RAMESH SADASHIV KHATPE Vs. VIJAY SHANKAR SHELAR

JUDGEMENT

(1.) These appeals are directed against the judgment and order of the Sessions Court in Sessions Case NO. 196 of 1989 and Sessions Case No. 254 of 1989. Accused No. 1 has filed Appeal No. 531 of 1990, accused No. 2 has filed Appeal No. 491 of 1990 and Accused Nos. 3 and 4 have filed the Appeal No. 454 of 1990. All the accused have been convicted under Section 394 r/w 34 of the Indian Penal Code and sentenced to suffer R.I. for 3 years and payment of fine of Rs. 3,000/. They are further convicted for the offence punishable under Section 304 part II r/w 34 IPC and sentenced to undergo R.I. for one year and payment of fine. Besides this, the accused are convicted for the offence punishable under Section 120B IPC. Accused Nos. 1 and 3 have been convicted for the offence punishable under section 323 r/w 34 IPC and sentenced to payment of fine of Rs. 100/each and in default to undergo R.I. for seven days. Appeal No. 580 of 1990 has been filed by the State and is an appeal against the acquittal of the accused under Section 302 IPC. Appeal NO. 581 of 1990 is also preferred by the State for enhancement of the sentence imposed on accused No. 2. Since all the appeals have impugned the same judgment, we have heard them together.

(2.) The case of the prosecution is that the accused No. 2 was to appear for his SSC examination and because he was not sure of securing good marks, he decided to achieve the desired results by having a dummy appear for him at the examination. He was told that this would cost about Rs. 10,000/. After some negotiations, accused No. 2 settled for paying Rs. 6,500/for procuring a dummy who would appear for him at the examinations. In order to obtain this amount, accused No. 2 with the help of the other accused decided to rob one Jagdishprasad Agarwal whom they knew carried a huge amount every Friday night from Pune to Karnataka. Jagdishprasad Agarwal used to hire a particular rickshaw every Friday from his shop where he sold milk products, go to Pune station with cash and and leave for Karnataka. He would return to Pune with the raw material required for his business. Since accused No. 2 knew of Jagdishprasad Agarwal's routine on Friday night, the accused intercepted the auto rickshaw in which he was travelling to Pune station and tried snatching the bag in which he was carrying the cash. When Jagdishprasad resisted, accused No. 2 assaulted him with a sword. The other accused assaulted the rickshaw driver, snatched the bag and fled from the scene of offence. Jagdishprasad got out of the rickshaw holding the left side of his chest where he had been stabbed and collapsed on the road. However, he asked the rickshaw driver to chase the accused who had fled in another auto rickshaw which was standing nearby. Since the rickshaw driver was unable to catch the assailants, he returned to the spot where Jagdishprasad was lying, after informing the family of Jagdishprasad. The victim was removed to hospital where he was declared dead before admission. The accused were arrested and charged for offences punishable under Sections 120B, 394, 302, 323 r/w 34 of the IPC. The trial was committed to the Sessions Court, Pune. The Additional Sessions Judge convicted the accused as aforesaid under Sections 394, 304 part II r/w 34 of IPC and under Section 120B of IPC while acquitting them under Section 302 of IPC. While sentencing the accused, the Sessions Court took into account the age of the accused who were then all in their early twenties.

(3.) Mr. Gupte, learned Counsel appearing for accused No. 2, urged that the prosecution case against the accused was false and and that the rickshaw driver who was the eye witness, PW4, could not have identified the accused when the incident occurred within two minutes according to the witness. He points out that the scene of offence was located about 45'away from an electric pole. The light emitted by it was shaded by a Gulmohur tree. PW4 would therefore not be able to see the assailants clearly, remember their faces and then identify them at the Test Identification Parade held about 4 months later when the incident occurred within two minutes, urges the learned Counsel. He also submits that the story of the prosecution is improbable inasmuch as PW4 claims to have chased the assailants who were in another rickshaw for a distance of over 10 kms, without informing the police when admittedly there were about 5 to 6 police stations enroute. According to the learned Counsel the recovery of the sword at the instance of accused No. 2, which has been proved by PW9, cannot be believed as the recovery has been made about 15 days later after the incident from an open field. The learned Counsel then submits that if at all we agree with the findings of the Sessions Judge that the accused No. 2 is guilty, a lenient view should be taken while sentencing them. He points out that the accused were all young boys in their early 20s when the incident occured. Accused No. 2 had undergone imprisonment for almost two years during the trial and thereafter till he was released on bail pursuant to the order of this Court. He submits that during this period of almost 18years, accused No. 2 has settled in lifeand is runninga business. He is married and has children. Uprooting him at this stage in his life would mean untold misery for his family and for accused No.