2014 ALL MR (Cri) 1859
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A.B. CHAUDHARI AND Z. A. HAQ, JJ.

Nirbhaysingh s/o. Shamsingh Madkam & Ors. Vs. The State of Maharashtra

Criminal Appeal No.153 of 2007,Criminal Appeal No.74 of 2007,Criminal Appeal No.98 of 2007,Criminal Appeal No.526 of 2007

3rd December, 2013

Petitioner Counsel: Mr. C.R. THAKUR, Mr. R.M. DAGA, Mr. ABHAY SAMBRE
Respondent Counsel: Mr. T.A. MIRZA

(A) Penal Code (1860), S.396 - Evidence Act (1872), S.9 - Dacoity with murder - Identification of accused - Accused persons identified in test identification parade by two witnesses who are also victims in incident having suffered injuries - Both witnesses were present at spot of incident throughout - They have seen accused from close proximity and accused had even beaten them - Testimony of said witnesses and identification of accused by them cannot be discarded. (Para 18)

(B) Penal Code (1860), S.412 - Criminal P.C. (1973), S.222 - Dishonestly receiving stolen property in dacoity - Accused person though charged for offences under Ss.396 and 397 of Penal Code - But found guilty of minor offence under S.412 - Even though no charge has been framed under S.412 against accused persons - Accused persons can be convicted under S.412 in view of S.222 of Cr.P.C. (Para 23)

Cases Cited:
Raj Kishore Singh and ors. Vs. The State of Bihar, AIR 1971 SC 1058 [Para 18]
Pramod Mandal Vs. State of Bihar, 2005 ALL MR (Cri) 2020 (S.C.)=(2004) 13 SCC 150 [Para 18]
Sheo Shankar Singh Vs. State of Jharkhand and anr., 2011 ALL MR (Cri) 1689 (S.C.)=AIR 2011 SC 1403 [Para 18]
Chhote Lal Singh Vs. State of Madhya Pradesh, AIR 1978 SC 1390 [Para 23]
Amar Singh and ors. Vs. State of Madhya Pradesh, AIR 1982 SC 129 [Para 24]


JUDGMENT

Z.A. HAQ, J. :- Heard Shri C.R.Thakur, Shri R.M.Daga and Shri Abhay Sambre, learned Advocates for the appellants/accused and Shri T. A. Mirza, learned APP for the respondent/State.

2. These appeals arise out of the judgment passed by the learned Ad-Hoc Additional Sessions Judge - 3, Chandrapur in Sessions Case No.22 of 2004 on 27th of February, 2007.

Sessions Case No.22 of 2004 was filed against Twenty Five accused but the sessions trial is conducted against sixteen accused and the remaining nine accused were absconding and therefore, the trial was separated. By the impugned judgment, the learned Sessions Judge has convicted accused No.1 Mira @ Rekha Pawar, accused No.2 - Lakhesingh Dhurve, accused No.3 - Mathawarabai Kumare, accused No.4 - Bijali Dhurve and accused No. 12 Harimishan Madkam for the offence punishable under Section 412 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years each and to pay a fine of Rs.5000/- each and in default of payment of fine to undergo simple imprisonment for six months.

The learned Sessions Judge has convicted accused No.6 - Nirbhaysingh Madkam, accused No.7 - Natwarlal Dhurve, accused No.8 - Ramu Rangrut Madkam, accused No.9 - Vinod Dhurve, accused No.13 - Sanjay Rangrud Madkam, accused No.15 - Suresh Madkam and accused No.16 - Jivanlal Ramchandra Kumare for the offence punishable under Sections 396 and 397 of the Indian Penal Code and sentenced them to undergo life imprisonment.

3. Criminal Appeal No.153 of 2007 is filed by accused No.6 - Nirbhaysingh Madkam, accused No. 7 Natwarlal Dhurve, accused No. 8 Ramu Madkam, accused No.9 Vinod Dhurve, accused No.13 Sanjay Madkam, accused No.15 Suresh Madkam and accused No.16 Jivanlal Kumare challenging the judgment passed by the learned Sessions Judge convicting them as stated above.

