1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI. REVISION APPLICATION NO. 300 OF 2009 Mahadeo s/o Shrirang Ghogre, Aged 26 years, Occupation Labour, Resident of Indira Nagar, Majalgaon, Taluka Majalgaon, District Beed Applicant V E R S U S The State of Maharashtra Respondent Mr. D.B. Bhange, Advocate for the applicant Mr. T.S. Lodhe, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 20th October, 2010 ORAL JUDGMENT 1. By consent, the revision is taken up for final hearing at admission stage. 2, This revision challenges the concurrent findings of the Courts below that the applicant had committed offence under Section 394 of the Indian Penal Code. 3. It is the case of the prosecution that complainant Ramchandra, the applicant, other accused Balasaheb, Manohar, Sunil and Shivaji were traveling in a jeep from Beed to Wadwani, a place in Beed district. Manohar was carrying a bag containing Rs.30,000 in cash. Manohar had spent about Rs.2,000/- from the said 2 amount. On reaching a Dhaba-restaurant near Village Wadwani, Manohar, Shivaji and Sunil got down from the Jeep and went to take dinner at about 08.00 p.m. Manohar handed over the bag containing the cash to complainant and asked him to guard it till he came back. The complainant, the applicant and another accused Balasaheb kept sitting in the rear side of the Jeep. At that time, the applicant and another accused Balasaheb launched an attack on the complainant trying throttle him and hitting him on his head with a stone and snatched away the bag containing cash of Rs.28,000/-. On hearing the alarm of the complainant, Manohar, Shivaji and Sunil rushed towards the Jeep, but they could not see or catch the applicant and another accused. 4. It is the case of the prosecution that thereafter the complainant and his companions took search for the applicant and the other accused, but in vain. On the next day, the complaint was lodged. The police registered offence and the investigation started. During the course of the investigation, it is said that the police sent complainant to the Medical Officer for treatment. The police also found the bag, which contained the cash, lying empty nearby the restaurant, but the police could not arrest the applicant till 31st December. After his arrest, the police could not recover the stolen property. The police could not arrest other accused Balasaheb and he still at large. 3 5. The question is, whether the applicant had committed robbery or whether he had committed any other offence? 6. In order to prove robbery, the prosecution has to prove that in order to committing the theft or in committing the theft etc, the offender should either cause or attempt 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. In this case, both the Courts below believed the testimony of complainant. But the prosecution could not examine the Medical Officer, who had treated the complainant. So, there is no medical evidence on record in respect of the injuries the complainant suffered during the course of incident. It is a positive case of the prosecution that the applicant and the other accused caused injury to the complainant during the course of committing the theft. So, this is not a case where the applicant attempted to cause hurt to the applicant while committing the theft. 7. A question therefore is, whether the applicant or the other accused had caused hurt to the complainant? As said above, there is no medical evidence on record about the injury sustained by the complainant. I could go through the deposition of the complainant, a copy of which was produced before the Court by the learned Advocate appearing for the applicant. In the entire deposition, complainant did not say that he sustained 4 injury, though he said that the applicant hit him with a stone on his head and that the applicant had attempted to throttle him. He neither said that he was referred to a Medical Officer by the police. The other important witness Manohar did not say that when he reached near Jeep hearing the alarm of the complainant, he saw injuries on the person of the complainant. Probably it was brought to the notice of the learned Judge of the appellate Court to demonstrate that the prosecution had failed to prove the robbery on the person of the complainant. But, the learned Judge of the appellate Court placed reliance on a letter, which the prosecution witness No. 6 issued. Prosecution witness No. 6 is a police personnel, who said that he sent the complainant along with the letter to the Medical Officer. I think, the learned Judge of the appellate Court erred in placing reliance on the contents of this letter, which said that the injured complainant was sent for medical treatment. The contents of this letter cannot be used to prove the factum of injury caused to the complainant. This part of the Judgment of the learned Judge of the appellate Court is not only erroneous, but is perverse. In absence of material evidence, the learned Judge would not have placed reliance on the contents of the letter issued by a Police Constable. So, there is practically no evidence on record to show that the complainant sustained injuries at the hands of the applicant or the other accused. 5 8. In view of this lapse, one may not be able to fully believe the deposition of the complainant, when he said that he was assaulted and injury was caused to him by the robbers during the course of robbery. I think, he had exaggerated the account. If he had sustained any injury, the complainant and his companions would have certainly approached the police immediately. So, the finding of the learned Judges of the Courts below that during the robbery, injury was caused to the complainant, was grossly erroneous and needs to be interfered. I hold that the prosecution failed to prove that the applicant and the other accused caused injury to the complainant at the time of alleged robbery. If the injury is not proved and if the complainant’s version that he had attacked and assaulted during the course of theft is not believed, then the prosecution would not be able to prove the case of robbery against the applicant. I think, the applicant can be convicted only under Section 380 of the Indian Penal Code. At this stage, the learned Advocate appearing for the applicant informed the Court that the applicant is in custody since 26th July, 2009 till date and was also in custody for a period of one year between 24th August, 2004 to 28th September, 2005. He thus underwent imprisonment for a period over two years. He requested for leniency while awarding the sentence. This is being considered favourably. 6 ORDER 1. The revision is partly allowed. 2. The conviction of the applicant under Section 394 of the Indian Penal Code is set aside. 3. The applicant is convicted of the offence under Section 380 of the Indian Penal code and is sentenced to suffer rigorous imprisonment for a term which he has already undergone. 4. The applicant be released from Jail, if he is not required in any other case. In view of above, Criminal Application No. 3719 of 2009 for bail is not pressed. ( A.V. NIRGUDE, J. ) SRM/cra/300/09/201010/ok