Santosh S/O. Sukhdeo Waikar vs The State Of Maharashtra
2022 Latest Caselaw 5424 Bom

                                                  Criminal Appeal No.1299/2019
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO.1299 OF 2019



 Santosh s/o Sukhdeo Waikar,
 Age 34 years, Occu. Labour,
 R/o Takaliphata, Tq. Kopargaon,
 District Ahmednagar                                  ... APPELLANT

          VERSUS

 The State of Maharashtra
 through Police Inspector
 Shrirampur Taluka Police Station,
 Tq. Shrirampur, Dist. Ahmednagar                     ... RESPONDENTS


                               .......
 Shri M.L. Wankhede, Advocate for appellant
 Mrs. D.S. Jape, A.P.P. for respondent
                                .......

                                  CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment : 5th May, 2022
                  Date of pronouncing judgment : 15th June, 2022



 JUDGMENT:

The appellant along with four others was

prosecuted for offences punishable under Section 395 read

with Section 397 of the Indian Penal Code. It was the

Sessions Case No.4/2017. Learned Additional Sessions

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Judge-2, Kopargaon, vide judgment and order dated

26/7/2019, convicted the appellant for the offence punishable

under Section 395 of the Indian Penal Code and, therefore,

sentenced him to suffer rigorous imprisonment for ten years

with a direction to pay a fine of Rs.10,000/-. In default of

payment of fine, he was directed to suffer rigorous

imprisonment for one year. The others prosecuted along with

the appellant came to be acquitted. The State has not

preferred appeal from acquittal. The appellant has been

behind the bars since 11/12/2015 till date. The trial Court

has granted him set off in terms of Section 428 of the Code of

Criminal Procedure.

2. Facts giving rise to the present appeal are as

follows :-

P.W.1 Sunil Kote (informant) would reside along

with his wife and other family members in a house standing

on his agricultural land at village Wakadi. He runs a Dhaba

(roadside eatery). The incident took place on the intervening

night of 17th and 18th October 2015. It so happened that the

informant and his family members went to sleep little past

11.00 p.m. The informant heard some noise outside of his

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residence. It was about 1.30 a.m. He looked outside to see

presence of one person. That person hit him with a stone by

means of catapult. Four other persons entered the house by

breaking open the kitchen door. They were armed with

sword. Their faces were covered with handkerchiefs. They

tied the hands of both the informant and his wife - P.W.2

Shaila Kote. One of them snatched the cellphone of the

informant and scattered the household articles. They were

said to be 8 to 10 in number. They demanded key of a

cupboard. Both the informant and his wife were assaulted.

The culprits opened the cupboard and took away gold

ornaments worth Rs.1,40,000/-, silver utensils worth

Rs.20,000/- and cash amount of Rs.20,000/-. They also took

away the Maruti Van of the informant.

3. It is the case of the prosecution that, while the

offence was being committed, the handkerchief on the face of

one of the culprits slipped below the chin. The informant and

his wife identified that person as the appellant herein. After

the culprits made their escape good, F.I.R. (Exh.15) was

lodged by P.W.1 Sunil at 8.30 Hrs. in the morning. Crime vide

C.R. No.130/2015 came to be registered at Shrirampur Police

Station for the offence punishable under Section 395 of the

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Indian Penal Code.

4. The crime was investigated. Scene of offence

panchanama was drawn in the presence of panchas. The

appellant came to be arrested. Involvement of other culprits

was surfaced during interrogation of the appellant. The

appellant and some of the culprits gave disclosure statements,

pursuant to which the stolen articles came to be seized. On

completion of the investigation, the appellant and others were

proceeded against.

5. The prosecution examined 8 witnesses and

produced in evidence certain documents to establish the

charge. The trial Court, on appreciation of the evidence,

convicted the appellant and sentenced him as stated

hereinabove. Others came to be acquitted. Two of the

accused were found absconding.

6. Shri Wankhede, learned counsel for the appellant

would submit that, the appellant has a residence in the

nearby of the house of the informant. The informant runs a

Dhaba. He would sell liquor at his hotel unauthorisedly.

