dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.2904 OF 2008 APPLICATION NO.2904 OF 2008 APPLICATION NO.2904 OF 2008 (For (For (For Leave to file appeal) Leave to file appeal) Leave to file appeal) IN IN IN CRIMINAL CRIMINAL CRIMINAL APPEAL NO. APPEAL NO. APPEAL NO. OF OF OF 2008 2008 2008 (Against (Against (Against the order of acquittal) the order of acquittal) the order of acquittal) The State of Maharashtra Applicant (orig.complt.) Vs. 1.Mohammed Aslam Salim Nurani 2.Mohammed Sharif Amir Khan 3.Mohammed Jahir Abdul Latif Shah Respondents (Orig.Accused Nos.1 to 3) Mr.A.S.Gadkari, APP for the Applicant-State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATED DATED DATED : 19th January, 2009. : 19th January, 2009. : 19th January, 2009. P.C. P.C. P.C. This is an application by the State for leave to file appeal against the order of acquittal of the respondents(accused) in Sessions Case No.441 of 2001, passed by the learned 2nd Ad-hoc Asst. Sessions Judge, Borivali Division, Dindoshi, Greater Bombay dated 17.4.2008 wherein the respondents/accused were tried under Sections 392, 397, 365 read with 34 of Indian Penal Code. 2. The case of the prosecution was that one Veerabhai Panchal who was doing business in diamonds and PW 1-Shantilal was a diamond polisher and worked with Veerabhai Panchal. On 6.6.2000, he attended his usual ( 2 ) work and got Rs.2000/- as wages. In the evening when he was returning to home by walk. He was going through Zakaria Road. When he reached near Post Office, he found that one auto rickshaw was parked near Post Office and two persons were standing near auto rickshaw. When he came near auto rickshaw, accused no.1 gave a fist blow on his chest. He was having a knife. He put him under the threat of the knife by pointing the knife towards his stomach and dragged him into auto rickshaw. All of a sudden, other accused attacked him, he got frightened, made cries. After hearing his cry, some persons who gathered near auto rickshaw, accused no.1 showed knife towards public and threatened that if anyone intervened, he would kill them. People left. Accused no.3 was on driver’s seat. As soon as accused no.1 dragged the complainant into auto rickshaw, accused no.3 started auto rickshaw and plied at fast speed. Accused no.2 was already sitting in auto rickshaw. Accused no.1 put knife on stomach of complainant and commanded him to handover money. Accused no.2 meanwhile took out cash amount of Rs.1950/- from his pocket and started to ask him as to where he had kept diamonds. 3. According to the prosecution, at the relevant ( 3 ) time, PW 2-Police Sub Inspector, PW 4-Police Constable were on patrolling duty at Zakaria Road. They heard cries and from an inquiry from one of the persons, they came to know that the complainant was being abducted by accused by pointing out knife to him. The PSI and the Constable chased the auto rickshaw. When the auto rickshaw reached Mohan Hotel, Police Constable and the Police Sub Inspector took their motorcycle in front of auto rickshaw to obstruct and they caught hold the accused and the accused were taken to the Police Station. 4. The recoveries were made of money and knife. This story was not believed by the trial Court on the ground that when the statement of the complainant was recorded as, according to the prosecution, the complainant and accused were arrested and complainant was with the accused when he narrated the incident. That narration was not recorded into the statement by the Police. But after interrogating the accused persons and making the recoveries, drafted the panchanama of recoveries. The F.I.R. was drafted in the name of the complainant in accordance with the information received by the Police from interrogating the accused. In the first statement which was made by the complainant, he had stated that he did not know ( 4 ) the names of the accused, but when F.I.R. was finally prepared, the names of the accused were given. As far as recoveries are concerned, the witness who was produced as a panch stated that when he reached the Police Station, he saw the knife and cash on the table of the Police Officer. For these reasons, the trial Court found the theory doubtful and held that the Prosecution had not proved the case beyond a reasonable doubt. Therefore, we do not see any evidence except the evidence of the complainant which also appears to be tainted. This statement was prepared in consultation with the Police Officer, after they had interrogated the accused persons. 5. In these circumstances, we do not find that this is a case for interference. Leave to file appeal refused. Application dismissed. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)