Uttam Shivram Shinde & Anr vs State Of Mah
2016 Latest Caselaw 2613 Bom

                                                        Criminal Appeal No.497/2005
                                              1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                               
                                   BENCH AT AURANGABAD




                                                       
                            CRIMINAL APPEAL NO.497 OF 2005


     1)       Uttam s/o Shivram Shinde,
              Age 25 years, Occ. Agriculture &




                                                      
              Labour, R/o Pimpalgaon Gholve,
              Taluka Kej, District Beed

     2)       Madhukar s/o Shivram Shinde,




                                         
              Age 25 years, Occupation &
              R/o as above.                            ...      APPELLANTS

              VERSUS
                             
     The State of Maharashtra                          ...      RESPONDENT
                            
                       .....
     Shri S.G. Chapalgaonkar, Advocate for appellants
     Shri A.M. Phule, A.P.P. for respondent/ State
      

                       .....
   



                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       8th June, 2016.

                      Date of reserving judgment : 3rd May 2016





                      Date of pronouncing judgment : 8th June, 2016.


     JUDGMENT:

1. The appellants - original accused Nos.1 and 2, who

were charged with offence of dacoity under Section 395 of the

Indian Penal Code, 1860 (I.P.C. in brief) before the 2nd Adhoc

Additional Sessions Judge, Beed in Sessions Case No.11/2002 on

7.5.2005, came to be convicted for the said offence. They have

Criminal Appeal No.497/2005

been sentenced to suffer rigorous imprisonment for four years

and to pay fine of Rs.4000/- and in default to suffer rigorous

imprisonment for one year.

2. Along with the appellants - accused No.1 and 2, other

six persons were also arrayed as accused in the charge sheet. It

appears, the charge sheet was required to be split up as the

other accused were absconding. The trial has taken place with

regard to the present appellants - accused.

3. The case of prosecution is as under :

(a) Bibhishan Tandale (P.W.1) was running a Dhaba from

his field in Tandalyachiwadi abutting Beed -

Ambajogai Highway. The said Dhaba or hotel was

near the Tandalyachiwadi within the area of Neknoor

Police Station in District Beed. The incident occurred

in the night between 26.7.1992 to 27.7.1992 at

about 1.00 a.m. Bibhishan along with one of his

relatives Nandu Jaybhay (P.W.3) and employee Pintu

Tandale (P.W.6) slept at the Dhaba after finishing

work. At about 1.00 a.m., due to barking of dogs,

the sleep of P.W.1 was disturbed and he noticed

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some persons near the Dhaba, who were carrying

instruments like sticks, iron rod and gupti. When

enquired as to from where they appeared, they

threatened to kill. Consequently, P.W.1 Bibhishan

and his relative Nandu ran towards the road. They

were obstructed there also and stones were thrown

at them. They separated in different directions and

Nandu reached the village and brought help.

ig The

servant Pintu also hid himself and had seen the

incident. Brothers of P.W.1 Bibhishan reached the

spot. Bibhishan claimed that he knew the dacoits

were from Pimpalgaon Gholve, Taluka Kaij. The

dacoits had left the spot before P.W.1 Bibhishan

alongwith help reached back the spot. They took

note of the articles and money which was stolen and

P.W.1 Bibhishan along with others proceeded to

Pimpalgaon Gholve. At that village, with the help of

Police Patil of that Pimpalgaon, Ambrushi Gholve

(P.W.7), complainant went to the house of Pardhi

(absconding accused No.8) and saw the present

accused and other two accused in that house. They

had wet mud soiled feet. He also noticed his

aluminum pot which had been stolen at that house.

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Arjun Tandale, the brother of P.W.1 Bibhishan, who

was police Patil of Tandalyachiwadi, was asked to go

and file F.I.R. He took a lift by truck to Neknoor

Police Station and in the morning filed F.I.R.

(Exh.16). The police came to the spot and did

panchanama (Exh.25) and proceeded to Pimpalgaon

and at Pimpalgaon, seized the aluminum pot from

the house ig of Digambar Jaldya Shinde (Pardhi)

(accused No.8). Wife of the said accused was

present there. The present accused persons came to

be arrested on the same day.

(b) Police investigated the matter and charge sheet came

to be filed.

(c) Prosecution brought on record evidence of 8

witnesses to prove the charge against the accused

persons. The accused persons have denied the

charge and their defence is of total denial.

