* 1 * Cri.Appeal-607/1991 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 607 OF 1991 1. Babulal Murlidhar Jaiswal Hindu Adult, Indian Inhabitant of Bombay residing at Sanjay Nagar Hutments, Pathanwadi, Malad(E) Mumbai-400 097. 2. Majharkhan Amir Khan, Adult- Muslim, Indian Inhabitant of Bombay residing at Sanjay Nagar Hutments, Pathanwadi, Malad(E) Mumbai-400 097. ....Appellants/Orig.Accd no.1 & 2. : V E R S U S : The State of Maharashtra [at the instance of DCB.CID, Unit VII, Bombay] ....Respondent/Orig.Complainant None for the appellants. Mrs. P.H. Kantharia, APP for respondent-State. CORAM : SMT. R.P. SONDURBALDOTA, J. JUDGMENT DATED : 2nd SEPTEMBER, 2010. * 2 * Cri.Appeal-607/1991 JUDGMENT : 1. This appeal against conviction arises out of the judgment and order dated 30th October, 1991 passed by the Sessions Court at Bombay in Sessions Case No.514 of 1988. Despite the matter being adjourned on a couple of occasions, the counsel for the appellants is absent. I have carefully gone through the entire record of the case with the assistance of the learned A.P.P. so as to decide the appeal on its merits. 2. The brief case of the prosecution is that, the complainant- Bhadia Shetty was a resident of Borivali and was working as a Commission Agent for Syndicate Bank. In connection to his work, he used to visit customers door to door and collect their contributions in cash and deposit the same with the bank. The job of collection used to be done by him in the evening hours between 6.00 p.m. to 9 p.m. On 27th September, 1997 he started collecting cash amounts from different customers in Malad area. The total collection for that period was of Rs.1500/- which he had kept in his briefcase. In addition to that, he had kept his personal money of Rs.500/- in the briefcase. At about 9.00 p.m. he hired an autorickshaw driven by original accused no.3 to go to Malad station so as to take a train to Borivali. As the * 3 * Cri.Appeal-607/1991 autorickshaw started proceeding in the direction of Malad railway station, the applicants herein made a forcible entry in the running autorickshaw and sat by the side of the complainant. They whisked out knives. One of the appellants, kept a knife on the neck of the complainant and the other started giving him fist blows to the face. Original accused no.3 at the instance of the appellants took the autorickshaw towards Borivali National Park instead of Malad railway station. The appellants then snatched the briefcase from the complainant and forced him out of the autorickshaw. The complainant then approached Malad police station and lodged complaint being C.R. No. 916 of 1987. The investigation into the complaint was later on taken over by D.C.B. CID, Mumbai. After completion of investigation, charge-sheet was filed against the appellants and original accused no.3. During the pendency of the case, appellant no.1 jumped bail and absconded. The trial then proceeded against appellant no1 and accused no.3. However, later appellant no.1 voluntarily appeared before the court and the trial proceeded against him also. 3. The prosecution examined the Medical Officer-P.W.1, the * 4 * Cri.Appeal-607/1991 complainant-P.W.2, panch-Pandurang Mudliar-P..W.3, police constable-P.W.4, Panch-Sharafat-P.W.5, Investigation Officers P.W.6, P.W.7, P.W.8, P.W.9 and the Special Executive Magistrate who conducted the test identification parade-P.W.10. The Sessions Court on scrutiny of the evidence, opined that the evidence before the court was sufficient to bring home the charge of Section 397 against the appellants and convicted them for the same. The Sessions Court found that the evidence before the court was not sufficient to convict original accused no.3 and acquitted him of the offences. 4. Perusal of the evidence of the complainant shows that the same completely corroborates the complaint filed in all the material aspects of the case. He gave the details of the incident, identified both the appellants in the test identification parade as the same persons who had made forcible entry in the autorickshaw and robbed his briefcase containing money by threatening him with knives. It was the case of the appellants at the time of trial, that there were some omissions in the evidence of P.W.2. However, the omissions as has been rightly held by the learned Sessions Judge are not in respect of the material particulars and therefore they cannot be treated as contradictions. * 5 * Cri.Appeal-607/1991 The first omission relates to the deposition of the complainant that the the appellants had gagged his mouth, which does not find place in the FIR. The trial court has observed that though there is no specific mention in the FIR that his mouth was gagged, there is a clear reference made that the accused persons were giving fist blows to the face of the complainant which rendered it impossible for him to shout for help. The second omission is as regards the injury caused to the complainant. There is no specific reference in the FIR