DHARAMVIJAY CHANDRU SHEDAGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this common Judgment, all the three appeals are disposed of.

(2.) These appeals are filed by the accused Nos. 1, 2 and 3 respectively against the Judgment and Order passed in Sessions Case No. 2 of 2003 along with Sessions Case No. 617 of 2003 dated 20th October, 2004. The appellants were tried for having committed offence punishable under section 450 read with 34 and 307, 337 read with 334 and 392 read with 397 of Indian Penal Code. The accused were convicted of the offence punishable under section 392 read with 397 of Indian Penal Code. They were however, acquitted of the offence punishable under section 450 read with 34, 307 and 337 read with 34 of Indian penal Code. The charge under section 392 read with 34 was dropped as the accused were convicted under section 392 read with 397.

(3.) Briefly stated, the prosecution case is that on 10th September, 2002 at about 8. 15 p. m. two persons entered a ready-made garments shop in the name of "lovely Collection" on the N. C. Kelkar Road, Shivaji Park, Mumbai, posing themselves to be customers. It is stated that at the relevant time other 7 or 8 customers were present in the shop. The two persons selected four pants and five shirts. They went near the cash counter. However, instead of paying the amount of Rs. 4,349/-, which was payable as per the bill, one of them removed pistol from his pocket and the other person whipped out a chopper concealed in his pant. Those persons at the point of weapons asked all other persons in the shop to remain quiet and not to move. It is stated that one of them claimed that they belonged to gang of Amar Naik. It is the prosecution case that at the point of weapons those persons then removed cash lying in the counter to the extent of rs. 33,271/- and threatened the shop-keeper as well as his servants and other customers not to chase them. It is stated that after walking out of the shop they went up to a taxi which was waiting outside the shop on the opposite side of n. C. Kelkar Road. One other person was seen waiting near the taxi with a chopper in his hand. The two persons rushed towards the taxi and all the three persons including the person who was standing near the taxi boarded the taxi. This scene was witnessed by the shop-owner Manish Kanji Patel and his uncle deoraj Dharamshi Patel as well as their servants and other customers. Manish patel-complainant (P. W. 1) as well as his uncle claimed to have chased the taxi, in which the three accused had attempted to escape. When they were chasing the taxi, they were giving shouts as "chor-Chor". Hearing those shouts, some police personnel who were on petrolling duty in the said area also started chasing the taxi. The taxi proceeded up to Gadkari Chowk and stopped on account of traffic signal. In addition to the police personnel who were chasing the taxi, there were other police personnel on duty near the chowk, who also rushed towards the taxi. The police personnel attempted to catch-hold of the three assailants when they alighted from the taxi. The assailants however, gave threats that they should not be chased, failing which they will open fire. It is stated that one of the assailant even attempted to fire but was unsuccessful. The police however, succeeded in overpowering the said person who had attempted to open fire. During the commotion, the two other assailants managed to escape from the scene. The assailant who was nabbed on the spot was brought to the Shivaji Park Police station. On enquiry he disclosed his name as Dharmavijay Chandru Shedge. On taking his personal search in the presence of two panchas, police recovered one country-made revolver along with three live cartridges and three empty cartridges. Police also recovered 200 coins of Rs. 5/- denomination and four pants and five shirts, which the assailants had taken away from the shop of "lovely Collection". In the preliminary interrogation, the said assailant disclosed the names of his companions as Raju Vasant Patkar aged 35 years and Mohd. Faruq Shaikh aged 30 years. This fact has been recorded in the complaint given by Manish Kanji Patel, which was reduced into writing (Exh. 17). After registering the complaint, police proceeded with the investigation. The accused no. 2 Raju Vasant Patkar was arrested on the next day i. e. 11th September, 2002. Both the accused Nos. 1 and 2 were produced for test identification parade on 27th September, 2002 which was conducted in the presence of Special Executive magistrates (S. E. M. ) (P. W. 5 and P. W. 10). Accused No. 3 Abdul Razak Salim inamdar @ Faruq Shaikh came to be arrested on 27th June, 2003. He was put up for test identification parade conducted under the supervision of S. E. M (P. W. 9) on 15th July, 2003. Initially, as accused No. 3 was not arrested and investigation so far as accused Nos. 1 and 2 was completed, charge-sheet came to be filed only against them. After arrest of accused No. 3 and completing further investigation, supplementary charge-sheet came to be filed. As the matter was triable by the court of Sessions, the case was remitted before the Sessions Court, which came to be numbered as Sessions Case No. 2 of 2003. All the accused pleaded not guilty and claimed to be tried. Accordingly, all the three accused were tried together.