4. Trial Court considered the oral and documentary

evidence brought on record, and by judgment referred above,

convicted and sentenced the accused persons.

5. By this appeal, the appellants - accused No.1 and 2

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(hereinafter referred as accused) have claimed and it has been

argued by the learned counsel for the accused that the german

or aluminum utensil was seized from the house of absconding

accused Digambar vide panchanama Exh.33. It is common

household utensil which did not have any name. The accused

were not known since before the incident, but still no test

identification parade was held. The evidence showed that, P.W.1

Bibhishan had asked the dacoits from where they had come and

thus, he did not know to which place they belonged. According

to the counsel, it was surprising that immediately after the

incident P.W.1 along with others proceeded in jeep to Pimpalgaon

and searched out the accused. According to the Advocate for

accused, the investigation was almost completed by P.W.1

himself who pursued the accused rather than going and reporting

the matter to police. The trial took place after 13 years of the

incident and thus, according to the counsel, the identification of

accused in the Court should not be accepted. Although it was

stated that the utensil was seized vide panchanama Exh.33, the

servant P.W.6 Pintu had deposed that, on the next day morning

P.W.1 Bibhishan had come with the utensil. P.W.6 Pintu had

stated that, he had in his police statement stated that, when he

woke up, the dacoits had left the hotel. The evidence of P.W.7

Ambrushi showed that accused were doing labour work and there

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was no earlier complaint of theft against them. Although accused

Nos.1 and 2 were in police custody for 5 days, nothing was

seized from them. For such reasons, the learned counsel argued

that, these accused are entitled to benefit of doubt.

Alternatively, it is argued that, as undertrial, the accused persons

were in jail for almost one year and the sentence should be

reduced to the period undergone.

6.

Against this, the learned A.P.P. supported the reasons

recorded by the trial Court to convict the accused. According to

the learned A.P.P., even if P.W.6 Pintu stated that the utensil was

brought on next day, the panchanama Exh.33 itself shows that

by that time the utensil had been seized and so may have been

brought at the Dhaba.

7. It is now necessary to consider if there is sufficient

evidence available on record and the conviction is justified.

Regarding the incident, there are three witnesses,

P.W.1 Bibhishan, his relative P.W.3 Nandu, who had slept at the

Dhaba along with P.W.1, and P.W.6 Pintu, the servant, who was

also sleeping at the Dhaba. P.W.1 Bibhishan and P.W.3 Nandu

deposed as to how they had met on that date of 26.7.1992 and

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came to sleep at the said Dhaba. It appears, P.W.1 is son of

mother's sister of P.W.3 Nandu. The evidence is that, after

completing the work at the Dhaba, these three persons slept at

the Dhaba at about 11.00 p.m. At about 12.00 in the night,

P.W.1 claims, 2-3 persons from village Sarni came and wanted to

have meals, but were required to be told that the hotel is closed.

Then they went away. Evidence shows that, at about 1.00 a.m.,

the sleep of these people got disturbed because of barking of

dogs. P.W.1 claimed that, he saw four persons on the eastern

side of his hotel. They were having sticks, iron rod and gupti in

their hands. P.W.3 corroborated P.W.1 Bibhishan that those

persons had sticks and gupti in their hands. P.W.6 claims that,

they had gupti, sword and iron rod. Evidence of Bibhishan is

that, he asked those persons from where they came. In the

English version of the evidence of Bibhishan, the evidence has

been translated to read that he asked those persons from which

place they have come. However, the Marathi portion is much

clearer that he asked them as to from where they came. It does

not mean that he was enquiring from those persons the name of

their village. The learned counsel for the accused has argued

that, P.W.1 Bibhishan was asking the dacoits from which village

they are and if he did not known, how he could later on say that

they came from Pimpalgaon. I do not find any force in this

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argument after I have gone through the Marathi version of the

evidence which clearly shows that, what P.W.1 asked was as to

from where they have come, which would mean that, he was

asking them how they have appeared there. The evidence of

P.W.1 and P.W.3 shows that, when Bibhishan enquired from

those persons, they threatened to kill and it appears that, these

persons ran from the spot. Evidence is that, the said dacoits

started pelting stones at P.W.1 and P.W.3.

ig P.W.6 claims that,

seeing the said dacoits, P.W.1 and P.W.3 ran away from the hotel

and those persons started chasing them and he also ran away

from the hotel. He claims that, he hid himself. Evidence is that,

one of the stones pelted at P.W.1 and P.W.3 hit P.W.3 on his leg.

