1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2260/2011 IN CRIMINAL APPEAL NO.272/2011 Vitthal s/o Jagannath Bobade Applicant. V E R S U S The State of Maharashtra, Aurangabad. Respondent. Mr. Hemant Surve, Advocate for appellant/applicant. Mrs. Y.M.Kshirsagar, APP for respondent. .... CORAM : SHRIHARI P. DAVARE, J. DATE : 7 th JULY, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant seeking bail pending hearing and final disposal of Criminal Appeal No. 272/2011, suspending the substantive sentence inflicted upon him. It appears that, applicant herein has been convicted for the offence punishable under section 397 of Indian Penal Code and sentenced 2 to suffer imprisonment for seven years by way of judgment and order dated 1.4.2011 by the Additional Sessions Judge-1, Aurangabad in Sessions Case No.369/2009 and applicant herein questioned the same by filing Criminal Appeal No.272/2011, which has been admitted by this Court by passing order therein separately on 21.6.2011. 3. Learned counsel for the applicant submitted that although PW 1 Popat Borade i.e. complainant deposed in his deposition that during the incident he got injury of knife on his right cheek but the injury certificate produced by the prosecution as well as testimony of PW 7 Dr. Aparna Joshi reflect that said complainant sustained injuries on his left and right hand and learned counsel canvassed that there is discrepancy in the situs of the said injuries. Learned counsel for the applicant further submitted that although complainant stated in his deposition that accused was not known to him prior to the occurrence of the incident, prosecution has not conducted any test of identification parade in respect of the accused. Moreover, it is also argued by the learned counsel for the 3 applicant that although complaint discloses that there were two school going minor children who also recommended that accused be taken on his motor cycle by the complainant, but the prosecution has not examined said two school going children. According to the learned counsel for the applicant, Investigating Officer Dinapurkar PW 6 stated in his deposition that after arrest of accused he sustained fracture, there after investigation was handed over to P.I.Borse and therefore, it is canvassed that role of PW 6 Dinapurkar is only in respect of arrest of the accused and further filing of the charge sheet but the officer who carried out investigation has not been examined by the prosecution. Accordingly, learned counsel for the applicant submits that chain of the prosecution case has not been completed. Besides that, it is canvassed that the sentence awarded to the applicant is a short term sentence and therefore, it is fit case to enlarge the applicant on bail during the pendency of the appeal. 4. It is further canvassed that applicant was on bail during the pendancy of the trial and there is no grievance of the 4 respondent that applicant has misused said liberty. Hence, learned counsel urged that applicant deserves to be enlarged on bail pending hearing and disposal of criminal appeal No.272/2011. 5. Learned APP Mrs. Kshirsagar, opposed present application vehemently and submitted that prosecution has examined as many as seven witnesses and prosecution has proved and established charges levelled against the accused beyond reasonable doubt and learned trial court convicted the accused for the offence punishable under section 397 of Indian Penal Code rightly. Learned APP invited my attention to the panchnama Exh.19, which discloses that knife was recovered from the clothes of the accused and panch to the said panchnama P.W. 2 Balu Borade categorically stated in his deposition that a knife of more than 9 inches was recovered from the clothes of the accused and police seized the same. Learned APP also pointed out that injury certificate discloses that stitches were given to the complainant in respect of second injury. It is further canvassed by the learned APP that the accused used deadly weapon i.e. knife and thereby gave 5 threats to the complainant while committing the offence. Hence, learned trial court has rightly convicted him and therefore, applicant is not entitled to be enlarged on bail pending hearing and final disposal of the criminal appeal and accordingly urged that present application be dismissed. 6. I have perused the impugned judgment dated 1.4.2011 and record and proceeding with the assistance of learned counsel for the parties. 7. Considering the definition of section 397 of Indian Penal Code, which is reproduced herein :- “397. Robbery, or decoity, with attempt to cause death or grievous hurt :- If, at the time of committing robbery or decoity, 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.” 6 8. Keeping in mind the said definition and purpose behind the word ‘uses’ which is essential to satisfy that for the purposes of section 397, Indian Penal Code is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting as the case may be. 9. Applying said parameters in the instant case, considering the testimony of P.W.1 complainant, apparently, the accused herein gave threat by using deadly weapon i.e. knife to the complainant while committing offence of robbery and therefore, the alleged discrepancy in the situs of injury sustained by the complainant cannot be of any aid to the applicant. Moreover, in the said context, it is material to note that under panchnama Exh. 19, said knife was recovered from the clothes of the applicant herein and PW 2 panch witness Balu Borade also categorically stated in his deposition that knife more than 9 inches was recovered from the 7 clothes of the accused and same was seized by the police under the panchnama and hence said instances apparently amount to incriminating evidence against the applicant. 10. Thus considering the nature and gravity of the offence and active role played by the applicant in the occurrence of incident and taking survey of the entire material, I am of the view that primafacie there is evidence against the applicant, and hence, I am not inclined to allow present application. 11. Having comprehensive view of the matter, this is not a fit case to enlarge the applicant on bail, and therefore, present application deserves to be rejected. 12. In the result present application stands dismissed. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ... aaa/2260.11