1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.241 OF 2007 Manzoor Mohammed Ibrahim Shaikh Convict prisoner No.C/3430 ..Appellant Kolhapur Central Prison, Kalamba District Kolhapur, Pincode – 416 007 V/s. The State of Maharashtra ..Respondent At the instance of Nagpada Police Station C.R.No.173/2002 Mr.Murtaza M. Najmi, appointed Advocate, for appellant Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, JJ. DATE : 11TH AUGUST, 2008 ORAL JUDGMENT (K.U.CHANDIWAL, J.) . The appellant has challenged his conviction for the offence punishable under Sections 457 read with 34, 392 read with 34, 394, 342 read with 34 of the Indian Penal Code. 2. The complainant/Ms.Cyril Tayyab Mamaji resides with her husband and a bed ridden child. One male and one female generally called as 2 Mohammed and Munni were employees working in their house. On 15th June, 2002 said Mohammed /Mustaqil was in the house from 3.00 to 8.30 p.m. At around 8.30 p.m her husband went to bed. Her grand son who is handicapped was taking treatment. The accused gave a ring on mobile and he kept the door open. Her servant came in with two others and made her stand and told her to enter the bed room. The lights were put on and they placed knife on the neck of her husband and she was directed to open the cupboard. From the cupboard those persons removed all the ornaments including cash and put it in the bag which was lying in the house. Since the complainant, her husband and grand son were detained in the bath room which had no window, they were shouting for assistance. Ultimately maid servant came and on hearing the shouts she went to the 2nd floor seeking assistance, and complainant and her husband rescued. Police were called. Her statement recorded on 16th June, 2002 was treated as F.I.R vide Crime Registration No.173/2002. She gave the details of the ornaments and also about the suspects including her employees. Police 3 apprehended two accused persons on 28th March, 2003. One of them was noticed to be Jeweller and his case was separated and the case of the present accused is taken up earlier with the charge referred above. The accused made a statement in presence of panch and lead the police party to Uttar Pradesh on 31st March, 2003 and from the shop of Gold Smith/Jeweller, melted ornaments and a ring was collected by police. 3. After completion of investigation charge sheet against the accused came to be filed before the learned Metropolitan Magistrate and case was committed to the Sessions Court. 4. The defence of the accused is that he is falsely implicated. After his arrest he was shown to the complainant before conducting Test Identification Parade and nothing was recovered at his instance. 5. P.W.1 Ms.Cyril Tayyab Mamaji is the complainant and one of the victims. P.W.2 Ashraf 4 Khan Ahmed Khan acted as panch to prove panchnama at Exh.14 when melted ornaments and a ring were produced by P.W.4. P.W.3 Ashok Narsinghrao Raipalli conducted Test Identification Parade. P.W.4 Omprakash Chhedilal Soni is Jeweller who has tendered ornaments in melted form before the police. P.W.5, P.W.6 and P.W.7 are the Police Officers. 6. The tenor of cross examination suggests that there is no controversy that P.W.1 and her husband were staying together with their crippled grand son. The movements of said Mohammed are also broadly not in dispute. The evidence of P.W.1 demonstrates that the present accused with other barged her house at 8.30 p.m, at such time her husband had gone to bed. The door was kept open by her employee Mohammed. One of the two persons caught hold neck while her servant with two others made her stand and forced her to bed room. One of them placed a knife at the neck of her husband and she was directed to open cupboard which was already open and robbery was committed which gave rise to 5 F.I.R. P.W.1 has identified Gold ring robbed from her house. She could not identify the other ornaments as they were in melted form, changed its shape. The fact remains, P.W.4 has identified the accused, accompanied with employer of complainant. P.W.4 has paid an amount of Rs.32,500/- for purchase of the ornaments to said Mohammed who is not before the Court. He denied that the accused did not come to his shop as claimed by him and also denied that he has falsely implicated the accused. 7. The defence counsel pointed out that for an offence punishable under Section 394 of the Indian Penal Code the prosecution is obliged to show that the accused during the course of committing robbery or attempting to commit robbery voluntarily caused hurt to such person or any other person, then question of punishment would arise. I find substance in the claim of the defence advocate though, in the Court record there is Injury Certificate at Exh.63 of husband of P.W.1. However, neither it was accepted nor husband of P.W.1 the alleged injured was examined. The fact 6 remains, as to non-examination of the Medical Officer has further throttled crucial point of so called Injury Certificate tagged in the Charge sheet. It was imperative for the prosecution to have examined husband of P.W.1 as witness, even if he was not examined, at least it should have emerged from P.W.1 that her husband suffered injuries or bleeding injuries but there is nothing to demonstrate the same. In this context the offence of voluntarily causing hurt in committing robbery is not made out against the accused. 