1 apeal 15 of 2008 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.15 OF 2008 Nagraj Kalimutthu Tewar age:48 years, residing at Devi Hotel, Cotton Exchange, Jowari Bazaar,Mumbai. At present in Kolhapur Central Prison .. Appellant Original Accused No.2 versus The State of Maharashtra .. Respondent. CRIMINAL APPEAL NO.492 OF 2007 Hasibul Baburali Shaikh age: 25 years, Occn. Labour. Sadi Bunder, Gate NO.6, Mumbai Present in Kolhapur Jail .. Appellant Original Accused No.1. versus The State of Maharashtra .. Respondent. Ms. Amita KuttiKrishnan, for the appellant in Appeal No.15 of 2008. Mr. Vijay C. Desai, for the Appellant in Appeal No.492 of 2007 Mrs. P. P. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 17th June, 2011 2 apeal 15 of 2008 Common Judgment 1. These appeals have been filed by accused Nos 1 and 2 against their conviction for the offfences punishable under Sections 398 read with 34 of the Indian Penal Code and sentence them of R.I. for 7 years, imposed upon them by the learned 1st Adhoc Additional Sessions Judge, Sewree, Mumbai, on conclusion of Sessions Case No.311 of 2006, 2. The facts which are material for deciding these appeals are as under:- One Shambu Adhikari was running a shop where gold ornaments were prepared. Surjeet and Tapan were working with him in the said shop. On 24th December, 2005, at about 8 to 8.30 p.m., two appellants alongwith accused No.3 and an absconder entered the shop when Shambu was not in the shop. The absconder assaulted one of the workers with a knife. The accused No.3 who has been acquitted by the trial Court i.e. Tapas Jugalchandra Orave was alleged to have taken away gold. Shambhu Adhikari returned to his shop and he was hit by the absconder by knife. Appellant Nagraj is alleged to have been armed with revolver. On hearing the commotion, watchman or chowkidar of the building came there. Accused No.1 Hasibul Shaikh was overpowered by Surjeet whereas accused No.2 Nagraj was caught while running away by a mob which had gathered outside. Accused No.3 had managed to run away, but was subsequently 3 apeal 15 of 2008 arrested. Police party reached on receiving information. They took Shambhu Adhikari who had been injured to hospital. Two appellants were also injured because of mob had beaten them up. They were also taken to hospital. An offence was registered on the report of Shambhu. 3. In the course of investigation, Investigating Officer seized the revolver and knife from the spot and the interrogation of accused No.1 led to recovery of some gold from one Sharad Patil. Accused No.3 was also subjected to test identification parade. On completion of investigation, chargesheet was sent to the Court of Metropolitan Magistrate, Mumbai, who committed the case to the Court of Sessions at Mumbai. 4. The learned Additional Sessions Judge to whom the case was made over charged three accused persons of offences punishable under Sections 397 read with 34 of the Indian Penal Code and section 37(1) of the Bombay Police Act. Since they pleaded not guilty to the charge, they were put on trial at which the prosecution examined in all 11 witnesses, in its attempt to bring home the guilt of the accused. 5. After considering their evidence in the light of their defence of denial, the learned Judge held that the accused No. 3 was not shown to have been involved in the incident and therefore he proceeded to acquit him. He held that the accused Nos 1 and 2 i.e. appellants before this Court had not 4 apeal 15 of 2008 committed robbery but had only attempted to commit robbery and therefore, proceeded to convict and sentence them as mentioned hereinabove under Section 398 of the Indian Penal Code. He acquitted all the accused persons for the offence punishable under Section 37(1) of the Bombay Police Act. Aggrieved thereby the appellants have preferred these appeals. 6. I have heard learned counsel Ms. Amita Kutty Krishnan for accused No.2, Mr. Vijay C. Desai, learned counsel for the accused No.1 and learned APP, for the State. 