SUBHAYA PERUMAL PILLEY Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE two accused in Sessions Case No. 17/90 on the file of the Assistant Sessions Judge, Panaji, file these appeals against the judgment of the learned Assistant Sessions Judge passed on 7th November, 1994, whereby they were convicted under section 395 read with section 34 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for ten years. They were also sentenced to pay a fine of Rs. 5,000/- each and, in default, to undergo a further period of six months of Rigorous Imprisonment. Accused No. 1 filed Appeal No. 44/94 and accused No. 2 filed Appeal No. 45/94. Since the matter arises out of a common judgment, we propose to dispose of both the appeals by this common judgment.

(2.) THE appellants alongwith four other accused were charge-sheeted for offences of sections 395, 397, 307 read with section 34 of the Indian Penal Code.

(3.) ACCORDING to the prosecution, on 25th November, 1989 between 10 and 10. 30 a. m. the appellants alongwith other persons entered in the jewellery shop of P. W. 3, Digambar Raikar, at Mapusa and committed dacoity for stealing the gold ornaments worth Rs. 8. 50 lakhs at gun point. According to the prosecution, the accused asked P. W. 3 for bracelets and after removing them from the show case P. W. 3 showed them to the accused. One of the accused tried the bracelet on his hand and then kept it on the show case. In the meantime, P. W. 3 lowered his head in order to keep the remaining bracelets inside the show case and at that moment accused No. 2 Sunder Pilley, pressed on his temporal region, the pistol with his hand and the said other person pressed one more pistol on the other side of the temporal region and accused No. 1 placed a big knife on the neck of the driver Shivappa who was sitting inside the shop and another person in the gang told him to open the show case or else he would be killed on the spot and after the show case was opened, accused No. 1 came little forward with a bag and at that time two more persons came inside the shop and accused No. 1 told accused No. 2 to go out and bring the vehicle and keep the same near the door of the shop. In the meantime, one accused started collecting the gold ornaments and filling the bag with the same. At that time one Krishna came into the shop. He also was threatended by the accused at gun point. One Shri Shirodkar who came at that time inside the shop also was threatened by the accused. While, in the process of stealing the gold ornaments and putting in the bag, a person who was holding the pistol fired a shot on the driver Shivappa, but fortunately or unfortunately the said bullet did not hit Shivappa but hit the body of accused No. 1. On occurrence of this unexpected incident at the time of committing dacoity, all the members of the dacoity including the accused, left from the place in a Maruti van bearing No. GDI 6418. Further, the case of the prosecution is that the person who had hit the bullet was ultimately admitted to the Medical College Hospital and he was identified by the prosecution witnesses. In the course of their investigation police went to Bombay and caught hold of accused No. 2 and from his custody gold ornaments worth Rs. 26,000/- were recovered.