Partly allowed

Mohammad Sajid Abdul Majid Momin v. the State of Maharashtra

Bombay HC9 Jan 2012APEAL/852/2009

Case brief

AI extract

What is this about?

High Court allowed appeal of appellant accused of dacoity, acquitting him for lack of evidence connecting him to the crime while maintaining convictions of co-accused. Court held delays in identification parades were not fatal and reduced sentence for one appellant to remove separate penalty for Section 397.

What did the court decide?

Appellant Momin acquitted. Other appellants convicted under IPC 395/397/170/342; sentence of 7 years separate for IPC 395 set aside; IPC 397 sentence maintained.

Mohammad Sajid Abdul Majid Momin Vs the State of… — Criminal Trial and Appeal | Bombay HC (2012)

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Apeal 852-09

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Anand

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL APPEAL NO.852 OF 2009

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Mohammad Sajid Abdul .Appellant
Majid Momin
Age:31 yrs,
R/o.Babasaheb Ambedkar Nagar,
Colaba, Cuffe Parade Zopadpatti,
Mumbai.

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 V/s.
The State of Maharashtra.Respondent

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WITH

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 CRIMINAL APPEAL NO.218 OF 2009

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1.Prakash Janu Patade.Appellants
Age:23 yrs,
R/o.B.M.Patra Chawl,
Room No.11, Acharya Donde
Marg, Sewree,
Mumbai � 400 015.
2.Ganesh alias Ganya Motiram Katawate
Age:29 yrs,
R/o.Building No.10, Room No.14,
Transit Camp, T L Sadhu Vaswani Marg,
Cuffe Parade,
Mumbai � 400 005.

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3.Vijaydip alias Gotya
Dwarkanath Bhole
Age:33 yrs,
R/o.Ashirwad Building, B-wing,
Room No.405, Acharya Donde
Marg, Sewree,
Mumbai � 400 15.

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Apeal 852-09

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 V/s.

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The State of Maharashtra.Respondent

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WITH

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CRIMINAL APPEAL NO.366 OF 2009

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Prakash Vasant Bane alias.Appellant
Taklya Pakya
Age:35 yrs,
R/o.Amar Vikas Mandal,
Room No.15, Sewree Cross road,
Near Excellence High School,
Wadala(W)
Mumbai � 400 031.

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 V/s.

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The State of Maharashtra.Respondent

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WITH

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CRIMINAL APPEAL NO.257 OF 2009

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Mahendra Rajaram Bhuvad.Appellant
Age:26 yrs,
R/o.Pragati Co-operative
Housing Society, Subhash road,
Kuberkhana Path, Dombivali(W),
District � Thane.

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 V/s.

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The State of Maharashtra.Respondent

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WITH

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Apeal 852-09

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 CRIMINAL APPEAL NO.226 OF 2010

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Amit Kumar Upendra Pathak.Appellant
Age:26 yrs,
R/o.Babasaheb Ambedkar Nagar,
Behind Backbay Agar Bus Depot,
Cuffe Parade,
Mumbai � 400 005.
 V/s.

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The State of Maharashtra.Respondent

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Mr.Jagdish Shetty h/f. Mr.S.C.Kanojia, Advocate,
for the Appellant in Cri.Appeal No.852 of 2009
Mr.Rajbali Dube, Advocate, for the Appellants in
Cri.Appeal Nos.218 of 2009 and 226 of 2010
Mr.Rajesh Datar, Advocate, for the Appellant in
Cri.Appeal No.257 of 2009

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Mrs.M.R.Tidke, APP, for the Respondent � State
in all matters

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RESERVED ON:28TH NOVEMBER, 2011
PRONOUNCED ON:9TH JANUARY, 2012
CORAM:R.C.CHAVAN, J.

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JUDGMENT

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.These five Appeals are directed against
conviction of seven appellants by the learned
Additional Sessions Judge, Sewree, Mumbai for
the offences punishable under Sections 395, 397,
170 and 342 of the Indian Penal Code and

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4Apeal 852-09

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sentences of R.I. for seven years with a fine of

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5000/- or in default S.I. for one year on the first two counts, R.I. for one year with a fine of 1000/- or in default S.I. for one month on the third count, R.I. for one month with a fine

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of 500/- or in default S.I. for seven days on the fourth count imposed upon the appellants on the conclusion of Sessions Cases Nos.971 of 2006 and 218 of 2007 before him. The learned Judge acquitted the appellant Mohammad Sajid Abdul Majid Momin, accused No.1 of the offence punishable under Section 342 of the Indian Penal Code and acquitted all the appellants of the offence punishable under Section 135 of the Bombay Police Act.`

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2.Facts which are material for deciding
these appeals are as under :-

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On 19th July, 2005 at about 11:00 a.m.

