Dismissed two criminal revisions challenging convictions and sentences for theft where the High Court declined to reappreciate evidence already evaluted by trial and appellate courts.
Revision Applications No. 185 and 186 of 2013 dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri.Rev.Appln185.13.odt
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 185 OF 2013
Nijam Gayasuddin Shaikh Age : 35 years, Occ : Labourer, R/o Nandurbar, Tq. & Dist. Nandurbar
.. PETITIONER
-VERSUS-
The State of Maharashtra Through Police Station Officer, City Police Station, Nandurbar.
.. RESPONDENT
WITH CRIMINAL REVISION APPLICATION NO. 186 OF 2013
Aminsha Roshansha Fakir Age : 35 years, Occ : Labourer, R/o Nandurbar, Tq. & Dist. Nandurbar
.. PETITIONER
-VERSUS-
The State of Maharashtra Through Police Station Officer, City Police Station, Nandurbar.
..RESPONDENT
... Advocate for Applicant : Mr. R.C. Patil APP for Respondent : Mr. S.R. Palnitkar
CORAM : A.M. THIPSAY, J. Dated: November 18, 2013
ORAL ORDER :-
Both these revisions can be conveniently
disposed of by this common order, as the
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applicants in both the revision applications
were convicted on a single trial and on the
basis of the same evidence.
2.The applicant Nijam (Revision Application
No. 185 of 2013) was the accused no.2 and the
applicant Aminsha (Revision Application No.186
of 2013) was the accused no.3 in R.C.C. No.
232 of 2011. There was one Yunus Shaikh Umar,
who was accused no.1 in the said case. The
applicants and the said accused no.1 Yunus
were prosecuted on the allegations of having
committed offences punishable under Section
457 of the Indian Penal Code (IPC) and section
380 of IPC read with section 511 of IPC, read
with Section 34 of IPC.
After holding a trial, the learned
Judicial Magistrate, First Class, Nandurbar,
held the applicants and said accused no.1
3 Cri.Rev.Appln185.13.odt
Yunus guilty of the aforesaid offences and
sentenced them to suffer rigorous imprisonment
for two years and to pay a fine of Rs. 500/-
with respect to the offence punishable under
Section 457 of IPC read with section 34 of IPC
and to suffer rigorous imprisonment for one
year and to pay a fine of Rs. 500/- with
respect to the offence punishable under
Section 380 of IPC read with Section 511 of
IPC, read with section 34 of IPC. The learned
Magistrate directed that the substantive
sentences shall run concurrently.
Aggrieved by the order of conviction and
the sentences imposed upon them, the
applicants moved the Court of Sessions by
filing two separate appeals, which were
disposed of by a common judgment and order by
the learned Additional Sessions Judge,
Nandurbar. The learned Additional Sessions
Cri.Rev.Appln185.13.odt
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Judge held that the case against the
applicants had been proved; that their
conviction and the sentences imposed upon them
were proper, and that, no interference in the
matter was needed. Holding so, he dismissed
the said appeals.
It is under these circumstances that the
applicants have approached this Court by
filingaforesaidRevisionApplications
challenging the legality, propriety and
correctness of the conviction recorded by the
learned Magistrate and the sentences imposed
upon them, which conviction and sentences, as
aforesaid, have been upheld by the Court of
Sessions.
3.Since some contentions with reference to
the evidence adduced during the trial were
sought to be advanced by Mr. R.C. Patil, the
Cri.Rev.Appln185.13.odt
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learned counsel for the applicants, he was
called upon to annex the copies of the notes
of evidence adduced during the trial, so as to
enable this Court to understand and consider
the contentions. However, after taking one or
two adjournments thereafter, the learned
counsel for the applicants submitted that he
did not want to annex the copies of the notes
of evidence, adduced during the trial and
would argue the matter on the basis of the
judgment delivered by the trial Court as well
as the judgment delivered by the appellate
Court. I have, therefore, dispensed with the
necessity of annexing the copies of the notes
of evidence to the Revision Applications and
the revision applications are being decided
after going through the same, Annexures
thereto and the Written Notes submitted by the
learned counsel for the applicants in support
of the Revision Applications.
Cri.Rev.Appln185.13.odt
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4.I have carefully gone through the judgment
delivered by the trial Court as also the
judgment delivered by the appellate Court.
