JUDGMENT:- This is an appeal by accused Shriram Pandurang Neware, who has been convicted for offence punishable under Sections 307 and 398 of Indian Penal Code, and sentenced to suffer Rigorous Imprisonment for five years with a fine of Rs.500/-, in lieu thereof, further Rigorous Imprisonment for three months for the former offence and Rigorous Imprisonment for seven years and a fine of Rs.500/-, on failure to pay the same, Rigorous Imprisonment for three months for the latter offence.

2. Along with the appellant, there were other accused persons, namely Accused No.2-Devidas Nathuji Bolwel, Accused No.4 - Sheikh Chand Sheikh Bashir and Accused No.5 - Soyabkha Yunuskha, who were tried similarly, however, have been acquitted towards the charge for offence punishable under Sections 307 and 398 of Indian Penal Code. Trial of Accused No.3 - Ramesh Bhairu Arkhiya has been separated.

3. The story, as emerges and for which accused were charged, as briefly described in the charge, reads as follows :[a] In the night intervening 16th and 17th April, 1999 around 1.30 a.m., near the Railway over bridge at Badnera, the accused persons either individually or in furtherance of their common intention with absconding accused - Dipak Chopade made a sudden violent attack on the ambush party of police with swords and attempted to murder Police Constables [1] Pundlik A. Madavi, and [2] Godode, and thereby alleged to have committed an offence punishable under Section 307 of Indian Penal Code.

[b] Further, at the same place and time, either individually or in furtherance of a common intention, with absconding accused Dipak Chopade, the accused tried to rob the passengers travelling by Ahmedabad-Howrah Express with the help of deadly weapon, namely sword, and thereby are alleged to have committed an offence punishable under Section 398 of Indian Penal Code.

4. Heard learned Advocate Mr. A. S. Band [appointed] for the appellant and learned APP Mr. A. S. Fulzele for the respondent-State.

5. Perused the record.

6. The case is based on oral evidence of PW 2 - Pundlik Adkuji Madavi, Police Constable and PW 3 - Dashrath Govindrao Gondole, Head Constable.

7. Version of PW 2 - Pundlik Madavi on the point of attempt of the accused to commit dacoity and attempt to murder is as follows :-

"1. ..........................................After half an hour Ahamadabad Express came there. It was in the slow speed, due to changing of tracks. I saw 7 to 8 persons while running towards the train which was in the slow speed. Those persons came from the side of locality and they rushed towards General Bogie. 2 to 4 persons entered into bogiee and some of them hanged with it. Those persons were having sword. On given call by me the persons who were climbed on the bogie jumped out and rushed towards me. The persons who were hanged with the bogie also jumped and came towards me. On looking to us they stated as, "Police Wale Hai Maro Sale Ko". One person who was holding sword rushed on the person of Gondadhe, at that time Godhade gave me call and stated save me. I directed that person to stop otherwise I will make fire. In spite of my direction that person was going on the person of Godhade by taking sword. I made a fire by my 9 m.m. Pistol in the air. Therefore, that person rushed towards me by saying (Turn Ko Nahi Chodunga). I made second fire by my pistol but it was disaimed. Thereafter that person rushed towards Gondhode in order to assault him. Therefore, I made fire the bullet was hit to that person. He proceeded ahead and thereafter he fell down. The other persons ran away from the spot. The person who sustained bullet injury failed on the spot, where the light of the focus of railway yard shed was there. We saw that person one sword was lying nearer to him. One Razor was found near to his waist, and there was injury to his forearm, and blood was oozing from his mouth. The companion of the injured person were running towards the direction, where the second group of us was pres

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