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when Gaurang Shah and members of his family were

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busy in household activities in their flat, one

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5Apeal 852-09

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of the appellants enquired through half open
door of the house about one Jayant. He was told
that there was no person by name Jayant in the
family. The miscreant was asked as to what was
the address given, whereupon the miscreant
insisted that the address given was the same
where complainant's family resided. He told
that he was from the Income Tax Department.
Gaurang Shah went up to the door and found six
more persons. All of them entered complainant's
house and asked him to call all the family

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members. The miscreants displayed their weapons
and detained family members at various places in
the house. They forced family members to open
cupboards and took away cash and jewellery.
They tied up the complainant and gaged him by
pasting a tape over his mouth and then decamped
with the booty.

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3.The complainant managed to untie

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himself and untied his father. He also released

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6Apeal 852-09

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other family members and rushed outside in

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search of the miscreants, who were not to be
found. He went to the police station and gave a
report describing the miscreants. An offence
was registered and investigation commenced. The
police performed panchanama of spot and arrested
some of the miscreants in July, 2006 i. e. about
an year after the incident. Accused No.7
Prakash Bane was arrested on 23rd November, 2006.
In course of investigation, the police recovered
a chopper from accused No.2 Prakash Patade. On
the basis of information given by accused No.1

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Mohammad Sajid Abdul Majid Momin, three
necklaces and an ear ring were recovered from
one Rupkala Art, a Jewellery Shop. Another
chopper was recovered at the instance of accused
No.4 Ganesh Katawate. On the information given
by accused No.3 Mahendra Bhuvad, a ring was
recovered. The articles seized were shown to
the complainant in presence of panchas and the
complainant identified those articles. A

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Apeal 852-09

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panchanama was drawn up.

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4.On 31st July, 2006 the Special Executive
Officer was requested to hold identification
parade. In the identification parades held in

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Arthur Road Prison and Central Jail, Thane, some
of the accused persons were identified. After

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the arrest of accused No.7 Prakash Bane, he was
also subjected to identification parade in
Arthur Road Prison, Mumbai before another

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Special Executive Officer. After completing
investigation in respect of first 6 accused
persons, charge sheet, which came to be numbered
as Sessions Case No.971 of 2006, was filed, and
after completing investigation about the
complicity of accused No.7, a supplementary
charge sheet was filed, which came to be

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numbered eventually as Sessions Case No.218 of
2007. After the cases were committed by the

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learnedAdditionalChiefMetropolitan

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Magistrate, 22nd Court, Mazgaon, Mumbai to the

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Apeal 852-09

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Court of Session, the learned Additional
Sessions Judge to whom the case was made over,

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charged the appellants of the offences
punishable under Sections 395, 397, 170, 342 of

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the Indian Penal Code and under Section 135 of
the Bombay Police Act. Since they pleaded not

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guilty, they were put on trial at which the

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prosecution examined in all 18 witnesses in its
attempt to prove guilt of the accused. After
considering their evidence in the light of
defence of false implication, the learned
Additional Sessions Judge convicted and
sentenced the appellants as mentioned earlier.
Aggrieved thereby, they are before this Court.

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5.I have heard the learned counsel for

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the appellants and the learned APP for the

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respondent � State. With the help of both the
learned counsel I have gone through the evidence
on record. The evidence against the persons

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accused could be tabularised as under :

