The prosecution must prove the case beyond reasonable doubt, and the absence of incriminating evidence can lead to acquittal.

JUDGMENT

1. The Appellant has challenged the Judgment and Order dtd. 13/07/2018 passed by the Additional Sessions Judge, Greater Mumbai, in Special MCOCA Case No.4 of 2013. There were two accused. The Appellant was the accused No.2. Both the accused including the Appellant were convicted and sentenced as under.

They were convicted for the commission of offence punishable u/s 379 r/w 34 of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.5,000.00 and in default of payment of fine to suffer rigorous imprisonment for six months. They were acquitted from the charges of commission of offence punishable u/s 3(1)(ii), 3(2), 3(4) of the Maharashtra Control of Organised Crimes Act (for short 'MCOCA') and u/s 392 r/w 34 of the Indian Penal Code. They were granted set off u/s 428 of Cr.P.C.

This Appeal is preferred only by original accused No.2.

2. The prosecution case is as follows; On 02/09/2012, the first informant, Nidhi Kadam was traveling in a four wheeler. She was sitting on the rear seat next to her father. The car was driven by her brother. Her uncle was on the other front seat of the car. In Mahim area, one motorcycle came from behind the car. There were two persons on that two wheeler. Both of them were wearing Helmets. The pillion rider snatched P.W.1's Mangalsutra and both of them went away on their motorcycle. P.W.1's brother tried to chase them, but he was unsuccessful. P.W.1 and her family then went to Mahim police station and lodged FIR vide C.R.No.362/2012 at around 06.00 p.m. The investigation was carried out. According to the prosecution, the Appellant was involved in many cases. He, along with the co-accused were arrested on 09/09/2012 in connection with some other offence. But, during the investigation it transpired that they were involved in the present case. Therefore, they were also shown as accused in this particular case. On 20/09/2012 both the accused were shown to the witnesses in the police station where they were identified. The Mangalsutra was recovered at the instance of the accused No.1 from his house after recording his memorandum statement u/s 27 of the Evidence Act.

3. The house of the Appellant was searched on 26/02/2013. At that time, one jacket and one Helmet were recovered. During the course of investigation, it was found that there were many cases pending against both the accused. Therefore, provisions of MCOCA were applied. The investigation was carried out by the officer, who was authorized u/s 23(1) of the MCOCA. After the investigation was over, sanction u/s 23(2) was obtained from the competent authority and the charge-sheet was filed. The trial was conducted before the trial Judge as mentioned earlier.

4. During trial, the prosecution has examined 12 witnesses including the first informant, her brother, father, Panchas and the police officers. The charge was framed u/s 392 r/w 34 of the IPC and 3(1)(ii), 3(2), 3(4) of the MCOCA. As mentioned earlier, the Appellant and his co-accused were acquitted from the charges of commission of offence under MCOCA. Learned Judge observed that the offence u/s 392 r/w 34 was not proved. However, the offence punishable u/s 379 r/w 34 was proved. Though charge under that sec. was not framed, it was a lesser offence than 392 r/w 34 of the IPC and therefore on the basis of the evidence, learned trial Judge convicted and sentenced the Appellant and his co-accused for commission of offence punishable u/s 379 r/w 34 of the IPC.

5. Heard Mr. Shashikant D. Chandak, learned counsel for the Appellant and Mr. S. R. Agarkar, learned APP for the State.

6. The prosecution case is brought on record through the evidence of the first informant. She was examined as P.W.1. She has stated that on 02/09/2012, all the aforesaid members of her family were travelling in their four wheeler. They had reached Mahim area. At that time, one motorcycle came from the left side of the car. There were two persons on that m