IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 245 OF 2006 CRIMINAL APPEAL NO. 245 OF 2006 CRIMINAL APPEAL NO. 245 OF 2006 1. Vishwas Narayan Patil, 2. Rajesh Madhusudan Gurav ...Appellants (Orig.Accused Nos.1 and 6) vs. State of Maharashtra ...Respondent ALONGWITH CRIMINAL APPEALNO. 375 OF 2006 CRIMINAL APPEALNO. 375 OF 2006 CRIMINAL APPEALNO. 375 OF 2006 Jeevashri @ Santosh Prasad Naidu ...Appellant/ (Orig.Accused No.2) vs. The State of Maharashtra ...Respondent/ (Original Complainant) Mr.S.V. Marwadi for the Appellants. Mr.D.R. More, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 29, 2008 DATED : SEPTEMBER 29, 2008 DATED : SEPTEMBER 29, 2008 P.C. :- P.C. :- P.C. :- 1. Heard learned Counsel for the appellants and learned Counsel APP for the State. 2. The appellants are original accused nos.1, 2 and - 2 - 6. The appellants alongwith three others were charged by the prosecution for having committed an offence punishable under Section 392 read with 34 and Section 120B of the IPC. They were also charged for an offence punishable under Sections 3(1)(ii) of the MCOC Act alongwith offences punishable under IPC and also under Sections 3(2) and 3(4) of the MCOC Act read with Section 37(1)(a) read with Section 135 of the Bombay Police Act. 3. The prosecution case in brief is that one Vinodchandrabhan Poonamia filed the police complaint on 13th May, 2004 in which he alleged that on 12th May, 2004 when he was proceeding to Surat at about 5.20 a.m. and he was carrying a bag containing ornaments which were to be delivered to traders at Surat, two persons accosted him and one of them was armed with a knife and the other snatched the bag containing the ornaments from the complainant and ran away. The complainant, accordingly, lodged the complaint on the next day and an offence was registered under Section 392 read with 34. Accused nos.2, 3, 4 were arrested by Tardeo Police Station and thereafter stolen property was recovered in - 3 - the form of gold bars at the instance of accused no.2. The other accused were also arrested. The statement of witnesses was recorded. PW 2 Afasri Begum stated in her statement that the accused were in her house and she had seen the ornaments which were stolen by the accused. Thereafter, test identification parade was held and the accused were identified in the test identification parade by the complainant. An application was made to the Additional Commissioner of Police for complying with the provisions of the MCOC Act. Accordingly, permission was granted. Charge-sheet was filed. The trial Court acquitted the other three accused and convicted the appellants herein. The trial Court, however, acquitted the accused for the offences punishable under MCOC Act and convicted the accused nos.1 and 2 for the offences punishable under Section 392 read with Section 34 of the IPC and sentenced them to under RI for 7 years and convicted accused no.6 for offence punishable under Section 411 of the IPC and sentenced him to undergo RI for 3 years. 4. I have heard the learned Counsel appearing on - 4 - behalf of the appellants and the learned APP for the State. 5. The learned Counsel appearing for the appellants has invited my attention to the evidence of the prosecution witnesses. It is submitted that the only evidence against the appellants is in the form of test identification parade. It is submitted that the complainant was present in the police station when the said identification parade was held. He submitted, therefore, that no reliance ought to have been placed by the trial court on the said evidence. He submitted that apart from this evidence, the only other evidence was testimony of PW 2. It is stated that she has seen the ornaments in the possession of the accused nos.1 and 2 in her house. The learned Counsel appearing for the appellants submitted that the said testimony was not of any assistance to the prosecution since she had not identified the ornaments which belonged to the complainant and therefore, there was no connection between the ornaments which were stolen from the complainant and the ornaments which were seen by PW 2 in - 5 - the possession of accused nos.1 and 2. He submitted that the prosecution had applied the provisions of MCOC Act, however, the trial Court had acquitted all the accused from the said charges. 6. On the other hand, learned APP for the State submitted that there was sufficient evidence of record to implicate the accused. He submitted that no case was made out for interfering with the impugned order passed by the Sessions Court. 7. In the present case, the appellant nos.1 and 2 were arrested on 15th July, 2004 and they are in custody since then. Appellant no.3 was in custody for a period of more than one year and thereafter, this Court was pleased to release him on bail. It is not possible to accept the submission made by the learned Counsel for the appellants. The prosecution has adduced cogent evidence in the form of test identification parade which was held. Merely, because the complainant was present in the police station, that cannot be a ground for discarding the said testimony particularly because the - 6 - prosecution has complied with the guidelines which are laid down in the Criminal Manual. This evidence had been corroborated by evidence of PW 2 who is an independent witness who has stated that the accused were seen to be in possession of those ornaments. PW1 has been examined by the prosecution who has given the details regarding the manner in which the ornaments weighing about 1550 grams and valued at Rs.8,50,000/- were taken away by the accused forcibly by pointing knife at his neck. He has given the description of both the offenders and thereafter, he has identified the said witnesses in the identification parade. The identification parade also has been held immediately after the accused were arrested on 15th July, 2004. There was, thus, no delay in holding the identification parade and the complainant has identified them within a period of two months from the date of the incident. The identity of the accused having been established and which is corroborated by PW-6, Special Executive Magistrate, Sharad Vicahre. Apart from that the evidence of PW 2 - Mrs.Afsari Begum Abdul Habib indicates that on 12th May, 2004, accused no.6 Jivshri - 7 - Naidu was in her house at about 7.30 a.m. and he was possessing briefcase in his hand and thereafter, he took a button knife from his pant pocket and tore the briefcase with big knife which was given by the said witness and took out the gold ornaments from the briefcase. In view of this evidence, in my view, the prosecution has established its case beyond reasonable doubt. There is no infirmity in the findings recorded by the trial court. 8. On the question of sentence, the learned Counsel appearing for the appellants submitted that the trial Court has acquitted the accused for the offence punishable under MCOC Act. He submitted that the appellants are in jail since 15th July, 2004 and have spent nearly more than four years in jail and the accused no.3 has spent more than one year out of the three years which were awarded by the Sessions Court. He submitted, therefore, that the said sentence may be reduced to the sentence already undergone. 9. Taking into consideration the fact that the - 8 - Sessions Court has acquitted the accused of the serious offence under MCOC Act, the sentence awarded by the Sessions Court, in my view, will have to be reduced to the period which the appellants have already undergone. The appellant no.3 is said to have received stolen property though no other role has been established by the prosecution against him except receiving the stolen property. It is not the case of the prosecution that he is habitual offender. Taking into consideration these facts and circumstances, in my view, it would be appropriate if the sentence which is awarded by the trial court is reduced to the sentence the appellants have already undergone. 10. In the result, the appeals are partly allowed. The conviction awarded by the Sessions Court against the appellants is confirmed. The sentence, however, is reduced to the sentence which the appellants have already undergone. The appellants, therefore, be released forthwith. The bail bonds of appellant no.2/original accused no.6 - Rajesh Madhusudan Gurav to stand cancelled. It is clarified that the default - 9 - sentence awarded by the Sessions court is also set aside. 11. The appeals are, accordingly, disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)