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Apeal 852-09

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`No` `.`	`Name of` `accused`	`date` `of` `arre` `st`	`Recovery` `if any`	`date/` `s`	`Exh.` `no.`	`Witnesses` `P.W.No./` `Name`	`date` `of` `T.I.` `para` `de`	`Exh` `.` `no.`	`Witnesses` `P.W. No./` `Name`	`Remarks`
`1`	`Sajid` `Momin` `(ii)`	`12.7` `.` `06`	`Three` `necklaces` `,` `one pair` `of` `earrings`	`19.7.` `06`	`51/51` `A`	`18/I.O.` `P.I.` `Desai` `6,15/Panc` `has` `Ibrahim` `Shaikh,` `Subhash` `Shirsat` `13/purcha` `ser Dilip` `Kothari` `14/Sabina` `Memon[i]`	`17.8` `.` `06`	`26`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao` `13/purcha` `ser Dilip` `Kothari`	`[i]Sabina` `did not` `identify` `ornaments` `.` `[ii] Not` `identifie` `d by any` `eye` `witness`
`2`	`Praka` `sh` `Patade`	`13.7` `.06`	`chopper,` `ring`	`19.7.` `06`	`16/16` `A`	`18/I.O.` `P.I.` `Desai` `1,2/Panch` `as` `Murlidhar` `Patil[iii` `], Laxman`	`31.7` `.` `06`	`25`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao[i` `v]` `5/victim` `Gaurang` `7,11/eye` `witnesses` `Harshal,` `Mehul`	`[iii]Does` `not` `identify` `A/2,` `identifie` `s A/6` `Vijaydeep` `as the` `person at` `whose` `instance` `recovery` `was made.` `[iv]PW4` `admits` `signature` `s &` `admits` `that TI` `parades` `were held` `only on` `cross by` `APP.`
`3`	`Mahendr` `a` `Bhuvad`	`13.7` `.06`	`[brass?]` `ring`	`23.7.` `06`	`62,62` `A`	`18/I.O.` `P.I.` `Desai` `8,15/Panc` `has` `Ganesh` `Subhash` `Shirsat`	`31.7` `.` `06`	`25`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao[i` `v]` `5/victim` `Gaurang,` `7,11/eye` `witnesses` `Harshal,` `Mehul`

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Apeal 852-09

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`4`	`Ganesh` `Katwate`	`13.7` `.06`	`chopper`	`20.7.` `06`	`18,18` `A`	`18/I.O.` `P.I.` `Desai` `1,6/Panch` `as` `Murlidhar` `Patil,` `Ibrahim` `Shaikh`	`31.7` `.` `06`	`25`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao[i` `v]` `5/victim` `Gaurang,` `7,11/eye` `witnesses` `Harshal,` `Mehul`
`5`	`Amit` `Pathak`	`24.7` `.06`	`chopper`	`1.8.0` `6`	`52,52` `A` `89.89` `A[v]`	`18/I.O.` `P.I.` `Desai` `6,15/Panc` `has` `Ibrahim` `Shaikh,` `Subhash` `Shirsat`	`17.8` `.` `06`	`26`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao[i` `ii]` `5/victim` `Gaurang` `7,11/eye` `witnesses` `Harshal,` `Mehul`	`[v]Not` `relevant-` `no` `recovery,` `about` `spot`
`6`	`Vijayde` `ep` `Bhole` `[vi]`	`31.7` `.06`	`chopper`	`7.8.0` `6`	`90/90` `A`	`18/I.O.` `P.I.` `Desai` `15/Pancha` `s` `Subhash` `Shirsat,`	`21.8` `.` `06`	`27`	`9/ SEO` `Vilas` `Patil` `4/panch` `Shamrao[i` `ii]` `5/victim` `Gaurang` `7,11/eye` `witnesses` `Harshal,` `Mehul`	`[vi][P.W.` `1` `Murlidhar` `does not` `say` `anything]`
`7`	`Prakash` `Bane`	`23.1` `1.06`	`Two` `bangles`	`7.12.` `06`	`28,28` `A`	`18/I.O.` `P.I.` `Desai` `4,8/panch` `as` `Shamrao,` `Ganesh,` `7/` `purchaser` `Vishal` `Bhati` `[vii]`	`21.1` `2.06`	`29`	`10/SEO` `Vinod` `Divecha` `9/ SEO` `Vilas` `Patil` `4,8/panch` `as` `Shamrao,` `Ganesh` `5/victim` `Gaurang` `7,11/eye` `witnesses` `Harshal,` `Mehul`	`[vii]Vish` `al states` `that he` `melted` `bangles,r` `emade` `them &` `sold to` `other` `customers` `.`

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Apeal 852-09

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6.PW-5 Gaurang Shah the first informant,

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states about the manner in which the incident

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took place. He states that one of the

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miscreants took him to the room where there was
a cupboard. Jewellery had been removed from one

