1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1323 OF 2008 Sheru Shabir Shaikh .. Appellant (Accd.No.2) V/s State of Maharashtra .. Respondent Mr.Arfan Sait for the Appellant, appointed by the High Court,Legal Aid. Mr.Y.P.Yagnik, Additional Public Prosecutor for the State. CORAM: R.G.KETKAR, J. DATE: 1st July, 2011. JUDGMENT: 1. This appeal is preferred by Sheru Shabir Shaikh, original Accused No.2 challenging the judgment and order dated 26.02.2008 passed by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No.514 of 2007. By that judgment, the learned Sessions Judge acquitted Accused No.1 Mohd.Asif Mohd.Hanif Qureshi and Accused No.3 Moh.Sajid Mustafa Shaha vide section 235 (1) of the Code of Criminal Procedure, 1974 of the offences punishable under sections 392 read with 397 read with 34, Indian Penal Code, 1860 (for short IPC). Learned Sessions Judge convicted the appellant-Accused No.2 for the offences punishable 2 under sections 392 read with 397 IPC, and sentenced him to suffer R.I.for seven years and to pay fine of Rs.100/- in default to suffer R.I.for three days. 2. Appellant herein (original Accused No.2) and original Accused Nos.1 & 3 faced trial for having committed offences punishable under sections 392 read with 397 read with 34 IPC. One Sharik Tipusultan Shaikh aged 18 years lodged FIR on 27.3.2007 wherein he informed that on 27.3.2007 at 3 p.m., he had gone to Gowandi Railway Station alongwith his companion Sunil Pal for distribution of Pamphlets of NIIT. At 3.30 p.m.he asked Sunil Pal to wait at Gowandi Railway Station and as he was proceeding towards Ankur Cinema compound near the Railway Gate he saw three persons sitting on the steps of Ankur Cinema. When he was passing by their side, one person abruptly stood up and started following him. Then he caught his hand from behind and dragged him in the corner of the compound wall. He also put a sharp knife on the neck of the informant. The informant was frightened and he requested them not to assault him. At that time, other person thrust the hand in his left side shirt pocket and and took out Rs.750/- Third person also thrust his hand in the right side 3 pant pocket and forcibly took out Rs.90/-. Person who had put knife on the informant’s neck threatened to kill him and under such threat forcibly took out his mobile from his shirt pocket. All of them threatened to cut him into pieces if he shouted for help. After collecting the amount all the three persons ran away crossing the railway line towards the Qureshi Masjid. Informant shouted as “chor chor” and ran behind them. Some other persons joined him. Informant saw one police constable there. He told him that the persons running were thieves and that he has been robbed by them. Upon this, the police constable also started chasing them and accosted one person. Person accosted was the same person who put knife on the neck of the informant and had taken out mobile phone from his shirt pocket. Other two persons ran towards Deonar Abattoir and could not be found. Person who was accosted told his name as Sheri Shabir Shaikh (Accused No.2). Police constable Mr.Ramesh Bhosale called some persons and in their presence, search of Accused No.2 was taken. During that search, a big sharp knife like dagger (Khanjir with metal sheath in the shape of dragon) was tucked under the waist and according to the informant it was the same knife which the 4 Accused No.2 had put on his neck. Informant’s reliance mobile phone was also found in the right side pant pocket of Accused No. 2 and Rs.150/- from his left side pant pocket. The police constable Mr.Bhosale brought Accused No.2 and the informant to Trombay Police Station where FIR at Exh.15 was lodged. 3. Crime was registered as C.R.No.105 under sections 397 read with 34 IPC. Case was investigated and the Accused Nos.1 & 3 came to be arrested on the basis of information given to the Investigating Officer Mr.K.D.Dongre and Mr.B.T.Ove while interrogating Accused No.2. On disclosure statement of Accused No.1 Mohd.Asif currency note of Rs.500 was seized from his house. After completion of investigation, chargesheet was filed against all the accused. Charge at Exh.7 was framed against the accused u/s.392, 397 read with 34 IPC. Accused No.2 and other accused pleaded not guilty and claimed to be tried. 4. In order to bring home guilt of the accused, prosecution in all examined 8 witnesses. PW1-Sharik Tipusultan Shaikh, informant was examined at Exh14, PW2- Police Constable Mr.Ramesh Bhosle who chased Accused No.2 and arrested him, was examined at Exh.17. PW3-Prabhakar T.Yashvante, Special 5 Executive Officer who conducted identification parade of Accused Nos.1 & 3, was examined at Exh.21, PW4-Sanjay Tukaram Dabhade, who acted as panch of the seizure punchanamas at Exhibits 18 and 19 was examined at Exh.23, PW5-Ramakant Dabhole was examined at Exh.25 as a panch witness for disclosure panchanamas at Exhibits 26 and 27, PW6- Hussain Shaikh was examined at Exh.28 as panch to spot panchnama. He however declined to support the prosecution case and only admitted his signature, PW7-Mr.Kailash Dongare (PSI) was examined at Exh.31 who recorded FIR at Exh.15 and registered the crime and conducted part investigation by recording statement of police constable Bhosale, PW8-Mr.Bapu T.Ove (API), the investigating Officer who conducted remaining investigation was examined at Exh.35. On the basis of the material on record, learned Sessions Judge acquitted Accused Nos.1 & 3 and convicted Accused No.2 by his judgment and order dated.26.02.2008. It is against this decision Accused No.2 has preferred this appeal. 