8. Evidence of P.W.1 and P.W.3 shows that, when they

ran up to the road, three persons came in front of them and

pelted stones. So, P.W.1 Bibhishan went towards Parali-Beed

Road while P.W.3 Nandu ran towards the house at village

Tandalyachiwadi.

9. The evidence of P.W.6 is that, he ran from the hotel

and hid himself and the dacoits took bicycle, hens, one german

utensil and clothes of P.W.1 Bibhishan as well as cash Rs.1500/-

from the hotel. P.W.6 identified accused Nos.1 and 2 before the

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Court as amongst the said dacoits. He deposed that, he had

seen their faces in the light of electric bulb in the hotel of P.W.1

Bibhishan on the date of incident. P.W.1 Bibhishan was asked

and he told that, there was electric metre in his hotel and that he

had been paying electric bill. Of course, he did not remember

the electric metre number, which is natural.

10. In the cross-examination of P.W.3, the Advocate for

accused himself brought on record that there was electric bulb in

the hotel of P.W.1 Bibhishan and that he had seen four persons

from the distance of 20 ft. The cross-examination of

investigating officer P.W.8 Prakash further brought on record

that, at the field concerned, where the Dhaba was situated, there

is a well and there is electric connection for taking water from the

well and that, P.W.1 Bibhishan has taken electric supply from

the electric pole near the well. The cross-examiner kept

searching for electric bill and electric metre number, but I do not

find that the same is material. There is sufficient evidence that

there was electric connection and the electric bulb was on, in

which the dacoits, who came to the spot, were seen by these

witnesses.

11. The evidence of P.W.3 Nandu read with the evidence

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of P.W.2 Arjun, the complainant, shows that, P.W.3 Nandu had

run shouting to the village, which appears to be about one and a

half Km. away as per the spot panchanama. He reached the

village shouting and this attracted the villagers, whom he

informed that there is a dacoity at the Dhaba of Bibhishan and

evidence shows that, the complainant along with others reached

the spot. P.W.1 Bibhishan also came back to the spot when

other villagers gathered and by that time the dacoits had left.

Bibhishan took note of the things which had been stolen.

Evidence of complainant shows that Bibhishan expressed that the

dacoits were belonging to Pardhi community and they were from

Pimpalwadi and that he knew them by face. Evidence of P.W.1

Bibhishan also is that he was knowing the dacoits by their face,

but could not tell their names. Bibhishan deposed that, he along

with his brother Madhu and Anna as well as Jalindhar went to

Pimpalgaon, by jeep in search of the dacoits. Evidence of P.W.3

Nandu is also that, after the incident P.W.1 Bibhishan stated that

the dacoits were from Pimpalgaon. He also claims to have gone

to Pimpalgaon along with Bibhishan and others.

12. Evidence of P.W.1 Bibhishan and P.W.3 Nandu read

with P.W.7 Ambrushi Gholve (Police Patil of Pimpalgaon) shows

that, Bibhishan along with other villagers in the night itself went

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to Pimpalgaon by taking some jeep and went to meet this Police

Patil of Pimpalgaon and along with him, reached the house of

accused No.8 Digambar. The evidence of these witnesses read

with the evidence of P.W.7 Ambrushi shows that, at the said

house, accused No.1 Uttam and accused No.2 Madhukar along

with accused No.3 Sampat and absconding accused no.8 Dighya

were seen there and P.W.7 Ambrushi deposed that, Bibhishan

(P.W.1) identified them. ig Bibhishan stated at that time that,

these four persons along with others had committed dacoity at

his hotel.

13. The evidence of P.W.1 Bibhishan and P.W.3 Nandu

shows that, when they had gone to such house, they had seen

the four dacoits mentioned above and they had mud stained legs.

Complainant identified his german utensil to be in that house.

14. The evidence of complainant P.W.2 Arjun is that,

after P.W.1 Bibhishan told about the dacoits to be from Pardhi

community and from Pimpalgaon and that he knew them by face

and that they had gone by private jeep to the said village. He

deposed that, one person came and told him that P.W.1

Bibhishan had asked him to lodge complaint and consequently he

went and filed the complaint Exh.16 at Police Station, Neknoor.