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of the cupboards. He stated that he and his brother were asked to open the other cupboard. They avoided, but eventually the miscreants opened the other cupboard and carried away cash from the said cupboard. He claims to have released his family members after the miscreants left and then gave a report vide Exhibit 34 to the police. He stated that Gold ornaments weighing 530 Grams, Silver ornaments weighing 300 Grams and 1,50,000/- in cash were stolen. He claims to have identified in July, 2006 some of the ornaments. He states that on 31<sup>st</sup> July, 2006 in Arthur Road Jail he identified accused No.2 Prakash Patade, accused No.3 Mahendra`

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Bhuvad and accused No.4 Ganesh Katawate. On 17th

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August, 2006 in Central Prison, Thane he

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Apeal 852-09

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identified accused No.5 Amit Kumar. He stated
that either on 21st or 31st August, 2006 in Arthur
Road Prison he identified accused No.6 Vijaydip
Bhole and on 21st December, 2006 he identified
accused No.7 Prakash Bane. In cross examination
he admitted that the ornaments were not shown to
him at the police station by mixing them with
other ornaments. He admitted that some of the
things which he stated in his examination-in-
chief were not in his report. He stated in
cross-examination that on 31st July, 2006 as also
on 21st August, 2006, he, his father and brother
had gone together at the venues of
identification parade. He stated that there was
no person with turban in the identification
parade held on 31st July, 2006. He stated that
the place where the Test Identification Parades
were held in Arthur Road Prison was covered by
net but the person standing outside could see
what was happening at the venue of Test
Identification Parade.

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13Apeal 852-09

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7.PW-7 Harshad Shah is a father of

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Gaurang. He corroborates Gaurang substantially
on the manner in which the incident took place.

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He stated that cash of 54,000/- kept in his`

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brief case was taken away apart from cash of `

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cupboards. He stated that after one year he was

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called in Dongri Police Station where he had

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gone along with his son Gaurang and nephew

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Nilesh where he identified all the Gold

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ornaments. He stated that they were called for
identification of accused persons four times.

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First, in the Arthur Road Jail, he identified

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three accused persons i. e. accused Nos.2, 3 and

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4. On the second occasion, in Thane Central

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Prison, he identified accused No.5. In the

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third parade, in Arthur Road Jail, he identified

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accused No.6 and lastly, again in Arthur Road

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Jail, he identified accused No.7. He was

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categorical that accused No.1 was not seen at

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the time of incident in the house. He admitted

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Apeal 852-09

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that several things which he had stated before

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the Court were not in his statement before the
police.

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8.PW-11 Mehul Shah is complainant's

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cousin, who was present at the time of incident
and corroborated substantially the evidence of
PWs 5 and 7. He too stated that he had been to
identify the appellants at Test Identification
Parade in Arthur Road Prison and Thane Central
Jail. He stated that he had identified accused
No.5 Amit Kumar in Thane Central Jail, accused
No.7 Prakash Bane and accused No.3 Mahendra
Bhuvad in Arthur Road Prison (when they were in
fact not paraded together), but stated that he
could not identify the person, who had come to
the house with turban, and also could not
remember whom he had identified in the first
identification parade in Arthur Road Prison.

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9.PW-9 Special Executive Officer Vilas

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15Apeal 852-09

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Patil stated having conducted identification

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parade in Arthur Road Jail on 31st July, 2006 at

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which PW-1 Gaurang Shah identified accused

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Mahendra Bhuvad and Ganpat Katawate as well as
Prakash Patade. He stated that the other eye
witnesses too identified these persons. The

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witness proved panchanama of this Test

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Identification Parade vide Exhibit 25. He

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stated that again on 17th August, 2006 he
conducted Test Identification Parade in Thane

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Central Jail where Gaurang Shah and two other

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eye witnesses identified accused No.6 Vijaydip.

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Accused No.1 too seems to have paraded at this
parade but was not identified by any one.
Accused No.1 Mohammad Sajid Abdul Majid Momin

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was identified by a Gold Smith as the person,

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who had come with a Muslim woman and sold

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ornaments worth 62,000/- to him. The`

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witnesses proved the memo of his Test

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Identification Parade vide Exhibit 24. The
witness further stated that on 21st August, 2006

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Apeal 852-09

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he had again conducted Test Identification

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Parade at Arthur Road Prison where the witnesses

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are stated to have identified accused No.6
Vijaydip Bhole, who is supposed to have visited
house of the complainant wearing tie. He also

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stated that he did not know about any
interaction between the first and the second
identifying witnesses after the first had
identified the suspects, and before second came.
In cross examination, this witness as also PWs
5, 7 and 11 stated that dummies were different
in age, heights, complexion and built from the
suspects.

