DEEPAK YASHWANT SHINDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Appellants vide Judgment and Order dated 12th June, 2012, passed by learned Additional Sessions Judge, Greater Mumbai, at Sewree in Sessions Case No.635 of 2011, have been convicted and sentenced as under:-

(2.) According to the prosecution, the incident took place on 9th May, 2011, at about 5.00 to 5.10 p.m., in the office of "Nice Marketing", Room No.3, Upadhyay Compound, Jijamata Road, Pump House, Andheri (East), Mumbai - 400 093, where the complainant - Divya Satham (PW1) was working as a telephone operator. According to the prosecution, the complainant - Divya Satham (PW1) had informed appellant - Yogesh Gawade, to collect the money, pursuant to which, appellant - Yogesh reached the office; that within three minutes, appellants - Deepak Shinde, and Nikesh alias Raj Bharat Thakkar, along with another co-accused entered the office with their faces half covered and took an amount of Rs.40,000/- from the drawer. Appellants - Deepak, Nikesh alias Raj and another co-accused are also alleged to have taken the complainant's gold ring. After the incident, appellants - Deepak, Nikesh alias Raj and another co-accused left the office, latched the door from outside and fled. The complainant - Divya informed her employer about the incident and thereafter lodged a complaint as against the accused including the appellants for the offences punishable under Sections 392 r/w 34 of the Indian Penal Code. During the course of investigation, the appellants were arrested. At the instance of appellants - Deepak and Nikesh alias Raj, cash and gold ring were recovered from their residence. During investigation, it was revealed that the robbery was committed by the appellants - Deepak, Nikesh alias Raj and other co-accused in connivance and on the instructions of appellant - Yogesh. In the identification parade, which was held, the complainant - Divya identified the appellants - Deepak and Nikesh alias Raj. On completion of investigation, charge sheet was filed as against the appellants and others for the offence punishable under Section 395 of the Indian Penal Code. Since the offence under Section 395 of I.P.C. was triable by the Sessions Court, the case was committed to the Court of Sessions.

(3.) Learned Counsel for the appellants submitted that there is no material to connect the appellant - Yogesh with the alleged offences. She submitted that the prosecution has not collected any material to show that there was any nexus between the appellant - Yogesh and appellants - Deepak, Nikesh alias Raj and other accused, in the form of Call Detail Record (C.D.R) or any other material. She submitted that the appellant - Yogesh cannot be convicted only on the basis of his conduct and his reactions, when co-accused entered the office. As far as appellants - Deepak and Nikesh alias Raj are concerned, learned counsel submitted that the Test Identification Parade suffers from infirmities. She submitted that according to the complainant, the faces of appellants - Deepak and Nikesh alias Raj were half covered, however, in the Test Identification Parade, which was held, they were not in a similar condition i.e. their faces were not covered. She submitted that even the evidence of recovery at the instance of appellants - Deepak and Nikesh alias Raj is suspect.