7. Learned counsel for the appellants submits that when the learned trial Judge held that there was a theft of gold from the shop and yet had proceeded to acquit the accused No.3 at whose instance gold was seized from P.W.5 Sharad Patil, there was no question of convicting the two appellants. She submitted that P.W.6 Parves Mohasin Bootwala, a Jewellery designer stated that he had nothing to show that in fact gold had been entrusted to P.W.1 Shambu Adhikari. Question is not whether any gold was actually entrusted to Shambu Adhikari, since the appellants have been convicted for attempting robbery. Even if there was no property with Shambhu Adhikari, an attempt to commit robbery itself would have been enough to hold the appellants guilty. Therefore, the evidence of P.W.5, Sharad Patil in respect of recovery at the instance of accused No.3 and P.W.6 5 apeal 15 of 2008 Pareves owner of the Jewellery desinner is not material for considering the complicity of the present appellants. The evidence of P.W.8 Sharad Vichare who held the test identification parade in respect of accused No.3 is likewise not relevant for deciding the complicity of the appellants. The evidence of P.W.7 Nisar Abdul Hayat Khan, a hostile panch witness also does not contribute either way to find out whether the appellants were involved in the incident or not. 8. P.W. 1 Shambu Adhikari, who claimed to have been running the business states that he had left his shop for getting some paper, when the robbers had entered shop. He heard commotion and returned to the place when he was injured by the absconder. Learned counsel for the appellant submitted that Shambhu Adhikari has not shown that he held any licence for running such business and therefore the claim that he was dealing with jewellery ought to have been rejected by the trial Judge. Whether a person holds license or not may be an independent issue to be considered by the Municipal Authorities. The absence of licence to deal in jewellery or diamonds with Shambhu Adhikari does not give licence to the robbers to rob him. 9. Learned counsel for the appellant next submitted that no independent witness was examined to show complicity of the present appellants. P.W.1 Shambhu Adhikari, P.W.2 Tappan Das, P.W.3 Surjeet Pradhan, all working at the same 6 apeal 15 of 2008 shop stated about complicity of the two appellants. In addition P.W.4 Hamid Khan, who was Watchman or Chowkidar of the building has also stated about the complicity of the two appellants. The evidence of P. W. 2 Tappan Das show that his hands were tied by accused No.1 Hasibul Baburali Shaikh and P.W.3 Surjeet states that the accused No.2 Nagraj pointed revolver to him. The knife which was used by the absconder was also found on the spot by P.W.9 – P.S.I. Shashikant Tawade. Though there was mob who had apprehended one of the appellants, none from the mob has been examined. Therefore, learned counsel for the appellants submit that for want of an independent evidence which was available, the learned Judge should have disbelieved the testimonies of P.W Nos 1 to 4. 10. This argument of the learned counsel has to be rejected because it is not shown P.W. Nos 1 to 4 had any reason to falsely implicate the appellants. Secondly while one of the appellants was nabbed in the shop itself, second was caught by mob. Both the appellants were picked up by the police soon after the incident. Therefore, there is no reason to disbelieve the words of P.W. Nos 1 to 4 that the two appellants had participated in the attempted to robbery at the shop of P.W.1 Shambhu Adhikari. 11. P.W.9 – PSI, Shashikant Tawade, had registered offence and had conducted investigation in part. P.W.10 7 apeal 15 of 2008 Police Inspector-Munirkhan Inamdar and P.W.11- Police Inspector Ashok Surve had also conducted investigation. The evidence of P.W.9 - PSI Tawde, who had reached the spot soon after the incident and had carried the injured complainant and appellants to the hospital, is material in connecting appellants to the crime. Merely because accused No.3 was acquitted by the learned Judge as one of the witness from whom gold was recovered i.e. P.W. 5 stated that the accused No.3 also deals with gold, it does not follow that the complicity of the present appellants is ruled out. The learned Judge has rightly held both the appellants guilty of attempted robbery. In view of provisions of section 398 of the Indian Penal Code, which mandate that sentence shall not be less than 7 years, he had awarded that sentence as both appellants had participated in robbery and one of them was armed with deadly weapon i.e. revolver. In view of this, both the appeals are dismissed. (R. C. CHAVAN, J.)