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10.PW-10 Vinod Divecha is another Special
ExecutiveOfficer,whoconductedTest

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Identification Parade vide Exhibit 29.

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Curiously, there is no examination-in-chief of

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this witness and the prosecutor seems to have

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simply given up the witnesses for cross
examination. PW-8 Ganesh Surve stated that he

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Apeal 852-09

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was panch at the Test Identification Parade held
by PW-10 Vinod Divecha in Arthur Road Prison
vide Exhibit 29.

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11.In addition to the witnesses referred
to above, among those examined is, PW-3 Madan
Dhediya, a panch at the spot panchanama Exhibit
21 recorded by police on 19th July, 2005. The
situation on the spot observed by this witness
corroborates the version of the first informant.

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12.PW-4 Shamrao Bhavekar and PW-8 Ganesh
Surve are panchas in whose presence three sealed
packets containing ornaments were opened by the
police on 26th July, 2006. They stated that the
panchanama was drawn vide Exhibit 23 and the
packets were sealed vide Exhibit 24. PW-4

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Shamrao Bhavekar was declared hostile and upon

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cross examination by the learned APP, he
admitted that the complainant and witnesses were
shown the ornaments in his presence.

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18Apeal 852-09

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13.PW-12 Vishal Bhati is a Jeweller, who

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states that accused No.7 Prakash Bane had sold

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to him two Bangles for 12,000/- about 7-8 months before seizure, which he had melted, remade and sold to other customers.`

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14.PW-13 Dilip Kothari is another

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Jeweller, who states that he knew PW-14 Sabina
Memon, who had sold some ornaments to him in

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August, 2005 for a sum of 62,000/-. He stated that on 19<sup>th</sup> July, 2006 he had produced the ornaments before the police. He also claimed to have identified accused No.1 Sajid Memon at Test Identification Parade held in Thane Central Jail. He claimed that he knew`

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accused No.1 Sajid as husband of Sabina.

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15.PW-14 Sabina Memon states that accused

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No.1 Mohammad Momin was a friend of her husband,
who had given her Gold ornaments for which she

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had received a sum of 62,000/- from PW-13`

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19Apeal 852-09

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Dilip Kothari, which amount she had paid to
accused No.1 Sajid Momin. She, however, refused
to identify the ornaments.

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16.PW-16 API Gulab Mahadik states about

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proclamation of prohibitory orders under Section
37 of the Bombay Police Act (for making out
offence punishable under Section 135 of the
Bombay Police Act). PW-17 PSI Sahebrao Patil
received report vide Exhibit 34 and performed
panchanama of spot vide Exhibit 21. PW-18 PI
Dinesh Desai conducted investigation and states
about disclosures by accused persons and
recoveries made.

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17.The learned counsel for appellant
Sajid Momin submitted that the learned trial
Judge could not at all have even charged the
appellant of the offence punishable under
Section 395/397 of the Indian Penal Code, since
there was absolutely no evidence of his

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Apeal 852-09

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complicity in the dacoity. Even according to

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the prosecution, he was not stated to be present

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at the time of dacoity. The allegation of his

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complicity comes from what co-accused allegedly
disclosed to police during investigation � that

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he had planned the heist � which, apart from
being inadmissible, is not even stated in

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evidence. He submitted that even alleged

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recovery of gold ornaments at his instance on
19th July, 2006 was insufficient to brand him as

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receiver of property involved in theft. For
this purpose, he placed reliance on Judgment of

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Supreme Court in State of Rajasthan versus

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Talevar & Anr., reported at 2011(3) Crimes 61
(SC).

