SHAIKH ANWAR SHAIKH MADAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANTS are original accused Nos. 1,8 and 10. Initially 11 accused were prosecuted. The charge against them, as originally framed on the 12th of August, 1986 vide Exhibit 9 was under Section 395 and Section 395 read with Section 397 of the Indian Penal Code. Plea of all the accused for the aforesaid charge was recorded. All pleaded not guilty. Evidence for the prosecution was recorded. Statements of the accused under Section 313 Criminal Procedure Code was thereafter recorded. Witnesses were examined in defence. Two witnesses were examined by accused No. 8 and one witness was examined by accused No. 10. Arguments on behalf of the prosecution commenced. While the arguments were in progress an application (Exhibit 98) was filed on behalf of the prosecution for amendment of the charge. The prosecution prayed for adding a charge of conspiracy, which is punishable under Section 120-B of the Indian Penal Code. The say of the accused was taken. The accused strongly objected to the amendment both on the ground that it was sought at a belated stage and on the ground that there was no material on record to justify the framing of the additional charge. By an order passed, the learned Judge of the trial Court over-ruled the objections and granted the application for amending the charge. Thereafter, an amended charge (Exhibit 99) was framed. A charge under Section 120- B was added to the original charge. The arguments, thereafter, proceeded and the same was followed by the passing of the impugned ORDER and order. The learned Judge of the trial Court, however, has omitted to record the plea of the accused to the amended charge and has proceeded to decide the case against the accused both under the original charge as also the amended charge. When this position was brought to my notice I have proceeded with the hearing of the appeal by ignoring the amended charge as, in my view, the learned Judge of the trial Court could not have considered the additional charge without recording the plea of the accused in that behalf. By the impugned ORDER and order of the trial Court all the accused, except accused Nos. 1,8 and 10, have been acquitted. As far as accused Nos. 1, 8 and 10 are concerned, they are convicted for an offence under Section 392, 394 and 120-B of the Indian Penal Code and each of them has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months on each count The substantive sentences are directed to run concurrently. In view of my preliminary finding that the accused have not been properly charged and prosecuted for the offence under Section 120-B of the Indian Penal Code, the appellants original accused Nos. 1, 8 and 10 are entitled to an order of acquittal on that count The case is now heard and is being disposed of on the basis of the original charge framed at Exhibit-9. Under the said charge, the eleven accused before the Court, along with an absconding accused Balram Patil, are charged under Section 395 and Section 395 read with Section 397 of the Indian Penal Code for having, on the 20th of February, 1986, at about 10. 45 a. m. , in a local train of the Central Railway, between Dombiwali and Diwa Railway Stations in a lind Class Railway Compartment, committed dacoity in respect of a briefcase containing Rs. 1,01,000/- belonging to the complainant - Shaikh Ahmed Qureshi by making use of deadly weapons such as knives. The case of the prosecution can be summarised as under:

(2.) THE complainant Shaikh Ahmed is a resident of Shahad and is engaged in the business of purchase and sale of she-goats. He used to purchase she-goats on credit at Indore and dispose them of at the Kalyan market and, thereafter, make payment for the she-goats purchased on credit It was the practice of the complainant that whenever he used to go to Indore to make payment he used to start from Shahad Railway Station at about 10. 30 a. m. and proceed to Ghatkopar. From there he used to proceed to the Airport and take a flight to Indore. Accordingly, on the 20th of February, 1986 at about 10. 30 a. m. he started from his house with a brief case containing cash amount of Rs. 1,01,000/ -. The said amount was in the denomination of Rs. 100/- and Rs. 50/- currency notes. He was accompanied by his employee P. W. 2 Jagtarsing Adwan. Jagtarsing has declined to support the prosecution. He has, therefore, been declared hostile and has been cross-examined both by the prosecution as also by the defence.

(3.) BOTH the complainant and Jagtarsing, as per the usual practice, went to the railway station and boarded a local train, which was proceeding towards Ghatkopar. While the local train was proceeding between Dombiwali and Diwaratiway stations, accused No. 1 Momin Salim Mohammed Shaikh and accused No. 10 Anwar Shaikh Madar who are residents of Shahad and known to the complainant, along with six or seven others, went near the complainant Shaikh Ahmed. Accused No. 1 removed specs of the complainant and threw chilly powder in his eyes. Accused No. 10 also threw Khaskuri on his body. At that time accused No. 1 touched an open knife on his stomach. The accused then snatched the briefcase in which complainant had kept the amount of Rs. 1,01,000/ -. The complainant cried (my bag, my bag ). However, the accused pulled the chain. As soon as the train halted they made good their escape.