Bombay High Court
Darasingh @ Dharasingh@ ... vs State Of Mah., Thr. Acp on 22 August, 2023
Bench: Vinay Joshi, Bharat Pandurang Deshpande
2023:BHC-NAG:12515-DB
Judgment appeal50.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 50/2015
WITH
CRIMINAL APPEAL NO. 63/2016
WITH
CRIMINAL APPEAL NO. 410/2019
WITH
CRIMINAL APPEAL NO. 87/2015
WITH
CRIMINAL APPEAL NO. 116/2015
WITH
CRIMINAL APPEAL NO. 474/2016
WITH
CRIMINAL APPEAL NO. 72/2019
************
CRIMINAL APPEAL NO. 50/2015
Bannasingh @ Rupsingh s/o. Attarsingh @
Doulatsingh Bawari,
Aged about 42 years, Occ. Pvt. Labour,
R/o. Maltekdi, Nanded
... APPELLANT
(Ori.Accused No.1)
In Jail
VERSUS
State of Maharashtra,
through P.S.O., P.S. Hudkeshwar,
Nagpur.
... RESPONDENT
---------------------------------
Mr. R. B. Gaikwad, Advocate for appellant.
Mr. V. A. Thakare, Additional Public Prosecutor for
respondent/State.
------------------------------------
Judgment appeal50.15
2
WITH
CRIMINAL APPEAL NO. 63/2016
Julfisingh Surajsingh @ Bambhai s/o.
Attarsingh Bawri,
Aged Major, Occ. Nil,
R/o. Karimnagar Nizamababad (A.P.)
At present detained in Central Jail,
Nagpur. (Convict No.C-8965).
... APPELLANT
(Ori.Accused No.5)
In Jail
VERSUS
The State of Maharashtra,
through A.C.P. Sakkardara Division,
Police Station, Hudkeshwar.
... RESPONDENT
---------------------------------
Ms. Sonali Saware, Advocate (appointed) for appellant.
Mr. V. A. Thakare, Additional Public Prosecutor for
respondent/State.
----------------------------------
WITH
CRIMINAL APPEAL NO. 410/2019
Darasingh @ Dharasingh @ Satwantsingh
S/o. Vakilsingh Bawari @ Sikalkari,
Aged about 45 years,
R/o. Annabhau Sathe Nagar Zopadpatti,
Mehakar, Dist. Buldana.
(Presently Central Prison at Nagpur)
... APPELLANT
VERSUS
The State of Maharashtra,
through A.C.P. Sakkardara Division,
Police Station Hudkeshwar, Nagpur.
... RESPONDENT
Judgment appeal50.15
3
---------------------------------
Mr. C. R. Thakur, Advocate for appellant.
Mr. V.A. Thakare, Additional Public Prosecutor for respondent/State.
----------------------------------
WITH
CRIMINAL APPEAL NO. 87/2015
Raman s/o. Pandurang Thaokar,
Age 48 years, Occ. Private,
R/o. Thaokar Bhavan, Ganjipeth Road,
Bhaldar Pura, Nagpur.
... APPELLANT
(Original Victim)
VERSUS
1. Bannasingh @ Rupsingh S/o. Attarsingh
@ Navnishalsingh @ Doulatsingh Bawri,
Aged about 42 years,
R/o. Maltekdi, Nanded.
2. Darasingh S/o. Mirsingh Bawri,
Aged about 45 years, R/o. Butibori,
Ward No.4, District Nagpur.
3. Lakhansingh s/o. Mirsingh Bawri,
Aged about 36 years, R/o. Khairigaon
Butibori, District Nagpur.
4. Pankajsingh S/o. Kalusingh Dudhani,
Aged about 28 years, R/o. Gandhinagar,
Ambarnath, District Thane.
5. Julfisingh @ Surajsingh @ Bambai
S/o. Attarsingh @ Navnihalsingh
@ Doulatsingh Bawri,
Aged about 38 years, R/o. Karimnagar,
Nizamabad (A.P.).
6. State of Maharashtra,
Through A.C.P. Sakkardara Division,
Police Station, Hudkeshwar, Nagpur.
... RESPONDENTS
Judgment appeal50.15
4
---------------------------------
Mr. R. R. Vyas, Advocate for appellant.
Mr. R.B. Gaikwad, Advocate for respondent No.1.
Mr. R.K. Tiwari, Advocate for respondent No.2 & 3.
Mr. H.P. Lingayat, Advocate for respondent No.4.
Ms. Sonali Saware, Advocate (appointed) for respondent No.5.
Mr. V. A. Thakare, Additional Public Prosecutor for respondent No.6/
State.
----------------------------------
WITH
CRIMINAL APPEAL NO. 116/2015
Prasad S/o. Sharadrao Khadekar,
Aged about 32 yrs, Occ. Service,
R/o. Vishwakarma Nagar, Nagpur.
... APPELLANT
(Original Victim)
VERSUS
1. State of Maharashtra,
Through A.C.P. Sakkardar Division,
Police Station, Hudkeshwar, Nagpur.
2. Bannasingh @ Rupsingh s/o. Attarsingh @
Navnihalsingh @ Doulatsingh Bawri,
Aged about 45 years,
R/o. Maltekdi, Nanded,
Tq.. & Dist. Nanded.
3. Darasingh S/o. Mirsingh Bawri,
Aged about 48 years, R/o. Butibori,
Ward No.4, District Nagpur.
4. Lakhansingh s/o. Mirsingh Bawri,
Aged about 39 years, R/o. Khairigaon
Butibori, District Nagpur.
5. Pankajsingh S/o. Kalusingh Dudhani,
Aged about 31 years, R/o. Gandhinagar,
Ambarnath, District Thane.
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5
6. Julfisingh @ Surajsingh @ Bambai
S/o. Attarsingh @ Navnihalsingh
@ Doulatsingh Bawri,
Aged about 41 years, R/o. Karimnagar,
Nizamabad (AP).
... RESPONDENTS
---------------------------------
Mr. R.M. Patwardhan, Advocate for appellant.
Mr. V. A. Thakare, Additional Public Prosecutor for respondent No.1/
State.
Mr. R.B. Gaikwad, Advocate for respondent No.2.
Mr. R.K. Tiwari, Advocate for respondent No.3 & 4.
Mr. H.P. Lingayat, Advocate for respondent No.5
Ms. Sonali Saware, Advocate (appointed) for respondent No.6.
----------------------------------
WITH
CRIMINAL APPEAL NO. 474/2016
State of Maharashtra,
Through A.C.P. Sakkardara Division,
Police Station, Hudkeshwar, Nagpur.
... APPELLANT
VERSUS
1. Bannasingh @ Rupsingh s/o. Attarsingh @
Navnihalsingh @ Doulatsingh Bawri,
Aged about 45 years,
R/o. Maltekdi, Nanded,
2. Pankajsingh S/o. Kalusingh Dudhani,
Aged about 28 years, R/o. Gandhinagar,
Ambarnath, District Thane.
3. Julfisingh @ Surajsingh @ Bambai
S/o. Attarsingh @ Navnihalsingh
@ Doulatsingh Bawri,
Aged about 38 years, R/o. Karimnagar,
Nizamabad (A.P.).
