:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.700 OF 2007 Mohd. Hasan Mohd. Ajij Shaikh, Age 36 years, Convict prisoner No.undergoing sentence at Kolhapur Central Jail, Kalamba and prevously reisding at Sakinaka, Chikuwadi, Khandeshwar Chawl. ..Appellant (Org.Accused No.1.) Vs. State of Maharashtra, (At the instance of Trombay Police Station). ..Respondent. Mr.Murtaza Najmi, Appointed Adviocate for the Appellant. Mrs. A.T. Jhaveri, APP. for the State. CORAM: R.S. MOHITE, J. DATE : 15th September, 2008 ORAL JUDGMENT : 1. This is an appeal filed by the original accused No.1 Mohd. Hasan Mohd. Ajij Shaikh, impugning a judgment and order passed by the Additional Sessions Judge, Bombay at Sewree on 18.8.200 in Sessions Case No.329 of 2006. By the impugned judgment and order, the accused No.1 along with one other accused have been found guilty for committing an offence punishable under Section 394 of the Indian Penal Code and they have been sentenced to suffer R.I. for 5-years and to pay a fine of Rs.2000/- each in default to suffer further R.I. for 6-months. They :2: have been held entitled for set off under Section 428 of the Cr.P.C. 2. The brief facts of the case were as follows. a) P.W.No.1 Nitin Vishnu Patil was serving in a private firm at Andheri. On 28.12.2005, at about 9.00p.m. when he was returning back to his house situated at Khargar, he received a missed call on his mobile . He stopped his motor bike to attend that call. However, without attending the missed call, he went on the side of the road for attending the call of nature. At that time, two persons came from his back side. One of these persons was carrying a chopper. The accused carrying the chopper hit a blow from its backside on his head. They pushed him from the back as a result of which he fell into the drainage which was having a depth of about 3.00ft. He found two other persons hiding in the drainage. All the four persons caught hold of him. They searched his person and removed his finger ring and gold chain. They took his wallet and mobile. The wallet contained a cash amount of Rs.1500/-. After his wallet and mobile was taken away, Nitin Patil requested them to leave. The accused however, did not listen to him and gave blows with the chopper on his legs. Nitin Patil was also carrying his office bag. The accused broke open his bag and threw away :3: the documents. Later on, due to repeated request made by Nitin Patil, they returned his sim card to him. b) While this incident was going on, a police constable came walking down the road. The culprits again caught hold of Nitin Patil and pressed his mouth. After some time they left him and ran away towards the hutment. c) Nitin Patil then followed and stopped the police constable.The constable was in civil dress. Nitin Patil narrated the entire incident to the policeman. The Policeman, with the aid of whistle called his companion and they tried to chase the culprits. One of the policeman managed to catch one of the culprits. The three other culprits started pelting stones towards the Nitin Patil and the police and both the police constables were injured. d) Nitin Patil then tried to stop passing vehicles with a view to get more help. At the request of Nitin Patil one truck was stopped and the person who was going by a motor cycle also stopped. The four culprits again tried to run away. Out of them one was under the influence of alcohol and therefore, he was again caught by the police. The person who was apprehended on the spot was accused No.1. i.e. the :4: present appellant. e) The accused No.1 was then taken by the police in the Vashi Police Chowki. Nitin Patil and the injured constables were sent for medical treatment. f) Later on, the police recorded the F.I.R. of the complainant. P.W.No.12 PSI Dyandev S. Bhalsingh who was working as PSI at Trombay Police Station took up the investigation. He then recorded the statements of two constables and another eye witness P.W.No.10-Anand Kumar Prasanna who were along with the Nitin Patil at the time of incident. The Investigating Officer then went to the scene of the offence and drew a spot panchanama (Exh.26). He arrested accused No.1. He seized a shirt of the injured police constable Bankar under a seizure panchanama ( Exh.39). He thereafter, completed the investigation and filed a charge sheet. In due course, the case was committed by the Magistrate to the Court of Sessions where charges were framed. 3. In the course of the trial, the prosecution examined in all 15 witnesses to prove their case. A reference has already been made to the important witnesses. Two Doctors were examined to prove the injuries suffered by the complainant Nitin Patil and the injuries caused to constables Mr Bankar as well :5: as Mr. Anil Patil. The Special Executive Officer was examined to prove the identification parade, during which accused No.1 as well as other accused were identified by the various witnesses. Two Investigating Officers were also examined. After 313 statement was recorded, the accused choose not to examine any defence witness.Their defence was of total denial. Taking into account all the material on record, the trial court passed the impugned judgment and order convicting and sentencing the accused as aforesaid. 4. I have heard both the sides. 5. The Advocate for the appellant fairly conceded that since the present accused has been arrested on the spot and since his acts and actions are consistently deposed to by P.W.No.1 Nitin Patil, P.W.No.2 injured constable Maruti Bankar, P.W.No.3 injured constable Anil Patil and P.W.No.10 Anand Kumar Prasanna and since there was further corroborative evidence in the nature of recovery of knife, identification of accused No.1 at the identification parade and medical evidence, there is hardly any scope for arguing that the present accused No.1 was not involved in the incident. He however, contended that a conviction ought to have been recorded for theft since under Section 390, theft :6: amounts to robbery only if the offender voluntarily causes or attempts to cause to any person, death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. He further contended that if the acts allegedly committed by the accused No.1 did not fall within the definition of robbery, then he could be no conviction under Section 394 of the I.P.C . There is no substance in his argument. The evidence of the complainant Nitin Patil is absolutely clear. He has stated in his evidence the all the accused had caught hold of him and this clearly amounts to wrongful restraint within the meaning of definition of robbery as contained in Section 390 of the I.P.C. Even if it is accepted that accused No.3 inflicted the chopper blow, it is clear that the present accused-appellant can be convicted for an offence punishable under Section 394 of the I.P.C. The said Section 394 is in the following terms. "394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine". :7: On plain reading of this section, it is clear that not only the person who actually causes hurt but his associates would also be liable for the mischief contemplated by the section. (See Judgment of this court in the case of Shravan Dashrath Darange Vs.State of Maharashtra reported in (1997)2 Crimes 47 (Bombay)). 6. In the net result, appeal must fail and therefore, the same is dismissed. (R.S. MOHITE, J.)