Sanjay @ Papdya @ Rahul vs State of Maharashtra

P.S. Brahmc, J.—Heard.

This is an appeal challenging the judgment and order passed by Additional Sessions Judge, Buldhana in Sessions Trial No. 70/2001 whereunder appellant has been convicted for the offences punishable u/s 399, 402 and Section 120-B of Indian Penal Code and has been sentenced to suffer Rigorous Imprisonment for a period of three years and to pay a fine of Rs.500/-, in default to suffer Rigorous Imprisonment for a period of one month for the offence punishable u/s 399 of IPC and to suffer Rigorous Imprisonment for period of three years and to pay a fine of Rs.500/-, in default, to suffer Rigorous Imprisonment for a period of one month for the offence punishable u/s 402 of IPC. The substantive sentences were to run concurrently. Though, the appellant was convicted for the offence punishable u/s 120-B of Indian Penal Code, no separate sentence is passed as he was sentenced for main offences.

The prosecution case, in short, is that as there were increasing number of road robberies and dacoities, a Special Squad was created in the Special Crime Branch of Police at Buldhana, PSI Chincholkar (PW5) of Nandura Police Station was also taken in that Special Crime Branch Squad. In connection with that affairs on 03.11.1997, when he had been to Sindhkhed Raja, he received secret information that some 8 to 10 persons of young age from different districts have gathered at the house of one Jyoti d/o Dayaram Pawar at Sindkhed Raja and they were conspiring to commit dacoities and road robberies and therefore, he had informed about it to his superiors and asked for more police force. PSI Chincholkar had received information at about 7.00 to 7.30 P.M. He had called two Panchas namely Govind Tukaram Kayaned (PW7) and Shivprasad Tryambakrao Thakre in the Police Station. After all, Police Officers and the staff including two lady Constables have arrived, after the midnight at about 3.00 to 3.30 A.M., they all proceeded towards the house of Jyoti Pawar. PSI Chincholkar, who was knowing where the house of Jyoti Pawar was situated, proceeded towards her house accompanied by police force and punches. On reaching there they found some 8 to 10 young persons sitting in front of house of Jyoti Pawar and they were discussing among themselves. So the raiding party encircled them. When they were near those persons, they heard those persons saying that "JALDI KARO LAXURY AANE KA TIME HO GAYA HAI. AB TAK APNE KO ROAD PE JANE KO HONA THA. GADI LOOT KAR NIKAL JANA THA."

On hearing of those persons what they were discussing and saying amongst them, police got confirmation that those persons were making preparation for committing dacoity or road robberies. So they apprehended them. Some of them tried to run away. The appellant was one of those persons who were apprehended men and there. The weapons which were possessed by those persons, including the appellant were seized by making Panchnama and they were brought to the Police Station, PSI Chincholkar lodged the complaint vide Exh.19, on the basis of which offence was registered vide Cri.No.64/97. During the course of investigation, the place of occurrence was visited and Spot Panchnama Exh.No.20 was drawn. After completing investigation, charge-sheet came to be filed against the appellant.

At the trial, the prosecution examined in all seven witness including PSI Chincholkar (PW5), Dattu Devram Palve (PWI), Baby w/o Sitram Gawai (Police Head Constable) (PW2), API, Baliram Mahadu Malhare (PW3), Indal Mohan Bahaure (PW4), API. The appellant pleaded not guilty to the charge and claimed to be tried. His defence is that of false implication. It is to be noted that as the appellant was absconding, initially the trial proceeded against the rest of the persons and the trial court has convicted those accused persons. The trial court has reported this fact in the judgment. So also the fact that the order of conviction and sentence as passed against those accused persons, has been confirmed by the High Court. The trial court after appreciation of evidence found that the appellant was amongst those persons who were apprehended at the house of Jyoti Pawar, at the time and place and that he was having a hammer with him and that he was part and parcel of the conspiracy that was hatched at that time and that he was to participate in commission of the crime of dacoity/road robberies. Consequently, the trial court found that the appellant was guilty for the offence for which he was charged and consequently, he came to be convicted and sentenced as stated in earlier part of the judgment. Hence, this appeal.

I have heard Mr. D.A.Parmar, Advocate with Mr. R.M.Daga, learned Advocate for the appellant and Mr. Doifode, learned APP for Respondent-State. I have gone through the evidence on record with the assistance of learned counsel for the parties. I have also carefully gone through the judgment of the trial court.

