Chendya Hurdya Kale vs The State Of Maharashtra
2017 Latest Caselaw 5045 Bom

                                               Cri. Appeal No.252/2000 with
                                                    Cri. Appeal No.381/2000
                                        1


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                        CRIMINAL APPEAL NO.252 OF 2000


 Chendya Hurdya Kale,
 Age 45 years,
 R/o Wakodi, Taluka and
 District Ahmednagar                          ...      APPELLANT

          VERSUS

 The State of Maharashtra
 (Copy to be served on
 Public Prosecutor, High Court of
 Bombay, Bench at Aurangabad                  ...      RESPONDENT

                                 .....
 Shri V.R. Dhorde, Advocate for appellant
 Shri S.D. Ghayal, A.P.P. for respondent
                                 .....

                                      WITH

                        CRIMINAL APPEAL NO.381 OF 2000


 The State of Maharashtra
 through Public Prosecutor,
 High Court of Bombay,
 Bench at Auramganad                          ...      APPELLANT

          VERSUS

 1)       Kalu Maruti Shinde,
          Age 25 years,
          R/o Vaidu Wadi, Ahmednagar

 2)       Chendya Hurdya Kale,
          Age 45 years, R/o Wakodi,
          Taluka and District Ahmednagar

 3)       Shaibai w/o Chendya Kale,
          Age 40 years, R/o Wakodi,
          Taluka and District Ahmednagar


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                                                     Cri. Appeal No.252/2000 with
                                                         Cri. Appeal No.381/2000
                                          2



 4)       Raju Bapu Shinde,
          Age 35 years, R/o Vaiduwadi,
          Ahmednagar

 5)       Suresh Shankar Dhangar
          Age 35 years, R/o Vaiduwadi,
          Ahmednagar                               ...      RESPONDENTS

                                 .....
 Shri S.D. Ghayal, A.P.P. for respondent
 Shri Satej S. Jadhav, Advocate for respondents
                                 .....

                                 CORAM:       T.V. NALAWADE AND
                                              SUNIL K. KOTWAL, JJ.

                  Date of reserving judgment : 11th July, 2017
                  Date of pronouncing judgment : 26th July, 2017.


 JUDGMENT (PER SUNIL K. KOTWAL, J.) :

1. Criminal Appeal No.252/2000 is directed by original

accused No.2 in Sessions Case No.115/1999 against the

judgment and order of his conviction for the offence punishable

under Section 379 of the Indian Penal Code, passed by 4th

Additional Sessions Judge, Ahmednagar. Criminal Appeal

No.381/2000 is directed against the same judgment, challenging

the acquittal of accused No.1, 3 to 5 and against the lesser

punishment to accused No.2 for the offence punishable under

Section 379 of the Indian Penal Code. Criminal Appeal

No.381/2000 is preferred by State of Maharashtra. The

respondents in Criminal Appeal No.381/2000 are original accused

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

No.1 to 5. These both appeals are disposed of by this common

judgment. For the sake of convenience, the parties are referred

in accordance with their original status.

2. Shorn of necessary details, prosecution case in brief

is that, Shri Santoshkumar Warma (P.W.2) used to run jewelery

shop at Ahmednagar. Shri Sunil Arya (P.W.1) is servant of

Santosh Warma (P.W.2). On 7/2/1999, accused No.1 contacted

Santosh Warma (P.W.2) on telephone and called him near Sarda

College, Ahmednagar at about 4.30 p.m. for some transaction of

sale-purchase of gold. Accordingly Santosh Warma (P.W.2)

along with his servant Sunil Arya (P.W.1) went towards Sarda

College near Bus Stop, at Ahmednagar at about 4.30 p.m.

Accused No.1 and two other unknown persons also came to that

spot. Thereafter, accused No.1 showed two gold rings and two

silver coins to Santosh Warma (P.W.2) and informed him that 1

Kg. gold rings and 25 silver coins were available for sale, for the

cost of Rs.2 Lakhs. He asked Santosh Warma (P.W.2) to check

the gold and silver shown to him. Sunil Arya (P.W.1) accordingly

checked those two gold rings and silver coins and found them

genuine. He accordingly informed Santosh Warma (P.W.2).

