2011 ALL MR (Cri) 1069
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.S. SHINDE, J.

Shaikh Khaled S/O. Shaikh Babamiyan Vs. State Of Maharashtra

Criminal Appeal No.88 of 2000

7th March, 2011

Petitioner Counsel: Mrs. A. N. ANSARI
Respondent Counsel: Mr. V. G. SHELKE

Penal Code (1860), Ss.393, 353, 326 - Attempt to commit robbery, assault on public servant and grievous hurt - Appeal against conviction - Prosecution case that appellant accused along with others attempted to rob complainant and inflicted knife blows on police constable who tried to arrest him - Evidence of complainant unshattered and corroborated with evidence of police officers about manner in which incident took place - Injured Police Constable knew accused since he was involved in other offences also - Evidence showing that accused wrongfully restrained the complainant and attempted to rob him at the point of knife - Evidence of Medical Officer supports prosecution case about assault by knife on police constable - Conviction of appellant accused for offences punishable under Ss.393, 353 and 326 is proper. (Paras 15, 16, 17, 18)

JUDGMENT

JUDGMENT:- The appeal is filed by the appellant-accused, challenging the judgment and order dated 30-10-1999 passed by the learned Sessions Judge, Beed in Sessions Case No.99 of 1999.

2. The prosecution case, in nutshell, is as under:

The complainant (P.W.1) Ramprasad Raut, resident of Pali, was serving at Sanskar Vidyalaya, Beed since 8/10 years prior to the incident which took place on 27-11-1992. The complainant Ramprasad Raut used to attend his office daily at Beed from his native place on bicycle in the morning and used to leave the office at about 200 p.m.

On the day of incident, he accordingly after attending his office left the office at about 3-30 p.m. for proceeding to his village Pali on bicycle which is on Beed Solapur high way, and accordingly, on the way to Pali from Beed, he reached near the office of Dudh dairy where there is a bridge on Beed Solapur road at about 2/45 p.m., approximately i.e. on 27-11-1992. When he reached near the bridge on bicycle, some 4 robbers restrained the complainant Ramprasad Raut, then they started taking search, two of them caught hold him, the robbers then started extending threats at the point of knife and insisting to give amount, complainant Ramprasad Raut then raised shouts.

P.W.2 Police Constable Dilip Nanekar and P.W.6 Sukhdeo Landge, Police Head Constable, who were attached to police station, Beed Rural, had gone to field of one Goswami which is by the side of Beed Solapur road and at some distance from government Dudh dairy, where the above said incident took place for investigation in Crime No.234/92 registered for the offence punishable under Section 379 of the Indian Penal Code, of theft of two cows from cattle shed and accordingly, P.W. 2 police constable and P.W.6 Police head constable had gone to the field of Goswami at about 100 p.m. on 27-11-1992 and were busy in preparing spot panchanama at the field of Goswami in the above said crime No.234/1992.

P.C. P.W.2 Nanekar and P.H.C. Sukhdeo Landge, P.W.6 after hearing the shouts raised by Ramprasad Raut in the present case, started proceeding towards bridge where the incident took place on motor cycle and the robbers after seeing that Nanekar and the P.W. 6 coming on motor cycle left the place. Two of them started running towards Beed. One of them, went running towards a shed by the side of Dudh dairy and one fled away towards eastern side. As those four persons started running and therefore, P.C. Nanekar and H.C. Tulshiram Landge then started chasing those persons, however, as those persons started running in agricultural field by leaving road and therefore, P.C., P.W. 2 Nanekar stopped his motor cycle and thereafter, went chasing towards the person who had gone towards the shed near Dudh Dairy with a view to arrest him. He accordingly went near the shed and when he was trying to arrest the said person who hide himself in the shed gave one blow with knife on the abdomen of P.W.2, Dilip Nanekar and thereafter fled away from the said place.

