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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.852 OF 2009
Mohammad Sajid Abdul .Appellant Majid Momin
R/o.Babasaheb Ambedkar Nagar,
Colaba, Cuffe Parade Zopadpatti,
The State of Maharashtra .Respondent WITH
CRIMINAL APPEAL NO.218 OF 2009
1. Prakash Janu Patade .Appellants Age:23 yrs,
Room No.11, Acharya Donde
Mumbai 400 015.
2. Ganesh alias Ganya Motiram Katawate Age:29 yrs,
R/o.Building No.10, Room No.14,
Transit Camp, T L Sadhu Vaswani Marg,
Mumbai 400 005.
3. Vijaydip alias Gotya
R/o.Ashirwad Building, B-wing,
Room No.405, Acharya Donde
Mumbai 400 15.
2 Apeal 852-09
The State of Maharashtra .Respondent WITH
CRIMINAL APPEAL NO.366 OF 2009
Prakash Vasant Bane alias .Appellant Taklya Pakya
R/o.Amar Vikas Mandal,
Room No.15, Sewree Cross road,
Near Excellence High School,
Mumbai 400 031.
The State of Maharashtra .Respondent WITH
CRIMINAL APPEAL NO.257 OF 2009
Mahendra Rajaram Bhuvad .Appellant Age:26 yrs,
Housing Society, Subhash road,
Kuberkhana Path, Dombivali(W),
The State of Maharashtra .Respondent WITH
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CRIMINAL APPEAL NO.226 OF 2010
Amit Kumar Upendra Pathak .Appellant Age:26 yrs,
R/o.Babasaheb Ambedkar Nagar,
Behind Backbay Agar Bus Depot,
Mumbai 400 005.
The State of Maharashtra .Respondent Mr.Jagdish Shetty h/f. Mr.S.C.Kanojia, Advocate, for the Appellant in Cri.Appeal No.852 of 2009 Mr.Rajbali Dube, Advocate, for the Appellants in Cri.Appeal Nos.218 of 2009 and 226 of 2010 Mr.Rajesh Datar, Advocate, for the Appellant in Cri.Appeal No.257 of 2009
Mrs.M.R.Tidke, APP, for the Respondent State in all matters
RESERVED ON : 28TH NOVEMBER, 2011 PRONOUNCED ON : 9TH JANUARY, 2012 CORAM : R.C.CHAVAN, J. JUDGMENT
. These five Appeals are directed against conviction of seven appellants by the learned Additional Sessions Judge, Sewree, Mumbai for the offences punishable under Sections 395, 397, 170 and 342 of the Indian Penal Code and 4 Apeal 852-09
sentences of R.I. for seven years with a fine of ` 5000/- or in default S.I. for one year on the first two counts, R.I. for one year with a fine of ` 1000/- or in default S.I. for one month on the third count, R.I. for one month with a fine of ` 500/- or in default S.I. for seven days on the fourth count imposed upon the appellants on the conclusion of Sessions Cases Nos.971 of 2006 and 218 of 2007 before him. The learned Judge acquitted the appellant Mohammad Sajid Abdul Majid Momin, accused No.1 of the offence punishable under Section 342 of the Indian Penal Code and acquitted all the appellants of the offence punishable under Section 135 of the Bombay Police Act.
2. Facts which are material for deciding these appeals are as under :-
On 19th July, 2005 at about 11:00 a.m. when Gaurang Shah and members of his family were busy in household activities in their flat, one 5 Apeal 852-09
of the appellants enquired through half open door of the house about one Jayant. He was told that there was no person by name Jayant in the family. The miscreant was asked as to what was the address given, whereupon the miscreant insisted that the address given was the same where complainant's family resided. He told that he was from the Income Tax Department. Gaurang Shah went up to the door and found six more persons. All of them entered complainant's house and asked him to call all the family members. The miscreants displayed their weapons and detained family members at various places in the house. They forced family members to open cupboards and took away cash and jewellery. They tied up the complainant and gaged him by pasting a tape over his mouth and then decamped with the booty.
