Dismissed

The State of Mah v. Dalbirsingh Lalsingh Paharedar and Ors.

Bombay HC9 Jan 2019APEAL/626/2008

Case brief

AI extract

What is this about?

This judgment dismisses three criminal appeals concerning an armed robbery and attempted theft wherein the appellants beat a widow and her son with swords. The High Court upheld the conviction for assault and entering a dwelling against the accused for lack of independent eyewitnesses to the robbery, finding the evidence from the injured victims and a neighbor sufficient.

What did the court decide?

All criminal appeals (Nos. 415 of 2007, 625 of 2008, and 626 of 2008) are dismissed. No relief was granted to the appellants or the State.

The State of Mah Vs Dalbirsingh Lalsingh Paharedar and… — Cheating and Forgery | Bombay HC (2019)

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cri.appeals.415, 620, 626 .odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.415 OF 2007

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1. Dalbirsingh s/o. Lalsingh Paharedar, Age : 20 years, Occ. Pathi/Priest in Gurudwara, r/o. Gurudwara, Gate No.1, Nanded

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 (Appeal abated against appellant no.1
 as per Court's order dt.17.11.2017)

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2. Toni @ Avtarsingh s/o. Hardayalsingh Padam, age : 21 years, Occ. Pathi/Priest in Gurudwara, r/o. Shahidpura, Nanded

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 (Appeal abated against appellant no.2
 as per Court's order dt.27.11.2017)

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3. Gopi @ Gurumitsingh s/o. Jogindersingh, Age : 19 years, Occ. Pathi/Priest in Gurudwara, r/o. Behind Gayatri Temple, Old Mondha, Nanded

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..Appellants

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(Orig.accused)

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Vs.

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 The State of Maharashtra,
 Through Police Station, Vizirabad,
 Nanded, Dist. Nanded..Respondent

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Mr.P.M.Shinde, Advocate (appointed) for appellants

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Mr.R.V.Dasalkar, APP for respondent - State

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cri.appeals.415, 620, 626

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WITH

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CRIMINAL APPEAL NO.625 OF 2008

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AND

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CRIMINAL APPEAL NO.626 OF 2008

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 The State of Maharashtra,
 Through Police Station,
 Vizirabad, Nanded, ..Appellant

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Vs.

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1. Dalbirsingh s/o. Lalsingh Paharedar, Age : 20 years, Occ. Pathi/Priest in Gurudwara, r/o. Gurudwara,

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Gate No.1, Nanded

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 (Appeal abated against respondent no.1
 as per Court's order dt.17.11.2017)

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2. Toni @ Avtarsingh s/o. Hardayalsingh Padam, age : 21 years, Occ. Pathi/Priest in Gurudwara, r/o. Shahidpura, Nanded

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 (Appeal abated against respondent no.2
 as per Court's order dt.27.11.2017)

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3. Gopi @ Gurumitsingh s/o. Jogindersingh, Age : 19 years, Occ. Pathi/Priest in Gurudwara, r/o. Behind Gayatri Temple, Old Mondha, Nanded

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 ..Respondents

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In both appeals :

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Mr.R.V.Dasalkar, APP for appellants - State

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Mr.P.M.Shinde, Advocate (appointed) for respondent

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cri.appeals.415, 620, 626

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 CORAM : S.S. SHINDE AND
R.G. AVACHAT, JJ.

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 DATE : JANUARY 09, 2019

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JUDGMENT (PER R.G. AVACHAT, J.) :-

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We appoint Mr.P.M.Shinde, learned Counsel to

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represent the cause of appellants in Criminal Appeal
No.415 of 2007 and the respondents in Criminal Appeal
Nos.625 of 2008 and Criminal Appeal No.626 of 2008.

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2.The challenge in all these three appeals is
to the impugned judgment and order dated 12.09.2007
passed by learned Additional Sessions Judge, Nanded
in Sessions Case No.2 of 2007.

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3.By the impugned judgment and order, the

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appellants in Criminal Appeal No.415 of 2007 and the
respondents in Criminal Appeal Nos.625 and 626 of
2008, were convicted for the offences punishable
under Sections 452 and 324 read with Section 34 of

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the Indian Penal Code (“I.P.C.”, for short) and
sentenced to suffer rigorous imprisonment for two

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4 cri.appeals.415, 620, 626

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years and to pay a fine of Rs.1,000/- each and
rigorous imprisonment for one year and to pay a fine
of Rs.500/- each, respectively. In default of payment
of fine amounts, the appellants were directed to
suffer simple imprisonment for two months. They were
acquitted of the offences punishable under Sections
392 and 394 read with Sections 397, 458, 34 and 427
so also under Section 4 punishable under Section 25
of the Arms Act.

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4.Criminal Appeal No.415 of 2007 has been
filed by the original accused taking exception to
their conviction for the offences under Sections 452
and 324 read with Section 34 of the Indian Penal
Code. Criminal Appeal No.625 of 2008 has been
preferred by the State for enhancement of the
sentence imposed against the accused (appellants in
Criminal Appeal No.415 of 2007), whereas Criminal
Appeal No.626 of 2008 has been preferred by the State
against the order of acquittal of these accused for
the offences mentioned above.