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18.Though the learned APP sought to make

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out that accused No.1 Sajid Momin was mastermind

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behind the dacoity, there is absolutely no
evidence of his involvement in dacoity. As
regards recovery of ornaments at his instance on

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21Apeal 852-09

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19th July, 2006 vide Exhibit 51/51A, an year

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after the incident, or identification of
ornaments seized by PWs 5, 7 and 11, vide
Exhibit 23, it is difficult to believe that a
jeweller purchasing ornaments would keep them
intact for almost one year from August, 2005 to
July, 2006. This is, particularly so, since FIR
Exhibit 34 does not contain any description of
these articles 6A, B, C and article 7 allegedly
seized at the instance of accused No.1 Sajid
Momin. These reasons would also hold good for
recoveries of ornaments at the instance of other
accused persons. In fact, PW-12 Vishal Bhati,
another jeweller candidly stated that he melted
the bangles purchased, prepared new bangles and
sold them to another customer. Therefore, the
recovery of two bangles at the instance of
appellant Prakash Bane vide Exhibit 28/28A or
identification of those bangles article 8 by PWs
5, 7 and 11 is meaningless. As far as seizure
of ring at the instance of appellant Prakash

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22Apeal 852-09

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Patade vide Exhibit 16/16A is concerned, this was not the stolen ring but one allegedly purchased by him from 5000/- which was his share of booty.`

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19.As for recovery of choppers, there is

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no special mark which could distinguish them
enabling PWs 5, 7 and 11 to identify them as
brandished by particular appellants. Mercifully
the witnesses were not asked to identify

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choppers. Therefore, the evidence about
recoveries effected at the instance of

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appellants, apart from being weak evidence, is
grossly inadequate to connect appellants to the
crime. Learned counsel for Amit Kumar relied on
Judgment of Supreme Court in RAMBILAS AND OTHERS
Versus STATE OF M.P., reported at 1997 Supreme

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Court Cases (Cri) 1222 for this purpose.

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20.This takes me to the identification of
appellants (except Mohammad Momin) by PWs 5, 7

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Apeal 852-09

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and 11 in Court, corroborated by identification

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at test identification parades held before
Special Executive Officers PW-9 and 10. The
learned counsel for appellants submitted that
the evidence ought to have been rejected by the
learned trial Judge as test identification
parades were held over an year after the
incident and also much after the appellants
concerned were arrested, affording opportunity
to the witnesses to see the appellants while in
custody of police. For this purpose, reliance
was placed on Judgment of this Court in The
State of Maharashtra Vs. Rajesh Alias Kaka

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Madanlal Soni & Ors, reported at 1998 ALL MR
(Cri) 471 and that of Supreme Court in Rajesh
Govind Jagesha Vs. State of Maharashtra,
reported at 2000 ALL MR (Cri) 258. There can be
no doubt about the proposition that test
identification parades have to be held promptly
after arrest of accused persons and delay in
holding parades would not only expose the

¶200

24Apeal 852-09

¶201

prosecution to charge of tampering but would
also put a question mark on ability of witnesses
to identify culprits after a long gap. However,

¶202

as rightly submitted by the learned APP, the
question of reliability of identification is in
the realm of appreciation of evidence and
therefore, there cannot be any rule about
acceptance/rejectionofevidenceof

¶203

identification at parades held within/beyond any
fixed time. This is so because, if miscreants
in a serious crime, successfully evade arrest
for over an year or longer period and they have
to be acquitted only because of passage of time,
serious crime will go unpunished. Therefore,
delay in holding parade per se cannot always be
fatal.

¶204

21.As far as delay in holding parade after

¶205

arrest of appellants, it may be noticed from the
table in para 5 that in cases of each of the
appellants, parade has been held within a

¶206

25Apeal 852-09

¶207

month. In case of accused Nos.2, 3 and 4, it
was held within eighteen days of their arrest,
accused No.5 within 24 days of his arrest and
accused Nos.6 and 7 within 21 and 28 days of
their arrest, which is not abnormal. Therefore,
this ground is not available to appellants.

¶208

22.The learned counsel for appellants

¶209

submitted that PWs 5, 7, 11 as also 9 and 10
admit that dummies and the suspects were not
similar in their appearance and therefore,
parades are vitiated. It was also submitted
that witnesses had an opportunity to see the
suspects, who had been taken for effecting
recoveries before being paraded and even at the
venues of parades. It was submitted that it was
not ensured that first identifying witness would
not communicate with the next after leaving the
parade site.

