(1.) This appeal arises from the order of conviction and sentence passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case no. 732 of 1984 on 31/10/1990. By the said order, the appellant-accused no.4 has been convicted for the offences punishable under Section 395 and Section 397 read with Section 395 of IPC and sentenced to suffer RI for seven years. While admitting the appeal on 17/12/1990 the bail granted to the appellant during the trial was continued and, therefore, while this appeal has been pending, the appellant continued on bail all along.
(2.) As per the prosecution the accused persons i.e. Manohar @ Manya Ramchandra Shinde, Rakesh Ramswarup Sharma, Pramod Ramnath Malhotra and Mohammed Nabi Yarmohammed Shaikh (present appellant) along with two absconding accused i.e. Mohammed Mussa Gulam Hussain Shaikh and Juberuddin Sartajuddin Munshi and one deceased accused Alan Phurtun Misquitta had on 3/5/1981 at about 10 p.m. at Kuality Restaurant committed dacoity at the threats of the deadly weapons like sword etc. and collected cash, ornaments, wrist watches collectively valued at Rs.39,650/-. The said Kuality Restaurant is located near Band Box, Dr. Anil Besant Road, Worli, Bombay 400 018 and at the relevant time it had some customers who were either enjoying their meals or snacks. Amongst such customers were, Chandrakant Ganesh Limaye (PW 1), Dr. Anant Nandkumar Patkar (PW 2), Ramesh Kantilal Shah (PW 3), Sukhadeo Gumanirao Thakur (PW 4), Chetan Hasmukhalal Bhagat (PW 5) and the accused entered the Restaurant, some of them remained near the entrance door and the others came inside the Restaurant and rushed to different places/tables therein. One of them hit the sword on the table and uttered the threats to the customers there saying, "koyi Jagase Hilna Nahi", "Kimti Chije Nikalo". After sometimes one of the dacoits started collecting valuables from the customers and one was standing near the entrance door and he asked the wife of PW 1 to take out her Mangalsutra. While she was taking out her Mangalsutra, the dacoit pulled up the same and by this time other dacoits had collected valuables from other customers in the Restaurant and all of them fled. The information of this dacoity was given on telephone to Worli Police Station at about 10 p.m. PSI Sawant who was officer in-charge of the police station transmitted the message about the dacoity and, therefore, Police Inspector Shri Sankpal and SI Sawant went to the Kuality Restaurant. They saw all the customers in the Restaurant were scared and they met the Manager of the Restaurant Mr. Bhardwaj. He claimed to have lodged complaint with the police on the same day at about 10 p.m. PW 12 Krishna Dhondiba Anpadh took over the investigation and on 13/5/1981 arrested accused Rakesh Sharma, on 22/5/1981 he arrested accused Pramod Malhotra and accused Manohar Shinde, on 3/6/1981 he arrested accused Alan Misquitta. At the instance of accused Misquitta on 3/6/1981 the I.O. recovered one Mangalsutra from the shop of one Sukhraj Bhalchandra Jain on Tejpal Road, Vile Parle under a panchanama Exh.58. On 4/6/1981 accused Mohd. Nabi Yarmohammed Shaikh (present appellant) was arrested and on 8/6/1981 accused Juberuddin Sattaruddin came to be arrested from Bandra Govt. Colony and the remaining investigation was proceeded, including the T.I. parade of these arrested accused. On 10/6/1981 accused Mohd. Musa Gulam was arrested from Khar. It appears that on 10/6/1981 while in custody accused Misquitta committed suicide. The accused while in custody made some disclosures of having handed over some of the articles collected in the dacoity and, therefore, memorandum was drawn and some articles were recovered, more particularly the articles were recovered from PW 7 - Audhot Laxman Parab at the instance of the present appellant and PW 6 - Vilas Sadashiv Kugaonkar was a panch witness for the same. On completion of the investigation, charge-sheet was filed against only four accused and out of the remaining, one was dead and two were shown as absconding.
(3.) The learned Judge of the trial court, on appreciating the evidence adduced before him by the prosecution, recorded a finding that prosecution was not able to prove any of the offence against accused nos.1 to 3. The appellant, as noted earlier, along with the missing accused is guilty of an offence punishable under Section 395 and Section 397 read with Section 395 of IPC. The picture that emerges from the impugned order of conviction and sentence now is that one accused has been convicted and sentenced, one died and two are absconding. Section 391 of IPC states that when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". As per Section 390 of IPC, in all robbery there is either theft or extortion and the term "robbery" is independently defined. Section 392 of IPC prescribes punishment for robbery which is RI for a term which may extend to ten years and fine and for the offence of attempt to commit robbery within the meaning of Section 393 the punishment prescribes is RI for a term which may extend to seven years and fine. Therefore, the foremost question that is required to be decided is, whether the conviction of the appellant under Section 395 and Section 397 read with Section 395 of IPC is sustainable.