SHAKTISINGH JASMATSINGH DUDHANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Accused No.1-Shaktisingh Jasmatsingh Dudhani is the appellant in Appeal No.746/2012 while accused No.2-Badshah Singh Ajabsingh Tak is the appellant in Appeal No.1230/2012. They were accused in S.C. No.375/2009 and 198/2010 before Extra Joint Ad Hoc Additional Sessions Judge, Thane. The said Court as on 27/4/2012 punished both of them for offence punishable under section 460 of Penal Code and sentenced them to suffer imprisonment for life.

(2.) The fact show that they are convicted in relation to incident dated 18/4/2009 when at about 2.30 a.m. in the night they broke into the house of complainant Sameer (PW-5). At that time they broke open the main door of flat of complainant, flashed torch light on his face. One person with pen knife removed gold chain from his neck and took him at the knife point towards his mother's bedroom while one person stopped at that place only. Others went to bedroom of his brother and in an effort to open the door, damaged the door frame. His brother (deceased) Sanjay opened the door and pushed three accused persons and tried to caught hold of those persons and complainant Sameer caught hold of one person and put him in the bathroom. That person is accused No.1. Other accused ran away. Remaining persons were scuffling with his brother Sanjay. One of the persons who ran away, came back and stabbed pen knife in the chest of Sanjay. One person hit rod on Sanjay's head. Sanjay sustained bleeding injury and fell down. Remaining persons ran away from spot. Sanjay shouted, neighbours gathered and deceased was taken to hospital. According to prosecution those persons were talking in Hindi.

(3.) Learned Advocate appearing for accused No.2 has relied upon inconsistencies in narration of eye witnesses viz., PW-3 and PW-5. She submits that Badshah was caught sometime in Sept. 2009 from Amravati jail and there is no incriminating material against him except identification. None of the eye witnesses have given details of his personality or his being a turban wearing Sikh. The test identification parade was conducted one year after the arrest and only complainant Sameer participated in it. There were only two Sikhs persons in test identification parade and Sameer identified accused No.2. She points out that though learned counsel for accused No.2 insisted for his physical presence during trial, other eye witnesses claimed that they identified him through Video Conference facility. Thus proper procedure does not appear to have been followed, recorded and has not been accordingly made part of trial. She submits that conviction of appellant is therefore totally unwarranted.