Thereafter accused No.1 told Santosh Warma (P.W.2) to come on

next day at about 4.30 p.m. near Sarda College canteen at

Ahmednagar and the 1 Kg. gold and 25 silver coins would be

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made available from one Chendya Kale (accused No.2) at

Religious Examination Board for the cost of Rs.2 Lakhs. Santosh

Warma (P.W.2) was allowed to retain those two gold rings and

two silver coins with him. After returning to jewelery shop, after

passage of time, Santosh Warma (P.W.2) suspected that

something must be wrong. Recently on behalf of Police Station,

propaganda was made to prevent crime and to contact the police

if anything suspicious is found by any citizen. Santosh Warma

(P.W.2) was well aware of this propaganda. Therefore, on next

day, he approached Topkhana Police Station, Ahmednagar and

met to Police Station Incharge, P.I. Shri M.N. Kale (P.W.8).

When this P.I. was informed regarding the occurrence, he

directed Santosh Warma (P.W.2) to arrange one bag and 10

bundles of cut papers of the size of currency note of Rs.100/-

and 10 genuine currency notes. Accordingly, Santosh Warma

(P.W.2) made arrangement of decoy bundles of currency notes

and briefcase. One genuine currency note of Rs.100/- was

placed on the upper side of each bundle of paper and

accordingly, such 10 paper bundles were kept in one briefcase

(Article A). On 8/2/1999, after preparation of pre-trap

panchanama (Exh.52) at about 4.30 p.m., trap was arranged.

By autorickshaw, santosh Warma (P.W.2) and Sunil Arya (P.W.1)

with briefcase containing decoy currency note bundles, started

proceeding towards Sarda College Canteen, where they were

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

called by accused No.1. P.I. Shri Kale (P.W.8) and P.S.I. Shri

C.B. Landge (P.W.9) accompanied Santosh Warma (P.W.2) in the

same autorickshaw, but in plain clothes. Other police staff

followed that autorickshaw by private Sumo Jeep and Maruti Car

after taking precaution that they would not be noticed by third

persons. When along with Santosh Warma (P.W.2) Sunil Arya

(P.W.1), P.S.I. Landge (P.W.9) and P.I. Kale (P.W.8) reached

near Sarda College Canteen, Ahmednagar, at that spot, accused

No.1 met them and boarded in the same autorickshaw. P.I. Kale

(P.W.8) and P.S.I. Landge (P.W.9) were introduced as probable

customers for gold and silver. As per instructions of accused

No.1, the autorickshaw was turned to Religious Examination

Board. However, later on accused No.1 took that autorickshaw

to Wakodi Shivar. All persons alighted from autorickshaw and

accused No.1 along with Santosh Warma (P.W.2) and Sunil Arya

(P.W.1) want towards "Shami Tree", which was at a distance of

one furlong from the road. P.I. Kale (P.W.8) and P.S.I. Landge

(P.W.9) also followed them up to "Shami Tree". Accused No.2

and one woman, one another unknown person and one 10 years

old boy were present near Shami Tree. Accused No.1 introduced

accused No.2 as Chendya Kale and that woman as Shaibai

(accused No.3), wife of accused No.2. Accused No.2 asked

whether cash of Rs.2 Lakhs was brought. When Sunil Arya

(P.W.1) showed them the decoy currency note bundles by

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opening the briefcase, immediately accused No.2 blew whistle.

Immediately other 9 to 10 persons, armed with sticks and axes,

who were hiding in the surrounding shrubs and bushes, rushed

towards Sunil Arya (P.W.1) and Santosh Warma (P.W.2).

Accused No.2 snatched the briefcase containing decoy currency

note bundles. By that time, P.I. Kale (P.W.8) and P.S.I. Landge

(P.W.9) rushed near them to save the briefcase. Accused No.2

and other accused started running away with the briefcase.

