Bombay High Court
RAMESH @ BHAIJAN MOHAN PATILversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Dismissed
Holding
The appellate court dismissed the appeal, upholding the conviction and life imprisonment, holding that the appellant’s possession of stolen articles created a statutory presumption of his participation and that Section 396 IPC makes every participant liable for the murder committed during the dacoity.
Summary
The appellant, originally accused No.2, was convicted along with two others for dacoity with murder and criminal conspiracy under Sections 396, 397 and 120‑B of the IPC, receiving life imprisonment and a fine. The prosecution’s case rested on the recovery of stolen idols and other articles from the appellant’s possession shortly after the temple robbery, identification of those articles by a temple trustee, and the FIR recorded by a police officer, while the primary eyewitness (the surviving watchman) was not examined. The trial judge excluded the test‑identification parade evidence but relied on the recovery and identification of the stolen goods. On appeal, the court considered whether the statutory presumptions under Sections 114 and 106 of the Indian Evidence Act could be applied and whether liability under Section 396 IPC required proof of the appellant delivering the fatal blow. The court held that possession of the stolen items created a presumption of participation, the burden of explanation lay on the appellant, and Section 396 IPC makes every dacoite liable for the murder committed in the course of the offence. Consequently, the conviction and life sentence were upheld, with a clarification that the trial judge could not fix a minimum sixteen‑year term.
Issues considered
- Whether the conviction under Sections 396, 397 and 120‑B IPC is sustainable despite the absence of direct eyewitness identification of the appellant.
- Whether the statutory presumptions under Section 114 of the Indian Evidence Act and the burden of proof under Section 106 can be invoked based on the appellant’s possession of stolen property.
- Whether liability for murder under Section 396 IPC can be established without proof that the appellant inflicted the fatal blow.
- Whether the trial court had authority to prescribe a minimum sixteen‑year term of imprisonment in addition to life imprisonment.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 428
- Indian Evidence Act, 1872 — s. 106, 114
- Indian Penal Code, 1860 — s. 120-B, 396, 397
Subjects
- dacoity
- murder
- possession of stolen property
- presumption under Evidence Act
- Section 396 IPC
- life imprisonment
- identification evidence
- FIR
- test identification parade
- Section 428 CrPC
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1276 OF 2023
Ramesh @ Bhaijan Mohan Patil …..Appellant
Versus
The State of Maharashtra .….Respondent
-----
Mr. Aniket Vagal, Advocate a/w. Savvy Kolhekar, Juhi Kadu for the Appellant.
Ms. Kranti Hiwrale, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 16th & 17th JANUARY, 2026
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1. The Appellant has challenged the judgment and order
dated 30.4.2022 passed by the learned Additional Sessions Judge,
Borivali Division, Dindoshi, Goregaon, Mumbai in Sessions Case
No.12/2011. There were in all nine accused in this case. During
pendency of the trial, the original accused No.4 and the original
accused No.9 passed away. Therefore, the trial was abated as far as
they were concerned. The Appellant was the original accused
No.2. The accused Nos.5 to 8 were acquitted from all the charges.
The other three accused, including the present Appellant, were
convicted. Those accused are as follows :
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(i) The accused No.1 – Harun Abdul Rashid Shaikh,
(ii) The accused No.2 – the present Appellant.
(iii) The accused No.3 – Santosh Harishchandra Bhoir.
2. The Appellant and the original accused Nos.1 & 3 were
convicted for commission of offences punishable under Sections
396, 397 and 120-B of IPC. They were sentenced to suffer life
imprisonment and to pay a fine of Rs.5,000/- each for the offences
punishable under Sections 396 and 120-B of IPC and in default of
payment of fine to suffer imprisonment for six months. No separate
sentence was imposed for commission of the offence punishable
under Section 397 of IPC. The learned Judge added that the life
imprisonment would not be less than sixteen years. All the
substantive sentences were directed to run concurrently. The
accused were given set off under Section 428 of Cr.P.C..
3. Heard Mr. Aniket Vagal, learned counsel for the
Appellant and Ms. Kranti Hiwrale, learned APP for the Respondent-
State.
