Bombay High Court
Anil Bhagawatrao Mohankar (In Jail) vs The State Of Maharashtra, Thr. S.O. City ... on 1 October, 2018
Author: R.K. Deshpande
Bench: R.K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.472/2014
APPELLANT : Tanya alias Tanaji Vithal Bhosale alias
Bhole, aged about 30 years, Occ : Nil,
R/o Borkhadi, Tq. Sengaon, District :
Hingoli.
...VERSUS...
RESPONDENT : The State of Maharashtra,
through its Police Station Officer,
City Kotwali Police Station, Tq. and District
Amravati.
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None for the appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.475/2014
APPELLANT : Sau. Anjali @ Arati Janardhan Waghmare
Aged about 26 years, Occ. : Labour,
R/o Bhandegaon, Tq. & Dist. Hingoli
(Presently at Central Jail, Amravati)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through P.S.O., City Kotwali Police Station,
Tah. & Distt. Amravati.
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Shri R.M. Daga, Counsel for appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.480/2014
APPELLANT : Omprakash alias Omya Bharat Bhatkar (In Jail)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through S.O. City Kotwali, P.S. Amravati,
Amravati.
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Shri R.P. Thote, Counsel (appointed) for appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.481/2014
APPELLANT : Dilip alias Kalya Kisanrao Wagh (In Jail)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through S.O. City Kotwali, P.S. Amravati,
Amravati.
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Shri R.P. Thote, Counsel (appointed) for appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.581/2014
APPELLANT : Anil Bhagwatrao Mohankar (In Jail)
...VERSUS...
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RESPONDENT : The State of Maharashtra,
through S.O. City Kotwali, P.S. Amravati,
Amravati.
--------------------------------------------------------------------------------------------------
Shri R.P. Thote, Counsel (appointed) for appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.595/2014
APPELLANT : Janya @ Janardhan s/o Ramrao Waghmare
@ Rajesh Sane,
Aged about 27 years, Occ. : Labour,
R/o Bhandegaon, Tq. & Dist. Hingoli
(Presently in Central Jail, Amravati)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through P.S.O. P.S. City Kotwali,
Amravati.
--------------------------------------------------------------------------------------------------
Shri R.M. Daga, Counsel for appellant
Shri M.J. Khan, APP for respondent
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WITH
CIVIL APPLICATION (APPA) NO.1057/2017
IN
CRIMINAL APPEAL NO.595/2014
APPELLANT : Janya @ Janardhan s/o Ramrao Waghmare
@ Rajesh Sane,
Aged about 34 years, Occ. : Labour,
R/o Bhandegaon, Tah. & District - Hingoli
...VERSUS...
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RESPONDENT : State of Maharashtra,
Through Police Station Officer, Police
Station City Kotwali, Amravati, Tahsil
and District Amravati.
APPLICANT : Deepak s/o Harichand Khandelwal
aged 59 years, Occupation : Business,
Resident of New Congress Nagar, Amravati,
District Amravati.
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Shri R.D. Wakode, Counsel for applicant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.91/2015
APPELLANTS: 1. Dilip @ Kalya Kisanrao Wagh,
Aged about 40 years, Occ : Labour,
R/o Sultanpura Morshi, Tah. Morshi,
Distt. Amravati.
2. Omprakash @ Omya Bharat Bhatkar
Aged about 25 years, Occ : Labour,
R/o Bhagirath Wadi, Akola,
Tah. & Distt. Akola.
Both Presently, detained in Central
Prison, Amravati.
...VERSUS...
RESPONDENT : The State of Maharashtra,
through Police Station Officer,
City Kotwali Police Station, Amravati,
Tah. & Distt. Amravati.
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Shri R.P. Thote, Counsel (appointed) for appellants
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.187/2015
APPELLANT : Nasreenbano Rafique Shaikh (In Jail)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through S.O. City Kotwali, P.S.
Amravati, Amravati.
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Ms F.N. Haidari, Counsel (appointed) for appellant
Shri M.J. Khan, APP for respondent
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WITH
CRIMINAL APPEAL NO.188/2015
APPELLANT : Rafique Shaikh Nabi Shaikh (In Jail)
...VERSUS...
RESPONDENT : The State of Maharashtra,
through S.O. City Kotwali, P.S.
Amravati, Amravati.