... RESPONDENTS
Judgment appeal50.15
6
---------------------------------
Mr. V. A. Thakare, Additional Public Prosecutor for Appellant/State.
Mr. R.B. Gaikwad, Advocate for respondent No.1.
Mr. H.P. Lingayat, Advocate for respondent No.2.
Ms. Sonali Saware, Advocate (appointed) for respondent No.3.
----------------------------------
WITH
CRIMINAL APPEAL NO. 72/2019
State of Maharashtra,
Through A.C.P. Sakkardara Division,
Police Station, Hudkeshwar, Nagpur.
... APPELLANT
VERSUS
1. Bannasingh @ Rupsingh s/o. Attarsingh @
Navnihalsingh @ Doulatsingh Bawri,
Aged about 42 years,
R/o. Maltekdi, Nanded,
2. Pankajsingh S/o. Kalusingh Dudhani,
Aged about 28 years, R/o. Gandhinagar,
Ambarnath, District Thane.
3. Julfisingh @ Surajsingh @ Bambai
S/o. Attarsingh @ Navnihalsingh
@ Doulatsingh Bawri,
Aged about 38 years, R/o. Karimnagar,
Nizamabad (A.P.).
... RESPONDENTS
---------------------------------
Mr. V. A. Thakare, Additional Public Prosecutor for appellant/State.
Mr. R.B. Gaikwad, Advocate for respondent No.1.
Mr. H.P. Lingayat, Advocate for respondent No.2.
Ms. Sonali Saware, Advocate (appointed) for respondent No.3.
----------------------------------
Judgment appeal50.15
7
CORAM : VINAY JOSHI AND
BHARAT P. DESHPANDE, JJ.
JUDGMENT RESERVED ON : 18.04.2023.
JUDGMENT PRONOUNCED ON : 22.08.2023.
JUDGMENT (PER VINAY JOSHI, J.) :
Heard learned counsels appearing for the convicted
appellants/accused, additional public prosecutor for the State, and
learned counsels appearing for the victim. Perused the entire record,
written notes of argument, as well as both impugned judgments.
Carefully considered rival submissions and position of law.
2. Unpredicted Incident of attempted robbery and murder
dated 06.10.2012, gave rise to multiple appeals. Initially, in all five
accused were tried in Special Cri. Case No. 4/2013 for the offence
punishable under Sections 395, 397, 398, 307, 302, Section 120-B
read with Section 34 of the Indian Penal Code, Sections 3 and 4 read
with Section 25 of the Arms Act, and Sections 3(1)(i), 3(2) and 3(4)
of the Maharashtra Control of Organized Crime Act, 1999 ('MCOC
Act'). One of the miscreant namely Darasingh @ Dharasingh @
Satwantsingh s/o Vakilsingh Bawari @ Sikalkari went absconding.
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On his apprehension he was tried separately in Special MCOC Case
No. 1/2015 for the same charge. Precisely, both sides expressed
their dissatisfaction to the separate judgments delivered by the Trial
Court which gave raise to seven appeals.
3. Special Cri. Case No. 4/2013 was tried against five
accused namely Accused No.1 Bannasingh @ Rupsingh s/o
Attarsingh @ Navnihalsingh @ Doulatsingh Bawri, Accused No.2
Darasingh s/o Mirsingh Bawri, Accused No. 3 Lakhansingh s/o.
Mirsingh Bawri, Accused No. 4 Pankajsingh s/o Kalusingh Dudhani
and Accused No. 5 Julfisingh @ Surajsingh @ Bambai s/o. Attarsingh
@ Navnihalsingh @ Daulatsingh Bawri. After appreciating the
evidence, the Trial Court held Accused No. 1 Bannasingh @
Rupsingh s/o Attarsingh @ Navnihalsingh @ Doulatsingh Bawri
guilty for the offence punishable under Sections 302, 324, 398 read
with Section 34 of the Indian Penal Code, Section 4 read with
Section 25 of the Arms Act, and Section 120-B of the Indian Penal
Code. Accused No. 5 Julfisingh @ Surajsingh @ Bambai s/o.
Attarsingh @ Navnihalsingh @ Daulatsingh was convicted for the
offence punishable under Sections 302, 398 read with Section 34 of
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the Indian Penal Code, Section 3 read with Section 25 of the Arms
Act, and Section 120-B of the Indian Penal Code. Accused No. 4
Pankajsingh s/o Kalusingh Dudhani was convicted for the offence
punishable under Sections 393, 120-B of the Indian Penal Code.
However, Accused No. 2 Darasingh s/o Mirsingh Bawri and Accused
No. 3 Lakhansingh s/o. Mirsingh Bawri were acquitted from all the
charges.
4. The Trial Court has imposed separate punishment for
each of the offences proved. The maximum sentence awarded to
Accused Nos. 1 Bannasingh @ Rupsingh s/o Attarsingh @
Navnihalsingh @ Doulatsingh Bawri, and Accused No. 5 Julfisingh @
Surajsingh @ Bambai s/o. Attarsingh @ Navnihalsingh @
Daulatsingh was to undergo imprisonment for life along with fine,
for the offence punishable under Section 302 read with Section 34 of
the Indian Penal Code, whilst maximum punishment for Accused No.
4 Pankajsingh s/o Kalusingh Dudhani was to undergo rigorous
imprisonment for four years, for the offence punishable under
Section 393 of the Indian Penal Code. Besides that, certain amount
of fine was imposed on each count with stipulation of default. The
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Trial Court directed that all the substantive sentences shall run
concurrently.
5. Absconding Accused Darasingh @ Dharasingh @
Satwantsingh s/o Vakilsingh Bawari @ Sikalkari was tried separately
in Special MCOC Case no. 1/2015 for the offence punishable under
Sections 395, 397, 398, 307, 302, 120-B read with Section 34 of the
Indian Penal Code, Section 3 and 4 read with Section 25 of the Arms
Act, Sections 3(1)(i), 3(2), 3(4) of the MCOC Act. The Trial Court
equally convicted him for the offence punishable under Sections 302,
398, read with Section 34 and Section 120-B of the Indian Penal
Code. The maximum sentence was of imprisonment for life, for the
offence punishable under Section 302 read with Section 34 of the
Indian Penal Code, along with fine. All sentences were directed to
run concurrently.
6. Being aggrieved and dissatisfied by the judgment and
order of conviction, Accused No. 1 Bannasingh @ Rupsingh s/o
Attarsingh @ Navnihalsingh @ Doulatsingh Bawri preferred Criminal
Appeal No. 50/2015 in terms of Section 374 of the Code of Criminal
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Procedure ('Code') whilst Accused No. 5 Julfisingh @ Surajsingh @
Bambai s/o. Attarsingh @ Navnihalsingh @ Daulatsingh Bawri
similarly raised the challenge to his conviction in Criminal Appeal
No. 63/2016. Separately tried Darasingh @ Dharasingh @
Satwantsingh s/o Vakilsingh Bawari @ Sikalkari convicted in Special
MCOC Case No. 1/2015, also called in question the judgment of
conviction dated 03.05.2018 in Criminal Appeal No. 410/2019.
Precisely, all convicted accused except Accused No.4 Pankajsingh,
challenged the legality and sustainability of the judgment and order
of conviction by separate appeals.
