RAMESH NAVNATH KALE AND ANR v. THE STATE OF MAH

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2 of the offence punishable under Section 395 of the Indian Penal Code and sentencing each of the appellants / accused to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5000/- each, in default of payment of fine, each accused to suffer simple imprisonment for one year.

2. The prosecution case, in nutshell, is as under :-

(a) The complainant Mukesh (PW 4) was working as salesman at Bhopal. The said Mukesh came in contact with one Anil Bhosale in prison at Bhopal. It is the prosecution case, that the complainant was told that Anil is having golden ornaments and that he will be selling them at cheaper rate. It is the prosecution case, that six months prior to the date of the incident, the complainant and his friend, namely, Ajay had come to Ahmednagar by railway. They had contacted one Ramesh Ingle, appellant no.1. It is alleged that said Ramesh had taken away the complainant to open field at Khadki Shiwar. Anil Bhosale and his mother were present there. The mother of Anil had shown golden ornaments. It is the prosecution case, that as such the complainant was assured that he would get golden ornaments at cheaper rate and, therefore, he decided to contact accused Ramesh for the said purpose.

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(b) It is the prosecution case, that the complainant himself, his friends Pankaj and Sunny came at Ahmednagar by Jhelum Express. They had already contacted accused Ramesh on his mobile phone. It is the prosecution case, that accused Ramesh and his friend Bablu had come to railway station for receiving them. Thereafter, all of them had reached at Hotel Samadhan. Thereafter, they went up to village Khadki truck by truck and thereafter they came to southern side of village Khadki by Kaccha road by walking about 25 minutes. It is alleged that thereafter accused Ramesh and Bablu introduced there one person as maternal uncle of Ramesh, namely, Habrya, appellant no.2. It is alleged that thereafter appellant no.2 asked the complainant as to how much amount was brought for purchasing gold, on which the complainant told him that he had brought Rs. 60,000/-. It is alleged that the appellant no.2 thereafter said that he would not sell the gold for an amount less than Rs. 1,00,000/-. It is further the prosecution case, that however, accused Ramesh convinced his maternal uncle and as such, accused no.2 agreed to sell the said gold for Rs. 60,000/-. It is alleged that, however, 6 - 7 unknown persons came there with sticks in their hands. At that time, mother of accused Ramesh i.e. accused no.3 Kusum @ Nerabai was also present. Accused Ramesh snatched mobile phone from the complainant. Accused

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no.2 Habrya had snatched the bag containing Rs. 60,000/-, T-shirt, mobile charger and his locket and they fled away in the Jawar crop. The complainant and his friend had tried to chase them but they did not succeed. They came to the Police Station and narrated the incident.

(c) Police came along with the complainant and searched the accused persons. They found accused Ramesh in Ghospuri Shiwar. It was noticed that the accused had earlier told his incorrect name and accordingly his corrected name came to be recorded. Police took search of the house of accused Ramesh and they seized cash amount of Rs. 38,750/-, mobile charger and while colour T-shirt. It is further prosecution case, that on memorandum statement of accused no.2, a stick which was allegedly used in the offence, was seized. A mobile allegedly used in the offence was also seized from accused Ramesh on his memorandum statement.

(d) After completion of investigation, charge sheet came to be filed against the present appellants, so also, mother of appellant no.1 Ramesh, namely, Kusum @ Nerabai and one Gorakh.

3. The trial court after appreciation of evidence, convicted and sentenced the present

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appellants, as aforesaid, and acquitted two other accused. Being aggrieved thereby, the present appeal is preferred by the appellants / original accused nos.1 and 2.

4. Mrs. S.S. Jadhav, learned Counsel appearing for the appellants, submits that the trial court has grossly erred in convicting the appellants / accused for the offence punishable under Section 395 of the Indian Penal Code. She submits that as per definition of the term "dacoity", minimum number of five accused have to be shown to have committed offence of robbery. It is submitted that since the accused were not five in number, the offence of dacoity was not made out. She further submits that there is material discrepancy in the evidence of complainant Mukesh (PW 4) and Pankaj (PW 5) regarding the incident. She submits that it is further to be seen that the description of the notes given by the complainant does not tally with the description of notes seized from the house of Mukesh. In any case, she submits that the recovery was not in accordance with law and cannot be relied upon by the prosecution. She further submits that even mobile phone, which is alleged to have been seized from accused Ramesh, is not the mobile of the complainant but that of the accused and as such, no reliance could be placed on the said recovery.

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5. Mrs. R.R. Mane, learned Additional Public Prosecutor appearing for the respondent / State, on the contrary, submits that the trial court has rightly convicted the appellants / accused for the offence punishable under Section 395 of the Indian Penal Code. She submits that from the deposition of the prosecution witnesses, it can be seen that there were more than five persons at the spot of the incident. She further submits that it can be seen that the violence is attributed to the accused in the statements of the witnesses and as such, conviction under Section 395 of the Indian Penal Code is totally justified in the facts of the case. She, therefore, submits that no interference is warranted in the present case.

