UKLYA S O FAKRIYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal against the order of conviction and sentence passed by the learned Addl. Sessions Judge, Nanded, convicting the present appellants who were original accused Nos. 1 and 7 respectively of the offence under section 395 of the IPC and sentencing them to rigorous imprisonment for 5 years and to pay a fine of Rs. 200/- and in default to suffer rigorous imprisonment for 6 months.

(2.) The facts relating to the prosecution case have been fully set out in the judgment in appeal and since I am confirming the order of conviction passed by the learned Judge, I find it unnecessary to refer to all the facts stated by him elaborately. However, I will mention the salient facts :-- It may be stated here itself that the factum about the offence of dacoity is not in dispute at least at this appeal stage. The only question to be decided is as to the identity of the offenders. There were in all 7 accused arrayed before the trial Court. The identification of 5 of them has been held by the Court not to have been established. The case of the present appellants is that theirs also is the case of mistaken identity or, rather, falsely imputed identity.

(3.) The dacoity took place on 5-4-1982 at 10.30. p.m. The victims of the dacoity are Ganesh Ghadling Kadam and his friend one Babu Khajamiyan. Both of them are residents of Karkheli, Taluka Biloli. Ganesh is the Chairman of the Marketing Committee, at Dharmabad. On 5-4-1982, he had gone to Dharmabad on Motor Cycle. There he did some work and sold some of his agricultural products. Both of them started back for Karkheli at about 9.00 p.m. Ganesh was at that time having cash amount of Rs. 1980/- in currency notes of the denomination of Rs. 20/- each that is he had 99 notes of the denomination of Rs. 20/- with him. It is unnecessary to state as to why he was having the amount in exactly that form with him, because there is no challenge at the appellate stage to this aspect of the prosecution story. Ganesh and Babu were having also wrist-watches with them. The wrist-watch of Ganesh was of Traca Company make whereas the wrist-watch of Babu was a Oskar Company make. As these two reached the outskirt of the Karkheli village at about 10.30 p.m. at a distance of about half a kilometre from Karkheli, the prosecution contends, 7 accused tried before the Sessions Court, pelted a barrage of stones on the Motor Cycle and made Ganesh to stop the cycle. The miscreants surrounded the two, attacked them with stones, relieved them of the two wrist-watches and helped themselves with the cash amount of Rs. 1980/- kept by Ganesh in the pocket of his banian. Severe injuries were received by Ganesh in this incident so much so that his left wrist and his little finger of the right hand were fractured. It is the prosecution case that a pair of chappals of red colour was also stolen by the dacoites. Naturally the two victims raised shouts with the result that some of the villagers rushed to the spot. Upon approach of these villagers the dacoites took to their heels together with the booty of the dacoity. It is the prosecution case that when the dacoites talked amongst themselves, they used Lamani language. Further, all of them had concealed their faces by means of pieces of black cloth. But one of them was tall and mascular and another was short in height whereas the remaining were of the average height. The tall muscled man was wearing lungi whereas the other dacoites were wearing dothis. The case of the prosecution is that after committing the offence the dacoites ran towards the village Junni. The villagers arrived and the incident was reported to the Police. The investigation started and proceeded. The first information report was taken down by the Police Officer concerned at 9.30 a.m. on 6-4-1982. The appellant No. 1, (who will be referred to hereinafter as accused No. 1) was arrested by the Police on 18-4-1981. It is the prosecution case that on 22-4-1982 he made a confessional statement before the Police in the presence of the Panchas stating that he had concealed one of the watches, which was the subject matter of the dacoity, at a particular place, reference to which will be made presently. In pursuance of the confessional statement, the panchas and the Police accompanied the accused to the spot referred to and pointed out by him and watch of the Traca make was recovered by the Police from the place. It is the contention of the prosecution that the watch was concealed by accused No. 1 at such a place that only he could have knowledge about the place of its concealment. Accused No. 7 was arrested on 26-8-1982. According to the prosecution he also made confessional statement on 1-9-1982 of the nature contemplated by section 27 of the Evidence Act, expressing his readiness to point out the place where he had concealed the other watch. It is the prosecution case that he in fact did accompany the Police and the panchas to the particular spot and took out the watch from concealment. Here also it is the case of the prosecution that the place of concealment was such that it could be known only to the accused and to no one else. During the course of investigation, the Police arrested four more accused, accused Nos. 2 to 6 recorded the statements of various witnesses and verified the antecedents of the various accused. The first charge-sheet was filed by the Police on 16-6-1982, but accused No. 7 was absconding on that day. He was arrested on 26-8-1982. On 13-9-1982 charge was framed against accused Nos. 1 to 6 in respect of offence of dacoity under section 395 of the IPC. It appears that the charge was later on amended after the arrest of accused No. 7. Whatever that may be, there is no grievance on the part of either of the above appellants as regards the legality of or adequacy of the charge against them. The only question raised by them relates to whether the charge is proved against either of them.