5. In support of this appeal, I have heard Mr.Arfan Sait, learned counsel appointed by the High Court Legal Aid for the Appellant 6 and Mr.Y.P.Yagnik, learned A.P.P. for the State. As noted earlier, Accused Nos.1 & 3 are acquitted by the learned Sessions Judge. In so far as Accused No.2 is concerned, it is common ground that the material evidence is that of PW1-Sharik, PW2-Police constable Mr.Ramesh Bhosale, PW4-Mr.S.T.Dabhade, PW7-PSI Mr.Dongare. The evidence of PW3, PW5, PW6 & PW8 is not material as far as the case of Accused No.2 is concerned. 6. PW1 Sharik deposed that on 27.3.2007 between 3 and 3.30 p.m.he alongwith Sunil Pal came in the market for distributing the advertisement pamphlets of NIIT. They were at Gowandi (east) near Ankur Cinema Hall. Sunil Pal was near the railway station gate. As there was less crowd on road, PW1 decided to go towards west side. He was going through the compound of Ankur Cinema. Three boys were sitting near exit gate of Ankur Cinema. One of them abruptly stood and caught his hand. Other two also stood and dragged him by the side of the gate. He was taken in the gap between the gate and the wall. One of them put knife on his neck. Other had caught his collar and third one had caught his hair. All of them demanded money from him and inserted their hands in his pocket. They took out money from the shirt pocket 7 and from the front pocket of his jeans pant. They took out Rs. 840/- from his pockets as also his mobile phone. They threatened him not to chase else they will stab him and thereafter they ran away. PW1 shouted “chor chor” and told this fact to the Police Constable Mr.Ramesh Bhosale (PW2). He also started chasing them. Even the members of the public gathered there also started chasing them. PW2 succeeded in grabbing one person and other two persons ran away. PW2 arrested one person. Person arrested was Accused No.2. The mobile phone of PW1 was with Accused No.2 who had put knife on his neck. PW1 identified Accused No. 2 in the Court, as also the Accused No.1 and Accused No.3. He further deposed that he was called for identification parade in Thane Jail, where Accused No.2 was not there but other two accused were there. He identified Accused Nos.1 & 3 in the Court. He deposed that the knife that was shown to him was similar to the knife which was used by the accused. He however could not exactly remember whether it was the same. (Knife called dragon was produced). Knife was marked Article “A”. He however deposed that before the incident he had not seen any of the accused. Mr.Sait submitted that during his entire testimony, 8 PW1 did not depose about drawing of spot panchanamas at Exh. 18 & 19 in his presence. 7. PW2 Ramesh Bhosale, police constable attached to Trombay Police Station deposed that he was allotted duty for law and order near autorickshaw stand near Gowandi Railway Station. At about 3.30 p.m.he saw 3 to 4 persons running. They were shouting “chor chor”. One of them told him that he was robbed by these persons. He also started chasing the accused alongwith PW1 and caught one person with the help of others. He called two persons and took personal search of the person caught. During the course of personal search one knife was found tucked under his waist and one black Classic mobile phone in the shirt pocket. He prepared panchanama there. He further deposed that the panchanama bears his signature and it was in his hand writing. That was marked at Exh.18. Thereafter he took Informant PW1 and arrested person in the Trombay Police Station and handed over the accused and the muddemal to PW7 Mr.Dongare and his statement was recorded by the Investigating Officer. In the examination in chief, he however did not depose about the preparation of other panchanama at Exh.19 on the same day. In 9 the cross examination he admitted that without any authority he prepared the panchanama. He had prepared only one panchanama in this case. Another panchanama was shown to him which bore his signature and it was in his hand writing. It was marked at Exh. 19. He gave explanation that he thought that the panchanama at Exh.18 was erroneous and therefore he prepared panchanama at Exh.19. Perusal of the seizure panchanama dated 29.3.2007 at Exh.18 would disclose description of knife having shape of peacock. Preparation of panchanama Exh.18 started at 16.10 and was over at 17.30 hours. This panchanama does not bear either the thumb impression or the signature of the accused. Another seizure panchanama dated 27.03.2007 at Exh.19 was prepared by PW2 Ramesh Bhosale which gives all the details. The said panchanama also started at 16.10 and was over at 17.30 hours. This panchanama bears thumb impression of Accused No.2. In this panchanama description of knife is that of having the shape of dragon. Mr.Sait submitted that in the first place, PW2 Ramesh Bhosale was not authorised to prepare panchanama. Secondly, the description of the knife in Exh.18 as also Exh.19 is materially different and therefore, it casts serious doubt about the recovery 10 of knife from Accused No.2. In so far as PW1 is concerned, he is totally silent about the preparation of panchanamas at Exh.18 & 19. PW1 in his evidence stated that the knife that was shown to him, was similar which was used by the accused. However, he could not exactly remember whether it was the same. In the bracketed portion in his evidence knife called dragon is stated to have been produced. Mr.Sait therefore submitted that even the evidence of PW1 does not clearly establish the identity of the knife. If the evidence of PW1, PW2 and panchanamas at Exh.18 & 19 are taken into consideration, it casts serious doubt about recovery of knife from Accused No.2. 