ISMAIL AMIR SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Three persons, hereinafter referred to as "the accused", were prosecuted in Sessions Case No.366 of 1981 tried by Mr. N.I. Makhijani, the learned Additional Sessions Judge of Bombay, for the offences to be mentioned hereinafter. Those offences have been mentioned in the charge framed by the learned Sessions Judge and, therefore, it would be appropriate to refer to the charges themselves. We are following this procedure because the impugned judgment is so hopelessly unsatisfactory that it does not give to the Court of appeal, where we are now sitting, the least idea of what the prosecution case was, what the evidence on behalf of the prosecution was and what exactly was passing in the mind of the learned Sessions Judge while he disposed of the case before him. We are mentioning something more about the quality of this judgment a little later while discussing the case of accused No.1 who alone has appealed against the judgment and order passed by the learned Sessions Judge.

(2.) Returning to the charge, we notice that accused Nos.1 to 3 were charged with the offence punishable under S.392 read with S.34 of the Penal Code on the ground that they along with one person known as Taklya committed robbery in respect of coke valued at Rs. 2,500 from a truck bearing No. MTT 3080 which was in charge of one Prabhakar Raghoba Ombale. The second charge against the accused was that they along with the unknown person Taklya caused hurt to one Shrirang alias Shripa Sayappa Sable during the course of committing the aforesaid robbery and, therefore, committed the offence punishable under S.394 of the Penal Code. It is interesting to note that the learned Sessions Judge did not apply S.34 of the Penal Code in the second charge though he specifically mentioned that accused Nos.1 to 3 had caused the injury to Shrirang. Fortunately, the learned Sessions Judge has held that the second charge has not been proved against the accused concerned.

(3.) The third charge was only against accused No.1 and it was that he at the time of committing the aforesaid robbery used deadly weapon, namely a knife, and therefore he committed an offence punishable under S.397 read with S.392 of the Penal Code. The fourth charge was in similar terms, but against accused No.2 alone. The fifth charge again was in similar terms but against accused No.3 alone. Thus there were five charges. The first charge was against all the accused together and was under S.392 read with S.34 of the Penal Code; the second charge again was against all the accused but for the offence punishable under S.394 of the Penal Code simpliciter without the application of S.34 of the Penal Code. Charges Nos.3, 4 and 5 were against each of the three accused for the offence punishable under S.397 read with S.392 of the Penal Code, again without the application of S.34 of the Penal Code. We do not understand why the learned Sessions Judge framed a charge against all the three accused for the offence punishable under S.394 of the Penal Code without the application of S.34 of the Penal Code when in charge Nos.3 to 5 he has framed individual charges against each of the accused when there was no application of S.34 of the Penal Code. This, together with several instances to be found in the conduct of this case, shows a non-application of mind or an inadequate application of mind to the facts as well as the procedure of this particular case.