1 cri.appeal 59-92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 59 OF 1992 Bapu Babu Badade, ) age 33 years, resident of ) Panumbre (Waruj), Taluka ) Shirala, District Sangli. ) (At present lodged in Jail) ) ...Appellant (Original Accused No.1) vs. State of Maharashtra ) ...Respondent ShriPankaj Devkar, Advocate appointed for the Appellant. Smt.P.P. Bhosale, APP for the Respondent-State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 7, 2010 ORAL JUDGMENT :- 1 The present appeal is preferred by accused no.1, who was convicted for the offence punishable under Section 392 read with Section 397 IPC and was sentenced to under RI for 7 years and to pay fine of 2 cri.appeal 59-92 Rs.100/- in Sessions Case No.41/1991 by the 3rd Additional Sessions Judge, Sangli, by judgment and order dated 5th September, 1991. The conviction and sentence are challenged in the present appeal. 2 Prosecution case in brief is that the complainant i.e. PW 6 Babu Dhaklu Shelke had constructed a hut in the open land at village Jaip, which was left by the people who were shifted elsewhere for rehabilitation. He used to cultivate about one acre of the land to grow paddy. He was also having large number of buffaloes and used to graze in the open land. About two months prior to the incident of this case, he had sold two she- buffaloes for Rs.7000/- and about 15 days before the incident, he had also sold one he-buffalo to accused no.3 Balu Jadhav for Rs.1000/-. He had also received Rs.700/- by selling butter. He had wrapped the said amount of Rs.8700/- in a piece of paper in a kanagi or a tank used for storing grains. He lodged a report at the police station Kokrud on 2nd December, 3 cri.appeal 59-92 1990. As per the report, eleven days before the report, on one Thursday, after taking dinner, he had gone to bed. After sometime, accused no.1, Bapu Badade along with one more person came there and told him that they wanted to sleep there outside the hut. Thereafter, PW 6 Babu Shelke, in the light of the lantern, pointed out a place below the mango tree near the hut and asked them to sleep there. However, at that time, accused no.1 Babu immediately wrapped a towel around the eyes and mouth of PW 6 Babu Shelke and asked his associate to tie his neck. He called his associate as Balya. The said Balya tied a rope around the neck of PW 6 Babu Shelke and pulled his neck. They asked him as to where he had kept the money. They beat and dragged him towards the river. He also heard them saying that he should be thrown in the river. However, they left him near the river, snatched his Bali or earring from the right ear and both of them went away. Due to snatching of the earring, a bleeding injury was caused on his right ear. As per the report, he was 4 cri.appeal 59-92 lying near the river in unconscious condition till Saturday. On that day, he regained consciousness and returned to his hut. On that day, accused no.3 Balu Yashwant Jadhav came to his house for purchasing butter. One Yashwant was also with him. He told them about the incident. Accused No.3 Balu Jadhav fomented him so that he could open his eyes. Thereafter, PW 6 found that the rice in the kanagi was scattered and the amount of Rs.8700/- was missing. Besides that, a silk turban, a blanket and a torch were also missing. According to him, for a number of days, he was unable to move and therefore, he could not even go to the police station. After he had recovered, on 2nd December, 1990, he went to the police station and lodged the report about the incident. On the basis of that report, PW 8 PSI Pandharinath Kamathe registered Crime No.85/1990 under Section 397 against the accused Nos.1, 2 and 3. Initially, accused nos.1 and 2 were arrested. On the basis of information given by accused no.1, amount of Rs.500/- and the earring were recovered. 5 cri.appeal 59-92 On the basis of information given by accused no.2, a torch was recovered. From the house of accused no.3, a quilt was seized. Statements of the witnesses were also recorded. After investigation, PSI Kamathe filed charge sheet. In due course, the case was committed to the Court of Sessions. 3 The Sessions Court framed charges under Section 392 read with Section 397 and Section 34 of the IPC. The accused persons pleaded not guilty. According to them, due to some enmity, there were falsely implicated. 4 On behalf of the prosecution, in all 8 witnesses were examined. Some documents were placed on record. After trial, the trial court acquitted accused nos.2 and 3, however, accused no.1 was convicted for the offence punishable under Section 392 read with Section 397 and was sentenced as stated above. 