6. It could be seen that the prosecution mainly relies on the evidence of complainant Mukesh (PW 4), his friend Pankaj (PW 5), recovery of cash from the house of appellant no.1 Ramesh, recovery of mobile on memorandum of accused no.1, and recovery of stick on memorandum of accused no.2. It will have, therefore, to be seen as to whether the prosecution has been in a position to prove the case beyond reasonable doubt for offence punishable under Section 395 of the Indian Penal Code.

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7. "Dacoity" has been defined in Section 391 of the Indian Penal Code. It can, therefore, be seen that for charging the accused for "dacoity", it is necessary that there have to be five or more persons who conjointly commit or attempt to commit a robbery. In the present case, it can be seen that apart from the fact that out of four persons charged with committing dacoity, two have already been acquitted. There was not even charge of dacoity against five persons. It could thus be seen that the conviction of the appellants / accused for the offence punishable under Section 395 of the Indian Penal Code was totally unsustainable in law.

8. Learned Additional Public Prosecutor has, in the alternative, submitted that the offence would fall under robbery.

9. It can clearly be seen that it is the prosecution case, that the complainant and his friend had gone to accused no.1 to purchase gold at cheaper rate. It could be further seen that they were with accused no.1 for considerable time. They had lunch together and from there they went to the spot where they were supposed to purchase the stolen property from accused no.2. It is also the prosecution case, that the accused no.2 was insisting that he would not sell the said property for an amount less than Rs.

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1,00,000/-. However, on an intervention of accused no.1, he had agreed to sell it for Rs. 60,000/-. It is the version of Mukesh (PW 4), that when they had gone to complete the deal, 8 - 10 children came out of the bushes having sticks in their hands. He has further stated that the maternal uncle of Ramesh snatched the bag containing money. It is also stated that the bag was containing T-shirt, mobile charger and Rs. 60,000/-. He has further stated that the maternal uncle of Ramesh snatched golden locket of the complainant.

10. The corroboration to the evidence of Mukesh (PW 4) is sought to be taken from the evidence of Pankaj (PW 5). Pankaj (PW 5) has, however, stated that the bag was snatched by accused no.1 Ramesh containing T-shirt, mobile charger and Rs. 60,000/-. Apart from the vague allegation regarding the manhandling and some persons having stick in their hands, there is nothing in the evidence of these witnesses which would show that any attempt to assault the complainant and his friend was made or any threat of hurt was given by the accused persons to the complainant.

11. In so far as theft is concerned, I find that since the amount of Rs. 38,750/- has been seized from the house of accused no.1 Ramesh immediately

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after the incident has occurred and since no plausible explanation for possessing such an amount has been given by the accused persons and that evidence of both witnesses, regarding snatching of the said bag, is consistent with each other, I find that the prosecution has proved the case of having committed theft. However, for proving charge of robbery, the prosecution is required to prove something more than taking away the property. It has to be shown that in order to the committing of theft; or in committing the theft; or in carrying away or attempting to carry away property obtained by theft; the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. There is no evidence brought on record by the prosecution to show that the accused in the act of committing of the theft, had voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint or had caused any fear to that effect.

12. In that view of the matter, I find that the contention of the learned Additional Public Prosecutor, that the offence of robbery is proved, cannot be accepted. I am of the considered view that no evidence to prove the charge under Section 395 of the Indian Penal Code has been placed on record.

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Accordingly, I find that the conviction under Section 395 of the Indian Penal Code was totally not sustainable in law. Hence, the order of conviction and sentence for offence punishable under Section 395 is, therefore, liable to be set aside. However, in the facts of the case, I find that the prosecution has established the case of theft against the appellants / accused. Accordingly, appellants / accused are liable to be convicted for offence punishable under Section 379 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years which is the maximum sentence that can be awarded for the said offence.

13. Hence, appeal is partly allowed.

. The order of conviction and sentence passed by the learned Additional Sessions Judge, Ahmednagar, dated 10th April 2007 in Sessions Case No. 57 of 2006, is modified, in so far as the present appellants / accused are concerned.

. The conviction of the appellants / original accused nos.1 and 2, for offence punishable under Section 395 of the Indian Penal Code and the sentence awarded thereunder, is quashed and set aside. Fine amount, if paid, be refunded to the respective appellants.

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. However, appellants / original accused nos.1 and 2 are convicted of the offence punishable under Section 379 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for three years. Needless to state that the accused shall be entitled for set off for the period already undergone by them.

( B.R. Gavai )

JUDGE

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bgp/kapp302