- (1.)HEARD learned counsel, appearing for the respective parties.
(2.)BY preferring this appeal, the appellant (original accused No. 4 in Sessions Case No. 26/2003) challenged his c onviction for the offence punishable under section 395 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-, in default to suffer simple imprisonment for four months and also conviction under section 397 of IPC and sentence to suffer rigorous imprisonment for seven years and fine of Rs. 5000/-as well as conviction and sentence for the offence punishable under section 341 of IPC and conviction and sentence for the offence under section 3 and 4 read with Section 25 of the Arms Act, 1959, recorded by the learned Additional Sessions Judge, Sangamner. It may be mentioned here that the original accused No. 1 had preferred Criminal Appeal No. 571/2004 before this court, challenging his conviction and sentence in sessions Case No. 26/2003 and said appeal was partly allowed maintaining the conviction for the offence under section 341, 395 and 397 of IPC, but his appeal was allowed by setting aside the conviction and sentence for the offence punishable under section 3 and 4 read with Section 25 of the Arms Act, 1959 by judgement dated 07-04-2005.
(3.)THE facts relevant for the decision of this appeal, in brief, are as under. The incident in question was alleged to have taken place on 19-06-2003 at about 11. 45 a. m. on dhandarphal (Khurd) road near brick kiln situated at the bank of Pravara river. Complainant Dhondiba rambhau Bhojane and his colleague Bhagwan Namdeo kanwade were proceeding on a motor cycle No. MH-17/b-7794. They were carrying with them a cash-box containing cash of rupees ten lacs. They had collected this cash from the Marketyard Branch of a. D. C. C. Bank, Sangamner. The said amount of rupees ten lacs was given in currency notes in the following denominations. JUDGEMENT_680_TLMHH0_2006Html1.htm At the relevant time, Clerk Bhagwan Kanwade was riding the said motorcycle and complainant Dhondiba Bhojane was sitting on the pillion seat. When they reached near brick kiln, complainant Dhondiba Bhojane noticed that one blue colour UNO car was coming in high speed from their back side. He, therefore, asked Bhagwan kanwade to take the motorcycle by the side of the road. However, the said car over-took their motorcycle and halted just in front of it. As the car had come abruptly, the motorcyclist Kanwade lost his balance and the motorcycle fell on the ground. That time, cash box was in the hands of complainant bhojane. As soon as the car was stopped, five persons got down from the said car and they threw chilly powder towards the complainant Bhojane and Kanwade. However, as Kanwade had put his sun glasses, the chilly powder did not cause any damage to him. Immediately thereafter, two persons who had got down from the car started assaulting complainant Bhojane and Kanawde. One person of slim appearance and having black complexion assaulted Bhojane on his back with an iron bar and the other person who was wearing blue shirt assaulted Kanwade by meamsn of a weapon like a small sword. As a result of the same, Kanwade sustained bleeding injury. One person out of them who was having beard, snatched the cash box from the hands of Dhondiba Bhojane and then all those dacoits fled away by the same car towards Nimgaon. Thereafter, both complainant Bhojane and Clerk Kanwade went back to A. D. C. C. Bank, Branch Dhandarphal (Khurd ). They informed the incident to the Branch Manager who then intimated the said incident to the police. Injured complainant Bhojane and Kanwade were sent to Sangamner for medical treatment. In the meantime, a message was given to the Branch Manager of A. D. C. C. Bank, branch at Nimgaon about the incident and they were informed that car had proceeded towards Nimgaon direction. The moment police were informed about the dacoity i. e. at about 12. 15 noon, Police Inspector Tulshidas Pawar informed the said fact to the Deputy Superintendent of police and proceeded towards the place of offence. By the time he reached there, he came to know that the dacoits have gone towards village Pemgiri. He, therefore, proceeded towards that direction. When the car of the dacoits reached near Pemgiri, due to some mechanical defect, it halted there and the occupants of the car ran away towards the hill which was near from the said place. However, the villagers who had seen the car proceeding towards Pemgiri, had chased the said car. At that time, two Police Constables had also chased the dacoits. Ultimately, accused No. 2 who was running from the said hill, was caught by the two Constables with the help of the villagers. Similarly, the accused No. 1 was also caught while running from the hill. The accused No. 2 was found possessing two bundles of currency notes of Rs. 100/-denomination and the same were wrapped in one handkerchief. Police then arrested the said accused persons. Police Inspector Tulshidas Pawar then went to Tambe Hospital where complainant Bhojane was shifted and recorded his statement. On the basis of the said complaint, offence came to be registered vide c. R. No. 95/2003. Thereafter, he visited the place of offence and the place of panchanama came to be recorded. On interrogation of accused No. 1, he made a statement before the Police that he would point out the place where he had concealed the cash. Accused no. 1 led police and panchas towards one field and from that place, he took out one bag containing cash amount of rupees four lacs. All those bundles having labels of Banks and Patsanstha came to be discovered. Accused No. 4 (i. e. present appellant) was alleged to have been apprehended by the villagers of mirzapur. PW24 Police Inspector Tulshidas Pawar came to know that villagers of Mirzapur had apprehended this appellant. He, therefore, immediately went to village Mirzapur. In presence of PW16 Bhaskar Walve, the panch witness, search of the appellant was taken and in the personal search, cash of Rs. 1,50,000/-was found with him. That cash was in the form of three bundles of denomination of currency notes of Rs. 500/-, each containing 100 notes and each having label of A. D. C. C. Bank, Branch at Sangamber. PW24 Police inspector Pawar recorded arrest panchanama as well as seizure panchanama (Exh-110) and cash came to be seized.