Indian Kanoon - Search engine for Indian Law

2 According to the prosecution case, as reflected from the charge-sheet filed against accused persons, informant PW1 Rakesh Jain was a salesman with the Millenium Firm. He used to take gold ornaments given by his employer to various jewelers for selling them. On 13th November 2005, he took gold ornaments 1-REVN-136-2017.doc such a Mangalsutras, Mangalsutra pendants, ear rings and finger rings weighing 1250 gms for selling to Mulund, Bhandup and Pratap Nagar area of Mumbai. He could not effect any sale and therefore, he boarded an auto rickshaw for going to Kanjur. He sat between two persons who were already sitting in the auto rickshaw. At L.B.S.Road, Mumbai, his auto rickshaw was stopped on the pretext that one of the passengers wanted to alight. At that time, driver of auto rickshaw gave a fist blow on chest of PW1 Rakesh Jain and two persons who were sitting in the auto rickshaw started snatching his bag. Ultimately, his bag came to be snatched and he was pushed out of the auto rickshaw. PW1 Rakesh Jain then called his employer and lodged a report Exhibit 6 on the very same day with Park Site Police Station, Mumbai, which resulted in registration of Crime No.377 of 205 under Section 394 read with 34 of the IPC. After filing of the charge- sheet on completion of the investigation, the revision petitioner along with co-accused were tried for the offence punishable under Section 394 read with 34 of the IPC and after hearing parties, the learned Metropolitan Magistrate was pleased to convict the 1-REVN-136-2017.doc revision petitioner / accused no.1 along with accused nos.2 and 3 for the offence punishable under Section 394 read with 34 of the IPC and they came to be sentenced as indicated in the opening paragraph of this judgment.

8 Evidence of PW1 Rakesh Jain along with evidence of PW8 Nanalal Jain was believed by the court below in concluding that the prosecution has proved that the incident of robbery took place on 13th November 2005 when the informant was robbed of his valuables. Evidence of PW1 Rakesh Jain shows that he was working as a salesman with the Millenium firm owned by one 1-REVN-136-2017.doc Sureshkumar Dhakad. His job was to carry gold ornaments to various jewelers in Mumbai for selling them. Evidence of this witness further reveals that on 13th November 2005 he took gold ornaments weighing 1250 gms for selling. He went to jewelers at Mulund, Bhandup and Pratap Nagar area of Mumbai, but was not in a position to sell out those gold ornaments. This witness deposed that then he boarded an auto rickshaw at Pratap Nagar for going to Kanjur Station and sat between two passengers who were already sitting in that auto rickshaw. As per version of this witness, the auto rickshaw stopped at L.B.S. Road as one of the passengers was to alight the auto rickshaw. At that point of time, as stated by PW1 Rakesh Jain, driver of auto rickshaw gave fist blows on his chest and two persons who were sitting beside him tried to snatch the bag containing gold ornaments from his hand. Then, the auto rickshaw started moving and by pulling the bag from his hand, he was pushed outside the auto rickshaw. This witness further stated that because of this incident, he suffered injuries to his face and auto rickshaw went away from the spot. In this way, as per version of PW1 Rakesh Jain, a bag containing 1-REVN-136-2017.doc gold ornaments such as Mangalsutras, Mangalsutra pendants, ear rings, finger rings etc. came to be robbed from his person by the driver as well as passengers of the auto rickshaw. Cross- examination of this witness shows that the auto rickshaw was stopped at the gate of the building under construction. He shouted at the time of the incident and one vehicle stopped. People also gathered. From cross-examination of this witness it has been brought on record that this witness was called after the incident to police station for identifying one of the accused and thereafter he was called after a gap of 2 to 2½ hears for identifying two accused persons.

9 The report lodged by this witness is at Exhibit 6. Averments in the FIR lodged by this witness fully corroborates version of this witness regarding the fact that he was carrying gold ornaments weighing 1250 gms for selling them out and those were robbed from his possession by the driver and two passengers of the auto rickshaw in which he was traveling towards Kanjur Station. This FIR is lodged with promptitude i.e. at about 4.30 1-REVN-136-2017.doc p.m. of the day of the incident. As seen from evidence of this witness, he immediately called his employer and along with his employer he had been to the police station for lodging the report. 10 Version of PW1 Rakesh Jain is gaining further corroboration from contemporaneous vouchers issued by the Millenium firm which is at Exhibit 7. This voucher shows that gold jewellery weighing about 1268.12 gms was entrusted to him. 11 Evidence of PW8 Nanalal Jain - owner of Samrat jewellers shows that PW1 Rakesh Jain had been to his shop for selling jewellery on 13th November 2005. However, PW8 Nanalal Jain did not like the ornaments brought by PW1 Rakesh Jain and therefore he had not purchased anything from PW1 Rakesh Jain. This evidence duly corroborates version of PW1 Rakesh Jain to the effect that on 13th November 205 he was on his job to sell out gold ornaments such as Mangalsutras, Mangalsutra pendants, ear rings, finger rings etc. 1-REVN-136-2017.doc 12 Version of PW1 Rakesh Jain regarding robbery of gold ornaments is gaining further corroboration from Injury certificate at Exhibit 22 placed on record by the prosecution. This is a document which is not disputed by the defence and upon admission of this injury certificate by the defence, it is marked as Exhibit 22. This Injury certificate shows that on 13 th November 2005, PW1 Rakesh Jain was found to have suffered injuries in the nature of abrasion on his left eye brow as well as forearm apart from tenderness to his right arm. With this evidence on record, no fault can be found in finding of the court below to the effect that the prosecution has proved that gold jewellery weighing 1250 gms came to be looted from possession of PW1 Rakesh Jain after causing hurt to him in the process of robbery.

1 (1978) SCC 435 2 (2001) 9 SCC 362 3 (2004) 10 SCC 657 1-REVN-136-2017.doc 17 PW6 Arvind Vinerkar is a panch witness to the recovery. His evidence also shows that on 16th December 2005 while in police custody, the revision petitioner / accused no.1 had made a confessional statement expressing his willingness to show the place where the bag containing gold ornaments is kept. As deposed by this witness, the panchnama Exhibit 13 was then prepared and then the revision petitioner / accused no.1 took them near gate of Devnar slaughter house. From the hole in the stone wall, he took out a bag which contained three mangalsutras and five mangalsutra pendants. As per version of this witness, then they returned to the police station and thereafter went to the goldsmith named Mishrilal where gold ornaments were weighed and valued. Then recovery panchanama Exhibit 14 was then came to be prepared. PW6 Arvind Vinerkar has identified one mangalsutra and five mangalsutra pendants but could not identify remaining chain mangalsutras. In cross-examination of this witness, it is brought on record that another panch by name Raut was also present apart from Police Inspector Baliram Kadam in the process of recovery. This witness admitted that mangalsutras are available readily in the market.