1 APPEAL-330-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 330 OF 2008 Nirmal Virendranath Kar, ) Age 28 years, Occu. - Nil. ) R/o. - Block, New Colony, Daravali, ) Tal. Mural, Dist. Gwaliyar, (M.P.) ) presently residing at Flat No.B/59, 6th ) Floor, Manjari Road, Hadapsar, Pune. ) presently at Yerawada Central Prison,Pune. ).. Appellant (Orig. accused) vs. 1. The State of Maharashtra ) 2. Shri Chandrakant Dnyandeo Jadhav, ) age 43 years, Occu: Nil ) R/o – Dehuroad, Tal. Haveli, ) Dist. Pune. ).. Respondents (Orig. complainant) Mr. Vikas Shivarkar,Advocate, for the appellant. Mrs. P.P. Shinde, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 17th October, 2011. JUDGMENT: 1. The original accused has preferred this Appeal against the judgment and order passed by the Adhoc Addl. Sessions Judge, Pune, in Sessions Case No. 249/2007 whereby he was convicted for the offence punishable under Section 2 APPEAL-330-08.sxw 394 read with Section 397 of IPC and was sentenced to R.I. for seven years and to pay fine of Rs.5,000/- and in default to undergo further R.I. for six months as well as under Section 37(1) read with Section 135 of the Bombay Police Act for which he was sentenced to undergo R.I. for four months. 2. Prosecution case, in brief, is that on 8.12.2006 at about 2.30 p.m., PW-1 Chandrakant Jadhav, who was working as Havaldar in the State Reserved Police, Group No.1, Ramtekadi, Hadapsar, Pune, went to ATM centre of State Bank of India at Fatimanagar to withdraw cash from his Bank account. One person was already in the ATM centre and, therefore, PW-1 Chandrakant Jadhav waited for some time. When the person inside the ATM centre had finished his work, he told PW-1 Chandrakant Jadhav to come and therefore PW-1 Chandrakant Jadhav went inside the ATM centre and by inserting his Card in the machine, he withdrew amount of Rs.5,000/- and got nine currency notes of Rs. 500/- each and five currency notes of Rs.100/- each. When he was putting the amount in his packet, the person who was already inside the ATM center and who is identified as accused/appellant before the Court, strongly gave a blow of Sattur, which is a long knife, on the neck of PW-1 Chandrakant and snatched the amount from his hand. PW-1 Chandrakant caught hold of accused and there was scuffle between the two. At that time, the accused gave blows on the let ribs 3 APPEAL-330-08.sxw of Chandrakant with Sattur. PW-1 Chandrakant shouted for help. At that time, PW-3 Jiteshwar Bankar, who was standing outside the ATM centre, came inside and with the help of PW-3 Jiteshwar Bankar, PW-1 Chandrakant caught hold of the accused. Police was also informed by the complainant. Immediately police came there and arrested the accused on the spot. Thereafter, the complainant was taken to a hospital where he was examined by the Medical Officer. His FIR was recorded at the hospital. Immediately a spot panchnama was prepared. Personal search of the accused was taken. Clothes on the person of the accused as well as the blood stains clothes on the person of Chandrakant Jadhav were seized. The clothes were referred to C.A. After investigation, charge-sheet was filed and then the case was committed to the Court of Sessions for trial. 3. The accused was charged for the offence under Section 394 read with Section 397 of IPC as well as under Section 37(1) read with Section 135 of Bombay Police Act as there was prohibition against carrying any weapons. The accused pleaded not guilty. According to him, he was simply present at the centre at the relevant time, but someone else had assaulted Chandrakant Jadhav and had tried to rob him. He contends that he has been arrested due to mistaken identity. 4 APPEAL-330-08.sxw 4. On behalf of prosecution, in all five witnesses were examined. Several documents are also placed on record. After trial, the learned Addl. Sessions Judge convicted and sentenced the accused as stated above. 5. Heard the learned Counsel for the parties. Perused R & P and the impugned judgment and order. 6. Out of five witnesses examined by the prosecution, PW-1 Chandrakant Jadhav is the main witness and PW-3 Jiteshwar Bankar came on the spot with whose help the accused was caught at the spot. PW-2 Dr. Chandrashekhar Devichand had examined Chandrakant Jadhav and proved the injuries. PW-4 PSI Suresh Jagtap and PW-5 Shrikant Pingle were the Investigating Officers. PW-1 Chandrakant deposed in detail that he was posted as Havildar with Group No.1, S.R.P. Ramtekadi, Pune, as a Wireless Operator. On 18.12.2006 he was on duty. During the lunch period from 1 to 3 p.m. he went to ATM centre of SBI at Fatimanagar to withdraw amount of Rs.5,000/-. He reached there at about 2.20 p.m. At that time, one person, who is identified as accused, was already inside the ATM centre. Therefore, he waited for some time. After the accused had finished his work, he asked Chandrakant to come inside and therefore PW-1 Chandrakant entered into the ATM centre. At that 5 APPEAL-330-08.sxw time, the accused continued to remain present in one corner of ATM centre. After PW-1 Chandrakant had withdrawn the amount abruptly, the accused assaulted him with a long sura, called Sattur, and gave injuries on his neck and simultaneously snatched the amount of Rs.5,000/- from him. PW-1 Chandrakant immediately turned and