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5 cri.appeals.415, 620, 626

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5.Pending the appeals, appellant nos.1 and 2
in Criminal Appeal No.415 of 2007 (respondents in
Criminal Appeal Nos.625 and 626) passed away. The
appeals stood abated against them.

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6.For the sake of convenience, the parties to
Criminal Appeal No.415 of 2007 are referred to.

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7.PW 6 - Mahendrakaur was a widow. She would

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stay along with her two sons in a rental premises
near Gurudwara, Nanded. On 14.03.2006 at about 11.30
p.m., the appellants/original accused armed with
swords, broke open backside door and entered her
house. On questioning by PW 6 - Mahendrakaur, the
appellants/accused assaulted her and her son i.e.
PW7 – Hardipsing with swords. Both of them sustained
bleeding injuries. The appellants/accused smashed
T.V. Set and other household articles. They robbed

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PW 6 - Mahendrakaur of her gold chain worth
Rs.9,000/-.

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6 cri.appeals.415, 620, 626

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8.PW 6 - Mahendrakaur, therefore, lodged

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report in respect of the incident to Vazirabad Police

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Station. A crime vide C.R. No.77 of 2006 came to be
registered for the offences punishable under Sections
452, 394, 427 and 397 of the I.P.C. against the
appellants/accused. Needless to mention, PW 6 -
Mahendrakaur knew the appellants/accused by name.

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PW 10 – Shivaji Sonawane, Police Sub-Inspector
attached to Vazirabad Police Station, was entrusted
with investigation of the crime. He visited the scene
of offence. He drew the scene of offence panchanama
(Exh.37). The appellants/accused were arrested within

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hours. The swords came to be seized from accused -

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Toni @ Avtarsingh (deceased) and accused Gopi @

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Gurmitsingh under two separate panchanamas (Exh.32

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and 33). Clothes on the persons of the
appellants/accused were taken charge of under

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separate panchanamas (Exhs.34, 35 and 36). The

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appellant – Toni @ Avtarsingh (deceased) made a
disclosure statement (Exh.29), pursuant to which

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7 cri.appeals.415, 620, 626

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amounts of Rs.2,200/- and Rs.8,000/- came to be
seized under panchanama (Exh.29-A). Both PW 6 -
Mahendrakaur and PW 7 – Hardipsingh were medically
examined. Their injury certificates were received.
On completion of the investigation, the appellants/
accused were proceeded against, by filing charge-
sheet before learned Chief Judicial Magistrate.
Learned Chief Judicial Magistrate committed the case
to the Court of Session. Learned Additional Sessions
Judge framed Charge (Exh.4) for the offences
punishable under Sections 392, 394, 452, 458, 423
read with Sections 34, 397; and Section 4 punishable

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under Section 25 of the Arms Act. The

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appellants/accused denied the charge and claimed to
be tried.

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9.To sustain the charge, the prosecution

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examined in all twelve witnesses and tendered in
evidence the documents such as panchanamas, injury
certificates, seizure memo etc. On appreciation of
the evidence, the trial Court convicted the

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8 cri.appeals.415, 620, 626

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appellants in terms of the judgment and order
impugned in these appeals.

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10.Mr.P.M.Shinde, learned Counsel (appointed)

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for the appellants/accused in Criminal Appeal No.415
of 2007 and the respondents in Criminal Appeal
Nos.625 and 626 of 2008, would submit that no
independent witness had been examined in proof of the
charge. The gold chain, allegedly robbed by the
appellants/accused, has not been recovered. Seizure
of the amounts pursuant to the disclosure statement
made by accused Toni @ Avtarsingh (deceased) has no
relevance to connect them with the charge.
According to learned Counsel, had PW 6 – Mahendrakaur
and PW 7 – Hardipsing were assaulted by swards, they
would have suffered serious injuries. Learned Counsel
invited our attention to their injury certificates
(Exh.42 and 43), which do indicate them to have
suffered simple injuries. According to learned
Counsel, the FIR was lodged to settle the score with
the appellants.

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9 cri.appeals.415, 620, 626

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11.Mr.R.V.Dasalkar, learned APP for State,
would, on the other hand, submit that PW 6 –
Mahendrakaur had no reason to falsely implicate the
appellants. She was the injured eye witness. She had
no reason to exculpate the real accused and falsely
implicate the appellants. PW 6 – Mahendrakaur was an
independent witness. He was neighbor of PW 6 –
Mahendrakaur. He had seen the appellants running away
from the house of PW 6 – Mahendrakaur. The
appellants/accused were nabbed within hours of the
incident. According to learned APP, the trial Court
ought to have convicted the appellants for all the
offences with which they were charged. He would
further submit that the sentence imposed against all
of them were grossly inadequate as against the
principleofproportionality.LearnedAPP,
ultimately, urged for dismissal of Criminal Appeal
No.415 of 2007 and allowing Criminal Appeal Nos.625
of 626 of 2008.

