Allowed

Rajesh Brijesh Verma v. the State of Maharashtra

Bombay HC27 Sept 2012APEAL/774/2009

Case brief

AI extract

What is this about?

In appeals against conviction for kidnapping and robbery, the High Court set aside the trial court's decision. The Court found strong indications of false implication due to the victim's delayed FIR, timing of the report coinciding with the transfer of custody, and unexplained gaps in the kidnapping narrative, ultimately acquitting the appellants.

What did the court decide?

Conviction and sentence set aside; appellants acquitted and set at liberty.

Rajesh Brijesh Verma Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2012)

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APEAL-OJG-774.2009

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE – CRIMINAL

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CRIMINAL APPEAL NO.774 OF 2009

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Rajesh Brijesh Verma,
Aged about 25 years,
residing at 69/D, Kabutar
Khana, Bhuleshwar, Mumbai.

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.... Appellant

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- Versus -
The State of Maharashtra.... Respondent

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WITH

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CRIMINAL APPEAL NO.876 OF 2009

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Shivpal Dinbandhu Singh,
Aged about 29 years,
residing at Plaza Guest
House, Mumbai Central,
Mumbai..... Appellant

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- Versus -
State of Maharashtra.... Respondent

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Ms Pallavi Bhoyar h/f Shri D.G. Khamkar
for the Appellant in Appeal No.774/2009.

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Shri Sandeep Singh for the Appellant in
Appeal No.876/2009.

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Ms U.V. Kejariwal, Additional Public
Prosecutor, for the State.

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Page 1 of 12

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APEAL-OJG-774.2009

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CORAM: R.C. CHAVAN, J.

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DATED: SEPTEMBER 27, 2012

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ORAL JUDGMENT:

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1.These two appeals question the

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conviction of the appellants by the learned
Additional Sessions Judge, Mumbai for offences
punishable under Sections 365 and 392 r/w
Sections 397 and 506 Part-II of the Indian
Penal Code (for short, “IPC”) and sentences of
rigorous imprisonment for seven years with fine

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of 500/-, in default further imprisonment for two months on each of the first two counts and rigorous imprisonment for one year with fine of`

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100/-, in default further imprisonment for one month on the third count imposed upon the appellants on conclusion of Sessions Case No.641 of 2008 before him.`

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Page 2 of 12

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APEAL-OJG-774.2009

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first informant Rakesh Tripathi was going to his hotel at Santacruz from his home situated at Lokhandwala Complex, Andheri, Mumbai by his car. When he stopped his car at a traffic signal near Aarti Hotel, the appellants, armed with a pistol and chopper, forcibly entered the car. They pointed their weapons at the victim and made the victim drive the car towards Bandra Reclamation Club, D.N. Nagar, Santacruz, Juhu, etc.. At Bandra, appellant Shivpal (accused No.1) made the victim sit on the rear seat and he took up the driver's seat. They then took the car to a dark place, tied the victim's hands and then snatched his diamond ring, a mobile handset and cash of 27,000/from him and got down from the car and fled in an autorickshaw. On 16-6-2008 the Crime Branch, on receiving some information, laid a trap at some Mall where the two appellants and two other persons were caught by the police. Appellant Shivpal was found to be in possession`

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Page 3 of 12

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APEAL-OJG-774.2009

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of a pistol, a gold chain, two finger rings,

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one currency note of 1,000/- and four currency notes of 500/-, as also a mobile handset. Appellant Rajesh (accused No.2) was found to be in possession of a hand-kerchief and a dagger with one mobile handset. It is not necessary to recount as to what was seized from accused Nos.3 and 4, since they have been acquitted by the learned trial Judge. After this the custody of the appellants and the other accused persons was made over to Oshiwara Police Station. Thereafter, at about 8:10 p.m. on 16-6-2008 the first informant Rakesh lodged a report with Oshiwara Police Station about his having been robbed on 11-6-2008. An offence was registered and in the course of investigation the police recovered some more articles at the instance of accused Nos.3 and 4, who have been acquitted. Appellant Shivpal is alleged to have shown the spot. On completion of the investigation, charge-sheet was sent to the Court of

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Page 4 of 12

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APEAL-OJG-774.2009

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Metropolitan Magistrate, 22nd Court, Andheri,
Mumbai, who committed the case to the Court of
Sessions at Mumbai.

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3.The learned Additional Sessions Judge
to whom the case was made over charged the
appellants of offences punishable under
Sections 365 and 392 r/w Section 397 and 506
Part-II of the IPC, as also Sections 3 and 4
r/w Section 25 of the Arms Act. Since all the
accused pleaded not guilty, they were put on
trial at which the prosecution examined in all
seven witnesses in its attempt to bring home
guilt of the appellants and the co-accused.
After considering the prosecution evidence in
the light of defence of false implication
raised, the learned trial Judge acquitted
accused Nos.3 and 4 of all the charges. He also
acquitted accused Nos.1 and 2, that is the
present appellants of offences punishable under
Sections 3 and 4 r/w Section 25 of the Arms

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APEAL-OJG-774.2009

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Act, but convicted and sentenced them for the
other offences, as indicated in the preceding
paragraphs. Aggrieved thereby, the appellants
are before this Court.

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4.I have heard the learned counsel for
the appellants and the learned Additional
Public Prosecutor (for short, “APP”) for the
State and with their help I have gone through
the evidence on record.

