LexDEEPAK @ WIRELESS versus STATE OF MAHARASHTRA
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A B c [2012] 7 S.C.R. 484 DEEPAK @ WIRELESS v. STATE OF· MAHARASHTRA (Criminal Appeal No. 438 of 2009) SEPTEMBER 4, 2012 [SWATANTER KUMAR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] PENAL CODE, 1860: ss.395, 396 and 397 - Ingredients of - Explained - Appellant along with four others (two juveniles and two remained absconding) committing robbery resulting in death of one victim and grievous injuries to the other - Held: The 0 injured witness clearly stated that the number of assailants was five - She identified the appellant unhesitatingly in the court and stated that he was one of the assailants - The factum of death of one of the victims and grievous injuries to the witness has been supported by medical evidence - The E evidence of the brother of the deceased and the spot panchnama recorded in his presence show that the accused· had taken away cash as also ornaments worn by the inured witness - Therefore, the conviction of the appellant for his involvement in the crime with four others falling u/ss 395, 396 and 397 /PC, as recorded by trial court and confirmed by High F Court, does not call for any interference - Evidence - Identification of accused. G H EVIDENCE: Dacoity - Identification of accused in court - Held: The witness was a victim at the hands of the accused-appellant and suffered grievous injuries which disabled her movements for quite a long time - In fact, the trial court has observed descriptively as to how she was placed in a situation where 484 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA 485 she was able to observe the conduct of the appellant and A other accused so closely giving no scope for any doubt as to her unhesitant identification of the appellant at the time of trial - Penal Code, 1860 - ss.395, 396 and 397. The appellant was prosecuted for CQmmitting 8 offences punishable ulss 395, 396 and 397 IPC. The prosecution case was that the appellant along with four others committed dacoity in which the brother of PW2 was killed and PW-9, the wife of PW-2, was seriously injured by the accused. Out of the said 5 accused, two C remained absconding; and two being juveniles, their case was separated. The trial court convicted the appellant under each of the three counts and sentenced him to various terms including imprisonment for life uls 396 IPC. The High Court confirmed the conviction and the 0 sentence. In the instant appeal it was, inter alia, contended for the appellant-accused that the offence of dacoity per se was not made out in as much as the basic ingredient of five persons conjointly committing the offence of robbery E and murder was not made out; that no recoveries from any person, much less the appellant, were made as regards the alleged articles looted in the occurrence; and that identification of the appellant in the court without holding any proper test identification parade could not F form the basis of his conviction. Dismissing the appeal, the Court HELD: 1.1 In order to find a person guilty of offences punishable u/ss 395, 396 and 397 of IPC, his participation G along with a group of five or more persons indulging in robbery and in that process committing murder and also attempting to cause death or grievous hurt with deadly weapons would be sufficient. Use of a knife in the course H 486 SUPREME COURT REPORTS [2012] 7 S.C.R. A of commission of such a crime has always been held to be use of a deadly weapon. [para 5] [494-G-H] 1.2 In the case on hand, three persons were arrested and since two accused persons other than the appellant 8 were juveniles, they were stated to have been proceeded separately. Besides, two other accused were absconding throughout the stage of trial. In order to prove the participation of five persons, the sole reliance was placed upon the deposition of P.W.9, the victim who suffered C severe injuries at the hands of the accused. In her chief- examination she stated that on the date of occurrence four to five thieves entered their house. In the cross- examination, however, she came out with a definite answer that the number of persons involved in the 0 offence was five. She further stated that on hearing the shouts of her brother-in-law she went to the adjacent room and saw those persons assaulting her brother-in- law with the aid of knives, rods and wooden club. She also described the features of those persons as E belonging to the age group of 18 to 25 years. Accordi
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