6 cri.appeal 59-92 5 Heard the learned Amicus Curiae for the appellant and the learned APP for the State. Perused the record and proceedings of the trial court. 6 PW 6 Babu Shelke in his evidence stated that he used to reside in a hut along with his wife Sonabai at village Jaip. The village was vacated and the people of the village were shifted elsewhere for rehabilitation. As the land was vacant, he started staying there and also cultivating some land. His son was living in a different village. On the relevant date, his wife Sonabai was also not there because she had gone to her parents place. According to him, the incident of this case occurred on a Thursday, which was about 10 days prior to lodging of the report  Exhibit-26 dated 2 nd December, 1990. He deposed that he had she-buffaloes and shortly before this incident, he had sold two she-buffaloes for Rs.7000/-. He had also sold one he-buffalo for Rs.1000/- to accused no.3. He had sold butter for 7 cri.appeal 59-92 Rs.700/-. According to him, he had amount of Rs. 8,700/- with him. He had wrapped that amount and kept in the kanagi, i.e., the storage used for keeping the rice. According to him, it was night time and he had gone to bed. He deposed that at that time, accused no.1 Bapu Badade and accused no.3 Balu Jadhav along with accused no.2 entered into his hut. Accused no.1 told him that he wanted to sleep there and wanted his permission. PW 6 Babu gave him water and thereafter, in the light of chimney/lantern, he showed them the place outside the hut where they could sleep. However, at the same time, accused no.1 Bapu wrapped a towel around his eyes and mouth. Accused no.2 put a rope around his neck and tied it. Accused No.1 Bapu asked him as to where he had kept the money. PW 6 told accused no.1 Bapu that he would tell him if the rope around the neck is not tightened and he is released. However, accused no.1 dragged him towards the river. There he was beaten with a stick and chappal by accused no.1 and he was thrown near the bank of river. According to him, at 8 cri.appeal 59-92 that time, the earring from his right ear was snatched, thereby causing a cut to the ear lobe. According to him, he was lying on the spot for about three days and then he returned to his hut. Then he found that the amount of Rs.8700/-, a quilt, a torch, two cocks and two hens were missing from the hut. He could not go to the police station for about 8 to 10 days because he was unable to walk due to the injuries. When he went to the police station, he lodged a report orally which was reduced in writing as per Exhibit-26. 7 Evidence of PW 5 Gangaram Thik reveals that one Yashwant Thombare had come to his house on Sunday and had told him that Babu Dhangar i.e. PW 6 Babu Shelke was beaten by some persons. After getting this information, PW 5 Gangaram along with one Rajaram Phanse went to the hut of PW 6 Babu, who was lying in the hut and was groaning. There were injuries on his face and eyes. There was also ligature mark on his neck and a cut on the right 9 cri.appeal 59-92 ear. The Bali or earring was missing from his ear. On inquiry, PW 6 repeated the above story to him. 8 The evidence of PW 4 Dr.Sharad Nilakhe shows that on 3rd December, 1990, PW 6 Babu Dhaklu Shelke of Village Jaip was referred to Public Health Centre, Kokrud, for medical examination. There was history of assault on 22nd November, 1990 at 8 p.m. On examination, he found the following injuries :- 1.Lacerated mark around the neck 1 in breadth, superficial, discoloration +ve partial skin loss seen, edges clear, wound in the healing stage, 2.Lacerated wound on the forehead above the Right eye with irregular margins, about 2 x 1 1/2 in size in healing stage, 3.Swelling Left ear Pinns, tenderness +ve black discoloration, pus discharge from the wound lacerations, in the healing stage, 4.Multiple discoloration spots on the right shoulder region & back, seen wounds in the healing stage, 10 cri.appeal 59-92 5.Longitudinal, discolored marks 2 in no s seen on the limber region about 10 to 12 in length edges clear & well demarked, 6. Lacerated wound on the right hip joint laterally in the healing stage, with irregular margins, about 3 in diameter skin loss +ve, 7.Lacerated wound on the left Hip joint laterally in the healing stage with irregular mark, 8.Lacerations on both knee jts & foot seen in the healing stage, 9.Right Ear lobe torn, wound 1/2 in length in the healing condition. 