Criminal Appeal No.434 of 2003

7th February, 2005

Petitioner Counsel: Mr. TRUPTI UDESHI
Respondent Counsel: Mr. YOGESH MANDPE

Cases Cited:
Earabhadrappa Vs. State of Karnataka, AIR 1983 SC 446 [Para 9]
Deelip M. Thapa Vs. State, 2003 ALL MR (Cri) 1360=2003 Cr.L.J. 4280 [Para 13]
Fatteh Mohammed Gul Mohd. Sayed Vs. State, 2003 ALL MR (Cri) 1748=2003 Cr.L.J. 3586 [Para 13]
Robert Peter Kadam Vs. State, 1998 ALL MR (Cri) 1119=1998 Cr.L.j. 3879 [Para 13]
Udumbar Digambar Jagdani Vs. State, 1999 Cr.L.J.1936 [Para 13]
Ashfaq Vs. State, 2004 ALL MR (Cri) 874 (S.C.)=(2004)3 SCC 116 [Para 15]
Limbaji Vs. State of Maharashtra, 2002 ALL MR (Cri) 923 (S.C.)=(2001)10 SCC 340 [Para 17]

JUDGMENT

JUDGMENT :- Through this appeal, the appellant i.e. original accused has challenged judgment and order dated 31-03-2003 passed by learned 2nd Ad-hoc Additional Sessions Judge, Pusad in Sessions Trial No.76 of 2001. By the said judgment and order the learned Sessions Judge convicted the appellant under Sections 328 and 380 of Indian Penal Code. For the offence punishable under Section 328 of I.P.C. the appellant was sentenced to suffer R.I. for ten years and to pay a fine of Rs.500/- in default S.I. for six months. For the offence punishable under section 380 of I.P.C. the appellant was sentenced to suffer R.I. for seven years and to pay a fine of Rs.500/- in default S.I. for six months. The learned Sessions Judge directed that both the substantive sentences of imprisonment to run concurrently.

2. Briefly stated, the prosecution case is as under :

The complainant P.W. No.2 Wamanrao Shrinath was residing at new Pusad. His house consists of two floors. He and his wife P.W.4 Venutai were residing on the first floor while his brother P.W.5 Shrawan and his mother were residing on the ground floor. The complainant was married to Venutai about 10 to 12 years prior to the incident. They did not have any issue. In order to beget child they performed many rituals and also underwent medical treatment, inspite of that they did not have any issue. A few days before the incident one person by name Dhawase came to their residence. Said Dhawase told the complainant that he knows one doctor who can help in conceiving in cases of couples who are issue-less and 4 and 5 days before the incident Dhawase brought the said Doctor. The complainant had hotel business. Thereafter the Doctor met the complainant in the hotel and said that he was sent by Dhawase. The said Doctor (appellant) said that he would go to Umerkhed and come back in the evening. On the same day the appellant came back to their house after 11.30 p.m. The appellant stated that he would bring medicine and if the medical stores are closed he would bring the same from Government Hospital. At that time, on first floor the complainant, his wife and mother were there. The appellant told the mother of the complainant that she should go and take rest. Accordingly mother of the complainant went to the ground floor for taking rest. The Doctor then asked the complainant to take off his clothes and then the Doctor examined him. Thereafter the Doctor took out one pill and crushed it. He then asked for two cups of water for the complainant and his wife. The Doctor put the medicine in the cups and added water to it and after mixing it gave it to the complainant and his wife for drinking. Thereafter the complainant and his wife became unconscious. The complainant regained his consciousness in the Hospital at Yavatmal. Thereafter the Magistrate recorded statement of the complainant (Exh.16). The complainant did not see his golden ring and chain. Hence, he gave report (Exh.17) of the said incident to the Police Station. It was also noticed by him that the ornaments on the person of his wife and some sarees and other articles from the house were missing. After the Complainant came home and verified the missing articles his further statement came to be recorded. After lodging of the complainant investigation commenced. During the course of investigation the appellant came to be arrested. On the same day the stolen ornaments came to be recorded at his instance under Memorandum and Panchanama (Exhs.34 and 35). Pursuant to the memorandum the appellant led the police and panchas to the Jewellery shop of one Vishnupant Udawant. The said articles came to be seized. After completion of investigation charge-sheet came to be filed under Sections 328 and 380 of I.P.C.

