:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.737 OF 2007 CRIMINAL APPEAL NO.737 OF 2007 CRIMINAL APPEAL NO.737 OF 2007 Subhash Prabhakar Panchal Age: 32 years, Convict Prisoner No.C-4066, undergoing sentence at Kolhapur Central Jail, Kalamba, and previously residing at Sathe Nagar Zopadpatti, Mankhurd, Mumbai ..Appellant (Org.Accused) v. The State of Maharashtra (At the instance of Kalachowki Police Station) ..Respondent. Mr.Murtaza N. Najmi , adv. for the Appellant. Mr.Y.M.Nakhawa, APP for the Respondent/State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 16th March, 2009. DATE: 16th March, 2009. DATE: 16th March, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant/accused takes exception to the judgment and order dated 24th January, 2007 passed by the Ad-hoc Additional Sessions Judge, Sewree in Sessions Case No.665 of 2000 whereunder he was convicted for an offence punishable under Sections 392 read with Section 397, 394, 452 and 342 of the Indian Penal Code and sentenced to suffer R.I. for 7 years and to pay a fine of Rs.1,000/- in default to suffer R.I. for three months, R.I. for five years and to pay a fine of Rs.1,000/- in default to suffer R.I. for three months, :2: R.I. for three years and to pay a fine of Rs.1,000/- in default to suffer R.I. for three months and R.I. for one year and to pay a fine of Rs.500/- in default to suffer R.I. for two months respectively. 2. Prosecution case in short is as follows: . P.W.1 Bhanumati Waghela resides at Shivdarshan Building, 4th floor, Room No.407, Vishnu Ganesh Pingale Marg, Chinchpokali, Mumbai alongwith her husband P.W.2 Ramesh Waghela. On 3rd May, 2006 her husband had gone out of the house at about 10.00 a.m. At about 1.20 p.m. door bell was rang. She thought that her husband had come to the house for taking lunch. She opened the door. She saw that the appellant was standing in front of the house wearing orange colour shirt and Rakhadi colour pant. Appellant pushed the complainant behind. He entered inside the house and bolted the door from inside. The appellant thereafter dragged P.W.1 in kitchen room. The appellant fell her on the ground and tried to strangulate her by both the hands. Thereafter, appellant by putting his hands on the neck of the complainant and by applying pressure, pressed neck of the complainant. The appellant also gave kicks blows on her stomach. He also inflicted blows by means of screw driver on her stomach. P.W.1 felt giddiness. She was lying on the ground and the appellant thereafter opened the cupboard and took out keys of the locker from the :3: cupboard. He opened the locker of the cupboard and took out bags containing ornaments from the said cupboard alongwith cash of Rs.23,000/-. The appellant thereafter went away alongwith gold ornaments and cash. P.W.1 was lying on the ground in injured condition. Neighbours thereafter came inside the house of the P.W.1 and offered her water. P.W.1 thereafter informed the incident to her husband P.W.2. He came to the house. He took P.W.1 in K.E.M. Hospital for treatment in the hospital. Police recorded statement of P.W.1 in the hospital, which was treated as her complaint at Exhibit 11. On the basis of this complaint, offence was registered under Sections 394, 452 and 342 of the Indian Penal Code. During investigation, it was revealed that P.W.1 was discharged from K.E.M. Hospital and got herself admitted in Sushrusha Hospital. During investigation P.W.11 PI Sawant on 4th May, 2006 visited Sushrusha Hospital and seized the clothes of the complainant, which were on the person of P.W.1 at the time of incident. Statement of P.W.2 was recorded and, thereafter charge under Section 397 came to be added. 3. The appellant/accused was arrested on the same day, i.e. on 3rd May, 2006 under arrest panchanama. At the instance of the appellant on 5th May, 2006, ornaments and cash amount alongwith the appellant’s clothes which were on his person on the date of incident came to be recovered. Screw driver, a weapon which was :4: allegedly used by the appellant in commission of robbery was also seized. Clothes of P.W.1 as well as that of the appellant and screw driver were sent to Forensic Science Laboratory. Blood sample of the appellant and the P.W.1 was also sent to the C.A. At the time of panchanama of the scene of offence, finger print expert found chance prints on the glass of the cupboard. Chance finger prints were compared with the impression slips of the accused and after receipt of the report about tallying the same with that of the appellant, charge-sheet came to be submitted against the appellant in the Court of Metropolitan Magistrate 15th Court, Mazgaon. Since the offence under Section 397 of the Indian Penal Code is exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions for trial. Charge was framed against the appellant/accused under Sections 392 read with Section 397, 394, 342 and 452 of the Indian Penal Code. Charge was explained to the accused in vernacular to which he pleaded not guilty and claimed to be tried. Defence of the accused was that of total denial and false impression. He examined two defence witnesses namely, D.W.1 and D.W.2. 