3. The complainant managed to untie himself and untied his father. He also released 6 Apeal 852-09
other family members and rushed outside in search of the miscreants, who were not to be found. He went to the police station and gave a report describing the miscreants. An offence was registered and investigation commenced. The police performed panchanama of spot and arrested some of the miscreants in July, 2006 i. e. about an year after the incident. Accused No.7 Prakash Bane was arrested on 23rd November, 2006. In course of investigation, the police recovered a chopper from accused No.2 Prakash Patade. On the basis of information given by accused No.1 Mohammad Sajid Abdul Majid Momin, three necklaces and an ear ring were recovered from one Rupkala Art, a Jewellery Shop. Another chopper was recovered at the instance of accused No.4 Ganesh Katawate. On the information given by accused No.3 Mahendra Bhuvad, a ring was recovered. The articles seized were shown to the complainant in presence of panchas and the complainant identified those articles. A 7 Apeal 852-09
panchanama was drawn up.
4. On 31st July, 2006 the Special Executive Officer was requested to hold identification parade. In the identification parades held in Arthur Road Prison and Central Jail, Thane, some of the accused persons were identified. After the arrest of accused No.7 Prakash Bane, he was also subjected to identification parade in Arthur Road Prison, Mumbai before another Special Executive Officer. After completing investigation in respect of first 6 accused persons, charge sheet, which came to be numbered as Sessions Case No.971 of 2006, was filed, and after completing investigation about the complicity of accused No.7, a supplementary charge sheet was filed, which came to be numbered eventually as Sessions Case No.218 of 2007. After the cases were committed by the learned Additional Chief Metropolitan Magistrate, 22nd Court, Mazgaon, Mumbai to the 8 Apeal 852-09
Court of Session, the learned Additional Sessions Judge to whom the case was made over, charged the appellants of the offences punishable under Sections 395, 397, 170, 342 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 18 witnesses in its attempt to prove guilt of the accused. After considering their evidence in the light of defence of false implication, the learned Additional Sessions Judge convicted and sentenced the appellants as mentioned earlier. Aggrieved thereby, they are before this Court.
5. I have heard the learned counsel for the appellants and the learned APP for the respondent State. With the help of both the learned counsel I have gone through the evidence on record. The evidence against the persons accused could be tabularised as under : 9 Apeal 852-09
No Name of date Recovery date/ Exh. Witnesses date Exh Witnesses Remarks . accused of if any s no. P.W.No./ of . P.W. No./ arre Name T.I. no. Name st para de
1 Sajid 12.7 Three 19.7. 51/51 18/I.O. 17.8 26 9/ SEO [i]Sabina Momin . necklaces 06 A P.I. . Vilas did not (ii) 06 , Desai 06 Patil identify one pair 6,15/Panc 4/panch ornaments of has Shamrao . earrings Ibrahim 13/purcha [ii] Not Shaikh, ser Dilip identifie Subhash Kothari d by any Shirsat eye 13/purcha witness ser Dilip
2 Praka 13.7 chopper, 19.7. 16/16 18/I.O. 31.7 25 9/ SEO [iii]Does sh .06 ring 06 A P.I. . Vilas not Patade Desai 06 Patil identify 1,2/Panch 4/panch A/2, as Shamrao[i identifie Murlidhar v] s A/6 Patil[iii 5/victim Vijaydeep ], Laxman Gaurang as the 7,11/eye person at
3 Mahendr 13.7 [brass?] 23.7. 62,62 18/I.O. 31.7 25 9/ SEO a .06 ring 06 A P.I. . Vilas Bhuvad Desai 06 Patil 8,15/Panc 4/panch
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4 Ganesh 13.7 chopper 20.7. 18,18 18/I.O. 31.7 25 9/ SEO Katwate .06 06 A P.I. . Vilas Desai 06 Patil
5 Amit 24.7 chopper 1.8.0 52,52 18/I.O. 17.8 26 9/ SEO [v]Not Pathak .06 6 A P.I. . Vilas relevant- 89.89 Desai 06 Patil no A[v] 6,15/Panc 4/panch recovery, has Shamrao[i about Ibrahim ii] spot Shaikh, 5/victim
6 Vijayde 31.7 chopper 7.8.0 90/90 18/I.O. 21.8 27 9/ SEO [vi][P.W. ep .06 6 A P.I. . Vilas 1 Bhole Desai 06 Patil Murlidhar [vi] 15/Pancha 4/panch does not s Shamrao[i say
Subhash ii] anything] Shirsat, 5/victim
7 Prakash 23.1 Two 7.12. 28,28 18/I.O. 21.1 29 10/SEO [vii]Vish Bane 1.06 bangles 06 A P.I. 2.06 Vinod al states Desai Divecha that he 4,8/panch 9/ SEO melted as Vilas bangles,r Shamrao, Patil emade Ganesh, 4,8/panch them & 7/ as sold to purchaser Shamrao, other Vishal Ganesh customers Bhati 5/victim .