When P.I. Kale (P.W.8) chased and caught accused No.2, that

time other companions of the accused attacked P.I. Kale (P.W.8)

by sticks and by pelting stones. Accused No.2 was trying to run

away with the briefcase. Apprehending danger from the accused

persons and their friends, one bullet was fired by P.I. Kale

(P.W.8) by his service revolver. Hearing that sound, other

supporting police force also rushed on the spot. Accused No.1 to

5 were apprehended on the spot along with one 12 years old

small boy. The briefcase was recovered from the accused

persons. On enquiry with them, name of other accused persons

and their friends were disclosed. During the incident, P.I. Kale

(P.W.8), P.S.I. Lokhande (P.W.9) and other police personnel

sustained injuries due to stick blows and stone pelting. The

arrested 5 accused persons and one small boy were taken to

Topkhana Police Station, Ahmednagar. Sunil Arya (P.W.1)

lodged F.I.R. (Exh.44) to Police Station at about 7.45 p.m.

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

3. Offence was registered at Topkhana Police Station

against the accused persons under 353, 332, 420 read with

Section 34 of the Indian Penal Code and under Sections 395,

120-B of the Indian Penal Code. Investigation of this crime was

handed over to A.P.I. Shri Umbre (P.W.10). Dr. Sanjay Thube

(P.W.6) examined P.I. Kale (P.W.8) and P.S.I. Landge (P.W.9)

and Constable Shri Kasode, and issued injury certificates

(Exhs.57, 58 and 59). Briefcase with decoy bundles of currency

notes with 10 genuine currency notes was seized under

panchanama (Exh.61). Investigating officer (P.W.10) also seized

two gold rings and two silver coins under panchanama (Exh.62).

P.I. Kale (P.W.8) also produced empty cartridge before panchas

and the same was also seized under panchanama (Exh.63).

Panchanama of the scene of offence was drawn on 9/2/1999 in

presence of the panchas (Exh.64). On 9/2/1999 P.S.I. Wagh

from Local Crime Branch produced accused No.6 and 7 before

Investigating Officer (P.W.10) and they were arrested under

arrest panchanama (Exh.54). On 9/2/1999, four silver coins,

cash of Rs.570/- and one wrist watch were seized from accused

No.6 and metal ring, cash of Rs.2780/-, wrist watch and 70 metal

rings were seized from accused No.7. Accused No.8 was

arrested on 10/2/1999 under arrest panchnama (Exh.55) by the

investigating officer. Accused No.1 to 5 and small boy were

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arrested on the date of incident at about 7.55 p.m. under

panchanama (Exh.53). After completion of the investigation,

charge sheet was submitted against accused No.1 to 8 before

Judicial Magistrate, First Class, Ahmednagar.

4. Offence punishable under Section 395 of the Indian

Penal Code being exclusively triable by Court of Sessions, this

case was committed to Sessions Court, Ahmednagar. Charge

(Exh.24) was framed against accused No.1 to 8 for the offences

punishable under Sections 353, 332, 420 read with Section 34 of

the Indian Penal Code and under Sections 395, 120-B of the

Indian Penal Code. Accused pleaded not guilty and claimed trial.

Defence of the accused is of total denial.

5. Prosecution examined total 10 witnesses. After

considering the evidence placed on record, the 4th Additional

Sessions Judge, Ahmednagar acquitted all the accused of the

offences punishable under Sections 332, 353, 420 read with

Section 34 of the Indian Penal Code and under Sections 395 and

120-B of the Indian Penal Code. Only accused No.2 was

convicted for the offence punishable under Section 379 of the

Indian Penal Code and he was sentenced to suffer rigorous

imprisonment for two years. Therefore, Criminal Appeal

no.352/2000 is preferred by accused No.2. State has challenged

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

only acquittal of the accused No.1 to 5 of the offence punishable

under Section 395 of the Indian Penal Code. Acquittal of all

accused persons for the offence under remaining Sections is not

challenged by State Government. Even acquittal of accused No.6

to 8 is not challenged by the State Government. Therefore,

evidence available against accused No.6 to 8 will not be

discussed.

