Criminal Appeal No.934 of 2001

24th September, 2003

Petitioner Counsel: Shri. C. K. PENDSE
Respondent Counsel: Shri. K. V. SASTE

JUDGMENT

JUDGMENT :- The appellants are hereby assailing correctness, propriety and legality of the judgment and order passed by Additional Sessions Judge for Greater Bombay, in Sessions Case No.1106/1999, whereby the learned Judge convicted the appellants for offences punishable under section 399 r/w. section 34 of Indian Penal Code and each of them are sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.3,000/-, in default to undergo further rigorous imprisonment for three months. She sentenced each of the appellants to undergo rigorous imprisonment for two years and to pay fine of Rs.2,000/-, in default to undergo further rigorous imprisonment for two months for the offence punishable under section 402 r/w. Section 34 of Indian Penal Code. She sentenced each of the appellants to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for one month for the offence punishable under section 135 of the Bombay Police Act, 1951. The substantive sentences were directed to run concurrently.

2. The Prosecution case, in brief, is that on 12-7-1999 at about 1 a.m. P.I. Worlikar of Crime Branch informed his colleagues, P.S.I. Dias, Madhukar Dabhade and Nivruti Yadav that from reliable sources, he received the information, that one lady was to go to Worli Milk Dairy at Worli for depositing amount of milk collection and she was to be robbed by some miscreants. After learning this information they decided to separate themselves in two groups, and one group was to accompany said lady who was to board in bus route No.171 from Antop Hill and was to reach Worli Dairy at Worli. They were to travel by the said bus along with said lady. Another group was to lay in ambush near Worli Dairy for catching the said miscreants. The first group went to Antop Hill and boarded the said bus along with the said lady and was to travel from Antop Hill to Worli Milk Dairy. Second group lay in ambush near Worli Milk Dairy precincts. At 4.55 p.m. the police officers mentioned above noticed 5 persons moving in suspicious manner. They kept themselves in the near vicinity of those persons and learnt that those persons were to commit dacoity by robbing money from the said lady as well as to commit a dacoity in Dena Bank branch. As soon as the said lady and police staff members alighted from the said bus, after seeing movements of the appellants, the appellants were caught by the members of raiding party. In presence of panch witnesses, their persons were searched. A chopper was found in possession of appellant, Manish Tambe. A Kukri was found in possession of appellant, Rajapurkar, a knife was found in possession of appellant, Koli. One Rajendra Kalu Nohar was able to escape. One chopper was found in possession of appellant, Ajit Laxman Kamble. Those weapons were seized in view of seizure panchanama, which was drawn at the spot. The said lady and appellants were taken to police station. A crime was registered against the appellants and after necessary investigation they were put to trial. Rajendra Nohar was acquitted by the trial Court and the present four appellants were convicted and sentenced as mentioned above. That order of conviction and sentence has been put to challenge by this appeal.

3. Shri. Pendse, Counsel appearing for the appellants, criticised the said judgment and order by raising various points. The important points mentioned are as under :-

i. The said information was nowhere recorded.

ii. There is discrepancy in the evidence of the police personnel in respect of the presence of informant in the raiding party.

iii. The panch witnesses did not support the prosecution evidence completely.

iv. The prosecution evidence is unnatural.

He submitted that in view of the glaring infirmities in the prosecution evidence, the learned trial Judge committed the error in passing order of conviction and sentence against the appellants and therefore, as the said order is incorrect, improper and illegal it be set aside and appellants be acquitted.

4. Shri. Saste, A.P.P. appearing for the prosecution justified the impugned order as correct, proper and legal and submitted that the points of criticism levelled by Shri. Pendse, Counsel for the appellants are substanceless. He submitted that the prosecution evidence is very much natural and prosecution did not do any embroidery for the purpose of creating a false case against the appellants. He submitted that there is no need of recording information in context with Indian Penal Code offences. He also submitted that the other persons from the police department examined as witnesses in this case, may not be knowing exact identity of the said informant and therefore, they may have committed the mistake in giving evidence about the informant. He submitted that the discrepancy, if any, needs to be ignored. He pointed out that the panch witnesses did support the prosecution evidence. Thus, he submitted that as the impugned order is correct, proper and legal, the order of conviction and sentence needs to be maintained.

5. Shri. Pendse, submitted that the appellants are young persons, they do not have any criminal antecedents and therefore, leniency be shown to them in respect of sentence. Shri. Saste opposed the submission and submitted that the sentence awarded to the appellants is correct, proper and needs no reduction.

6. After appreciating the evidence on record in view of the submissions advanced on behalf of the appellants and the prosecution, this Court comes to the conclusion that order of conviction and sentence passed by the trial Court, is correct, proper and legal for the reasons stated hereunder.

7. The evidence of prosecution witnesses Madhukar Dabhade, Nivruti Yadav, P.S.I. Dias and P.I. Worlikar clinchingly establishes that the appellants had made preparation for committing dacoity for robbing the money of milk collection, which was in possession of Smt. Karuna Dokhe. The evidence of these witnesses also proves that on the said date at the relevant time the appellants, 5 in number, had assembled for the purpose of committing dacoity.