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Shri R.M. Daga, Counsel for appellant
Shri M.J. Khan, APP for respondent
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CORAM : R.K. DESHPANDE AND
ARUN D. UPADHYE, JJ.
Date of reserving the judgment : 14/09/2018
Date of pronouncing the judgment : 01/10/2018
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J U D G M E N T (PER : ARUN D. UPADHYE, J.)
1. Being aggrieved by the judgment and order dated 5/8/2014 passed by the Special Judge (MCOCA) Amravati in Special (MCOCA) Case No.1/2011 the appellants/original accused nos.2 to 6, 8, 10 and 11 have filed the present criminal appeals. All these accused were convicted by the Special Court by the impugned judgment and order, which reads as under :-
"1) As per section 235 (2) Cr.P.C. accused no.2 Janardhan Waghmare, accused no.3 Rafique Sk., accused no.4 Anil Mohankar, accused no.5 Dilip Wagh, accused no.6 Omprakash Bhatkar and accused no.11 Tanaji Bhosale alias Tanaji Bhole are hereby convicted of the offence punishable under section 3 (1)
(ii), 3 (2), 3 (4) of MCOC Act and also of offence punishable under sections 397, 120-B of I.P.C.
2) Accused nos.2, 3 and 11 are sentenced to undergo rigorous imprisonment of twelve years and fine of Rs.5,00,000/- each for offence punishable under section 3 (1) (ii) of MCOC Act in default to undergo S.I. for two years each. (As offence under section 397 of I.P.C. and 3 (4) of MCOC Act is included in section 3 (1) (ii) of MCOC Act, they are not separately sentenced for those offences.) ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 7
3) Accused nos.4 to 6 are sentenced to undergo rigorous imprisonment of ten years and fine of Rs.5,00,000/- each for offence punishable under section 3 (1) (ii) of MCOC Act in default to undergo S.I. for two years each. (As offence under section 397 of I.P.C. and 3 (4) of MCOC Act is included in section 3 (1) (ii) of MCOC Act, they are not separately sentenced for those offences.)
4) Accused nos.2 to 6 and 11 are sentenced to undergo rigorous imprisonment of five years and fine of Rs.5,00,000/- each for offence punishable under section 3 (2) of MCOC Act in default to undergo S.I. for two years each. (As offence under section 120-B of I.P.C. is included in section 3(2) of MCOC Act, they are not separately sentenced for that offence.).
5) Accused nos.2 and 6 are convicted of offence punishable under sections 3 and 4 read with section 25 of Arms Act and each of them are sentenced to undergo rigorous imprisonment of one year and fine of Rs.5,000/- in default to undergo S.I. for two months each.
6) All the sentences shall run concurrently.
7) Accused no.8 Nasreenbano Rafique Sk.
is hereby convicted of offence punishable under section 3 (5) of MCOC Act (inclusive of Section 412 of I.P.C.) and is sentenced to undergo rigorous imprisonment for four years and shall pay fine of ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 8 Rs.Two Lakh in default to undergo S.I. of nine months.
8) Accused no.10 Anjali Janardhan Waghare is hereby convicted of offence punishable under section 3 (5) of MCOC Act (inclusive of Section 412 of I.P.C.) and is sentenced to undergo rigorous imprisonment for four years and shall pay fine of Rs.Two Lakh in default to undergo S.I. of nine months.
9) Accused no.1 Dilip Korde and accused no.7 Shivaji Bhosale are acquitted of the offence punishable under section 3 (5) of MCOC Act and of offence punishable under section 414 of I.P.C.
10) Accused no.9 Sk. Salim is acquitted of the offence punishable under section 3 (5) of MCOC Act and also of offence punishable under section 412 of I.P.C.
11) Bail bonds of accused nos.1, 7 and 9
stand cancelled.
12) Accused nos.2 to 6, 8, 10 and 11 are
entitled to set off for the period of detention already undergone during trial.
13) Seized gold bar of 40-grams and 80- mg. be returned to Govind Varma P.W.28, of Varma Jewellers, Sarafa Lane, Risod after expiry of one year.
14) 36-gold bangles weighing 719-grams
and 550-mg. which was given to Deepak
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Khandelwal on supratnama, stands confirmed after expiry of one year and intimation to that effect be given to insurer of that shop.
15) Seized gold bangles of 123-grams 34- mg. allegedly seized from one Vikram Kankute, be confiscated in favour State and so also rest of the seized gold material be confiscated in favour of State and all such gold be sent to Mint after expiry of one year.
