IMPORTANT POINT
Ingredients of sections 395, 396 and 397 IPC discussed.

Judgment :-

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal is directed against the judgment of the High Court of Bombay Bench at Aurangabad dated 25.04.2007 by which the High Court dismissed the Criminal Appeal No.403 of 2005 and confirmed the conviction and sentence imposed on the appellant for offences under Sections 395, 396 and 397 of IPC. The appellant was imposed with punishment of rigorous imprisonment of five years and a fine of Rs.500/- in default to undergo further three years rigorous imprisonment for offence under Section 395 of IPC, rigorous imprisonment for life and fine of Rs.500/-for offence under Section 396 of IPC and further rigorous imprisonment for three years and fine of Rs.500/- in default to undergo one year rigorous imprisonment for the offence under Section 397 of IPC.

2. The genesis of the case was that on the date of occurrence, namely, 13/14.06.2004, P.W.10 A.P.I., attached to police station Pachod received a wireless message from P.S.I. Dhakne, who was on patrol duty, that some thieves had entered in that area. P.W.10, therefore, proceeded to the police station and on the way he met P.S.I. Dhakne and others and in the enquiry it came to light that the thieves had gone to the adjoining area. They started combing operation in that area and while they were going towards Aurangabad they noticed three persons fleeing on a motorcycle in high speed. The team led by P.W.10 followed those persons and that after a distance of chase those persons abandoned the motorcycle in the place called Jamkhed crossroad and started running in the open field. The police party chased them and could apprehend two out of the three persons. Out of the two persons who were apprehended, one was the appellant. The suspects were brought to the police station and in the meantime, P.W.10 received a telephone call that a theft had taken place in the house of one Vasanta Bhumre. On reaching the house of Vasanta Bhumre, P.W.10, noticed the wife of Vasanta Bhumre lying in the middle room in a pool of blood and his brother Sharad was found dead in the adjacent passage. P.W.10 arranged for sending the injured wife of P.W.2-Vasanta Bhumre to the hospital in the police vehicle and while going to the hospital P.W.9-Mirabai informed P.W.10 that about four to five assailants wearing pant and shirt caused injuries to her as well as the deceased Sharad and fled away from the scene of occurrence in a motorcycle. After admitting P.W.9 in the hospital, P.W.10 said to have returned back to the scene of occurrence and sent the dead body for postmortem after holding the inquest. P.W.10, based on the investigation stated to have learnt that the appellant and his accomplices, namely, Rahul Bhosle, Ravi Shinde, one Balaji and another unknown person (the last two were absconding) indulged in the dacoity in the house of P.W.2 on the night of 13/14.06.2004. The appellant alone was proceeded for the offences under Sections 395, 396 and 397 of IPC, since the other two were juvenile, they were dealt with separately. The prosecution examined as many as 10 witnesses on its side apart from the material objects and chemical analysis report in support of the case. The Trial Court by its judgment dated 09.05.2005 convicted the appellant and imposed the punishment, as above, and the same was confirmed by the High Court, aggrieved by the same the appellant has come before this Court.

3. Assailing the judgment of the Courts below, Mr. Rajiv Nanda, learned counsel for the appellant in his submissions contended that the offence of dacoity per se was not made out in as much as the basic ingredient of five persons conjointly committing the offence of robbery and murder was not made out. The learned counsel also argued that no recoveries either from the appellant or any other person were made as regards the alleged articles looted in the occurrence and, therefore, neither the charge of robbery nor that of dacoity was made out. In support of the said submission learn