( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 265 OF 2009 Sarvadhan s/o. Maroti Jadhav .. Appellant Age. 30 years, Occ. Worker, [ori. accused R/o. Chichgavan, Tal. Majalgaon, No.3] Dist. Beed. Versus The State of Maharashtra .. Respondent Mrs. S.S. Savale, Advocate (appointed) for the appellant. Mrs. B.R. Khekale, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 17.11.2009 ORAL JUDGMENT :­ 1. This is an appeal filed by original accused No.3 Sarvadhan, who is convicted of offences punishable under Sections 394 and 395 of the Indian Penal Code by the Ist Adhoc Additional Sessions Judge, Majalgaon, in Sessions Case No.38 of 2005, decided on 16.09.2006. The appellant was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1000/­, in default, to undergo rigorous ( 2 ) imprisonment for three months for each of offences punishable under Section 394 & 395 of the I.P.C. 2. Briefly stated, it is case of the prosecution that one Baban Pandurang Pankhade, who owns a cloth stores and who is also an agriculturist, was residing with his wife and children at Bhise­wagholi, Tal. & Dist. Latur. Five years earlier P.W.1­Baban had purchased an auto­rickshaw in his name and gave it to one Baban Mariba Gaikwad for plying it as a driver. Two years earlier Baban Mariba Gaikwad expired and his widow Deoshala has been residing at Bhise­wagholi with her children. Present appellant­Sarvadhan Kaikadi, resident of Majalgaon, was brother of Deoshala and he was also residing with Deoshala from 2000 to 2003. The appellant used to sell balloons and safety pins etc. Therefore, P.W.1­Baban was knowing appellant Sarvadhan. On 17.12.2004 at about 8.30 a.m. the appellant came to the house of P.W.1­Baban and told him that he had a friend at Majalgaon, who possessed silver worth Rs.1,25,000/­ and the appellant could procure silver for Rs.50,000/­ for P.W.1­Baban. Allured by this deal, P.W. 1­Baban agreed to purchase silver. Accordingly, P.W.1­Baban withdrew Rs. 50,000/­ from bank and in Jeep bearing No. ( 3 ) MH­24­C­2730, P.W.1­Baban, his driver P.W.3­Ramchandra and the appellant left Bhise­wagholi at about 12.30 noon and reached Majalgaon S.T. Stand at about 6.00 p.m. There the appellant alighted from Jeep and told P.W.1­Baban that he along with his friend would take silver ahead to Georai road and P.W.1­Baban should follow him in Jeep. The appellant further told P.W.1­Baban that a woman with child in her arm would be standing on the road and she would make signal for stopping and P.W.1­Baban should stop his jeep. Thereafter, said woman and friend of the appellant would give him silver and he should pay them. Accordingly, the appellant went ahead in auto­rickshaw. After some time P.W.1­Baban with his driver P.W.3­Ramchandra went to Georai road following the auto­rickshaw in which the appellant was proceeding. About 5 km. from Majalgaon, near a bridge, a woman, who was lateron identified as accused No.1­Chhayabai, was standing with a child in her arm. She made signal for stopping. It was 6.45 p.m. When driver stopped the jeep, the woman asked about money. P.W.1­Baban told her that he should be given silver first. The woman raised shouts and gave signal. Thereafter, 10 – 15 persons surrounded the Jeep. One of them held sword to the neck of P.W.1­Baban and others beat driver and P.W.1­ ( 4 ) Baban with hands and kicks. Thereafter, they took away fifty thousand rupees wrapped in the sweater of P.W.1­Baban, so also they took three tola gold bracelet, three tola gold locket, 2 gold rings and watch from P.W.1­Baban and cash of Rs. 3000/­ with the driver. Thus, they robbed cash and articles worth Rs. 99500/­ from P.W.1­Baban and P.W.3­driver. Thereafter, a truck came. P.W.1­Baban went in that truck to Majalgaon police station and lodged complaint. It was registered at about 9.13 p.m. The crime was registered under Section 395 and 420 of the I.P.C. and Section 25 (1) of the Arms Act. During investigation Police recovered amount of Rs. 26,000/­ and two gold rings. They arrested various accused persons. Finally charge­sheet was sent. 3. In all eight witnesses were examined. Relying on evidence, accused Nos. 1 and 3 were convicted for offences punishable under Section 394 and 395 of the I.P.C. Original accused No.1 – Chhayabai had also preferred Criminal Appeal No.658 of 2006. It was decided by judgment pronounced in on 5th March, 2008. The record and proceedings of Criminal Appeal No. 658 of 2006 is placed with this appeal. This ( 5 ) Court has set aside conviction of appellant Chhayabai for offence punishable under Section 394 of the I.P.C., but confirmed the order of conviction and sentence so far as offence punishable under Section 395 of the I.P.C. is concerned. Present appeal is filed on 25th February, 2009. 