16) Seized CPU be given to Deepak
Khandelwal after expiry of one year.
17) Seized Indica Car No.MH-20/AG-2009
and motorcycle no.MH-27/AF-6907 be auctioned and sale proceed be credited to State, all after expiry of one year.
18) Seized motorcycle no.MH-29/L-6591 which was given on supratnama to P.W.31 Rupreshkumar Banait of Mangala Devi Ner, Tq. Ner, Distt. Yavatmal stand confirmed after expiry of one year.
19) Seized motorcycle having engine
no.JAOSEBA9H05445 having chassis
no.MBZTSOSEGA9H055 35 be returned to Baliram Jagtap.
20) Seized country made pistol be sent to District Magistrate, Amravati for its disposal, after expiry of one year.
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worthless, same be destroyed after a year."
2. The appellants/original accused nos.5 and 6 have filed joint Criminal Appeal No.91/2015 and also filed individual Criminal Appeal Nos.480/2014 and 481/2014, therefore criminal appeals filed by them, i.e., Criminal Appeal Nos.480/2014 and 481/2014 will have to be disposed of. The brief facts of the case are as under :-
3. All these accused persons were prosecuted for the offences punishable under Sections 395, 397, 412, 414 and 120-B of the Indian Penal Code read with Sections 3 (1) (ii), 3 (2), 3 (4) and 3 (5) of the Maharashtra Control of Organised Crime Act, 1999 (for short "the MCOC Act") and also under Sections 3 and 4 read with Section 25 of the Arms Act.
4. According to the prosecution, the accused nos.2 to 6 and 11 are members of organized crime syndicate. They have committed organized crime, i.e., dacoity on 31/8/2010 at Khandelwal Jewellery Shop at Amravati. The prosecution came with a case that on that day at about 2:00 p.m. to 2:30 p.m. three dacoits came in the shop as customers and out of them two looked for gold ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 11 finger ring. It is also alleged that one of them spoke on mobile phone and thereafter three more dacoits entered in the shop as customers. One of them pressed the neck of the gate-man and another dacoit gave blow of knife to the shop owner. Some of them have shown pistol and other weapons and by terrorizing the employees and owner of the shop, they detained them in another adjoining room and looted 82 gold bangles and went away on two motorcycles. Thereafter, one of the employees, namely, Shri Kishor Pohokar lodged the report in the police station. Police registered the offence vide Crime No.325/2010 for the offence punishable under sections referred above.
5. In the investigation, the police collected CCTV footage and seized hard-disk of the computer. On the basis of the said CCTV footage they carried out the investigation and taken raid on the house of one Vijay Bhatkar who then identified two offenders. During the course of investigation, police arrested accused nos.1 to 6 from different places. Thereafter, other accused were also arrested. In the investigation, the accused made confessional statement and at their instance the police seized some gold ornaments. Police also seized some gold ornaments at the instance ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 12 of accused nos.8 and 10 from the disclosure from the accused persons. Accused no.8 - Nasreenbano is wife of accused no.3 - Rafique Shaikh and accused no.10 - Sau. Anjali alias Arati is the wife of accused no.2. The accused nos.8 and 10 were knowing that the properties are of the same organized crime committed by the members of the said syndicate. The police obtained necessary permission from the Commissioner of Police, Amravati for registration of offence under the MCOC Act.
6. During the course of investigation, the accused persons were identified in test identification parade by the witnesses, who were present in the Khandelwal Jewellers on the day of incident. The police also collected necessary documents during the investigation and obtained necessary sanction for prosecution from the Additional Director General of Police. After completing the necessary investigation, the police filed the charge-sheet against the accused persons. The accused persons appeared in the proceedings before the Special Court. Charge came to be framed against them for the said offences. The contents of the charge were read over to them in vernacular. They pleaded not guilty and claimed to be tried. ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 :::
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7. After recording the evidence in the matter and on hearing both the sides, the learned Special Judge has convicted the accused nos.2 to 6 and 11 for the offence punishable under Sections 3 (1) (ii), 3 (2), 3 (4) of the MCOC Act and also for the offence punishable under Section 397, 120 - B of the Indian Penal Code. The accused nos.8 and 10 were convicted for the offence punishable under Section 3 (5) of the MCOC Act. The learned Special Judge also passed order regarding seized muddemal. The seized gold bar of 40 grams and 80 mg. were directed to be returned to Govind Varma (P.W. 28) of Warma Jewellers, Sarafa Lane, Risod after expiry of one year and 36 gold bangles weighing 719 grams and 550 mg. which were given to Deepak Khandelwal on supratnama stand confirmed after expiry of one year. However, the learned Special Judge directed the seized gold bangles of 123 grams and 34 mg. allegedly seized from one Vikram Kankute be confiscated in favour of the State and also rest of the seized gold material be confiscated in favour of the State and all such gold be sent to Mint after expiry of one year. The learned Special Judge also passed the order in respect of seized motorcycles and seized country made pistol.
