DEVIDAS S O RAMLAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by the original Accused Nos. 1 to 5 who have been convicted by the learned Sessions Judge, Parbhani of the offence under section 395 of the Indian Penal Code, Since I am allowing the appeal, it is not necessary to State the sentence imposed on each of the accused.

(2.) The prosecution case was as follows :--- Baburao Ganpatrao Gaikwad, P.W. 1, is the resident of the village Walur where weekly bazar is held. He claims to be quite affluent person. He has a Joint Hindu Family and lives with his brother. Both the brothers are married. Paternal aunt of the said P.W. 1 is also residing with him. On the night of 17th December, 1976, at about 1.00 a.m. about 15 to 16 unknown persons committed dacoity in the house of P.W. 1. They broke open the house and smashed the electric bulbs. Upon the noise P.W. 1 and his brother rushed out from the upper floor where he was sleeping. He was mercliessly beaten by the dacoits, and, likewise, other members in the family were also beaten. The dacoites looted the house by helping themselves with various articles such as utensiles, jewellery etc., and cash of Rs. 3500/-. After the dacoits took to their heels, P.W. 1 lodged a report at the Police Station, Manwat, which is just a few miles away from Walur, on the next day i.e. on 18-2-1973. It is the case of the prosecution, that while the dacoits made there escape, at the out skirts of the village, they left certain articles such as empty bags and utensils etc. After the FIR was registered the police vistied the place of offence and also saw the spot near about the out skirts of the village where the said articles were lying. The police ordered that those articles should not be touched by any else and brought into service Dogs Squad on 20-12-1976. The dog took the police to the hut of accused No. 3 on the very day. Thereafter hut of accused No. 3 was searched and certain articles were found from the hut of accused No. 3 which were taken into their possession by the police under panchanama Exhibit 16. On 25-12-1976, the houses of accused Nos. 1 and 2 were also searched and certain articles were recovered from their houses. Panchanama in respect of articles found in the house of accused No. 1st at Exhibit 17 and panchanama in respect of the articles found in the house of accused No. 1 is at Exhibit 18. It is the further contention of the prosecution that all the accused were arrested on 28-12-1976 and on that very day all the accused agreed to show the places where they had concealed certain articles. The prosecution wants the Court to believe that all the accused one after the other, made statements before two celebrated panchas. The first was P.W. 8 and the other was P.W. 10. The contention was that each of the accused, one after the other, made statement before the panchas that he would point out the places where he had concealed the article. The police took each of the accused, one after the other, in the company of the same panchas to the spot to which the relevant accused directed them. The contention of the prosecution is--- (a) that accused No. 1 took the police party and the panchas to his house and that behind the house below a tree he dug up and took out certain articles which were taken into their possession by the police under the panchanama Exhibit 30. (b) That accused No. 2 took the police party and the panchas in he police jeep to his own field and that he dug up a portion below Bal tree in the field and took out certain articles which were taken by the police in their possession under the panchanama Exhibit 32. (c) That accused No. 3 followed suit. He took the police party and the panchas to his hut in his field and dug out a portion in the hut and took out certain articles which were taken by the police in their possession under the panchanama Exhibit 28. (d) That accused No. 4 followed similar suit. He took them to his field, drug out under a Bal tree and took out certain articles which the police took in possession under the panchanama Exhibit 22. (e) That accused No. 5 similar took the entire police party and panchas to the field of accused No. 4 and he dug up below a Palas tree and took out certain articles which the police took in possession under the panchanama Exhibit 20. The investigating police thereafter practically put a full stop to the investigation with an evident sense of fulfilment. In due season the charge-sheet was framed against all the accused and that is how all the accused faced the music of the trial of the offence mention above.

(3.) The defence of the accused was one of total denial. They denied that they took part in the dacoity. They denied that any articles were discovered by them as alleged by the prosecution. They contended that all of them were arrested by the police on 20-12-1976. They stated that they had gone to village Bori for marketing purposes. After their purchases were over, they were coming back by a bus when the P.S.I. made them to get down and they were detained in the Police Station. Accused Nos. 1 and 2 are brother. Accused Nos. 3, 4 and 5 just happened to be travelling with them. All of them were detained at the Police Station and were mercilessly beaten. They denied having pointed out any property and denied any concern with the incriminating articles. Some of the articles such as Dhoti etc. were claimed by them to be of their own but articles such as Jewellery utensils etc., were wholly disowned by them and they denied that they had discovered the same as contemplated by the Evidence Act. Accused No. 1 also alleged that a sum of Rs. 3000/- was demanded from him and that amount was in fact paid by accused No. 1s uncle to the police. They contended that they have been falsely implicated.