9 According to him, these injuries could caused with hard and blunt object and age of the injuries was about 10 to 12 days. Accordingly, he issued Medical Certificate  Exhibit-21. Besides the other injuries, injury no.1 -lacerated mark around the neck provides corroboration to the testimony of PW 6 Babu that a rope was tied around his neck and it was pulled and that caused the said injury. Injury No.9 reveals that right ear lobe was torn and 11 cri.appeal 59-92 as per evidence of Medical Officer, it could be possible if Bali or earring was snatched from the ear. This also provides corroboration to the testimony of PW 6 Babu. 10 The evidence of PW 1 Shamrao Sawant and PW 8 PSI Kamathe shows that on 3rd December, 1990, accused no.1 Bapu informed the police and panchas that he would produce the amount of Rs.500/- and a Bali i.e. Earring, which he had kept in a box in his house. That information was recorded as per the Memorandum  Exhibit-11. Thereafter, the police and the panchas along with accused no.1 Bapu went to his house. Accused No.1 entered in his house and took out one small tin box from a trunk lying in the room. It contained five currency notes of denomination of Rs. 100/- each as well as earring of yellow metal. These articles were seized under the panchnama (Exhibit-12). The earring (Article 2) was identified by him as the same which was seized from the house of accused no.1. This has been identified by PW 6 12 cri.appeal 59-92 Babu Shelke as his earring. Similarly, PW 5 Gangaram also identified it. According to him, he had seen that earring in the ear of PW 6 Babu. It has also come in his evidence that such earrings are worn by the male persons of Dhangar community. PW 6 Babu belongs to Dhangar community. Thus, seizure of the earring of PW 6 Babu from the house of accused no.1 on the basis of the information given by him provides further corroboration to the testimony of PW 6 as against the accused no.1. 11 It is not necessary to look into the remaining evidence which pertains to the role of accused nos.2 and 3 because the trial court found that accused no.3 was unnecessarily involved in the criminal case because in the FIR, there was no reference to accused no.3. In the FIR, PW 6 had stated that accused no.1 Bapu and one more person had come to his house at that time and they committed the offence. He was well acquainted with accused no.3 even before the incident and if accused 13 cri.appeal 59-92 no.3 was involved in the commission of the offence, he would have named him in the FIR. The trial court also acquitted accused no.2 Balu Zade, mainly, on the ground that he was not known to PW 6 prior to the incident nor his name was known. The Investigating Officer never arranged for his test identification parade and accused no.2 was shown to PW 6 for the first time in the court where he claimed to have identified him. The trial court refused to place reliance on the identification of the accused no.2 for the first time before the Court as there was no prior test identification parade. Anyhow, the evidence as against accused no.1 is quite reliable and therefore, it is proved that he had committed the offence of robbery. 12 The offence of robbery is punishable under Section 392 and if any injuries are caused while committing the offence, one is liable to be convicted under Section 394 also. Section 397 provides that if, at the time of committing robbery 14 cri.appeal 59-92 or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment, with which such offender shall be punished, shall not be less than seven years. In the present case, not only the robbery was committed but for the purpose of committing that robbery, several injuries were caused to PW 6 Babu. The injuries are proved by Medical Officer and other witnesses. The evidence of PW 6 clearly shows that a rope was put around his neck and it was tied and then he was dragged from his hut towards the bank of river where he was finally thrown. He became unconscious. It is possible that culprits might be under the impression that he would die. The manner in which they put a rope around his neck, tied and then dragged him with the rope around his neck, indicated that an attempt to cause death was made. In view of this, Section 397 can be invoked. In view of this, the trial court convicted the accused for the offence punishable under Section 392 read with Section 397 and 15 cri.appeal 59-92 sentenced him accordingly. It needs no interference. 13 For the aforesaid reasons, the appeal stands dismissed. The accused no.1  appellant is on bail. He shall surrender before the trial court on or before 7th January, 2011 to undergo the sentence awarded to him. (J.H. BHATIA, J.)