ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 283 OF 2003 APPEAL NO. 283 OF 2003 APPEAL NO. 283 OF 2003 Shivkumar Ravikumar Gauda @ Godfield Peter D’Silva Aged 27 years, at present lodged in Yerwada Central Prison Room No.1, Baba Restraurant, Patra Shed, Kamat Nagar, C.S.T.Road, Mayudi Street, Kurla (West), Mumbai-70. ...Appellant. (Orig.Accused) Vs. State of Maharashtra (Through Byculla Police Station, Mumbai). ...Respondent. Mr.Abhay Kumar Apte, appointed Advocate for the Appellant. Mr.P.S.Hingorani, APP for the State. CORAM CORAM CORAM : BILAL : BILAL : BILAL NAZKI & NAZKI & NAZKI & ANOOP ANOOP ANOOP V.MOHTA, JJ. V.MOHTA, JJ. V.MOHTA, JJ. DATED DATED DATED : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. ORAL ORAL ORAL JUDGMENT (PER-BILAL NAZKI, J.):- JUDGMENT (PER-BILAL NAZKI, J.):- JUDGMENT (PER-BILAL NAZKI, J.):- Five accused were charge-sheeted for the offences punishable under Sections 395, 397 and 452 read with Section 34 of the Indian Penal Code (for short,"IPC"). 2. The trial of both the accused took place separately. As and when the trial of Accused No.1 and 2 started, ( 2 ) three were absconding. Accused No.2 is of unsound mind and therefore, the trial of accused No.1 was separated and he was tried by the learned Sessions Judge, Greater Bombay, in Sessions Case No.327 of 1998. Accused No.1 was convicted under Sections 395, 397 and 452 readwith 34 of the IPC. Under Section 395, he was sentenced to suffer rigorous imprisonment for life and under Section 397 he was sentenced to suffer rigorous imprisonment for 7 years and under Section 452 readwith Section 34 of the IPC he was sentenced to suffer rigorous imprisonment of 7 years. Different fines were also imposed. 3. The case of the Prosecution was that on 25th March, 1997, P.W. 1 Mrs.Praveen P. Ferzndi came to her office at 9.30 a.m.. On that day, at 3.30 p.m. she was present along with other 8 workers in the premises. She was talking with her Secretary Sheetal and other staff members viz. Kranti, Vasim, Nitin and Ramesh. As they were busy in the work, suddenly five people entered the premises. Sheetal asked them about the purpose of their visit. They removed their choppers and threatened with them. One of them stood on the table and pointed a gun at the Complainant. After showing the choppers and guns they forced the persons present in the premises to sit in a room and thereafter, took away cash, jewellery and ( 3 ) some other articles. 4. On the basis of these allegations, charges were framed under Sections 395, 397 and 452 read with Section 34 of the IPC. 5. The accused pleaded not guilty and claimed to be tried. 6. The prosecution examined in all 6 witnesses. Two witnesses are important being P.W. 1 and P.W. 3, because they were eye-witnesses to the incident. P.W.1 has stated that the 5 persons entered into the premises whereas P.W.3 stated that 4 people entered into the office premises. Thereafter, the recovery was made allegedly at the disclosure of Accused No.1 and Accused No.2, of all the property that was taken away and of the choppers, also. The gun was not recovered. The charge sheet itself shows the names, parentage and full description of Accused No.1 and Accused No.2. With regard to the Accused Nos. 3,4 and 5 only names that too even without surnames were mentioned. They are Abbas, Assar and Bhayya and others two, so making total number of accused as 7. ( 4 ) 7. Obviously, these 6 names were added to sustain the charge of dacoity. Even the eye-witnesses has not placed the numbers of the accused as 7. P.W. 3 stated that there were only 4 persons. If the prosecution came to know about the first names of 5 persons having been involved in the offence, along with their parentages, residential address etc., even if they are not able to arrest them. 8. Obviously, this is an attempt by the investigating officer to rope in Accused No.1 and Accused No.2 in the offence of dacoity. 9. After going through the offence we find that P.W. 1 and P.W. 3 were trustworthy, although there is discrepancy between the statement of P.W.1 and P.W. 3 as regards the numbers of accused persons which can be also a bonafide mistake of either of the two. Thereafter in the identification parade, both the accused were identified by P.W. 1, weapon was also recovered at the instance of the Appellant which can also not be doubted. For the reasons mentioned here-in-above, the Appellant could not have been convicted for the offence of dacoity but it was offence under Section 392 of the IPC. ( 5 ) 10. Therefore, we pass the following order:- O R D E R R D E R R D E R 1. We allow the Appeal and set aside the Judgment and order dated 04/04/2000 in Sessions case No.327 of 1998 passed by the Learned Additional Sessions Judge, Sessions Court, Mumbai, vide the Judgemnt dated 04/04/2000, the Appellant was convicted under Section 395, 397 and Section 452 r/w Section 34 of the IPC. 2. We hereby convict the Appellant for an offence under Section 392 r/w 34 of the IPC and sentence him to undergo 10 years imprisonment. 3. We are told at the bar that the Appellant is in continuous custody from 12/11/1997, as it appears that he has already served the sentence of 10 years. If it is so, the Respondent is directed to release the ( 6 ) Appellant forthwith, if not required in any other offence/ case. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)