Bombay High Court
Ashok Ananda Kamble vs The State Of Maharashtra on 9 March, 2017
Bench: A.M. Badar
901-APPEAL-1329-2002.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1329 OF 2002
WITH
CRIMINAL APPLICATION NO.114 OF 2016
AND
CRIMINAL APPLICATION NO.406 OF 2016
IN
CRIMINAL APPEAL NO.1329 OF 2002
ASHOK ANANDA KAMBLE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Ms.Nasreen Ayubi, Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : RESERVED ON 2nd MARCH 2017
PRONOUNCED ON 9th MARCH 2017.
JUDGMENT :
1 This is an appeal by accused no.4 before the learned
Additional Sessions Judge, Greater Bombay, Mumbai, challenging
his conviction for offences punishable under Sections 399 and 402
of the IPC, for which offences he is sentenced to suffer rigorous
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imprisonment for 3 years and 2 years respectively apart from
payment of fine of Rs.1,000/- on both counts.
2 Briefly stated, the case of the prosecution is as
follows :
(a) That accused persons along with their associates
assembled at Chamarbaug Lane near Mahalaxmi Temple,
Parel, Mumbai, for the purpose of committing dacoity while
armed with weapons like choppers revolvers etc. and they
were making preparations to commit dacoity at Nakoda
Jewellers, Parel. Some of them were apprehended on the
spot itself and were found in possession of fire arms and
arms in contravention of the provisions of Indian Arms Act.
(b) It is the case of prosecution that PW4 Narayan Ingale,
Senior Police Inspector of Bhoiwada Police Station received
the telephonic message from his Informer to the effect that
some persons would be assembling at Chamarbaug Lane,
Parel, for the purpose of committing dacoity at the jewellery
shop. PW4 Narayan Ingale then formed team of police
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officers for apprehending robbers by laying a trap. They all
then went to Chamarbaug Lane. One taxi came there from
which three persons alighted and went near the Mahalaxmi
Temple. Soon thereafter, a second taxi arrived from which
four persons got down and joined the trio. Police suspected
movements of those persons. Hence, PW2 Rajendra Ranmale,
Police Officer, with one constable went near them and heard
their conversation and found that they were making
preparations and had assembled there for committing
robbery on a jewellery shop. The police team was then
signaled and five persons came to be apprehended from the
spot where as two succeeded in fleeing from the spot. In
presence of panchas, personal search of apprehended
persons came to be taken. Accused Gopal Shetty (who
absconded during the trial) was found to be possessing a
chopper and a pager. Accused no.2 Sukesh Shetty was found
to be in possession of a country made revolver with live
cartridges. Accused no.3 Raju Pujari was found to be in
possession of one chopper. Nothing was found in possession
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of the present appellant / accused. All weapons were then
seized by preparing panchnama. Routine investigation
followed and ultimately accused persons came to be charge-
sheeted.
(c) During trial, the prosecution has examined in all five
witnesses including panch witnesses and police officials. In
rebuttal, the appellant / accused examined defence witness
named Jitendra Koli. After hearing the parties, the learned
trial court by the impugned judgment and order dated 4 th
September 2002 in Sessions Case No.375 of 2001 was
pleased to convict accused nos.1 to 4 of offences punishable
under Sections 399 and 402 of the IPC and they were
sentenced as indicated in the opening paragraph of this
judgment.
3 Heard Ms.Nasreen Ayubi, the learned advocate for the
appellant / accused. She vehemently argued that nothing came to
be seized from possession of the appellant / accused and as such it
cannot be said that he was in company of co-accused after making
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preparations to commit dacoity and had assembled with them for
the purpose of committing dacoity, while armed with deadly
weapons. As against this, the learned APP supported the
impugned judgment and order of conviction by arguing that by
examining necessary witnesses, offences are proved by the
prosecution.
4 I have carefully considered rival submissions and have
perused the record and proceedings.
5 PW4 Narayan Ingale, Senior Police Inspector of
Bhoiwada Police Station, has deposed that on 30 th September
1999, at about 19.00 hours, he received a telephonic message
from his Informer to the effect that some persons would be
assembling at Chamarbaug Lane, Parel, for the purpose of
committing dacoity at a jewellery shop. PW4 Narayan Ingale
further deposed that on receiving such information, he called his
officers P.I.Waghmare, PW2 P.S.I.Ranmale, PW5 P.S.I.Katkar and
other staff and shared the information received by him and
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instructed them accordingly. A team with abovementioned officials
was formed and they all reached the spot i.e. Chamarbaug Lane
by a police jeep for laying a trap for apprehending the robbers.
