Cri. Appeal No. 318/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 318 OF 1998 Sahebrao s/o. Pratap Rathod, Age 45 yrs., Occu. Labourer, R/o. Gargavhan Tanda. ....Appellant. Versus The State of Maharashtra ....Respondent. Mrs. S.G. Chincholkar, Advocate for appellant. Mr. N.H. Borade, APP for State/respondent. CORAM : T. V. NALAWADE, J. DATED : 5th July, 2011. ORAL JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 169/1997 which was pending in Court of Sessions, Nanded. By the decision dated 22.9.1998 Additional Sessions Judge, Nanded has convicted and sentenced the appellant for offence punishable under section 394 read with 34 of the Indian Penal Code. He is sentenced to suffer RI for seven years and to pay fine. 2. In short, the facts leading to the institution of the appeal can be stated as follows :- Cri. Appeal No. 318/1998 2 Complainant Uttam is resident of Palse, Tahsil Hatgaon, District Nanded. He lives with his family and parents in a house constructed in the land. The incident took place on 12.4.1996 after 9 pm. He was sleeping in front of the house and he woke up due to the noise created by dogs. He noticed that there were four persons and they were pelting stones at his house. Then the said four persons came closer to the complainant and his family and they started assaulting the complainant, his wife and his parents. The complainant identified appellant Sahebrao Rathod, who is resident of Gargavhn Tanda situated at the distance of hardly 1-2 km from the house of complainant. In the incident Sahebrao snatched gold Mangalsutra from the neck of the wife of complainant and these thieves took away gold Mangalsutra and 20 cocks. Severe beating was given to the father of the complainant and so he was immediately shifted to Government Hospital, Hatgaon. Doctor advised to shift him to Nanded Civil Hospital. After reaching the father to the hospital, Uttam approached to Baradshevala out post under Mantha police station and he gave report. On the basis of the report, the crime at Cr. No. 33/96 came to be registered. In the report the name of the present appellant was given and police could immediately arrest him and his associates. Cri. Appeal No. 318/1998 3 3. The injury certificate in respect of father of the complainant came to be recovered from Civil Hospital. While in police custody, present appellant gave statement to police under section 27 of the Evidence Act and on the basis of this statement, gold Mangalsutra came to be recovered. Some cocks were recovered from the other accused. After completion of investigation chargesheet came to be filed in the Court of Sessions, Nanded. Charge was framed for aforesaid offence and the plea was recorded. Prosecution examined in all 10 witnesses. The accused took the defence of total denial. The Trial Court has acquitted other accused persons, but the present appellant is convicted. Other accused are acquitted as they were not named in FIR and evidence of the prosecution witnesses is not believed on identification. In the appeal both the sides are heard. 4. It was mainly submitted for the appellant that no mark of identification in respect of Mangalsutra was given by the complainant, his wife and so the conviction is not proper. It was also submitted that the incident took place in the night time and it does not look probable that the complainant and members of his house identified appellant, when he had covered his face by using a cloth. On the other hand, the APP argued in support of the Cri. Appeal No. 318/1998 4 decision of the Trial Court. 5. Prosecution has given both direct and circumstantial evidence against the appellant. The tenor of cross examination of the prosecution witnesses shows that the present appellant is not disputing that the family members of the complainant knew him from prior to the date of incident and his residential place is situated at some distance from the house of complainant. It is suggested that there used to be quarrels between the wife of the complainant and wife of the appellant and so the appellant is falsely implicated in the case. In this background, the evidence needs to be appreciated. 6. Uttam (PW 2), complainant, has given evidence that on that night, he, his wife and even the parents were sleeping in the courtyard of the house. It was month of April. He has deposed that they went to bed after 9 pm and they woke up as there was barking of dogs. He has deposed that four persons were pelting stones at them and Sahebrao was one of them. He has deposed that in the light, which was present in the hut and which was outside of the hut also, he could identify the appellant. He has deposed that appellant snatched Mangalsutra of his wife and these thieves took Cri. Appeal No. 318/1998 5 away 20 hens and Mangalsutra from them. He has deposed that they assaulted him and his father and due to beating, his father became unconscious. He has deposed that he shifted his father to Government Hospital and his father was referred to Nanded Civil Hospital. He has deposed that as his father was serious, he stayed in the hospital till noon and then he went to police station. He has given evidence that he was required to take his father at Hydrabad also due to injuries sustained by him. In the Court also he identified the appellant. He also identified the gold Mangalsutra of his wife. 7. In the cross examination, it is brought on record that the face of Sahebrao was covered with a cloth. The omission in respect of the availability of light inside and outside of the hut is also brought on the record. It needs to be kept in mind that it was April and Sahebrao was known to the complainant. In FIR, which was given on the next day, the name of Sahebrao was given. In view of these circumstances, not much importance can be given to the absence of mentioning regarding availability of light inside and outside of the house. Even in the light of moon and stars known person can be identified when he is at a close distance. There is corroboration to the evidence of complainant of the evidence of other witnesses. Cri. Appeal No. 318/1998 6 8. Prayagbai (PW 3), wife of complainant, has given similar evidence. She has specifically stated that Sahebrao snatched Mangalsutra from her person. She has given evidence that these thieves assaulted her husband and father in law by using sticks and stones. She has identified Mangalsutra which is shown to be recovered from Sahebrao and she has deposed that she was using it daily and so she is in a position to identify the Mangalsutra. She has fairly admitted that there was cloth cover on the face of Sahebrao. It is suggested to her that there was no light facility, but this suggestion is denied. Not much could be brought on record during cross examination of this witness. 