P.W.1, Ramprasad Raut and Sukhdeo Landge, P.W.6 thereafter immediately went towards shed where Nanekar sustained injuries with the blow given by the said robber and on inquiry by Ramprasad and Sukhdeo Landge, P.W. 2 Nanekar told that the said robber was Khaled, the present accused No.2, P.W.1 and 6 then took Dilip Nanekar, P.W.2 to Civil Hospital, Beed and thereafter, P.W.1 then came in police station Beed Rural approximately at 4-00 p.m. P.H.C. Haribhau Rakh who was on duty in the police station as P.S.O. recorded statement of Ramprasad Raut and accordingly registered crime No.236/92 for the offence punishable under Section 393, 326 and 353 of the Indian Penal Code. The investigation of the said crime was then handed over to P.S.I., Kadam attached to police station Beed Rural.

P.S.I. Kadam during the course of investigation visited the place of incident, called panchas, prepared spot panchanama which is proved at Exh.33, even during the course of investigation, he arrested accused No.1 Shaikh Salim Shaikh Ahmed on 24-12-1992. Then accused No.2 was also arrested by the same time, however, not in present crime but under National Security Act and reference to that effect is given in charge-sheet. The P.S.I. thereafter completing investigation, submitted charge-sheet before J.M.F.C. Beed on 24-04-1993 for the offence punishable under Section 393, 353, 326, 307 read with section 34 of the Indian Penal Code.

P.W.2 Nanekar was, as referred above taken to Civil Hospital, Beed on 27-11-1992 on account of injury sustained by him on his abdomen, P.W.4 Dr. Kishor Shirpurkar was on duty as D.M.O. who examined Nanekar, gave treatment to the said injured and issued certificate to that effect.

Though the charge-sheet was filed before the J.M.F.C. Beed, the matter remained pending for a considerable long time as the accused thereafter remained absent, even though N.B.W. was issued from time to time, presence of accused could not be secured. C.J.M. thereafter by order dated 31-05-1999 below Exh. 1 committed the case to the Court of Sessions as the offence under Section 307 read with section 34 of the Indian Penal Code being exclusively triable by the Court of Sessions, without committing the accused, however, he referred that the accused are absent and N.B.W. is issued.

From the papers on record, it is further seen that in pursuance of N.B.W. issued, report is submitted by police that both the accused are in jail in some other crime and accordingly a production warrant was issued to the jail authorities. Those two accused were accordingly produced before Sessions Court on 16-07-1999 and accordingly the present accused were taken in custody, in the present case since 16-07-1999.

3. Learned trial Court framed charge against the accused on 30-07-1999 as per Exh. 12 for the offence punishable under Section 393, 353, 324 and 307 read with Section 34 of the Indian Penal Code. The same was read over and explained to the accused. However, they pleaded not guilty and claimed to be tried. According to them, they being falsely involved in the present case.

4. The prosecution to connect the present accused in the above said crime examined six witnesses, P.W.1 is Ramprasad Raut, his evidence is at Exh.18 and through his evidence, the report given by him on the basis of this crime is registered is got proved, same is at Exh.19. P.W.2 is Dilip Nanekar, his evidence is at Exh.26. P.W.3 is Haribhau Rakh, P.H.C. who was on duty at police station Beed as P.S.O. who recorded statement of P.W.1 and registered crime, his evidence is at Exh.27. P.W. 4 is Dr. Kishor Shirpurkar, a Medical Officer attached to Civil Hospital, Beed who examined P.W.2 Dilip Nanekar on 27-11-1992, evidence of Doctor is at Exh.30 while the certificate issued by him in respect of injury sustained by Nanekar is at Exh.31. P.W.5 is Tulshiram Raut, a panch witness as regards place of incident, his evidence is at Exh.32 and the panchanama is got proved through the evidence of this witness, same is at Exh. 33 while P.W. 6 is Sukhdeo Maruti Landge, H.C. who had gone for investigation alongwith P.W. 2 Nanekar in Crime No.234/92 at the field of Goswami by the side of Beed Solapur road. Evidence of this witness is at Exh. 36. The prosecution though made some attempt to examine I.O., P.S.I. Kadam, however, it seems that on account of his retirement, his whereabouts could not be obtained and therefore, the prosecution closed evidence.

5. The Sessions Court framed the points for determination and after recording the evidence and hearing the parties, convicted appellant for the offence punishable under Section 393 read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. for three years and to pay fine of Rs.500/-, in default R.I. for three months. He is also convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer R.I. for one year and further convicted for the offence punishable under Section 353 of the Indian Penal Code and sentenced to suffer R.I. for one year.