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6. PW-5 Gaurang Shah the first informant, states about the manner in which the incident took place. He states that one of the miscreants took him to the room where there was a cupboard. Jewellery had been removed from one of the cupboards. He stated that he and his brother were asked to open the other cupboard. They avoided, but eventually the miscreants opened the other cupboard and carried away cash from the said cupboard. He claims to have released his family members after the miscreants left and then gave a report vide Exhibit 34 to the police. He stated that Gold ornaments weighing 530 Grams, Silver ornaments weighing 300 Grams and ` 1,50,000/- in cash were stolen. He claims to have identified in July, 2006 some of the ornaments. He states that on 31st July, 2006 in Arthur Road Jail he identified accused No.2 Prakash Patade, accused No.3 Mahendra Bhuvad and accused No.4 Ganesh Katawate. On 17th August, 2006 in Central Prison, Thane he 12 Apeal 852-09
identified accused No.5 Amit Kumar. He stated that either on 21st or 31st August, 2006 in Arthur Road Prison he identified accused No.6 Vijaydip Bhole and on 21st December, 2006 he identified accused No.7 Prakash Bane. In cross examination he admitted that the ornaments were not shown to him at the police station by mixing them with other ornaments. He admitted that some of the things which he stated in his examination-in- chief were not in his report. He stated in cross-examination that on 31st July, 2006 as also on 21st August, 2006, he, his father and brother had gone together at the venues of identification parade. He stated that there was no person with turban in the identification parade held on 31st July, 2006. He stated that the place where the Test Identification Parades were held in Arthur Road Prison was covered by net but the person standing outside could see what was happening at the venue of Test Identification Parade.
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7. PW-7 Harshad Shah is a father of Gaurang. He corroborates Gaurang substantially on the manner in which the incident took place. He stated that cash of ` 54,000/- kept in his brief case was taken away apart from cash of ` 1,00,000/- and ornaments etc. from the cupboards. He stated that after one year he was called in Dongri Police Station where he had gone along with his son Gaurang and nephew Nilesh where he identified all the Gold ornaments. He stated that they were called for identification of accused persons four times. First, in the Arthur Road Jail, he identified three accused persons i. e. accused Nos.2, 3 and
4. On the second occasion, in Thane Central Prison, he identified accused No.5. In the third parade, in Arthur Road Jail, he identified accused No.6 and lastly, again in Arthur Road Jail, he identified accused No.7. He was categorical that accused No.1 was not seen at the time of incident in the house. He admitted 14 Apeal 852-09
that several things which he had stated before the Court were not in his statement before the police.
8. PW-11 Mehul Shah is complainant's cousin, who was present at the time of incident and corroborated substantially the evidence of PWs 5 and 7. He too stated that he had been to identify the appellants at Test Identification Parade in Arthur Road Prison and Thane Central Jail. He stated that he had identified accused No.5 Amit Kumar in Thane Central Jail, accused No.7 Prakash Bane and accused No.3 Mahendra Bhuvad in Arthur Road Prison (when they were in fact not paraded together), but stated that he could not identify the person, who had come to the house with turban, and also could not remember whom he had identified in the first identification parade in Arthur Road Prison.