4. The prosecution case, in brief is that Devilal Sevak and
Raju Joshi were the two watchmen employed in a Jain temple at
Borivali. In the night between 21.8.2010 to 22.8.2010 seven
unknown persons entered the temple carrying iron rods and heavy
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sticks. The watchmen were assaulted. The idols, chhatras and
other articles were stolen. The injured watchmen were taken to the
hospital. One of them i.e. Devilal Sevak succumbed to his injuries.
The other watchman Raju Joshi was admitted to the hospital. His
statement was recorded. He was informed by the Trustees that
some idols, chhatras, bhavmandal, chavar were stolen from the
temple worth more than Rs.4 Lakhs. Raju Joshi’s statement was
treated as FIR. C.R. No.I-212/2010 was lodged at MHB Colony
Police Station. The investigation was carried out. The Appellant
and the other accused were arrested on 4.9.2010. At different
times, different articles were recovered at the instance of those
accused. Some weapons were also recovered at their instance. The
test identification parade was conducted on 23.10.2010. Some of
the witnesses identified some of the accused separately. The
recovered articles were shown to the trustees of the temple. They
were identified. The idols were again placed in the temple. At the
conclusion of the investigation, the charge-sheet was filed and the
case was committed to the Court of Session.
5. During the trial, the prosecution examined 28
witnesses. The evidence against the Appellant was regarding
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recovery of three idols and other articles. The prosecution
witnesses consisted of different panchas, a Trustee of the temple,
the medical officers and the investigating officers. The first
informant Raju Joshi was not examined. The trial proceedings
continued over a long period. The first informant was not
available. Some of the panchas were also not available.
6. The defence of the Appellant and all other accused was
of total denial. No specific defence was raised by any of the
accused.
7. The learned Judge discarded the evidence of the test
identification parade because the first informant was not examined
in the trial. Therefore, according to the learned Judge there was no
substantive evidence as far as identification of the accused was
concerned. However, the learned Judge relied on the evidence of
recovery of articles and identification of those articles by the
trustee of the temple. Based on this evidence, the learned Judge
convicted and sentenced the Appellant as mentioned earlier.
8. Though the prosecution has examined 28 witnesses; as
far as the Appellant is concerned, only some of them are relevant
and hence important. Therefore, we shall discuss their evidence. As
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far as the other witnesses are concerned, since they are concerning
the other accused, they are not relevant to decide the Appeal
preferred by the present Appellant.
9. Though the prosecution has not examined the first
informant Raju Joshi, the surviving watchman; his FIR is brought
on record through the evidence of PW-16 PSI Arjun Girve. He
deposed that while he was on duty, at about 3.00 a.m. after
midnight he received information about dacoity at the Jain Temple
situated at Aadinath Nagar, near Bhagwati Hospital, Borivali
(West). He came to know that one of the watchmen had died on
the spot because of the assault and the other watchman was
admitted in Ward No.6 of Bhagwati Hospital. He then took entry in
the station diary and went to Bhagwati Hospital. He made inquiry
with the injured Raju and recorded his statement. He returned back
to the police station and registered C.R. No.212/2010 at MHB
Colony Police Station under Sections 396 and 397 of IPC against
six unknown persons. He stated that copy of the FIR and the
statement of Raju had his signature. The contents were correct. It
was marked at Exhibit-117. Exhibit-117 shows that the FIR was
lodged at about 5.30 a.m. on 22.8.2010. The information was
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received at the police station at 3.20 a.m. on 22.8.2010. The
statement given by Raju Joshi, which is treated as FIR, describes
the incident. It bears the signature of PW-16 PSI Arjun Girve as
well as signature of the said Raju Joshi. The FIR describes the
incident in detail. It also gives the description of the offenders.
More importantly it mentions that when the Chairman of the Trust
Shri Anil Shah had met the first informant, at that time, he had
informed that those offenders had stolen the silver and
panchadhatu idols, two silver tej chakras with gold coating, a few
silver chhatras and chaure worth more than Rs.4 Lakhs. This
description of the articles is important. Though the first informant
is not examined, the FIR is on record, which shows the description
of the stolen property. This is important in the context of the case
because this description was mentioned in the FIR immediately on
22.8.2010 at the stage of registration of the offence.
