1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 728 OF 2004 Uttam Lalsingh Pawar ] Age 26 years, R/at.Village Vardhala ] Taluka – Mehkar, District – Buldhana. ] .. Appellant V/s. The State of Maharashtra ] .. Respondents Mr.Z.M.Avhad for the Appellant. Mr.D.P.Adsule, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : MAY 4TH, 2009. P.C. It is the appeal preferred by appellant original accused No.1 against the Judgment and order of conviction passed by the Second Adhoc Additional Sessions Judge, Nashik delivered on 12th April, 2004. By the said impugned Judgment and order, present applicant accused No.1 was convicted for the offence punishable under section 304 II of Indian Penal Code and was sentenced to suffer R/I for 10 years which is the maximum imprisonment awardable under said section. Appellant alongwith three other co- 2 accused was convicted for the offence under section 394 read with section 34 of I.P.C. and was sentenced to suffer R/I for five years. Appellant alongwith other co-accused was also convicted for the offence under section 457 of I.P.C. and was sentenced to suffer R/I for three years. It is significant to note that appellant alongwith the other three co-accused was acquitted of the charge under section 302 read with section 34 of I.P.C. and also acquitted of the offence under section 397 of I.P.C. Substantive sentences awarded against appellant were directed to run concurrently. Appropriate fine amount were also awarded against the accused. 2. Arguments on behalf of the appellant accused No.1 and arguments of learned A.P.P. for the State are heard for some time. At the threshold, it is submitted on behalf of the applicant that the matter may be considered for maintaining the conviction against the accused and altering quantum of imprisonment. To substantiate this arguments, it is submitted that the appeal preferred by the co-accused who were sentenced to imprisonment for maximum five years were already disposed of by this Court maintaining the conviction and altering the sentence in as much as awarding the sentence which was already undergone by them for about 3 and ½ years. It is submitted that about one years reduction in the sentence was effected by this Court in the said appeals. Applying the same principle, further argued, present appellant accused No.1 may also be awarded the sentence which he had already undergone and it is six years and two months. Admittedly, the present appellant accused No.1 is in Jail 3 since 5th March, 2003, and during the entire trial and even thereafter till today he has not availed bail and he is in custody and as such undergone imprisonment for 10 years inflicted on him. This aspect is required to be considered in the light of the substantive evidence brought before the Court and mainly the evidence of P.W.No.1 complainant Kum.Chaya Wagh, a girl aged about 17 years. 3. Alternative to the above, it is also argued on behalf of the appellant that in the present matter the substantive evidence of P.W.No.1 is not trustworthy and there is a doubt as to whether she could have really seen the robbers during the incident. By submitting such arguments, it is mentioned on behalf of the appellant that even the present appeal is required to be allowed setting aside the impugned conviction. Counter to these arguments, learned A.P.P. for the state submitted that substantive evidence of P.W.1 is carefully scrutinized by the Trial Sessions Court and there is nothing to interfere in the finding of the conviction and quantum of sentence awarded against the appellant, more so, considering the gravity of the offence and still considering that though, the offence of 302 of I.P.C. was charged against the appellant, it has been brought down to the offence under section 304 II of I.P.C. 4. Prior to appreciating the rival submission, the case of the prosecution can be narrated as under : Said incident of robbery occurred on the night of 11/12th 4 January, 2003 at the house of deceased Dattatrya, uncle of first informant Kum.Chaya Wagh. During that night at about 1.45 a.m. Chaya, her uncle and her aunt were sleeping in the house and got up by the noise of pelting of some stones on the door, due to that a sort of hole was created in the door, and robbers opened the door and came inside armed with sticks. Two robbers entered the house and assaulted uncle Datttrya with sticks and stones. Present appellant accused No.1 a tall person snatched gold chain, a pair of gold ear rings, gold bangles and gold Mangalsutra with Pendent from the inmates of the house and in doing so he inflicted a blow on the head of Dattatrya by means of a stone which cause fracture to the skull. According to P.W.1 Kum Chaya, she noticed said two robbers and subsequently identified present appellant accused No.1 in the test identification parade which was subsequently conducted after the arrest of the accused. After the incident of robbery and assault Dattatrya was over robbers flew away from the spot leaving injured Dattatrya and injured complainant Kum.Chaya and her aunt at the house. After getting help from the neighbours injured Dattatry was removed to the hospital for medical treatment, however, he succumbed to the injury just after 24 hours of his hospitalization and died. On such death the offence of 302 was inserted in the charge sheet which was earlier filed on the strength of the complaint of Kum.Chaya, recorded by the police. In the said compliant description of the ornaments and also description of the two robbers was given. According to the police during the investigation accused No.1 made voluntary statement to produce the gold ornaments and accordingly 5 said ornaments were recovered and they were taken charge of under the panchanama. About eight witnesses were examined by the prosecution and the main witness is P.W.No.1 the complainant. 5. Appreciating the evidence laid before the Court, Sessions Court accepted the substantive evidence of P.W.No.1 complainant as trustworthy and as to involvement of all the four accused persons including present appellant accused No.1. However, actual recovery of ornaments at the instance of present appellant was not believed by the court, and as such accused were not convicted for the offence under section 392 read with section 397 of I.P.C. It appears that for want of such recovery of ornaments at the instance of present appellant, though there was no conviction for the offence punishable under section 397, accused were convicted for the offence under section 394 of I.P.C. mainly on the premise that it was an attempt to commit robbery, and in which there was injury caused to the victim. 6. During the course of arguments, learned Advocate for the Appellant submitted that present appellant was taken from the custody of Sinner police station as he was found involved in other similar such robbery matters. It is however, submitted that except the conviction in the present matter, there was no any conviction against the appellant accused in any other matter, though, there were more then six to seven similar such cases lodged against him. Considering the peculiar circumstances of the present case and considering the substantive evidence of P.W.No.1 and still 6 considering that admittedly according to her she had seen the robbers when they entered the house at the early hours, in the light of electric bulb which was put on by her aunt, there is nothing to disbelieve her evidence, so far as involvement of appellant accused No.1. Moreover, she had identified appellant in the test identification parade which was conducted at the local guest house by Tahashildar. Again, considering such evidence of test identification parade, there is nothing to doubt that there was such identification of the appellant by P.W.No.1 Another peculiar circumstance is that just after 24 hours of said incident, Dattatrya succumbed to the head injury which was caused to him by the appellant by means of a big stone, and it was during the course of the incident of robbery. Again, considering the reasoning given by the Trial Court as to non application of section 302 to reducing said offence to section 304 II, there is nothing to interfere with the said reasoning and final conclusions, moreover, it may be mentioned that there is no any appeal preferred by the State for enhancing of the sentence. 7. Apart from the above, though, it is argued by Advocate of the appellant, that other co accused were awarded the sentence already undergone, considering the role of present appellant, the same standard cannot be applied to him and that definitely it is not a case in which the sentence of imprisonment is required to be reduced from 10 years to already undergone for six years and two months. In the result, there is nothing to interfere in the impugned Judgment and order and consequently, present appeal must fail and accordingly 7 same is disposed of with following order : :: O R D E R :: i. Criminal appeal No. 728 of 2004 preferred by applicant original accused No.1 is dismissed. ii. The impugned Judgment and order dated 12th April, 2004 passed by II Adhoc Additional District Judge, Nashik in sessions Case No.82 of 2003 shall sustain, so far as present appellant is concerned. (A.R. JOSHI, J.)