6. Learned Advocate for accused No.2 has drawn our

attention towards cross-examination of prosecution witnesses

and submitted that, all witnesses have contradicted each other

regarding occurrence of the incident. He pointed out that, Sunil

Arya (P.W.1) and P.I. Kale (P.W.8) are contradicting regarding

passing of the stolen briefcase. Regarding applicability of Section

395 of the Indian Penal Code, learned Advocate for respondent

No.2 submitted that, no evidence is available to show that more

than 5 persons conjointly committed the offence of robbery or

theft and, therefore, accused No.2 cannot be convicted for the

offence punishable under Section 395 of the Indian Penal Code.

7. On the other hand, learned A.P.P. for the State

assailed the judgment passed by the trial Court acquitting

accused No.1 to 5 of the offence punishable under Section 395 of

the Indian Penal Code. According to learned A.P.P., complainant

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

Sunil Arya (P.W.1) was fully corroborated by truthful testimony

of Santosh Warma (P.W.2), P.I. Kale (P.W.8) and P.S.I. Landge

(P.W.9). He submitted that, the oral version of these eye

witnesses is also corroborated by medical evidence of Dr. Thube

(P.W.6) and injury certificates (Exhs.57 to 59).

8. Initially, we will consider the evidence available

against accused No.1, 3 to 5 to examine whether their acquittal

is justified or the view taken by learned trial Court while

acquitting them is impossible. Correctness of the conviction of

accused No.2 will be considered subsequently.

9. Sunil Arya (P.W.1), Santosh Warma (P.W.2), P.I. Kale

(P.W.8) and P.S.I. Landge (P.W.9) are the eye witnesses of the

incident. Out of these four witnesses, P.I. Kale (P.W.8) and

P.S.I. Landge (P.W.9) are the injured witnesses. A.P.I. Umbre

(P.W.10) is investigating officer and Bhausaheb Jawale (P.W.3),

Ravindra Thorat (P.W.4), Rajendra Channa (P.W.5) and Vijay

Gupta (P.W.7) are the panch witnesses. Dr. Thube (P.W.6) is

Medical Officer, who examined P.I. Kale (P.W.8) and P.S.I.

Landge (P.W.9) along with other Police Constables.

10. It is to be noted that, Sunil Arya (P.W.1), Santosh

Warma (P.W.2) and P.I. Kale (P.W.8) have not uttered anything

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against the accused No.1 except his participation for taking the

jeweler Santosh Warma (P.W.2) along with other persons to

Wakodi Shivar to have some transaction with accused No.2

Chendya. On the other hand, Sunil Arya (P.W.1), in paras 10, 12

of his examination-in-chief deposed on oath that on way to the

spot, even in rickshaw, accused No.1 told Santosh Warma (P.W.2)

that accused No.1 had no concern with the transaction. So also

accused No.1 did not take any part during the incident when

Santosh Warma (P.W.2) was robbed by accused No.2 and his

companions. On the other hand, in cross-examination Sunil Arya

(P.W.1) has admitted that, when accused No.2 snatched the bag

from his hand, that time accused No.1 and Santosh Warma

(P.W.2) helped him to retain the bag in his hand. Even Santosh

Warma (P.W.2) has deposed before the Court that when accused

No.2 tried to snatch bag from the hand of Sunil Arya (P.W.1), that

time accused No.1 and this witness tried to recover that bag from

accused No.2. From the evidence of Santosh Warma (P.W.2), it

also emerges that, accused No.1 told him that he had no concern

with the transaction. Only P.S.I. Landge (P.W.9) deposed before

the Court that accused No.1 to 5 were arrested while snatching

the bag. However, his contention is proved as material omission.