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5.PW-1 Rakesh, the victim of the crime,

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is a hotel keeper who states about the incident
dated 11-6-2008. He states that though he was
robbed by the appellants, he went to his hotel,
stayed in the hotel for sometime, went home and

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after 4-5 days narrated the incident to his
elder brother. He states that he did not inform
anyone about the incident because he feared
about the miscreants who were belonging to
Dawood gang. Curiously, he had never stated

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APEAL-OJG-774.2009

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that the miscreants told him that they belonged
to such gang. In the course of examination, he
admitted that he had many occasions to go to
police station in the past in different matters
and was acquainted with the police. Also the
police used to visit his hotel for various
purposes. Yet it is a strange co-incidence that
PW-1 Rakesh chose to go to the police station
to give a report only after the custody of the
appellants and the co-accused was transferred
to Oshiwara Police Station.

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6.The learned APP submitted that even so

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the fact that a gold ring had been seized from
appellant Shivpal, which had been identified by
PW-1 Rakesh, cannot be lost sight of. She also

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submitted that a chopper, which appellant
Rajesh had allegedly used, was also seized from
Rajesh and had been duly identified by PW-1

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Rakesh. She, therefore, submits that this
evidence coupled with the evidence of

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Page 7 of 12

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APEAL-OJG-774.2009

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identification of the appellants by PW-1 Rakesh
at a test identification parade conducted by
PW-5 Anand Nerulkar should be sufficient to
hold the appellants guilty of the offences
charged. She, therefore, submits that the
Judgment of the trial Court would have to be
upheld.

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7.Before coming to these submissions, it
would be useful to recount the evidence about
seizure of the articles from the appellants.
This is given in the form of evidence of PW-4
Mohd. Ayub Khan, who proved the panchnamas at
Exhibits-29 and 29A. These were drawn up by the
Crime Branch officers. PW-4 Mohd. Ayub Khan

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appears to be acquainted with the people in
Crime Branch, since he states in his cross-
examination that he was called at the Crime
Branch office for electrification work. He
stated that he never asked the officers about
the work for which he was called. He then

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Page 8 of 12

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APEAL-OJG-774.2009

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stated about his accompanying the police to a

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Mall where the appellants and the other co-

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accused persons were arrested. Though he stated
about the seizure of a dagger from the personal
search of accused Rajesh, and though the
dagger/chopper had been shown to PW-1 Rakesh,

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this witness was not made to identify this
dagger as the one seized from accused Rajesh.
The officer who effected this seizure was not

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examined before the trial Court. The only
police officers who were examined were PW-6

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PSI Saifuddin Shaikh, who received the report

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at 8:20 p.m. on 16-6-2008 and PW-7 API Rajesh

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Padvi, who states about recoveries made by him
at the instance of the accused persons who have
been acquitted. The evidence of PWs-2 and 3
pertains to these recoveries made by API Padvi.

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8.The learned counsel for the appellants

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submitted that this is a curious case by the
first informant, who is well acquainted with

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Page 9 of 12

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APEAL-OJG-774.2009

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the police and is a hotel keeper, who claims

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that he was forced by the appellants to drive
his car in the peak hours from 6:30 p.m. to
9:30 p.m. on the busy roads of Juhu, Santacruz
and Bandra Reclamation. This can be seen from

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the memorandum of statement made by appellant
Shivpal which is at Exhibits-44 and 44A. It is
curious that during this three-hour journey in
these busy areas, the victim's kidnapping was
not noticed by anyone. Stranger still is the
fact that the victim claimed that his hands
were tied and he was left in the car, but does
not state as to who untied his hands and how he
went back to his hotel and from there to his
home. There is absolutely no explanation except
the imagination of the victim that the
appellants belonged to Dawood gang for not
reporting the matter to the police. It is also
a strange co-incidence that only after the
custody of the accused persons was transferred
to Oshiwara Police Station, the report of the

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Page 10 of 12

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APEAL-OJG-774.2009

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first informant came to be recorded. If there

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was no report with the Oshiwara Police Station

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about the incident, it is not clear as to why
the custody of the accused persons was
transferred to Oshiwara Police Station, even
before a report was recorded. The possibility,
therefore, is that after the appellants were
apprehended the complainant was called up and
made to give a report implicating the
appellants and also describing the articles
which had already been seized as having been
either in possession of the complainant or his
having been robbed of those articles by the

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appellants. In view of this, the entire story
smacks of too many improbabilities to have been
believed by the Sessions Court. The learned

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trial Judge ought to have seen that the
unexplained delay of five days in lodging the
first information report, and the first
information report having been lodged only
after the custody of the appellants was

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Page 11 of 12

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APEAL-OJG-774.2009

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transferred to Oshiwara Police Station were
strong circumstances indicating the appellants
being implicated in an offence which the Crime
Branch had come to know of.

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9.In view of the above, both the appeals
are allowed. The conviction of the appellants
for the offences punishable under Sections 365
and 392 r/w Sections 397 and 506 Part-II of the
IPC and sentences of rigorous imprisonment for

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seven years with fine of 500/- on each of the first two counts and rigorous imprisonment for`

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one year with fine of 100/- on the third count imposed upon them are set aside. They are`

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acquitted of the said offences. The appellants
be set at liberty forthwith if not wanted in
any other case.

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Sd/-

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s.suresh

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Page 12 of 12

Rajesh Brijesh Verma v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rajesh Brijesh Verma v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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