4. Criminal Appeal No.74 of 2007 is filed by accused No.1 - Mira @ Rekha w/o Pawar Pawar, challenging the judgment passed by the learned Sessions Judge convicting her as stated above.

5. Criminal Appeal No.98 of 2007 is filed by accused No. 4 Bijali Dhurve challenging the judgment passed by the learned Sessions Judge convicting her as stated above.

6. Criminal Appeal No. 526 of 2007 is filed by accused No. 2 Lakhesingh Dhurve and accused No.3 Mathawarabai Kumare, challenging the judgment passed by the learned Sessions Judge convicting them as stated above.

7. The case of the prosecution is :-

The complainant Riddheshwarrao Govindrao Warjurkar, r/o Mohadi, Tq. Nagbhid lodged the compliant on 4th of November, 2003 with the Nagbhid Police Station. According to the complainant - Raddheshwarrao, he is resident of Mohadi doing agricultural work and money lending business. On 3rd of November, 2003 in the morning, he had gone to Nagpur for some work in the Court at Nagpur. His wife Vandana and his daughter Ku.Jasmi also came to Nagpur. The complainant's mother Kashibai and two employees Yadav Shivram Dudhkure and Kewalram Dadmal were in the house. On 4th of November, 2003 at about 2.00 a.m. (in the night), Ashokkrao Khanorkar - brotherinlaw of the complainant, who is resident of Nagpur, received a phone call from Mohadi informing that about 20 to 25 persons were doing nuisance near the house of the complainant at Mohadi and they had swords, Lathis and sticks. On receipt of this phone call, the complainant verified this information with Shantaram Deshmukh and found information to be correct. He immediately along with his wife, son and two daughters came to Mohadi by car and found that dacoity had taken place at his house and all the articles in the house were found scattered and broken. He found that his mother was taken to Nagbhid hospital for medical treatment and both the employees were admitted in the hospital. When he returned to his house, he found that the almirah in the front room was opened by breaking the lock and he saw that blood stains were scattered in the room of his mother. He found that four bangles of gold weighing 60 gms., one chain of 35 gms., gold top of 4 gms. and the ornaments of gold and sliver from his shop at Nagbhid, Bhili, Talodhi and Bhiwapur, which were kept in the house worth about Rs. 20 Lakhs and the cash amount of Rs.25000/- were stolen from the house. In this dacoity, mother of the complainant was killed and the two employees of the complainant were injured. The complainant lodged report that 20 to 25 unknown dacoits armed with weapons committed dacoity in his house.

8. On receipt of this report (Exh.157), an offence punishable under Sections 395 and 396 of the Indian Penal Code came to be registered vide Crime No.72 of 2003 by the Nagbhid Police Station vide Exh.158.

9. On 4th of November, 2003 at about 2.15 a.m. Nagbhid Police Station received telephonic message from CRO about above mentioned incident and on receiving the information the police immediately rushed to the spot and reached at 3.00 a.m. and the message was flashed to all the nearby police stations for 'Nakabandi'. The finger print expert and bomb squad were requisitioned on the spot.

During the investigation, spot panchanama of the incident of the house was prepared. Inquest panchanama of deceased Kasabai (mother of the complainant) was prepared and dead body was referred for post mortem examination. Various suspected articles like S.T.Bus tickets, sticks, piece of burnt Bidi, etc. were seized from the spot under the panchanama.

