PRAVIN NAVNATH SHINDE @ GOTYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two appeals by two convicts question the Judgment of their conviction rendered by the learned Additional Sessions Judge, Greater Mumbai for the offence punishable under Section 397 read with Section 34 of the Indian Penal Code and sentence to suffer rigorous imprisonment for seven years with a fine of Rs. 5000/- or in default simple imprisonment for three months each on conclusion of Sessions Case No. 83 of 2008 before him. Facts which are material for deciding these appeals are as under:-

(2.) The learned Additional Sessions Judge to whom the case was made over, charged the two appellants, along with the third person Sandip Tamanna Kusalkar, for the offence punishable under Section 392 read with Section 397 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all nine witnesses in its attempt to bring home guilt of the accused persons. After considering their evidence, in the light of defence of false implications, the learned trial Judge acquitted the third accused person i.e. Sandip Tamanna Kusalkar but convicted and sentenced the appellants as aforementioned. Aggrieved thereby, the appellants are before this Court.

(3.) I have heard the learned counsel for the appellants and the learned Additional Public Prosecutor for respondent No. 1 - State. With the help of both the learned counsel I have gone through the evidence on record. PW-1 Pankaj Manga Choudhari is the victim, who states about the incident. According to Pankaj, on the incidental evening he and PW-5 Thyagarajan Naidu had left their office and were proceeding by the railway track to railway station to catch a train. They over took three boys, who were ahead of them. Out of them, two boys allegedly held their collars. Thyagarajan Naidu managed to escape towards railway station. One of the boys holding his collar removed his mobile phone from the pocket of his trouser. He then asked his companions to give him the knife. Thereafter, accused No. 2 Pravin gave a knife to accused No. 1 Prashant and accused No. 1 gave a blow with the knife on the victim's abdomen. The victim then claims to have gone towards the railway station. He then stated about the treatment taken by him and the report which he made to the railway police. He proved his report at Exhibit 14. PW-5 Thyagarajan Selvamani Naidu, who was supposed to have been with the victim turned hostile. He gave a different account of the incident. He agreed that he and PW-1 Pankaj were walking towards the railway station. However, he stated that three boys came there from rear side and it is not that they over took those boys. He stated that one of the miscreants held him by collar. Therefore, he gave a jerk and he managed to escape towards railway station and raised cries that there were thieves. He stated that boys started pelting stones (which PW-1 Pankaj does not state). Curiously PW-5 Naidu stated that PW-1 Pankaj was coming through sub-way. Thyagarajan Naidu saw that Pankaj had injury on his abdomen.