PW-16 thereafter conducted the spot panchnama and
seizure of clothes panchnama in respect of clothes of the first
informant. He recorded the statement of the temple trustee Anil
Shah (PW-1) and other witnesses. This witness was not cross-
examined by the defence.
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10. PW-1 Anil Shah is an important witness in this case. He
was the Chairman of the Chandraprabhu Nandeshwar Dwip,
Digamber Jain Mandir, Adinath Nagar, Borivali (West),Mumbai
where the dacoity had taken place. Hasmukh Patel and Natubhai
Patel were the priests. Manik Jain and Mahendra Shah were the
members of the trust. He further deposed that there were four
watchmen working in the temple. Devilal Sevak and Raju Joshi
were on the night duty. The temple door was locked at 9.00 p.m. in
the night. He deposed that in the night at about 3.00 a.m.,
Natubhai informed him telephonically that seven persons had
entered the temple. They had assaulted both the watchmen with
steel rods and bamboo sticks and had stolen silver and panchdhatu
articles as well as some other articles from the temple. PW-1 rushed
to the temple. He informed about the incident to Mahendra Shah.
Two injured watchmen were shifted to the hospital by the police.
He saw that the locks of two doors were broken. He then
ascertained which articles were stolen from the temple. He had
given description of all the stolen articles to the police. According
to him, five panchadhatu idols, sixteen silver chhatras (umbrellas),
two Tejchakkra (Bhavmandal), one silver idol, four silver chavar,
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worth more than Rs.4 Lakhs were stolen from the temple. He then
went to Bhagwati hospital. Devilal Sevak had succumbed to his
injuries. The first informant Raju Joshi was in a serious condition.
Raju described the incident to him. Raju told him that the persons
who had entered the temple had tied them and had beaten them
with steel rods and bamboo sticks causing injuries on head, ear,
face and other parts. PW-1’s statement was recorded by the police.
On 7.9.2010, he was called to the police station. The
stolen articles recovered during the investigation by the police were
shown to him. He identified all the articles. At that time, the silver
idols were not recovered. The seized articles were subsequently
returned to the temple authority.
He further added that the idol was subsequently
reinstalled in the temple. After receiving the articles, Manik Jain
executed the bond. Raju Joshi had lodged the FIR.
In the cross-examination he stated that he was working
as a Trustee and the President of the said temple since 2005. The
property, where the temple was constructed, was owned by him.
There are some rooms in the temple. The priest was staying in one
room and the other rooms were available for the saints visiting the
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temple. The watchmen were staying in their separate
accommodation which was around 100 meter away from the
temple. One of the priests informed him about the incident. He
reached there at about 3.30 a.m.. On the same day, his statement
was recorded. He did not have personal knowledge who had
donated the idols. He had verified the articles by taking them in
hand. They were sealed. In further examination-in-chief permitted
under a separate order, he further deposed that he had given
details of the stolen idols to the police. After finding idols the police
had called him to the police station and had shown those idols to
him. He was shown 27 articles comprising of five idols, eleven
small chhatras, two mid size chhatras and three bigger chhatras.
Those were total sixteen chhatras and five idols. The police had
also shown him two bhavmandals and four chamars. He had taken
custody of those articles by the order of the Court. They had taken
custody of those articles from police and Mahendra Shah had
executed a bond. Those idols and other items were in the temple
except the silver idol of lord Parshwanath Bhagwan. He was shown
photographs of those idols and some articles. He was shown
twelve photographs which were exhibited as Exhibit-191/1 to 12.
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He identified all those idols and articles from those photographs.
He stated that the first informant had got frightened and had left to
Nepal i.e. to his native place and after that he could not turn up.
He could not get his address. He submitted that it was not possible
to produce the items before the Court as they were fixed in the
temple. But the police had shown the panchnama of those items.
In further cross-examination, he stated that any idol which is fixed
in the temple is called as ‘Achal Pratima’ and there are ‘Chal
Pratima’ which could be moved for pooja purposes. He denied the
suggestion that all those photographs were the previous
photographs available with the trust.