Therefore, the evidence of prosecution itself indicates that,

accused No.1 did not take any active part for snatching the bag

from the hand of Sunil Arya (P.W.1). On the other hand, he

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helped Sunil Arya (P.W.1) to avoid the theft of that bag by

accused No.2. No other evidence is available against accused

No.1 to show that he had any knowledge regarding the plan or the

trap arranged by accused No.2 to rob the jeweler Santosh Warma

(P.W.2). Therefore, considering this type of evidence available

against accused No.1, the learned trial Court rightly awarded

benefit of doubt in his favour.

11. So far accused no.4 and 5 are concerned P.I. Kale

(P.W.8) and P.S.I. Landge (P.W.9) have brought on record totally

inconsistent theory. According to P.I. Kale (P.W.8), when accused

No.2 snatched bag from the hand of Sunil Arya (P.W.1) and when

this witness tried to catch accused No.2, that time accused No.2

passed over that bag to accused No.5. According to P.I. Kale

(P.W.8), accused No.4 was amongst those persons who attacked

him at the time of occurrence of the incident. On the other hand,

P.S.I. Landge (P.W.9) contradicted P.I. Kale (P.W.8) by deposing

that accused No.4 and 5 snatched the bag from the hand of Sunil

Arya (P.W.1). According to P.S.I. Landge (P.W.9), he recovered

the bag from accused No.4. On the other hand, P.I. Kale (P.W.8)

claims that he recovered the bag by apprehending accused No.2.

Thus, P.I. Kale (P.W.8) and P.S.I. Landge (P.W.9) are not certain

regarding the part played by accused No.4 and 5 at the time of

dacoity.

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

12. However, cat has come out of the bag when Sunil Arya

(P.W.1) was subjected to cross-examination. Sunil Arya (P.W.1)

has admitted in his cross-examination that, accused No.4 and 5

were not present, when P.I. Kale (P.W.8) was assaulted and

stones were pelted. In para 13 of his cross-examination, he made

it crystal clear that, accused No.4 and 5 came after hearing sound

of firing of bullet by P.I. Kale (P.W.8) from his service revolver.

Sunil Arya (P.W.1) has also made it clear that he included the

name of accused No.4 and 5 in F.I.R. as per the information given

by police and he was not knowing accused No.4 and 5 till they

were brought to police station. Even jeweler Santosh Warma

(P.W.2) has made it clear that, accused No.4 and 5 were not

amongst the above referred 10 to 12 armed dacoits who pelted

stones and assaulted or who snatched the bag containing dacoi

currency notes.

13. Thus, two probabilities arise. One is that, accused

No.4 and 5 had taken active part in commission of the dacoity and

the second is that, accused No.4 and 5 reached on the spot only

as anxious spectators after hearing the sound of bullet firing. It is

settled principle of law that, when two probabilities arise, benefit

of doubt goes in favour of the accused. Therefore, even acquittal

of accused No.4 and 5 cannot be faulted.

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

14. If the evidence available against accused No.3 is

scrutinized, it emerges that, Sunil Arya (P.W.1) and Santosh

Warma (P.W.2), P.I. Kale (P.W.8) and P.S.I. Landge (P.W.9) have

merely deposed regarding her presence along with accused No.2

as his wife at the time of occurrence. However, nobody whispered

a single word against accused No.3 regarding any part played by

her during the incident of dacoity. No prosecution witness says

that accused No.3 tried to save accused No.2 who was

apprehended by P.I. Kale (P.W.8). None of the prosecution

witness says that accused No.3 pelted any stone or she took any

part to remove the bag. Therefore, only because she is passive

witness of the occurrence, it cannot be said that she was the part

of gang of dacoits. Benefit of doubt was rightly given to accused

No.3 Saibai by the trial Court.

