1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 172 OF 2007 Rajesh Swaminath Chauhan, aged about 23 years at present lodged in the Central Prison Kolhapur, Kalamba. ... Appellant. V/S. 1. State of Maharashtra & Ors. 2. Manohar Singh Rathod. ... Respondents. Mrs. Sonia Miskein for the Appellant. Mrs. A.A. Mane, A.P.P. for the State. CORAM : K.U. CHANDIWAL, J. DATE : 28th JULY 2008. ORAL JUDGMENT :- The Accused/appellant has challenged the order of conviction dated 18.8.2005 recorded by 7th Ad-hoc Additional Sessions Judge, Greater Bombay whereby the Accused/Appellant was directed to undergo rigorous imprisonment for a period of 5 years 2 for the offence punishable under Section 394 of I.P.C. and for a period of 7 years for the offence punishable under Section 392 r/w. 397 of I.P.C. 2. On 29.1.2005 the complainant Manohar Singh Rathod after collecting Rs.55,000/- from Rajasthan Metals was on the way near common latrine of 6th Kumbharwada Naka, the accused herein attempted to snatch his bag. The accused inflicted knife blows to complainant resulting in bleeding injury. The shouts raised by the complainant attracted public at large including PW-3 Hawaldar Bhosale, he was on the duty of nearby chowky, the accused was apprehended by him at the time of snatching the bag. The accused alongwith the complainant and one Anees who also corroborated in apprehending the accused, were taken to Police Station where complainant's statement was recorded giving rise to C.R.No.28 of 2005. Since the complainant had injuries, he was examined at the instance of Police Officer by PW-8 Dr. Rajesh Pathak and he issued a medical certificate. The blood stained apparels of the complainant 3 were taken charge in presence of panch witnesses. Arrest panchanama of the accused was drawn. The incriminating articles i.e. the currency notes and knife were taken charge from the accused and seized under panchanama. 3. On completion of the investigation, charge-sheet against the accused was filed before the Additional Metropolitan Magistrate, 4th Court, Girgaon and thereafter, case was committed to Sessions Court. The Judge explained charge to the Accused. The accused pleaded not guilty to the charge and claimed for trial. 4. The defence of the accused that he was falsely implicated. However, he has also stated that he was apprehended by PW-3 from the spot and was brought on false accusation. 5. In order to prove the charge, we have evidence of PW-1 Manoharsingh Rathod, PW-2 Mahendrasingh Roopsingh Chauhan, PW-3 Anantrao Balvir Bhosale, PW-4 Deepsingh Bhagawansingh 4 Chauhan (for panchanama Exhibit 13), PW-5 Mafatlal Ishwar Jain (for panchanama Exhibit 13 concerning seizure of shirt and baniyan), PW- 6 Sunil R. Khatavkar. P.S.I. recorded the F.I.R. and also seized the incriminating articles under Panchanama Exhibits 13 and 16. There is no controversy about spot panchanama (Exhibit 15). PW-7 Dr. Rajesh Laxmikant Pathak examined the complainant and issued the injury certificate wherein he found incised wound over upper back just below neck, 4 cm x 1 cm x 2 cm and stab wound 2 cm x 0.5 cm over lower back. The nature of both the injuries as per PW-7 is simple and were fresh. The injuries were possible by sharp weapon like knife. PW-7 has confirmed that the knife at article 4 would be a possible weapon to cause the injuries. The incident recorded by the complainant to PW-7 was assault in a robbery at the evening of the 29th January 2005. PW-8 Balkrishna Nana Bhosale carried further investigation and filed the charge-sheet. 6. The learned Counsel representing the Accused/Appellant while critising the evidence and the Judgment canvassed that the 5 panch witnesses are from the same building where Accused resides. Aneesh, a witness who co-ordinated apprehending the Accused/Appellant is not examined. There is variation about the evidence of attack, whether it was from back side or from front side. No independent witnesses are examined to prove involvement of the accused. 7. On analysing the evidence adduced before him and in particular, of PW-1, the complainant and PW-3 Head Constable Bhosale, the learned Additional Sessions Judge found that there was no reason for these witnesses to cross their limits to depose against the Accused/Appellant. If evidence of PW-1 and PW-3 is put in juxtapose, I find that there is hardly any room to doubt their testimony either individually or collectively. There was no reason obviously or otherwise for PW-1 to develope any rancour against the accused to falsely implicate him, since he had no past acquaintance with the accused. It cannot be said that the person who indeed snatched the bag has escaped and the accused is falsely apprehended. In the 6 statement under Section 313 of Cr.P.C. of the Accused in giving answer to question No.30, the Accused/Appellant has admitted that he was taken by PW-1 and PW-3 but according to him, he is involved in the false case. At the answer to question No.46, according to Accused, he had done nothing and he is involved falsely. These answers in fact are in consonance to evidence of PW-1 and PW-3. 