4. Heard Adv. Mrs. S.S. Savale for the appellant and A.P.P. Mrs. B.R. Khekale for respondent/State. It is submitted by Adv. Mrs. Savale that there was no actual participation by the appellant in actual commission of robbery and dacoity. She relied upon several authorities. According to her, the appellant has not committed any offence and he should be acquitted; whereas A.P.P. Mrs. Khekale stated that if we consider the entire story disclosed before the Court in the evidence of P.W.1 Baban as supported by P.W. 3­Ramchandra, it is clear that the appellant Sarvadhan was very much part of the gang, who has committed dacoity along with others and robbed cash and other articles, and no illegality is committed by the Trial Court, therefore, the appeal deserves to be dismissed. ( 6 ) 5. The prosecution examined P.W.1­Baban at Exh.75. He stated that he owns Jeep bearing No. MH­24­C­2730 and P.W.3­ Ramchandra was working as the driver on the Jeep. One Baban Gaikwad was brother­in­law of appellant Sarvadhan. P.W.1­ Baban had purchased auto­rickshaw and provided it to Baban Gaikwad for plying. Therefore, he knew appellant­Sarvadhan. It is further stated that two days before the incident appellant­Sarvadhan informed him that his relative was having silver worth Rs. 1,25,000/­, which he was ready to provide for Rs. 1,10,000/­. On 17.12.2005, P.W.1­Baban withdrew Rs. 50,000/­ from D.C.C. Bank, Branch – Shirala and he along with driver P.W.3­Ramchandra and appellant Sarvadhan went in the Jeep to Majalgaon. The Jeep was stopped at the bus­stand at Majalgaon at the request of appellant­Sarvadhan. Appellant­ Sarvadhan said that he would bring the person having silver with him. After some time appellant­Sarvadhan came with that person. Appellant­Sarvadhan and other person boarded in an auto­rickshaw. Appellant­Sarvadhan instructed P.W.1 to follow the auto­rickshaw and stop the vehicle when he saw a lady with child standing on road. After passing 2­3 kms. from Majalgaon, P.W.1 saw a lady standing with a child on road. That lady was identified as accused No.1 before the Court. ( 7 ) Thereafter, the Jeep was stopped near accused No.1 and accused No.1 demanded money. P.W.1­Baban asked to provide silver first. Thereafter, accused No.1 raised shouts. 10­15 persons came and surrounded the Jeep. One of the accused by name Pralhad put sword on the throat of P.W.1­Baban and he was robbed of his golden locket, golden bracelet and three rings. Amount of Rs. 50,000/­ with him was also taken away. Thereafter, at about 9 p.m. he lodged complaint, which is proved at Exh.76. Said complaint is reproduced earlier at the outset of the judgment. The P.W.1­Baban identified gold rings marked as muddemal articles Nos. 2 and 4 as his own. 6. Evidence of P.W.1 is supported by P.W.3­Ramchandra who stated that he had accompanied P.W.1 on 17.12.2004. They first went to Majalgaon. They reached at about 4.30 p.m. Accused asked for stopping the vehicle on the bus­stand. After about 20 minutes he brought one person and thereafter the appellant’s brother instructed them that he along with his friend was going by auto­rickshaw and after 15­20 minutes of departure, they should come to Georai road and after canal, there would be a lady with child. 15­20 minutes thereafter they left and went to Georai road. At the ( 8 ) distance of 4­5 kms. they saw a lady. The lady demanded money. P.W.1 asked for silver. The lady raised shouts. 10­12 persons gathered and they robbed P.W.1­Baban. He also said that the person who accompanied appellant­Sarvadhan had put his sword on the neck of P.W.1­Baban. Amount of Rs. 3,000/­ was also robbed from him. P.W.3 also identified appellant­Sarvadhan as the very person. 