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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 371 OF 2007
Ajay s/o Dinesh Pimple,
R/o Murtijapur Shivar,
Near Colour Factory, Beed bypass
Road, Aurangabad. APPELLANT
VERSUS
The Stte of Maharashtra RESPONDENT
WITH
CRIMINAL APPEAL NO. 338 OF 2008
Sunil s/o Shamalu Pawar,
Aurangabad.
VERSUS
R/o Hamalwada Railway Station,
APPELLANT
The State of Maharashtra RESPONDENT
.....
Mr. Abhishek Kulkarni, advocate for the appellants
in both appeals.
Mr. Dilip Bankar Patil, A.P.P. for the respondent/
State in both appeals.
.....
CORAM: V.R. KINGAONKAR, J.
Date: 28th January, 2009
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ORAL JUDGEMENT :
1. Both the appeals are being disposed of by the
common judgement in as much as they arise out of same
judgement rendered in Sessions Case No. 114 of 2007.
2. By the impugned judgement, the appellants were
convicted for offences punishable under section 307
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read with section 34, section 399 and section 332 read
with section 34 of the I.P. Code. For offence
punishable under section 307 read with section 34 of
the I.P. Code, each of them was sentenced to suffer
rigorous imprisonment for term of five (5) years and
to pay fine of Rs. 2000/-, in default to suffer
rigorous imprisonment for one (1) year. For offence
punishable under section 399 of the I.P. Code, each
of them was sentenced to suffer rigorous imprisonment
for five (5) years and to pay fine of Rs. 2000/-, in
default to suffer rigorous imprisonment for one (1)
year. For offence punishable under section 332 read
with section
34 of the I.P. Code, each of them was
sentenced to suffer rigorous imprisonment for term of
two (2) years.
3. Briefly stated, the prosecution case is that
A.P.I. Shri Ghuge (PW8) and other police staff
members were on patrol duty during night intervening
between 27th and 28th November, 2006. While they were
moving in a police van, at about 3 a.m., they received
instructions from the police Control Room to visit
Shreyanagar locality where some dacoits had reportedly
attempted to commit the dacoity. The police party
immediately proceeded to the said locality. They
noticed that some dacoits were running through the
area. They gave chase to the suspected dacoits. The
suspected persons ran towards residential house of
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Justice Chapalgaonkar. They had entered compound of a
bungalow named “Venu Niwas”. While the police party
members were giving chase, the members of the gang of
suspected dacoits took out some stones from bundles
which were with them and started pelting the stones at
the police party. Appellant Ajay injured informant
Deepak Choudhary (PW1) by means of knife in the course
of the attempt made by the police to overpower him.
Some witnesses were also injured by the appellants
while running away. A.P.I. Ghuge (PW8) resorted to
firing. The appellants were thereafter nabbed.
However, their three (3) unknown accomplices fled away
in the dark.
A knife was recovered from possession of
appellant Ajay. A report was lodged by Deepak
Choudhary (PW1) who was the driver of the patrolling
van in respect of the alleged incident. He and other
injured persons were referred to the Medical Officer
for clinical examination. On the basis of material
gathered during course of investigation, both the
appellants were chargesheeted for offences punishable
under section 307 read with section 34, section 399
and section 332 read with section 34 of the I.P.
Code.
4. To the charge (Exh-8), the appellants pleaded
not guilty. They denied truth into the accusations.
According to them, they were falsely implicated in the
criminal case. They asserted that they were picked up
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from Railway Station platform on suspicion.
5. At the trial, the prosecution examined in all
ten (10) witnesses in support of its case. The
learned Sessions Judge accepted the prosecution
evidence. The learned Sessions Judge held that
necessary ingredients of the offences were duly
proved. The appellants were accordingly convicted and
sentenced as described hereinabove.
6. Mr. Kulkarni, for the appellants, would
submit that the appellants cannot be convicted for
offence punishable under section 307 read with section
34 of the I.P. Code when the alleged incident
occurred within a short span without there being any
element of enmity between the appellants and the
victims. He would further submit that mere presence
of the appellants near the place is not sufficient
proof of their being members of a gang of dacoits nor
it can be said that they had made preparation to
commit the dacoity alongwith the so called three (3)
absconding accused. He would further submit that the
Sessions Court committed patent error while
appreciating the evidence of the witnesses and that
the material on record is insufficient to prove the
offences under sections 307 and 399 of the I.P. Code.
He, however, does not press the appeal against the
order of conviction and sentence rendered by the
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Sessions Court for offence punishable under section
332 read with section 34 of the I.P. Code. Mr.
Dilip Bankar Patil, learned A.P.P. supports the
impugned judgement.
7. With the help of learned counsel and learned
A.P.P., I have gone through the record and
proceedings. The versions of Deepak Choudhary (PW1),
Mohammad Azar (PW7) and A.P.I. Shri Ghuge (PW8), if
considered cumulatively, would show that they were
members of the patrolling party at the material time.
