Case Note & Summary
The judgment pertains to three criminal appeals arising from the same judgment and order dated 10th April 2007 passed by the Additional Sessions Judge, Shrirampur in Sessions Case No. 29 of 2005. The case originated from a dacoity that occurred on 7th April 2005 at Anand Dhaba near Chinchora Phata, where truck drivers were assaulted and robbed by unknown persons. The informant, Ramdas Bhau Kothule, a truck driver, lodged an FIR at Newasa Police Station stating that he and other drivers were robbed at knife and pistol point. The police, after receiving wireless information, intercepted six persons on two motorcycles, who fled, and later apprehended six accused traveling in a jeep. A country-made pistol, knife, cash, and other articles were allegedly recovered from them. No test identification parade was conducted. The trial court convicted accused Nos. 1 to 3 for offences under Sections 395 read with 397 IPC and sentenced them to seven years’ rigorous imprisonment and fine, with accused No. 3 also convicted under Section 4(25) of the Arms Act and sentenced to two years’ rigorous imprisonment. It acquitted accused Nos. 4 to 6. Accused No. 2 (Munir Rustum Shah) and accused No. 3 (Bhimrao Shekha Salam) preferred Criminal Appeal Nos. 160 of 2007 and 97 of 2008 respectively, while the State preferred Criminal Appeal No. 391 of 2008 against the acquittal of accused Nos. 4 to 6. The appellants contended that they were falsely implicated, no test identification parade was held, the evidence was inconsistent, and the same evidence led to conviction of three and acquittal of three others. The State argued that all six acted with common intention, incriminating articles were recovered, and the trial court’s acquittal was perverse. The High Court heard the appeals and reserved judgment on 4th January 2019, pronouncing it on 11th January 2019. However, the available text of the judgment ends mid-sentence during the court’s analysis, so the final decision and ratio are not known.
Issue of Consideration
Whether the conviction of original accused Nos. 2 and 3 under Sections 395 read with 397 of the Indian Penal Code and Section 4(25) of the Arms Act was justified; whether the acquittal of original accused Nos. 4 to 6 was proper
Law Points
- Requirement of test identification parade for unknown accused
- appreciation of evidence in dacoity cases
- sentencing under Section 395 read with 397 IPC
- appeal against acquittal under Code of Criminal Procedure
- 1973
Case Details
2019 LawText (BOM) (01) 8
Criminal Appeal No. 160 of 2007, Criminal Appeal No. 97 of 2008, Criminal Appeal No. 391 of 2008
S.S. Shinde, R.G. Avachat
Mr. A.S. Shelke (for appellants in CrA 160/2007 and 97/2008), Mr. S.B. Yawalkar, A.P.P. (for Respondent-State), Mr. G.J. Mote (for respondents in CrA 391/2008, absent)
Munir Rustum Shah (original accused No.2), Bhimrao Shekha Salam (original accused No.3) [in Criminal Appeal Nos. 160 of 2007 and 97 of 2008]; State of Maharashtra (in Criminal Appeal No. 391 of 2008)
State of Maharashtra (in Criminal Appeal Nos. 160 of 2007 and 97 of 2008); Ravindra Baban @ Bhagwan Mhaske, Mahesh Pralhad Kale, Dipak Bhagwan Madawi (original accused Nos. 4 to 6) in Criminal Appeal No. 391 of 2008
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Nature of Litigation
Criminal appeals against conviction under Sections 395 and 397 of the Indian Penal Code and Section 4(25) of the Arms Act, and an appeal by the State against acquittal of co-accused.
Remedy Sought
Accused Nos. 2 and 3 sought acquittal; the State sought reversal of acquittal of accused Nos. 4 to 6.
Filing Reason
Conviction of appellants for dacoity and acquittal of other accused in the same incident.
Previous Decisions
The trial court convicted accused Nos. 1 to 3 and acquitted accused Nos. 4 to 6 in Sessions Case No. 29 of 2005.
Issues
Whether the conviction of accused Nos. 2 and 3 is sustainable without a test identification parade when the accused were not known to the witnesses.
Whether the recovery of a country-made revolver and knife was credible and sufficient to sustain conviction.
Whether the acquittal of accused Nos. 4 to 6 was proper on the same set of evidence.
Whether all accused acted in furtherance of common intention as alleged.
Submissions/Arguments
Counsels for the accused argued that they were falsely implicated, no test identification parade was conducted, there were material inconsistencies in the evidence, the knife recovery was unreliable as such knives are commonly available, and the same evidence led to selective conviction and acquittal.
The State contended that all six accused were apprehended within hours of the dacoity, incriminating articles including a country-made pistol and knife were recovered in personal search, all witnesses identified them in court, and the trial court’s acquittal was perverse; reliance was placed on Mukesh v. State (NCT of Delhi), Baiju v. State of M.P., and Mukund v. State of M.P.
Judgment Excerpts
On 7th April, 2005, an informant Ramdas Bhau Kothule, resident of Khadki, Tq. Nagar, a driver and owner of truck bearing No. MTG1591 lodged First Information Report at Newasa Police Station. According to him on 5th April, 2005, he loaded wooden logs in his truck at Nagpur and started to come to Pune. In the night of 7th April, 2005, he was proceeding by Aurangabad-Ahmednagar road. At about 3.30 a.m., he came to Anand Dhaba near Chinchora Phata, and parked his truck there for answering the nature’s call. When he came back to his truck and was examining his loaded truck, he saw some persons were assaulting other truck drivers who had halted at Anand Dhaba. 4-5 persons also came to him. One of them caught hold color of his shirt and asked him whether he was driver. When he replied affirmatively, one of them abused him and asked him to take out money and put a pistol on his forehead. One of them hit on his head with some hard object. Therefore, the informant got afraid of and he took out money from his pocket and handed over the amount of Rs.1,000/-. According to him, he saw the dacoits in the light in front of Dhaba.
When the prosecution case is that some unknown persons had assaulted and robbed truck drivers at Anand Dhaba, it was incumbent upon the investigating officer to conduct test identification parade so as to identify the culprits beyond reasonable doubt, but in the present case in hand, no test identification parade is conducted.
We have perused the entire notes of evidence placed on record by the prosecution. Looking to the evidence which has come on record and the submissions advanced by learned counsel appearing for the parties, there does not appear to be dispute regarding the fact that in the night of 7th April, 2005, dacoity took place at Anand Dhaba near Chinchora Phata, in which truck drivers, who had parked their trucks at the said place, were assaulted and robbed by some culprits.
Procedural History
FIR No. 69 of 2005 registered at Newasa Police Station on 7 April 2005 under Sections 395, 397 IPC. Investigation completed, charge sheet filed. Case committed to Sessions Court, Sessions Case No. 29 of 2005. Trial conducted, judgment and order dated 10 April 2007 by Additional Sessions Judge, Shrirampur convicting accused Nos. 1 to 3 and acquitting accused Nos. 4 to 6. Criminal Appeal Nos. 160 of 2007 and 97 of 2008 filed by convicted accused. Criminal Appeal No. 391 of 2008 filed by State against acquittal. All appeals heard together. Judgment reserved on 4 January 2019 and pronounced on 11 January 2019.
Acts & Sections
- Indian Penal Code, 1860: 395, 397, 34
- Arms Act, 1959: 4, 25