4. Prosecution in order to establish the guilt of the appellant in all examined 12 witnesses. :5: P.W.1 is the complainant Bhanumati Waghela P.W.2 Ramesh Waghela is the husband of P.W.1. P.W.3 is on Tukaram Khandagle a panch to the recovery panchanama. P.W.4 is Laxman Vadet is a pancha to the recovery of maxi. P.W.5 one Suresh Tupe a panch to the arrest panchanama of the appellant. P.W.6 is Vidyadhar Aayre a panch to the spot panchanama. P.W.7 is Dr.Gautam Goel, who is attached to the Sushrusha Hospital. P.W.8 Rajendra Kulkarni is finger print expert. P.W.9 is a Dr.Santosh Chavan attached to K.E.M. Hospital. P.W.10 Mrs.Varsha Rathod is the C.A. P.W.11 and 12 are I.O. Shirish Sawant and Janardan Parde. 5. Prosecution also relied upon the various documents namely, recovery panchanama Exhibit 15, recovery panchanama of maxi Exhibit 17, arrest panchanama at Exhibit 19, spot panchanama at Exhibit 21, medical certificate at Exhibit 25 of Sushrusha Hospital, Certificate of K.E.M. hospital at Exhibit 13 and C.A. reports. 6. The learned Additional Sessions Judge after hearing the learned counsel for the respective parties and appreciating the evidence on record, held the appellant guilty and accordingly convicted and sentenced :6: him as stated above. 7. Mr.Najmi the learned appointed counsel for the appellant took me through the depositions of the prosecution witnesses and documentary evidence on which the reliance is placed by the prosecution. He submitted that the P.W.1 Complainant initially was admitted to K.E.M. Hospital and on the same day, she was shifted to Sushrusha Hospital. He submitted that the complaint of P.W.1 does not disclose that the appellant assaulted her with the help of screw driver. This omission in complaint is corroborated by medical certificate at Exhibit 13 and evidence of Dr.Santosh attached to K.E.M. Hospital and P.W.11 I.O. and, therefore, the prosecution failed to make out case under Section 397 of the Indian Penal Code. He further submitted that the prosecution also could not prove charge under Section 394 of the Indian Penal Code as the prosecution story itself reveals that alleged injury on the neck namely, abrasion was caused at the time of commission of robbery. Mr.Najmi also submitted that the recovery panchanama at Exhibit 15 can not be relied upon as the same clashes with the arrest panchanama at Exhibit 19. He also submitted that the evidence of the finger print expert is of no use to the prosecution in view of several lacunas. He submitted that if the recovery panchanama and evidence of finger print expert is excluded from consideration then the only evidence of :7: P.W.1 is there, which can not be accepted without there being independent corroboration. He lastly submitted that in the last alternative, prosecution at the most can be said to have established offence under Section 323 of the Indian Penal Code and, therefore, requested to change the conviction from Section 392 read with Section 397 and 394 to Section 323 of the Indian Penal Code. Mr.Nakhawa the learned APP per contra supported the impugned judgment and order. He submitted that the evidence of P.W.1, which is corroborated by the evidence of P.W.2 alongwith the recovery panchanama Exhibit 15 and the evidence of finger print expert, i.e. P.W.8 is sufficient to prove complicity of the appellant in the alleged incident. He submitted that the learned Additional Sessions Judge has correctly appreciated the evidence on record and, therefore, no interference is required. 8. Prosecution in order to prove appellant’s complicity mainly relied upon the evidence of P.W.1 Bhanumati, P.W.3 panch to the recovery panchanama, P.W.4 pancha to the recovery of maxi, P.W.7 Doctor from Sushrusha Hospital, evidence of P.W.8 who is the finger print expert and P.W.10 C.A. Now let us consider firstly whether prosecution successfully proved the charge against the appellant under Section 397 of the Indian Penal Code. In order to attract charge under Section 397 of the Indian Penal Code, prosecution must :8: establish that the appellant either use deadly weapon or cause grievous hurt to the P.W.1 complainant. In this regard, prosecution case is that the appellant used screw driver and inflicted