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He has deposed and even the F.I.R. Exh.16 mentioned that, in

the night there was no mode of transport and so, the

complainant had come in the morning and was giving the

complainant. P.W.2 deposed that, he went to the Neknoor Police

Station on 27.7.1992 at about 7.30 a.m. and lodged the report

and that he reached late as no vehicle was available in the night.

The counsel for accused objected to the delay,

claiming that, the evidence shows that, in the night itself these

witnesses managed to have a jeep to go to Pimpalgaon and there

was no reason why the vehicle was not used to go the police

station. I find that, once P.W.1 Bibhishan had reached the

house of one of the dacoits and accused No.1 and 2 had been

found to be there, he may have thought it to be more proper to

remain there and let his brother go and file the F.I.R. and call

police. If this took some time looking to the fact that the Police

Station is 13 Kms. away, it cannot be said to be fatal. The delay

has been explained in the F.I.R. itself and and there is no reason

not to accept the same.

15. The F.I.R. filed by P.W.2 Exh.16 shows as to how at

about 1.00 o'clock in that night P.W.3 Nandu came shouting and

because of which, this complainant thus came out and they ran

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up to the Dhaba after coming to know about the incident from

Nandu. F.I.R. mentions that, Bibhishan informed regarding the

theft of cycle, 7 hens, 1 pant, 1 shirt, Rs.1500/- and german

utensil and a box. The F.I.R. then concludes that, dacoity as

such has taken place and that Bibhishan had said that, the

thieves were from Pardhi people. The F.I.R. then has a

compound sentence in inclusive format "We", stating that when

"we" went to Pimpalgaon Pardhi Vasti and Bibhishan had along

with police patil of Pimpalgaon gone and found the accused

persons having mud soiled feet a person had come and asked the

complainant to go and file the F.I.R. The compound sentence

starting by using of the word "We" ends with the words "a person

came back and told him and accordingly, the complainant had

come to file the F.I.R." Perusal of the evidence of P.W.2 makes it

clear that, he had himself not gone to Pimpalgaon along with

Bibhishan. Thus, what happened at Pimpalgaon as

stated by him in the F.I.R. is on the basis of hear-say for this

complaint.

16. P.W.8 P.I. Prakash Jadhav stated that, when the

F.I.R. was filed, he went to the spot and prepared panchanama

Exh.25. The panchanama has been proved by prosecution after

bringing on record evidence of P.W.4 Shahu and P.W.5 Gayas.

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Although P.W.4 Shahu turned hostile, P..5 Gayas supported the

prosecution. P.W.8 then deposed that, P.W.1 Bibhishan had

chased the dacoits to Pimpalgaon and so he along with officials

went to Pimpalgaon. He called the police patil and arrested

accused Nos.1 and 2 and another accused Sampat. It appears

that, accused Digambar had by that time run away from the said

house. He prepared seizure panchanama Exh.33. The said

panchanama was admitted by the accused in the trial Court. It

shows that, from the house of Digambar Pardhi, german utensil,

identified by P.W.1 Bibhishan to be his, was seized. No doubt

the said german utensil did not bear the name of P.W.1

Bibhishan, but P.Ws.1, 3 and 6 all the witnesses identified the

article. P.W.6 being servant at the Dhaba, must have had

opportunity to handle the utensil and he has also identified the

same. Thus, only because name had not been put on the utensil

would not make any difference.

17. It has been argued that, no identification parade was

taken and the accused were shown to the witnesses on next day

of the incident. However, as the above discussion shows, P.W.1

immediately after the incident, had expressed that the dacoits

were Pardhis from Pimpalgaon and the evidence shows that he

along with P.Ws.3 and others took some jeep and immediately

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went to Pimpalgaon in the same night and with the help of local

Police Patil of that village, reached the house of accused

Digambar, where accused Nos.1, 2 as well as another absconding

accused Sampat and Digambar were there with mud soiled feet

and complainant noticed his stolen utensil at that place. The

evidence of P.Ws.1, 3 and 6 read together shows that, at the

Dhaba there was electric bulb burning and thus, there was light,

which had enabled these persons to see the accused.

ig After

incident, P.Ws.1 and 3 chased the accused to the home of

absconding accused No.8 and again saw and identified them. In

such set of facts, I do not think that not holding of test

identification parade should be treated as fatal.