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8. We have heard Shri R.M. Daga, the learned Counsel appearing for the appellants in respective criminal appeals, Shri R.P. Thote, learned Counsel (appointed) for the appellants in respective criminal appeals and learned Additional Public Prosecutor Shri M.J. Khan for the respondent - State in all criminal appeals at length.
9. Shri Daga, the learned Counsel has submitted that the learned Special Judge has not appreciated the evidence in its proper perspective and wrongly convicted the accused persons. He further submitted that there is no proper test identification parade and also discovery under Section 27 of the Indian Evidence Act is proved. The accused persons however wrongly convicted on the said basis. He further submitted that there is no cogent evidence adduced by the prosecution against the accused persons. The impugned judgment thus requires interference of this Court and is liable to be quashed and set aside.
10. Shri Daga, the learned Counsel has submitted that the accused were arrested on 9/9/2010 and since then they are in custody. He further submitted that the learned Special Judge has directed the sentences to run concurrently. The accused nos.2, 3 and 11 are sentenced to undergo rigorous imprisonment for 12 years ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 15 and accused nos.4 to 6 are sentenced to undergo rigorous imprisonment for 10 years with fine and the accused had undergone around ten years of imprisonment including remission. He further submitted that the accused had already undergone substantial period of imprisonment in custody and looking to their poor financial condition and liability to maintain their families, a lenient view may be taken for reduction of sentence. He also submitted that if the substantive sentences are not reduced then at least the sentence in default of fine be reduced. He submitted that sentence of fine is of Rs.5,00,000/- and therefore, the accused are unable to pay the said amount and in default the sentence is passed to suffer simple imprisonment for two years. So far as accused nos.2 to 6 and 11 are concerned, he further submitted that the accused nos.8 and 10 are sentenced for the offence punishable under Section 3 (5) of MCOC Act and rigorous imprisonment is awarded for 4 years and to pay fine of Rs.2,00,000/- each, in default, to undergo simple imprisonment for nine months. The accused nos.8 has already undergone more than three and half years imprisonment and now she is on bail. Therefore, on undergone sentence, she may be released. In default of fine of Rs.2,00,000/- she is sentenced for nine ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 16 months and therefore, the said sentence be reduced. The accused no.10 has already undergone substantive sentence and therefore, the in default sentence of fine of Rs.2,00,000/- may be reduced.
11. Shri Thote, the learned Counsel (appointed) for the appellants in respective criminal appeals has adopted the said arguments for the other accused.
12. Shri Khan, the learned Additional Public Prosecutor for the respondent - State, however, submitted that since the offence is serious one having committed organized crime, a lenient view should not be taken. The criminal appeals filed by the appellants therefore be dismissed.
13. Shri Wakode, the learned Counsel for the applicant in Criminal Application (APPA) No.1057/2017 in Criminal Appeal No.595/2014 appearing for Khandelwal Jewellers has submitted that by allowing this application the seized gold articles of 370.010 grams recovered in the present offence bearing F.I.R. No.325/2010 be given on supratnama to the applicant. He submitted that the Special Judge while passing the order confiscated the gold bangles of 123 grams 34 mg. in favour of the State as well as rest of the seized gold were also confiscated in favour of the State and ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 17 therefore he prayed to return the same.
14. Shri Khan, the learned Additional Public Prosecutor however objected for the same and submitted that the applicant has a remedy to file separate appeal claiming the said property. The criminal application therefore be rejected.
