SAYEED RASHID SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellant in Criminal Appeal No. 737 of 2009 is the Original Accused No. 1 and the Appellant in Criminal Appeal No. 1154 of 2009 is the Original Accused No. 2. They have filed two separate appeals challenging the judgment and order passed by the Additional Sessions Judge at Sewree, who by his judgment and order dated 15.6.2009 was pleased to convict the Accused Nos. 1 and 2 for the offences punishable under section 392 read with 397 of the Indian Penal Code and sentenced them to suffer R.I. for 7 years and to pay fine of Rs. 400/- each and, in default, to suffer R.I. for three months. They were also convicted for the offence punishable under section 353 r/w. 34 and sentenced them to suffer R.I. for two years and to pay fine of Rs. 350/- each and, in default, to suffer R.I. for two months. Both the accused were convicted for the offence punishable under section 307 read with 34 of the Indian Penal code and were sentenced to suffer R.I. for three years and to pay fine of Rs. 300/- each and, in default, to suffer R.I. for two months. It was directed that all the sentences should run concurrently. The Accused Nos. 1 and 2, however, acquitted of the offence punishable under section 394 and also acquitted of the offence punishable under section 135 of the Bombay Police Act. The prosecution case in brief is that according to the prosecution the Complainant was taking a walk after dinner at about 9.45 p.m. At that time, the accused No. 1 put a knife on his neck and robbed him. PW 4 along with one other eye witness chased the accused. However, crowd gathered there and they caught both the accused on the spot and an FIR was registered on 18.8.2008. Charge was framed for the offences punishable under section 392, 394, 397, 353, 207 read with 34 of the Indian Penal Code. Both the accused pleaded not guilty to the charge. The Trial Court, however, was pleased to convict both the accused.

(2.) The prosecution examined nine witnesses:

(3.) The learned counsel appearing on behalf of the Accused No. 1 submitted that there was a discrepancy in the deposition of the eye witnesses and, therefore, their testimony could not be relied upon. It was submitted that there was a discrepancy in the statement of the victim. It was submitted that the offence punishable under section 307 was not attracted since it was not established that any person was injured in the said incident. It was submitted that mere allegation of assault or attempt to cause any injury was not sufficient to convict the person for the offence punishable under section 307 of the Indian Penal Code. It was submitted that alleged recovery was made from the accused after five days of his arrest and the recovery has been made from the same place where the accused was arrested and, therefore, no reliance could be placed about the said robbery. It was submitted that there was omission in recording the statement of PW-2 by the police. It was submitted that relevant act of keeping the knife on the neck of the Complainant was not mentioned in the police statement and, as such, there was material contradiction in the statement of PW-2. It was submitted that there was discrepancy in the statement of the PW-4 and PW-3 in respect of arrest of the accused. It was further submitted that even assuming without admitting that the offence of robbery was established, offence under section 307 of the IPC was not made out since the Appellant had not used the said knife and, therefore, submitted that at the highest, the Appellant could be convicted for the offence punishable under sections 392 and 397 of the IPC.