7. Being aggrieved by the order of acquittal of Accused No.1
Bannasingh, Accused No.4 Pankajsingh and Accused No.5 Julfisingh
from the offences punishable under Section 395, read with Sections
397, 307 read with Section 34 of the Indian Penal Code, under
Section 3(1)(i), 3(4) and 3(2) of the MCOC Act, the State preferred
appeal No. 72/2019 in terms of Section 12 of the MCOC Act read
with Section 378 of the Code. The State also preferred Criminal
Appeal No. 474/2016 under Section 377(1) of the Code for
enhancement of sentence.
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8. Another set of appeal is of victims of the crime. Criminal
Appeal No. 87/2015 has been preferred by one Raman s/o.
Pandurang Thaokar (brother of deceased), claiming conviction under
all charges, enhancement of sentence and for convicting acquitted
accused namely Accused No. 2 Darasingh s/o Mirsingh Bawri and
Accused No. 3 Lakhansingh s/o. Mirsingh Bawri. In the same
manner, injured of the crime namely Prasad s/o. Sharadrao
Khadekar has also preferred an appeal No. 116/2015 claiming
similar relief. Accused No. 4 Pankajsingh has not challenged his
conviction under Sections 393 and 120-B of the Indian Penal Code,
perhaps he has undergone the sentence during trial hence did not
challenge the order of conviction.
9. Horrifying incident dated 06.10.2012 gave rise to the
prosecution followed by two separate trials and judgment. In first
trial Special Cri. Case No. 4/2013, five accused were tried, in which
Accused No. 1 Bannasingh, Accused No. 4 Pankajsingh and Accused
No. 5 Julfisingh were convicted. In second trial, Special MCOC Case
No. 1/2015 pertaining to absconding Accused Darasingh (hereinafter
referred to as 'Accused No.6' for the sake of convenience), he was
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convicted as aforementioned. Since the incident is one and the same
though gave rise to two separate trials, for the sake of convenience
all appeals arising thereof are heard and taken for disposal together
by this common judgment.
10. The facts of the case in nutshell are that, deceased Vijay
Thavkar was running a jewelry shop in the building known as
"Shriram Bhavan" in the market area, Nagpur. The said building
consists of six shops. Two shops on upper floor, whilst remaining
four on the ground floor. Jewelry shop namely Thavkar Jewelers run
by deceased, was on the upper floor. Adjacent shop of mobile
shopee was closed on the day of incident. Ground floor consists of
four shops. They were Renuka Marketing, tea dust shop, edible oil
shop and one empty. Iron staircase exists at the corner of the
building to approach first floor. Footpath situates in front of the
ground floor shops and then cement road. Jewelry shop was of the
size of 10 x 12 ft. Entrance gate of jewelry shop was made of
glass. There was 'L' shape counter on the right side of the entrance
door. Deceased Vijay Thavkar was the proprietor of jewelry shop
and was running the shop with his sole employee PW-1 Prasad
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Khadekar.
11. It is prosecution case that on the day of incident around
01.00 p.m. three unknown assailants one, by one barged into the
jewelry shop for the purpose of robbery. Two assailants were
wearing fetas like Sardarji whilst third assailant did not. Accused
No.1 Bannasingh armed with knife initially entered into the shop.
He was followed by Accused No. 6 Darasingh and then Accused No.5
Julfisingh armed with pistol. They demanded deceased Vijay
Thavkar for valuables, however there was a scuffle. Accused No.1
Bannasingh struck at the head of PW-1 Prasad (employee) by means
of rear handle of knife, whilst others had scuffle with the owner
Vijay Thavkar. During the scuffle, mobile handset of Accused No. 1
Bannasingh fell from his pocket in the shop. Since PW-1 Prasad
raised alarm, the neighbouring shop owner PW-9 Bedi rushed to
jewelry shop, likewise the people of vicinity also started to gather.
Seeing the things going out of control, Accused No.1 Bannasingh
took the pistol from Accused No. 5 Julfisingh and tried to fire on
deceased Vijay Thavkar, however he could not operate the pistol.
Accused No.5 Julfisingh took back his pistol and fired two rounds at
Judgment appeal50.15
the chest of deceased Vijay Thavkar. Immediately, all three came
down by staircase, boarded in nearby parked Maruti 800 car.
Accused No. 4 Pankajsingh was already waiting them in the car and
they decamped. Maruti 800 car speedily went towards Manewada
Chowk. Nearby people were already gathered on the spot. They
noted registration number of Maruti 800 car as MH-31-H 2081.
They saw that owner of jewelry shop Vijay Thavkar was lying in the
pool of blood, whilst PW-1 Prasad (employee of shop) sustained
head injury. Some one gave call to the Police who arrived within
short time. Employee PW-1 Prasad and others have seen the faces of
all three assailants.
12. Both injured were shifted to the Medical College
Hospital. Jewelry shop owner Vijay Thavkar was declared dead.
Injured Prasad after medical treatment went to the Police Station
and lodged report (Exh. 75). On receiving the information relating
to cognizable offence, Police registered Crime no. 226/2012 for the
offence punishable under Sections 398, 302, 307, 120-B read with
Section 34 of the Indian Penal Code, Section 3, 4 read with Sections
25 of the Arms Act.
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13. At the relevant time, PW-13 PI Wandhare was attached to
Hudkeshwar Police Station. On receiving telephonic information
about firing incident in the shop of Thavkar Jeweler, he rushed to the
place with Police party. People were gathered near the place of
incident. He found that one person was lying in the shop in the pool
of blood whilst other was in the injured condition. PI Wandhare took
preliminary information about the occurrence. He came to know
about the incident of firing and use of Maruti 800 car with its
registration number. Immediately, he sent wireless message about
registration number of Maruti 800 car for search. Police Officer
Suresh Shinde had prepared spot panchanama. Two empty
cartridges, one live cartridge, small locket and one mobile of Nokia
Company was seized from the place of occurrence. Blood samples
were collected from the spot. PI Shinde made a phone call from the
mobile found on the spot to his own mobile. It was revealed that
the said Noika Mobile was of dual SIM. PI Shinde noted down the
mobile numbers in the spot Panchanama.
14. Inquest Panchanama was drawn and dead body was sent
for postmortem examination. Blood stained clothes of deceased
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Vijay Thavkar were seized. Maruti 800 car involved in the incident
was found in the abandoned condition near Munde Farm House on
Wardha Road. On receiving information, Police seized said car by
drawing panchanama. Statement of various witnesses have been
recorded. On the basis of two SIM cards of the Nokia mobile of the
first assailant, Police have traced the accused and apprehended them.
Initially, two accused were apprehended. During investigation,
names of other three revealed, on which they were also arrested.
Knife used in the commission of crime was seized at the instance of
Accused No. 1 Bannasingh. Prior test identification pareds were
conducted. Injured Prasad and other eye-witnesses have identified
Accused No. 1 Bannasingh and Accused No. 5 Julfisingh during test
identification parade. Particularly, PW-1 Prasad identified Accused
No.1 Bannasingh as a first assailant entered into the shop and hit
him with the handle of knife. He has also identified Accused No.5
Julfisingh as a third assailant who has fired at the chest of deceased
Vijay Thavkar. Executive Magistrate has prepared test identification
pared panchanama. On completion of investigation, charge-sheet
has been filed against five accused.