11. As the investigation continued, the police traced the
accused. PW-13 PI Adhav was in the team which had arrested the
accused. He deposed that at that time he was attached to Crime
Branch, Kandivali Unit. They had also taken part in the
investigation. The Senior Inspector of the Crime Branch, Unit
No.11 received a secrete information on 3.9.2010 regarding the
whereabouts of the accused. It was learnt that they were near the
Goregaon (East) bus depot. At around 10.45 a.m. on 3.9.2010 they
went to that spot and arranged to lay a trap. At around 11.15 a.m.
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they apprehended all the accused including the Appellant. During
the personal search of the accused No.1 Haroon Abdul Shaikh one
idol was recovered from a carry-bag. It was the idol of Lord
Mahavir in Padmasan.
12. PW-15 PI Sanjeev Bhole was attached to Crime Branch.
He deposed that the Crime Branch was simultaneously
investigating C.R. No.212/2010 registered at MHB Colony Police
Station. He deposed about the arrest of the accused on 3.9.2010 as
was deposed by PW-13 PI Adhav. He further deposed that, while in
custody, the Appellant showed his willingness to make a voluntary
disclosure and point out the place where he had kept the stolen
articles.
PW-15 and others then called two panchas. The
Appellant’s statement was recorded in their presence. It is produced
on record at Exhibit-113. The Appellant gave this statement on
3.9.2010. He led the police and the panchas to a chawl at Dahisar
(West). He went to room No.2. His wife was present in the room.
The Appellant entered the room and produced one gunny bag.
There was one idol of Lord having flower in the middle. There was
a picture of moon inscribed on it. There was one square frame and
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in the middle there was idol of Lord Mahavir with two golden
plates. Apart from this, there were 22 gold umbrellas which were
used for placing them over the idols. Accordingly, a panchnama
was prepared. That panchnama is produced on record at Exhibit-
114. PW-15 then caused photographs of those items idols and
umbrellas to be taken. He handed over the seized muddemal with
the police station.
In the cross-examination he stated that he had not
recorded the statement of the photographer who had taken the
photographs of those articles. Apart from that there was hardly any
cross-examination of this witness.
Exhibit-114 describes the articles recovered under this
panchnama. There were two idols including a frame, there were
two circular chakras having image of the sun. There were eleven
chhatras (umbrellas). There were two more differently designed
chhatras. There were some more chhatras. In all there were twenty-
two such chhatras or umbrellas.
13. In this context, PW-25 Rajesh Vyas is another important
witness. He was a pancha when the police handed over the idols
recovered during the investigation to the temple. He deposed that
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on 18.12.2014 the police officers of MHB Colony police station
called him to act as a pancha. They were handing over the idols to
the Jain Temple. PW-25 and one Harshad Patel acted as panchas.
The idols were handed over to the Jain temple in their presence.
The photographs were taken. The panchnama was recorded. He
signed the panchnama. He identified those photographs taken at
the time of handing over the idols. The panchnama is produced on
record at Exhibit-184. He described the idols. Those idols were
made of panchdhatu (amalgamation of five metals). One idol was
of pure silver. There were chhatras i.e. umbrellas and there were
four silver chavar. He identified those twelve photographs.
14. In the cross-examination he deposed that those six idols
of panchdhatu and one silver idol were already kept in the temple.
The other articles were also kept there. Sthapana of the idols was
over. He referred to the photographs of the idols at Exhibit-191/1
to 191/12.
15. PW-28 PSI Shriram Bhosale was the police officer under
whose supervision the idols were handed over to the temple on
18.12.2014. He deposed that the idols were handed over to the
trustees of the temple under the bond executed under the
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directions of the Court. The idols were kept in the temple by
performing the religious ceremony known as Pratishthapana. He
described all the idols and other articles referred to hereinabove. As
the identification of the idols in the Court was important and as it
was not possible to remove the idols after their pratishthapana he
caused photographs of those articles to be taken and the
panchnama was drawn. It is produced on record at Exhibit-184.
There were twelve such photographs. He identified those
photographs as Exhibit-191/1to12.
In the cross-examination, he denied the suggestion that
the idols were damaged in the incident and they were not
reinstalled in the temple. He accepted that he had not produced the
negatives of the SD card of the photographs. This witness referred
to the same Exhibit-184 panchnama which was referred to by PW-
25 Rajesh Vyas.
16. PW-26 PI Pradeep More was examined to describe the
articles in photographs at Exhibit-191. However, the evidence of
this witness is with reference to Exhibit Nos.191/5, 191/8 and
191/3 which pertain to the recovery at the instance of the accused
No.3 Santosh.