18. It has been then argued that, P.W.6 Pintu had

deposed that, in the morning, Bibhishan had returned from

Pimpalgaon along with german utensil. According to the counsel,

how could this happen if the utensil was seized vide panchanama

Exh.33 admitted by the accused. The seizure panchanama was

recorded at 10.15 - 10.30 a.m. on 27.7.1992. There is

substance in the arguments of A.P.P. that the panchanama being

of the same day and same morning, coming down to Dhaba with

the utensil cannot be so read that it had not been seized.

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19. The learned counsel for accused then submitted that,

P.W.6 Pintu has stated that, he had told police that when he

woke up, the dacoits had left hotel of Bibhishan. The witness

had, in his examination-in-chief, clearly given all the details as to

how the incident occurred and how he hid himself and saw the

dacoits in the light of the electric bulb. In the cross-examination,

he deposed that, he knows the accused from the date of incident

as he had seen them on the date of incident itself. No doubt he

accepted that he had not stated to the police that he ran away

from the hotel. However, his evidence regarding he going and

hiding and seeing the incident remained unshattered. This

witness was deposing after 13 years of the incident and in the

cross-examination, a stray sentence was put to him that he had

stated to police that, when he woke up, the dacoits had left. The

sentence was put up to the witness without reference to context

and by such vague admission, which is also limited to what was

stated to police (and not what happened), cannot be read in

isolation to wash out the evidence of his seeing the incident.

20. Reading the evidence of the eye witnesses along with

the evidence of the investigating officer, I do not find that there

is any material contradiction or omission proved so as to discredit

the witnesses. The trial Court went through the evidence of

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these witnesses and recorded detailed reasons why it found that

the witnesses were reliable, and accepted their evidence to hold

the accused guilty. I have also gone through the evidence and

do not find any reason to disagree with the trial Court. The

accused have been rightly convicted of the offence punishable

under Section 395 of the Indian Penal Code. There is no

substance in the arguments of learned counsel for accused.

21.

In the cross-examination of P.W.1 Bibhishan and

complainant P.W.2, it was claimed that, the accused persons had

to recover money of labour, which they did at the field of P.W.2

Arjun and thus, to avoid the payment false case is filed. The

suggestion on this count has not been accepted by any witness

and the defence on this count has no substance. Rather, it would

show that, these witnesses had reason to know these accused

persons.

22. The learned counsel for the appellants - accused,

alternatively argued that, looking to the age of the accused

persons, benefit of Probation of Offenders Act should be given to

them. He submitted that, P.W.7 has deposed that, before the

present incident, the said Police Patil has not received any

previous complaint of theft or dacoity against these accused and

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that, they were doing labour work. Going through the judgment

of the trial Court shows that, on the count of sentence, the

accused had claimed to be of young age with responsibilities of

families. They claimed that, they had children and wives and

their father had also been arrested in the same case a fortnight

before sentence was being passed. They claimed that there was

nothing on record to show that they were previously convicted.

However, trial Court recorded that, accused No.2 accepted that

there was one Criminal Case under Section 379 of the Indian

Penal Code pending against him. Trial Court considered young

age and that there was no previous conviction, and observed

that, leniency was required to be shown. It convicted the

accused and sentenced to suffer four years imprisonment.

Looking to the nature of offence and these factors, I find that,

one more aspect needs to be kept in view, which is the poverty

and illiteracy of these accused. Apparently, they were labourers

and stole petty things like hens and used clothes and ordinary

article like used utensil. It would be appropriate to show some

more leniency than what was shown by the Additional Sessions

Judge. However, looking to the fact that, it is a matter of dacoity

committed in the night time, sentence of imprisonment is

necessary. I thus pass the following order :

Criminal Appeal No.497/2005

ORDER

23. The conviction of the appellants - accused under

section 395 of the Indian Penal Code is maintained. However,

the appeal is partly allowed with reference to the sentence.

Instead of the sentence passed by the trial Court, it is directed

that the appellants - original accused Nos.1 and 2 shall suffer

rigorous imprisonment for three years and shall pay fine of

Rs.4000/- (Rupees four thousand) each, and in default, they

shall suffer further rigorous imprisonment for six months. They

would be entitled to set off period they have been in jail as

undertrial. Appellants - accused Nos.1 and 2 shall surrender to

their Bail Bonds. Trial Court shall ensure execution of the

sentence.

With such modification of sentence, the appeal stands

disposed of.

(A.I.S. CHEEMA, J.)