Their versions go to show that at about 3 a.m., they
received
instructions from the police Control Room
that some dacoits had reportedly attempted thefts in
Shreyanagar locality. The versions of these witnesses
would make it amply clear that when they reached near
said locality, they saw that five (5) suspected
dacoits were running from near proximity of house of
Justice Chapalgaonkar. When the suspected dacoits saw
the police party, they resorted to pelting of stones
on the police vehicle. A chase was given to the
members of the suspected gang of dacoits. The version
of Deepak Choudhary (PW1) reveals that he was working
as driver of the police van No. MH-20/U-9678, at the
material time. He deposed that appellant Sunil pelted
a stone at his head and, therefore, he was injured.
His version purports to show that the appellant – Ajay
ran towards him with a knife, but then A.P.I. Shri
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Ghuge (PW8) fired a bullet at him. His version
indicates as to how the appellants challenged the
police party. He alongwith Mohammad Azar (PW7)
overpowered appellant Sunil. His version further
discloses that Amol Jain (PW2) came out of the nearby
bungalow when appellant Ajay jumped inside his
bungalow from the compound wall. Amol Jain (PW2) gave
chase to appellant Ajay. At that time, appellant Ajay
knifed Amol Jain (PW2) and, therefore, A.P.I. Shri
Ghuge (PW8) immediately fired at Ajay. Some members
of the locality gathered around the place. Appellant
Ajay was overpowered by Mohammad Azar (PW7). The
F.I.R.
(Exh-12) is corroborated by Deepak Choudhary
(PW1).
8. There is no effective cross-examination
directed against the witnesses. In fact, it was not
even suggested to them that the appellants were picked
up from the Railway station platform. The entire
cross-examination comprises of mere suggestions. No
substantial material is gathered from their
cross-examination so as to dislodge their versions.
Their versions are corroborated by Amol Jain (PW2) and
Dinanath (PW5). It is pertinent to note that Amol
Jain and Dinanath are independent witnesses. Both of
them narrated as to how the incident occurred. Their
versions would make it amply clear that in the wee
hours, there was chase given by the police party to
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the suspected members of the gang of dacoits. It is
worthy to be noted that Amol Jain (PW2) sustained
bleeding injury during course of the incident. His
version purports to show that the appellant – Ajay
gave blow of knife on his person, but since he had
raised firearm, the blow was received on his hand.
9. The injury certificates issued by PW10 Dr.
Wanole would also lend assurance to the versions of
the prosecution witnesses. These injury certificates
(Exh-26 to Exh-29) would indicate that injured Deepak
Choudhary (PW1), Mohammad Azar (PW7) and Amol Jain
(PW2)
were examined with promptitude. It was noticed
that they had received the injuries as shown in the
medical certificates (Exh-26, Exh-28 and Exh-30).
10. The version of Dinanath (PW5) further reveals
that during the scuffle with the suspected dacoits,
some articles were dropped by those suspects by side
of the house. Those articles included an iron tommy,
two (2) scarfs, battery, two (2) pairs of chappals,
etc. Those articles were recovered from the spot
under a panchanama. The panchanama of the spot
(Exh-15) is duly corroborated by Shrimant (PW3). His
version reveals that the window of house situated on
plot No. 19 was found broken. One of its plank was
bent. The police recovered screw drivers, a big
knife, etc. Thus, his version and the version of
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Dinanath correspond to each other in so far as
recovery of the articles is concerned. His version
further shows that the police party visited other
house property and one (1) shop. At the shop, the
shutter was half-open and the articles inside the shop
were found lying helter-skelter. These are
taletelling circumstances. At odd hours of the night,
when the half shutter of the shop was found open and
the articles were lying scattered, the only deducible
inference would be that there was an attempt to commit
housebreaking and theft in the shop. What transpires
from the prosecution evidence is that the group of
five (5)
burglars had attempted the burglary in the
wee hours, but some residents of the locality had
informed the police about the attempted dacoity. It
was at the nick of time that the police help was
available. It was due to such immediate action that
the bid to commit the dacoity could be foiled. There
is ample evidence on record to show that after frantic
efforts, the appellants could be overpowered
notwithstanding strong resistance on their part. The
empty cartridges of the bullets fired at them were
recovered from the near the house.
11. So far as the charge for offence punishable
under section 307 read with section 34 of the I.P.
Code is concerned, I find considerable substance in
the contention of Mr. Kulkarni. The medical
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certificate would show that simple injuries were found
on the person of Dilip Choudhary and other witnesses.
The version of Dr. Wanole (PW10) would show that not
a single injury shown in the injury certificate could
have been caused by means of sharp edged weapon.