3. The case was committed to the Court of Sessions in the usual manner. Charge came to be framed against the appellant under Sections 328 and 380 of I.P.C. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial. Relying on the evidence adduced by the prosecution learned trial Judge convicted and sentenced the appellant in the manner stated in paragraph No.1 above. Hence, this appeal.

4. I have heard Ms. Udeshi, learned Advocate for the appellant and Mr. Mandpe, learned A.P.P. for State of Maharashtra. I have perused the judgment and order of the learned Sessions Judge as well as record pertaining to present case. After giving my anxious consideration to the matter, I am constrained to observe that there is no substance in this appeal and it deserves to be dismissed.

5. The conviction of the appellant is mainly based on the evidence of the complainant P.W.2 - Wamanrao and his wife P.W.4 Venutai Shirnar. As the prosecution case in paragraph No.2 above has been taken from examination-in-chief of the P.W. No.2 Wamanrao Shirnar, I do not intend to repeat the same here in detail as it would only over-burden the judgment. Evidence of P.W.4 Venutai is on similar lines to the evidence of her husband P.W.2 Wamanrao.

6. After going through the evidence of these witnesses I have not even an iota of doubt that they are wholly reliable witnesses. During the course of investigation when the police called P.W.2 Wamanrao and his wife at the Police Station they both identified the appellant. They also identified him before the trial Court. Evidence of P.W.2 Wamanrao stands corroborated on all the relevant aspects by the evidence of P.W.4 Venutai. On going through the evidence of both these witnesses I am convinced beyond any shadow of doubt that there is evidence which is sufficient and provides a safe foundation for sustaining the conviction of the appellant on both the counts.

7. Besides two witnesses i.e. P.W.2 Wamanrao and P.W.4 Venutai the prosecution has also examined P.W.5 Shrawan Shirnar, who is brother of the complainant. P.W.5 Shrawan has stated that 4 to 5 days before the incident one Dhawase had brought the accused. The accused was having talk with his brother Wamanrao. The accused was telling Wamanrao that he would come from Umerkhed in the evening. Shrawan has further stated that on the day of the incident they closed their hotel at 10.00 p.m. and went home. When they were coming home the accused met them near the steps. The accused had talk with his brother. Thereafter this witness went inside the house, had dinner and went to sleep. On the next day his son came running to the shop and told him about the incident. Thereafter Shrawan went home and he noticed that both his brother Wamanrao and his wife Venutai were unconscious. P.W.5 Shrawan took both of them to Government Hospital, Pusad in an auto-rickshaw. From there his brother and his wife were referred to hospital at Yavatmal. Hence, they were taken to Yavatmal. On the next day, after being taken to Yavatmal they regained consciousness. After regaining consciousness they asked, how they were in the hospital. His brother told that his ring and chain were missing and his brother's wife told him that various ornaments which were on her person were missing. Thus, I find that reassurance is forthcoming to the evidence of Wamanrao and Venutai in the of form the evidence of P.W.5 Shrawan. His evidence supports atleast some part of the prosecution story. This witness has also identified the accused before the Court. Nothing has been elicited in the cross-examination of witness Shrawan so as to disbelieve his testimony.

8. In the present case there is recovery at the instantce of the appellant of various ornaments which belong to the complainant and his wife. Panch witness P.W.6 Durgasingh has been examined in relation to recovery of the ornaments. The complainant Wamanrao and his wife Venutai has identified those ornaments. Ms. Udeshi has submitted that no reliance can be placed on the said recovery as Panch witness P.W.6 Durgabai has stated in paragraph 2 of his cross-examination that remaining work of writing panchanamas was done in the Police Station. Thus, she has submitted that this shows that the recovery did not take place as alleged by the prosecution and the panchanama were prepared in the Police Station. However, paragraph No.2 would have to be read in its entirety. The Panch witness has stated that accused had said that he has sold articles. After leaving police station the accused pointed out shop of the jeweller Vishnupant Udawant, they went into that shop, panchanama was prepared after preparation of panchanama, panch witness went back to the Police Station with the police and accused. Remaining work of writing was done in the Police Station. The panch witness has nowhere stated in his evidence panchanama that remaining work of writing 'panchanama' was done in the Police Station. It is well known that after the panchanama is prepared and articles are seized, various other formalities have to be completed. The said formalities would require some work to be completed in writing. Thus, from the evidence of this witness it cannot be said that the panchanama was not prepared in the shop of the jeweller but it was prepared in the police station. It is pertinent to note that panch witness has categorically stated that "it is not true to say that the police did not prepare seizure panchanama in our presence in the shop of goldsmith." On going through the evidence of panch witness I find that nothing has been elicited in the cross-examination of this witness so as to disbelieve his testimony on the aspect of recovery of ornaments at the instance of the appellant.

