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2020 DIGILAW 672 (BOM)

Santosh v. State Of Maharashtra

2020-05-08

VIBHA KANKANWADI

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JUDGMENT 1. Present application has been filed for suspension of substantial sentence imposed on the applicant in Special Case No.04 of 2017 by learned Additional Sessions Judge-2, Kopargaon, Dist. Ahmednagar on 26-07-2019. 2. The applicant has been convicted for the offence punishable under Section 395 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.10,000/- (Rs. Ten Thousand only), in default, to suffer rigorous imprisonment for one year. 3. Heard learned Advocate Mr. R.C. Bora holding for learned Advocate Mr. M.L. Wankhade for applicant and learned APP Mr. P.G. Borade for respondent-State. 4. It has been vehemently submitted on behalf of the applicant that the learned trial Judge has not appreciated the evidence properly. In fact, the applicant alone has been held guilty of committing the offence punishable under Section 395 of Indian Penal Code and other accused persons have been acquitted. Therefore, the question arises as to whether the ingredients of the offence can be said to have been proved. Further, trial has been separated against accused Nos.2 and 3, who are still stated to be absconding. Even if we consider them, yet, there would be only three persons and in order to prove dacoity, minimum requirement is five persons. The prosecution has come with the case that when the incident was going on, all the accused persons had put handkerchief on their face. But then it is stated that the handkerchief of one of the assailant slipped from his face and then he has been identified as accused No.1 i.e. present applicant. There are further questions those are required to be posed as to whether there is proper identification of the accused. It is also the prosecution story that present applicant was already arrested in Crime No.36 of 2014 registered with Shirdi Police Station for the offence punishable under Section 307 of Indian Penal Code and thereafter, he has been got transferred in the present case when the investigation was going on. It is then stated that he had made disclosure. The said disclosure whether can be considered under Section 27 of the Indian Evidence Act is also required to be considered. Therefore, there is merit in the present appeal, which would be heard at subsequent dates and since small sentence has been awarded, the substantive sentence be suspended. 5. It is then stated that he had made disclosure. The said disclosure whether can be considered under Section 27 of the Indian Evidence Act is also required to be considered. Therefore, there is merit in the present appeal, which would be heard at subsequent dates and since small sentence has been awarded, the substantive sentence be suspended. 5. Per contra, the learned APP submitted that there is ample evidence against the present accused. The acquittal of accused Nos.4, 5, 6 and 7 is on technical ground. That does not mean that they had not taken part or there were no more than five persons, when the offence was committed. The prosecution witnesses have categorically stated that there were more than five persons and therefore, the ingredients of Section 395 of Indian Penal Code are definitely attracted and proved by the prosecution. Apart from the fact that at the spot itself, the eye witnesses had seen the face of accused No.1, yet, there is other piece of evidence in the form of discovery which has been made by the present applicant. Therefore, when there is ample evidence on record, leniency need not be shown. 6. It is to be noted that in the FIR itself, it is stated that the handkerchief on the mouth of one of the assailants fell and therefore, the witnesses had seen his face. It appears that he has been identified by the witnesses. Further, there is evidence adduced by the prosecution connecting the present applicant with the crime in the form of discovery. There is criminal record of the applicant. He has been convicted in Sessions Case No.55 of 2012 for the offence punishable under Sections 353, 332, etc. of Indian Penal Code by learned Additional Sessions Judge, Kopargaon for which he has been sentenced to undergo rigorous imprisonment for 5 years. Further, he has been prosecuted and the cases are pending bearing Sessions Case No.10 of 2016 for the offence punishable under Sections 307, 395, 120(B), 326, 143, 147, 148, 149, 504, 506 of Indian Penal Code and Sections 3, 4 punishable under Section 25 of Indian Arms Act, Sessions Case No.15 of 2006 for the offence punishable under Sections 302, 397, 394 read with Section 34 of Indian Penal Code and Regular Criminal Case No.162 of 2015 for the offence punishable under Section 302 of Indian Penal Code, which is pending for committal. Therefore, taking into consideration this criminal background and also the evidence that has come on record, this is not a fit case where the substantive sentence imposed on the applicant should be suspended till the pendency of the appeal. Hence, application stands rejected.