MAHAMAD JAMSHER TADVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by accused Nos. 2, 3, 8, 14 and 15 who were tried with ten other persons in Sessions Case No. 20 of 1955 before the learned Additional Sessions Judge, East Khandesh, for offences under Sections 395, 457, and 397, Penal Code, and under Section 19 (f), Arms Act. The learned Additional Sessions Judge tried the case with the aid of Assessors. The Assessors were of the view that the appellants and certain other persons were guilty of an offence under Section 395 read with Section 457, Penal Code. They were also of the view that the 8th accused, who is the third appellant before us, was guilty of an offence under Section 19 (f), Arms Act. The learned Sessions Judge convicted the appellants of an offence under Section 395 read Section 457, Penal Code. He further convicted the 8th accused, who is the third appellant, of an offence under Section 397, Penal Code, and also under Section 19 (f), Arms Act. He sentenced the appellants to various terms of Imprisonment. The appellants have appealed to this Court against that order of conviction and sentence.

(2.) ON the night between the 19th and 20th February, 1955, at about midnight dacoity was committed in the house of one Nandlal Motiram of the village of Bhokar. At that time about 15 to 18 persons, who were armed with deadly weapons like guns, swords, spears, and knives, forcibly entered the house of Nandlal Motiram and removed property worth Rs. 691/12/ -. It is the case for the prosecution that resistance was offered to the dacoits and gun-shots were fired as a result of which some of the dacoits were injured. The first accused was caught on the scene of the offence. There was another dacoit who was also injured by gun-shot and as he was unable to run away his head was cut off by his companions and was removed and the remaining dacoits ran away with the head of the dacoit. A complaint was lodged at the police station, Jalgaon, by one Manakchand Gulab and investigation was started. The police officers came to the village of Bhokar and arranged for sending the persons who had been injured by the dacoits to the Civil Hospital, Jalgaon, and they made 'panchnamas' of the scene of the offence and of the injuries suffered by various persons. Thereafter 15 persons were charge-sheeted and they were ultimately tried before the Additional Sessions Judge of East Khandesh at Jalgaon. It is unnecessary for us in this appeal to consider the evidence as against persons other than accused Nos. 2, 3, 8, 14 and 15 because their cases are not before us in this appeal. We will, therefore, confine our observations to the evidence against accused Nos. 2, 3, 8, 14 and 15 who are the appellants before us.

(3.) IT may be mentioned that as against the present appellants there is no evidence that they were identified at the time of the dacoity by any of the witnesses for the prosecution. It is not stated that any of the witnesses identified accused Nos. 2, 3, 8, 14 and 15 as amongst the dacoitt who entered the house of Nandlal Motiram and removed property. As against accused Nos. 3, 8, 14 and 15 also there is no evidence that they were found in possession of any property which was removed at the time of the dacoity. Only against the accused No. 2 there was the evidence that he had pointed out article No. 79, which is alleged to be the property belonging to Nandlal Motiram. after digging up the place wherein was lying buried in a shed belonging to the second accused. The learned Sessions Judge convicted accused Nos. 2, 3, 8, 14 and 15 upon evidence which may be regarded essentially as circumstantial evidence. It was not disputed in the trial Court nor on the state of the record in this Court can it be disputed that there was a dacoity committed on the night between the 13th and 20th of February, 1955, in the house of Nandlal Motiram, and that at the time of the commission of the dacoity the dacoits were armed with deadly weapons, and those persons were required to be treated in the Civil Hospital at Jalgaon. The only question which falls to be determined in this appeal is whether amongst the dacoits were accused Nos. 2, 3, 8, 14 and 15.