8. PW4-Sanjay Dabhade deposed that one person was caught by PW2. He acted as a panch to the panchanama at Exh.18. He further stated that the knife article “A” shown to him was the same. That article “A” viz.the kinfe called dragon. He further deposed that one more panchanama was also prepared on the spot as there was some mistake in the first panchanama, and the second panchanama also bears his signature. Mr.Sait criticised evidence of PW4 of the same ground, namely that the recovery of knife at the behest of Accused No.2 is not established as the 11 panchanamas at Exh.18 & 19 describe the shape of knife materially different. 9. PW7-Kailash Dongare deposed that one knife (dragon) and cash of Rs.150 were seized by PW2 Bhosale under the panchanama. He deposed that PW2 Bhosale informed him that as in the first panchanama description of knife was not properly mentioned the second panchanama was prepared by PW2. Mr.Sait criticised evidence of PW7 on the ground that the knife was not sealed and the labels were not signed by PW2 Bhosale and the panchas. 10.Mr.Sait submitted that the prosecution has not brought enough evidence on record to support the conviction under section 397 IPC. He submitted that basically, recovery of knife from Accused No.2, is not proved by the prosecution. In support of his submissions, he invited my attention to the evidence of PW1, PW2, PW7 as also the panchanamas at Exh.18 & 19. He submitted that the description of the knife at some places is that of peacock shape, and at some places is of dragon shape. 11.On the other hand, Mr.Yagnik, learned APP appearing for the State supported the impugned judgment & order and submitted that the prosecution has established the offence punishable u/s. 12 397 IPC and has brought on record sufficient evidence. 12.I find considerable merit in the submissions of Mr.Sait that the prosecution has failed to establish recovery of knife from Accused No.2. The evidence of PW1 informant, PW2 Bhosale, PW7 Dongare as also the panchanamas at Exh.18 & 19 do not inspire confidence in so far as the recovery of knife from Accused No.2 is concerned. I therefore find that the learned Sessions Judge has committed error in convicting Accused No.2 for the offence punishable u/s.397 IPC and sentencing him on that count. In so far as conviction & sentence u/s.392 is concerned, from the evidence of PW1 and PW4 I find that the prosecution has established that the Accused No.2 has committed the offence of robbery punishable u/s.392 IPC. It is material to note that immediately after Accused No.2 ran away, the PW1 complainant shouted “chor chor” and started chasing Accused No2. While chasing Accused No.2 he informed PW2 Bhosale about the Accused No.2 taking away money as also the mobile phone from him. PW2 Bhosale and PW4 Dabhade also started chasing Accused No.2 and he was apprehended on the spot. During the search of Accused No.2 mobile phone of PW1 and cash was 13 found. Considering this evidence, I find that the learned Sessions Judge has rightly convicted Accused No.2 for the offence punishable u/s.392 IPC. 13.In so far as sentence for the offence punishable u/s.392 is concerned, Mr.Sait submitted that, Accused No.2 is from poor family and could not arrange for bail during trial. At the time of incident he was 20 years of age and there is no history of bad antecedents against Accused No.2. He submitted that from the date of incident i.e.27.3.2007 till date he is in jail. He therefore submitted that the sentence of Accused No.2 may be reduced to the extent of imprisonment he has already undergone. 14.Mr.Yagnik, learned APP could not point out any bad antecedents against Accused No.2. He also did not dispute that Accused No.2 is in jail right from 27.03.2007 as he could not arrange for bail. 15.Considering the age of Accused No.2 at the time of incident as also his poor financial position because of which he could not arrange for bail, and having further due regard to the fact that Accused No.2 is in custody right from 27.03.2007 i.e.for the period of more than four years & three months (six months remission), the ends of justice would be served if his sentence is 14 reduced to the extent of imprisonment he has already undergone. In view of above discussion, Appeal is partly allowed in the following terms:- (i) Conviction of Accused No.2 under section 397 IPC and the sentence awarded to him under section 397 IPC is hereby quashed and set aside. (ii) Appellant-Accused No.2 is convicted for the offence punishable under section 392 IPC and his sentence is reduced to the extent of imprisonment he has already undergone. (iii) Appellant-Accused No.2 shall be set at liberty forthwith, if not required in any other case. (iv) Office is directed to send copy of the judgment and order to the Appellant who is presently lodged in Nashik Road Central Prison as also to the trial Court. Issuance of writ is expedited. Muddemal may be disposed of in accordance with the provisions of law. (R.G.KETKAR, J.)