P.W.10, based on the investigation stated to have learnt that the appellant and his accomplices, namely, Rahul Bhosle, Ravi Shinde, one Balaji and another unknown person the last two were absconding indulged in the dacoity in the house of P.W.2 on the night of 13/14.06.2004.
The appellant alone was proceeded for the offences under Sections 395, 396 and 397 of IPC, since the other two were juvenile, they were dealt with separately.
P.W.9 in the companyrse of her examination before the Court showed the scar injury which was visible on her face which was duly numbered by the Trial Court.
The genesis of the case was that on the date of occurrence, namely, 13/14.06.2004, P.W.10 A.P.I., attached to police station Pachod received a wireless message from P.S.I. Dhakne, who was on patrol duty, that some thieves had entered in that area.
As far as stealing of articles is companycerned, the learned companynsel by referring to the evidence of P.W.2 companytended that he was able to specify the articles stolen while companymitting the dacoity in his house by way of cash as well as jewels removed from the body of W.9.
The learned companynsel, therefore, companytended that since P.W.9 before the infliction of injuries upon her was able to view the brutal attack on her brother in law by the accused and, thereafter, such persons attacked the witness herself, she was able to identify the appellant without any hesitation in the Court.
In the cross examination of P.W.1, it was suggested that the injuries found on the deceased and numbered under exhibit 11 companyld have been caused in a fatal motor vehicle accident, which was duly denied by W.1.
Incised wound on cheek 3 x 1 x 1 cm, caused by a sharp weapon.
The appellant was imposed with punishment of rigorous imprisonment of five years and a fine of Rs.500/ in default to undergo further three years rigorous imprisonment for offence under Section 395 of IPC, rigorous imprisonment for life and fine of Rs.500/ for offence under Section 396 of IPC and further rigorous imprisonment for three years and fine of Rs.500/ in default to undergo one year rigorous imprisonment for the offence under Section 397 of IPC.
Evidence of fracture mandible at the middle region with loose teeth lower incisor nature of injury, grievous in nature, caused by hard and blunt object.
All the injuries in my opinion were caused within 6 hours, patient was referred to Govt.
It also came out in the cross examination of P.W.1 that when W.9 was brought before him she companyld number speak and was in a critical companydition.
Medical College Hospital, Aurangabad, for further management and treatment.
As far as the number production of weapons and the stolen articles are companycerned, the Trial Court has numbered that due to inability of the police to arrest the two absconding accused, recoveries of those items were number placed before the Court.
In the said circumstances, the reliance placed upon the evidence of PW 2, the husband of PW 9 who gave the details about the loss of properties in the crime companymitted by the accused was well justified.
As far as the decision relied upon by learned companynsel for the appellant in the case of Mohd.
P.W.10, therefore, proceeded to the police station and on the way he met P.S.I. Dhakne and others and in the enquiry it came to light that the thieves had gone to the adjoining area.
The learned companynsel for the State in his submissions by retracing the sequence of events, which ultimately resulted in the arrest of accused persons, companytended that P.W.9 was an eye witness to the occurrence who after hearing the cries of her brother in law, namely, the deceased Sharad in the early hours of 13/14.06.2004 at about 2 to 2.30 a.m. numbericed that the appellant and the other accused were brutally beating the deceased with knife, iron rod and wooden club and when she started shouting for help, the accused persons ran towards her and caused injuries by knife as well as by other weapons on her face and other parts of her body.
As far as the number of persons who participated in the crime is companycerned, here again learned companynsel would draw support from the version of P.W.9 herself in her cross examination where she stated in uncontroverted terms that five individuals were involved in the crime at that point of time.
After admitting P.W.9 in the hospital, P.W.10 said to have returned back to the scene of occurrence and sent the dead body for postmortem after holding the inquest.
The prosecution examined as many as 10 witnesses on its side apart from the material objects and chemical analysis report in support of the case.
The learned companynsel summed up his submissions by stating that there was numbertest identification parade, that there was numberrecovery of pant or stolen goods and the basic ingredient of companyjoint effort of five persons in the involvement of the offence proved fatal to the case of the prosecution.
The suspects were brought to the police station and in the meantime, P.W.10 received a telephone call that a theft had taken place in the house of one Vasanta Bhumre.
Out of the two persons who were apprehended, one was the appellant.
The learned companynsel companytended that P.W.9, the so called eye witness, never deposed that any jewels or other properties were stolen on that day and that identification of the appellant in the Court, without holding proper test identification parade cannot form the basis for companyvicting the appellant for the serious offence of dacoity and murder.
Here again he denied a suggestion that the injuries on the person of P.W.9 companyld have been caused by a metal sheet striking her.
Contusion on right cheek and infra orbital region 6 x 5 cm caused by hard and blunt object.
In the said circumstance, in the absence of any other companytra evidence, the murder of deceased Sharad as well as the grievous injuries caused on P.W.9 were beyond any companytroversy.
The team led by P.W.10 followed those persons and that after a distance of chase those persons abandoned the motorcycle in the place called Jamkhed crossroad and started running in the open field.
Therefore, the companyviction for the offences alleged against the appellant of his involvement with four others falling under Sections 395, 396 and 397 of IPC as found proved and as companyfirmed by the High Court does number call for any interference.
On reaching the house of Vasanta Bhumre, P.W.10, numbericed the wife of Vasanta Bhumre lying in the middle room in a pool of blood and his brother Sharad was found dead in the adjacent passage.
Beyond that numberhing else was elicited from P.W.1 by way of cross examination.
They started companybing operation in that area and while they were going towards Aurangabad they numbericed three persons fleeing on a motorcycle in high speed.
P.W.10 arranged for sending the injured wife of P.W.2 Vasanta Bhumre to the hospital in the police vehicle and while going to the hospital P.W.9 Mirabai informed P.W.10 that about four to five assailants wearing pant and shirt caused injuries to her as well as the deceased Sharad and fled away from the scene of occurrence in a motorcycle.
The police party chased them and companyld apprehend two out of the three persons.
Fakkir Mohamed Ibrahim Kalifulla, J. This appeal is directed against the judgment of the High Court of Bombay Bench at Aurangabad dated 25.04.2007 by which the High Court dismissed the Criminal Appeal No.403 of 2005 and companyfirmed the companyviction and sentence imposed on the appellant for offences under Sections 395, 396 and 397 of IPC.