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15. Accused No.6 Darasingh was later on arrested and
separately tried. Once again, test identification parade was
conducted, in which witnesses have identified him as second
assailant entered into the shop at the time of incident. He was
separately tried and convicted as aforesaid mentioned.
16. During investigation, it was transpired that the accused
were members of organized crime syndicate. PW-13 PI Wandhare
sent proposal to the Additional Commissioner of Police for invoking
the provisions MCOC Act. It was followed by grant of approval for
invoking Section 3 of the MCOC Act against the accused. Initially,
Accused Nos. 1 to 5 were put on trial for various offences under
Indian Penal Code, Arms Act and MCOC Act. They pleaded not
guilty by claiming innocence. In first trial, the prosecution has
examined in all 17 witnesses to establish the guilt of accused. The
prosecution evidence mainly consists of injured, eye-witnesses,
neibhouring witnesses, panch, medical officer and police personnel.
Homicidal death of Vijay Thavkar was not seriously disputed before
the Trial Court.
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17. On appreciation of evidence, the Trial Court held that
Accused No.1 Bannasingh was the first assailant entered into the
shop, struck at the head of PW-1 Prasad by rear handle of knife,
Accused No.5 Julfisingh was third assailant entered into the shop
with pistol and had actually fired at the chest of deceased Vijay
Thavkar. The Trial Court held that Accused No. 4 Pankajsingh was
waiting for the rest in the Maruti 800 car to facilitate the crime.
After incident, assailants seated in said Maruti 800 car and fled.
However, the Trial Court negated the participation of Accused Nos. 2
and 3 in the occurrence. Accused No. 1 Bannasingh and Accused No.
5 Julfisingh were held guilty for the offence of committing murder of
Vijay Thavkar in furtherance of their common intention. They were
held guilty for attempting to commit robbery and while committing
robbery, armed with deadly weapons. They were also held guilty
under the Arms Act. Besides that, Accused No.1 Bannasingh was
held guilty for causing hurt to PW-1 Prasad by means of dangerous
weapon. The Trial Court held Accused No. 4 Pankajsingh guilty for
the offence of attempting to commit robbery and criminal conspiracy.
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18. After trial of these five accused, second assailant
Darasingh was apprehended and tried separately in MCOC Casse No.
1/2015. On denial of guilt, the prosecution has examined ten
witnesses to prove the levelled charges. The Trial Court equally
convicted him for causing death of Vijay Thavkar in furtherance of
common intention, attempting to commit robbery with deadly
weapons, hatching criminal conspiracy to commit an offence and
imposed aforementioned sentence.
19. Though there were two separate trials, however the
incident is one and the same. In first trial, the prosecution has
examined 17 witnesses whilst in second trial for the same
occurrence, 10 witnesses have been examined. In-fact, those 10
witnesses were already examined in the first trial, however this being
a separate trial of Accused No. 6 Darasingh, they were once again
called and led evidence in presence of Accused No.6 Darasingh.
20. Different challenges have been raised in these group of
appeals. It can be stated in brief that convicted Accused No.1
Bannasingh, Accused No. 5 Julfisingh and Accused No.6 Darasingh
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have challenged their conviction whilst the State has challenged their
acquittal from the charges under which they were acquitted. The
State also seeks for enhancement of the sentence for convicted
offences. The State has challenged the acquittal under the provisions
of MCOC Act. Likewise injured Prasad seeks for enhancement of
sentence as well as conviction for the offence punishable under
Section 307 of the Indian Penal Code instead of Section 324 of the
Indian Penal Code. Moreover, he seeks conviction for the offence
punishable under Section 396 of the Indian Penal Code. Brother of
deceased also seeks conviction under the provisions of MCOC Act,
and conviction of Accused No. 4 Pankajsingh for the offence for
which Accused No.1 Bannasingh and Accused No. 5 Julfisingh were
convicted.
21. Always in like cases first and foremost question falls for
consideration is about the mode and manner of death. It is to be
ascertained whether Vijay Thavkar met with homicidal death. With
this connection, medical evidence would be largely relevant. PW-11
Dr. Nilesh Tumdam had conducted postmortem examination over the
dead body of deceased on the day of incident itself i.e. on 6.10.2012
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in between 5.00 p.m. to 6.00 p.m. (Witnesses are referred as per
their number in first case i.e. Special Cri. Case No.4/2013.). On
examination he found following surface wounds as mentioned in
column no.17 of the postmortem report.
i] Fire arm entry wound present over front of chest 10 cms
above right nipple and 3 cm from midline of size 1.2 cm x 1 cm
x cavity deep directing obliquely downward and towards left
side. Abrasion collar present surrounding entry wound size 1
cm on right lateral side and 0.2 cm in rest part. Track of wound
going downwards towards left side perforating 3rd intercostal
space, front of pericardium in middle upper 1/3rd and then
perforating through and through front of heart in midline,
middle 1/3rd of left ventricle exiting through inferior wall of
left ventricle with through and through perforation in lower
lobe of left lung from medial to lateral with one bullet found in
left posterior throasic wall. The bullet is yellowish metalic full
jacketed with hollow base of length 1 cm, maximum
circumference of bullet is 2.2 cm, basal diameter 0.6 cm with
dent on nose of bullet on one side. Another bullet perforating
from same entrance and track and then performing the 8th
intercostal space in left posteriolateral aspect of thorasic wall
where it is embaded. This bullet was also yellowish fully
jacketed with hollow base of length 1 cm, maximum
circumference of bullet is 2.2 cm, basal diameter 0.6 cm with
dent at the base of bullet on one side.
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ii] Reddish contusion over right side of forehead mididle half
roughly circular of size 3 cm x 2 cm.
iii] Lacerated wound present over left side of forehead, upper
half, 3 in number, 1 cm apart each other of size 2 cm x 0.2 cm x
bone deep each, oblique. Reddish contusion present in
surrounding area for 5 cm x 4 cm.
iv] Reddish contusion over left side of forehead roughly
circular, lower half 2 in number, 2 cm x 2 cm each 1 cm apart.
v] Incised looking lacerated wound over front of note middle
1/3 rd, 2 cm x 0.2 cm x cartilage deep, oblique.
vi] Reddish contused abrasion over back of right elbow, two
in number, 2 cm x 1 cm, 2 cms apart.
vii] Reddish abrasion over right side of nose, middle 1/3rd, 1
cm x 1 cm.
22. According to the Medical Officer, injuries mentioned
above were fresh. Injury no.1 is fire arm injury, while injury nos. 2 to
7 can be possible by hard and blunt object. All the above injuries
were antemortem. He has mentioned the injuries fresh as they were
caused within 6 to 12 hours before death.
23. On internal examination he found following injuries as
mentioned in column no.19 of the postmortem notes.
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Head-
i] Underscalp haematoma over left frontal and left temporal
region of size 4 x 3 cm and 3 x 2 cm respectively, red. Skull
vault was intact. No evidence of fracture. Dura was pale. Brain
pale 1200 grams. Column no.20. Thorax. Perforating injury
mentioned in injury no.1 of column no.17 present. About 1 liter
of dark red blood in left side of pleural cavity. Larynx, trachea
and bronchi intact. Mucosa pale. Both lungs were pale,
perforating injury in left lung as per injury no.1 of column
no.17. Perforating injury in pericardium as mentioned in injury
no.1 of column no.17. Heart and weight- Pale, perforating
injury mentioned injury 1 of column no.17. Chambers empty,
coronaries patent. Large vassals - intact. Column no.21 -
Abdomen- All visceral organs were pale. Stomach contains 500
grams semisolid food containing Sabudana particles having no
peculiar odour, mucosa present.
