GAMA DHANA VASAVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY a judgment and order dated December 29, 1979, in Sessions Case No. 40 of 1979, the learned Sessions Judge, Dhule, convicted the appellants (original accused Nos. 1 and 10 to 14) for offences punishable under sections 395 and 396 and accused Nos. 1, 10, 12 and 13 under sections 398 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for seven years for an offence punishable under section 396 of the Indian Penal Code. No separate sentence was inflicted on them for offences punishable under sections 395 and 398 of the said Code.

(2.) BEING aggrieved, the appellants filed this appeal.

(3.) THE relevant facts giving rise to the appeal are as under : kawli is a small village in Dhule District. Adjoining to this village is the village Korai. Walji Vesta (P. W. 5) and his deceased brother Shidya Vesta were the residents of village Kawli. They owned field bearing Survey No. 273 in the boundary of village Korai. They were cultivating this land separately in two half portions divided between them, the northern portion being in charge of Walji and the southern one in charge of Shidya. The present appellants and eight others who were arraigned with them as accused persons are the residents of a nearby village called Khadku. During the end of November 1978, Walji and his brother Shidya had reaped a harvest of Tur crop in their respective fields. The crop was still lying in their threshing floors. Therefore, the two brothers and their sons and servants were guarding the reaped crop. Accordingly, during the night intervening 27th and 28th November 1978, Walji and his sons Bhamsing (P. W. 2) and Jaysing (P. W. 9) were at their threshing floor whereas Shidya, his sons Bharatsing (P. W. 6), Magan and Mahadu were in their field. There were also others including Manohar (P. W. 10), Koma (P. W. 11) and Kisan (P. W. 7 ). Sometime after midnight, it is alleged, 14 accused persons, all armed with sticks, dharias, spears, axes, bows and arrows, went there with an intention to commit theft of Tur belonging to Walji and Shidya. Their movements were felt and accordingly Walji and his sons went in that direction when they were attacked. Walji fell down on being assaulted and his sons ran away. There were shouts and cries of "chor, chor" and, therefore, others including deceased Shidya and his son Bharatsing also woke up. Shidya rushed towards the field of Walji with a flash light and a weapon and in the light of an electric bulb he recognised some of the thieves as the residents of village Khadku and others being the sons of one Chandya and he remarked accordingly. The thieves attacked him. He fell down. The thieves, on account of the resistence put up, could not collect any amount of Tur but while belabouring the boys, snatched and took away the chaddars and quilts of some of them. They also took away the torch of Shidya. In the meanwhile, Waljis sons returned to the scene of offence along with 20 to 25 villagers but by then the thieves had run away. Injured Walji and Shidya were put in a bullock-cart for taking them to a dispensary at village Khapar but shortly thereafter Shidya passed away. His dead body was kept in the house and Walji was taken to Khapar and thereafter to police station at Akkalkuwa. At the Akkalkuwa Police Station, an occurrence report was received from the police outpost, Khapar and in the morning at about 8. 00 a. m. Police Sub-Inspector Pawar (P. W. 14) recorded the complaint of Bhamsing in which names of only four thieves were mentioned, being appellant Nos. 3 to 6 (accused Nos. 11 to 14 ). Accordingly, an offence was registered and further investigation was carried out during which 14 persons were arrested. At the instance of some of the accused persons, stolen articles as well as weapons of assault were recovered under section 27 of the Indian Evidence Act. The injured prosecution witnesses were medically treated and post-mortem examination on the dead body of Shidya was also carried out. Incriminating articles were also sent to the Chemical Analyser. On completion of the investigation, a charge-sheet was filed against 14 accused persons in the Court of the learned Judicial Magistrate, First Class, Taloda, on February 13, 1979 who committed the case to the Court of Session at Dhule on March 22, 1979.