six puncture wounds in the abdomen of the P.W.1 at the time of commission of robbery. I will consider now truthfulness of this version of the prosecution. The complainant/P.W.1 was taken to K.E.M.Hospital by P.W.2, her husband and thereafter, immediately police were informed. Police came to K.E.M. Hospital and recorded the statement of P.W.1. Statement is at Exhibit 11. Statement discloses that the appellant forcibly came inside the room of P.W.1. By catching neck of P.W.1, he carried her to kitchen . The complainant was fallen down. The appellant sat on the person of the complainant and strangulated. It is also stated that the appellant kicked P.W.1 in her stomach. Statement is silent about the use of any weapon or any injury in the stomach by this weapon. P.W.9 Dr.Santosh examined P.W.1 at about 2.40 p.m. on 3.5.2006. He proved medical certificate at Exhibit 30. This certificate discloses that only injury P.W.1 sustained is abrasion on neck. P.W.9 in his evidence deposed that he noticed only injury of abrasion on neck of P.W.1 and he did not notice any other injury on P.W.1. P.W.11, Investigating Officer, who accompanied P.W.12 in K.E.M. Hospital to record the statement of P.W.1 also deposed that he has not seen any injuries on the body of the complainant/P.W.1. Thus, :9: the medical evidence of P.W.9 and evidence of P.W.11 is consistent that there was no injury on the person of P.W.1 except abrasion on the neck. 9. It is interesting to note that prosecution in order to establish that the appellant used screw driver and inflicted puncture wounds on the stomach of P.W.1 relied upon the evidence of P.W.1 and P.W.7, Dr.Goel attached to Sushrusha Hospital. The evidence of P.W.1 in this regard is liable to be discarded in view of the vital omission stated above in the complaint which is corroborated by P.W.9 and P.W.11. So far as the evidence of P.W.7 Dr.Goel is concerned, he has deposed in chief as well as in cross that P.W.1 was admitted in Sushrusha Hospital on 13.5.2006. In paragraph 3 of the examination-in-chief, he has stated that P.W.1 was discharged on 11.5.2006. He has proved medical certificate at Exhibit 25. Medical certificate reveals that P.W.1 was admitted on 3.5.2006 and discharged on 11.5.2006. Now this certificate and evidence of P.W.7 is contradictory. Certificate at Exhibit 25 shows that P.W.1 was discharged on 11th May, 2006. However, P.W.7 Doctor stated that he examined P.W.1 on 13.5.2006 and he found that P.W.1 sustained stab injuries on the abdomen and they were six in numbers. If the medical certificate at Exhibit 25 alongwith the evidence of P.W.7 Dr.Goel is considered in proper perspective then it is difficult to digest that P.W.1 has sustained stab :10: injury in an alleged incident of robbery dated 3rd May, 2006. Thus, the prosecution case that the appellant used dangerous weapon and inflicted grievous injuries to P.W.1 is not proved beyond reasonable doubt. 10. Now this takes me to consider next submission of Mr.Najmi about the applicability of Section 394 of the Indian Penal Code to the present facts and circumstances of the case. The appellant is charged under Section 394 of the Indian Penal Code on the allegation that he caused injury, namely abrasion to neck in an alleged incident. P.W.1 in her deposition stated as follows: "2...........I was alone inside the house. At about 1 pm the door bell rang. I felt that my husband had come to the house for taking meal. I opened the door of my house. I saw that the accused was standing in front of door of my house. He was wearing orange colour shirt and rakhadi colour pant. The accused suddenly put his hand on my neck and pushed me behind. Thereafter the accused came inside the house. That time the accused had kept his one hand on my neck and pushed me and by the other hand he locked the door from inside. I retaliated. But I could not get escape. The accused thereafter tried to strangulate me by his both the hands and pushed me inside the kitchen near kitchen table. By putting his both the hands on my neck and by applying the pressure, the accused took me near the cupboard. Thereafter, the accused fell me down and he tried to strangulate me by his both the hands. I tried to make shout. Thereafter the accused gave kick blows on my stomach. He also gave fist blows. That time I came to know that the accused was holding screw-driver and he inflicted blows by means of screw-driver on my stomach. But I was not in position to make shouts or to push him aside. I felt giddiness and was lying on the ground. Thereafter the accused opened the cupboard. :11: Thereafter the accused opened the locker. The accused took out boxes containing ornaments from locker. The