Visceral organs and articles were preserved, packed, and sealed.
24. On examination, PW.11 Dr. Tumdam opined that the
injury no.1 of column no.17 with its internal corresponding injuries
as mentioned in Column no.20 were sufficient in the ordinary course
of nature to cause death. According to PW-11 Dr. Tumdam, the
cause of death was shock and haemorrhage due to penetrating
wound to heart and left lung due to fire arm and accordingly he and
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his colleague Dr. S.K. Meshram have issued postmortem report
Exh.133. He had forwarded the viscera and the aforesaid articles in
requisite form Exh.134 for chemical examination.
25. PW-11 Dr. Tumdam had identified shirt of deceased Art.
15. He had sealed the bullets Art. 16 and 17 under his seal and
signatures which were recovered from the dead body. C.A. report of
the viscera Exh.73 did not reveal any poison. On examination of the
C.A. report PW-11 Dr. Tumdam has stated that as there was single
entry wound and two bullets were recovered from the body having
characteristic of dent on nose of one bullet and base of other bullet,
this feature is called a tandem bullet or piggy bag shot. The injury
no.1 as mentioned in column no.17 was caused by fire arm like
pistol. On postmortem findings and C.A. report, this witness has
opined that bullets were shot from close range. Accused persons have
not seriously challenged the homicidal death of deceased. The cross
examination conducted by Accused nos. 1 and 5 did not shatter the
opinion given by PW-11 Dr. Tumdam and therefore, it will have to be
held that Vijay Thavkar died of bullet injury and his death was
homicidal.
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26. Though the prosecution has examined in all 17 witnesses,
however, the prosecution heavily banks upon the evidence of PW-1
Prasad (injured) and PW-9 Bedi who were eye-witness to the
occurrence. PW-1 Prasad being key prosecution witness, it is
essential to go through his evidence. He was an employee of
deceased, Vijay Thavkar working in the jewelry shop since the year
2012. The defence has not denied that he was serving in the shop of
deceased, rather in view of the defence of total denial, their denial, if
any, would assume no significance. PW-1 Prasad gave detailed
account about the topography of the shop and the happenings on the
day of occurrence since morning. On crucial aspect, it is his evidence
that at the relevant time, he along with his employer Vijay Thavkar
(deceased) were seated in the Jewelry shop after doing routine work.
Around 01.00 p.m., one person hurriedly entered into the shop, took
out knife and asked to him 'Nikalo''. When PW-1 Prasad tried to
open the folding pannel of the counter, the said person hit on his
head with the grip of the knife causing bleeding injury. Prasad got
frightened and raised alarm. The said assailant had tied his head by
black cloured cloth. He was of blackish complexion and trimmed
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mustaches. PW-1 Prasad and his master came out of the counter.
PW-1 Prasad had a scuffle with the first assailant. During said
scuffle, mobile handset of first assailant (Accused No.1 Bannasingh)
fell down. One another assailant entered into the shop and had a
scuffle with owner Vijay Thavkar. At that time, third assailant
Accused No.5 Julfisingh entered into the shop armed with a pistol.
The second assailant Accused No.6 Darasingh caused owner Vijay
Thavkar to lay down.
27. He further deposed that Accused No.1 Bannasingh took
pistol from the hands of Accused No. 5 Julfisingh and tried to fire on
Vijay Thavkar, however he could not operate the pistol.
Immediately, Accused No.5 Julfisingh snatched the pistol. At that
time, PW-9 Bedi came to the doorstep of the shop. Witness Bedi
tried to kick open the door, however Accused No.5 Julfisingh
pointing pistol, singled him to go away. It is his evidence that
Accused No.1 Bannasingh and Accused No.6 Darasingh caught hold
owner Vijay Thavkar whilst Accused No. 5 Julfisingh fired twice at
the chest of Vijay Thavkar with pistol and asked his companions to
leave. He stated that he was terrified by the incident. Owner Vijay
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Thavkar was lying in the pool of blood. He came out of the shop and
saw that all three assailants got down by the staircase, seated in the
white colour Maruti 800 car and went towards Manewada square.
28. On the crucial aspect of identification of assailants, PW-1
Prasad identified Accused No.1 Bannasingh and Accused No.5
Julfisingh in the Court (first trial) whilst identified Accused No. 6
Darasingh in second trial. It has come in his evidence that he was
called in Central Jail for the test identification parade, wherein he
has identified Accused No.1 Bannasingh before the Executive
Magistrate. After four months, he was again called to Central Jail for
second identification parade. This time also he has identified Accused
No.5 Julfisingh out of the dummies. It is his evidence in second trial
that he was again called in Central Jail for identification and had
identified Accused No. 6 Darasingh as second assailant.
29. This witness was thoroughly cross-examined in both the
trials. Prominently, it has been canvassed that PW-1 Prasad has
stated about two assailants in the FIR whilst during evidence stated
about the third assailant too. Therefore, according to the defence,
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the evidence of Prasad is not worthy of credit. Learned APP has
pointed out that at relevant time, injured Prasad was in terribly
frightened condition. In his presence, his master was killed by
bullets which is a seldom incident in the life of common man. It is
explained that due to frightened condition, Prasad had not stated
about the presence of second assailant at the time of lodging FIR
within few hours from the occurrence. However the Police recorded
his statement in terms of Section 161 of the Code, wherein he has
specifically stated about the presence of second assailant apart from
first and third assailant.
30. The Trial Court has properly appreciated the said
circumstance and therefore, we do not see any material irregularity
in that regard. Beside that some minor omissions have been brought
on record, however they do not shatter the core evidence about the
occurrence and identification of assailants. Prasad has specifically
stated that first and second assailant were wearing Fetas whilst third
assailant was bare headed. Prasad has seen the assailants very
closely in day light. He had been hit by one whilst other two were
just a feet away. Prasad had ample opportunity and occasion to see
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faces of assailants. FIR bears description of the assailants. His
evidence discloses that the Executive Magistrate has taken all
necessary precautions to see that witnesses could not see suspect
before the parade, and selection of dummies. The cross-examination
is not potential to raise a doubt about the credibility of the prior test
identification parades.
31. It is argued that the Executive Magistrate has not been
examined and therefore, the evidence of prior test identification
parade is not reliable. Learned counsel appearing for informant has
pointed that, in terms of Section 291-A of the Code, the identification
report of Magistrate can be read in evidence. Notably, the defence
has not called upon the Executive Magistrate for cross-examination.
Therefore, non-examination of Executive Magistrate is not fatal to
the prosecution. Evidence of eye-witnesses on the point of prior
identification parade coupled with memorandum of parade vouch
the credibility.
32. It has come in the evidence that PW-1 Prasad that he
sustained head injury in the occurrence. Needless to say that
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evidence of injured eye-witness carries more weight as his presence
on the spot is affirmed by the injuries sustained by him. PW-1 Prasad
is most natural witness as his presence in the shop of his master
cannot be doubted, coupled with head injury sustained in the
incident. The accused were totally unknown assailant, therefore he
has no animosity against them to falsely implicate. The evidence of
PW-1 Prasad passed the test of credibility and worthy of acceptance.
