IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.152 OF 2007 CRIMINAL APPEAL NO.152 OF 2007 CRIMINAL APPEAL NO.152 OF 2007 Munna Idu Shaikh ) Age 28 years, Residing at Andheri ) Mumbai, (Now in Kalamb jail) )..Appellant (Org.Accused No.2) Versus State of Maharashtra ) (At the instance of Sawantwadi ) Police station) )..Respondents (Org.Complainant) ---- Mr.A.S.Khandeparkar with D.H.Pawar i/by M/s.Khandeparkar & Associates for the appellant. Mrs.A.A.Mane, APP for the State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 18.9.2008. Judgment :- 1. This appeal, filed by one Munna Idu Shaikh (original accused no.2) impugns a judgment and order dated 14.12.2006 passed by the Sessions Judge, Sindhudurg in Sessions Case No.16 of 2006. By the impugned judgment and order, the present appellant has been convicted for an offence punishable under Section 328 r/w 34 of IPC and sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for one month. In addition, he has also been convicted for an offence punishable under Section 379 read with 34 of IPC and sentenced to suffer rigorous imprisonment for one year and to pay : 2 : a fine of Rs.200/-, in default to suffer rigorous imprisonment for one month. The judgment mentions that accused no.1 Sajid Ali Rahem Ali Shaikh @ Mamu absconded during the pendency of the trial. It appears that he absconded at the stage when his 313 statement was to be recorded. A non bailable warrant was issued against him by the impugned judgment and order and the case was kept on dormant file in so far as he was concerned. 2. The brief facts of the prosecution case were as under :- (a) That PW-1 Arun Vishwanath Devalekar was at the relevant time the Branch Manager of United Western Bank at Vasco-De-Gama, Goa. On 17.1.2005 at about 11.00 P.M. he boarded in Konkan Kanya train at Dadar station in order to go to Goa. He had a reservation of seat no.25 in boggi no. ‘S-2’. At that time, three persons were sitting on the seat in front of him. Two of them according to him, were accused nos.1 & 2. He had purchased his railway ticket from ‘Tatkal cadre’ (emergency cadre). Accused no.2 i.e. the appellant was in fact, the holder of a reservation of some other seat but he was also sitting in front of the complainant. After the train started, the aforesaid three persons initiated conversation with him and told him that they were going to Goa. Sometime at night, the 3rd : 3 : person who remains unknown, took out a biscuit from his bag and offerred it to the complainant for eating. The complainant told this person that he already had his dinner and therefore, he refused the biscuit. Thereafter at 12.00 mid night complainant went to bed on his berth. (b) On the next day at about 7.30 A.M., the complainant woke up and found the same three persons sitting in front of him. The accused purchased a chips packet from the train vendor and offerred some chips to him. Complainant took one of the chips and ate it. Once again the 3rd person offerred the same biscuit to the complainant. The other accused and the 3rd person insisted him to eat it. Complainant ate half the biscuit and felt that it had a bitter taste. He therefore, asked the 3rd person who was not before the Court about the bitterness of the biscuit. The same person told that it must be because it was of an old stock. The complainant threw the remaining half of the biscuit. By that time, the train had passed Kankavali station. As soon as Sawantwadi station was approaching, the complainant felt sleepy. At that time, his belongings including cash amount of Rs.7500/-, one mobile of Nokia company, two pants, three T-shirts, three shirts, one wrist watch of Titan make, two other wrist watches taken for repairs, two credit cards, ATM card and one cheque of LIC worth : 4 : Rs.84,000/- were with him in his suitcase. He was also wearing a gold ring in the finger of his right hand. Besides this, he was also having his driving license and pan card with him. The complainant went to sleep and when he awoke on 20.1.2005 he found himself at Sanjeevani hospital at Goa. (c) After being discharged from the hospital on 21.1.2005, the complainant went to Margaon police station and narrated the incident. Police at Margaon police station recorded his FIR and the investigation was taken over by PW-4 PSI Yashwant Shankar Dinganekar. The investigating officer went to Bombay in search of the accused. He contacted PSI Karpe at Bandra police station and requested him to contact his police station if he came across the accused and the missing articles in the crime. On 7.3.2005 PSI Karpe informed him that he had arrested 5 persons in a crime no.28/2005, out of whom 2 accused have confessed that they had committed the present offence. On 8.3.2005 the investigating officer therefore, went to the Bandra police station. He saw the attached muddemal. Thereafter, he contacted Sawantwadi police station on phone and called for a police party. He obtained a transfer warrant for the accused. On 10.3.2003 he obtained the custody of accused nos.1 & 2. On 11.3.2005 he produced both the accused before Magistrate, First Class, Sawantwadi and obtained their police custody. : 5 : On 14.3.2005 he wrote a letter to Tahsildar, Sawantwadi to hold an identification parade of the accused. On 15.3.2005, the Tahsildar, Sawantwadi conducted an identification parade of both the accused in the district jail at Sawantwadi. On 21.3.2005, the Tahsildar, Sawantwadi submitted his report alongwith the panchanama of identification parade to the investigating officer. The investigating officer had sent a sample of the stomach wash collected by Margaon police station from Margaon Auspisio hospital to the Chemical Analyser, Pune but before he could obtain the C.A’s report, he filed a chargesheet in the court of the JMFC. 3. In due course the matter was committed to the court of sessions. To prove its case, the prosecution examined in all four witnesses, reference to whom is already made hereinabove. After recording 313 statements of accused, accused did not examine any defence witness and in the circumstances, taking into consideration the material on record, the trial Court convicted and sentenced the accused no.2 by the impugned judgment and order as stated hereinabove. 4. I have heard both sides and perused the entire evidence. In my view, the appeal deserves to be allowed for the following reasons :- : 6 : (i) The conviction is based upon the evidence of PW-1 Arun Vishwanath Devalekar. Even if his evidence is accepted in full, there is no overtact whatsoever attributed to the present accused/appellant. The biscuit allegedly containing a stupefing substance is said to have been offerred by a 3rd person. The whereabouts of the 3rd person could not be traced by the police although accused nos.1 & 2 had been arrested and were in police custody for substantial period of time. No doubt, complainant has said that when the biscuit was offerred, the other accused insisted to eat it but this is not corroborated by the FIR and therefore, this part of the story of the complainant is unbelievable. There is no other act or action alleged against the present appellant. (ii) The discovery in this case is not at the behest of the present appellant but at the behest of accused no.1. Even this discovery is also to be disbelieved because the panch admitted in his cross-examination that the memorandum panchanama of accused no.1 was prepared before he came to the police station. (iii) Though the complainant had identified accused nos.2 to 5 in the Court, he does not talk about identification parade which was conducted in the : 7 : course of the investigation. The Tahsildar, Sawantwadi who conducted the identification parade was never examined. Panch witnesses never give any details as to what precautions were taken. (iv) The C.A.’s report on the stomach wash of the complainant was never produced or proved by the prosecution and therefore, even the administration of the stupifying drug remains unproved. 4. From the aforesaid, I find that there is virtually no evidence against the present appellant. 5. In the circumstances, appeal is allowed and the appellant/accused is acquitted of all charges framed against him. Appeal stands disposed off accordingly. The fine amount if collected, will be refunded to the present appellant. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)