8. It was canvassed by the prosecution that at the time of committing robbery the offender used a deadly weapon or caused a grievous hurt to husband of P.W.1. There can be no doubt that the knife which was taken charge from the house of P.W.1 will be coming in the term of a deadly weapon to attract one of the ingredients of Section 397 of the Indian Penal Code. However, to attract Section 397 of the Indian Penal Code it is mandatory for the prosecution to establish use of a deadly weapon or causing grievous hurt to any person or attempting 7 to cause death or grievous hurt to any person. The term “use” has essential import. The evidence of P.W.1 reading from any angle does not satisfy that it was this accused who has used and assaulted with knife. The evidence demonstrates that husband of P.W.1 was threatened with the knife, however, the learned Additional Sessions Judge observed in his Order that it was knife which was pointed by the accused which finding is contrary to evidence on record. It is obvious, from the evidence of P.W.1 that though, the knife was used to overawe the complainant and her husband, in the absence of particular role to the present accused, it is difficult to inflict sentence to the accused for the offence punishable under Section 397 of the Indian Penal Code as has been done by the learned Additional Sessions Judge. It is well settled law, Section 397 of the Indian Penal Code by itself does not create any offence but merely regulates the punishment which is provided for robbery and dacoity. User of Section 397 of the Indian Penal Code is to set in motion the minimum term of the punishment of seven years and to show gravity in 8 the matter. It is also well established, Section 397 cannot be put in acceleration for the act of constructive or vicarious liability as it is individual liability of the accused. The defence counsel rightly pointed, the knife is not recovered from the accused since it was seized by P.W.5 Ganesh Ramchandra Mayekar from the house of the complainant. The resultant is, there is no linkage between recovery of knife which is not proved to be with blood stains, shown to the accused. Consequently, it will be giving benefit to the accused for the offence punishable under Section 397 of the Indian Penal Code. 9. The learned defence counsel canvassed that from the date of incident i.e.15th June, 2002 the parade having held on 20th May, 2003, the identification of the accused by P.W.1 in the jail is not free from doubt. I quite see that the accused was arrested on 28th March, 2003. The accused took police with the panch on 31st March, 2003 to Uttar Pradesh. On 6th April, 2003 panchanama was drawn. On 19th April, 2003 P.W.2 was 9 called at police station and on 20th May, 2003 the parade was held. The span spent in the investigation will have to be considered than blaming the prosecution with a lapse of conducting parade not within a reasonable time. 10. The Judgment in the matter of Vijay Dadasaheb Bhosle & ors Versus State of Maharashtra, reported in 2007 (1) Bom. C.R.(Cri) 717 particularly, paragraph 7 thereof will have to be read in this perspective as no such plausible reasons can be attracted to extend the delay of 2 and ½ months in conducting parade. 11. The defence canvassed that P.W.1 could not have identified melted ornaments produced by P.W.4. Hence, such evidence is not sufficient. However, I find from the evidence of P.W.2 and P.W.4 that apart from, melted ornaments, a Gold ring was also produced. P.W.1 has identified the same before the panch, police and also in the substantial evidence as Article 1. The Gold ring was purchased by her 10 for her daughter-in-law and therefore, in the absence of any claim from the accused or anybody she has legitimate capacity to identify the same, her identification on this score cannot be looked with doubt. I don't see any reason not to place reliance upon the evidence of P.W.1 since it was her Gold ring and she had in her mind broad characteristics of the Gold ring which led her to prove the identification. 12. Reliance placed by the learned defence counsel on the Judgment in the matter of Pawan Kumar v. State of Haryana reported in AIR 2003 SUPREME COURT 2987 particularly, in paragraph nine, will not be fitting to the facts of present case to disprove identification of the Gold ring by P.W.1. 13. The evidence of P.W.1 looked from any angle inspires confidence. She had no reason to develop any rancour against the accused to falsely book him. She has identified the accused in her substantial evidence before the Court apart from, 11 identifying him in the parade conducted at the jail by P.W.3. The delay in identification from June, 2002 to May, 2003, differs with identification capacity of person to person. P.W.1 with her husband and crippled grand son were placed in a state of complete depression and shock as the confidence which they had reposed in their employees was shattered. Act committed by their employee with the accused and another in committing robbery to the extent of Gold, Silver and an amount of Rs.5,60,000/- was itself sufficient for P.W.1 to have imprint of such events which had shattering the effect of faith in the society. On this count also I am not inclined to dispute the identification capacity of P.W.1. The evidence establishes that the accused without any legal authority barged in the house of the complainant. They wrongly restrained the complainant and her husband and committed robbery. Consequently, I hold that the offence punishable under Section 457 read with 34, 392 read with 34 and 342 read with 34 of the Indian Penal Code is proved against accused. Hence, order. 12 ORDER (i) Appeal is partly allowed. (ii) The appellant/accused is acquitted of the charge under Sections 397 and 394 of the Indian Penal Code. (iii) The appellant/accused is held guilty for the offence punishable under Sections 457, 392 and 342 read with 34 of the Indian Penal Code and is directed to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.10,000/-, in default to further undergo rigorous imprisonment of six months. (iv) The appellant/accused is in custody since the date of arrest i.e.20th March, 2003, he is entitled to set off under Section 428 of the Criminal Procedure Code. (K.U.CHANDIWAL, J.)