6. The learned Counsel for the appellant submitted that the alleged incident, according to the prosecution, had taken place on crowded road i.e. Beed Manjarsumbha road and therefore, it is not possible that the appellants-accused have committed robbery on the busy road. It is further submitted that the F.I.R. was lodged against four unknown persons, however, only the appellant and another co-accused is tried and convicted. The prosecution has not explained what happened to other two unknown persons, who are also involved in the alleged offence. Learned Counsel further submitted that the complainant himself has stated that he is not previously knowing the accused-appellant and therefore,identification parade was required to be conducted by the prosecution. Counsel further submitted that one Adinath, whose name is stated by the complainant, is not examined by the prosecution. There are material omissions in the evidence of prosecution witnesses. There are no any injuries found on the person of complainant and therefore, the prosecution story that there was attempt to robbery by the appellant alongwith other three accused cannot be believed. The complainant himself stated that there was scuffle between himself and accused persons. However, complainant has not sustained any injury or there is nothing to show that there was scuffle between the complainant and accused-appellant. Counsel further submits that merely because P.W.2 stated that he knows the appellant even prior to the incident and therefore, without conducting any identification parade, the accused-appellant falsely implicated in the alleged offence. Learned Counsel invited my attention to the evidence of prosecution witnesses and submitted that the evidence suffers from full of contradictions, omissions and improvements and therefore, the appellant-accused deserves to be acquitted.

Learned Counsel further invited my attention to the grounds taken in appeal memo, which are as under.

(1) At the outset, it is to be noted that the Investigation Officer has not been examined in the matter at all, as it clear from the records.

(2) No offence under Section 393 as such, is made out against the present appellant. The complainant PW No.1 has never given the name of the accused persons. On the contrary he has stated 4 unknown persons has tried to rob him.

(3) If the evidence of PW No.1 is seen no specific allegations is made against the appellant. It is not clear on the record about involvement of appellant in crime, so far as offence u/s.393 is concern.

(4) All the while PW No.1 has stated, 2 persons have caught hold of him, and other started taking search and one of them insisting for the amount at the point of night. PW No.1 has never specified any overt act of any accused. In absence of the same participation of appellant in the offence is not proved at all.

(5) It is the case of the prosecution that 4 persons were involved, however, what happen to other is not on the record.

(6) It is clear case from the record that P.W. No.1 was not knowing to any accused and he did not mention the names of any of them. However, it is the case of prosecution that appellant has been identified by PW No.2 Dilip Nanekar and Sukhdeo Landge, who are police constables, and Head Constable respectively. It is submitted that identification of these two persons became more doubtful. When it is stated by them that appellant is history sheeter and on the basis of the same false involvement of appellant cannot be overruled.

(7) When it is a matter of record that complainant P.W. No.1 was not knowing any of the accused, Identification of accused was an inevitable evidence, however no identification parade has been taken place at all, and only on the identification of police personnel the case has been proceeded.

(8) The offence u/s.353 is also not made out against the appellant, as it is nothing on record to show that appellant is having knowledge of the fact that PW No.2 was a public servant and was on his duty. In absence of this no offence u/s.353 is made out against the appellant.

(9) When complainant was not knowing the accused persons and no identification parade has been done, the learned Lower Court ought to have scrutinized the evidence of P.W. No.2 and P.W.6 with more precaution, for the reason that it is the case of P.W. No.2 that appellant is history sheeter.

(10) The point requires consideration is that there is no recovery at the instance of appellant, neither of property robbed, nor of the knife or any other thing.

(11) Reading of Judgment do not makes out any case or any offence has made out against the present appellant, and conviction of appellant is unjustifiable and required to be quashed and set aside by this Honourable Court.

(12) There is nothing on record to show that the appellant was sharing intention with the other accused persons for committing the offence u/s.393 and hence conviction of the appellant for section 393 is unjustifiable.

Therefore, relying on the grounds in the appeal memo, and oral submissions, Counsel for the appellant would submit that, the prosecution has utterly failed to establish these facts and therefore, benefit of doubt should go to the appellant-accused.