10. On 13th of November, 2003 during the investigation, accused No.1 Mirabai Pawar, accused No.2 Lakkhesingh Dhurve, accused No.3 Mathurabai Jiwanlal, accused No.4 Bijlibai Dhurve and accused No.16 Jiwanlal Kumare were arrested at Bitli, Tq. Warashivni, Distt. Balaghat and various ornaments were seized from them during their personal search and the seizure panchanama (Exh.212) was prepared. The Police seized election card and Khatepustika under the panchanama from the house of Harimishan. The other accused persons namely; accused No. 14 - Kishor Madkam, accused No.15 Suresh Madkam, accused No.7 Natwarlal Dhurve, accused No. 5 - Mohobatsingh Dhurve, accused No. 13 Sanjay Madkam, accused No. 11 Padamlal Kumare, accused No. 9 Vinod Lakhesingh Dhurve, accused No.8 Ramu Madkam, accused No.6 Nirbhaysingh Madkam, accused No. 12 Harimishan Madkam, accused No. 2 Lakhesingh Dhurve and accused No. 16 Jivanlal Kumare were arrested from Bitli and brought to the Police Station Nagbhid. The Investigating Officer completed the investigation and filed the chargesheet against twenty five accused.

11. The learned Sessions Judge framed the charge against the accused nos.1 to 10 and 12 to 16 for the offence punishable under Sections 396, 397 read with Section 34 and Section 302 read with Section 34 of the Indian Penal Code and Section 4 read with Section 25 of the Arms Act. Accused Nos.1 to 16 did not accept the guilt and claimed to be tried. The accused Nos.11 and 17 to 25 were absconding and therefore, the trial was separated. Subsequently Accused No.24 - Devidas Pawar was arrested. Therefore, charge was framed against accused No. 24 Devidas for the offences punishable under Sections 396, 397 read with Section 34 and Section 302 of the Indian Penal Code and under Section 4 read with Section 25 of the Arms Act. The accused No.24 Devidas did not accept the guilt and claimed to be tried.

12. The learned Sessions Judge conducted the trial and by the impugned judgment concluded that the prosecution has proved that deceased Kasabai met with homicidal death. The learned Sessions judge concluded that the prosecution has proved that the accused No. 6 - Nirbhaysingh Madkam, accused No.7 - Natwarlal Dhurve, accused No.8 - Ramu Madkam, accused No.9 - Vinod Dhurve, accused No.13 Sanjay Madkam, accused No.15 - Suresh Madkam and accused No.16 Jivanlal Kumare along with the absconding accused had conjointly committed dacoity and committed murder of Smt.Kasabai Govindrao Warjurkar by using weapons like wooden sticks, etc. and thereby committed an offence punishable under Section 396 of the Indian Penal Code. The learned Sessions Judge has concluded that the prosecution has proved that accused No. Nirbhaysingh Madkam, accused No.7 - Natwarlal Dhurve, accused No.8 - Ramu Rangrut Madkam, accused No.9 - Vinod Dhurve, accused No.13 - Sanjay Madkam, accused No.15 - Suresh Madkam and accused No.16 - Jivanlal Kumare along with the absconding accused on the same date, time and place while committing dacoity have caused grievous hurt to Yadav Shivram Dudhkure and Kewalram Dadmal using deadly weapon and thereby committed an offence punishable under Section 397 of the Indian Penal Code. The learned Sessions Judge has concluded that the prosecution has proved that accused No. 1 Mira Pawar, accused No.2 - Lakhesingh Dhurve, accused No.3 - Mathawarabai Kumare, accused No.4 - Bijali Dhurve and accused No.12 - Harimishan Madkam have committed the offence punishable under Section 412 of the Indian Penal Code. The learned Sessions Judge has accordingly convicted the accused and has imposed the sentence as stated in the judgment. The accused, being aggrieved by the judgment passed by the learned Sessions Judge have filed these appeals. The appeals arise out of the common judgment passed by the learned Sessions Judge and therefore, they are being disposed of by this common judgment.

13. Criminal Appeal No.153 of 2007 is filed by accused No.6 - Nirbhaysingh Madkam, accused No.7 - Natwarlal Dhurve, accused No.8 Ramu Madkam, accused No.9 - Vinod Dhurve, accused No.13 Sanjay Madkam, accused No.15 Suresh Madkam and accused No.16 - Jivanlal Kumare, challenging their conviction for the offences punishable under Section 396 and Section 397 of the Indian Penal Code.