15. Now turning towards the evidence available against

accused No.2 Chendya, it reveals that, Sunil Arya (P.W.1),

Santosh Warma (P.W.2) and P.I. Kale (P.W.8) have consistently

deposed before the Court that when Sunil Arya (P.W.1) opened

the bag to show the bundle of dacoi currency notes to accused

No.2, he blew whistle and thereafter, from nearby bushes and

shrubs, 10 to 12 persons rushed to the spot of the incident and

they were armed with sticks and axes. Only P.S.I. Landge

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(P.W.9) contradicted these witnesses by deposing that

Sureshkumar Dhangar snatched the bag from the hand of Sunil

Arya (P.W.1). This witness claims that he recovered the bag from

accused No.4. However, this version of P.S.I. Landge (P.W.9) is

proved as material omission and can be safely ignored. However,

undisputed fact remained on record that as per information given

by accused No.1 when Sunil Arya (P.W.1) and jeweler Santosh

Warma (P.W.2) went to the spot of occurrence, accompanied by

P.I. Kale (P.W.8) and P.S.I. Landge (P.W.9) and when Sunil Arya

(P.W.1) showed the bag of dacoi currency notes to accused No.2,

he called his armed companions by blowing whistle, who were

hiding nearby bushes. Further evidence shows that, accused No.2

snatched the bag from the hand of Sunil Arya (P.W.1) and tried to

run away. That time, P.I. Kale (P.W.8) chased him and

apprehended him with the bag. To save the accused No.2

Chendya from the clutches of P.I. Kale (P.W.8), the 10 to 12

armed co-accused started assaulting P.I. Kale (P.W.8) and others

by stick blows and they also pelted stones to rescue the accused

No.2. During that assault, P.I. Kale (P.W.8) and P.S.I. Landge

(P.W.9) sustained injuries along with one police constable.

Apprehending danger, when P.I. Kale (P.W.8) fired bullet from his

service revolver, that time, the supporting police staff rushed on

the spot and succeeded in apprehending accused No.1 to 5 on the

spot along with one small boy.

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

16. This evidence brought on record by prosecution, was

heavily attacked by defence counsel. However, this version of

prosecution witnesses remained unshattered on every material

particulars. Some contradictions pointed out by learned defence

counsel regarding passing over bag by accused No.2 to other co-

accused is so minor that it deserves to be ignored. Such minor

improvements may occur due to passage of time because the

incident occurred in the month of February 1999 and evidence of

P.I. Kale (P.W.8) and other witnesses is recorded after lapse of

nearabout one year. After passage of time, the contradictions and

omissions pointed out by defence counsel are natural and no

importance can be attached to it when all the prosecution eye

witnesses are independent and truthful witnesses.

17. Even the oral testimony of these witnesses is

corroborated by Dr. Thube (P.W.6) who examined P.I. Kale

(P.W.8) and found one contusion over his right forearm lower

1/3rd portion and haematoma over forehead on left side. Dr.

Thube (P.W.6) also found one contusion over right leg later

aspect, multiple scratches over left scapular region and contusion

over left sterno clevicular joint on the body of P.S.I. Landge

(P.W.9). Dr. Thube (P.W.6) also opined that, these injuries were

caused within 24 hours from the time of examination i.e. 8.30

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

p.m. on 8/2/1999. The incident occurred on 8/2/1999. Thus, the

medical evidence supports the contention of P.I. Kale (P.W.8) and

P.S.I. Landge (P.W.9) that during the occurrence of dacoity the 10

to 12 companions of accused No.2 assaulted them by sticks and

stones and thereby these witnesses sustained injuries. We find

that, the oral testimony of these four prosecution witnesses

including two injured witnesses is sufficient to hold that on

8/2/1999, accused No.2 snatched the bag containing dacoi

currency notes, and in order to commission of that theft,

voluntarily hurt was caused to P.I. Kale (P.W.8) and P.S.I. Landge

(P.W.9) by stick blows and stone pelting by other co-dacoits.

Thus, offence of robbery conjointly by accused No.2 and his 10 to

12 co-accused is established by prosecution beyond reasonable

doubt.

18. Learned defence counsel raised objection that accused

No.2 alone cannot be convicted for the offence of dacoity because,

in view of definition of dacoity under Section 391, the offence of

robbery must be committed by 5 or more persons conjointly.