7. In cross­examination of either of the two witnesses, there is nothing significant which can show that the evidence of P.W.1 and P.W.3­Ramchandra is in anyway false and/or not trustworthy. P.W.1­Baban has stated in the cross­ examination that there was no traffic on the road when the incident had taken place at about 7.00 p.m. He did not remember number of the auto­rickshaw. Cross­examination of P.W.3­Ramchandra also does not show that there is any reason to disbelieve him. It is proved that he has not stated before police that appellant­Sarvadhan left the Jeep at Majalgaon and returned after 15 minutes. There is also omission to state that appellant­Sravadhan has instructed P.W.3­Ramchandra and P.W.1­Baban to stay at Majalgaon for 15­20 minutes and then proceed to Georai road. Except these ( 9 ) two omissions, there was nothing brought on record in the cross­examination. 8. Evidence of these witnesses is further supported by P.W.2­Dr. Suryakant Sable, examined at Exh.77. P.W.2­Dr. Sable examined P.W.1­Baban on 17.12.2004 at about 9.00 a.m. and found one contusion on left shoulder, having size of 4 cms x 2 cms and another contusion on left thigh, having size 2 cms x 2 cms. The injuries were caused within 24 hours by hard and blunt object. On the person of P.W.3­Ramchandra he found one wound on right axillary region of size 2 cms x ½ cm x ½ cm., caused by hard and blunt object within 24 hours. So, there was immediate complaint and medical examination. There is also evidence of P.W.8­P.S.I. Avhad, who investigated the matter. 9. Thus, it is proved this in this case appellant­ Sarvadhan, who was instrumental in alluring P.W.1­Baban to withdraw Rs. 50,000/­ from his bank account and go to lonely place outside Majalgaon at dusk time and be robbed by decoits. It is also clear that appellant­Sravadhan knew accused No.1 Chhayabai, who had played important role in the ( 10 ) dacoity. Not only that, it is also clear that he knew that accused No.1­Chhayabai would be waiting on the road with a child for P.W.1­Baban coming in jeep with cash. The instructions given by appellant­Sarvdhan to P.W.1­Baban and his conduct clearly indicate that appellant­Sarvadhan had already arranged presence of accused No.1­Chhayabai at the place. It is worth noting that the person who had accompanied him in the auto­rickshaw was armed with a sword and it is that person who had given threats with sword to P.W.1­Baban. So, under these circumstances, it cannot be said that appellant­Sarvadhan has nothing to do with robbing of P.W.1­Baban or the alleged dacoity. In­fact, he was part of the entire game. It is worth noting that in the statement under Section 313 of Cr.P.C., appellant­Sarvadhan does not come out with any specific defence that he was innocent person, who was also not aware of possibility of robbing of P.W.1­Baban. The role of appellant and his talk with other accused persons was specially within his knowledge. In the facts and circumstances, in my opinion, the appellant was part of the entire conspiracy of alluring P.W.1­Baban to come to lonely place with cash and to rob his cash and other articles. ( 11 ) 10. Three authorities are cited by learned advocate for the appellant, but all of them had peculiar circumstances. In the case of Shri Ram V/s. State of U.P., AIR 1975 S.C.175, para 5 discloses that the role played by accused Violet was only that on seeing Kunwar Singh she shouted : “The Vakil has come”. It is observed that it was difficult to believe that Violet was assigned the particular role, especially when Sia Ram and his companions could themselves have detected the presence of Kunwar Singh more easily and with lessor ado. Violet’s brother Ramesh, a lad of 16, could have with greater ease and effectiveness played the swift role of alerting the assailants of Kunwar Singh. So, it was observed that the inference that Violet gave the particular shout is that by so doing she intended to facilitate the murder of Kunwar Singh was wrong. So, in the facts of that case, it was held that Violet had not abetted commission of murder. 11. In the case of Anil Muttu Swamy Pillay & Anr., V/s.State of Maharashtra and Ors., 2007 ALL MR (Cri) 1831, on 12.01.2007 an accident had taken place at Narendra Nagar. Many people gathered on the spot and set the truck on fire. ( 12 ) P.S.I. Salunke who received information, rushed to the spot. The applicants were directed to reach the accused from Ajni Police Station to district Court. The applicants left the Police station Ajni at 2.45 p.m. The applicants received a message on phone to rush to spot, but applicants could not as they were at that time in the district court to drop the accused there. In these circumstances it is held that they could not be held liable of abetment by illegal omission. In para 6 it is observed that when abetment by illegal omission is alleged, it is necessary to allege that the accused intentionally aided the commission of the offence by his non­ interference. In that case the applicants were not present at the place of murder. 