14. Shri Thakur, the learned Advocate for the appellants, has submitted that the learned Sessions Judge has not considered the evidence on the record in the right perspective and it has resulted in the erroneous judgment and consequential conviction of the appellants, therefore, is unsustainable. According to the learned Advocate for the appellants, the prosecution has committed gross illegality in the matter of identification of the accused. According to the learned Advocate for the appellants, the case of the prosecution is that about 20 to 25 persons were involved in the dacoity and it was therefore necessary for the prosecution to conduct the identification parade as laid down by the guidelines in the Criminal Manual and it having not been done, the conviction of the appellants is unjustified. Shri Thakur, the learned Advocate for the appellants has submitted that the Public Prosecutor had not shown the accused for the purposes of identification to the witnesses while evidence was recorded, in the Court room, which according to the learned Advocate was mandatory in the facts of the present case. The learned Advocate has further submitted that Yadav (PW 6) and Kewalram (PW 7), who claimed to have been present at the time of the incident have admitted in their testimony that they had seen the accused sitting in the police station before the test identification parade was conducted. Shri Thakur has further submitted that Yadav (PW 6) and Kewalram (PW 7) have further admitted that photographs of the accused were shown to them before the Test Identification Parade was held. The learned counsel has further submitted that the signatures of Yadav (PW 6) and Kewalram (PW 7) were not taken on the memorandum prepared after the Test Identification Parade. According to the leaned Advocate for the appellants, all the above mentioned discrepancies in the procedure followed by the prosecution are not considered by the learned Sessions Judge in the right perspective. According to the learned Advocate for the appellants, the order of conviction could not have been made against the appellants as the identification of the appellants by Yadav (PW 6) and Kewalram (PW 7) itself is a farce and unacceptable in law.

15. Shri Mirza, learned Additional Public Prosecutor, has submitted that the arguments made on behalf of the appellants are irrelevant, inasmuch as there is no legal basis for the submissions made on behalf of the appellants. According to the learned APP, the discrepancies pointed out on behalf of the appellants in the procedure of identification of the accused, are not of such a nature that it can vitiate the conviction of the appellants.

16. Shri Mirza, the learned Additional Public Prosecutor, has submitted that the learned Sessions Judge has appreciated the evidence and the material on the record properly and has passed well reasoned and considered judgment convicting the appellants. The learned APP has submitted that the impugned judgment does not require any interference.

17. We have considered the submissions made by learned Advocate for the appellants and the learned APP and have considered the material and the evidence on record. Yadav (PW 6) and Kewalram (PW 7) are the eye witnesses to the incident. Yadav (PW 6) was working in the house of deceased Kashibai and Kewalram (PW 7) was also working as an employee in the house of deceased Kashibai for more than 20 to 25 years prior to the incident. The testimony of Yadav (PW 6) and Kewalram (PW 7) on this aspect is not challenged by the appellants. These two witnesses are natural witnesses in the facts of the case. These two witnesses have witnessed the incident. These two witnesses have suffered injuries at the hands of the accused during the course of the incident. These two witnesses have identified the appellants/accused.

The weapons, which were seized by the police i.e. wooden stick (Ubhari), iron rod and Sattur were sent for chemical analysis and the chemical analysis report states that the blood stains found on these articles were of human blood and the blood group was "A" which was the blood group of the deceased. The learned Sessions Judge has considered all these aspects in the right perspective and has convicted the appellants by the impugned judgment, which in our view is based on proper appreciation of the evidence and requires no interference.

18. The submissions made by the learned Advocate on behalf of the appellants that the prosecution has failed to discharge its burden regarding the identification of the accused as the accused were not shown to the witnesses, in the Court room, for the identification is not of any help to the appellants in the facts of the present case. The learned Advocate for the appellants has not been able to show any requirement in law in support of this submission.