9. PW-9 Special Executive Officer Vilas 15 Apeal 852-09
Patil stated having conducted identification parade in Arthur Road Jail on 31st July, 2006 at which PW-1 Gaurang Shah identified accused Mahendra Bhuvad and Ganpat Katawate as well as Prakash Patade. He stated that the other eye witnesses too identified these persons. The witness proved panchanama of this Test Identification Parade vide Exhibit 25. He stated that again on 17th August, 2006 he conducted Test Identification Parade in Thane Central Jail where Gaurang Shah and two other eye witnesses identified accused No.6 Vijaydip. Accused No.1 too seems to have paraded at this parade but was not identified by any one. Accused No.1 Mohammad Sajid Abdul Majid Momin was identified by a Gold Smith as the person, who had come with a Muslim woman and sold ornaments worth ` 62,000/- to him. The witnesses proved the memo of his Test Identification Parade vide Exhibit 24. The witness further stated that on 21st August, 2006 16 Apeal 852-09
he had again conducted Test Identification Parade at Arthur Road Prison where the witnesses are stated to have identified accused No.6 Vijaydip Bhole, who is supposed to have visited house of the complainant wearing tie. He also stated that he did not know about any interaction between the first and the second identifying witnesses after the first had identified the suspects, and before second came. In cross examination, this witness as also PWs 5, 7 and 11 stated that dummies were different in age, heights, complexion and built from the suspects.
10. PW-10 Vinod Divecha is another Special Executive Officer, who conducted Test Identification Parade vide Exhibit 29. Curiously, there is no examination-in-chief of this witness and the prosecutor seems to have simply given up the witnesses for cross examination. PW-8 Ganesh Surve stated that he 17 Apeal 852-09
was panch at the Test Identification Parade held by PW-10 Vinod Divecha in Arthur Road Prison vide Exhibit 29.
11. In addition to the witnesses referred to above, among those examined is, PW-3 Madan Dhediya, a panch at the spot panchanama Exhibit 21 recorded by police on 19th July, 2005. The situation on the spot observed by this witness corroborates the version of the first informant.
12. PW-4 Shamrao Bhavekar and PW-8 Ganesh Surve are panchas in whose presence three sealed packets containing ornaments were opened by the police on 26th July, 2006. They stated that the panchanama was drawn vide Exhibit 23 and the packets were sealed vide Exhibit 24. PW-4 Shamrao Bhavekar was declared hostile and upon cross examination by the learned APP, he admitted that the complainant and witnesses were shown the ornaments in his presence.
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13. PW-12 Vishal Bhati is a Jeweller, who states that accused No.7 Prakash Bane had sold to him two Bangles for ` 12,000/- about 7-8 months before seizure, which he had melted, re- made and sold to other customers.
14. PW-13 Dilip Kothari is another Jeweller, who states that he knew PW-14 Sabina Memon, who had sold some ornaments to him in August, 2005 for a sum of ` 62,000/-. He stated that on 19th July, 2006 he had produced the ornaments before the police. He also claimed to have identified accused No.1 Sajid Memon at Test Identification Parade held in Thane Central Jail. He claimed that he knew accused No.1 Sajid as husband of Sabina.
15. PW-14 Sabina Memon states that accused No.1 Mohammad Momin was a friend of her husband, who had given her Gold ornaments for which she had received a sum of ` 62,000/- from PW-13 19 Apeal 852-09
Dilip Kothari, which amount she had paid to accused No.1 Sajid Momin. She, however, refused to identify the ornaments.
16. PW-16 API Gulab Mahadik states about proclamation of prohibitory orders under Section 37 of the Bombay Police Act (for making out offence punishable under Section 135 of the Bombay Police Act). PW-17 PSI Sahebrao Patil received report vide Exhibit 34 and performed panchanama of spot vide Exhibit 21. PW-18 PI Dinesh Desai conducted investigation and states about disclosures by accused persons and recoveries made.
17. The learned counsel for appellant Sajid Momin submitted that the learned trial Judge could not at all have even charged the appellant of the offence punishable under Section 395/397 of the Indian Penal Code, since there was absolutely no evidence of his 20 Apeal 852-09
complicity in the dacoity. Even according to the prosecution, he was not stated to be present at the time of dacoity. The allegation of his complicity comes from what co-accused allegedly disclosed to police during investigation that he had planned the heist which, apart from being inadmissible, is not even stated in evidence. He submitted that even alleged recovery of gold ornaments at his instance on 19th July, 2006 was insufficient to brand him as receiver of property involved in theft. For this purpose, he placed reliance on Judgment of Supreme Court in State of Rajasthan versus Talevar & Anr., reported at 2011(3) Crimes 61 (SC).