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17. PW-24 Dharmesh Bhuta is another important witness
for the Appellant. He was a pancha in whose presence the police
recovered one silver idol at the instance of the Appellant on
9.9.2010. PW-24 deposed that on 9.9.2010 he was called by the
police officers of MHB Colony Police Station. The Appellant gave
his memorandum statement expressing his willingness to show the
place where he had hidden that silver idol. The statement was
recorded. It is produced on record at Exhibit-135. After that the
Appellant led the police and the panchas to his house. His wife was
present in that room. He shifted one table and removed the silver
idol which was buried under that table. It was idol of Lord
Mahavir. The panchnama was drawn. It was taken on record at
Exhibit-136. PW-24 identified the Appellant before the Court. He
identified the photograph at Exhibit-191/12 and the photograph of
the said idol which was recovered in his presence. His cross-
examination consisted mainly of the suggestions which were
denied by him.
18. PW-27 Sanjeev Bhole was another police officer who
supervised the seizure of the articles recovered under Exhibit-114
from the photographs at Exhibit-191.
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19. PW-22 PI Arvind Shinde was the main investigating
officer. He deposed that on 3.9.2010 the Crime Branch Unit No.11,
Kandivali handed over the accused to MHB Colony police station.
He then arrested those accused under the arrest panchnama. He
deposed about recovery of silver idol effected at the instance of the
Appellant. He also deposed about recovery made at the instance of
other accused. On 6.9.2010 he seized clothes of the Appellant. He
identified the silver idol by photograph at Exhibit-191/12.
20. These are the witnesses relevant for the evidence
against the Appellant.
21. The other witnesses are either general in nature or are
in respect of other accused. Briefly stated they are as follows :
i. PW-2 Hasmukh Shah was a pancha in whose presence the
sickle was recovered at the instance of the original accused
No.5.
ii. PW-3 Satyavan Khare was a pancha for spot panchnama.
iii. PW-4 Chouhan was the photographer for the spot and the
dead body.
iv. PW-5 PSI Jalinder Chavan was the first police officer who had
reached the spot.
v. PW-6 Police Constable Devkate had carried the articles to the
laboratory.
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vi. PW-7 Dhanraj Jain was a pancha for recovery of two idols at
the instance of the accused No.3 but he had turned hostile.
vii. PW-8 Narendra Sarpotdar was the another pancha for
recovery of idols from the accused No.3.
viii. PW-9 Shirrodkar had gone to the temple after the incident.
He had seen the watchman lying in a pool of blood.
ix. PW-10 Samar Yadav was a pancha for the arrest panchnama
of the accused.
x. PW-11 Hemant Kulye was a pancha for recovery from the
accused No.1.
xi. PW-12 Kamlesh Doshi was a pancha for recovery from the
accused No.7.
xii. PW-14 API Pradeep More had supervised recovery at the
instance of the accused No.3.
xiii. PW-21 PSI Ramdas Revgade had arrested the accused Nos.1,
5 and 6 on 4.9.2010.
22. PW-18 Dr. Kiran Kalyankar had conducted the
postmortem examination. He deposed that the dead body of the
deceased Devilal Sevak had three injuries as follows :
i. CLW of the size 5 cm x 2 cm causing depressed fracture
of left side tempero-occipital bone of skull.
ii. CLW of the size 2 cm x 2 cm behind left ear pinna
causing fracture of mastoid bone.
iii. A contused abrasion of the size 3 cm x 1.5 cm behind
left ear lobule.
The cause of death was head injury.
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23. PW-20 Dr. Shyam Ansari had examined the first
informant Raju Joshi. He had suffered four CLWs on the head and
one contusion on the right knee. The nature of the injuries were
‘simple’.
24. PW-23 Mahendrakumar Bhuta was a pancha for
recovery from the accused No.3.
25. PW-19 ASI Ramesh Budhar was a pancha for seizure of
the idol which were found near the Bhagwati Hospital.
