KARAN Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the judgment and order dated 6.5.2006 passed by the Additional Sessions Judge, Khed in Sessions Case No. 37 of 2003, the appellant is convicted for the offence of dacoity with murder under Sections 396 read with Section 395 of the IPC and is sentenced to suffer life imprisonment and fine. He is also convicted for dacoity and causing death or grievous hurt under Section 397 and is sentenced to suffer R.I. for seven years. The incident of dacoity/robbery has taken place on the night intervening 28.10.2000 and 29.10.2000 at about 1 to 1.30 a.m. The complainant Shahin Shafi Surve was residing with her family including brother-in-law, mother-in-law and sister-in-law at Majresashi, Taluka Chiplun, District Ratnagiri. Her sister-in-law Khairunissa had come with her children to stay with her mother. On the night of 28.10.2000 when they were all sleeping, 10 to 12 persons entered their house. They cut the wire of the telephone. They assaulted her mother-in-law who was sleeping in the hall. Shahin came down from her bed room. They assaulted her. Those robbers entered the bed room of her sister-in-law, threatened her to beat and demanded her ornaments and also gave her a stick blow below her ear. They forcibly took away gold Mangalsutra, chain and bangles of Shahin and assaulted her with stick. They opened the cup-board and took away cash of Rs. 15000/-. Shahin found her brother-in-law injured lying in the middle of the room. He was seriously beaten up. He was unconscious. They all started shouting and the people in the vicinity started coming near their house, so the assailants left their sticks and iron bars outside their house and ran away. Shahin, her sister-in-law, brother-in-law all were shifted at Dervan hospital and were treated. However, her brother-in-law succumbed to the injuries. Shahin gave her statement to the police which was treated as an F.I.R. and the offence was registered vide C.R. No. 127 of 2000 under Sections 395, 396 and 397 of the IPC at Chiplun Police Station. Police started investigation and informed the people in the vicinity about the dacoits and they were searching for the assailants. On 29.10.2000 at around 6 p.m. PW-2 Atmaram Dharma Bhandarkar who was running a canteen, found four strangers visiting his hotel and they asked for tea and biscuits. He suspected them and hence he reported to the police. The police started interrogating them. They all gave evasive answers and they tried to run away from the spot. The police could nab three persons out of the four persons and they caught 4th person near the creek. The police found cash of Rs. 10000/- with one of the accused. Their clothes were blood stained. The police recovered ornaments from one of the accused persons. Complainant Shahin was thereafter called at Chiplun police station on 31.10.2000 for recording her further statement in respect of the description of the ornaments. The police recorded the statement of other injured person like Khairunissa and also of Faimida and nephew of the complainant i.e. PW-7 Mohazzam Meharaj Kurwale. On 7.11.2000 police arranged for test identification parade and Special Executive Magistrate PW-8 Balkrishna Gangaram Wasave conducted the test identification parade. Witnesses identified four accused and after completion of the investigation, the charge sheet was filed against all the accused. The learned Magistrate committed the said case to the Court of Sessions at Khed, District Ratnagiri.

(2.) Though the charge sheet was filed against 10 accused, out of the four accused i.e. original accused No. 10 expired and other two accused were absconding. Hence, the charge was framed against this accused and other absconding accused and the only accused was tried. It was concluded in conviction, hence, this appeal.

(3.) In the case of dacoity and robbery when the accused are not known to the victims, the prosecution case stands mainly on three aspects viz;- (1) immediate arrest; (2) identification of the accused; and (3) recovery of the stolen articles. In the present case, the prosecution has tendered the evidence on all the three aspects. The learned defence counsel while dealing with all these three aspects, has submitted that as per the case of the prosecution on that night nearly 10 to 12 persons with sticks and knife entered the house of the victim and they assaulted and robbed those persons. However, it is very difficult for the witnesses to see the faces of the assailants when it was night and all of them had covered their faces with handkerchiefs. She further submitted that at the time of test identification parade which was taken place on 7.11.2000, none of the witnesses especially PW-1 Shahin, PW-4 Faimida and PW-7 Mohazzam who are the eye witnesses to the incident, did not attribute any specific act to either of the accused and this is the main lacuna in the test identification parade. She further submitted that nothing was recovered from this accused. The recovery of ornaments is from accused No. 10 who is expired. She further submitted that a wooden stick was recovered from the present accused from one farm and such stick is available in the village. She further submitted that the case of the prosecution is based on a very weak circumstantial evidence and the learned Sessions Court ought not to have believed the evidence of identification of the accused by the three witnesses.