¶210

23.As rightly pointed out by the learned

¶211

¶212

Apeal 852-09

¶213

APP, it would be impossible to find dummies
exactly similar in built/complexion etc. with
each suspect. As far as turban worn by one of

¶214

the suspects, since it is not that he was a
Sikh, he could have paraded himself without a
turban. In any case, PW-11 Mehul Shah could not
identify the person who had come with a turban.
So turban did not mark out the accused. PW-18
Investigating Officer, Shri Dinesh Desai had
categorically stated that whenever he took each
accused for effecting recovery, he had covered
up the suspect with a veil. There is no reason
to disbelieve his word. As to the holding of
parade in a place having a wive mesh partition,
this in itself would not be enough to conclude
that witnesses outside had chance to note, who
was being identified or to know from identifying
witness before going in as to whom such witness
had identified. Evidence of PWs 9 and 10 shows
that they had taken all prescribed precautions
while conducting parades. Had the prosecution

¶215

27Apeal 852-09

¶216

cooked up evidence of PW-11 Mehul Shah would not
have come up with a discrepant version. Ability
to observe and retain in memory differs from
person to person. Therefore, there is no reason
to discard the evidence about identification of
appellant Nos.2 to 7 by PWs 5 and 7, and to a
certain extent even by PW-11.

¶217

24.The learned counsel for the appellants
also submitted that if the evidence about
recoveries and identification of property seized
is to be excluded, it would be impermissible to
hold the appellants guilty of serious offences
of dacoity only on the basis of identification
at test identification parade held after one

¶218

year of theincidentandsubsequent

¶219

identification in the Court. I am afraid that
this argument cannot be accepted because there

¶220

can be cases where there may be no identifiable
property lost, like currency notes, or there may
be no recovery of any property at all. If the

¶221

¶222

Apeal 852-09

¶223

arguments were to be accepted, it would imply
that in every case where there is no recovery of
property or no identification of property
recovered, the accused would have to be
acquitted, irrespective of whether their
complicity is proved by other evidence or not.
In the instant case, there are eye witnesses,
who have identified the miscreants and also have
described the role played by each of them.
There is no reason to discard this evidence. In
view of this, complicity of the appellants would
have to be determined on the basis of their
identification by eye witnesses.

¶224

25.As already observed, the appellant
Sajid Mohammad has not been identified as
participant in dacoity. More over, it is
nobody's case that he was present when dacoity
was committed. The ornaments seized at his
instance cannot be connected to those stolen by
unimpeachable evidence. In view of this, his

¶225

¶226

Apeal 852-09

¶227

complicity must be held as not proved beyond the

¶228

pale of doubt and he would be entitled to be
acquitted. As far as other appellants are
concerned, their identification by eye witnesses
has to be accepted and therefore, their
conviction for the offences punishable under
Sections 395 read with Section 397, Section 342
and Section 170 of the Indian Penal Code has to

¶229

be maintained. However, Section 397 of the
Indian Penal Code only provides for aggravated
sentence for the offence punishable under

¶230

Section 395 of the Indian Penal Code, if
committed by using deadly weapons. Therefore,

¶231

there was no warrant for inflicting a separate

¶232

sentence for these two offences. To that

¶233

extent, the appeals of remaining appellants
would have to be allowed.

¶234

26.In the result, Criminal Appeal No.852

¶235

of 2009 by Mohammad Sajid Abdul Majid Momin is

¶236

allowed. His conviction for the offences

¶237

30Apeal 852-09

¶238

punishable under Sections 395, 397 and 170 of

¶239

the Indian Penal Code and sentences imposed upon

¶240

him for those offences is set aside. He is

¶241

acquitted of those offences and shall be set at liberty, if not wanted in any other case. Criminal Appeal Nos.218 of 2009, 366 of 2009, 257 of 2009 and 226 of 2010 are partly allowed. Conviction of the appellants is altered to one for the offence punishable under Section 395 read with Section 397, 170 and 342 of the Indian Penal Code. The sentence of R.I.for seven years with a fine of 5000/- or in default S.I. for one year separately imposed for the offence punishable under Section 395 of the Indian Penal Code is set aside. The remaining sentences, including sentence of R.I.for seven years with a`

¶242

fine of 5000/- or in default S.I. for one year for the offence punishable under Section 397 of the Indian Penal Code are maintained, since the sentence imposed for the offence punishable under Section 397 of the Indian Penal Code is`

¶243

31Apeal 852-09

¶244

the minimum prescribed for the offence in which
deadly weapons like choppers were used to put
the victim in fear of death or grievous hurt.

¶245

(R.C.CHAVAN, J.)

Mohammad Sajid Abdul Majid Momin v. the State of Maharashtra

Case brief

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Mohammad Sajid Abdul Majid Momin v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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