5.The prosecution case, as put forth before
the trial Court, was in brief, as follows:-
That Prasad Shroff, the first
informant (P.W.1), is a goldsmith and
manufactures ornaments. He had his factory
behind Lokmanya Tilak Library at Saraf Bazar
at Nandurbar. That, on 26.07.2011 at about
8.30 p.m., he had locked the doors of his
factory and had left for his home. In the
night between 26.07.2011 and 27.07.2011 at
about 2.15 a.m., he received a telephone call
from one Vasantbhai Gohil, who resides behind
the factory of Prasad Shroff. Vasantbhai
Gohil told Prasad Shroff that thieves had
entered inside the factory, and that, the
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police had caught them red handed. Prasad
Shroff then went to the factory, where he
found that three persons had been apprehended
by the police. He also noticed that the locks
of the doors were broken and drawers of the
tables had been opened. The articles in the
factory were lying scattered. There was also
one iron rod. The police disclosed the name
of three persons, who had been caught by them.
6.It appears that while the police party,
consisting of Assistant Police Inspector
Shaikh and Pandharinath Dhavale, a constable,
was patrolling in the locality in the night
between 26.07.2011 and 27.07.2011, that the
Jewellery factory of the first informant was
open, was noticed by them. After noticing it,
the police entered inside the factory premises
when the applicants and said accused no.1
Yunus were found inside - having entered
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therein after breaking open the locks put on
the doors of the said factory.
7.The prosecution examined totally seven
witnesses during the trial. The learned
Magistrate after considering the evidence of
theprosecutionwitnesses,andmore
particularly, that of Pandharinath Dhavale
(P.W.6) held that the prosecution had
succeeded in proving that the accused persons
including the applicants had entered inside
Jewellery factory after breaking open the
locks on the doors and for the purpose of
committing theft. On these facts, the
applicants and the said accused no.1 Yunus
were held to be guilty of the aforesaid
offences.
8.In the appeal, the learned Additional
Sessions Judge, Nandurbar reappreciated the
9 Cri.Rev.Appln185.13.odt
evidence and came to the same conclusion viz:-
that the applicants and the accused were found
inside the factory premises at about 2.15
a.m., and that, they had entered inside the
factory premises after breaking open the locks
on the doors of the factory. The learned
Additional Sessions Judge endorsed the
findings recorded by the learned Magistrate in
that regard.
9. It was contended before me by Mr. R.C.
Patil, the learned counsel for the applicants
that the appreciation of evidence, as done by
the trial Court and by the appellate Court, is
not correct. The learned counsel wanted to
bring to the notice of this Court, some
discrepancies between the versions of
different witnesses – and that too without
annexing or producing a copy of the notes of
evidence. It may be recalled that, the
Cri.Rev.Appln185.13.odt
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learned counsel for the applicants has
categorically declined to show to the Court,
what was stated by the witnesses before the
trial Court.
10.Anyway, the discrepancies sought to be
pointed out – by making oral submissions and
without referring to the evidence - do not go
to the root of the matter and do not shatter
the basic case of the prosecution viz:- `that
the applicants (and the said accused no.1
Yunus) were found inside the premises not
belonging to them, at extremely odd hours i.e.
12.15 a.m. having entered the same after
breaking open the locks.’ On these facts and
on the evidence about the situation inside the
factory premises, as noticed by the police
party, no other inference than that the
applicants and the said accused no.1 Yunus
were guilty of the aforesaid offences, could
Cri.Rev.Appln185.13.odt
11
have been drawn.
11.Apart from this, it cannot be ignored,
that in revisional jurisdiction an independent
reappraisal of the evidence is not to be
undertaken. There has been a concurrent
finding of fact arrived at by two Courts; and
it would not be permissible to interfere with
such finding in revisional jurisdiction. It
is not that the findings have been arrived at
without any evidence, or on inadmissible or
irrelevant material. It is not that the
findings have been arrived at by keeping
relevant and admissible evidence out of
consideration. It is also not possible to
hold – and has not even been contended – that
the trial procedure was unfair, illegal or
improper in any way.
12.Consequently, no case for interfering with
the concurrent findings of facts arrived at by
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two Courts, in the revisional jurisdiction of
this Court - which is meant for correcting a
manifest error of law resulting in miscarriage
of justice – is made out.
13.Revision Applications are dismissed.
( ABHAY M. THIPSAY, J. ) *******
sga/-
2 issues framed by the court
Whether the concurrent findings of fact regarding the commission of theft by the appellants recorded by the trial and appellate courts should be interfered with in revision.
Whether the proposed oral submissions regarding evidence discrepancies in the absence of the notes of evidence warrant setting aside the convictions.
1 provisions across 1 enactments
Nijam Gayasuddin Shaikh
Aminsha Roshansha Fakir
The State of Maharashtra Through Police Station Officer, City Police Station, Nandurbar
A.M. THIPSAY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court