Appa478.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.478/2011 IN CRIMINAL APPEAL NO.888/2009 Dada K.Lohkare APPLICANT VS. State of Maharashtra RESPONDENT Mr.P.G.Sarda for applicant Mr.P.S.Hingorani,APP for State CORAM: NARESH H.PATIL & MRS.MRIDULA BHATKAR,JJ. DATE- 27th JUNE,2011. P.C.(Per Mrs.Mridula Bhatkar,J.) . Heard. 2 The applicant/ accused is convicted in Sessions Case No.101/2007 for the offences punishable under sections 396 of the Indian Penal Code and sentenced to suffer imprisonment for life, alongwith the co-accused. He was Appa478.11 2 also convicted for the offence punishable under section 342 of the Indian Penal Code, however,no separate sentence is awarded under the said section. 3 The incident of dacoity had taken place in the night intervening 16/4/2007 and 17/4/2007. The incident had taken place in the house of one Hanumant Bhosale situated at Kurkumbh,Dist.Pune. On that night the applicant/accused alongwith the co-accused went to the house of Hanumant Bhosale wherein Hanumant was residing with his wife and children. The accused were armed with weapons like sword, sticks and some of them were masked. As soon as the door was opened they dragged Hanumant forcefully and assaulted him with sword and Kukri. They looted the house of Hanumant and took away gold and silver ornaments, cash and other valuable articles. Hanumant succumbed to the injuries. The accused ran away in tempo bearing no. MH-25/8177. Son of Hanumant by name Rahul lodged complaint. Offence was registered and the applicant/accused and other accused were chargesheeted and convicted. Appa478.11 3 4 Counsel for the applicant submits that the applicant was the driver of the said tempo and had no role in the commission of the offence. He submits that he was not identified by either of the witnesses and nothing was recovered from the applicant. He further submits that on that night the applicant was driving the vehicle in which the other accused were found and the prosecution has not unfolded any evidence to show when and how the applicant was associated with these accused. He also submits that no charge under section 120 b of the Indian Penal Code is framed against the applicant. Hence he prays that it is a fit case for grant of bail, pending the appeal. 5 A.P.P. while opposing this application has submitted that the applicant was driving the vehicle wherein the co-accused were found. The weapons like tommy, kukri,sword and gun were found behind the seat of the driver in the tempo. All the articles were seized by the police when the tempo was stopped. Hence it is submitted Appa478.11 4 that as this is a case under section 396 of the Indian Penal Code, presence of the applicant alongwith the other co- accused is sufficient evidence. 6 Perused the judgment and evidence before us. The fact that the applicant was the driver of the tempo, is not challenged by the defence. However, there is no evidence of identification of the applicant. Hence whether the applicant went inside and participated in the dacoity is not clear.Cash of Rs.241/- and one Nokia cell phone were found in his personal search at the time of his arrest. However, these two articles have no connection with the stolen articles. The weapons were found in the tempo. All other accused were travelling in the said tempo. So the evidence does not point out that the said place was not accessible to other travellers. Considering the entire evidence and explanation given by the applicant in the statement u/s 313 of Cr.P.C., as well as the defence of the applicant, we are of the opinion that the applicant is entitled to bail. Though the applicant is convicted for the offence punishable u/s 342 of the Indian Penal Code, no Appa478.11 5 evidence to that effect is seen and no sentence is awarded for the offence punishable under section 342 of the Code. 7 The application is allowed. The applicant be released on his furnishing bail of Rs.20,000/-(rupees twenty thousand) with one surety in the like amount. The applicant is directed to attend Daund Police Station on the first day of every English Calendar month between 11a.m.to 2 p.m.. The applicant to furnish the details of his residential address to the concerned police and if there is any change in his residential address, the applicant to furnish the details to the concerned police station. (MRS.MRIDULA BHATKAR,J.) (NARESH H.PATIL,J.)