FAROOQ KHAIRUDDIN SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Sangani, advocate for the appellant/accused and APP for the State. This appeal is filed by the accused against his conviction under Sections 452 and 392 of the Indian Penal Code by which he is sentenced to suffer R.I. for three and half years and fine of Rs. 500/ - and in default R. I for one month, and to suffer R.I. for five years and fine of Rs. 500/ -in default, R.I. for one month respectively.

(2.) THE prosecution case in short was that complainant Jawahar Keshavlal Bhatt was carrying on his chemical business on 2nd floor, Falkland Road, Near Ghadge -Patil Roadways, Dongri, Mumbai. Since he was carrying on some repair works, he had engaged services of Pali Construction Co. On 22.5.1989 at about 17 hours he took one Shri Mahesh Dhirajlal Mistry of Pali Construction Co. to his godown at Dongri. At that time, the accused came to their office representing himself as Salim Bhai of that area and asked the complainant to pay him Rs. 500/ - and threatened to assault him with razor. The complainant told him that he had no money, but the accused demanded finger ring, wrist watch and ring from the complainant and Mahesh, and after recovering those articles went away. This matter was reported to Dongri Police and during investigation the accused was arrested from Ahamdabad on 24.6.1989 and pursuant to the statement made by the accused under Section 27 of the Evidence Act golden ring, wrist watch bangles as per the panchanama were recovered and the accused was chargesheeted. Charges under Sections 452 and 392 of the Indian Penal Code were framed against the accused. The prosecution examined in all six witnesses, and thereafter the accused came to be convicted as stated above.

(3.) ON the other hand it was contended by learned APP that though the Special Executive Magistrate had not followed the guide lines laid down by the High Court strictly and there are certain lapses on the part of the S.E.M., the complainant had in his FIR given description of the accused with specific mark on the face of the accused and since this description tallied with the accused, holding of identification parade was not necessary and as such even if there were some lapses on the part of the S.E.M. in not following the guide lines strictly, evidence of the complainant and Mahesh regarding identification of the accused could not be rejected. Secondly, it was contended by learned APP that the property in the offence was recovered at the instance of the accused and this aspect was properly proved by the prosecution by examining the panchas and Investigating officer. Thirdly, even though the wrist watch is a common article in use of hundreds of people, it was identified by the witness, and therefore, this establishes link of the accused to the crime. Lastly, it was contended that even though the complainant had admitted that on the date of recording of evidence, the complainant and the witnesses came to the Court earlier and thereafter the accused was brought, this did not affect the identification in the Court because of the identifying mark given by the complainant while lodging the FIR.