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10 cri.appeals.415, 620, 626

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12.Before the Trial Court, the prosecution

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examined twelve witnesses. PW 1 to PW 5 are panch
witnesses to various panchanamas. None of them stand

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by the prosecution. All of them were subjected to
searching cross-examination. Nothing, however, could
be elicited to connect the same with the crime in
question. There is, however, evidence of injured eye
witnesses (PW 6 - Mahendrakaur and PW 7 – Hardipsing)
coupled with the evidence of neighborer (PW 8 –
Ramsing). PW 6 – Mahendrakaur (first informant)
testified that on 14.03.2006 at about 11.30 p.m., the
appellants broke opened backside door of her house.
They were armed with swords. Her both sons were fast
asleep. She questioned the appellants, why did they

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enter her house. Thereupon, they started assaulting
her and her son PW 7 – Hardipsing. It is further in

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her evidence that appellant – Gopi @ Gurumitsingh
attacked her with a sword, as a result of which she
sustained injury to her finger, while appellant –
Dalbirsingh (deceased) gave sword blow on the right

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11 cri.appeals.415, 620, 626

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hand and right leg of PW 7 – Hardipsing. The
appellants smashed the T.V. set and damaged the
house-hold articles. It is further in her evidence
that the appellants robbed her gold chain.

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13.The evidence of PW 6 - Mahendrakaur has been
corroborated by the evidence of her son, PW 7 –
Hardipsing. He gave his evidence on the lines of the
evidence of his mother, PW 6 - Mahendrakaur. He,
however, did not state the appellants to have robbed
her gold chain. The evidence of both these witnesses
find corroboration by the evidence of PW 8 – Ramsing.
PW 8 – Ramsing is none other than the neighbor of PW
6 – Mahendrakaur. It was the day of Holi festival.
PW 8 – Ramsing was on his way home after closing his
shop. He claimed to have seen the appellants coming
out of the house of PW 6 – Mahendrakaur.

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14.These three witnesses were subjected to
searching cross-examination, but none of them gave
in. PW 12 – Suryakant, Medical Officer attached to

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12 cri.appeals.415, 620, 626

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Shri Guru Govind Singh Memorial Hospital, Nanded, had
medically examined both PW 6 – Mahendrakaur and PW 7
– Hardipsingh. He found following injuries on their
person :-

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Injury certificate of PW 6 – Mahendrakaur Satnam Singh:

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Kind of Injury	Measurements	Part of Body	Simple or Grievous	Weapon	Age of Injury
(1) Incised	¼ x ¼ cm	(ii) Ring Finger	Simple	Sharp	Fresh

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“Injury certificate of PW 7 - Hardipsingh Satnamsingh”

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Kind of Injury	Measurements	Part of Body	Simple or Grievous	Weapon	Age of Injury
(1) Incised	1 ½ x 1 cm x ½ cm	(Rt) Forearm	Simple	Sharp	Fresh
(2) Incised superficial	5” line	(Rt) Forearm	Simple	Sharp	Fresh

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15.PW 6 – Mahendrakaur knew the appellants by

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name. She had no reason to falsely implicate them.

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The scene of offence panchanama (Exh.37) indicates
that the backside door of her house was broken open.
TV set and other household articles were damaged. It

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13 cri.appeals.415, 620, 626

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indicates that some incident took place at PW 6's

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house on 14.03.2006 at about 11.30 p.m. The FIR has

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been lodged within hours of the incident. The FIR
corroborates PW 6's version. The injury certificates
reinforces the claim of PW 6 – Mahendrakaur and PW 7
– Hardipsingh. Moreover, the appellants were seen by

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PW 8 – Ramsing, while they were coming out of the

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house of PW 6 – Mahendrakaur at the relevant time.
Pursuant to the statement (Exh.29) made by Toni @
Avtarsingh (deceased), cash amounts came to be
recovered. The amounts recovered could not be
connected with the offence in question. The trial

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court has, therefore, rightly acquitted the
appellants of the offences punishable under Sections
392 and 394 read with Sections 397, 458, 34 and 427

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so also under Section 4 punishable under Section 25

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of the Arms Act. Based on the evidence of PW 6 –

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Mahendrakaur, PW 7 – Hardipsingh and PW 8 – Ramsingh,

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which was corroborated by the FIR and the injury
certificates (Exhs.42 and 43), the trial court was

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14 cri.appeals.415, 620, 626

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justified in convicting the appellants for the
offences punishable under Sections 452 and 324 read
with Section 34 of the Indian Penal Code. The
punishment imposed against the appellants is found
proportionate with the offences proved against them.
We, therefore, are not inclined to allow any of the
appeals. In the result, the appeals fail.

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16. For the reasons given herein-above, all the
Criminal Appeals are dismissed.

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17.We appreciate the able assistance given by
Mr.P.M.Shinde, learned Counsel, during the course of
hearing of these appeals. We quantify his fees and
expenses at Rs.8,000/- (Rs.Eight Thousand only).

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kbp

The State of Mah v. Dalbirsingh Lalsingh Paharedar and Ors.

Case brief

What is this about?

What did the court decide?

The State of Mah v. Dalbirsingh Lalsingh Paharedar and Ors.

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