JUDGEMENT
A. I. S. Cheema, J. -
(1.)Before the Adhoc Additional Sessions Judge, Nanded in Sessions Case No.86 of 2002 following were the 7 original accused:
1) Shaikh Mujeeb s/o Shaikh Maheboob
2) Hanuman @ Hanmant s/o Kashinath Ugale,
3) Sadashiv Kashinath Ugale,
4) Ramesh s/o Sugand Kamble,
5) Shivaji s/o Madhavrao Suryavanshi,
6) Promod @ Ramatya Madhavrao Suryatale,
7) Mahesh Ramkishan Sharma.
. Out of the above accused, accused No.6 Promod died during pendency of the trial. Rest of the accused came to be convicted under Section 395 of the Indian Penal Code, 1860 (for short "I.P.C.") and were sentenced to suffer rigorous imprisonment for three years and fine of Rs.1000/each.
In default, to suffer simple imprisonment for three months. Against the Judgment of conviction and sentence, present Criminal Appeal No.459 of 2004 was filed by original accused Nos. 1 to 3. Appellant No.2 Hanuman died pending this Appeal and the matter abated regarding accused No.2 Hanuman. Original accused Nos.4 and 5 Ramesh Sugand Kamble and Shivaji Madhavrao Suryavanshi, respectively, are the Appellants in Criminal Appeal No.466 of 2004. Thus, the present Appeals came up for hearing for original accused Nos.1 and 3 to 5.
(2.)The case of prosecution, in brief, is as follows:
(A). Complainant Bhagwan Dhadekar (PW8) is Auto Rickshaw driver at Nanded. On 14th January, 2001 in the afternoon when he was waiting for passengers at about 1.30 noon, at Sarpanchnagar on Malegaon road, suddenly four persons came from behind and boarded his Rickshaw. One of the persons (accused No.1) had bleeding injury on the head. He (accused No.1) had a sword and the persons threatened the complainant to proceed and take the Rickshaw towards Swyamwar Mangal Karyalaya. After proceeding about 150200 feet, they asked the Auto Rickshaw to be stopped and another two persons sat on both sides of the complainant and abused the complainant on the name of his mother and asked him to proceed or they would hit by the sword. The complainant proceeded accordingly and the vehicle proceeded towards Navjeevan Nagar. There the complainant was asked to stop and the six persons got down. When the complainant asked for the fare, he was threatened and beaten by kicks and fist blows. At that time from a house, yet another person came with a sword and out of fear for life the complainant ran towards a house. The seven persons damaged the Auto Rickshaw No.MH26/ B1884 to the glass and frame by sword and stones. To save the damage to the Auto, the complainant again went near the accused persons, at which time one of the accused raised sword and asked him to go away and the seven persons sat in the Rickshaw and forcibly took the same away. Complainant ran to Taroda Naka Police Chowki and informed the Police officials there and with the help of Police jeep, searched for the accused persons. The complainant when he went to the Police Station for giving complaint, found three of the persons in the Police Station and identified them who had robbed his Auto Rickshaw. Their names were learnt as Hanuman Kashinath Ugale (accused No.2), Sadashiv Kashinath Ugale (accused No.3) and Shaikh Mujeeb (accused No.1). The person who had injury to the head was accused No.1 Shaikh Mujeeb. After forcibly taking the Auto Rickshaw at Navjeevan Nagar, Kirana Shop owner Rajesh Shridharrao Debadwar (PW1) had also been robbed, was learnt by the complainant. First Information Report (F.I.R.) to above effect was filed by the complainant and Crime No.6 of 2001 came to be registered at Bhagyanagar Police Station, Nanded at 4.05 p.m. At 4.35 p.m. the arrest Panchnamas of accused Nos.1 to 3 were drawn and they were formally arrested by the Police.
(B). Information was received of Auto Rickshaw being abandoned at a place in Navjeevan Nagar and Police seized the same at 6.30 p.m. on the same day. The vehicle was found on Purna Road near Bapatnagar of the city. A.P.I. Bhimrao Shingare (PW9) prepared Panchnama (Exhibit 75). The vehicle was found in damaged condition with glass broken. The pieces of glass were also seized.
(C). A.P.I. Bhimrao Shingare recorded statements of witnesses. Accused Nos.4 and 5 came to be arrested on 16th January 2001 at 22.15 hours (Exhibit 99 and Exhibit 100). Deceased accused No.6 Promod was also arrested on 16th January 2001 (Exhibit 101) and accused No.7 came to be arrested on 30th January 2001 (Exhibit 102).
. While in custody, accused No.2 Hanuman, on 16th January 2001 gave discovery of sword, in presence of Panchas, which was hidden near an electrical D.P. between Taroda Naka to Chhatrapatinagar, on Purna road where it had been buried in open place. The memorandum and Panchnama (Exhibit 65 and 66) were drawn. Accused No.1 Shaikh Mujeeb gave discovery of the amount of Rs.700/which was robbed from the shop of PW1 Rajesh and the amount was discovered at the instance of accused No.1 on Purna road, near Lokmitranagar from bushes near a field. The amount had been kept in a carry bag. Memorandum and Panchnamas (Exhibit 67 and 68) were drawn, by PW9 A.P.I. Bhimrao Shingare. After the investigation, chargesheet came to be filed before the J.M.F.C., 3rd Court, Nanded. The offence being sessions triable, the matter was committed to the Court of Sessions. Charge was framed vide Exhibit 32 against accused Nos. 1 to 5 and 7, for the two incidents committed in the same series of offence, under Section 395 of I.P.C. The accused persons pleaded not guilty. Their defence is of total denial.
(3.)In the trial Court, prosecution brought on record oral evidence of nine witnesses. After considering the evidence, the trial Court convicted the accused persons as mentioned above.
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