(1.) The three appellants were convicted under S.395 of the Indian Penal Code and each of them was sentenced to rigorous imprisonment for three years by the learned sessions Judge, Akola in Sessions Trial No. 8 of 1959 The charge against the appellants was that on 11th September 1958 they, along with two others, committed dacoity and looted grocery articles belonging to the Akbarali Syed Anwar and thus committed and offence under section 395 of the Indian Penal Code.
(2.) Akbarali Syed Anwar has a grocery shop at Khetri and his son-in-law Abdul Munaf is working in his shop. A few days prior to the last pola day, he sent Abdul Munam and one Jardarkhan rto make purchase from Khamgaon from the shopof one Haji Adam Bodabhai, with which shope he had on a Khata. Rs. 500 were paid by him for being paid to the Khamgaon shop towards his previous dues. Abdul Munaf and Jardarkhan left Khetri on 9th September 1958 and reached Khamgaon via Balapur in the evening Rs.500/- were paid in theshop of Haji Adam Bodabhai and Abdul Munaf and Jardarkhan stayed overnight at Khamgaon. On the next day, Abdul Munaf, purchased grocery articles worth Rs.900/- and Jardarkhan purchased articles worth Rs.600/- consisting of wheat, edible oil, gram dal, cocunts Bidis, betelnuts etc. These rticles were given from the shop by one Abu who, it appears, wrote chits bearing Akbaralis name and put those chits on the oil this which were purchased. A torch of 2 cells was also purchased byAbdul Munaf from Taheri shop, at Khamgaon. On the 10th in the evening a truck was engaged and the goods were loaded into that ruck and at about 8-30 p.m Abdul Munf and Jardarkhan left Khamagon. They appear to have been held up at Balapur on accunt of the rains and on 11th September at 11 a.m. they reached Babhulgaon where the truch had to be unloaded because there was only Kacha road from Babhulgaon to Khetri. In accordance with the instructions left at Khetri 21, donkeys had been sent to Babhulgaon at about 1 P.M. for taking these articles to Khetri 21 donkeys had been sent to Babhulgaon at about 1 P.M. for taking these articles to Khetri. The owners of these donkeys were Govinda, Mara, Sheoram and Motiram. The grocery articles were loaded on these 21 donkeys The articles purchased by Abdul Munaf were loaded on 12 donkeys belonging to Mara and Govinda, while the grocery articles purchased by Jhardarkhan were loaded on 9 donkeys to wards Khetri. Abdul Munaf and Jardarkhan asked them about the remaining 12 donkeys, but both of them told them that the donkeys would come soon. The party thereafter proceeded to Chatari. It may be mentioned that the distance. Then shouts and abuses were hared by them and Abdul Munaf flashed his torch to see what was the matter, when he saw the present apellants and two others. According to the prosecution. Abdul Munaf knew accused Nos. `1 and 2 by their names and the other three by their faces. Accused No. 1 Bakshia, it is alleged, put a sickle around Abdul Munaf's neck and someone snatched the torch from is hand. It is the prosectuion case that the dacoits, who were coming from the posite direction, asked sheoram to get down from the donkey and sheoram, being frightened, got down from the donkey and went back running towards Motiram. It apears that when the dacoits approached. Abdul Munaf and Jardarkhan, Sheoram and Motiram ran away with the 9 donkeys towards Khetri. When Abdul Munaf was attacked by one of the dacoits, Jardarkhan went ahead and asked them what the matter was, and the accused are said to have rushed at Jardarkhan also. Accued No. 1 is the alleaged to have put his sickle round jardarkhan neck, but Jardarkhan managed to escape. Abdul Munaf were running to Khetri and told Akbarali,who was sitting in the groery shop, that accused No. 1 Bakshia and accused No. 2Rustum and three other Mahars of Chatari had tried to loot their goods. In the meanwhile sheoram and Motiram arrived with the 9 donkeys. The goods on those donkeys with the were unloaded and sheoram and Motiran went away to their respective houses. Within a short time thereafter, Jardarkhan and Govinda arrived at the shop. According to the prosecution, Govinda and Mara and it appears that the dacoits, according to the prosecution, lotted goods from 4 of these donkeys. Subsequently the remaining 8 out of the 12 donkeys arrived at the shop with goods loaded on them and these goods also were unloaded. Akbarali in the meanwhile personally went to the house of the Police Patil of Khetri, one Tulshiram, and gave him information about the incident. It seems, however, that Tulshiram told Akbarali when he wentto the village limits that the sopt where the offence appared to have been committed was within the jurisdiction of the Police Patil of Chatari and, therefore, a complaint should be loedged with the Police Patil ofthat village. That is why Akbarali, Tulshiram, Jardarkhan, Govinda and two Chowkidars proceeded towards the scene of offence, when thy met at a short distance Mara who told them that the dacoits have taken away his cap and looted keys goods from 4 donkeys. It seems that the 4 donkeys also arrived there without the goods on their backs and thereafter the party reached the scene of offence and found there one tin of edible oil, two saddles of donkeys and a chaddar belonging to Abdul Munaf lying there. The party proceeded to the village Chatari, but Mara who was feeling tired returned back to Khetri. At Chgatari Akbarali and his comapnions went to the house of UTTAMARAO Police Patil. There Akbarali lodged at written complain before him saying that accused Nos. 1 and 2 and three other Mahars had looted goods belonging to him from 4 donkeys at a distance of about 2furlongs from Chatari. Uttamaraao