Learned defence counsel pointed out that, except accused No.2,

accused No.1, 3 to 8 are acquitted by the trial Court by giving

benefit of doubt and other absconding dacoits cannot be arrested

and prosecuted, by prosecution. However, Hon'ble Apex Court

had occasion to consider similar situation in the case of Raj

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

Kumar alias Raju Vs. State of Uttranchal (Now Uttrakhand)

reported in AIR 2008 SC 3248, wherein the Apex Court

observed as under :

"It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not dispute or is clearly established, but the Court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons - or even one - can stand."

This authority was also followed by Apex Court in the

case of Manoj Giri Vs. State of Chhatisgarh reported in 2013

CRI.L.J. 3024 (SUPREME COURT). Same view was also taken

previously by larger Bench of the Supreme Court in Saktu & anr.

Vs. State of Uttar Pradesh reported in AIR 1973 SC 760.

19. Thus, in view of law settled by Apex Court, though

other accused are acquitted and some of the co-dacoits are not

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

arrested and prosecuted, as prosecution has established that the

offence of robbery was committed by accused No.2 and other 10

to 12 co-accused conjointly, and during that occurrence, simple

hurt was caused to P.I. Kale (P.W.8) and P.S.I. Landge (P.W.9),

the accused No.2 deserves to be convicted for commission of the

offence of dacoity punishable under Section 395 of the Indian

Penal Code.

20. At the time of commission of the offence, accused

No.2 was 45 years old. Therefore, now in the year 2017, he must

be around 63 to 64 years old. Considering this advance age of

the accused No.2, it is not desirable to impose imprisonment for

life under Section 395 of the Indian Penal Code. On the other

hand, considering overall circumstances of the case, the nature of

the injuries sustained by witnesses and the age of accused,

imprisonment of five years and fine of Rs.5000/- for the offence

punishable under Section 395 of the Indian Penal Code will suffice

to meet the ends of justice.

21. It follows that, Criminal Appeal no.252/2000 filed by

original accused No.2 deserves to be dismissed and Criminal

Appeal No.381/2000 filed by the State deserves to be partly

allowed to modify the conviction and sentence of accused No.2.

Accordingly, we pass the following order :

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

ORDER

(i) Criminal Appeal No.252/2000 is dismissed.

(ii) Criminal Appeal No.381/2000 is partly allowed.

(iii) Judgment and order of acquittal of accused No.2

Chendya Hurdya Kale for the offence punishable under

Section 395 of the Indian Penal Code is quashed and set

aside.

(iv) The respondent No.2 Chendya Hurdya Kale is held guilty

for commission of the offence punishable under Section

395 of the Indian Penal Code and he is sentenced to

suffer rigorous imprisonment for five years and to pay

fine of Rs.5000/- (rupees five thousand), in default to

suffer rigorous imprisonment for three months under

Section 395 of the Indian Penal Code.

(v) Set off be given to accused No.2 Chendya Hurdya Kale

under Section 428 of the Code of Criminal Procedure for

the period already undergone.

(vi) Accused No.2 Chendya Hurdya Kale shall surrender to

his bail bonds before the trial Court to undergo the

punishment.

Cri. Appeal No.252/2000 with Cri. Appeal No.381/2000

(vii) Criminal Appeal No.381/2000 against respondent No.1

Kalu Maruti Shinde, respondent No.3 Shaibai w/o

Chendya Kale, respondent No.4 Raju Bapu Shinde and

respondent No.5 Suresh Shankar Dhangar is dismissed.

(viii) Respondent No.1 Kalu Maruti Shinde, respondent No.3

Shaibai w/o Chendya Kale, respondent No.4 Raju Bapu

Shinde and respondent No.5 Suresh Shankar Dhangar

shall execute before the trial Court bail bonds with

sureties for the amount of Rs.5000/- (Rupees five

thousand) each to appear before the Supreme Court as

and when notices are issued to them in respect of any

proceedings filed against this judgment vide Section

437-A of the Code of Criminal Procedure and the said

bail bonds shall remain in force for a period of six

months from today.

          (SUNIL K. KOTWAL)                       (T.V. NALAWADE)
              JUDGE                                     JUDGE



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