sat 1 cri.appeal 136-1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 136 OF 1991 Narayan Rajaram More ) Age : 25 years, Residing at ) Kadam Chawl, Near Zopadpatti ) Pipeline, Tembi Pada, ) Bhandup (West), Bombay. ) (At present, released under Section ) 4(1) of the Bombay Probation of ) Offenders Act) ) ...Appellant/ Orig.Accused No.2) vs. The State of Maharashtra ...Respondent Mr.Murtuza Nazmi, Amicus Curiae for the Appellant. Mr.P.S. Hingorani, APP for the State. Mr.Omkar Warange i/b. Mr.Rajiv Patil for Respondent No.2. CORAM : V.M. KANADE AND M.L. TAHALIYANI, JJ. DATED : DECEMBER 8, 2011 ORAL JUDGMENT (PER M.L. TAHALIYANI, J.) :- 1 The appellant feels aggrieved by the judgment and order dated 8th January, 1990 passed by the learned II Additional sat 2 cri.appeal 136-1991 Sessions Judge, Raigad, Alibaug. The appellant was one of the accused in the Sessions Case No.164/88. The learned trial court had convicted the appellant and the original accused nos.1 and 3 for the offences punishable u/ss.147, 148, 149 r/w. 452 of IPC and 395 of IPC. 2 It was the case of prosecution that the appellant along with accused nos.1 and 3 and three other absconding accused was member of unlawful assembly. They were holding deadly weapons while they were members of such an assembly. It is alleged that the appellant and accused no.3 committed criminal trespass in prosecution of common object of said unlawful assembly. The appellant was also accused of offence of robbery as, according to the prosecution case, appellant, original accused nos.1 and 3 and the absconding accused had committed robbery by forcibly taking away gold ornaments worth Rs.3,70,050/- from possession of complainant Pukharaj. At the conclusion of trial, the appellant and accused nos.1 and 3 have been convicted for the offences punishable u/ss. 147, 148, sat 3 cri.appeal 136-1991 452 r/w. 149 and 395 of I.P.C. No substantive punishment was imposed on any of the accused. The learned trial court had given benefit of Bombay Probation of Offenders Act to the appellant and other accused. 3 It appears that accused nos.1 and 3 had not filed appeal against the said order. The appellant-original accused no. 2 being aggrieved by the order of conviction has filed the present appeal. 4 The case of the prosecution against the appellant was mainly based on the evidence of PW 1 Pukharaj, who is the complaisant, PW 2 Ashok, the son of PW 1 and PW 3 one of the witnesses, who had seen the appellant and other accused. 5 The place of incident was Panvel Town Kapadagalli, District Raigad. As far as the offence of criminal trespass is concerned, it is evident from the evidence of PW 1 that two persons had physically entered the shop of the sat 4 cri.appeal 136-1991 complainant and others were standing outside. PW 1 had identified accused no.3 only during the course of identification. PW 1 has stated that the persons who had entered his shop had taken away ornaments worth Rs.3.70 lakhs. It is clear from the evidence of this witness that the appellant had not been identified by him during the course of recording of his evidence. The appellant has also not been identified by PW no. 3. PW 3 has identified the driver. According to prosecution case, the accused no.1 was the driver. The appellant has been identified by witness no.2, who is son of PW no.1. It may be noted here that the PW 2 was not in the shop at the time of incident. He had already left the place to visit their utensil shop. While he was leaving the place of incident, he had seen three persons near a car in front of the room where the incident had occurred. He had inquired from those three persons as to whether they had any work. They replied in negative and left the place. After sometime PW 2 received information regarding the incident of trespass and dacoity. He reached the scene of offence after the incident was over. He was invited for sat 5 cri.appeal 136-1991 identifying the accused at the time of identification parade. He had identified the appellant and accused no.3 as the same persons who were amongst the three persons seen by him. He had identified the appellant in the court also. 6 There is no other evidence against the appellant at all of any nature to connect him with the crime of unlawful assembly, criminal trespass and dacoity. We are afraid as to whether on the basis of such a thinner piece of evidence, the conviction for such a serious offence can be based. In our opinion, the learned trial court has committed error in convicting the appellant on the basis of very small scanty piece of evidence. It appears that the learned trial Judge himself was not confident of the genuineness of the evidence of the witnesses. May be because of this reason, the learned trial court gave benefit of Probation of Offenders Act to the appellant and other accused and in a serious case like dacoity. The learned trial Judge was not even aware of the fact that Bombay Probation of Offenders Act had ceased to be in operation after sat 6 cri.appeal 136-1991 coming into force of Central Legislation i.e. Probation of Offenders Act. The judgment is absolutely superficial without analysis of the evidence. For all these reasons, we are of the view that the judgment of the learned trial court convicting the appellant needs to be set aside. Hence, we pass the following order :- I. The judgment and order of the trial court convicting the appellant is set aside and he is acquitted of the offences punishable under Sections 395 and 147, 148, 149 read with Section 452 of the Indian Penal Code. II. The appellant is on bail. His bail bond stands cancelled. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.)