Conviction under Section 395 of IPC can stand with less than five participants if evidence clearly establishes involvement in the robbery.

JUDGMENT:

1. The appellant questions conviction recorded in Sessions Case No.55/2009 for offense under Section 395 of IPC, directing to undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/-; in default, rigorous imprisonment for three months, by order dated 15.9.2011 of the learned Assistant Sessions Judge, Majalgaon, district Beed.

2. FACTS:

(a) In the night of 15.9.2009, PW No.1 Dilip Sable and Dnyanoba Sable were sleeping in the jewellery shop of his uncle, Omkar Jewellers with Babasaheb Arjun Muli, Arjun Laxman Jadhav, Santosh Balasaheb Solunke, Sandip Chaganrao Chalak. As per practice, said Dilip had carried gold ornaments of his shop Kedareshwar Jewellers to the shop of Omkar Jewellers to be safely stacked. At about 4 a.m., Santosh heard rattling noise of disturbance to shutter and, resultantly, they woke up. They were stunned to see five persons, muffled, barged in the shop by curving the shutter. They were armed with knife, iron bars. All of a sudden, those persons started thrashing inmates, and commanded key of the locker. On pleading ignorance by the inmates, the decoits broke open the cupboard and removed silver and gold ornaments. When they were busy in opening / fiddling with the locker, taking advantage of the situation, PW No.1 contacted Deelip Solunke, owner of the shop on mobile. Resultantly, Dilip, along with his father, Tukaram rushed to the spot. Dacoits started leaving the shop with loot. Owing to commotion, one of the decoits was nabbed by these five inmates. In the scuffle, shoulder of the shirt of the suspect was torn, however, he was controlled. Outside the shop also, scuffle and commotion emerged. Dilip and Tukaram were brutally assaulted by four thieves, who left the shop with booty. One of the person, apart from them, was waiting in a car, however he, sensing gravity of the matter, sneaked away. Decoits were chased. Injured were rushed to hospital. A detailed report was lodged to the Police. The nabbed suspect / appellant was produced before the Police. He was put under arrest, in his search gold ornaments worth Rs.97,280/- was taken charge. There was no explanation offered by the appellant for possessing gold ornaments and his presence at about 4 a.m. in the jewellery shop. Immediately, at the instance of the accused, house of his accomplice was searched where gold ornaments worth Rs.5,39,520/- were collected under panchnama Exh.109-C. From the house of another suspect Raghuvirsing, gold ornaments worth Rs.1,66,000/- were taken charge (panchnama Exh.110-C).

(b) The injured Dilip and his father Tukaram being in serious condition, were referred to hospital and they remained indoor patient for a considerable duration.

(c) The accused Chatursing was arrested on 27.1.2010, gold ornaments worth Rs.1,17,267/-were taken charge from him in terms of statement under Section 27 of the Evidence Act under seizure panchnama.

d) Another accused Bablusing was arrested, supplementary chargesheet was filed against him on 27.7.2010. All the three accused were separately chargesheeted in respect of common offense, and common intention, the learned Sessions Judge clubbed the cases together and a common charge for offense under Section 395 , 397 of IPC was explained to the accused below Exh.8, and the accused pleaded not guilty and claimed to be tried. The defense was of total denial.

(f) Eighteen witnesses have unfurled the prosecution case.

3. Complainant Dilip Sabale is PW No.1. His evidence is corroborated by PW No.4 Narayan Mali who was vendor himself but, incidentally, in the said night, had rested in Omkar Jewellers, had kept the ornaments at the said shop for safety. Evidence of PW Nos.1 and 4 is substantially corroborated by PW No.15 Tukaram Solunke, his son Dilip Solun