APEAL.1175-07 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1175 OF 2007 Farid Mohammed @ Jafar Shaikh ...Appellant Vs. The State of Maharashtra ...Respondent *** Mr. Jagdish G. Shetty, for the Appellant. Mrs. V. R. Bhonsale, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : SEPTEMBER 28, 2010 P.C. 1. Heard the learned counsel for the appellant and the learned APP for the respondent-State. The applicant is convicted for committing the offence punishable under S. 392 read with 397 of the I.P. Code, and has been sentenced to suffer R.I. for 7 years and to pay fine of Rs. 500/-, in default to suffer R.I. for one month. 2. The prosecution case is that appellant had gone to the shop of the original complainant and asked him to give cigarette packet and thereafter threatened him with a razor and took away cash amount of APEAL.1175-07 - 2 - Rs.430/- and three cigarette packets from his shop and tried to run away. At that time the complainant raised hue and cry and therefore, according to the prosecution, the appellant was caught red-handed. In the personal search cash amount of Rs.430/-, three cigarette packets and one razor were recovered from the accused/appellant. 3. The prosecution has examined in all 9 witnesses. The learned counsel appearing on behalf of the appellant submits that – firstly, the prosecution did not examine the complainant, who was the eye witness to the said incident. He submitted that prosecution examined PW 5 Bablu Ramnarayan Pal, the another eye-witness, who was selling the clothes on the footpath. He submitted that PW 5 Bablu has not stated in his evidence that he had seen the appellant taking away cash of Rs.430/- and 3 cigarette packets from the complainant’s shop. He has merely deposed that the appellant had threatened the complainant with a knife and therefore, when the complainant raised hue & cry, people chased the accused and caught him on the spot. The learned counsel for the appellant submitted that other witnesses are merely panch witnesses and the police officers, have been examined by the prosecution. 4. The learned APP has taken me to the evidence of prosecution witness. She submitted that panchanama was prepared in the APEAL.1175-07 - 3 - presence of independent panch witnesses and that there was recovery of the cash amount of Rs.430/-, three packets of cigarette and one razor from the appellant. She submitted that version of the complainant was corroborated by the recovery of the said articles from the person of the accused/appellant. She submitted that the investigating officer has corroborated the case of the complainant. 5. I have perused the judgment of the trial Court and also the evidence adduced by the prosecution. It is an admitted position that the original complainant has not been examined by the prosecution. The only other eye witness examined was PW 5 Bablu Pal. There is substance in the submissions made by the learned counsel for the appellant that said PW 5 Bablu Pal in his evidence does not state that the appellant had taken away cash of Rs.430/- from the cash box of the complainant and 3 cigarette packets. PW 5 Bablu in his evidence stated that appellant had abused the complainant and had caught hold his collor by scruff of his neck and had again abused the complainant; and when the people gathered, the accused had removed the razor from his pocket and thereafter the complainant had raised hue and cry and therefore, the appellant started running away from the said shop. The people, however, apprehended the accused. The police van came from the opposite APEAL.1175-07 - 4 - direction and he was also apprehended by the police. PW 5 Bablu further stated that in the personal search, a razor, the cash amount of Rs.430/- and three cigarette packets were found with the accused. Perusal of this evidence clearly establishes that no evidence has been given by this witness, as alleged by the prosecution. Even if this statement of the PW 5 Bablu is accepted, at the most it would show that appellant had abused the complainant and had threatened with the razor. Taking into consideration the said evidence of PW 5 Bablu, being the sole eye witness to the incident, it cannot be said that prosecution has established commission of offence punishable under S. 392 read with 397 of the I. P. Code. 6. The submission of the learned APP on behalf of the State that one razor, three cigarette packets and cash Rs.430/- were recovered in the personal search of accused and therefore, the prosecution has established the case against the accused, cannot be accepted. Merely because razor and three cigarette packets and cash of Rs.430/- were found from the person of the accused, it does not establish that he had committed theft of said articles from the shop of the complainant. Hence, in my view, the trial Court has erred in convicting the appellant for the offence punishable under S. 392 read with S. 397 of I. P. Code. The APEAL.1175-07 - 5 - appellant has already been acquitted by the trial Court for the offence punishable under S. 37(A) read with S. 135 of the Bombay Police Act. 7. The appellant is in jail since 2nd December, 2006 and has already undergone 3 years and 9 months of sentence, out of the total sentence awarded by the trial Court. 8. At the most, the appellants should have been convicted for the offence of abusing and threatening the complainant with a knife. Since the appellant has already undergone sentence of 3 years and 9 months, in my view, it is not necessary to convict the accused for the offence, for which charge is not framed. In the result, the appeal is allowed. The impugned judgment and order passed by the trial Court is quashed and set aside and the appellant/accused is acquitted of the offence punishable under S. 392 read with 397 of I. P. Code. The appellant shall be released forth with if he is not required in any other case. [ V. M. KANADE J.]