1 Cri.Appln.No.3013/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3013 OF 2011 IN CRIMINAL APPEAL NO.367 OF 2011 Sharifbaba @ Raju Abdul Kadar & anr. ... APPLICANTS VERSUS The State of Maharashtra ... RESPONDENT ..... Shri R.S. Shinde, Advocate holding for Shri N.L. Choudhari, Advocate for applicant Shri T.S. Lodhe, A.P.P. for respondent ..... CORAM : U.D. SALVI, J. DATED : 22nd September, 2011. PER COURT : 1. Heard. Perused application and the record. The applicants/ accused have preferred an appeal against the judgment and order dated 16.6.2011, convicting and sentencing them as under:- (i) The applicant/ accused Sharifbaba @ Raju of the offence punishable under Section 395 read with Section 397 of the Indian Penal Code and sentenced to suffer R.I. for 10 2 Cri.Appln.No.3013/2011 years and to pay fine of Rs.5000/-, in default to undergo further R.I. for 100 days. (ii) The applicant/ accused Sharifbaba @ Raju of the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. for two years and to pay fine of Rs.5000/-, in default to undergo further R.I. for 100 days. (iii) The applicant/ accused Abdul Kayyum of the offence punishable under Section 395 of the Indian Penal Code and sentenced to suffer R.I. for 7 years and to pay fine of Rs. 1000/-, in default, to undergo further R.I. for 50 days. (iv) The applicant/ accused Abdul Kayyum of the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. for 1 year and to pay fine of Rs.500/-, in default to undergo further .RI. for 10 days. in Sessions Case No. 02/2009, by learned Additional Sessions Judge, Nandurbar, and now the applicants/ accused are seeking bail in the said appeal. 2. According to the prosecution, it was the case of daylight dacoity, involving use of fire arms i.e. 10 persons including 3 Cri.Appln.No.3013/2011 the applicants/ accused robbed the complainant Nilesh Sonar, a jeweller and his worker P.W.2 Jeetu Sonar of three satches containing gold and silver ornaments worth Rs.11,00,000/- while they were about to open their jewel shop by name Shree Jewellers at Tilak Road, Nandurbar in or about 8.30 a.m. on 8.6.2008. In doing so, shots were fired from the fire arm on injured P.W.2 Jeetu. The dacoints had come to the said shop on a bike and in a Santro Car. While they fled away from the said place, one of them, the accused No.1 Deepak Sangle could not board the Santro Car and was caught by the public while he was running away from the said spot. Investigation led to 6 accused, 2 of them being applicants/ accused in this application. 3. Learned Advocate for the applicants pointed out from the impugned judgment that, the learned trial Court had found the test identification parade faulty and as such, the involvement of the applicants/ accused in the crime alleged, is doubtful. However, it is seen from the impugned judgment that the applicants/ accused were identified by both the witnesses in the Court and there is evidence of discovery of golden ornaments bearing specific markings “S.K.” of the jeweller’s shop run by the complainant and of the revolver used in the crime. Learned trial Court had considered every piece of evidence and on sifting evidence, found 4 Cri.Appln.No.3013/2011 involvement of the applicants/ accused and the accused No.1 Deepak Sangle in the present crime. Learned trial Court rejected the defence that the accused, who are the residents of Mumbai, had come to Nandurbar to pay religious visit to a local Dargah with a clear finding that the place where the said shop was situated, was not on the way to the said Dargah. 4. Prima facie the involvement of the accused in the crime is seen. Suspension of the sentence is, therefore, not warranted. The application is, therefore, rejected. ( U.D. SALVI, J. ) fmp/cri3013.11