Needless to say use of the knife is improbabalized due
to the medical opinion. It is worthwhile to note that
the knife was not sent to office of the Chemical
Analyser in order to verify whether there was any
stain of human blood on the edge thereof. All said
and done, in the absence of the necessary evidence to
show that the intention of the appellants was to cause
death of
either of the victims, they could not have
been convicted for offence punishable under section
307 read with section 34 of the I.P. Code. The
learned A.P.P. would, however, submit that the
appellants could be convicted for an offence of
attempt to cause death of the prosecution witnesses
though the injuries were not serious. It is argued
that the appellants had given threats to the witnesses
to kill members of the police party if the chase was
continued. At the most, such acts of the appellants
could be treated as resistance to the act of their
arrests. If they had any intention to cause death of
the members of police party or the witnesses,
ordinarily multiple and serious wounds would have been
inflicted by them in the course of the alleged
assault. There was no injury found on any vital part
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of the body of the injured witnesses. Under these
circumstances, I find it difficult to sustain the
conviction of the appellants for offence punishable
under section 307 read with section 34 of the I.P.
Code.
12. It may be mentioned that learned advocate Mr.
Kulkarni referred to certain authorities, which are as
follows :
(i) Parsuram Pandey and others v. State of Bihar
2005 ALL MR (Cri) 796 (S.C.)
(ii) Jai Narain Mishra and others v.
The State of Bihar
1972 CRI.L.J.469
(iii) Merambhai Punjabhai Khachar and others v.
State of Gujarat
AIR 1996 S.C. 3236
(i) Hari Kishan and State of Haryana v.
Sukhbir Singh and others
AIR 1988 S.C. 2127
Learned A.P.P. also referred to "State
State of Maharashtra
v. Balram Bama Patil and others" AIR 1983 S.C. 305.
305
However, it is not necessary to consider these
authorities in view of the peculiar fact situation
which may be distinguished on factual matrix.
13. Coming to the question of legality and
propriety of conviction for offence punishable under
section 399 of the I.P. Code, I find that there are
incriminating circumstances brought on surface of the
record which would prove that the appellants were
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members of the gang of dacoits and had reached the
place with preparation for committing offence of
dacoity. Section 399 reads as follows :
“399.
399. Making preparation to commit dacoity.-
Whoever makes any preparation for committing
dacoity, shall be punished with rigorous
imprisonment for a term which may extend to
ten years, and shall also be liable to fine.”
14. The version of independent witness – Dinanath
(PW5) would make it amply clear that an iron tommy and
other
articles were recovered from the place. It is
also proved that one of the shops was subjected to
attempted burglary. The version of Shrimant (PW3)
reveals that at Gautam Super Shoppee situated in
Sahakarnagar area, the half portion of the shutter was
found opened. The articles in the shop were found
lying helter-skelter. The appellants did not explain
as to what was reason of their presence in the
locality at such odd hours. The independent witnesses
like Amol Jain (PW2) and Dinanath (PW5) have no
business to falsely implicate the appellants. The
absence of any explanation by the appellants would be
an additional piece of circumstantial evidence against
them completing the chain establishing the charge of
preparation for committing dacoity.
::: Downloaded on - 09/06/2013 14:17:09 ::: (12) 15. Mr. Kulkarni invited my attention to certain observations in "Chaturi Chaturi Yadav and others v. State of Bihar" AIR 1989 S.C. 1412. 1412 It was a case in which the prosecution alleged that the group of eight (8) persons was found in the school premises which was in the proximity of the market place. The Apex Court held that mere presence of the appellants inside the premises could not give rise to inference that they had assembled with an intention to commit offence of dacoity. The Apex Court observed that the possibility
that the appellants may have collected for the purpose
of murdering somebody or committing some other offence
could not
be safely eliminated. That is why it was
held that an offence punishable under section 399 of
the I.P. Code was not made out. The fact situation
in the present case is altogether different. Herein,
there is evidence to show that unsuccessful attempt
was made to commit burglary at a shop and thereafter,
the residents had tipped the police. The police party
members caught the appellants in the proximity of the
place where the attempted burglary was being
committed. The appellants failed to explain why they
had been to the locality at such odd hours. The iron
tommy and knife were recovered from place of the
incident. The irresistible conclusion would be that
the appellants alongwith three (3) accomplices, who
successfully fled away, were members of the gang of
dacoits and had made preparation to commit the offence
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of dacoity. Obviously, the impugned order of
conviction and sentence for offence punishable under
section 399 of the I.P. Code is quiet legal, proper
and correct.
16. In the result, the appeals are partly allowed.
The impugned judgement to the extent of conviction and
sentence of both the appellants, for offence
punishable under section 307 read with section 34 of
the I.P. Code is set aside. Both the appellants are
acquitted of the offence punishable under section 307
read with section 34 of the I.P. Code. The remaining
part of the
impugned judgement in respect of
conviction and sentence for the offence punishable
under section 399 of the I.P. Code and in respect of
offence punishable under section 332 read with section
34 of the I.P. Code is, however, maintained. The
period of detention/sentence already undergone by both
the appellants shall be treated as set-off, as per
provisions under section 428 of the Criminal Procedure
Code. The muddemal articles shall be destroyed after
lapse of the appeal period.
[V.R. KINGAONKAR]
JUDGE
NPJ/CRIAPL371-07-338-08
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