In this case, the accused are identified by Yadav (PW 6) and Kewalram (PW 7) in the Test Identification Parade. The above mentioned two witnesses are also victims in the incident having suffered injuries. The above mentioned two witnesses were present at the spot of the incident throughout. The learned Trial Judge has considered all these aspects and has recorded in paragraph No.67 as follows :-

"67. In the instant case the prosecution mainly relying on the evidence of the test identification parade by eye witnesses who are the victim of this decoity. It can very well be seen from the evidence of PW No.6 and 7 that they have an opportunity to see the culprits for a considerable time and have an opportunity to resist their act in order to save the deceased Kasabai but they failed to do so and it was difficult for them to save themselves and, therefore, they ran away from there. The evidence of fact is factual and pertains to the observance. If one has earlier known to accused the question left is merely of the witness credibility, but if the accused is stranger the fact of identity become hazardous. It is well said that even if the witness"s veracity is above suspicion his evidence of identity based on personal impression should be approached with considerable caution which really depend upon the opportunity that the witness had of confirming his impression, length of time, perception lasted and other circumstances. The witness may have formed his own impression, but still if he were to compare that impression with that of others who had also seen, his impression may get mixed with what other tell him, so viable is the mind that in the end he can very well adopt others impression to have truly formed by him and to swear about it in all earnestness, again calm mind, view a thing better with emotionally sterned person. The question of availability or culprits have committed their act. The cumulative effect of all the facts and circumstances of all the evidence of fact as has been narrated by these witnesses. They have for the first time identified before the Executive Magistrate in the Test Identification Parade and again they have identified before the Court. Therefore, the evidence furnished by these witnesses which are considered to be with great degree of caution and care during the trial and during the investigation, they have affirmed the accused No.6 Nirbhaysingh, accused No.7 Natwarlal, accused No.8 Ramu Madkam, accused No.9 Vinod Dhurve, accused No.13 Sanjay Madkam, accused No.15 Suresh Madkam and accused No.16 Jiwanlal Kumare they are the same persons, cannot be said to be their evidence is tainted."

Shri Mirza, the learned APP has countenanced this submission by relying on the judgment of the Supreme Court reported in AIR 1971 SC 1058 (Raj Kishore Singh and ors. ..vs.. The State of Bihar). In this judgment the Hon'ble Supreme Court has laid down that test identification parade is not a substantive piece of evidence but can only be considered as corroborative evidence and therefore, the test Identification parade is of little value to the prosecution and there is no question of the accused having been prejudiced by the late identification parade.

Mr.Mirza, the learned APP has further relied on the judgment reported in (2004) 13 SCC 150 : [2005 ALL MR (Cri) 2020 (S.C.)] (Pramod Mandal ..vs.. State of Bihar). In paragraph No.20, the Hon'ble Supreme Court has laid down as follows-

"It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identify, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness ? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.

Mr. Mirza, the learned APP has relied on the judgment reported in AIR 2011 SC 1403 : [2011 ALL MR (Cri) 1689 (S.C.)] (Sheo Shankar Singh ..vs.. State of Jharkhand and anr.). In this judgment the Hon'ble Supreme Court has laid down that the witness had seen the accused from close proximity, that the witness had seen the accused shooting the deceased from close range, stopping at some distance and coming back to the motorcycle where the deceased and the witness had fallen, abusing and threatening the witness and asking him to run away from the spot. Hon'ble Supreme Court has observed that all this was sufficient to create an impression that would remain imprinted in the memory of anyone who would go through such a traumatic experience. In the present case also Yadav (PW 6) and Kewalram (PW 7) have seen the accused from close proximity and the accused has even beaten Yadav (PW 6) and Kewalram (PW 7). The incident as has been brought on record by the prosecution and the testimony of Yadav (PW 6) and Kewalram (PW 7) and the identification of the accused by them cannot be doubted or discarded.

