1. This appeal takes exception to the Judgment and Order passed by the additional Sessions Judge, Pune dated July 23, 2003 in Sessions Case No.455 of 2000. The appellant Accused No.1 alongwith three others were chargesheeted and tried for offence punishable under Section 395 and 397 of I.P.Code for committing dacoity themselves and deceased Raibirsingh Niranjansingh Sandhu by forcibly taking away bag containing amount of Rs.70,000/- and gold ornaments worth Rs.7,00,000/- from the possession of the complainant-Ramesh Mohanlal Jain while he was travelling by a rickshaw at Nigadi and further while committing dacoity used deadly weapon viz.sickle and iron rod.

2. For the nature of order that I propose to pass, it is not necessary to deal with the factual matrix or for that matter entire evidence produced by the prosecution. This is so because the sole argument canvassed before this court is that even if the finding of fact recorded by the trial Court regarding involvement of appellant/accused No.1 in the commission of some offence is accepted as it is, by no standard the appellant can be proceeded with for offence punishable under section 395 and 397 of the I.P.Code. At best, the appellant/accused No.1 can be proceeded for offence punishable under section 394 of I.P.Code of having caused voluntarily hurt in committing robbery. This conclusion is inevitable on the basis of findings reached by the trial Court. For, the trial Court in paragraph-20 of the Judgment has found as of fact that neither the complainant Ramesh Jain P.W.1 nor any other prosecution witness has disclosed involvement of accused No.3 Deepak Oswal and Accused No.4 Vilas Kalamkar or the deceased Raibirsingh were found on the scene of the offence. In other words, out of the five persons who were chargesheeted and tried for offence of dacoity, the Court below has positively found that the prosecution has not established the presence of atleast three of those persons on the scene of offence at the relevant time. This finding of fact reached by the Court below has not been assailed by the State. On this basis, Counsel for the appellant contended that the conviction for offence punishable under sections 395 and 397 of I.P.Code cannot be sustained in law. Reliance is placed on the decision of the Supreme Court in the case of Om Prakash and another V/s. State of Rajasthan reported in AIR 1998 S.C. 1220.

3. Having considered relevant materials on record, I have no hesitation in accepting the aforesaid submission made on behalf of the appellant/accused No.1. Once the Court below had found, as of fact, that, the prosecution has failed to establish the presence and involvement of accused No.3, accused No.4 and accused Raibirsingh, who allegedly participated in the dacoity on the fateful day, by no stretch of imagination the remaining two accused can be proceeded and convicted for offence punishable under section 395 and 397 of I.P.Code. This legal position can be culled out from the exposition in the case of Omprakash(Supra).

4. The learned APP however, supported the order passed on the basis of observation made by the trial Court in paragraph-12 of the impugned Judgment. In paragraph-12 of the impugned Judgment, the trial Court has referred to the evidence of P.W.1 and P.W.3 to hold that the prosecution stand that there are five or more dacoits cannot be disbelieved. The trial Court has then observed that when the robbers ran away in the car, which was parked near the place of incident, "there must have been 2-3 persons in the car." One of them was driving the car and others watching the activities of the complainant as well as the persons who robbed the complainant. Interestingly, there is no legal evidence to support this finding of fact. This observation in paragraph-12, to say the least, is conjecture and surmises drawn by the trial Court. Neither P.W.1 nor P.W.3 or any other prosecution witness has expressly stated that five or more persons were engaged i