IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.369 OF 1995 WITH SUO MOTO APPLICATION NO.4 OF 1995 Chandrakant Nigre Bhtwa Mahimkar ] 1st Floor, Khoja Chawl, Curry Road ] Bombay ] .. Appellant V/s. The State of Maharashtra ] .. Respondents Mr.Sanjeev P.Kadam with Mr.Jagadish Choudhary & Mr.R.Shekhawat for the Petitioner. Mr.V.B.Konde Deshmukh , A.P.P. for the State. CORAM : BILAL NAZKI and A.R.JOSHI, JJ. DATED : MARCH 25TH, 2009. ORAL JUDGMENT (Per Bilal Nazki, J.) :- This Appeal by A1 in Sessions Case No.841 of 1990 tried by the Court of Additional Sessions Judge, Greater Bombay. There 1 were three accused and all of them were convicted for different offences. A1, who has filed this Appeal, was convicted for the offence punishable under section 392 read with section 397 of Indian Penal Code and he was sentenced to suffer rigorous imprisonment for four years and also to pay fine of Rs.500/- in default further rigorous imprisonment for one week. Accused No.3 was also convicted and sentenced in the similar fashion. Whereas accused no.2 was convicted only under section 392 read with section 34 of Indian Penal Code and he was sentenced to three years imprisonment and was fined to Rs.300/-. 2. When this Appeal was filed by the Appellant, the High Court issued a notice for enhancement as it found that the Petitioner has been convicted under section 397 of I.P.C., he was given the sentence for less then 7 years. 3. We have heard the learned counsel for the Appellant on the Appeal as well as on the show cause and also heard the learned public prosecutor. 4. The case of the prosecution was that on 20th May, 1990 at 21.30 hrs., robbery took place in a shop known as `Parag Wines' belonging to one Anup Ramchandra Keni. The shop was situated at Station Road, Mankhurd. It was the case of the prosecution that the 2 complainant at about 9.30 p.m. was taking close of the sales of the day and also the stock of cash collected on that day by putting the drawer of the cash counter on his body. He has put down the shutter of the shop half way from the ground and his servant namely Nillaya Pujari was sitting in front of him and that point of time three persons entered the shop and looted Rs.25,000/- and also kept a knife on the neck of the shop keeper. The case was registered on the basis of the complaint filed by P.W.1. The accused was arrested on 5th July, 1990 that is more than 1 ½ months after the occurrence and after the investigation the prosecution has filed charge sheet. 5. The prosecution has examined five witnesses and the whole case according to the learned counsel for the Petitioner depends on the testimony of P.W.3 who was the sole eye witness produced before the Court who was the complainant and also shop keeper. If the testimony of all this witness is believed, then, the conviction can be sustained. If the testimony of this witness is not believed, there would be no evidence connecting the accused to the offence allegedly committed by them. 6. The statement of P.W.3 does not inspire confidence of this Court. He stated that he was engaged in the business of sale of wines. He has shop by name Parag Wines at Mankhurd Railway Station. He open his shop at 9.00 in the morning and closes at about 9.00 in the 3 evening. At the time of occurrence one Nillaya Pujari was working under him who assists him. He was the only person present there who could have seen the occurrence, but this Pujari was not produced as witness. He stated that on 20th May, 1990 he was present in the shop and he was counting the money and at about 9.30 p.m. one person came inside the shop by lifting the shutter. He slapped Nillaya and pointed out a revolver on him. The person directed him not to move. Then, he kept the said revolver near the neck of Nillaya. Two persons entered the shop. One was armed with the knife. He pointed out the knife at his neck. The other person was having bag in his hand. The cash counter was opened. The person who was armed with knife assisted the other person collecting the cash. The person who was armed with the revolver lifted the watch which was kept in the counter and put the watch in his pocket. Thereafter, they enquired whether there was any telephone in the shop and swiftly went out. While leaving the shop one of them said that he is Don of Chembur. The incident occurred for a period of 5 to 10 minutes. 7. Now, it is the admitted case of the prosecution that those three person who allegedly entered the shop were strangers to P.W.1. The accused was arrested on 5th July, 1990 i.e.after 1 ½ months of the occurrence. Identification parade was carried on 10th July, 1990. According to the prosecution, the witness was not sure what he 4 stated, as he said that accused was arrested after lapse of one year. He did not know when he was called for identification parade. Identification parade has been conducted at Trombay Police Station. He also stated in his cross examination that he was shown the accused. He denied that he was shown the accused prior to identification parade. But, admitted that he had noticed him once at the police lock up at police station which would mean that the witness was taken to police station so that he could see the accused and thereafter on some other day he identified the accused. Even after the arrest of the three accused, knife could not be recovered from the accused which was used for alleged robbery. Since nothing was recovered from accused and this witness does not inspire confidence and that the identification of the accused itself was not established, and one of the most important witness who according to P.W.1 was present in the shop was not examined, we feel that the benefit of doubt shall have to be given to the accused person. For all these reasons, we pass the following order : :: O R D E R :: i. Appeal is allowed. ii. The order of conviction and sentence is set aside. We are not aware whether other two accused have filed any 5 appeal or not, but in the interest of justice we set aside the conviction of accused nos.2 and 3 as well. iii. The notice issued by this Court is discharged. The Appellant be released forthwith from the custody, if not required in any other case. iv. Fine amount if any, be refunded. v. Accused Nos. 2 and 3 if also in custody, be released if not required in any other case. vi. In view of the order passed in the above appeal, Suo Motu Application No.4 of 1995 does not survive and is disposed as such. (BILAL NAZKI,J.) (A.R. JOSHI, J.) 6