12. Third case cited is Bhalkya Ambrushi Kale V/s. State of Maharashtra, 2007 ALL MR (Cri) 1993. In that case para 15 discloses that three police constables went to the huts of Paradhi people to arrest one Raja Kale, who was wanted in a criminal case. At that time, eight persons including three ladies assaulted and injured two police constables. Some of them allegedly robbed two police constable of their valuable articles. It is not the case of ( 13 ) the prosecution that the accused persons who had been in their own houses prepared and assembled to commit robbery or dacoity. So, it cannot be said that if some of them committed robbery, all of them were acting conjointly to commit the offence of robbery. In para 12 of the said case it is held that the word ‘conjointly’ used in Section 391 of the I.P.C., manifestly refers to the united or concerted action of the persons participating in the offence. If during the certain incident one or more persons by their individual act commit robbery and that act is not a result of united or concerted action, it cannot be said that all the persons, who were involved in that incident had conjointly committed the offence of robbery. 13. In this case it is not case that some of them committed robbery while others were gathered for some other reason. It was a well planned commission of crime and the present appellant had vital role in procuring presence of P.W.1­Baban at the lonely place at dusk time with amount of Rs.50,000/­. P.W.1­Baban was allured by giving false information. There is no reason to disbelieve that the dacoity was part of the conspiracy, in which appellant – ( 14 ) Sarvadhan has played major part. In this view of the matter, in my opinion, the conviction of the appellant under Section 395 of the I.P.C. is proper and well reasoned. 14. Section 394 of the I.P.C. is as follows:­ “394. Voluntarily causing hurt in committing robbery. ­ If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extent to ten years, and shall also be liable to fine.” 15. This Court [Coram : V.R. Kingaonkar, J.] while deciding Criminal Appeal No. 658 of 2006, filed by accused No.1 – Chhayabai, has observed in para 14 as follows:­ “14. The only illegality committed by the Trial Court appears to be regarding order of conviction and sentence awarded to the appellant. The appellant is convicted for offence punishable under section 394 of the I.P. Code as well a one under section 395 of the I.P. Code. The appellant did not cause hurt to PW – Baban. She was unarmed. Both these convictions are for the same transaction. The conviction ought to be only for offence punishable under Section 395 of the I.P. Code in view of the proved facts. Consequently, the conviction for offence punishable under section 394 of the I.P. Code will have to be set aside. The learned Sessions Judge did not consider this aspect ( 15 ) of the matter.” 16. Since, both these appeals arise out of same incident in same crime, considering the role played by appellant­Sarvadhan as described earlier, it cannot be said that he could be convicted of offence under Section 394 of the I.P.C. This Court is bound by the view taken in the judgment pronounced on 5th March, 2008. It may be noted that the present appellant and accused No.1 Chhayabai were tried together in same Session Case and both were convicted by same judgment and order pronounced by the Sessions Judge. In the facts and circumstances, present appeal is also partly allowed. 17. The order of conviction and sentence passed against appellant­Sarvadhan for offence punishable under Section 394 of the I.P.C. is set aside and appellant­Sarvadhan is acquitted of the offence punishable under Section 394 of the I.P.C. However, the order of conviction and sentence passed against appellant­Sarvadhan for offence punishable under Section 395 of the I.P.C. is hereby confirmed. ( 16 ) 18. Copy of this judgment be provided to the appellant­ Sarvadhan through jail authorities free of costs. 19. Considering the assistance rendered by Mrs. S.S. Savale, Advocate appointed for the appellant, professional charges of Rs. 3000/­ be paid to her. [P.R. BORKAR,J.] snk/2009/NOV09/crap265.09