caught hold of the accused. The accused also gave another blow with Sattur on his left thigh. He gave some more blows on his person, including one on the left rib due to which his shirt was also torn. He suffered bleeding injury because of the assault by the accused with weapon. As per the evidence of Chandrakant, he shouted and then PW-3 Jitesh Banker, who was standing outside the ATM centre, came there. With his help, the accused was caught. Police was immediately informed. Two policemen, who were on patrol duty, reached there and PW-1 Chandrakant Jadhav handed over the accused to those policemen. Police took the accused along with the knife with him. The currency notes, which were scattered away in the ATM centre, were also collected and handed over to the police. PW-5 API Shrikant Pingle, who was posted at Wanwadi Police Station, deposed that Crime No.488/06 was registered at the police station and the accused, who was caught hold by the public was arrested in presence of two witnesses under arrest panchnama Exhibit 37. As per the evidence of PW-5 API Pingle, the accused was caught by the public and he arrested him in the present C.R. in presence of two panchas under arrest 6 APPEAL-330-08.sxw panchnama Ex.37. He also seized muddemal cash amount and the weapon under a panchnama Exh.23 from the accused and he seized his clothes under a panchnama Exh.29. 7. The evidence of PW-2 Dr. Chandrashekhar Sanghawi shows that on 8.12.2006, Chandrakant Jadhav was brought to the Hospital at about 2.45 to 3 p.m. He immediately examined him and found the following injuries :- “(i) Incised wound on the nip of the neck. 8 to 9 cm. In length. Horizontal. 1 to 3 cm. Varying depth. (ii) Incised wound on left Buttock. 6 to 7 cm. In length. ½ to 1 c.m. N depth. Caused by sharp instrument. (iii) Superficial skin denudation on left hand finger. (iv) Linear abrasion on let side of chest.” and accordingly issued medical certificate Exh.26. He deposed that these injuries could be possible with a sharp and cutting weapon like Sattur. According to him,injury No.1 could be dangerous and could cause death if it would not be treated immediately. 8. Muddemal property was referred by API Pingle to C.A. along with a covering letter Exh.38 and the C.A. Report Exh.18 was received. On the pant, 7 APPEAL-330-08.sxw shirt and Banian of injured Chandrakant, blood stains of Group “A” were found. That was his blood group. On the full shirt and sweater of the accused also blood stains of Group “A” were found. Similarly, the blood stains of Group “A” were found on the currency notes of Rs. 100/- which was seized at the spot. Incidentally, blood of the accused was also of Group “A”. However, the accused could not explain how the blood stains came on his shirt and sweater. Taking into consideration the evidence of PW-1 Chandrakant Jadhav and PW-3 Jiteshwar Bankar corroborated by the medical evidence of PW-2 Dr. Chandrashekhar Devichand, it is established that Chandrakant Jadhav was assaulted with a sharp and cutting weapon while committing robbery by the accused. The accused was caught on the spot. The evidence also shows that as there was scuffle, the clothes of the accused were also stained with blood of PW-1 Chandrakant who had suffered blood injuries. The learned trial Court rightly noted that the accused was from Madhya Pradesh and therefore there was no reason for any of the witnesses to falsely implicate him in this case. He was caught on the spot while assaulting Chandrakant Jadhav with weapon and after he was caught, he was handed over to the police and immediately he was arrested. Arrest panchnama and seizure of clothes were not disputed by him. He also admitted his presence in the ATM Centre, when this incident occurred. Therefore, there is no possibility of any mistaken identity. 8 APPEAL-330-08.sxw 9. Taking into consideration the evidence on record, I find that the prosecution has proved that the accused committed robbery by snatching amount of Rs.5,000/- from Chandrakant Jadhav and while committing robbery, he also assaulted Chandrakant Jadhav with a sharp and cutting weapon and caused injuries to him. In view of this, no fault can be found with his conviction for the offence under Section 394 read with Section 397 of IPC. 10. The evidence of PW-5 API Pingle shows that Assistant Commissioner of Police, Pune, had promulgated an order prohibiting holding and carrying any deadly weapons from 7.12.2006 to 21.12.2006. This incident had occurred on 8.12.2006 when the accused was found in possession of the deadly weapon and thus he had contravened the said prohibitory order issued under Section 37(1) and that is punishable under Section 135 of the Bombay Police Act. On this count also no fault can be found with the conviction. 11. When the offence of robbery was committed and at the time of commission of offence, the offender used the deadly weapon or attempted to cause grievous hurt, the imprisonment with which the offender shall be punished shall not be less than seven years. The trial Court awarded the 9 APPEAL-330-08.sxw minimum prescribed sentence under the law. Therefore, no fault can be found with the sentence also. 12. In view of the facts and circumstances noted above, there is no merit in the Appeal. In the result, the Appeal stands dismissed. (J.H.BHATIA,J.)