7. On the other hand, learned A.P.P. submitted that, the accused-appellant being known to the prosecution witnesses i.e. P.W.2 and P.W.6, it was not necessary to carry out identification parade. It has come on record that the accused appellant Shaikh Khaled Shaikh Babamiyan is also involved in other offence and also another accused namely Shaikh Salim is also involved in other offence and therefore, Police Officer knew them even prior to the incident in this case. Therefore, learned A.P.P. relying on the evidence/reasons recorded by the Sessions Judge, would submit that the appeal is devoid of any merits and same deserves to be dismissed.

8. I have given due consideration to the rival submission and also perused the evidence brought on record by the prosecution. P.W.1 is Ramprasad Raut, his evidence is at Exh.18 and through his evidence, the report given by him on the basis of this crime is registered is got proved, same is at Exh.19. P.W.2 is Dilip Nanekar, his evidence is at Exh.26. P.W.3 is Haribhau Rakh, P.H.C. who was on duty at police station Beed as P.S.O. who recorded statement of P.W.1 and registered crime, his evidence is at Exh.27. P.W. 4 is Dr. Kishor Shirpurkar, a Medical Officer attached to Civil Hospital, Beed who examined P.W.2 Dilip Nanekar on 27-11-1992, evidence of Doctor is at Exh.30. The evidence of these witnesses and as regards place of incident is relevant in the case in hand.

9. Complainant i.e. P.W.1, Ramprasad Tulshiram Raut has stated in his examination-in-chief that he know the accused before the Court. Since last 11 years, he is serving as a Peon at Sanskar Vidyalaya, Pali. Pali is native place and he used to attend his duty from Pali on bicycle. The incident took place 7 years back. On the day of incident as his duty hours were finished at about 1-00 p.m. and therefore, he started to village Pali on bicycle. He might have left Beed on that day at about 2-30 p.m. on way to Pali after crossing office of Dudh dairy, Beed there is bridge and when while proceeding towards Pali he came near bridge. Four persons then asked him about his residence and about his identity. Out of those persons, two persons caught hold him and they took his personal search and one of them shown knife and pointed towards his neck. I then raised shouts and after hearing shouts raised by him, some persons gathered there including two police constables. Those persons after seeing the constables started running. Police constables then chased those persons who caught hold him. Out of those four, two persons ran away towards Barshi Naka. One of them hide himself in a shed and 4th ran away towards eastern side. The police constables went near the shed and tried to caught hold the person who got himself hide near the shed, however, the said person gave blow to the police constable. Thereafter, complainant went towards shed. By that time, said person again ran away from the said place. Name of the police constable who received assault was Nanekar. He asked Nanekar in respect of the person who gave blow to him and he disclosed the name of the said person as Khaled. Another Police Constable was with Police Constable Nanekar. Thereafter, the complainant made report to the police station. His statement was recorded by police as per his version. He identified the report shown to him before the Court and contents of complaint and his signature on the complaint.

10. On careful perusal of cross-examination of this witness, nothing significant or substantial is brought on record to disbelieve his version in examination-in-chief. Therefore, the evidence of P.W.1 remained intact.

11. P.W.2 Dilip Nanekar in his examination-in-chief stated that, during the period from 1989 to 1995 he was attached to police station, Beed Rural as a constable. During the period, one Landge was head constable and attached to Police Station Beed Rural. On the day of incident i.e. on 27-11-1992 he himself and Police Head Constable Landge were proceeding towards Dudh dairy in investigation of Crime No.234/92 at about 1-00 p.m. They were preparing panchanama in the above said crime, at that time, at about 2-45 p.m. near Barshi road. They have seen some four persons had attacked one person and there was scuffle between them, and after hearing shouts, he went there. The complainant was coming towards Dudh Dairy and accordingly, this witness asked the complainant what happened. The complainant told him his name as Ramchandra Raut and thereafter, four persons attacked him and by extending threats insisted to give amount. This witness and Landge then started chasing those four persons who attacked complainant with knife. After crossing some distance and as those persons were running in the field, this witness got down from motor cycle and started chasing those persons. Out of which, one started running towards Ambedkar Nagar, two towards Imampur and one entered in one shed by the side of Dudh Dairy. Then P.W.2 went towards shed to search the said person and with the help of stick in his hand pushed the door at the same time, the person who was there gave blow with knife on abdomen. He identified the said person as he was Khaled when he attacked him with knife. Landge, P.H.C. came there. He thereafter took him to Civil Hospital for treatment. He identified accused No.2 before the Court is same Khaled, who had attacked this witness with knife. In his cross-examination, he has stated that though he received injuries with knife from accused Khaled, he was conscious thereafter. The is also evidence of other prosecution witnesses who support the prosecution case and version of the complainant in his complaint.