26. PW-17 Balkrishna Rokade was working as a Special
Metropolitan Magistrate. The test identification parade was
conducted by him on 23.2.2010. Eight accused were put in the
parade. He deposed that the first informant Raju Joshi identified
the Appellant and one Vicky Mani Thapa. The other witnesses
identified other accused. However, as rightly held by the learned
Judge this evidence at best could be corroborative in nature. In this
context, the first informant, who allegedly had identified the
Appellant, was not examined and, therefore, there is no substantive
evidence of identification of the Appellant. Therefore, we are
leaving this evidence out of consideration.
. This, in short, is the evidence led by the prosecution
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against the Appellant and the other accused.
27. The learned counsel for the Appellant made the
following submissions:
The time of recording of the FIR is in doubt. There is no
recovery of a weapon at the instance of the Appellant. Even if it is
held that recovery was proved at the instance of the Appellant it
would still not prove the presence of the Appellant at the scene of
the offence and at the time of offence. He could at the highest be a
receiver of the stolen property. None of the ingredients of murder is
proved against the Appellant. In the absence of substantive evidence
of identification parade the Appellant’s presence at the spot cannot
be established. No possible explanation is given for not examining
the first informant. PW-1 is merely a formal witness. He had not
seen anything and his identification of the idols and other articles is
not free from doubt. The idols were already handed over and installed
in the temple before their photographs were taken. Therefore, there is
no connection between the recovery of those idols and the
photographs. The necessary important description of the idols viz.
weight etc. is not mentioned. He submitted that the ownership of
the idols is not proved. He submitted that considering all these
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aspects, the prosecution has failed to prove the offence charged
against the Appellant.
28. The learned APP submitted that the articles were
recovered from the Appellant soon after the incident. The Appellant
has not offered any explanation whatsoever regarding the
concealment and recovery of those articles at his instance. The trial
went on for many years and, therefore, some of the witnesses were
not available but recovery evidence is proved through the evidence
of the investigating officers and one of the panchnamas is proved
throught the pancha witnesses as far as the Appellant is concerned.
PW-24 Dharmesh Bhuta was one of the panchas when
the silver idol was recovered at the instance of the Appellant on
9.9.2010. PW-1 has identified the articles. All these articles were
specifically referred to in the FIR lodged by the first informant.
29. We have considered these submissions. In this case the
only direct evidence which could have been led by the prosecution
was in the form of evidence of the first informant Raju Joshi; but
the prosecution has not produced him before the Court. One of the
trustees deposed that after the incident, the informant was under
fear and had gone back to his native place in Nepal. This is the
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possible explanation which could be accepted for his non-
examination. However, the FIR was reduced into writing and
lodged by PW-16 Arjun Girve, as mentioned earlier. He has proved
his signature. His own signature is on the proforma of FIR as well
as on the statement given by Raju Joshi. The FIR is produced on
record as mentioned earlier. Importantly, apart from mentioning
description of the offenders, the FIR also mentions as to what were
the articles that were stolen. They were mentioned as silver and
panchadhatu idols, two silver Tejchakkras, coated by gold, silver
umbrellas and Chavars. They were worth more than Rs.4 Lakhs. It
is mentioned in the FIR that this list was told to the first informant
by PW-1 Anil Shah. Therefore, the evidence of Anil Shah is
important. The statement was given by him immediately on
22.8.2010 within a short time from the dacoity. The stolen articles
were specifically mentioned in the FIR statement. During the
course of the investigation the articles were recovered and were
handed over to the temple. PW-1, in his deposition, has stated that
he had given description of all the stolen articles to the police. He
described those articles as five panchadhatu idols, sixteen silver
chhatras (umbrellas), two tejchakkra, one silver idol, four silver
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chavras. He further deposed that on 7.9.2010 he was called in the
police station and he identified all those articles except the silver
idol. He is a truthful witness because by 7.9.2010 the silver idol
was not recovered and it was recovered on 9.9.2010 at the instance
of the Appellant.
30. In further examination-in-chief he identified the
photographs of twelve articles i.e. Exhibits-191/1 to 12 including
the silver idol. Thus, he has identified all the articles recovered
during the investigation which included the articles recovered at
the instance of the Appellant. The prosecution has thus proved the
incident of dacoity, the theft of those particular articles,
identification of those articles by PW-1 and the identification of
photographs of those particular articles.
