RAMU DHANBAHADUR THAPA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two appeals can be disposed of by a common judgment, as the same take exception to the self-same judgment and order passed by the 10th Additional Sessions judge, Pune dated 10th May, 2004 in Sessions case No. 120 of 2003. Criminal Appeal No. 927 of 2004is filed by Accused No. 8, whereas criminal Appeal No. 845 of 2004 is filed by accused Nos. 1 to 7, 9 to 13. All the accused/ appellants have been convicted for offence punishable under section 395 of I. P. Code and sentenced to suffer R. I. for a period of 5 (five) years and to pay fine of Rs. 1,000/- each in default r. I. for a period of three months.

(2.) Briefly stated, the prosecution case is that on the fateful night, the complainant Anil babanrao Rajguru (P. W. I) was employed as driver in the company where Dr. Sumantran was the Executive Director. On 3rd October, 2002 at about 6 a. m. the complainant and Dr. V. Sumantran left for Mumbai by car from Pune. On 4th October, 2002 after the official meeting of Dr. V. Sumantran concluded, they left for pune from Worli, Mumbai by road at about 6. 45 p. m. It is the prosecution case that car had reached at the spot where the incident is alleged to have taken place at around 9. 30 p. m. The spot is located on the express highway. According to the prosecution, the car first jumped on the stones which were kept on the road and then front tire got punctured. Dr. Sumantran advised the driver (P. W. I) to park the car at the road side. After the car was parked, P. W. I got down from the car to replace the damaged tire. While he was in the process of removing the said tire, he saw about 6 to 7 persons coming out of bushes from the road side with weapons like swords. One of them was wearing baniyan and half pant, having sword in his hand. He assaulted P. W. I - Anil rajguru causing injury near his left eye. According to the P. W. 1, he immediately caught hold of the miscreant and both of them fell down on the road. Somehow P. W. I rescued himself and came near the car. He asked Dr. Sumantran to lock the car from inside. He also asked Dr. Sumantran to handover pistol to return the attack of the miscreants. On hearing that, miscreants who had collected, started pelting stones on the car, which in turn damaged the car. According to the P. W. 1, he then told Dr. Sumantran to get down from the car and run away from the spot. Dr. Sumantran accordingly, came out of the car and took lift from one truck which was proceeding towards Pune. P. W. 1 thereafter, ran towards Pune side while he was being chased by the miscreants. He spotted one Tata Sumo jeep going towards Pune and halted that sumo jeep which dropped him near toll naka (Octroi naka) , where P. W. I was given first aid in the ambulance standing near the toll naka. Later on p. W. 1 informed the police station. On receiving such intimation P. W. 4 - Vijaykumar Dattaram bhoite, I. O. reached at toll Naka, where the statement of P. W. 1 came to be recorded. By that time, P. W. 1 had learnt that the miscreants after damaging the car had taken away one palm top computer, one Nokia mobile belonging to dr. Sumantran, one small tape recorded of Soni make, Bags of complainant and of Dr. Sumantran. That fact has been noted in the complaint, in his statement which is registered as FIR bearing C. R. No. 146 of 2002. After registering the offence, investigation commenced. The accused came to be arrested in connection with the present offence on 22nd november, 2002. The accused were in custody of Lonavala Police Station in connection with some other offence. Their custody was transferred to Wadgaon Mawal police station, where P. W. 4 was attached and was investigating the case, which had occurred within his jurisdiction. During the course of investigation, on 5th October, 2002, at about 7 a. m. , spot panchanama came to be prepared. Spot panchanama gives description of stones as well as broken glasses of the car. Car was not on the spot at the relevant time. No separate panchanama regarding damage caused to the car by the miscreants has been recorded. Be that as it may, the evidence of the Investigating Officer (P. W. 4) indicates that he sent requisition to the tahasildar on 1st January, 2003 for conducting test identification parade of the accused persons. Pursuant to the said requisition, test identification parade was held by the Tahasildar on 11th february, 2003 in Tahsil Office. Test identification parade was held in three rounds. Accused Nos. 3, 13, 6 and 4 were produced in the first round; whereas Accused No. 1, 10, 9, 12 were produced in the second round; and accused Nos. 7,2,11,8 and 5 were produced in the third round. Interestingly, the dummies were common in all the three rounds, which fact can be culled out from the evidence given by the prosecution witnesses. Charge-sheet came to be filed on 17th February, 2003 immediately after the identification parade was held. The trial proceeded before the Sessions Court, who in turn framed charge. Accused persons pleaded not guilty to the charge and claimed to be tried. The prosecution examined P. W. 1, who is witness to the incident and complainant. No other eye witness has been examined by the prosecution, including Dr. Sumantran. Besides, prosecution has examined Tahasildar (P. W. 2) and the panch witness regarding spot panchanama Exh. 34 as p. W. 3. In addition, the prosecution examined investigating Officer P. W. 4. On the basis of this evidence, the trial Court proceeded to record finding of guilt against the appellants for offence punishable under section 395 of I. P. Code.

(3.) The trial Court essentially found that the testimony of prosecution witnesses has been corroborated. If is further found that the testimony of the prosecution witness remained unshaken. There was no enmity with the accused to involve them falsely in the crime. In the circumstances, the trial Court has noted that the evidence on record was trustworthy, therefore, believed the testimony of witnesses. The trial court has also noted that even though there was no recovery in this case, however, from the testimony of the complainant and the prosecution witnesses, it was apparent that more than five persons attacked the complainant with deadly weapons. Moreover, assailants have been identified by the prosecution witness, in particular P. W. I, during the test identification parade as well as in Court. Essentially on this reasoning, the trial Court proceeded to record finding of guilt against the appellants. This decision is the subject matter of challenge in the present appeal.