15. We have gone through the evidence on record with the help of the learned Counsel for the parties. From perusal of the material on record, it appears that the alleged incident took place on 31/8/2010 in between 2:00 p.m. to 2:30 p.m. at Khandelwal Jewellers Shop at Amravati. These accused persons were armed with deadly weapons and by causing injuries to the persons present in the shop including the owner, looted the gold ornaments. It has come in the evidence that there were 16 CCTV cameras inside the shop of Khandelwal Jewellers, Amravati. The defence has not challenged the said facts during the course of trial. During the course of investigation, police have seized C.D. and C.P.U. under panchanamas. It has come in the evidence that the CCTV footage clearly shows picture of three offenders, i.e., accused no.3 - Rafique Shaikh, accused no.4 - Anil Mohankar and accused no.6 - Omprakash @ Omya and later on three more accused arrived in the ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 18 shop and then they looted the gold. Subsequently, three accused arrived in the shop and were seen in the CCTV footage. However, all these accused were identified during the test identification parade by the witnesses and their close relatives.
16. P.W.1 - Deepak Harishchandra Khandelwal is the owner of Khandelwal Jewellers. In his deposition, he deposed that his shop "Khandelwal Jewellers" is situated at Jaisthamb Chowk. The incident took place on 31/8/2010 at about 2:30 p.m.. On that day 14 salesmen were working in his shop and the shop was open at 11:30 a.m. He has also deposed that he was present in the shop. He heard some suspicious noise and the accused persons giving dash to Jawanjal, who was at gate of the shop, entered in the shop and tried to assault him and he sustained injury on his hand. He also gave details of the incident in this evidence of dacoity and according to him, there was a robbery of 79 bangles and golden bar and his servant Shri Kishor Pohekar has lodged the report in the police station. In the evidence he has also stated that he has identified the accused persons at the time of test identification parade which was taken in the Central Prison, Amravati on 23/9/2010 and identified the accused. He was cross-examined at length by the defence. ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 :::
apeal472.14.odt 19 However, nothing is brought on record in his cross-examination to disbelieve him. He being the owner of the shop his presence at shop is not doubted. He also sustained injury in the said incident. In the cross-examination, he admitted that all ornaments in the shop were insured on the day of incident and he has put up the claim of robbed ornaments with the Insurance Company.
17. P.W.2 - Kishor Shridharrao Pohekar is the complainant who has lodged the report vide Exh.104 and F.I.R. is at Exh.105. His evidence is on the same line of the owner of the shop. He has also identified the accused persons in the test identification parade which was held on 23/9/2010. In his evidence he has stated that 79 bangles and one golden bar was stolen in the said incident valued about Rs.50,00,000/-. He was cross-examined at length. However, nothing is brought on record in his cross-examination to disbelieve him. He has proved the contents of the report. He has also identified the accused persons. The fact that 79 gold bangles and one golden bar were stolen away from the shop on the date of incident is also proved through his evidence.
18. P.W.3 - Jagdish Kisanlal Shrivas is one of the salesmen at Khandelwal Jewellers whose evidence indicates that he was ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 20 present on that day and corroborated the evidence of P.W.1 - Deepak Khandelwal and P.W.2 - Kishor Pohekar on material counts. There is no reason to disbelieve him. He has also identified the accused persons in the test identification parade.
19. P.W.4 - Bhujang Himmatrao Jawanjal is the gatekeeper. He has stated that on 31/8/2010 the incident took place. He has also given details of the incident and also identified accused no.5 - Dilip @ Kalya Kisanrao Wagh who pressed his neck and put knife on his abdomen. He was also cross-examined but nothing is brought on record to disbelieve him. P.W.5 - Anil Narayanrao Uprikar is also present in the shop and deposed about the incident. He has also identified accused persons, i.e., Anil Mohankar (A-4), Rafique Shaikh Nabi Shaikh (A-3), Dilip @ Kalya Wagh (A-5) and Tanya @ Tanaji Vithal Bhosale (A-11).
20. P.W.6 - Sachin Devidas Deshmukh was working in the Khandelwal Jewellers. He has deposed about the incident and also identified the accused Rafique Shaikh Nabi Shaikh (A-3) and Janya @ Janardhan Ramrao Waghmare (A-2).
21. P.W.7 - Sudam Somaji Sonule has also deposed about the incident and in the test identification parade identified Dilip @ ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 21 Kalya Kisanrao Wagh (A-5), Janya @ Janardhan Ramrao Waghmare (A-2), Rafique Shaikh Nabi Shaikh (A-3) and Omprakash @ Omya Bharat Bhatkar (A-6).