9. On the aspect of recovery of ornaments Ms. Udeshi has contended that no prior test identification of the articles has taken place and therefore, identification of the articles by the complainant and his wife in court cannot be relied upon. However, the Supreme Court has held in Earabhadrappa Vs. State of Karnataka, reported in AIR 1983 SC 446 that there is no such legal requirement of holding prior test identification in relation to articles. In the said case it is observed that when a witness identified stolen property i.e. ornaments and sarees at the trial without prior test identification, testimony of such witness was not inadmissible in evidence for want of prior test identification. It is further held that it is matter of common knowledge that ladies have an uncanny sense to identify their own belongings, particularly articles of personal use in the family. In present case, complainant Wamanrao as well as his wife Venutai have both identified the ornaments. The said ornaments were on their person, the ornaments were in daily use and as such even though there was no prior identification of articles, the identification of those ornaments by these two witnesses in the Court can be relied upon. Thus, there is no merit in the contention that the testimonies of these two witnesses as regards identity of seized articles cannot be relied upon for want of prior test identification.

10. It needs to be emphasised that none of these three witnesses had any malice or ill-will against the appellant. Had he not been the real culprit they would not have falsely identified him in the Court. Had the complainant and his wife not been duped and relieved of their valuables by the appellant there was no reason for them to falsely fix him in the instant case.

11. In the present case, conviction is mainly founded on the evidence of the complainant P.W.2 Wamanrao and his wife P.W.4 Venutai. In my view, the evidence of these two witnesses coupled with evidence of P.W.5 Shrawan is sufficient beyond any shadow of doubt for sustaining conviction of the appellant.

12. Ms. Udeshi made following three submissions :

(a) That there is no test identification parade of the appellant in the present case. In absence of any test identification of the appellant it would not be safe to accept his identification in the Court by P.W. No.2 Wamanrao, P.W. No.4 Venutai and P.W.5 Shrawan.

(b) Offence committed by the appellant would not fall in the ambit of Section 328 of I.P.C. because prosecution has failed to adduce evidence to the effect that any poison was administered to P.W.2 Wamanrao and P.W.4 Venutai.

(c) At any rate the sentence awarded to the appellant is too severe and warrants reduction.

13. I now propose, considering each of the aforesaid submissions. To back up her first submission mainly in absence of any test identification parade of the appellant, it would not be safe to accept his identification in the Court by P.W.2 Wamanrao, P.W.4 Venutai and P.W.5 Shrawan, Ms. Udeshi has placed reliance on four decisions of this Court (i) 2003 Cr.L.J. 4280 : [2003 ALL MR (Cri) 1360] (Deelip M. Thapa Vs. State), (ii) 2003 Cr.L.J. 3586 : [2003 ALL MR (Cri) 1748] (Fatteh Mohammed Gul Mohd. Sayed Vs. State), (iii) 1998 Cr.L.J. 3879 : [1998 ALL MR (Cri) 1119] (Robert Peter Kadam Vs. State) & (iv) 1999 Cr.L.J. 1936 (Udumbar Digambar Jagdani Vs. State). Facts found in the aforesaid case are distinguishable from those of the present cases and none of those decisions would have any application in the present case.

14. First two cases are of robbery and last two cases are of dacoity. In all the said cases the witnesses had a chance to see the accused persons only on one occasion and that too for a very short time. In almost all the cases the witnesses had only a fleeting glimpse of the accused during the time of the incident. However, in the present case, the witnesses had met the accused person more than once. From the evidence of P.W.2 Wamanrao it is seen that he first had an occasion to meet the accused when he was brought to his residence by one Dhawase. Thereafter 4-5 days before the incident he had occasion to meet the accused at his hotel. Thereafter again he had occasion to meet the accused person in his own house. On the last occasion there was lot of interaction between the accused and the complainant. On that occasion not only the accused was in the house of complainant for a long time but the accused also examined the complainant after asking him to take his clothes off. Thereafter the accused gave medicine to him and his wife. Similar is the case with Venutai, she had also met the accused on three occasions. So also the witness Shrawan met the accused on more than one occasion. The complainant and his wife had a specific reason to keep in mind the identity of the accused. For both of them he was not an ordinary person but he was someone who promised that they would beget a child. The complainant and his wife though married for over 12 years were issueless. They had tried various rituals and various treatments to beget a child, however, they were unsuccessful. Therefore, when the accused promised them that he would beget a child in their lives, he became a very important person and in such circumstances, it was nor possible for them to forget him.