Patil accepted the complaint and wrote and endoresment and should have forwarded the same to the Police station at Channi which, it appears is at a distance of about 2 miles from Chatari as well as from the village of Khetri. But it seems that a Maramari had taken place in the grocery shop of one Sidaji at Chatari on the same night and information about this incident had already been sent to the police station at channi. That was why his party that the Police sub Inspector of Channi would soon arrive at Chatari and therefore, they shoud wait there fro some time, so that the compliant of Akbarali could be handed over to the police Sub-Inspector Personally. Mohd, Awar Mohd. Sarwar, Police sub Inspector f Channi, arrived at the village of Chatari at about 10-30 P,M. He first visited Sidajis shop and arrived at the villag Chavdi at about 11 P.M. and as soon as he arrived there Akbarali handed over his as written complaint to him, which is about Exhibit. P,.1On receipt of the complaint, the sub Inspector went to the scene of offence where one tinn edible oil, two donkey saddles, one Chaddar, and empty box and an old gunny bag were found lying there and all these articles were attached under seizure memo Exihibit p4 . A panchanama (Exhibit P-3) regarding the scene of offence was also made there. When the sub Inspector went to the Maharwadi at Catari, accused Nos1 and 2 were found in their respective houses and both of them were taken to the village chavdi for interrogation. On the next day, i.e, on was the 12th at about 6.30 a.m., the next day, i.e., on the 12th at about 6.30 am. the sence of offence was visited by the Sub- Inspector along with the Panchas and the complainant Akbarali. When the neighbourhood was inspected, a wheat bag was found at a distance of about 35 paces from the scene of offence in a field in which cotton crop was growing. The wheat bag (Art F) was attached under a seizure memo (Exhibit p-6) and and a distance o 40 paces from this spot a box containing Bidids, betelnuts, etf. was found. That was attached under a seizure memo (Exhibitp-7) and a panchanama (Exhibit p-5) regarding the place where these articles were found was also made. After the sub Inspector returned to the village, accused No. 1 and Bahkshia was called and questioned in the presence of two panchas. It is alleged by the prosecution that the made a statement that he had kept certain grocery articles and corn concealed beneath a stack of Kadbi stems in a field outside the village and be offered to point out and produce these articles. A memo of the statement Ex P-8 was made and accused no. 1 Bhakshia led the police and the panchas to a field stiuate at a distance of about 2 edible il, a bag of wheat, a bag of grm dal and a stack of Kadbi stems situated in the field of on Isanji Supaji and these articles were attached under s seziure memo (Exhibit P-9) After returning to the village, the statements of several persons were her, accused No. 3 Maruti was sent to Balapur Maramari which had taken place at chatari near Sidajis shop. On 14 the September Police Inspector Tikale questioned accused No.3 Maruti in the presence of two panchas and the said accused is alleged to have made a statement that he had kept and offered to point out and produce the same. A memo of his statement Ex. P. 22 was made and accused No.3 led the Police an the panchas to earthen pot in his house. That toch was attached under aa seizure memo (Exhibit P 20) and it is alleged to have been identified by Abdul Munaf and Jardarkhan. An identification parade was held on 16th september 1958 when abdul Munaf, Jardarkhan, Govinda and Motiram identified accused Nos. 1 to 4 as the dacoits of that evening. Accused No. 5 Vikram was undergoing medical treatment. So a separate identification parade was held with regard to him on 4th October 1958 and he was further investigation a charge-sheet under S. 395 of the Indian Penal Code was sent against the three appeallants and two others. The Committing Magistrate, after holding a preliminary inquiry, committed the three appellants along with two for the offecne under Section 395 of the Indian Penal Code.
(3.) The defence of the accused was that all of them were falsely implicated and they were completely innocent. All the five original accused were residents of Chatari village and thier plea was that other communities were not pulling on well. They had become Navabudhas about two years back and the caste Hindus were trying to create trouble for the Mahars. It was te case of the accused that in all 75 or 100 Mahar families were residding In the village and they had stopped removing of dead animals since about 3 years and that had given offence to the caste Hindus. Then on Pundlik the Patil gave a donation of Rs. 4000/- for a school in the village, a meeting was convened about it in and it was decided to construct a school, and the suggetion of the accused was that the Maahars were asking for half of the amoung for their own purposes and that created fruther ill feeling btween the mahars and the other communites. One Dnuyandeo was murdered in the village about 3 ears back and some people were suspecting accused Nos. 1,2 and 5 in connection with that murder. It is the case of the accused thato account of this ill feeling thy have been falsely implicated in the present case. On the night of the dacoity there was an attempt to commit dacoitty at Sidajis shop at Chatari, and sidaji, his brother Jairam, Jagdeo and Chinkaji, who ere panchas, and the Police Patil Tulshiram have, therefore, implicated the accused in thepresent offence and these persons had somehow induced Akbarali and Abdul Munaf and the other witnesses to make false case of dacoity against the accused.