33. The prosecution further banks upon the evidence of PW-9
Bedi who owns a shop on the ground floor. It has come in his
evidence that he was running a cosmetic shop namely 'Renuka
Marketing' on the ground floor of the building known as "Shriram
Bhavan". On material aspect, he deposed that around 01.00 p.m., he
heard noise of shouts from Thavkar Jewelers shop. He came out of
his shop, climbed staircase and went to the upper floor. Glass door
of the shop was closed and one person was standing near the door
inside the shop. He saw that owner Vijay Thavkar was lying on the
ground and another person had caught hold his hands. One
assailant holding knife was giving kicks to Vijay Thavkar. PW-1
Prasad was standing with bleeding head injury. He tried to open the
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glass door by push which hit to the back side of one of the assailant.
The said assailant turned around holding pistol in his hand and by
moving pistol, signaled him to go away. He stated that after coming
out, he heard noise of firing of bullets from the shop. He
immediately saw three assailants getting down from the staircase
and proceeded towards Maruti 800 car. One person was already
seated on the driver's seat of the car and then all of them fled
towards Manewad Square.
34. PW-9 Bedi described that two assailants were wearing
Feta, whilst third was without Feta. He stated that the person sitting
in the driver's seat of Marut 800 car was also wearing Feta. This
witness has identified Accused No.1 Bannasingh and Accused No. 5
Julfisingh in the first trial, whilst Accused No.6 Darasingh in the
second trial. He has identified all the accused in prior test
identification parade. He was subjected to searching cross-
examination, but besides minor omissions, the cross-examination
does not yield. PW-9 Bedi being neighbouring shop keeper, his
presence on the spot was quite natural. The incident occurred
around 01.00 pm in the afternoon, therefore PW-9 Bedi was
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supposed to at his business place in rush hours. It was quite natural
for him to rush to see the matter on commotion. His evidence is
corroborated by other witnesses.
35. The prosecution has examined other eye-witness. PW-10
Anil Kharwade, who owns a shop opposite to the place of occurrence.
He equally runs a jewelry shop under the name and style as
Kharwade Jewelers. The said shop situates to the opposite side of
the road. It is his evidence that at the relevant time, after hearing
hue and cry, he came out of the shop, saw towards the shop of
Thavkar Jewelers. He saw that PW-9 Bedi was getting down from
the staircase in frightened condition. He heard the noise of firing of
bullets in the shop of Thavkar Jewelers. On hearing noise, he stood
at the road divider and saw three persons coming out of the shop of
Thavkar Jewelers, and went towards white Maruti 800 car. Out of
those three persons two were wearing feta like Sardar. He saw one
of them was holding pistol whilst other knife. He saw that one
person like Sardar was already seated on the drivers seat of the car.
No sooner three assailants boarded into the car, they speedily
proceeded towards Manewada square. This wintness was unable to
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identify the assailants, however his evidence corroborates the
evidence of PW-9 Bedi. There are several omissions in his evidence,
but essentially he stated about the incident.
36. The prosecution has examined PW-6 Sushant Pali who
happened to be a chance witness to the occurrence. It is his evidence
that, at the relevant time he had been to Manewad road for his
personal work. While he was in the shop namely Anand Furnitures,
he heard shouts from the shop of Thavkar Jewelers, which was
opposite to the Anand Furnitures across the road. On hearing
shouts, he as well as other people started to look towards Thavkar
Jewelers shop. When he came to the road divider, he heard sound of
firing bullets. He saw three persons hurriedly coming out of the shop
of Thavkar Jewelers. Two of them were wearing turbans ( Feta)
whilst the third without turban. Person who was without turban,
was holding pistol and one other was holding knife. All of them
seated into a Maruti 800 car, in which already driver was seated and
they fled. This witness was called thrice in Central Jail for test
identification parade, wherein he has identified all three assailants.
This witness has identified Accused No.1 Bannasingh and Accused
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No.5 Julfisingh in the Court (first trial), whilst Accused No.6
Darasingh in second trial. Though he is a chance witness, the cross-
examination fell short to raise doubt about his natural testimony.
Moreover, he has no animus against the assailants. His evidence
fully corroborates to the evidence of PW-1 Prasad and PW-9 Bedi.
37. True, there are some discrepancies in the evidence of PW-
1 Prasad, however on the point of actual occurrence, he has firmly
faced cross-examination leaving no doubt. This witness sufficiently
explained in his Police statement about presence of three assailants.
Always the credibility of witness is to be tested on the anvil of
factual background. PW-1 Prasad is merely a servant working in the
Jewelry shop. Obliviously, he was shocked and terrified due to
horrifying incident. His master was gunned down in his presence,
rather he was also in death shadow. In such temperament, he has
lodged report within few hours, therefore his evidence is to be
appreciated on the background of said fact. Besides that, in Police
Statement, he has specifically stated about the presence of all three
assailants. His evidence is quite natural, reliable and trustworthy,
deserves to be accepted. Presence of PW-9 Bedi on the spot is also
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quite natural. His presence is corroborated by other eye-witnesses.
Besides that, the prosecution has examined panch witness to
establish seizure, two empty cartridges, one live cartridge and
mobile of Accused No.1 Bannasingh from the place of occurrence.
Knife was recovered at the hands of Accused No.1 Bannasingh.
38. The presence of Accused No.4 Pankajsingh in the Maruti
800 car at the place of occurrence was established in the first Trial
which is not challenged. Moreover, the prosecution has examined
witnesses who have seen Accused No. 4 Pankajsingh seated in the
car at the relevant time. It has come in the evidence that all three
assailants armed with pistol and knife hurriedly got down from
staircase, boarded the car and fled. The said circumstance itself
indicates prior meeting of mind on their part. Moreover, the very act
of Accused No.1 Bannasingh asking the victim 'Nikalo' indicates their
intention to loot the shop. Otherwise, they have no reason to go to
the Jewelry Shop with weapons, and demand the valuables. It is
evident from the circumstances that they have hatched criminal
conspiracy to commit robbery at Thavkar Jewelry Shop, and in order
to execute the plan, three of them actually went to the shop whilst
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one was waiting in the car to facilitate the safe passage. It is also
duly established that they were armed with deadly weapon while
attempting to commit robbery.
39. The incident unrevealed a failed attempt of robbery,
which took life of Jeweler Vijay Thavkar. It is manifest that Accused
No.1 Bannasingh, Accused No.5 Julfisingh and Accused No.6
Darasingh had planned to loot the shop and if resisted to eliminate
the objector. Their intention is evident from the nature of weapons
they carried. It was their common intention to eliminate the Jeweler
if resisted. With prior determination, they entered into the shop
armed with deadly weapons. Accused No.1 Bannasingh tried to fire
but failed, which shows his active participation coupled with intent.
Accused No.6 Darasingh caught hold deceased to facilitate Accused
No.5 Julfisingh to fire which shows their common intention to
commit murder. The Trial Court has rightly appreciated the evidence
while convicting Accused No.1 Bannasingh and Accused No.6
Darasingh for the offence of murder with the aid of Section 34 of the
Indian Penal Code. However, the said principle cannot be extended
to Accused No.4 Pankajsingh as he never entered into the shop
Judgment appeal50.15
though facilitated to run away. His mere presence at some distance
from the scene of murder without participating is not enough to book
him for murder. It cannot be presumed that he has also planned to
murder the objector, as essentially they went to commit robbery.
