Jafar Shaukat Sheikh vs State of Maharashtra

M.L. Tahaliyani, J.—Heard learned Counsel Shri Nitin Bhishikar for the applicant and learned Additional Public Prosecutor Shri P.V. Bhoyar for the non-applicant/state. The applicant feels aggrieved by the judgment and order passed by the learned Sessions Judge, Chandrapur in Criminal Appeal No. 11/2006 confirming the judgment and order of the learned Chief Judicial Magistrate, Chandrapur in Regular Criminal Case No. 159/2005. The applicant has been convicted by the learned Chief Judicial Magistrate for the offences punishable under Sections 457 read with Section 34 and 380 read with Section 34 of the Indian Penal Code. In all four accused were prosecuted before the learned Chief Judicial Magistrate. The applicant was accused No. 2 in the said criminal case. Accused No. 1 and the applicant have been convicted for two offences mentioned hereinabove. Accused No. 3 was convicted for the offence punishable u/s 411 of the Indian Penal Code. Accused No. 4 Akash Waghmare was acquitted of the offences punishable under Sections 457 read with Section 34 and 380 read with Section 34 of the Indian Penal Code.

Being aggrieved by the judgment and order passed by the learned Chief Judicial Magistrate, the applicant and other accused filed appeals before the learned Sessions Judge, Chandrapur. The appeals were filed by all the three convicts. Criminal Appeal Nos. 7, 9 and 11 of 2006 were heard and decided by the common judgment and order. The applicant was appellant in Criminal Appeal No. 11 of 2006. The appeal filed by accused No. 1 was dismissed. The appeal filed by the applicant was also dismissed. The appeal filed by accused No. 3 Roshan Kothari was however allowed and he was acquitted of the offence punishable u/s 411 of the Indian Penal Code.

The prosecution of accused Nos. 1, 2 and 3 was based on the First Information Report filed by P.W. 1 Dilip Targe. P.W. 1 - Dilip stays at Bapat Nagar, Chandrapur. The house breaking and theft had taken place in his absence. The stolen articles included gold chain weighing 13 gram, Campus camera and V.C.D. player of Samsung make. After registration of offence, investigation was taken up. It appears that the applicant and other accused were arrested in some other crime and that during the course of investigation of that crime, the present crime was also detected and part of the property was recovered at the instance of the applicant. It was the case of prosecution before the learned Chief Judicial Magistrate that gold chain was recovered from accused No. 3 Roshan Kothari on the basis of statement made by the applicant. It was also the case of prosecution before the learned Chief Judicial Magistrate that Campus camera was recovered from the house of the applicant on the basis of statement made by him u/s 27 of the Indian Evidence Act.

Since the house breaking and theft had taken place in absence of the inmates of the house, there was no eyewitness. The conviction of the applicant is based only on the basis of recovery of articles allegedly on the basis of statement made by the applicant. This part of the case is based on the evidence of P.W. 2-Bhaskar Share and the Investigating Officer. P.W. 2 is the independent panch witness whose evidence has been accepted by the learned Chief Judicial Magistrate.

I have gone through the evidence of P.W. 2, particularly the cross-examination. In the cross-examination, this witness was unable to describe the house where the offence had occurred. This question was put to him because he was panch witness at the time of spot panchanama also. It is pertinent to note that this witness was witness to the panchanama in respect of the statement made by the applicant and the recovery which followed. The witness was unable to describe the house of the applicant also. If the witness had visited house of the applicant along with him and if Campus camera was recovered from the house of the applicant on the basis of statement made by the applicant, then the witness should have been able to describe the house of the applicant. It further appears from the cross-examination of P.W. 2 that he was regular visitor to the police station. He is a Press Reporter and he has been panch witness in at least 40 to 50 cases. Therefore, I am of the view that the evidence of this witness indicates that he had never visited the spot nor had he occasion to hear the statement allegedly made by the applicant. It, therefore, follows that he had no occasion to visit the house of the applicant along with him. As such the evidence of prosecution that the stolen property was recovered at the instance of the applicant is not supported by the sound and cogent evidence. The order of both the Courts below will have to be set aside. Hence, I pass the following order.

The revision application is allowed.

The judgment and order dated 26-12-2005 passed by the Chief Judicial Magistrate, Chandrapur in Regular Criminal Case No. 159/2005 convicting the applicant for the offences punishable under Sections 457 read with Section 34 and 380 read with Section 34 of the Indian Penal Code, is set aside.

The judgment and order dated 23-4-2014 passed by the learned Sessions Judge, Chandrapur in Criminal Appeal No. 11/2006 confirming the conviction of the applicant, is also set aside.

The applicant is acquitted of the offences punishable under Sections 457 read with Section 34 and 380 read with Section 34 of the Indian Penal Code.

The applicant shall be released from the prison if not required in any other case.

Fine, if any, paid by the applicant shall be refunded to him.