9. Narayan (PW 6), father of complainant, has given similar evidence. He has deposed that there was facility of light and bulb of 60 watts was burning in the field at the relevant time. He has deposed that Sahebrao was one of the thieves and all the accused assaulted him. He has deposed that he was required to take treatment and he was taken to Hydrabad also. He has given evidence that the thieves took away the hens from their house and Mangalsutra. It is suggested to him that there is enmity between him and Sahebrao, but, this suggestion is denied. No material Cri. Appeal No. 318/1998 7 omission or contradiction in respect of the evidence of the wife and father of the complainant is brought on the record. 10. Dr. Venkat (PW 1) has given evidence that he examined Narayana on 12.4.1996 and he found contused lacerated wound on left side of frontal region which was bone deep. There was one more contusion over forehead and there was one contusion over left side of scapular region. He has given evidence that the injuries were sustained within six hours and Narayana was examined at about 11.45 pm of 12.4.1996. He has described injury No. 1 as grievous injury. He has deposed that Narayana was referred to Civil Hospital in view of the nature of injuries and Narayana was unconscious at the relevant time. He has deposed that city scan was done and there was fracture to left parietal bone and there was extra dural haemotoma at right parietal region. He has deposed that this injury was fatal in nature. There is no reason to disbelieve the doctor and there is the injury certificate at Exh. 12, which is consistent with the evidence given by the doctor. The medical evidence is consistent with the oral evidence of Narayana and other witnesses. This evidence has given necessary corroboration to the versions of aforesaid three witnesses. Cri. Appeal No. 318/1998 8 11. Prosecution has examined panch witness Syed Iqbal (PW 5). He has deposed that accused Sahebrao gave statement to police that accused had kept Mani Mangalsutra in his house. He has deposed that memorandum at Exh. 22 was prepared accordingly. He has deposed that Sahebrao took police and panchas to his house and from there, he produced ornament, Mani Mangalsutra. He identified Mangalsutra in the Court. In the cross examination, it is brought on the record that he was knowing Head Constable Matin and his place of residence is situated at the walking distance of 10 minutes from the police station. He has described every part of incident of recovery in cross examination. He, however, could not see as to whether there were other members of family of Sahebrao in the house when he produced Mangalsutra. In view of nature of evidence given by the panch witness, there is no reason to disbelieve him. Documents at Exh. 22 and 22-A are consistent with the evidence of this witness. On the recovery of ornament under section 27 of the Evidence Act, there is evidence of Police Head Constable Matin (PW 9). In view of section 114 of the Evidence Act [ Illustration (a) ], it was necessary for the accused to give explanation with regard to the discovery of aforesaid ornament on the basis of statement given by him. No explanation at all is offered by him. This ornament is identified by prosecution Cri. Appeal No. 318/1998 9 witnesses and the accused appellant has not claimed that the ornament belongs to him. So inference available under section 114 of the Evidence Act can be drawn against the accused/appellant. 12. There is also evidence of spot panchanama. Panch witness Subhash (PW 7) is examined for proving the spot panchanama. The panchanama at Exh. 30 shows that so many stones were lying in front of the house of the complainant. This circumstance is supporting the case of the complainant. In the vicinity of this house, there was no house. Thus, the spot panchanama is also consistent with the version given by the three witnesses. The aforesaid discussion shows that there is check of circumstantial evidence to the evidence given by three witnesses against the appellant. There is virtually nothing on the record, on the basis of which it can be inferred that there is other possibility or the appellant is falsely implicated. 13. For the appellant one case reported as 1996 CRI. L. J. 724 [Islam Molla vs. The State of West Bengal ] was cited. In this case Calcutta High Court gave the benefit of doubt to the accused by holding that the ornament which was recovered from the accused had no mark of identification like name of jewellery's shop or Cri. Appeal No. 318/1998 10 name of owner of shop where the alleged robbery was committed. No T.I. parade was held in respect of the ornament and so the High Court held that the material recovered cannot be termed as "stolen article". Thus, the facts of the reported case are altogether different. For State, two cases were cited on the point of identification of ornament like 1997 CRI. L. J. 2886 (Calcutta High Court) [Ravi Magor vs. The State ] and 1997 CRI. L. J. 534 (Madya Pradesh High Court) [State of M.P. Vs. Mukund alias Kundu Mishra and another ]. In the second case, the High Court has discussed section 9 of the Evidence Act and the High Court has observed that the owner or person who has opportunity to see the ornament very often can give evidence on identification and his evidence cannot be discarded on mere ground that there were no special identification marks on the said ornament. In the first case, the High Court has observed that when there is evidence on identification of articles which are in the use of lady, her evidence can be believed even when no test identification record created by police after recovery of ornament. It is further observed that it is up to the accused to give explanation when there is such recovery. 14. In the present case also the wife of the complainant has identified the Mangalsutra and this ornament is such that it always Cri. Appeal No. 318/1998 11 remains on the person of a married woman. Indian lady does not commit mistake in identifying her ornament. It is already observed that there is no explanation on the part of the accused and so the evidence regarding the discovery of Mangalsutra can be used against the accused under section 114 of the Evidence Act. The aforesaid evidence is sufficient to prove the offence punishable under section 394 of the Indian Penal Code. Complainant and his father were attacked and grievous hurt was caused to Narayana in the incident. Such offence can be punished even with life imprisonment. When the advocate of the appellant was asked to argue on point of sentence, it was submitted that lenient view may be taken and the circumstance that it took many years for disposal of the appeal needs to be considered. In such a case no lenient view is possible. The assault made on Narayana could have caused his death. For making petty wrongful gain such assault was made and that too on the family which was known to the present appellant. So this Court holds that it is not possible to take lenient view and the appeal deserves to be dismissed. So the appeal is dismissed. [ T. V. NALAWADE, J.] ssc/cria318/98