However, conspiracy on his part to commit robbery can be easily
inferred. There is no infirmity in the order of Trial Court in acquitting
Accused No.4 Pankajsingh from the charge of murder.
40. Learned counsel appearing for injured Prasad in Criminal
Appeal No. 116/2015 in terms of Section 372 of the Code would
urge for conviction of Accused No.1 Bannasingh for the offence
punishable under Section 307, instead of Section 324 of the Indian
Penal Code. It is submitted that in said occurrence, Accused No.1
Bannasingh dealt a knife blow at the head of Prasad, therefore his
act squarely falls within the ambit of Section 307 of the Indian Penal
Code. He would submit that, to constitute the offence under Section
307 of the Indian Penal Code, it is not essential that bodily injury
shall be capable of causing death, but the intention of accused is
material. In support of said contention, reliance is placed on the
decision of the Supreme Court in case of State of M.P. Vs. Saleem
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alias Chamaru and another, AIR 2005 SC 3996. Particularly
emphasis is led on para 12 and 13 of the decision which reads as
below:-
"12. To justify a conviction under this Section, it is
not essential that bodily injury capable of causing death
should have been inflicted. Although the nature of injury
actually caused may often give considerable assistance in
coming to a finding as to the intention of the accused,
such intention may also be deduced from other
circumstances, and may even, in some cases, be
ascertained without any reference at all to actual
wounds. The Section makes a distinction between an act
of the accused and its result, if any. Such an act may not
be attended by any result so far as the person assaulted is
concerned, but still there may be cases in which the
culprit would be liable under this Section. It is not
necessary that the injury actually caused to the victim of
the assault should be sufficient under ordinary
circumstances to cause the death of the person assaulted.
What the Court has to see is whether the act, irrespective
of its result, was done with the intention or knowledge
and under circumstances mentioned in the Section. An
attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is present
an intent coupled with some overt act in execution
thereof.
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13. It is sufficient to justify a conviction under
Section 307 if there is present an intent coupled with
some overt act in execution thereof. It is not essential that
bodily injury capable of causing death should have been
inflicted. The Section makes a distinction between the act
of the accused and its result, if any. The Court has to see
whether the act, irrespective of its result, was done with
the intention or knowledge and under circumstances
mentioned in the Section. Therefore, an accused charged
under Section 307 IPC cannot be acquitted merely
because the injuries inflicted on the victim were in the
nature of a simple hurt. ."
41. Undoubtedly, bodily injury capable of causing death is
not a sine qua non for the said offence. All that which is essential is
to see the intention of the accused, which can be deduced from the
surrounding circumstances. If the prosecution succeeds from the
circumstances to prove the presence of intention to kill, coupled with
some overt act in execution thereof, it would attract commission of
offence punishable under Section 307 of the Indian Penal Code.
42. Though it is strenuously argued to convict Accused No.1
Bannasingh for the offence punishable under Section 307 of the
Indian Penal Code, however the said exercise is unwarranted to see
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whether the act of Accused No.1 Bannasingh falls under Section 324
or Section 307 of the Indian Penal Code. The entire occurrence is to
be considered as a whole. It is not an ordinary case where one has
caused simple hurt to other by means of handle of knife. The
prosecution has duly established that all three entered into the
Jewelry Shop to commit robbery. While attempting to commit
robbery, hurt was caused with dangerous weapon. The Indian Penal
Code provides a distinct offence under Section 394 of the Indian
Penal Code to deal the situation. For ready reference, Section 394 of
the Indian Penal Code is reproduced as below:-
"394. Voluntarily causing hurt in committing
robbery.--If any person, in committing or in attempting
to commit robbery, voluntarily causes hurt, such person,
and any other person jointly concerned in committing or
attempting to commit such robbery, shall be punished
with [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine."
This Section imposes sever punishment when hurt is caused in
committing or attempting to commit robbery. Section 394 postulates
causing of harm during commission of robbery, or in attempting to
Judgment appeal50.15
commit robbery. This Section classifies two distinct class of persons.
Firstly, those who actually cause hurt and secondly, those who do not
actually cause hurt but are "jointly concerned" in the commission of
the offence of robbery or attempted robbery. Apparently, the second
class of persons may not be concerned in the causing of hurt, but
they become liable independently of the knowledge of its likelihood
or a reasonable belief in its probability.
43. Section 394 of the Indian Penal Code does not make a
distinction in the nature of hurt namely simple hurt, or grievous hurt.
Both are treated equally by imposing a sever punishment since hurt
was caused during the course of robbery or attempted robbery.
Thus, the act of causing hurt cannot be construed independently to
asses whether it was a case of causing simple hurt by dangerous
weapon, or it was an attempt to commit murder. The act of causing
hurt cannot be considered in isolation but to be appreciated in the
context that while attempting to commit robbery, hurt was caused.
Therefore, the act of Accused No.1 Bannasingh would fall under
Section 394, instead of Section 324 of the Indian Penal Code.
Likewise Accused No.5 Julfisingh and Accused No. 6 Darasingh are
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also responsible for the act of causing hurt as they are 'jointly
concerned' in attempted to robbery. Therefore, both of them are also
liable to be convicted for the offence punishable under Section 394 of
the Indian Penal Code.
44. Though Section 397 of the Indian Penal Code provides a
sever punishment for attempting to cause death or grievous hurt
while committing robbery or dacoity, but it does not speak about
attempted robbery or dacoity. Section does not make attempted act
punishable like Section 394 of the Indian Penal Code. Herein offence
of robbery was not complete, but was an attempt only. Therefore,
Section 397 of the Indian Penal Code would not apply to the facts of
the present case.
45. True, the accused were not charged for the offence
punishable under Section 394 of the Indian Penal Code, however
they were very much charged for Sections 395 read with Sections
397 and 398 of the Indian Penal Code. Certainly, offence punishable
under Section 394 of the Indian Penal Code can be construed as
minor offence of those sections therefore, they can be convicted for
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Section 394 of the Indian Penal Code with the aid of enabling
Section 222 of the Code. Therefore, appeal of State as well as victim
needs to be allowed to the extent of converting conviction of Accused
No.1 Bannasingh from Section 324 to 394 of the Indian Penal Code,
and additionally convicting Accused No.5 Julfisingh and Accused
No.6 Darasingh for the offence punishable under Section 394 of the
Indian Penal Code.
46. Already all of them have been held guilty for the offence
punishable under Section 302 of the Indian Penal Code, and
sentenced to suffer imprisonment for life, therefore imposition of
sentence under Section 394 of the Indian Penal Code would be an
academic exercise since all sentences are directed to run
concurrently. In view of that the appeals of State and victim are to
be allowed to that extent only by imposing sentence of rigorous
imprisonment for four years along with fine of Rs. 1,000/- in-default
to undergo further rigorous imprisonment for four months for the
offence punishable under Section 394 of the Indian Penal Code. The
said exercise is permissible in terms of Section 386(e) read with
Section 378 of the Code.