31. As far as the Appellant is concerned, the recoveries are
effected at his instance on two occasions. The first recovery was on
3.9.2010, when two idols, tejchakkras, chhatras and chavras
were recovered at his instance. They were immediately identified
by PW-1 on 7.9.2010. On 9.9.2010, again, a recovery was effected
at his instance of a silver idol which he had buried below a table.
There is no infirmity in this evidence of recovery at his instance.
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Thus, the evidence of recovery of articles at the Appellant’s instance
and their identification by PW-1 is sufficiently proved beyond
reasonable doubt by the prosecution.
32. Since the idols are identified by PW-1, it is not
necessary to prove from where the idols were procured by the
temple.
33. Therefore, the issue which needs to be considered is as
to whether the Appellant can be said to be merely a receiver of the
stolen property as argued by the learned counsel for the Appellant
or was involved in the serious crime punishable under Section 396
of IPC. In this context, a few provisions of the Indian Evidence Act
are important as follows :
34. Section 114 of the Indian Evidence Act reads thus:
114. Court may presume existence of certain facts.-- The
Court may presume the existence of any fact which it thinks
likely to have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to the facts of the particular case.”
. The first illustration under this section is significant,
which reads thus”
“(a) that a man who is in possession of stolen goods soon after
the theft is either the thief or has received the goods knowing
them to be stolen, unless he can account for his possession;”
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35. In this case the incident of dacoity had taken place on
22.8.2010. The Appellant was arrested on 3.9.2010 and
immediately the articles were recovered from him on that day
itself. One more idol was recovered on 9.9.2010. Thus, he was
found in possession of stolen goods soon after the theft. Therefore,
there is a presumption that either he has committed the theft or has
received the goods knowing them to be stolen unless he accounted
for his possession. In this case the Appellant has offered no
explanation whatsoever regarding possession of those stolen
articles which are directly connected with the incident of dacoity at
the Jain temple. Therefore, it was necessary to draw a presumption
against him under Section 114 of the Evidence Act. Thus, there is a
strong presumption that the Appellant himself is the thief.
36. Apart from that, Section 106 of the Indian Evidence Act
also operates against him, which reads thus :
"106. Burden of proving fact especially within knowledge.—
When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him."
In this case since the prosecution has proved that the
Appellant was in possession of those stolen articles which were
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distinctive in nature. The burden was on him to explain as to how
these articles came in his possession. Therefore, these are the
strong presumptions against the Appellant which he has not
rebutted at all. Hence it can safely be concluded that the Appellant
was one of the dacoits who had committed that offence.
37. Learned counsel for the Appellant tried to contend that
even assuming that the Appellant was present at the spot of
incident at the time of incident he could still not be held
responsible for death of the deceased as there is nothing to show
that he inflicted the fatal blow. In this context, the evidence of PW-
18 Dr. Kiran Kalyankar clearly proved that it was a homicidal
death. Section 396 of IPC reads thus :
“396. Dacoity with murder.-- If any one of five or more
persons, who are conjointly committing dacoity,
commits murder in so committing dacoity, every
one of those persons shall be punished with death,
or imprisonment for life, or rigorous imprisonment
for a term which may extend to ten years, and shall
also be liable to fine."
. In this case there were more than five persons. The
section lays down that if any one of five or more persons commits
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murder in so committing dacoity every one of those persons shall
be punished with death, or imprisonment for life, or rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine. Therefore, it is not necessary to prove that the
Appellant had inflicted the fatal blow in this case. Section 396 of
IPC takes care of this argument. The Appellant cannot escape his
liability under Section 396 of IPC.
38. As a result of the above discussion, we do not find any
infirmity in the impugned judgment recording conviction.
However, it is clarified that the learned Trial Judge had no
authority to direct a minimum sentence of sixteen years once he
imposed sentence of Life Imprisonment. The actual years in prison
pursuant to the sentence of Life Imprisonment shall be governed
by the Rules. With this clarification, the Appeal is dismissed.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Digitally signed by
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Date: 2026.01.30
17:47:54 +0530
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