AMITAB SUNIL DAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - This is an appeal directed against the Judgment dated 12-1-1994 in Sessions Case No. 289 of 1990 on the file of the Sessions Judge at Greater Bombay. Heard the learned counsel for the Appellant and the learned Additional Public Prosecutor for the State.

(2.) THE Appellant and three others were prosecuted by the police for various offences. It appears one of the the accused viz., Accused No.4 came to be discharged. Charges were famed by the trial Court against the Appellant and two others for offences under Section 412 read with Section 34, 393, 394 and 393 read with Section 397 I.P.C. ;and also for an offence under Section 135 of the Bombay Police Act. It appears Accused No.2 subsequently remained absent and ultimately absconded. The case against him was split up. The trial Court proceeded only against Accused No.1 and 2. After trial, the learned Sessions Judge convicted the Appellant Amitab Das, who was the first Accused in the Court below and also the second accused Parvez Ahmad Fahim Mohanad, for offence under Section 452 read with Section 34 I.P.C. and sentenced him to suffer R.I. for one year and fine of Rs.400.00 each or in default to suffer R.I. for three months. Further Accused Nos. 1 and 3 were convicted under Section 393 read with Section 397 I.P.C. and sentenced to suffer R.I. for 7 years. Accused Nos. 1 and 3 were further convicted under Section 135 of the Bombay Police Act and sentenced to suffer R.I. for 15 days. Accused No.3 was acquitted of the charge under Section 394 of the I.P.C. All the substantive sentences were directed to run concurrently. Being aggrieved by the conviction and sentence, the original first Accused has come up with the present Appeal.

(3.) THE Appellant's defence is that he did not commit such an offence. However, he admitted his presence in the flat along with the two accused. His version is that he had gone there to demand money from P.W.5 for the release of the fourth accused, who is since discharged, who was in custody since he had been arrested in a criminal case at the instance of P.W.5. He also denies the possession of any weapon at the time of incident. His arrest at the spot is admitted. The learned Counsel for the Appellant has taken us through the deposition of the witnesses and contended that there is nothing to show that Accused No.1 was armed with weapon or he used the arms and therefore, charge under Section 397 of the I.P.C. is not made out. He also commented on some of the discrepancies in the evidence and improbabilities. He therefore, submitted that the Appeal may be allowed so far as the Appellant is concerned. On the other hand, the learned Additional Public Prosecutor appearing for the State supported the impugned judgment.