1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 369 OF 2009 1. Ramesh alias Rimkya Bedya Kale, ] Age 25, Occ : Labourer, ] Residents of Lasurne, Tal : Indapur, ] Dist. Pune ] 2. Santosh Agramya Kale, ] Age 27, Occ : Labourer, ] Residents of Lasurne, Tal : Indapur, ] Dist Pune ] (presently detained at Terawala Central ] Prison) ] Appellants Versus The State of Maharashtra ] Respondents Mr. Rahul S. Kate for the Appellants Mrs. M.H. Mhatre, APP for State CORAM : A.R. JOSHI, J DATE : 05th May, 2009 ORAL JUDGMENT: 1. Under rather peculiar circumstances, present appeal is taken up for final disposal expeditiously as the appellants / original accused nos. 1 and 3 preferred an application for bail bearing no. 353 of 2009 for their release on bail during pendency of Criminal appeal. Till today, when initially bail application was taken up, appellants / accused nos 1 and 3 had already Rma APEAL29309050509.sxw 2 undergone imprisonment for 5 years 3 months and 5 years 4 months respectively whereas they were convicted for the offence punishable under Section 395 of IPC and sentence to suffer RI for total 6 years and find of Rs. 1000/-. As such, out of total imprisonment of 6 years, they have virtually undergone almost 90% of the sentence. This factual position prompted this Court to take the present criminal appeal for expeditious hearing and disposal instead of dealing with the application for bail. 2. In the present appeal, the judgment and order dated 13th May, 2005 passed by the Additional Sessions Judge, Baramati, Dist. Pune is challenged. By the said judgment and order, the present appellants along with co-accused no. 4 were convicted for the offence punishable under Section 395 and sentence to RI for 6 years and fine of Rs. 1000/-; in default, RI for 6 months. 3. Learned advocate Shri. Rahul Kate for Appellants submitted that considering the effect of substantive evidence brought before the Trial Court and considering the allegations against the Appellants for the offence punishable under Section 395 of IPC, a sort of leniency may be shown and sentence of 6 years may be modified to a sentence which the appellants have already undergone. Alternatively, it is submitted that considering the substantive evidence and mainly, the evidence of P.W. 17, 18 and 19, their Rma APEAL29309050509.sxw 3 appeal is required to be allowed by setting aside the impugned judgment and order. 4. Prior to appreciating the arguments advanced on behalf of the appellants, it may be mentioned that the actual instance of dacoity took place on 17th November, 2001 at Kadamvasti, Baramati, Dist Pune. At early hours between 17th and 18th November, 2001, about 6 to 7 dacoits entered the house of complainant (PW 15) when the family members and other relatives including ladies were sleeping in the house. The residents of house were threatened of dire consequences and gold, silver ornaments, wrist watches, clothes and 3 vehicles i.e 3 scooters M-80's make were taken up and looted. Reportedly, 3 vehicles were obtained in nearby areas and they were found during investigation by the police. On the complaint (Ex 62) given by P.W 15, investigation was started. The present accused nos. 1 and 3 were arrested subsequently after about one year one month. They came to be arrested on 9th December, 2002. Other accused were also arrested. In all,there were six accused who faced the trial. Charge was framed against the six accused as to indulging in the offence of dacoity in association with two other absconding accused. During the trial, total 30 prosecution witnesses were examined. Out of them, the important witnesses so far as the present appeal is concerned are PW 15 - complainant who identified accused no. 3, PW 17 who identified accused Rma APEAL29309050509.sxw 4 no.1 in TI parade which was conducted on 2nd January 2003; however, he could not identify accused no. 1 at the time of trial in the Court, P.W.18 who identified accused nos. 1 and 3 and also another accused no. 4 in TI Parade and also in Court during the trial. However, reportedly, his statement was not recorded by the police. PW 17 identified accused nos. 3, 4 and 5. It appears that apart from substantive evidence of above referred prosecution witnesses, there is no other material before the Trial Court as pancha witnesse recording alleged recovery of gold ring at the instance of appellant - accused no. 1 turned hostile. Another evidence which weighed with the Session Court is substantive evidence of PW 29 - local Tehsildar who conducted test identified parade in which all the accused nos. 1 to 4 placed at the same time. 5. This Court has gone through the reasoning given by PW 17 and 18 and it appears that mainly, substantive evidence of PW 18 who identified the present appellants in TI Parade and also in the Court was taken as truthful and mainly on the basis of said evidence, the appellants came to be convicted and till today, they have undergone substantive part of their sentence, almost 90%. 6. In the opinion of this Court, considering the above situation, it would be in the fitness of things to alter the sentence keeping the conviction of Rma APEAL29309050509.sxw 5 appellants for the offence punishable under Section 395 of IPC. In that view of the matter, in the opinion of this Court, the imprisonment already undergone by the appellants - accused nos. 1 and 3 shall be construed as imprisonment awarded to them and to that extent, the impugned judgment and order is required to be modified. In result, present appeal is disposed of with following order: O R D E R The impugned judgment and order dated 13th May 2005 in Sessions Case No 89 of 2003 is modified, so far as sentence of imprisonment is concerned maintaining the conviction of appellants - accused nos. 1 and 3 for the offence punishable under Section 395 of IPC, substantive sentence of 6 years granted by the impugned judgment and order is reduced to the sentence already undergone by the Appellants - accused nos. 1 and 3 and in that event, the appellants shall be released from the jail custody if not required in any other matter and if the fine amount is already paid. If the fine is not paid, they will remain in jail custody. With these directions, the present Criminal Appeal is accordingly disposed of. (A.R. JOSHI, J) Rma APEAL29309050509.sxw 6 Rma APEAL29309050509.sxw