The learned Advocate for the appellants has not been able to point out any perversity in the findings of the learned Trial Judge. We are not inclined to interfere with the findings and the conclusions of the Trial Court which are in consonance with the evidence and the settled legal principles.

19. Shri Thakur, the leaned Advocate for the appellants has overemphasized the following part of the deposition of Kewalram (PW7), which is to the effect that the police had shown photographs of the accused in the police station. The relevant portion of the crossexamination of Kewalram (PW 7) is as follows-

"It is not true that police had shown me photographs in the police station. Police had shown photographs of the accused in police station. It is not true that, I had identify six accused on the basis of photographs."

Taking overall view of the matter and considering the evidence in its entirety, it will be unsafe to pick up one sentence from the crossexamination of one witness. In our view, the learned Trial Judge has weighed the evidence on the record properly and has arrived at the right conclusion and the impugned judgment cannot be said to be vitiated only by picking up one sentence in isolation from the crossexamination of one witness.

20. In view of the above, we find no substance in the appeal. Criminal Appeal No.153 of 2007 filed by accused No.6 - Nirbhaysingh Madkam, accused No. 7 Natwarlal Dhurve, accused No. 8 Ramu Madkam, accused No.9 Vinod Dhurve, accused No.13 Sanjay Madkam, accused No.15 Suresh Madkam and accused No.16 Jivanlal Kumare is dismissed.

21. In Criminal Appeal No.74 of 2007, Criminal Appeal No.98 of 2007 and Criminal Appeal No. 526 of 2007, Shri R.M.Daga and Shri Abhay Sambre, learned Advocates for the appellants have submitted that the judgment passed by the learned Trial Judge convicting the appellants in these appeals for the offence punishable under Section 412 of the Indian Penal Code is vitiated, inasmuch as no charge was framed against these appellants for the offence punishable under Section 412 of the Indian Penal Code.

22. The learned Trial Judge, after examining the material on the record, has concluded that the investigating officer Shri Dabhade (PW 20) along with the staff had conducted a raid at a place situated on the bank of river at village Bitli near Balaghat and personal search of the five accused namely; Meera Pawar, Bijili Dhurve, Mathawarabai Kumare, Jiwanlal Kumare and Lakhesingh Dhurve was carried out. Two cloth bags were found from the possession of Meerabai, which was tied on her waist inside the Saree. These cloth bags contained various golden ornaments i.e. ring, ear ring, tops, nose ring, chain and bangles etc. In the personal search of Mathawarabai golden tops, small tops and mukhara were found. In the personal search of Bijali, golden locket, golden ring, tops, besar, dorle and other ornaments of different types were found. In the personal search of Jiwanlal golden ornaments i.e. ring, locket, money, birya and other ornaments and money were found. In the personal search of Lakhesing golden ring, different types of birya and other ornaments were found. These articles were seized under the seizure panchanama (Exh.212). In the search of the luggage of Meerabai, one sattur, one Suri, one balance and weight of 5 grams, 10 grams and 50 grams were seized and in the purse one currency note of Rs.1000/- denomination, silver ornaments and Kaldar were found. The complainant Riddeshwar Govindrao Warjurkar (PW 1) had identified ornaments seized from the appellants. Riddeshwar (PW 1) has stated all this on oath in his evidence and is not shaken in the crossexamination.

23. Shri Daga and Shri Abhay Sambre the learned Advocates for the appellants have submitted that the conviction of the appellants for the offence punishable under Section 412 of the Indian Penal Code, in the absence of the charge having been framed against them for that offence is vitiated. For this submission, reliance is placed on the provisions of Section 211 of the Code of Criminal Procedure.