accused was putting ornaments from boxes on the floor. Three necklace, one golden bor-maal, two chains, one big mangalsutra and one small mangalsutra, one chain, one golden pendal, one disco chain, one bracelate, ear-rings, two booties, two golden rings, one design golden ring, four to five other golden rings weighing 1 gm. each and cash of Rs.23,000/- were in the said box." The above evidence of P.W.1 shows that the present appellant tried to strangulate P.W.1 by both the hands and thereafter he fell P.W.1 down and again tried to strangulate her. Thereafter, the appellant gave kick blows. Due to the above incident, P.W.1 felt giddiness and was lying on the floor. The appellant thereafter opened the locker and took out bags containing ornaments. Thus, it is clear that the injuries on the neck of P.W.1 are caused in an attempt by the appellant to strangulate her. From plain reading of the evidence of P.W.1, prosecution case can be gathered that the injuries to her neck was caused to facilitate the robbery. Section 390 which defines robbery and Section 394 which deals about the punishment for causing voluntary hurt in causing robbery. Both section makes reference to the term "Voluntary causing hurt". If the hurt is caused to facilitate the robbery then the case will fall under Section 390 but if the hurt is caused which is not at all necessary to facilitate the commission of robbery then the provisions of Section 394 are attracted. This distinction is crystalised on :12: account of user of the phrase "for that end" in Section 390 of the I.P.C., when robbery springs out of theft and omission of that phrase in Section 394. Since I am of the view that it is the prosecution case that the hurt is caused to facilitate robbery, Section 394 of the I.P.C. has no application in the present case. 11. This takes me to consider the charge against the appellant under Section 392 of the I.P.C. In order to substantiate this charge, prosecution relied upon the evidence of P.W.1 Complainant, P.W.3 pancha to the recovery panchanama, P.W.5 pancha to the arrest panchanama, P.W.8 Finger print expert and P.W.10 C.A. Prosecution also relied upon the recovery panchanama at Exhibit 15, panchanama of arrest at Exhibit 19 and C.A. Reports at Exhibit 32, 33 and 34. Now let us see whether this evidence is reliable and trustworthy. Recovery panchanama at Exhibit 15 and the evidence of P.W.3 show that on 5th May, 2006 at about 12.30 hours, the appellant made a statement that he would produce ornaments, cash, screw driver and clothes. In accordance with this statement, P.W.3 alongwith the appellant and the police went to the Link Road by the side of Mankhurd. Police van was taken in one hutment area. P.W.3 alongwith the appellant and police got down from the van. They started walking. The appellant took them to one room. One suitcase was kept in the room and from that suitcase, he took out plastic bag. In that :13: plastic bag, one rakhadi colour pant and orange colour shirt alongwith the screw driver were kept which he produced before the police. From the another bag, the appellant produced ornaments and cash amount of Rs.20,000/-. This evidence of P.W.3 is contrary to the evidence of P.W.5, who is a panch witness to the arrest panchanama. P.W.5 has proved arrest panchanama at Exhibit 19. P.W.5 has deposed that on 3rd May, 2006 he was called by the police at Ghatkopar-Mankhurd link road in Sathe Nagar near bus-stop. He deposed that he was called for preparing arrest panchanama of the accused. He stated that police prepared panchanama after taking his search. He also deposed that the appellant was found in possession of cash of Rs.500/-, blue colour diary and mobile phone. He proved arrest panchanama at Exhibit 19. Arrest panchanama discloses that appellant was wearing orange colour shirt and rakhadi colour pant. If both the panchanamas at Exhibits 15 and 19 are contradictory. Prosecution claims that orange colour shirt and Rakhadi colour pant were recovered from the appellant’s house on 5th May, 2006. However, the arrest panchanama at Exhibit 19 shows that the appellant was wearing orange colour shirt and rakhadi colour pant when arrested on 3rd May, 2006. If the appellant was wearing orange colour shirt and rakhadi colour pant on 3rd May, 2006 at the time of arrest then it is not understood how the prosecution recovered the same clothes from the bag kept in the house of the appellant on 5.5.2006. P.W.3 :14: in his evidence admitted that he resides near Kalachowky police station and working as a tailor. He further admitted that he stitched the clothes of the police persons and thus, he knows some police persons. His evidence shows that he is familiar to the