Number of crimes in that regard were registered against the

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informant. Wife of the appellant wanted to open up a hotel in

the very vicinity. The informant, therefore, had a grudge

against them. According to learned counsel, at the relevant

time the appellant was behind the bars. As per the

prosecution case itself, the lights in and around the residence

of the informant were smashed. It was, therefore, difficult for

the informant and his wife to identify the appellant. According

to learned counsel, a false F.I.R. was lodged against the

appellant herein. He, therefore, urged for allowing the

appeal.

7. Mrs. Jape, learned A.P.P. would, on the other

hand, submit that, the scene of offence panchanama drawn

immediately after the incident does indicate that dacoity took

place at the house of the informant. The evidence indicates

that, the lights were smashed by the culprits while leaving the

place. The appellant was clearly identified by the informant

and his wife. He was of their acquaintance. The appellant

has criminal antecedents. Number of crimes have been

registered against him. Pursuant to the disclosure statement

made by the appellant, some of the stolen articles came to be

recovered from his residence. The learned A.P.P., therefore,

urged for dismissal of the appeal.

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8. Considered the submissions advanced. Perused

the evidence in the case. The informant along with his family

members admittedly reside in a house standing on his

agricultural land situated at Wakadi Phata. He runs a Dhaba.

True, he would sell illicit liquor unauthorisedly. Crimes have,

therefore, been registered against him. The same is,

however, not a fact to disbelieve his evidence.

9. The scene of offence panchanama (Exh.22) drawn

in the presence of panch witnesses soon after the crime was

committed does indicate that a dacoity/ robbery took place at

the residence of informant. The scene of offence panchanama

has been duly proved by the evidence of panch witness Kishor

Boravake (P.W.5) and the investigating officer Rameshwar

Turnar (P.W.7) as well.

10. Both the informant and his wife are the victims of

the offence. Both have given evidence consistent with each

other. It is in their evidence that on the night of 17 th October

2015, all of them went to sleep. At about 1.30 a.m. they

heard some noise outside their residence. The informant

looked outside to see presence of one person. That person hit

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him stone by means of catapult. After a while, four persons

entered the kitchen room by breaking open its door. Some

others joined them later on. All of them broke open the door

of living room. All of them had covered their faces with

handkerchiefs. The informant and his wife were assaulted.

Cupboards in the room were searched. Cash amount with

gold and silver ornaments were taken charge of. The culprits

then left the house but not before smashing of the glowing

lights. It is also their case that the culprits took away the

informant's Maruti Van.

11. Both the informant and his wife have categorically

testified that, while the offence was being committed,

handkerchief on the face of one of the culprits slipped. Both

of them could, therefore, identify the person as the appellant

herein. Within hours of the incident, F.I.R. (Exh.15) was

lodged, naming the appellant therein.

12. The trial Court had summoned the police papers of

a particular crime in connection of which the appellant had

claimed to have been behind the bars on the day of the

incidence. On perusal of those papers, the trial Court found

the appellant had not been under arrest in connection with

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the said crime. As such, the defence of the appellant fell flat.

13. True, two days after the alleged incidence, both

the informant and his wife approached the Primary Health

Centre and obtained injury certificates. The trial Court has

rightly disbelieved evidence in this regard. This Court has no

reason to take a different view. On the question of recovery

of stolen articles, it is to be stated that the description of the

articles stolen was not given in the F.I.R. On seizure of those

articles, no identification thereof was held. Still the fact

remains that the appellant was identified as one of the culprits

involved in the offence in question. The trial Court has,

therefore, rightly convicted the appellant.

14. The trial Court sentenced the appellant to suffer

ten years rigorous imprisonment. In view of this Court, the

sentence appears to be somewhat disproportionate. There is

nothing to indicate the appellant to have had assaulted the

informant or his wife. He has been behind the bars for little

over six years. In view of this Court, the sentence of

imprisonment of seven years would serve the purpose. For

the aforesaid reasons, the appeal partly succeeds. Hence the

order :-

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ORDER

(i) The Criminal Appeal is partly allowed.

(ii) Conviction of the appellant for the offence punishable

under Section 395 of the Indian Penal Code imposed by

learned Additional Sessions Judge-2, Kopargaon in Sessions

Case No.4/2017, by judgment and order dated 26/7/2019 is

maintained. The sentence of ten years rigorous imprisonment

is, however, reduced to seven years rigorous imprisonment.

Rest of the terms of the impugned order of conviction and

resultant sentence to stand unaltered.

( R. G. AVACHAT ) JUDGE

fmp/-