that any of the appellants had inflicted an injury by means of a knife. However, the FIR does mention that the appellants had kept knife on his neck. The evidence of the complainant as regards the actual cause of injury has been supported and established by the evidence of the Medical Officer (P.W.1). In these circumstances, the opinion of the learned Sessions Judge in rejecting the submissions as regards the omissions and not treating them as omissions amounting to contradictions cannot be faulted with. 5. The complainant had identified both the appellants in the test identification parade. He deposed that he had sufficient opportunity to see both the appellants. Perusal of the evidence of P.W.10 shows * 6 * Cri.Appeal-607/1991 that the test identification parade has been conducted properly and the complainant had identified both the appellants by specifically pointing them out. Thus the above evidence coupled with the recovery of the money stolen at the instance of the accused persons, establishes that the appellants committed the offence of robbery and while committing robbery used the deadly weapon of knife. The sentence awarded to them of rigorous imprisonment of 7 years is also reasonable. 6. Perusal of record however shows that there are two errors, one in the first charge framed and the other in the operative part of the impugned judgment. These errors can be and are required to be corrected to set the record right. The first charge framed against the appellants reads as follows : That you accused nos.2 & 3 on/or about 22 “ nd Day of September, 1987 between 21.00 hrs to 23.00 hrs at Rani Sati Marg, on Datta Mandir Road, Malad (East), Bombay and in furtherance of your common intention with Accused no.1 Babulal Murlidhan Jaiswal (since absconding) did commit theft in respect of bag consisting of Rs.2,000/- and the other documents from the complainant Shri. Badhiya Sinna Shetty and in commission of the said theft you Accused nos.2 and 3 and the absconding Accused no.1 made * 7 * Cri.Appeal-607/1991 use of deadly weapons to wit button knives (chaku) and voluntarily caused hurt to the above named complainant put him in fear of instant death and thereby you Accused nos.2 and 3 and absconding accused no.1 committed offences punishable u/s.394-397 both read with Section 34 of the I.P.C.” 7. The facts stated in the first charge constituting offence disclose the offence of robbery punishable under Section 392 Indian Penal Code, which is the main offence. The section of this offence however is not mentioned in the charge framed. The charge refers to only Section 394 and Section 397 Indian Penal Code. Section 397 Indian Penal Code does not constitute any separate offence. It merely regulates punishment for robbery in aggravating circumstances. Therefore, the charge under Section 397 must be accompanied by the charge under Section 392 Indian Penal Code. This error in the charge is required to be corrected. 8. Section 215 Criminal Procedure Code provides for a situation as in the present case. It reads as under :- 215. Effect of errors.- “ No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the * 8 * Cri.Appeal-607/1991 accused was in fact misled by such error or omission, and it has occasioned a failure of justice.” Since the charge as framed contained particulars of all the three offences i.e. under Section 392, 394 and 397 Indian Penal Code which charge has been read over to the appellants at the time of recording their plea. Hence, there was no question of the appellants being misled by the omission or occasion for failure of justice. Therefore, by resorting to Section 215 Criminal Procedure Code, the correction in charge which is infact of a formal nature can be carried out. 9. The other error is in the operative part of the impugned judgment and order. It records conviction of the appellants only under Section 397 Indian Penal code. Conviction merely under Section 397 Indian Penal Code has no meaning. The conviction must be accompanied either by Section 392 or Section 395 Indian Penal Code, depending upon the facts of the case. In the instant case, the conviction against the appellants ought to have been recorded under Section 392 read with Section 397 Indian Penal Code. Therefore, the necessary change to that extent, in the impugned order is required to be carried out. * 9 * Cri.Appeal-607/1991 10. The Appeal is disposed off with following modification to the operative part of the impugned judgment and order. . The conviction of the appellants at paragraphs-1 and 2 of the operative part of the order be read as conviction for an offence punishable under Section 392 read with Section 397 read with Section 34 Indian Penal Code. Similarly, acquittal of original accused no.3 at paragraph-3 of the operative order is for the offence punishable under Section 392 read with Section 397 read with Section 34 Indian Penal Code. The bail bonds of the appellants stand cancelled. [SMT. R.P. SONDURBALDOTA, J] * 10 * Cri.Appeal-607/1991