police. Conjoint reading of the evidence of P.W.3 and 5 raises reasonable doubt of the genuineness of the recovery of orange colour shirt and rakhadi colour pant on 5th May, 2006 from the house of the appellant. Possibility of planting these clothes can not be ruled out. Since there is a grave doubt about the recovery of clothes, other recoveries namely, screw driver, ornaments and the cash amount also become suspicious. The maxim "Falsus in uno falsus in omnibus" is applicable in the present case. At this stage, it is worth to mention that the appellant examined D.W.1 and D.W.2. D.W.1 stated in his deposition that nothing was found in the appellant’s house on 3rd May, 2006. D.W.2 deposed that police asked him to deposit Rs.20,000/- and accordingly, he deposited that amount on 4th May with the police. There is no cross by the prosecution on the above aspects. Taking overall circumstances into consideration, in my considered view, recovery panchanama at Exhibit 15 and the evidence of P.W.3 can not be relied upon. 12. P.W.10 C.A. has proved his reports at Exhibits 32 and 33. Report at Exhibit 32 reveals that the blood of the ’B’ group was found on maxi, i.e., on gown, which :15: the complainant was wearing at the time of incident, bush shirt which the appellant was wearing at the time of incident and the screw driver, which was allegedly used by the appellant at the time of incident. Report at Exhibit 33 reveals that the complainant’s blood group is ’B’. However, the arrest panchanama at Exhibit 19 does not disclose any blood stains on the orange colour shirt, which the appellant was wearing at the time of arrest panchanama. In any case, since I have already held that recovery of shirt, pant and screw driver is doubtful, the report of C.A. at Exhibit 32 can not be relied upon. 13. P.W.8 is finger print expert. He has deposed that on 3.5.2006 he received the message from Kalachowky Police Station informing that the incident of dacoity has taken place and finger print expert is required to visit the place of incident. At about 3.20 p.m. he took entry in the station diary and went to the place of offence. He found finger prints on the glass of the cupboard. He circled those finger prints and obtained photographs of the finger prints. He received finger prints of the appellant/accused on 20.7.2006 and after comparison of the same, he found finger prints of the appellant are matching with the finger prints, which were found on the cupboard. Evidence of P.W.8 does not reveal as to who took finger prints of the appellant/accused and where they were taken. P.W.11 and :16: 12 also do not speak in this regard. Photographs of the finger prints were taken by the photographer, however, that photographer was not examined. Even the photographs/negatives are not produced on record. There is no evidence on record to show that specimen finger prints of the appellant/accused were taken in presence of the Magistrate as contemplated under Section 5 of the Identification of the Prisoners Act, 1920. In absence of the above evidence, no sanctity can be attached to the evidence of finger print expert. It is alleged that the finger prints of the appellant were found on the glass of the cupboard. P.W.1 also deposed that the appellant was working with her husband and used to visit her house and, therefore, the possibility of the appellant visiting earlier to the date of incident can not be ruled out. Benefit of this circumstance deserves to be given to the appellant. 14. Prosecution also relied upon the evidence of P.W.4 pancha to the recovery panchanama at Exhibit 17 under which gown/maxi was recovered, which the P.W.1 complainant was wearing at the time of incident. Panchanama at Exhibit 17 shows that there are three blood stains on the maxi and eight holes in the middle. The evidence of P.W.4 alongwith the panchanama at Exhibit 17 becomes doubtful in view of the evidence of P.W.7 Dr.Gautam Goyal. Dr.Goyal in his deposition stated that he examined P.W.1 on 13.5.2006. P.W.1 :17: sustained stab injuries on the abdomen and there were six puncture marks around the amberian. If according to Dr.Gautam, P.W.1 sustained six puncture wounds then the prosecution has not explained how the eight holes are there on the maxi/gown. In addition to this, had the P.W.1 sustained six stab injuries on her abdomen, in that case there would not have been only three blood stained marks on the maxi/gown. The above circumstances make the evidence of P.W.4 and the panchanama at Exhibit 17 doubtful. 15. The evidence of P.W.1 about commission of robbery by the appellant, thus, is not corroborated by independant evidence, since the recovery panchanama at Exhibits 15 and 17 and