SANJEEV SADANAND PAWAR Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the appellant's conviction by the learned Additional Sessions Judge, Mumbai for the offence punishable under Section 398 of the Indian Penal Code (for short, "IPC") and sentence of rigorous imprisonment for five years imposed upon the appellant on conclusion of Sessions Case No. 157 of 1992 before him. Facts which are material for deciding this appeal are as under:

(2.) The learned Additional Sessions Judge to whom the case was made over charged the appellant and the two other accused persons of offences punishable under Section 398 r/w Section 34 of the IPC and Section 135 of the Bombay Police Act for breach of prohibitory orders under Section 37 of the Act. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all ten witnesses in its attempt to bring home the guilt of the accused persons. After considering the prosecution evidence in the light of defence of denial raised, the learned trial Judge acquitted the other two accused persons for all the offences charged and convicted and sentenced the appellant, as indicated above. Aggrieved thereby, the appellant is before this Court.

(3.) I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both I have gone through the evidence on record. PW-1 Dr. Ashok Rana had examined the appellant at about 10:25 p.m. on the same day, since the appellant had some injuries. His evidence would only show that the appellant had some injuries on his person which could have been caused due to fall on ground. He proved the certificate at Exhibit-7. PW-2 Sumesh Jain stated about the incident. According to him, on 20-12-1991 at about 1:30 p.m. the appellant entered his shop, took out a chopper, pointed the chopper at his neck and demanded money. Sumesh Jain claims to have over-powered the appellant, leading to a scuffle and took the appellant outside the shop. He disarmed the appellant. He saw another person, having a knife, standing outside the shop. He shouted for help. The other accused, therefore, dropped the knife and took to his heels. The police came and arrested the appellant and took charge of the chopper as well as the knife. The witness proved his report at Exhibit-9. The witness had stated that in the scuffle his shirt had in fact been stained with blood. He stated that he had identified the appellant and accused No. 2 at the test identification parade but had not identified the third accused. He also identified the chopper which was shown to the witness in the course of trial. In the cross-examination it was suggested to the witness that the appellant had in fact entered PW-2's shop to save himself from attack of others. Thus, the presence of the appellant in the shop of PW-2 has been admitted.