VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 746 OF 2006 Dinanath Kamlasankar Tiwari ) resident of Vaisad Pada, ) Malad (E), Mumbai-97 ) THROUGH THROUGH THROUGH JAIL JAIL JAIL ) At present lodged in Central ) Prison at Kalamba, Kolhapur ) Convict Prisoner No. C-3591, ) Appellant Vs. State of Maharashtra ) Respondent Through Gamdevi Police Station Mr. A. Sakhalkar, advocate appointed for the Appellant. Mr. V. B. Konde-Deshmukh, APP for the Respondent. CORAM : Mrs. V. K. TAHILRAMANI, J. DATE : JUNE 18, 2008. ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT . Through this appeal appellant/original accused No.2 has challenged the judgment and order dated 6th February 2006 passed by the learned Additional Sessions Judge, Greater Bombay in Session Case No. 56 of 1994. By the said judgment and order, the learned Session Judge convicted the appellant under section 452 read with section 34 and under section 394 read with section 34 of I.P. Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.3,000/- in default - 2 - to suffer rigorous imprisonment for one month in both the offences. The learned Sessions Judge directed the substantive sentences of imprisonment to run concurrently. 2. The prosecution case briefly stated is as under- . PW 1 Smt. Muktaben Navinchandra Shah was residing in Flat No.7 at Walkeshwar House, Mumbai with her family. On the day of incident, someone rang the door bell. On opening the door, one person entered into the house stating that he had been sent from Girgaon office to repair the telephone. Two persons who were standing behind that person also entered in the house and they closed the door. One of them asked the complainant to give them the keys of the cupboard. The complainant tried to run but she was assaulted with the butt of the revolver, on her lower lip/chin. Due to this, she sustained bleeding injury. Meanwhile maid servant who was in the house, raised shouts. Due to this watchman PW 3 Dilip Yadav and other persons came to the first floor, where complainant was residing. Due to this, the accused persons started running away. Two of them jumped from the balcony of the first floor. Out of them, one ran away the other sustained injury and - 3 - hence he could not run away. The third person hid himself under a big table in the balcony. He was holding a revolver. The accused who had jumped from the balcony & got injured was caught by the watchman and other persons, and he was brought to the first floor. Thereafter the police was informed and complaint came to be filed. The complainant was referred for medical examination. PW 6 Dr. Suresh Agarwal examined the complainant. He found CLW on the lower lip of the complainant. Suturing was done on the said injury. The accused who was injured while jumping from the balcony i.e. present appellant was also sent for medical examination. PW 8 Dr. B. B. Dasgupta examined the appellant. On examination, the accused was found to have pain in the back and wedge compression fracture in his spine and CLW on eye-brow. After completion of investigation, charge sheet came to be filed. 3. Charge came to be framed against the appellant for the offence punishable under section 452 read with section 34 and under section 394 read with section 34 of I.P.Code. The case proceeded against accused No.2 as the other two accused had absconded and their case is kept on the dormant file. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the accused - 4 - is of total denial and false implication. After going through the evidence led by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. I have heard Mr. Sakhalkar, learned advocate appointed for the appellant and Mr. V. B. Konde-Deshmukh, learned APP for the respondent. I have perused the judgment and order passed by the learned Session Judge as well as record pertaining to the present case. After carefully considering the matter, I am of the opinion that the learned Session Judge has rightly convicted the appellant under section 452 and 394 read with section 34 of I.P.Code. 5. The prosecution case is mainly founded on the evidence of the complainant PW 1 Mrs. Muktaben Shah, and PW 3 Dilip Yadav who is the watchman of the said building. At the time when the complainant PW 1 Mrs. Muktaben Shah was examined, her health condition was not good. She had to be kept on oxygen. In fact it was not possible for her to stand in the court and depose. Her evidence could not be recorded in the court as there was danger to her life due to expiry of oxygen cylinder. Hence, commissioner had been appointed to record the - 5 - deposition of Mrs. Muktaben Shah. 6. As far as evidence of PW 1 Mrs. Muktaben Shah is concerned, her evidence establishes that three persons entered into the house in order to commit robbery. On hearing shouts two of the accused tried to run away by jumping from the balcony. One of them sustained injury while running away by jumping from the balcony. The complainant was unable to conclusively identify the appellant. The house of the complainant was situated on the first floor. One of the accused who tried to run away by jumping from the balcony sustained injury and he did not succeed in running away. The said person was caught by PW 3 Dilip Yadav, who is watchman of the said building. PW 3 Dilip Yadav has identified the appellant as the said person. 