PW4 Narayan Ingale further deposed that at about 19.40 hours,
one taxi came there from Dadar side and haulted near Bharat
Petrol Pump. Three persons alighted from the said taxi and went
near the Mahalaxmi Temple. Soon thereafter, a second taxi arrived
and haulted near the Nakoda Jewellers, from which four persons
got down and joined the trio. PW4 Narayan Ingale suspected
movements of those persons and therefore sent PW2 Rajendra
Ranmale, Police Officer, and one constable near them, to hear
their conversation. PW4 Narayan Ingale further deposed that, it
was then that PW2 Ranmale signaled the police team and five
persons came to be apprehended from the spot where as two
succeeded in fleeing from the spot. In presence of panchas,
personal search of apprehended persons came to be taken. As per
his evidence, accused Gopal Shetty was found to be possessing a
chopper and a pager, accused no.1 Ashok Shetty was found to be
in possession of one chopper, accused no.2 Sukesh Shetty was
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found to be in possession of a country made revolver with live
cartridges and accused no.3 Raju Pujari was found to be in
possession of one chopper. However, nothing was found in
possession of the present appellant / accused. All weapons were
then seized by preparing panchnama. Evidence of PW4 Narayan
Ingale shows that he has duly identified all the above weapons.
6 PW2 Rajendra Ranmale and PW5 Ankush Katkar, at
the relevant time, were attached to Bhoiwada Police Station as
Detection Officers. Their evidence is consistent with evidence of
PW4 Narayan Ingale, Senior Police Inspector. All these three
witnesses have unanimously and congruously deposed the events
regarding forming of the police party, laying a trap for
apprehending accused persons and regarding assembling of the
accused persons after making preparations to commit dacoity at
Nakoda Jewellers, Parel, while armed with weapons like choppers
revolvers etc. There is nothing in their cross-examination to
disbelieve their evidence.
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7 As can be seen from the prosecution evidence, panch
witnesses - PW1 Pandurang Mahadik and PW5 has also deposed
on the same lines as that of PW4 Narayan Ingale, PW2 Rajendra
Ranmale and PW5 Ankush Katkar. Panch witness - PW1
Pandurang Mahadik has duly identified all the articles seized in
his presence from the spot. Thus, it can be seen that evidence of
all three police officials is corroborating with each other so also is
consistent with the version of both panch witnesses and therefore
can be said to be trustworthy to act upon.
8 It is also established from prosecution evidence that
all the other accused persons, except the present appellant /
accused, were found to be in possession of deadly weapons which
were seized in presence of panchas. It is established by the
evidence of the prosecution that the appellant / accused along
with other accused persons had assembled at the Chamarbaug
lane, Parel, for the purpose of making preparations and
committing dacoity on a jewellery shop, while they were armed
with deadly weapons like choppers revolvers etc.
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9 As indicated earlier, in rebuttal, the appellant /
accused no.4 examined one defence witness by name Jitendra Koli
(DW1). Let us see what this witness has deposed.
10 DW1 Jitendra Koli deposed that he is acquainted with
the appellant / accused as they were working together at Bhaucha
Dhakka. As per his evidence, on 30th September 1999, he was on
duty from 7 a.m. to 2 p.m. whereas the applicant / accused had
reached at about 8.00 - 8.30 a.m. and left early at about 12 noon
after taking permission from his employer. Except for admitting
that he is known to the appellant / accused as they were working
together and that on the day of incident i.e. on 30 th September
1999, he was in his company up to 12 noon, he has denied all the
suggestions given to him.
11 What was tried to put forth by examining defence
witness was that the appellant / accused was very much on duty
on the date of incident, but as it can be seen from the evidence of
this defence witness, the appellant accused had left early from his
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place of duty at about 12 noon. As seen from evidence of
prosecution witnesses, after receiving the information, the raiding
team reached the spot at 7.00 p.m. and on laying trap, PW2
signaled the raiding team at around 8 p.m. for apprehending
accused persons. The appellant / accused came to be apprehended
from the spot itself. Therefore, the presence of the appellant /
accused along with other accused persons, on the spot, on the day
of incident, cannot be doubted. Thus, evidence of DW1 Jitendra
Koli is of no assistance to infer that the appellant / accused was
not on the spot in company of the other accused persons.
12 In the light of above discussion, I hold that the
prosecution has successfully proved the involvement of the
appellant / accused along with other accused persons in
assembling and making preparations for committing a dacoity on
a jewellery shop. Merely because the appellant / accused was not
found in possession of any weapon, it cannot be said that he was
not in company of other accused persons or was not a party to
assembly which was formed for making preparations and
committing dacoity on a jewellery shop.
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13 In this view of the matter, no case for interference with
the conviction and sentence of the appellant / accused for offences
punishable under Sections 399 and 402 of the IPC is made out.
14 In the result, the appeal is devoid of merit and the
same is dismissed.
15 In view of disposal of the appeal, Criminal
Applications bearing Nos.114 of 2016 and 406 of 2016 stand
disposed of.
(A. M. BADAR, J.)
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