22. P.W.8 - Suchit Balkrushna Kusare was working as a Computer Operator at Khandelwar Jewellers on the date of incident. In his evidence he has deposed that at the time of incident there were 16 CCTV cameras and he was present in the shop. The police asked him to show footage of CCTV cameras and accordingly he has shown the footage of CCTV cameras and police prepared the panchanama and seized the articles. He was cross-examined at length. However, nothing is brought on record in his cross- examination to disbelieve him. The seizure of C.Ds. and CCTV footage is established through his evidence and he has proved the seizure panchanama (Exh.158) drawn by the police. The prosecution has also proved the recovery of gold ornaments at the instance of the accused persons.
23. In the evidence it has come on record that the gold ornaments were seized at their instance and panchanamas under
Section 27 of the Indian Evidence Act are proved. Besides this evidence the accused have also made confessional statement. The ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 22 accused nos.8 and 10 are wives of accused nos.3 and 2 respectively and gold ornaments are seized from their custody. The defence of the accused is of total denial and false implication. The evidence on record clearly establishes the guilt of the accused beyond doubt. The learned Special Judge, therefore, has not committed any error while convicting the accused persons for the aforesaid offences. The submission put forth by the learned Counsel for the appellants that the learned Special Judge has not appreciated the evidence in proper perspective and wrongly convicted the accused therefore cannot be accepted. The submission put forth by the learned Counsel for the appellants that the test identification parade and the discovery under Section 27 of the Indian Evidence Act is not proved also cannot be accepted.
24. So far as first submission of the learned Counsel for the appellants that a lenient view be taken and they be released on undergone sentence is concerned, we are of the considered view that the said submission is without any merit and cannot be accepted. The learned Special Judge has already considered their case and taken a lenient view and awarded sentence of 12 years rigorous imprisonment and fine of Rs.5,00,000/- to accused nos.2, 3 ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 23 and 11 for the offence punishable under Sections 3 (1) (ii) of the MCOC Act, in default to undergo simple imprisonment for two years each. The accused nos.4 to 6 are sentenced to undergo rigorous imprisonment of ten years and fine of Rs.5,00,000/- each, in default, to undergo simple imprisonment for two years each. So far as accused nos.8 and 10 are concerned, they are convicted for the offence punishable under Section 3 (5) of the MCOC Act and sentenced rigorous imprisonment for four years and fine of Rs.2,00,000/- each, in default, to undergo simple imprisonment for nine months each.
25. The submission put forth on behalf of the appellants that the accused have already undergone ten years imprisonment including remission, they have to maintain their families, their economic condition is poor and therefore a lenient view be taken, cannot be accepted.
26. So far as the next submission of reduction in the sentence in default of accused nos.2 to 6 and 11 is concerned, the learned Special Judge has awarded, in default of payment of fine of Rs.5,00,000/-, to undergo simple imprisonment for two years. ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 :::
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27. The learned Counsel for the appellants has relied upon ruling, reported in (2007) 11 Supreme Court Cases 243 (Shantilal...Versus...State of M.P.). In the above ruling, the Apex Court has considered the provisions of Sections 64 and 53 of the Indian Penal Code and held that the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. In the said case, the Apex Court ordered that in default of payment of fine the appellant shall undergo rigorous imprisonment for six months instead three years, as ordered by the trial Court and confirmed by the High Court.
28. Considering the ratio laid down in the above ruling and considering the facts and circumstances of the case at hand, we are of the considered view that the appellants/accused nos.2, 3, 11 and 4 to 6 are not entitled to get reduced the in default sentence of fine of Rs.5,00,000/- passed by the Special Judge. The offence committed by them is under Section 3 (1) (ii) of the MCOC Act and also under Sections 397, 120-B of the Indian Penal Code. The Hon'ble Supreme Court in the case, cited supra, reduced the sentence where the accused were facing charges under the Narcotic ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 25 Drugs and Psychotropic Substances Act, 1985. Considering the nature and gravity of the offence, these appellants/accused are not entitled for reduction of in default sentence. Their appeals are liable to be dismissed.