7. PW 3 Dilip Yadav has stated that on 3-10-1990 at about 2 p.m. he was on duty. Two persons approached him and stated that they want to visit the flat of the complainant. They told that Anandbhai (son of the complainant) had sent them. Hence, he took those persons to the flat of the complainant. Thereafter he heard the shouts of the maid servant of the complainant saying what they were doing even though thieves entered the complainant’s - 6 - flat. At that time one of the thieves jumped from the balcony on the first floor. They caught hold of the said person. The watchman had identified the appellant as the said person. Thus, from the evidence of PW 3 Dilip Yadav, the identity of the thief who had entered the flat of the complainant and thereafter tried to escape has been established. 8. Mr. Sakhalkar, learned advocate appearing for the appellant submitted that the watchman has stated that he had accompanied accused persons to the flat of the complainant. However, the complainant does not mention that the watchman was accompanying the accused persons when they came into flat. Mr. Sakhalkar submitted that there are large number of discrepancies and omissions in the evidence of PW 1 Mrs. Muktaben Shah and PW 3 Dilip Yadav. He submitted that looking to the large number of discrepancies, the evidence of both these witnesses cannot be relied upon. 9. The discrepanceis pointed out by Mr. Sakhalkar are that the complainant has stated that after shouts were raised, watchman, her sister in law and other persons came to the flat. However, the watchman does not state that the sister-in-law was also with them when they rushed to the flat of the - 7 - complainant. He further pointed out that Mrs. Muktaben has stated that when the watchman and others came to the flat, she was in the bathroom. He pointed out that however, the watchman had stated that when he went to the flat of the complainant, the complainant was found in the hall. He further submitted that the complainant has stated that she locked herself in the bathroom alongwith the grand-son Vishal who was about 8-9 years old, and the watchman had not mentioned anything about Vishal. Mr. Sakhalkar also pointed out that there are large number of improvements in the evidence of the complainant and hence, prosecution case would be seriously affected. He has also pointed out that the complainant had not stated before the police that (1) there were two doors to the house, (2) after someone rang the door bell, the complainant Mrs. Muktaben Shah saw through the view finder when she saw hand of one person, (3) when the said person informed the complaint that they were sent from their office at Goregaon to repair the telephone, the complainant told them that it was not necessary to repair the telephone, (4) the person who initially entered in the house gave signal to rest of the two persons to enter the house, (5) the accused persons demanded the keys to the cupboard and she handed over th keys. (7) the accused persons started to open the cupboard, - 8 - with the help of those keys etc. 10. Reliance is placed on the the decision of the Supreme Court in the case of Yudhishtir Vs. The Yudhishtir Vs. The Yudhishtir Vs. The State State State of Madhya Pradesh of Madhya Pradesh of Madhya Pradesh reported in 1971(3) Supreme 1971(3) Supreme 1971(3) Supreme Court Court Court Cases 436 Cases 436 Cases 436 wherein it is observed that, "when a particular fact deposed by witness does not find mention both in the F.I.R. and in statements recorded under section 161 Cr.P.C., it is an improvement and cannot be considered." In the present case I have excluded all the improvements from consideration. After excluding them, it still does not affect the case of the complainant that three accused persons entered into the house to commit robbery and that one of them was armed with revolver and one of the accused caused injury to her and that thereafter two of the accused persons tried to run away by jumping from the balcony. As far as this aspect is concerned, no omission or contradiction has been brought on record. Thus, this decision is not of any help to the appellant. 11. Though there are a large number of omissions in the evidence of the complainant, I have already observed above that health of the complainant was precarious at the time when her evidence was recorded. Moreover, complainant has not directly - 9 - implicated the appellant as she has not identified the appellant in the court. Her evidence only establishes that three persons had entered in her flat to commit robbery. As far as this aspect is concerned, she has not been shaken in the cross examination. Thus, though there may be large number of omissions, in my opinion, none of them go to the root of the prosecution case or the case of the complainant that three persons had entered into her flat to commit robbery and during the course of robbery, injury was caused to the complainant. 