1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 884 OF 2006 IN SESSIONS CASE NO. 692 OF 2005 Dhiraj Chotelal Sharma ...Appellant Vs. The State of Maharashtra ...Respondent ----- Mr.Shankar N. Dhoble for Appellant Mrs. M.R. Tidake -APP for State ----- CORAM: V.M. KANADE J. DATED: 14TH JUNE, 2010 P.C. 1. Heard Mr.Shankar Dhoble, who appointed as an Amicus Curiae appearing on behalf of the Appellant. 2. The Appellant has been convicted for the offence punishable under section 392 r/w. 34 of the Indian Penal Code and sentenced to suffer R.I. for five years and to pay the fine of Rs.5,000/- and, in default, to suffer further R.I. for one year. 3. I am informed that the Appellant has already undergone the sentence and though he was released on bail by order dated 28.9.2009, he could not avail of 2 the bail order and, therefore, continued to be remained in jail. 4. The prosecution case in brief is that one Sorab Bhaya was residing in flat No. 7, Building No.42 of Shyam Nivas at Bhulabhai Desai Road, was found murdered in his house by unknown person and when the Complainant Shri Viraf Pocha informed the police on phone about the incident, they came to his flat and thereafter an offence was registered vide c.R. No. 125/05 for the offence punishable under sections 449, 392, 397, 302 r/w. 34 of the Indian Penal Code. According to the prosecution, the Accused No.1 Thahurprasad Harijan, who was the domestic servant of the deceased and Accused No.2- Dhiraj Sharma i.e. the present Appellant and two others had committed the said offence. According to the prosecution, some cash amount , some bank papers belonging to deceased and safe were recovered at the instance of the present Appellant during investigation. The prosecution case is that Rameshwar Singh, Digambar Chowdhary saw the Appellant along with wanted accused Ajay Prajapati, Sunil Gharuk while concealing the robbed property in the mess, however, did not report the fact to the police. 3 5. The Sessions Court acquitted the original Accused No.1. However, the Appellant was convicted on 31.8.2006 for the offence punishable under section 392 r/w. 34 of the Indian Penal code and he was sentenced to suffer R.I. for 5 years and to pay fine of Rs.5,000/- and, in default, to suffer further R.I. for one year. The Appellant, however, acquitted for the offence punishable under sections 397 and 302 of the Indian Penal Code. 7. I have perused the impugned judgment and order with the assistance of the learned Counsel who is appointed as Amicus Curiae and with the assistance of the learned APP for the State. The only material on record against the present Appellant, so far as under provisions of section 392 is concerned that he has produced certain documents and safe during the investigation. Even if the said contention is accepted, at the highest it can be said either he was receiver of the stolen property or he has committed offence under section 379 of the Indian Penal Code. The Original Accused No.1 has been acquitted. The other two accused were never apprehended and, as such there is no cogent and convincing evidence to convict the accused for the offence punishable under section 392 of the Indian Penal Code. 4 8. As a result, the conviction awarded by the Trial Court for the offence punishable under section 392 r/w. 34 of the Indian Penal Code is set aside and the Appellant is convicted for the offence under section 379 of the Indian Penal Code and sentence to suffer R.I. for three years and to pay fine of Rs.500/- and, in default, to undergo further R.I. for three months. 9. It appears that the Appellant is in jail since last about five years. The Appellant, therefore, has already undergone sentence and, therefore, the Appellant shall be released forthwith unless he is required in any other case. (V.M. KANADE J.)