1 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 262 OF 2008 Shahaja Englishya Kale ) Aged 56 years, Residing at ) 58, Phata, Near Dholaba ) Mandir, In front of the ) J.M.F.C. Court, Malshiras ) presently in custody at the ) Yerwada Central Prison, ) Yerwada, Pune )...Appellant Versus The State of Maharashtra ) At the instance of Akluj ) Police Station ) ...Respondent WITH CRIMINAL APPEAL NO.1032 OF 2008 Sudam @ Sudeshna Suresh Pawar ) Aged 31 years, Residing at ) Malegaon Taluka Baramati, ) 2 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) Dist.Pune. Presently in ) custody in the Yerwada Central) Prison, Yerwada, Pune ) ...Appellant Versus The State of Maharashtra ) At the instance of Akluj ) Police Station ) ...Respondent ----- Mr.P.R. Arjunwadkar for Appellants Mr.A.S.Shitole -APP for the State ----- CORAM: V.M. KANADE J. DATED: 29TH SEPTEMBER, 2010 ORAL JUDGMENT 1. Both the Appellants are challenging the judgment and order passed by the Additional Sessions Judge, Malshiras dated 14.9.2007. By the said judgment and order, the Learned Sessions Judge was pleased to convict the Appellant Shahaja Kale and accused No.2 Sudam Pawar for the offence punishable under sections 395 and 397 of the Indian Penal Code and sentenced to 3 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) suffer R.I. for 7 years and pay a fine of Rs.1,000/- and, in default, to undergo R.I. for one month on each count. Substantive sentence was directed to run concurrently. 2. The prosecution case is that the Appellants along with the other accused had entered the house of the Complainant at night and assaulted PW-1 Vasumati Gandhi and her husband Ajit Gandhi and took away the golden ornaments. The accused were arrested on 25.3.2005. Chargesheet was filed and, thereafter, on the basis of the evidence adduced by the prosecution, the Appellants and other accused have been convicted by the Sessions Court. 3. I have heard Shri P.R. Arjunwadkar, the learned counsel, who has been appointed as amicus-curiae to assist the Court. He has invited my attention to the judgment and order of the Trial Court and also the evidence on record. 4 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) 4. I have heard the learned APP for the State. In the present case the prosecution examined the Complainant PW-1 and panch witnesses. In all 10 witnesses were examined by the prosecution including the Special Executive Magistrate, who conducted the test identification parade in respect of both the accused. PW-1 in her evidence has stated the sequence of the events and has also stated that the dacoits had not worn any mask. She has stated that she has given the description of the property to the police. The police officer showed her an album of the known dacoits. However, she has not identified the dacoits and after 2 ½ months, she had again called to identify the accused in the test identification parade held by the Special Executive Magistrate. The PW-1 identified both the accused in test identification parade. She also identified them in the Court. Two panch witnesses, who were examined have turned hostile. 5 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) 5. In my view, the Trial Court was justified in passing an order of conviction and holding that the prosecution has established its case beyond the reasonable doubt. Evidence of PW-1 is trustworthy. She had identified both the accused in test identification parade. She has examined by the prosecution and no lacuna has been found in holding the test identification parade. 6. This being the position, in my view, the prosecution has established its case beyond the reasonable doubt and, therefore the order of conviction passed by the Learned Sessions Judge is confirmed. 7. So far as the sentence is concerned, both the Appellants are in jail since 25.3.2005 and they have already undergone more than 5 years and six months of sentence. In my view, taking into consideration the peculiar facts and circumstances of the case, it would 6 (cr. apeal 262/08 a/w cr. apeal 1032 of 08) be appropriate if the term of sentence from seven years is reduced to the term which the Appellants have already undergone. 8. Both the appeals are partly allowed. The order of conviction passed by the Trial Court is confirmed. The sentence, however, awarded by the Trial Court is reduced to the term of sentence which the Appellants have already undergone. The Appellants be released forthwith unless they are wanted in any other cases. Appeals are, accordingly, disposed of. (V.M. KANADE J.)