SUBHASH HARIRAM RAJBHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants, who are original accused nos.1 to 5, have preferred this appeal challenging the judgment and order passed by 3rd Ad-hoc Additional Sessions Judge, Bombay in Sessions Case No.791 of 2005, whereby all the appellants were convicted for the offences punishable under Sections 399 and 402 of the I.P.C. They were sentenced to undergo R.I. for 5 years and to pay a fine of Rs.1,000/- each for the offence punishable under Section 399 of the I.P.C. and were sentenced to undergo R.I. for 3 years and to pay a fine of Rs.500/-each for the offence punishable under Section 402 of the I.P.C.

(2.) Prosecution case in brief is that, on 11-8-2005 at about noon time, P.W.1 Head Constable Sunil Hosalkar, P.W.5 API Jitendra Koli and API Patil got reliable information from a police informer that in one room of Sabre Chawl 4 or 5 persons had assembled with weapons. In view of this information, police decided to raid that place. Accordingly two panch witnesses were called and the police party alongwith the panchas went to the said spot at about 12.45 hours. The police party was divided into two groups. One group stood near the door of the room and some staff members stood near a window of that room for a few minutes. They heard conversation, which was going on inside the room. As per the F.I.R. lodged by Head Constable Sunil Hosalkar, police heard somebody in the room saying that "Babloo Saman Thik Kiya Kya Nahi, Saman Barabar Hai, Dukan Ki Zhadi Karke Aya Ke Nahi, Jagha Ka Zadi Ho Gaya Hai." After hearing some conversation police party became sure that the persons inside the room had assembled with weapons for committing dacoity. Therefore, police party led by API Koli pushed the door and entered into the room. API Koli pointed his service revolver to those five persons, who were present in the room. After that personal search of all five persons was taken in presence of the panch witnesses. One country made revolver with one live round and 2 separate live rounds were found in possession of accused no.1 Subhash. One Kukri was also found inserted into right side of his pant. Accused no.2 Ghanshyam was found in possession of one kukri. Accused no.3 Ramdular was found in possession of country made revolver with one live round and one separate round in the right pocket of his pant. Accused no.4 Bablu was found in possession of country made revolver with one live round and two more live rounds in right pocket of his pant. Accused no.5 Dinesh was found in possession of country made revolver with one live round in it. All these weapons were separately wrapped in polythene bags and were seized and sealed under panchanama. Accused persons and the weapons were taken to the Kurar Police Station where F.I.R. was lodged by Head Constable Sunil Hosalkar.

(3.) According to the prosecution on the next day, accused no.1 Subhash made a statement before the police that he was ready to show the shop where they had kept watch to commit robbery. Accordingly he led the police and the panchas to jewellery shop of one Mahendrakumar Jematraj Jain. His statement was recorded under memorandum and about showing the shop a panchanama was prepared. Police recorded statements of some witnesses from the locality. Material seized in the incident was referred to Chemical Analyser and the Ballistic Expert's report revealed that country made revolvers or shotguns could be used as weapons and cartridges could also be fired from the said shotguns. After investigation charge-sheet was filed by API Koli for the offences punishable under Sections 399 and 402 of the I.P.C., Sections 3 and 4 read with Section 25 of the Arms Act and Section 37(1)(a) read with Section 135 of Bombay Police Act.