PRABHAT MAHADAV NAIK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These two appeals are preferred by original accused Nos.1 and 2 respectively challenging the order of conviction for the offence punishable under section 328 & 379 of I.P.C. to undergo R.I. for four years and to pay fine of Rs.200/- on the first count and to undergo R.I. for one year and to pay a fine of Rs.100/- on the second count, passed by the Additional Sessions Judge, Sessions Court, Greater Bombay (Court No.35) in Sessions Case No.248/05.

(2.) In all six persons, including the present appellants, were put to trial for the offences punishable under section 328 and 379 r/w. 34 of I.P.C. Out of them, accused No.1 Prabhat, No.2 Rajesh and No.5 Anand were convicted and sentenced as above, while accused Nos.3, 4 & 6 were acquitted. Accused No.5 has not preferred any appeal, as per the information given by the office.

(3.) The prosecution case in brief is that P.W.1 Sandeep Dhananjay Awtade, a resident of Tasgaon, Dist. Sangli, used to come to Bombay for purchase of toner for the Xerox centre owned by his father. For the said purpose, he left Tasgaon on 30th November, 2001 by night train and reached Bombay on 1st December, 2001 at 6.00 a.m. On that day, he purchased the toner worth Rs.3,000/- from Patel Enterprises in Mody Street. After making the purchase, he wanted to go to Pune to meet his cousin Anand Chandrakant Awtade. For this purpose, he boarded Hyderabad Express from Chhatrapati Shivaji Terminus, Mumbai. As it was a general compartment, he occupied the vacant space on the loft meant for keeping luggage of the passengers. The departure time of the train was 12.35 hours in the afternoon. Before the train left the station, two persons, who were later identified as accused Nos.1 & 5, also boarded the train and climbed the same loft and sat by the side of P.W.1 Sandeep. After the train left, one of them began chitchatting with P.W.1 Sandeep. The said person disclosed his identity as A.G.Anand and also that he was carrying business at Fashion Street, Mumbai. When the train stopped at Dadar station, he alighted and then came back with mango fruity boxes and offered one to P.W.1 Sandeep. P.W.1 Sandeep consumed the same. Another box of mango fruity was consumed by that person himself. As an effect of the said fruity, P.W.1 Sandeep fell asleep or lost his consciousness after the train left Kalyan. He regained consciousness at about 9.00 a.m. on the next day i.e. 2nd November, 2001 and found himself lying outside Pune Railway Station. He found that his bag containing clothes and the toner boxes, which he had purchased at Bombay and also his valet containing approximately Rs.450/- as well as gold bracelet, weighing about 22 gms. were missing. He also lost his Ganesh pendent. Even though he had regained consciousness, he was not feeling well. He walked down to the house of his cousin Anand Awtade and reached there at about 1.00 p.m. As Anand was not at his house, Sandeep lied down outside the house. After some time, Anand Awtade came and took him inside the house. He again fell asleep. At about 8.30 p.m. he woke up and narrated the whole episode to Anand Awtade. Taking into consideration his physical condition, he was taken and admitted to Meera Nursing Home during that night. Next morning, police officer from Khadak police station came to Meera Nursing Home and recorded his statement which was treated as F.I.R. In that F.I.R., he gave description of the two persons, who were sitting by his side and he also described the articles which were allegedly stolen away by the culprits. On the basis of his report, crime No.226/01 came to be registered at Dadar Railway Police Station, where the crime was committed. For quite some time, there was no progress in the matter.