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47. Then the learned counsel for the victim and State would
submit that, since death was caused in the occurrence, the Trial
Court ought to have convicted Accused for the offence punishable
under Section 396 of the Indian Penal Code. He would submit that,
acquittal of the some of the accused would not affect in convicting
the rest, for the offence punishable under Section 396 of the Indian
Penal Code. In other words, he would submit that even a conviction
of single accused under Section 396 of the Indian Penal Code is
permissible, if murder was committed while commission of dacoity.
In this regard, he drew our attention to the decision of the Supreme
Court in case of Manoj Giri Vs. State of Chhattisgarh, (2013) 5 SCC
798. It was a case of dacoity with murder. Some of the accused
were acquitted whilst a single accused was convicted for the offence
punishable under Section 396 of the Indian Penal Code. In said
context, it has been observed that conviction of single accused for
charge of dacoity with murder has no effect though rest were
acquitted. In said case, murder was committed during cojoint
commission of dacoity by five persons, however some of them were
acquitted due to insufficiency of evidence. However, the factum of
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involvement of five persons in the occurrence was not disputed. In
that context, it is held that acquittal of some of the accused has no
effect in convicting a single person for the offence of dacoity with
murder.
48. The case at hand materially defers, as in present case, the
prosecution has not established the involvement of five or more
persons in the occurrence. In order to record conviction for offence
of dacoity, there must be involvement of five or more persons. In
absence of such a finding, any one cannot be convicted for an offence
of dacoity as well as dacoity with murder, since offence of dacoity is
an act of five or more persons. The said essential ingredient is totally
missing and therefore, being different facts, the above decision
would not assist the victim in any manner.
49. Placing reliance on the decision of the Supreme Court in
case of Kalika Tiwari and others Vs. State of Bihar, AIR 1997 SC
2186, it has been submitted on behalf of victim that in order to
establish the offence of Section 396 of the Indian Penal Code
(dacoity with murder), proof of common intention or common object
Judgment appeal50.15
is not necessary. Everyone is liable to be punished under this Section
though they have not participated in murder. The relevant penal
provision reads as below:-
"396. If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous
imprisonment for a term which may extend to ten years,
and shall also be liable to fine.
Under this Section extreme penalty of death can be inflicted on a
person convicted for taking part in dacoity in the course of which a
murder is committed. This Section fastens the liability on other
persons as co-extensive with one who has actually committed
murder. Therefore, it is not necessary that everyone shall have
common object or intention to commit murder, but their
participation in the conjoint activity of dacoity resulting into murder
is sufficient. However, in case at hand, the very essence of the
Section is missing. The prosecution failed to establish participation
of five or more persons, meaning thereby, an offence of dacoity. The
offence under this Section requires two things. Firstly, dacoity must
Judgment appeal50.15
be the joint act of the persons concerned and secondly, murder has
been committed in the course of the commission of the dacoity.
Since participation of five or more persons has not been established,
despite murder, this Section cannot be invoked, therefore being
distinct facts, above decision would not apply to the facts of this case.
50. The accused were also charged for the offence punishable
under Sections 3(1)(i), 3(4) and 3(2) of the MCOC Act alleging that
organized crime syndicate headed by Accused No.1 Bannasingh was
run of which the rest were members. Some prior charge-sheets
against different accused have been tendered, however the Trial
Court has dealt the same in detail holding that there were no two
prior charge-sheets against the organized crime syndicate. The
prosecution has failed to established that the accused were indulged
into continuing unlawful activity amounting to organized crime
within the meaning of Section 2(1)(e) of the MCOC Act. Therefore,
we are unable to accept the submission made on behalf of the victim
and State that accused are also liable to be convicted under the
provisions of MCOC Act.
Judgment appeal50.15
51. As regards to the enhancement of sentence, Accused No.1
Bannasingh, Accused No.5 Julfisingh and accused No.6 Darasingh
were sentenced to undergo imprisonment for life for the offence
punishable under Section 302 read with Section 34 of the Indian
Penal Code. It is nobodies case that the act of the accused falls in the
category of rarest of the rare case. So far as conviction for the
offence punishable under Sections 398 and 120-B of the Indian Penal
Code is concerned, they are sentenced to suffer rigorous
imprisonment for seven year with fine. We find no justification in
the urge of enhancement because already they are sentenced for life
and all sentences are directed to run concurrently.
52. Accused No.4 Pankajsingh is convicted for attempted
robbery with the aid of Sections 34 of the Indian Penal Code and for
conspiracy to commit robbery. Section 393 of the Indian Penal Code
provides punishment of rigorous imprisonment which may extend to
seven years, with fine. Trial Court has imposed rigorous
imprisonment for four years with fine. Having regard to his role of
facilitator, the said sentence is proper.
Judgment appeal50.15
53. As a summary of above discussion, we are of the
considered view that the prosecution has duly established that
Accused No.1 Bannasingh, Accused No.5 Julfisingh and Accused
No.6 Darasingh have hatched criminal conspiracy. All of them in
furtherance of their common intention, committed murder of Vijay
Thavkar. At the time of attempting to commit robbery, they were
armed with deadly weapons. The prosecution also proved that while
attempting to commit robbery, Accused No.1 Bannasingh, Accused
No.5 Julfisingh and Accused No.6 Darasingh were jointly concerned
in the attempt and during the course of attempt, one of them has
voluntarily caused hurt attracting offence punishable under Section
394 of the Indian Penal Code against them. Besides that, the offence
under Arms Act, has been duly proved against Accused No.1
Bannasingh, Accused No.5 Julfisingh. The prosecution also
succeeded in establishing the offence of criminal conspiracy to
commit robbery and attempt of robbery against Accused No.4
Pankajsingh.
54. In view of above, both impugned judgments and orders of
conviction against Accused No.1 Bannasingh, Accused No.4
Judgment appeal50.15
Pankajsingh, Accused No.5 Julfisingh and Accused No.6 Darasingh
are well sustainable in the eyes of law, therefore, appeals filed by
convicted accused needs no interference. However, appeals filed by
State and victims would succeed only to the extent of altering
conviction of Accused No.1 Bannasingh from the offence punishable
under Section 324 to 394 of the Indian Penal Code, and additionally
convicting Accused No. 5 Julfisingh and Accused No.6 Darasingh for
the same offence. Therefore, we dismiss Criminal Appeal Nos.
50/2015, 63/2016, 410/2019 filed by the convicted accused. We
hereby partly allow the Criminal Appeal Nos. 474/2016, 72/2019
filed by State and Criminal Appeal Nos. 87/2015, 116/2015 filed by
victims to the extent of punishing Accused No.1 Bannasingh for the
offence punishable under Section 394 instead of Section 324 of the
Indian Penal Code and convicting Accused No.5 Julfisingh and
Accused No.6 Darasingh for the offence punishable under Section
394 of the Indian Penal Code, and they are sentenced to undergo
rigorous imprisonment for four years along with fine of Rs. 1000/-
each in-default, to suffer rigorous imprisonment for four months for
the said offence. The rest of the impugned orders would remain as it
Judgment appeal50.15
stands with the direction to run all sentences concurrently.
55. All appeal stands disposed of in above terms.
56. Fees of the appointed counsel be paid as per Rules.
(BHARAT P. DESHPANDE, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 23/08/2023 15:36:56