18. Though the learned APP sought to make out that accused No.1 Sajid Momin was mastermind behind the dacoity, there is absolutely no evidence of his involvement in dacoity. As regards recovery of ornaments at his instance on 21 Apeal 852-09
19th July, 2006 vide Exhibit 51/51A, an year after the incident, or identification of ornaments seized by PWs 5, 7 and 11, vide Exhibit 23, it is difficult to believe that a jeweller purchasing ornaments would keep them intact for almost one year from August, 2005 to July, 2006. This is, particularly so, since FIR Exhibit 34 does not contain any description of these articles 6A, B, C and article 7 allegedly seized at the instance of accused No.1 Sajid Momin. These reasons would also hold good for recoveries of ornaments at the instance of other accused persons. In fact, PW-12 Vishal Bhati, another jeweller candidly stated that he melted the bangles purchased, prepared new bangles and sold them to another customer. Therefore, the recovery of two bangles at the instance of appellant Prakash Bane vide Exhibit 28/28A or identification of those bangles article 8 by PWs 5, 7 and 11 is meaningless. As far as seizure of ring at the instance of appellant Prakash 22 Apeal 852-09
Patade vide Exhibit 16/16A is concerned, this was not the stolen ring but one allegedly purchased by him from ` 5000/- which was his share of booty.
19. As for recovery of choppers, there is no special mark which could distinguish them enabling PWs 5, 7 and 11 to identify them as brandished by particular appellants. Mercifully the witnesses were not asked to identify choppers. Therefore, the evidence about recoveries effected at the instance of appellants, apart from being weak evidence, is grossly inadequate to connect appellants to the crime. Learned counsel for Amit Kumar relied on Judgment of Supreme Court in RAMBILAS AND OTHERS Versus STATE OF M.P., reported at 1997 Supreme Court Cases (Cri) 1222 for this purpose.
20. This takes me to the identification of appellants (except Mohammad Momin) by PWs 5, 7 23 Apeal 852-09
and 11 in Court, corroborated by identification at test identification parades held before Special Executive Officers PW-9 and 10. The learned counsel for appellants submitted that the evidence ought to have been rejected by the learned trial Judge as test identification parades were held over an year after the incident and also much after the appellants concerned were arrested, affording opportunity to the witnesses to see the appellants while in custody of police. For this purpose, reliance was placed on Judgment of this Court in The State of Maharashtra Vs. Rajesh Alias Kaka Madanlal Soni & Ors, reported at 1998 ALL MR (Cri) 471 and that of Supreme Court in Rajesh Govind Jagesha Vs. State of Maharashtra, reported at 2000 ALL MR (Cri) 258. There can be no doubt about the proposition that test identification parades have to be held promptly after arrest of accused persons and delay in holding parades would not only expose the 24 Apeal 852-09
prosecution to charge of tampering but would also put a question mark on ability of witnesses to identify culprits after a long gap. However, as rightly submitted by the learned APP, the question of reliability of identification is in the realm of appreciation of evidence and therefore, there cannot be any rule about acceptance/rejection of evidence of identification at parades held within/beyond any fixed time. This is so because, if miscreants in a serious crime, successfully evade arrest for over an year or longer period and they have to be acquitted only because of passage of time, serious crime will go unpunished. Therefore, delay in holding parade per se cannot always be fatal.
21. As far as delay in holding parade after arrest of appellants, it may be noticed from the table in para 5 that in cases of each of the appellants, parade has been held within a 25 Apeal 852-09
month. In case of accused Nos.2, 3 and 4, it was held within eighteen days of their arrest, accused No.5 within 24 days of his arrest and accused Nos.6 and 7 within 21 and 28 days of their arrest, which is not abnormal. Therefore, this ground is not available to appellants.
22. The learned counsel for appellants submitted that PWs 5, 7, 11 as also 9 and 10 admit that dummies and the suspects were not similar in their appearance and therefore, parades are vitiated. It was also submitted that witnesses had an opportunity to see the suspects, who had been taken for effecting recoveries before being paraded and even at the venues of parades. It was submitted that it was not ensured that first identifying witness would not communicate with the next after leaving the parade site.
