1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.1504 OF 2003. Ramasharay @ Kalya Kamlaprasad Yadav, age adult, occupation service, resident of Narayan Pujari Chawl,Plot No.345, Road No.18, Javahar Nagar, Goregaon (West), Mumbai 400 102. ..Appellant/Orig.Accu sed No.3. Versus. The State of Maharashtra (At the instance of Nirmal Nagar, Police Station, Mumbai. Respondent. Mr Y. M. Chaudhary, Advocate for the Appellant. Dr F.R. Shaikh, A.P.P.for the State-respondent. 2 CORAM: BILAL NAZKI, AND A.R.JOSHI,JJ DELIVERED ON: 7TH SEPTEMBER,2009 JUDGMENT (Per Bilal Nazki,J: 1. We have heard the learned counsel for the appellant as well as the learned A.P.P.,for the State. 2. There are two appeals listed before us. The Appeal No. 1504/2003 is filed by original Accused No.3 and Appeal No.8 of 2004 filed by original Accused No.1. We are told that while serving sentence Accused No.1 was released on parole and he is absconding. Today, nobody appears for the Accused No.1 (A-1). Therefore, at this stage, we are not inclined to hear the Appeal No. 8 of 2004 filed by A-1 (Bharatkumar Bhavarlal Pandiya). 3. Appeal No.1504/2003 filed by Accused No.3 who is in jail from March,1996. He is convicted under Section 302 read with section 34 of the Indian Penal Code (IPC) and sentenced to suffer life imprisonment and fine of Rs.5000/- I.D. 3 imprisonment for three months. He is also convicted under Sections 394, 452 r.w.s.34 of the IPC and sentenced to suffer various terms of imprisonment and fine of Rs.4000/-. 4. The allegations against the accused were that in all four accused committed robbery and murder of Dharamchand Jain (hereinafter referred as the deceased), who was owner of a jewelery shop. After committing the murder they also looted the jewelery shop. Out of four, three accused persons, A-1 to A-3 were convicted by the trial Court. One of them was acquitted. Three convicted accused filed three different appeals. A-2 filed Appeal No. 579 of 2005 which was disposed of by the order of this Court on 2.12.2005. The Court set aside the order of conviction of that accused under Section 394, 302 and 452 r/w 34 of the IPC. However, the Court convicted the said accused for the offence under Section 411 of the IPC and sentenced him to suffer R.I.for two years. 5. The learned A.P.P.,for the appellant, in the present appeal submits that his case was better 4 case than the accused no.2 as there was no evidence against accused no.2 even to connect him with recovery. The case of the prosecution was that A-1 was a servant of the deceased. The deceased having a shop of jewelery was sleeping in the jewelery shop in order to protect it along with his servant i.e.A-1. On the fateful day his family received a phone call from his native place during the night that some relative had died in Rajasthan. Son of the deceased therefore tried to contact the deceased on phone but phone was not lifted. Therefore, son of the deceased came to the shop. He found the shutter of the shop was open and he also found that his father was dead and everything was looted from the shop. Thereafter, the matter was reported to the police. The police also found a note in the shop informing the relatives of the deceased that they should not inform the police and if they inform the police they would meet the same fate as the deceased. During the investigation the prosecution found that the note was in the handwriting of A-1. There was also some evidence 5 to show that the deceased was last seen immediately before his death in the company of A-1. We are not purposely dealing with the evidence relating to the murder or robbery in detail because that may prejudice the case of the prosecution or the case as far as A-1 is concerned. We do not decide his appeal in his absence or in the absence of his counsel. We have gone through the evidence. It is even conceded by the learned A.P.P.,and has also been recorded in the judgment relating to A-2 passed by this Court that there is no evidence on record connecting A-3 to murder or robbery. The only evidence produced by the prosecution is that of disclosure having been made by A-3 at a later point of time. Since there is nothing to show that A-3 was in any way connected either with robbery or with murder but at best it could be said that certain articles were recovered at the disclosure having been made by him. Therefore, following the judgment which has been given in the case of A-2 we feel that the prosecution had not been able to bring home the guilt of A-3 under Sections 6 302,394,452 r.w.s.34 of the IPC. However, from the evidence of the prosecution, we feel that charge under Section 411 of IPC is proved which carries maximum sentence of three years. Therefore, A-3 is convicted, sentencing him to suffer imprisonment for three years and also fine of Rs.5000/-or six months in default of payment fine. We are told that the appellant has served sentence of more than ten years as on date. The appellant A-3 has already undergone imprisonment for more than three years including the default in payment.Therefore, he should be released forthwith. Hence, we pass the following order:- ORDER 1. Appeal is partly allowed. 2. Conviction of Appellant-Accused No.3 Ramasharay @ Kalya Kamlaprasad Yadav under Sections 394, 302,452 r.w.s.34 of the IPC is set aside. 3. However,the appellant/Accused no.3 is convicted for the offence under Section 411 of the IPC and sentenced to suffer R.I.for three years. The appellant A-3 has already undergone 7 imprisonment for more than three years including the sentence of default in payment. Therefore, he will be set at liberty forthwith if he is not required in any other case. Appeal is disposed of. Sd/- (BILAL NAZKI,J) Sd/- (A.R.JOSHI,J) 8