BALU DASHRATH PAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned counsel, appearing for the respective parties.

(2.) By preferring this appeal, appellants (original accused Nos. 1 and 2) challenged the order of their conviction for the offences punishable under sections 395 r.w. 397 of IPC as well as the sentence of rigorous imprisonment for seven years and fine of Rs. 1000/- in default, rigorous imprisonment for three months against accused No.1 and sentence of rigorous imprisonment for three years and fine of Rs. 500/-, in default rigorous imprisonment for two months against accused No.2, recorded by IIIrd Adhoc Additional Sessions Judge, Parbhani on 28-07-2005 in Sessions Case No. 63/2004.

(3.) The facts giving rise to this appeal are as under. The incident of dacoity was alleged to have taken place on 10-12-2003 in the field of PW8 Mohd. Qayyum, situated within the limits of village Hattarwadi. On the day of alleged incident, PW8 Mohd. Qayyum had engaged labours for collection of cotton. PW4 Sk. Rafique, PW5 Mohd. Akram, PW8 Mohd. Qayyum alongwith original accused No. 7 Sultam were in the field of PW8 Mohd. Qayyum. At about 4 to 4.30 p.m., accused No. 1 and 2 alongwith unknown person had gone to that field. Accused No. 1 disclosed his identity to the witnesses. Accused No. 7 who was present in the field made disclosure that the accused No. 1 who had gone there was known to accused No. 7 and he is from village Mandakhali. Accused No. 1 told PW8 Mohd. Qayyum that he was possessing gold and intended to sell it by lesser price. The witnesses thereupon made inquiry with him as to where was the gold. Then, accused No. 1 told them that in case they were ready to purchase the gold and if they were having cash, he would show the gold to them. He also disclosed that he was possessing 250 grams of gold and he would sell it for Rs. 40,000/- to Rs. 50,000/-. PW8 Mohd. Qayyum had gone to Manwat on a motor-cycle and returned back with cash of Rs. 50,000/-. On his arrival, accused No. 1 made inquiry as to whether Mohd. Qayyum had brought the cash . Mohd. Qayyum thereafter showed him the bundles of notes which he had brought and he kept it in the pocket of his pant. Thereafter, accused No. 1 told them that they will bring the gold and on that pretext, all three had gone in the standing crops in the neihbouring fields. Accused No. 1 alone returned back and disclosed that the gold was being brought within short time. The witnesses therefore should not leave the field. Those were the days of Ramzan. All the three witnesses, therefore, offered prayer. Accused No. 2 and their third companion returned back to the spot. That unknown person removed the bangles of yellow colour wrapped in the papers and placed them before the witnesses. That time, accused No. 2, by raising some sound gave signal. On that signal, 7 to 8 persons rushed to the spot from standing crops. Accused No. 2 threw chilly powder. Thereafter, there was attack on these witnesses. Cash of Rs. 50,000/- from PW8 Mohd. Qayyum was forcibly taken away by causing injuries to him by sharp weapons like sickle. When this incident of attack was going on, after receiving one blow of stick, PW4 Sk. Rafique ran away from that spot. He went on the road, and by one jeep, he had gone to Hattarwadi and disclosed the incident to the villagers. Thereafter alongwith the villagers, he returned back to the field. But PW5 Mohd. Akram and PW8 Mohd. Qayyum were not found in the field, hence, PW4 Sk. Rafique had gone to the Police Station. There, he came to know that injured were already shifted to the hospital. He thereafter rushed to the hospital. All the three injured witnesses were examined by PW1 Dr. Shaikh Arif, attached to Rural Hospital at Manwat. From the hospital, PW4 Shaikh Rafique went back to the Police Station, Manwat and lodged complaint (Exh-93). On his complaint, PW12 API Anwar Khan registered Crime No. 119/2003. As it was a serious offence, he gave intimation of the same to the Control Room at Parbhani and in that night itself, he proceeded in search of the dacoits. From Control Room, intimation was given to all Police Stations about this incident. PW6 Balkrishna Shejal, PSI attached to Pathri Police Station received information from Control Room. While he was on night petrolling duty, near village Devnandra, accused Nos. 1 and 2 were found in suspicious condition. He therefore brought them to the Police Station. In the Police Station, he took their search. Accused No. 1 was found possessing a bag. One Nehru shirt, one jar and cash of Rs. 11,000/- was found with him. Accused No. 2 was found possessing a bag. In the search of that bag, cash of Rs. 10,000/- was found. This search was taken in presence of panch witness PW3 Satwa Shelke. The articles found with accused No.1 and 2 were seized recording panchanamas (Exh-88 and Exh-89).