12. As stated earlier the evidence of the watchman PW 3 Dilip Yadav establishes identity of the accused person. As far as this aspect is concerned, nothing has been elicited in the cross examination of this witness, so as to disbelieve this testimony. The prosecution evidence is corroborated by the evidence of PW 6 Dr. B.B. Dasgupta. The accused was referred to him for examination on 3-10-1990. He examined the patient- appellant/accused No.2. The patient personally gave the history as "alleged history of assault and backache after jumping from the height of 15 ft. and landing on his feet". The same history is recorded in the case papers, which are at Exh.30. The medical papers Exh. 25 as well as Exh.30 say that the injury to the spine occured on - 10 - account of jumping from height of 15 ft. The counsel for the appellant submitted that the fracture injury i.e. wedge compression to the spinal vertebra cannot be attributed only to jumping from the height of 15 ft. but the said injury could also be a result of blows given by members of the public. In support of this contention Mr. Sakhalkar has placed reliance on the deposition of PW 7 Dr. Haresh Seth who has stated that said injury is possible if blows are given by members of the public. Mr. Sakhalkar submitted that defence of the accused is that while he was proceeding from Walkeshwar road, he asked 3-4 person the direction to Churney Road railway station, then one person gave him a kick on his back and thereafter all started assaulting him. He lost consciousness and regained conscious only in Nair Hospital. It is pertinent to note that PW 7 Dr. Seth has not examined the accused himself and he was deposing only on the basis of record. However, PW 8 Dr. B. B. Dasgupta has personally examined the accused, hence, he had an occasion to see the exact nature of the injury. PW 8 Dr. Dasgupta has categorically stated that injury was not possible due to receiving of direct kick blows but for such an injury to be caused, there has to be a fall from a height. I have already observed earlier that the accused himself has given history of jumping from - 11 - height of 15 ft. to PW 8 Dr. Dasgupta. This is exactly in consonance with the prosecution case. Thus, medical evidence also corroborates the prosecution case. 13. Thereafter it is submitted by Mr. Sakhalkar that it is not the prosecution case that any of the accused had succeeded in robbing the complainant. It is submitted that in such a case, case would not fall under section 394 of I.P.Code. In support of this contention, reliance was placed on the decision of Supreme Court in case of Venu @ Venugopal and Ors. Venu @ Venugopal and Ors. Venu @ Venugopal and Ors. Vs. Vs. Vs. State of Karnataka State of Karnataka State of Karnataka reported in 2008(1) Crimes 2008(1) Crimes 2008(1) Crimes 327 327 327 (SC). (SC). (SC). However, present case is not under section 392 of I.P.Code. Section 392 of I.P.Code deals with the case of a person who commits robbery, whereas Section 394 of I.P.C. deals with the case of the person who while committing or while attempting to commit robbery voluntarily causes hurt. In the present case it cannot be said that robbery was committed by the appellant or by the other accused. However, it can be said that the appellant and other accused were attempting to commit robbery and during the course of the said robbery they voluntarily caused hurt to the complainant. Thus, ratio of this decision cannot be applied to the facts in the present case. - 12 - 14. Thereafter Mr. Sakhalkar submitted that there is no material to show that the accused was arrested at the spot as there is no arrest panchanama on record. It is true that the prosecution has not produced arrest panchanama. However, evidence of PW 3 Dilip Yadav shows that when appellant jumped from the balcony, he was injured and he was caught by PW 3 Yadav and other persons. The evidence of PW 3 Yadav establishes that the appellant had entered into the house of the complainant, and on persons gathering, he jumped from the balcony and tried to run away, and at that time he was caught by PW 3 Yadav. Thus, even if no arrest panchanama was brought on record, the evidence of PW 3 sufficiently establishes the complicity of the appellant in the present case. 15. On going through the evidence on record, in my opinion the learned Sessions Judge has rightly convicted and sentenced the appellant. No case is made out for interference. In the result the conviction and sentence awarded by the learned Sessions Judge is confirmed and appellant shall serve out his sentence. Appeal is dismissed. 13. At this stage I may mention that Mr. Sakhalkar who was appointed from the High Court Legal - 13 - Services Committee to represent the accused has very ably conducted the matter. He has meticulously prepared the matter and he has also very competently argued the appeal. The High Court Legal Services Committee is directed to pay Mr. Sakhalkar the fees for conducting this appeal as per rules. Sd/- [Mrs. V. K. TAHILRAMANI, J.]