15. In needs to be emphasised that there is no proposition of law or of practice having universal application to all cases that it is imperative to hold test identification of an accused person who is not known to the witnesses prior to the identification and the absence to do so would vitiate the evidence of identification of the accused person by the witnesses, for the first time in the Court.

In this connection, it will be useful to refer to some of the observations made by the Supreme Court in (2004)3 Supreme Court Cases 116 : [2004 ALL MR (Cri) 874 (S.C.)] (Ashfaq Vs. State) in the said case it has been observed that ;

"Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of each case and there cannot be any abstract general formula for universal and ready application in all cases."

In the above case it is further stated that in the case of Ramanbhai Naranbhai Patel it is observed as under :

"Two eye-witnesses in the said case were assaulted and seriously injured in broad daylight, they could have easily seen the faces of the assailants and their appearance and identity would well remain imprinted in their minds and the third witness who was said to have seen the fatal assault on her husband could also be easily considered to have got imprinted in her mind the faces of the accused and that, therefore, the omission to hold the test identification parade did not affect the credibility or truthfulness of their evidence".

Thus, in such circumstances, it was observed in the case of Ashfaq that the accused were present in the house for quite some time holding the witnesses at ransom by directing and using threat to relieve them of the valuables on which they could lay their lands and it is too much to claim, in spite of all this, that the evidence of PWs.2, 3 and 10 could not be either sufficient to properly identify the accused or relied upon against the accused in the absence of proper test identification parade.

16. In the present case all the three witnesses i.e. P.W.2 Wamanrao, P.W.3 Venutai and P.W.5 Shrawan had sufficient opportunity to see the appellant. Wamanrao and Venutai had prolonged interaction with the appellant. There was a special reason due to which the face of the appellant would be imprinted on their minds and they were not likely to forget such a person. Thus, even though the accused was a stranger and was not known to any of these witnesses earlier, the absence of holding prior identification parade would not be fatal. The identification of the accused in the Court for the first time in Court can be relied upon to establish the identity of the appellant and to sustain his conviction.

17. Mr. Mandpe has submitted that in the present case prosecution is also relying on the evidence of recovery of ornaments at the instance of the appellant. He has submitted that the evidence on record shows that the ornaments of the complainant Wamanrao and his wife Venutai had been recovered at the instance of the appellant and both these witnesses have identified their ornaments. Mr. Mandpe has submitted that in the case of Limbaji Vs. State of Maharashtra, reported in (2001)10 SCC 340 : [2002 ALL MR (Cri) 923 (S.C.)] this Court has maintained conviction of the accused under Section 394, I.P.C. only on the basis of recovery of ornaments at the instance of the accused therein. I have already discussed above the evidence relating to recovery of ornaments at the instance of appellant and that I find the same to be trustworthy and reliable. This evidence is in addition to the evidence of the two witnesses i.e. P.W. No.2 Wamanrao and P.W. No.4 Venutai who have identified the present appellant as the person who gave them some medicine which caused them to fall unconscious and thereafter he robbed them of their ornaments.

18. I now propose considering the second submission raised by Ms. Udeshi, namely :

The offence committed by the appellant would not fall in the ambit of Section 328 of I.P.C. because prosecution has failed to adduce evidence to the effect that any poison was administered to P.W.2 Wamanrao and P.W.4 Venutai.

In order to appreciate this contention, it would be necessary to advert to the provisions of Section 328. Section 328, Indian Penal Code reads thus :

"Whoever administers to or causes to be taken by any poison any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under Section 328, Indian Penal Code ;

(i) Some person should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing; and

(ii) The intention of the person mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person that the result of the act was likely to cause hurt to the concerned person.

Both these elements should exist conjunctively. Then and then alone would the offence be complete and the person as the case be, would be guilty of the offence contained in this section.