The learned counsel for the appellant submitted that the trial court was very much weighed by the fact that other persons who were with the appellant at the house of Jyoti Pawar have been convicted by the trial court and therefore, taking into consideration the same set of evidence that was adduced, the trial court accepted the same and wrongly convicted the accused. It is submitted that the appreciation of evidence is not correct. It is further submitted that except the police witnesses, mere is no evidence of independent nature against the accused. He also pointed out infirmity in the evidence which according to the learned advocate makes the evidence of these witnesses doubtful. He also submitted that in the facts and circumstances and the situation that prevailed at midnight, by no stretch of imagination, it can be accepted that the witnesses could have heard the conversation that was going on among the persons who had collected in front of at the house of Jyoti Pawar. He, therefore, submitted that the evidence on record is not at all sufficient to hold the appellant guilty. He further submitted that the trial court committed an error in convicting the appellant and as such, the appellant is entitled to an acquittal. Prosecution has failed to establish clinchingly the guilt of the accused beyond reasonable doubts.

Mr.Doifode, learned APP on the other hand, supported the judgment. He pointed out that the witnesses though they were police witnesses have given evidence in a straight forward manner. It has been established by their evidence that the appellant was apprehended at the time and place in front of the house of Jyoti Pawar. It is also matter of record that hammer was seized from him. It is matter of record that the other persons who were seated in front of the house of Jyoti Pawar also were armed with weapons. That the assembly of so many persons including the appellant at odd hours of night and with weapons, shows that the assembly of the persons including the appellant was not innocuous. It was certainly, with a design to commit offence and as such, the trial court has rightly held that the appellant had participated in the discussion as a member of that assembly where there was preparation of commission of crime and as such, conspiracy to commit crime was hatched and that the present appellant was part and parcel of that conspiracy. He, therefore, submitted that the appeal merits no substantive at all.

I have considered the evidence on record and find that the appreciation of evidence by the trial court is absolutely in correct perspective. There was not reason for the prosecution witnesses to give evidence against the appellant. The defence of denial of the appellant was found to be absolutely absurd when in fact, the witnesses have deposed about the presence and apprehension of the appellant at the time and place. It is true that the evidence that was led by the prosecution mainly comprises of evidence of police witnesses. If we take into consideration the time of occurrence and the fact that the raiding party proceeded to the spot on receiving the secret information, it was time of midnight. So absence of independent witness was possible. As such, there is no reason to discard evidence of police witnesses merely because the prosecution failed to examine independent witness. So on appreciation of evidence independently without being influenced by the observation of the trial court, I am of the view that the trial court has committed no error in accepting the evidence and once the evidence is found to be believable, it has to be said to be that the appellant has rightly been convicted by the trial court. Therefore, appeal merits no consideration at all.

However, the learned counsel appearing for the appellant submitted that the trial court has awarded substantive sentence of three years and fine as stated by me in the earlier part of the judgment. It is submitted that as per record, the appellant was in Jail since 06.07.2001. However, this court by an order dated 04.07.2003 directed to release the appellant on bail and accordingly, he was released on bail on 14.07.2003. It is matter of record that the appellant has paid an amount of Rs. 1,000/- towards fine on 27.03.2003. So it is clear that the appellant has undergone the sentence for a period of two years and 10 days by now. It is, therefore, submitted by learned counsel for appellant that having regards to this fact that the appellant has almost undergone sentence for a period of two years and 10 days, the substantive sentence awarded by the trial court may be reduced to the period of sentence already undergone by the appellant. I have considered this submission and in the facts and circumstances of the case, and more particularly, the fact that the appellant was awarded substantive sentence of fixed duration of three years, I think that it would be appropriate or it would be in the fitness of things and also in the interest of justice, to reduce the sentence to the period already undergone. If that is so, this appeal will have to be allowed partly. Hence, the order.

Appeal is partly allowed while confirming the order of conviction, the sentence awarded by the trial court is reduced to period of two years and 10 days already undergone by the appellant. The appellant is on bail. Since the sentence is reduced to period already undergone by the appellant, the appellant need not surrender. His bail bond shall stand cancelled. The sentence of fine has been confirmed. The appellant has already paid fine.