Shri Mirza, the learned APP relying on the provisions of Section 222 of the Code of Criminal Procedure has submitted that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Shri Mirza, the learned APP has submitted that the appellants were charged for the offences punishable under Section 396 and Section 397 of the Indian Penal Code which deal with dacoity with murder and robbery and dacoity with attempt to cause death or grievous hurt. He has submitted that the learned Trial Judge has found that the prosecution has failed to prove the guilt of the appellants for the above mentioned offences. However, on the basis of the material on the record, the learned Trial Judge has concluded that the prosecution has proved the guilt of the appellants for the offence punishable under Section 412 of the Indian Penal Code. Shri Mirza, the learned APP has submitted that the offence punishable under Section 412 of the Indian Penal Code is a minor offence and the learned Trial Judge has rightly convicted the appellants for it, in view of the provisions of Section 222 of the Code of Criminal Procedure. In support of his submission he has relied on the judgment reported in AIR 1978 SC 1390 (Chhote Lal Singh ..vs.. State of Madhya Pradesh). The Hon'ble Supreme Court in paragraph no.2 of the above referred judgment has laid down as follows :-

"2. In the circumstances, however, thee can be no escape from the position that the articles, which were recovered at the instance of the appellant were the subject matter of dacoity and have been properly identified by the owner of the articles. In these circumstances there will be a presumption that the appellant was a receiver of the property, transferred to him, in the course of dacoity. We would, therefore, alter the conviction of the appellant from one under S. 397 I.P.C. to that under S.412 I.P.C. And reduce the sentence from seven years to five years. Fine is reduced to Rs.500/- and in default six months rigorous imprisonment. With this modification the appeal is dismissed."

On consideration of the facts of the present case, we are of the view that the submissions made by Shri Mirza, learned APP relying on the above referred judgment of the Hon'ble Supreme Court are proper.

In view of the above, we see no reason to interfere with the conviction of the appellants for the offence punishable under Section 412 of the Indian Penal Code and confirm it.

24. Shri Daga and Shri Abhay Sambre, the learned Advocates for the appellants have relied on the judgment of the Hon'ble Supreme Court reported in AIR 1982 SC 129 (Amar Singh and ors. ..vs.. State of Madhya Pradesh) and have submitted that looking to the facts of the present case, the sentence awarded to the appellants for the offence punishable under Section 412 of the Indian Penal Code be altered.

25. Considering the facts that the appellants Meerabai, Bijli, Mathawarabai are women and further considering the fact that they have not indulged in any criminal activities when released on bail and further considering the age of appellant Lakhesing and the fact that he has not indulged in any criminal activities when released on bail and also considering the above referred judgment of the Supreme Court in the case of Amar Singh, we are inclined to modify the sentence. In the result, we make the following order.

ORDER

26. Criminal Appeal No.74 of 2007 filed by Meera @ Rekha w/o Pawan Pawar, Criminal Appeal No.98 of 2007 filed by Bijali wd/o Sahebrao Dhurve and Criminal Appeal No. 526 of 2007 filed by Lakhesingh s/o Liksahay Dhurve and Mathavarabai w/o Jivanlal Kumare, are partly allowed. It is directed that the appellants shall undergo the sentence which they have already undertaken during the trial and during the pendency of these appeals. The judgment passed by the learned Trial Judge is modified to that extent.

The appellants Meera @ Rekha w/o Pawan Pawar, Bijali wd/o Sahebrao Dhurve, Lakhesingh s/o Liksahay Dhurve and Mathavarabai w/o Jivanlal Kumare be set at liberty forthwith if not required in any other offence.

The bail bonds of these appellants/accused namely; Mira @ Rekha w/o Pawan Pawar, Bijali wd/o Sahebrao Dhurve, Lakhesingh Liksahay Dhurve and Mathavarabai Jivanlal Kumare stand cancelled.

The fees of the learned counsel Mr. Abhay Sambre appointed to appear on behalf of the appellants/accused in Criminal Appeal No. 526 of 2007 are quantified at Rs.5000/- ( Rupees five thousand only).

Ordered accordingly.