29. So far as the sentences of accused no.8 - Nasreenbano and accused no.10 - Sau. Anjali alias Arati are concerned, the learned Additional Public Prosecutor has submitted that the accused no.8 - Nasreenbano has already undergone rigorous imprisonment for four years and also undergone in default sentence of nine months and she is released. The appellant/accused no.10 - Sau. Anjali alias Arati has already undergone three years and eight months rigorous imprisonment and she is therefore required to undergo sentence of one year and one month and therefore, prayed that a lenient view may not be taken against her.
30. Shri Daga, the learned Counsel appearing for the appellant/accused no.10 - Anjali alias Arati has submitted that her case is altogether different from the case of accused no.8 - Nasreenbano and therefore a lenient view be taken.
31. Considering the submissions of the respective sides, we are of the view that so far as appellant/accused no.8 - Nasreenbano ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 26 is concerned, she has already undergone substantive sentence as well as in default sentence and therefore, her appeal will have to be dismissed. So far as the appeal filed by the appellant/accused no.10
- Sau. Anjali alias Arati is concerned, considering the facts and circumstances of the case, we are of the view that the undergone sentence of three years and eight months by her is sufficient one, considering the nature of the charges levelled against her. The appellant/accused no.10 - Sau. Anjali alias Arati could be released on sentence already undergone by her. So far as the in default sentence is concerned, she is sentenced for simple imprisonment for nine months and considering the facts and circumstances of the case and the nature of the offence committed by her, we are of the considered view that the in default sentence of nine months simple imprisonment could be reduced to two months simple imprisonment. To that extent, her criminal appeal could be allowed.
32. So far as the order regarding muddemal property is concerned, in the operative part of the judgment, particularly paragraph nos.13 and 14 the gold ornaments were returned to the Varma Jewellers and Khandelwal Jewellers. The said order is not challenged by the accused persons and others and therefore, the ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 27 said order is required to be maintained. So far as the confiscation of gold which is in paragraph no.15 of the operative part of the judgment is concerned, the same is challenged by Khandelwal Jewellers by filing Criminal Application (APPA) No.1057/2017. The person who claims the property has to establish the ownership and identify the said property. The person from whose custody the said property is seized is also required to be heard and therefore, we are of the view that the mater can be remitted to the learned Special Judge so far as disposal of the property mentioned in paragraph no.15 of the operative part of the judgment is concerned. The submission put forth on behalf of the applicant, therefore, cannot be considered. All points are left open. The learned Counsel for the applicant could be directed to approach the Special Judge by filing separate application claiming the property and after receipt of the application, all the concerned persons to be heard and necessary order to be passed of handing over the said property or confiscation, if any, on merit.
33. After considering the submissions of the learned Counsel for the appellants and the learned Additional Public Prosecutor for the State and for the reasons stated above, we pass ::: Uploaded on - 01/10/2018 ::: Downloaded on - 02/10/2018 02:21:20 ::: apeal472.14.odt 28 the following order :-
O R D E R
(i) Criminal Appeal nos.472/2014, 581/2014, 595/2014, 91/2015, 187/2015 and 188/2015 are hereby dismissed.
(ii) Criminal Appeal No.475/2014 filed by the appellant/accused no.10 - Sau. Anjali @ Arati is partly allowed. The appellant/accused has already undergone sentence of three years and eight months and therefore the said sentence is sufficient. The sentence passed against her of four years rigorous imprisonment is reduced to already undergone sentence by her. The appellant/accused is also sentenced to pay fine of Rs.2,00,000/- and in default simple imprisonment for nine months. The in default sentence of nine months is reduced to two months simple imprisonment. The appellant/accused is on bail and therefore, she is required to undergo the in default sentence of two months simple imprisonment and therefore, she will have to be surrendered for the said sentence to be served.
(iii) The order regarding disposal of muddemal, except paragraph no.15 in the operative part of the judgment, is confirmed.
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(iv) So far as the disposal or confiscated property in paragraph no.15 of the judgment is concerned, the applicant - Khandelwal Jewellers is directed to file an application before the Special Judge for claiming the said property. The learned Special Judge, after hearing all concerned, shall dispose of the said application after giving opportunity to all parties. Criminal Application (APPA) No.1057/2017 stands disposed of.
(v) Criminal Appeal Nos.480/2014 and 481/2014 are disposed of.
(vi) Fees payable to the learned Counsel appointed for the appellants are quantified at Rs.5,000/-.
(Arun D. Upadhye, J.) (R.K. Deshpande, J.)
Wadkar, P.S.
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