23. As rightly pointed out by the learned 26 Apeal 852-09
APP, it would be impossible to find dummies exactly similar in built/complexion etc. with each suspect. As far as turban worn by one of the suspects, since it is not that he was a Sikh, he could have paraded himself without a turban. In any case, PW-11 Mehul Shah could not identify the person who had come with a turban. So turban did not mark out the accused. PW-18 Investigating Officer, Shri Dinesh Desai had categorically stated that whenever he took each accused for effecting recovery, he had covered up the suspect with a veil. There is no reason to disbelieve his word. As to the holding of parade in a place having a wive mesh partition, this in itself would not be enough to conclude that witnesses outside had chance to note, who was being identified or to know from identifying witness before going in as to whom such witness had identified. Evidence of PWs 9 and 10 shows that they had taken all prescribed precautions while conducting parades. Had the prosecution 27 Apeal 852-09
cooked up evidence of PW-11 Mehul Shah would not have come up with a discrepant version. Ability to observe and retain in memory differs from person to person. Therefore, there is no reason to discard the evidence about identification of appellant Nos.2 to 7 by PWs 5 and 7, and to a certain extent even by PW-11.
24. The learned counsel for the appellants also submitted that if the evidence about recoveries and identification of property seized is to be excluded, it would be impermissible to hold the appellants guilty of serious offences of dacoity only on the basis of identification at test identification parade held after one year of the incident and subsequent identification in the Court. I am afraid that this argument cannot be accepted because there can be cases where there may be no identifiable property lost, like currency notes, or there may be no recovery of any property at all. If the 28 Apeal 852-09
arguments were to be accepted, it would imply that in every case where there is no recovery of property or no identification of property recovered, the accused would have to be acquitted, irrespective of whether their complicity is proved by other evidence or not. In the instant case, there are eye witnesses, who have identified the miscreants and also have described the role played by each of them. There is no reason to discard this evidence. In view of this, complicity of the appellants would have to be determined on the basis of their identification by eye witnesses.
25. As already observed, the appellant Sajid Mohammad has not been identified as participant in dacoity. More over, it is nobody's case that he was present when dacoity was committed. The ornaments seized at his instance cannot be connected to those stolen by unimpeachable evidence. In view of this, his 29 Apeal 852-09
complicity must be held as not proved beyond the pale of doubt and he would be entitled to be acquitted. As far as other appellants are concerned, their identification by eye witnesses has to be accepted and therefore, their conviction for the offences punishable under Sections 395 read with Section 397, Section 342 and Section 170 of the Indian Penal Code has to be maintained. However, Section 397 of the Indian Penal Code only provides for aggravated sentence for the offence punishable under Section 395 of the Indian Penal Code, if committed by using deadly weapons. Therefore, there was no warrant for inflicting a separate sentence for these two offences. To that extent, the appeals of remaining appellants would have to be allowed.
26. In the result, Criminal Appeal No.852 of 2009 by Mohammad Sajid Abdul Majid Momin is allowed. His conviction for the offences 30 Apeal 852-09
punishable under Sections 395, 397 and 170 of the Indian Penal Code and sentences imposed upon him for those offences is set aside. He is acquitted of those offences and shall be set at liberty, if not wanted in any other case. Criminal Appeal Nos.218 of 2009, 366 of 2009, 257 of 2009 and 226 of 2010 are partly allowed. Conviction of the appellants is altered to one for the offence punishable under Section 395 read with Section 397, 170 and 342 of the Indian Penal Code. The sentence of R.I.for seven years with a fine of ` 5000/- or in default S.I. for one year separately imposed for the offence punishable under Section 395 of the Indian Penal Code is set aside. The remaining sentences, including sentence of R.I.for seven years with a fine of ` 5000/- or in default S.I. for one year for the offence punishable under Section 397 of the Indian Penal Code are maintained, since the sentence imposed for the offence punishable under Section 397 of the Indian Penal Code is 31 Apeal 852-09
the minimum prescribed for the offence in which deadly weapons like choppers were used to put the victim in fear of death or grievous hurt. (R.C.CHAVAN, J.)