1 (Cri appeal 29 of 2001) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMNAL APPEAL NO.29 OF 2001 Shri Harish Subhedar Yadav ) Age: 23 years, Occ: Howkar, ) Indian Inhabitant, Residing at ) Subhas Nagar, Nair Village, ) Koparkar Estate, Bhandup, ) Mumbai )...Appellant Versus The Stat of Maharashtra )...Respondent ****** Mr.Nihar Ghag for Appellant Mrs.V.R.Bhosale-APP for the State ****** CORAM: V.M. KANADE J. DATED: 24TH NOVEMBER, 2010 O R A L J U D G M E N T 1. Mr.Nihar Ghag is appointed as Amicus Curie to assist the Court since the Advocate on record is absent. 2. Heard the learned Amicus Curie, who is appearing in this case and Smt. V.R. Bhosale, learned APP for the State. 2 (Cri appeal 29 of 2001) 3. The Appellant is the Original Accused No.2. He has filed his appeal, challenging the judgment and order passed by the Second Additional Sessions Judge, Thane dated 18.12.2000. By the said order, the Sessions Judge was pleased to convict the Appellant herein for the offence punishable under section 392 of the Indian Penal Code and sentenced him to suffer R.I. for five years and to pay fine of Rs.5,000/- and, in default, to suffer R.I. for six months. The Trial Court acquitted the Original Accused No.1. The Trial Court also found that the Appellant has not committed offence punishable under sections 394, 397 341 of the Indian Penal Code. 4. The prosecution case is that the Complainant one Mr. Sunil Kumar Fattelalji Jain was carrying on business of selling golden ornaments in his jewellery shop known as “Rajashree Jewellers”. The prosecution case is that on 31.3.1998, four persons entered the shop and took away gold jewellery after assaulting the Complainant with a chopper on his hand. The offence was registered on 1.4.1998. The Appellant was arrested and the gold which was stolen, was recovered at his instance from Varanasi. The statement of the 3 (Cri appeal 29 of 2001) goldsmith, who purchased gold from the Accused No.2 was recorded. Prosecution examined six witnesses. 5. On the basis of the evidence adduced by the prosecution, the Trial Court convicted the Appellant for the offence punishable under section 392 of the Indian Penal Code and sentenced him to suffer R.I. for five years and to pay fine of Rs.5,000/- and, in default, to suffer further R.I. for six months. 6. The learned counsel for the Appellant has invited my attention to the judgment and order of the Trial Court and the evidence of the prosecution witnesses. He submitted that no identification parade was held by the police and neither the Complainant nor the goldsmith had identified the Appellant in the identification parade. He submitted that goldsmith identified the Appellant only in the Court. He submitted that the gold which was recovered at his instance was in the melted form and not in the form of ornaments and, as such, there was no material to show that this was the gold which was stolen by the Appellant from the shop of the Complainant. 4 (Cri appeal 29 of 2001) 7. Smt. V.R. Bhosale, the learned APP for the State, on the other hand, submitted that the recovery of the gold ornaments was one of the circumstances on which the reliance was placed by the Trial Court and, therefore, there was no reason to set aside the said finding. 8. After having heard both the counsel at length, in my view, in the present case the prosecution has failed to establish its charge under section 392 of the Indian Penal Code. It is an admitted position that no identification parade was held by the police. Secondly, since the gold ornaments are in melted form, the Complainant could not have identified the gold ornaments and, as such, there is no material to indicate that the gold which was sold by the Appellant to the goldsmith belongs to the Complainant. Apart from the recovery of the gold, there is no recovery of any weapon at the instance of the Appellant. 9. In my view, in the absence of identification of the Appellant as the person who had committed the robbery in the shop of the Complainant, the Trial Court has erred in convicting the Appellant only on the basis 5 (Cri appeal 29 of 2001) of the recovery of the gold from the goldsmith. The finding of the Trial Court, therefore, will have to be set aside. The prosecution, in my view, has not established its case beyond reasonable doubt that the Appellant committed the said offence under section 392 of the Indian Penal Code. 10. The judgment and order of the Trial Court, therefore, is quashed and set aside. The Appellant is acquitted for the offence punishable under section 392 of the Indian Penal Code. The Appellant is on bail. The bail bond shall stand cancelled. The Criminal Appeal is, accordingly, allowed and disposed of. (V.M. KANADE J.)