VIJAY MADHUKAR THORAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THROUGH this appeal, the appellant-original accused has challenged the judgment and order dated 21. 3. 2006 passed by the learned 10th Adhoc Additional Sessions judge, Sewree at Mumbai in Sessions Case No. 5 of 2002. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 392 and 394 read with Section 34 of IPC and sentenced him to RI for ten years and fine of Rs. 10,000/- in default RI for six months.

(2.) THE prosecution case briefly stated is as under : the complainant PW-1 Devising Dasana was working in partnership with one Devilal sain (deceased ). Both of them were partners in jewellery business. Every Saturday, they used to visit jewellery shops at Andheri for selling the jewellery and receiving orders and payments. On the day of the incident, P. W. I devising, along with Devilal went to Andheri. They were carrying various gold jewellery items weighing about 6 kgs. of gold and cash of about rs. 3 lakhs received by way of payments. They had visited about 12 jewellery shops and collected money which was due to them from various transactions. Thereafter, they went to jogeshwari. When they were at Jogeshwari, their Rickshaw stopped at rickshaw stand near railway station, suddenly three persons attacked them. Out of said three persons, one person took out a revolver and held it to the head of devising. The other persons started snatching away the bag of Devising. Devising was assaulted with chopper on the right shoulder by the said person and said person finally succeeded in taking away his bag. Thereafter, these persons ran away. At that time, Devising saw Devilal lying on the road about 10 feet away from the Rickshaw. Devilal had sustained bleeding injury. The bag containing jewellery had been snatched from Devilal by the miscreants. Devising removed Devilal to cooper Hospital, however, Devilal was declared dead on admission. Thereafter, the FIR came to be recorded and investigation commenced. The present appellant came to be apprehended in another case on 19. 7. 2002. Thereafter, he was arrested in the present case on transfer warrant on 22. 7. 2002. Test identification parade came to be held on 9. 8. 2002. Devising was called at Kalyan Jail for identification parade on 9. 8. 2002. Out of the persons standing in the parade, Devising identified the present appellant who assaulted him and took away his bag containing jewellery and cash. After completion of investigation, the charge-sheet came to be filed. In due course, the case was committed to the Court of Sessions.

(3.) CHARGE came to be framed against the appellant and other accused under Section 392 of IPC. In the alternative, charge was framed under Sections 394 and 397 read with section 34 of IPC and under Section 302 read with Section 34 of IPC for causing death of devilal Sain. The defence of the appellant was that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal.