional Sessions Judge, Gr. Bombay. The conviction and the dismissal of the appeal are challenged in the present revision application. 4 On perusal of the evidence led by the prosecution, it appears 3 that there is no serious challenge to the evidence of P.W.1 Mustafa, who deposed that he owned Yamaha motor cycle bearing no. MH-04 K 2715 of black color. His evidence also shows that on 8.9.2002, he had parked it outside his hotel at Salt Pan Road and then he went to his house. Next morning, he found that the motor cycle was missing and he lodged report, Ex.P-3. Evidence of P.W.4 is only about the registration of the F.I.R. , and the offence. Evidence of P.W.3 Constable Tanaji Sanap and P.W.5 Pandurang Bhosale from Borivali police station reveals that accused Mubin Khan was wanted accused in Crime No.300 of 202 of Borivali Police station. On receipt of information, he alongwith other staff and one co-accused Vinod Shirodkar, went to Santosh Nagar area. At about 7.45 a.m. , accused came to that side on motor cycle. Co- accused Vinod Shirodkar made gestures and, therefore, PSI Pandurang Bhosale and P.W.4 Constable Tanaji caught him. He was on the motor cycle but he could not give explanation about the said motor cycle. Number plate on the Yamaha motor cycle in possession of the accused had number MH-01 C 567. The said motor cycle was seized under panchanama, Ex.P-5 wherein engine number, chassis number of the motor cycle were also noted down. Accused was also taken in custody by PSI Pandurang Bhosale. Motor cycle was seized under Section 41(d) of 4 the Cr.P.C., on suspicion. Therefore, he secured permission from the Court under Section 155(2) of the Cr.P.C., for investigation. During the investigation, it was revealed that number plate of the motor cycle was changed and the real number was MH-04 K 2715 and it pertained to crime no.304/2002 of Antop Hill police station. After that P.W.1 Mustafa was called and he identified the motor cycle. According to him, number plate, seat, silencer pipe and guard of the motor cycle were changed. Dicky was also removed. However, he identified the motor cycle on the basis of chassis and engine number of the same. Evidence of PSI Pandurang Bhosale was corroborated by P.W.4 constable Tanaji Sanap. P.W.2 Bhaurao Gajabhe, who was panch witness of the recovery of the motor cycle from the accused did not support the prosecution and was declared hostile. However, taking into consideration the material on record, I find no substance to disbelieve evidence of PSI Pandurang Bhosale and constable Tanaji Sanap. 5 From the evidence on record, it is clear that motor cycle of P.W.1 Mustafa was parked outside his hotel at Salt Pan road during the night and next morning, it was found stolen. It means theft of the motor cycle was committed during that night. After one month that motor cycle with changed number plate was found in possession of the 5 accused. Accused could not offer any explanation about the possession. In such circumstances, a presumption could be raised under Section 114 of the Evidence Act that the accused had committed theft of the same. Both the Courts gave concurrent findings against the accused. Record does not reveal any error or illegality in the findings of the Courts below. Therefore, I find no substance to interfere in the concurrent findings of the conviction and the sentence. 6 The learned counsel for the applicant prays for lenient view contending that the applicant is a young person aged about 24 years. He has responsibility of maintenance of his old mother, wife and two children and, therefore, he may be released on giving the benefit of Probation of Offenders Act. Taking into consideration the nature of the offence, I am not inclined to grant benefit to him. 7 For the aforesaid reasons, revision application stands dismissed. 8 As the revision application itself is dismissed, application 6 no.127 of 2010 for bail does not survive and stands rejected, applicant to surrender before the trial Court within eight days to undergo sentence of imprisonment. (J.H. BHATIA,J.)