8. The evidence of above mentioned witnesses shows that P.I. Worlikar disclosed the information, which he received from the reliable sources at 10 a.m. on 12-7-1999 before above mentioned witnesses and his colleagues. After receiving the said information they decided to separate in two groups and one was escorting P.W. Dokhe from Antop Hill to Worli Milk Dairy from bus rout No.171 and other was laying in ambush near precincts of Worli Milk Dairy at Worli. This sort of separating themselves in two groups and one escorting the said lady P.W. Dokhe from Antop Hill to Worli Milk Dairy itself shows that the said information was verified and was acted upon, and a trap was arranged for the purposes of catching those culprits. The said witnesses did not take chance and therefore, another group waited near precincts of Worli Milk Dairy. The said lady alighted from the bus route No.171. In fact, it so happened and the said lady really got down at Worli Milk Dairy from bus route No.171 and the police staff members accompanied her and they also alighted from the said bus. Other police staff members, who were lying in ambush near Worli Milk Dairy heard conversation of the appellants and absconding accused that they were to rob P.W. Dokhe. Not only that but they were to commit dacoity at one branch of Dena Bank. Had this evidence been concocted, then there was no possibility of it, coming from the mouth of the prosecution witnesses that those persons were engaged in conversation, which revealed that they had intention to commit the dacoity at one branch of Dena Bank. This evidence itself shows the reliability in the prosecution evidence and therefore, this Court dismisses the criticism levelled by Counsel for the appellants, that the prosecution evidence happens to be unnatural. If at all the prosecution was interested in fabricating false and unnatural evidence they would have followed a stereotype pattern of evidence and coming with the case that they heard the details of their plan of dacoity. But in this case, it is not so and therefore, it lends assurance of credibility and naturalty.

9. Shri. Pendse submitted that the panch witnesses did not support the prosecution case. It is not so. Panch witness Balram Patil did state in his evidence that after going through the panchanama, he recollected that there were four weapons, article No.4 chopper, article No.3 Kukri which were seized from the possession of those accused, appellants. The search and seizure of the accused persons were taken by the staff members of police in his presence. Not only that, he stated on oath that the panchanama was prepared in his presence and that he signed it and he testified that the contents of the said panchanama were true and correct. His evidence has to be read as a whole and that evidence lends corroboration to the evidence of prosecution witnesses Dabhade, Nivruti Yadav, Dias and Worlikar.

10. The evidence of these witnesses mentioned above has been corroborated by the evidence of Smt. Dokhe, P.W.6, who stated on oath that when she alighted from the bus near precincts of Worli Milk Dairy, the police staff members also alighted from the said bus and the police staff members, who were concealing in ambush in the said locality caught some persons and after catching them along with her, they were taken to the police station for the purpose of investigation. She testified on oath that she had been there for depositing the collection of money on behalf of her sister.

11. Thus, the evidence of P.Ws. Dokhe, Nivruti, P.S.I., P.I. Worlikar has been corroborated by panch witnesses Patil. The learned trial Judge has after appreciating the evidence of those witnesses come to the conclusion that the prosecution proved that the appellants had assembled for the purpose of committing dacoity and they were there, after making preparation for committing dacoity. The said conclusion has been fortified by the seizure of deadly weapons like knife, chopper and kukri from the possession of the appellants. Keeping in view, their conversation and possession of such deadly weapons and their liotering in the said locality in suspicious manner justifies the conclusion which has been drawn against the appellants by the trial Judge.

12. The evidence of P.W. No.3, Haribhau Lad shows that the order prohibiting possession of dangerous weapons was promulgated by declaring it on megaphone in the areas of various police stations. Thus, there was legally promulgated order prohibiting possession of dangerous weapons in existence.

13. Therefore summing up all, this Court has no hesitation incoming to the conclusion that the trial Court has rightly concluded that the appellants have committed the offences under the provisions of Sections 399, 402 of Indian Penal Code and provisions of Section 135 of Bombay Police Act. However, trial Judge committed a mistake in applying section 34 to Section 399 and 402 of I.P.C. By reading the provisions of Sections 399 and 402 of I.P.C., it is quite clear that the persons who assemble for committing dacoity with preparation to commit dacoity are to be punished in view of those provisions. Persons who assemble for the purposes of committing dacoity would be always five or more than five in number. Hence, single person cannot be convicted for offences punishable under sections 399 and 402 of Indian Penal Code. Therefore, there is absolutely no need of applying section 34 of I.P.C. The common intention has been always indicated by those provisions by assembly of culprits for committing those offences and by making preparation to commit those offences. Therefore, the order of conviction will have to be modified, as conviction against the appellants for offences punishable under Sections 399 and 402 of Indian Penal Code, Section 34 stands excluded.

14. Shri. Pendse, submitted that the appellants are young persons. They do not have criminal antecedents. Therefore, leniency should be shown to them. In fact, the learned trial Judge has already shown leniency to them and there cannot be more leniency than that. The dangerousness of the act which has been committed by them, the dangerousness of the weapons possessed by them for committing those offences also shows that in fact they should have been sentenced for enhanced term of imprisonment. As there is no notice of enhancement of the sentences, this Court confirms the order of sentence passed against the appellants as it is.

15. Thus, appeal stands dismissed. The appellants to undergo sentence inflicted on them in appropriate prison. No interference in respect of the order of disposal of the property.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.

Appeal dismissed.