1 (Cri. Appeal 1314/04) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1314 OF 2004 Taj Mohamed Sayed Mohd. Kayum Sayyed ...Appellant Vs. The State of Maharashtra ...Respondent ----- Through Jail- Mr.Mourtuza M. Aajmi for Appellant Mrs. M.R. Tidake -APP for the State CORAM: V.M. KANADE J. DATED: 15TH SEPTEMBER, 2010 P.C. 1. Heard the Learned APP for the State. Mr.Murtuza M.Aajmi is appointed as amicus curiae to assist this Court on behalf of the Appellant. 2. The Appellant has filed this appeal through jail. The Appellant is challenging the judgment and order dated 4th February, 2004 passed by the Additional Sessions Judge for Greater Mumbai whereby the Appellant and two others were convicted for the offence punishable under section 399 of the Indian Penal Code and sentenced to suffered R.I. for four years and to pay fine of Rs.3,000/- and, in default, 2 (Cri. Appeal 1314/04) to suffer R.I. for three months. The original accused Nos.1 and 3 were in custody and they have undergone the entire sentence and they were directed to release forthwith after the payment of fine of Rs.3,000/-. The Appellant -Accused No.2 who was also entitled to get set off. 3. The prosecution case is that the Investigating Officer had received certain information that 4 to 5 persons were going to commit dacoity in Nandadeep Society and, therefore, he took two PSI and six constables to the said place and noticed that the accused and two other persons were preparing to commit dacoity in the said Nandadeep Society and, accordingly, three accused were apprehended and two of them were managed to escape from the clutches of the police. The present Appellant nabbed on the spot while he was preparing to commit dacoity. 4. The prosecution examined three witnesses - PW-1 panch Vakil Qureshi and the complainant PW-2 ASI Rasal and PW-3 was the Investigating Officer. Police took the physical search of the accused persons. The Accused No.1 was found in possession of a toy revolver and a big knife. The Accused No.2 was found in possession of chopper and also chilli power and the 3 (Cri. Appeal 1314/04) Accused no.3 was found in possession of a big size chopper. The Pachnama was prepared and the accused No.2 during the search took out chilli powder out of the wrapper. A weapon was also recovered at the instance of the Appellant which was a sharp pointed knife like chopper. The PW-2 also has narrated the said incident and has corroborated with the statement of the PW-3. The recovery has been made in the presence of the I.O. and it has been established that the accused were caught while they were preparing to commit dacoity and they were armed with weapons and other materials which are required for committing dacoity such as chopper. 5. In my view, the prosecution has established its case beyond the reasonable doubt. In my view, the sentence awarded by the Trial Court of four years is in excess. The said sentence of rigorous imprisonment is, therefore, reduced from four years to two years. 6. The Appeal, therefore, is partly allowed. The conviction awarded by the Sessions Court is confirmed. The sentence, however, is reduced from four years to two years. The Appellant has already undergone the sentence and therefore, the Appellant be released forthwith unless he is required in any 4 (Cri. Appeal 1314/04) other case. The bail bond of the Appellant – Accused No.2 shall stand cancelled. (V.M. KANADE J.)