YESHWANT SAKHARAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal by accused 1 to 5 against their conviction under Section 395, I. P. C. , and the sentences passed upon them. The prosecution story briefly is that on the evening of 2-6-1955 at about 2-30 p. m. , witness Vithal was waiting for a bus at the bus-stand near Prabhadevi corner. He had in his pocket Rs. 20/ -. Accused 1 then pulled Vithal out of the queue and started beating him. He asked Vithal whether he had gone there to murder Baburao and Who had sent him for that purpose. He was then dragged to an open 'maidan' behind the Century Mills. The other four accused also joined accused 1 and questioned Vithal whether he had gone there to murder Baburao. Vithal was given a further beating in the 'maidan' and thereafter he was taken to a passage on the first floor of the chawl known as Rawate's Chawl. ' There all the five accused beat him. He was stripped of all his clothes, which were taken away by the accused. Thereafter he was allowed to go. Vithal then Went to his father's confectionary factory, which is also situated in that locality. There he met two factory servants, witnesses George and Bhat. He asked George for some clothes. George gave him a shirt and a pant. Vithal put on these clothes and then accompanied by George and two other persons. Dattaram and Vasant, he went to the residence of accused I in Champa Wadi. Accused 1 told them that the boy who had gone to murder him, had been stripped of his clothes, and sent away. Thereafter they returned to the factory. Vithal went to his house and then accompanied by his paternal uncle, witness Kalekar, he went to Dadar Police Station. From there he was sent to the K. E. M. Hospital. Dr. Jhaveri, who examined him, found that he had a contusion on the right side check and an abrasion in the Sacro ilise region and that he was complaining of pain in the right elbow. After Vithal returned from the hospital, his statement was recorded and thereafter the investigation of the offence commenced. Accused 1 to 4 were arrested on the same night, while accused 5 was arrested on 7th June. Thereafter they were tent up for trial on the charge of committing dacoity. The case was tried by a jury, who returned a unanimous verdict of guilty against the accused. The learned Additional Sessions Judge, Greater Bombay, agreed with the verdict of the jury in regard to accused 1. Although the learned Judge was of the opinion that the evidence against accused 2 to 5 did not appear to be sufficient, he did not consider that the Jury's verdict was perverse. He therefore accepted the Jury's verdict and convicted all the accused under Section 395, I. P. C. and sentenced accused 1 to 5 years' rigorous imprisonment and the remaining; accused to 3 years' rigorous imprisonment each.

(2.) AS the accused were tried by a jury, it is not open to us to go into the evidence unless it has been shown that the learned Judge's charge to the Jury contains any misdirections. The prosecution story in this case is that Vithal had been robbed of his clothes by the accused. Before the jury could hold the accused guilty under Section 305, I. P. C. , it was therefore necessary for the Jury to find that the accused had stripped Vithal of all his clothes as stated by him. Towards the end of paragraph IS of his charge to the Jury, the learned Judge stated that the prosecution wanted to corroborate the version given by Vithal by the evidence of George and Bhat regarding the fact that he had gone to them naked and borrowed the clothes. George in his Evidence has nowhere stated that when Vithal went to him, he was naked. He was questioned on this point and he has stated that he did not notice whether Vithal was wearing any clothes, then. George's evidence does not therefore corroborate Vithal's statement that he had been deprived of all his clothes by the accused. Bhat has also made different statements. In his examina-tion-in-chief he stated that he had been told by George at that time that Vithal had fallen down somewhere and wanted to change his clothes. At the end of his evidence, in reply to a question by Court, he has stated that after Vithal had put on the clothes given to him by George, he stated that his clothes and money had all been removed. This is inconsistent with his earlier statement that Vithal wanted change of clothes. The learned Judge's statement to the Jury that Vithal's story about the removal of his clothes was corroborated by George and Bhat is therefore not correct. There was therefore a misdirection on a material point; for, it is possible that if the Jury had been told that George's evidence did not corroborate Vithal's statement that he had gone to him naked and that he had made different statements on this point, they might not have convicted the accused of the offence of dacoity. It is consequently necessary for us to go into the evidence in order to decide whether the jury's verdict is correct.

(3.) I might also mention that there are other statements in the learned Judge's Charge to the Jury which are not quite accurate. The evidence of two witnesses, Tukaram Mhatre and Eknath Velankar, given in the Committal Court has been brought on record under Section 288, C. P. C. In paragraph 14 of his Charge, the learned Judge observed: "the prosecution intended these witnesses to say that on the night in question they had seen Vithal being dragged by accused 1, that accused 1 was listing him and that later on they saw Vithal naked. Unfortunately these two witnesses have not only not deposed as expected by the prosecution, but they have further gone the length of saying that they were arrested, made to say under pressure whatever they had stated in the Committal Court".