1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.383 OF 2006 Ramzan @ Ramzan Dagdi Nabilal ) Maidargi, Age: 28 years, Occ: ) Service, residing at Irani Chawl No.18 ) Room No.16, Wadala Sewri Cross ) Road, Near Gate No.6 Wadala (E), ) Mumbai – 400 031 ) ..... Appellant. V/s The State of Maharashtra ) (at the instance of Wadala Police ) Station in C.R. No.24 of 2005 ) .....Respondent. ----- Mr. A.H. Ponda with Mr. Ashok Misal for the appellant. Mr. D.P. Adsule, APP for the State. ------ CORAM: V.M. KANADE, J. DATE : 21ST OCTOBER, 2008 ORAL JUDGMENT: 1. Heard the learned Counsel for the appellant and the learned APP for the State. 2. Appellant is convicted for the offence punishable under sections 341, 452, 392, 397 of the Indian Penal Code and under section 37(i) (a) punishable under section 135 of the Bombay Police Act and sentenced to suffer rigourous imprisonment for one month, five years, five years, seven years and one year respectively. 3. Prosecution case is that the complainant was alone in her house 2 when the appellant rang the door bail and posed as if he was a courier and, when the complainant opened the door, he pushed her inside the house, threatended her with kninfe, took her to the kitchen, snatched her ornaments and bolted the door from outside and vanished. The complainant managed to raise hue and cry and called the children who were playing on the ground. She also called her husband on telephone and, thereafter, a complaint was lodged. The accused was arrested. The test identification parade was held on 4/4/2005, after a lapse of about 12 days. The complainant identified the appellant – accused. The Trial Court convicted the accused and sentenced him to suffer rigorous imprisonment for seven years. 4. Mr. Ponda, the learned Counsel appearing on behalf of the appellant has taken me through the evidence of the complainant – P. W. 1. He has stated that the complainant in her FIR has described the accused person having blakish complexion though he is described in the FIR by the Police as a person having whitish complexsion. He has further submitted that the test identification parade has not been held in accordance with the guidelines laid down in the criminal manual. He submitted that, though, in examination-in-chief, the complainant has stated that she had taken ornaments on bond, in the cross-examiantion she admitted that she did not receive the actual ornaments and that the Police had handed over piece of gold metal. He further submitted that recovery of knife also has not been properly proved. He, therefore, submitted that the only piece of evidence against the present appellant is the alleged identification of the appellant by the complainant in the test identification parade and the test identification parade being defective, appellant is liable to be acquitted. 3 5. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the appellant. The complainant – P. W. 1 has, in categorial terms, described the incident and had given graphic details as to how she was detained in the kitchen and how the ornaments were removed by the appellant. The complainant – Sujita Suresh Ahir had sufficient time to see the appellant and she identified him in the test identification parade as also in the Court. There is no reason to disbelieve the testimony of the complainant. The test identification parade has been held properly. Even if some laches have been committed, the entire evidence of the Special Executive Magistrate has to be discarded. The panchanama discloses that all precautions has been taken by the Special Executive Magistrate while holding the test identification parade. No objection has been raised by the defence in the cross-examination. Hence, there is no reason to interfere with the finding recording by the Trial Court. The conviction of the appellant, therefore, is confirmed. 6. So far as the sentence is concerned, the learned advoate for the appellant submitted that the appellant has already undergone the sentence for about 34 months in jail and that the sentence imposed by the Trial Court be reduced. 7. The learned APP appearing on behalf of the State, on the other hand, submitted that during the time when the appellant – accused was on bail he was already involved in one other similar incident and that he was acquitted because the witntesses have turned hostile. 8. In my view, since the appellant has already undergone almost 4 about 3 years of sentence, taking into consideration the fact that the appellant has four children and that he had not acted in harsh manner or had taken any undue advantage of the complainant who was alone in the house nor had inflicted any injury on her with the knife and has merely locked her inside and had vanished, the sentence will have to be reduced from 7 years to 5 years. 9. In the result the following order is passed:- O R D E R Appeal is partly allowed. The conviction of the appellant is confirmed. However, sentence is reduced from 7 years to 5 years. Appellant shall be entitled to all the legal remissions which are available to him. Appeal is disposed of. (V.M. KANADE, J.)