An analysis of the provisions contained in the section 328 exposes the fallacy of the contention made on behalf of the appellant that in order to constitute an offence under Section 328 of Indian Penal Code, it is incumbent that some evidence should be led by the prosecution to prove that any poison was administered to the victim. The language of the section clearly shows that the act of administering any stupefying or unwholesome drug with the intention to cause hurt to a person or with intention to commit or to facilitate commission of an offence or knowing it to be likely that hurt would be caused, would also fall within the mischief of the section.

19. In the instant case, it appears from the evidence of P.W.2 Wamanrao and P.W.4 Venutai that some stupefying or unwholesome drug was given by the appellant to them with intention to commit theft of their ornaments. The evidence of P.W.5 Shrawan also shows that his brother and brother's wife were unconscious, hence he took both of them to Government Hospital, Pusad from there they were referred to Government Hospital at Yavatmal. After being shifted to Yavatmal on the next day, they regained consciousness. The evidence of P.W.1 Dr. Narayan Puranik, who was attached to the Government Hospital at Yavatmal, shows that one Wamanrao Shirnar and Venu Waman Shirnar were admitted to the Hospital on 12-11-1998 as a case of sedative poisoning. He has stated that on admission when he checked their general condition it was moderate. Ms. Udeshi has submitted that there is no evidence to show that any poison or sedative was actually administered to P.W.2 Wamanrao and P.W.4 Venutai. The learned counsel for the appellant has made much of the fact that no poison has been detected. The trial Court has dealt with that situation. The fact remains that witnesses Wamanrao & Venutai became unconscious only after the medicine in the form of powder added into water was administered to them by the appellant. It is clinchingly established that they became unconscious and then they were removed to the hospital and when they regained consciousness they noticed that the ornaments on their persons were missing. Therefore, from the medical evidence on record, it is established that whatever medicine the appellant administered to the victims, the effect was that the victims fell unconscious. Thus, detection of poisonous substance and absence of the same in the vomit or even absence of vomiting is of no consequence when in fact it is found that unconsciousness of the victim was the result of administering medicine by the appellant. Therefore, the offence u/s.328 of the Indian Penal Code is clinchingly brought home to the accused and the trial Court has rightly held him guilty for the offence. The trial Court is also right in holding him guilty for the offence u/s.380 of the Indian Penal Code. Looking to the evidence of P.W.1, P.W.2, P.W.4 and P.W.5 there can be no doubt in my mind that the applicant had administered a stupefying or unwholesome drug to P.W.2 and P.W.4 and that the said drug was administered with the intention to commit theft of their ornaments.

20. I now propose taking up the third and final contention canvassed by Ms. Udeshi that the sentence awarded to the appellant errs on the side of undue severity and warrants to be reduced. I regret that I also find it to be devoid of any merit.

A simple couple, in a planned and calculated manner by playing on the emotional sentiments of this couple i.e. taking advantage of the fact that they were childless, were administered some stupefying or unwholesome drug on false pretext. Both P.W.2 Wamanrao and P.W.4 Venutai reposed trust and confidence in the appellant. They believed that due to his treatment they would beget a child. However, making use of this lack of a child in a life of this couple, the appellant played on their feelings and got them to consume a stupefying or unwholesome drug. He pretended that the said drug would help them to beget a child. The couple who was unaware of the guile and cunningness of human nature fell prey to this trap and consumed medicine given to them by the appellant. In such a manner the appellant took disadvantage of this couple. A person guilty of performing such a depraved act does not deserve any sympathy. If the sentence of such persons is reduced, it would be a case of misplaced sympathy resulting in the society losing confidence and faith in our criminal justice delivery system.

For the aforesaid reasons, I am not inclined to reduce the sentence of the appellant and reject the third contention canvassed by Ms. Udeshi.

21. The fall out from the above discussion is that there is no merit in this appeal. Accordingly, I dismiss the same.

The appellant is in jail, he shall serve out the remaining part of his sentence.

22. Before parting with this judgment, I wish to place on record my appreciation for the way in which Ms. Udeshi conducted this matter. She was thoroughly prepared with the matter and has very ably assisted the Court. So also Mr. Mandpe, learned A.P.P. has very ably assisted the Court.

23. Ms. Udeshi, learned Advocate, was appointed from the Legal Aid Panel to defend the case. Fees of Ms. Udeshi, Advocate is quantified at Rs.2000/-.

Appeal dismissed.