8. The little variation as to when the accused inflicted blow at the neck of the complainant will not go to shatter the prosecution version as the entire incident has taken place within few minutes and in such situation, it will be crossing once limit to expect from Pw-1, a totally depressed person at the material time to furnish account as to what transpired in the process when bag was snatched. There cannot be any doubt that PW-1 was carrying amount of Rs.55,000/- having received from the shop of Rajasthan Metal at Kurla, Mumbai and while he was proceeding with the cash, it was the accused who has tried to assault the complainant while snatching bag, succeeded, but it was the timely shouts raised by the complainant that the 7 passers on road including PW-3 came to rescue him. PW-1 clearly states that it was PW-3 who controlled the accused and thereafter, the accused was taken to the Police Station with the bag containing the cash of Rs.55,000/-, the knife with which the accused had assaulted him. At the Police Station these articles were taken charge in presence of the Panch witnesses referred above. It cannot be said that merely because the panch were called by the complainant since they are residing in the same buiding, they have any interest against the accused. The complainat was a broken person at the material time completely shattered and in order to have solace to him, at his instance, he called persons known to him and there is nothing wrong from the prosecution to get any such person to act as a panch. On careful assessment of their evidence coupled with the panchanama, I do not find that there is any embellishment or any improvement in their version to falsely implicate the accused. The incident has taken place on 7.45 p.m. at a busy road and the claim that the other person who snatched the bag is left loose and accused is apprehended is falsified as there was sufficient light at the material time and apart 8 from PW-1 it was PW-3 and others who controlled Accused immediately on the spot. It is brought in cross examined of PW-1 that many persons have gathered when he was assaulted by the Accused near 6th Kumbharwada Lane, the accused Rajesh Chauhan could not run away as PW-3 Bhosale caught hold him with the knife in his hand. The F.I.R. at Exhibit 4 recorded immediately after the incident vide C.R. N0.28 of 2005, provide material particulars in support of the evidence. In fact the F.I.R. cannot be expected to be a thesis of the events to be recorded minutely. However, I do not find any improvement or exaggeration in the narration of PW-1, taking diverse stand other than what is recorded in the F.I.R. It is the case wherein the accused was apprehended at the spot and he was brought at the Police Station and within no time the incriminating articles were taken charge at the presence of panch witness. 9. Section 390 of I.P.C. defines robbery which contemplates 9 theft is robbery, if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away the property obtained by the theft, the offender, for that end, 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. Section 392 of I.P.C. contemplates punishment for robbery which may extend to 10 years, and shall also be liable to fine; and, if the robbery be committed. Section 394 deals with the cases in which if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to 10 years, and shall also be liable to fine. Section 397 of I.P.C. contemplates, if, at the time of committing robbery or dacoity, 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 7 years. Section 397 of I.P.C. by itself does not create any offence but merely regulate any punishment 10 already provided for robbery. It is well establish that Section 397 fix a minimum term of imprisonment when the attempt for robbery has been attributed to certain circumstances like use of deadly weapon or causing grievous hurt. 10. In the light of above legal position, if we revert back to evidence of PW-1 and PW-3, I find that the accused was armed with a knife at the material time when he snatched the back containing cash of Rs.55,000/- and the accused inflicted injury to the neck and at the waist of PW-1, resulting in bleeding injury as certified by PW-7 Dr. Pathak as referred earlier. These articles i.e. the knife, the bag containing the currency notes, the blood stained clothes are identified by PW-1 and even panch witnesses including PW-6 the Police Officer Khatavkar. The evidence cummulatively does not create any doubt to discard testimony of PW-1 or PW-3 or the panch witness or PW-7 Dr. Pathak. It is, in addition to the direct evidence of PW-1 and PW-3, the evidence of panch witness referred above also corroborate to the factum of seizure blood stained apparels of the complainant. PW-2 11 has establish that the knife and the bag containing cash were taken charge in his presence. Same is also establish by PW-6 Khatavkar. The panchanama at Exhibit 10 establish all these details. 11. The knife produced before the Court will be coming within the bracket of the deadly weapon as it is 1 inch in width and 3.5 inch in length with 4 inch by 1 inch width wooden handle. The circumstances demonstrate, the accused knew that use of the sharp knife and inflicting injury at neck or at waist is bound to cause bleeding injuries to the victim/complainant and the accused deliberately used the same in furtherance to snatch bag containing cash of Rs.55,000/- while committing the robbery. Thus, the learned Sessions Judge rightly found commission of offence punishable under Section 394, 392 r/w. 397 of I.P.C. 12. The Appeal is dismissed. (K.U. CHANDIWAL,J.) 12