12. P.W. 3 P.H.C. Haribhau Rakh has stated that at the relevant time, he was attached to police station Beed Rural as Head Constable. He was holding charge on 27-11-1992 from 2-00 p.m. to 8-00 p.m. and was working as P.S.O. On that day, complainant had been to police station and he lodged report at 4-00 p.m. He recorded his statement and he identified the contents of the said statement and his signature before the Court. He has further stated that on the basis of report received from the complainant, he registered Crime No.236/1992 for the offence under Section 393, 326, 353 of the Indian Penal Code. His evidence in the cross-examination is not shattered in any way, in any manner.

13. The evidence of P.W.4 Dr. Kishor Shirpurkar, Medical Officer is at Exhibit-30. In his examination-in-chief, he stated that he was on duty on 27-11-1992. One injured Dilip Abarao Nanekar had been to the hospital at about 300 p.m. He himself appeared before him in the hospital. He examined him and noticed following injury.

"Incised wound on anterior abdominal wall left side of linia-alba above lambilicas size 2 inch x 1/2 inch, having shape of injury is eliptical nature, margins were sharp and cleancut, direction if injury is vertical, bleeding was present actively. Age of the injury within 6 hours prior to his examination, and according to him, the weapon used for causing the said injury may be sharp. Nature of injury is simple."

Accordingly, this witness has issued certificate. He identified the contents of the certificate and also his signature, his handwriting. He further stated that he had taken entry in the Medico-Legal Register maintained in the hospital in respect of injury sustained by Dilip Nanekar and the certificate is issued on the basis of entries in the Medico-Legal Register. The injury on the person of Dilip Nanekar is possible by weapon knife. He is in a position to identify Dilip Nanekar to whom he examined on 27-11-1992. He also mentioned identification marks in the Medico-Legal Register. In his cross-examination, nothing has been brought on record by the defence, so as to disbelieve his version in examination-in-chief.

Panchanama Exhibit-33 is proved by the evidence of P.W.5 Tulshiram Raut. The said panchanama is prepared on the place of incident.

14. The evidence of P.W.6, Sukhdeo Maruti Landge is at Exhibit-36. He was attached to Police Station Beed Rural, as Head Constable, in the year 1992. He carried out investigation of Crime No.234/92. He was accompanied Police Constable Dilip Nanekar. He has also stated in detail about the incident taken place on 27-11-1992. His evidence does corroborates in material particulars to the evidence of P.W.2 Dilip Nanekar, police constable. Nothing has been brought in the cross-examination by the defence so as to disbelieve his evidence.

15. Therefore, the evidence of complainant is unshattered. The evidence of P.W.2, Dilip Nanekar is corroborated by the evidence of P.W.6 P.H.C. Sukhdeo Landge about the manner, in which the incident had taken place and how the accused persons started running away from the spot of incident and how the accused Shaikh Khaled assaulted by knife to P.W.2 Dilip Nanekar. P.W.2 Dilip Nanekar and P.W.6 Sukhdeo Landge already knew the accused persons and since it has come on record, during the course of investigation carried out by P.S.I., Kadam that he arrested accused Shaikh Salim Shaik Ahmed on 24-12-1992 and accused No.2 Shaikh Khaled Shaikh Babamiyan was also arrested by same time, however, not in the present crime but under National Security Act and reference to that effect is given in charge-sheet. Therefore, it is abundantly clear that accused persons were involved in other offence also and that is why, P.W. Nos.2 and 6 and other police officers knew them.

16. The learned Sessions Judge, Beed upon appreciation of evidence brought on record, found that the accused-appellant attempted to commit robbery. In that regard, the discussion is in Para. Nos.20 to 22 of the judgment. The Sessions Judge held that considering the evidence of P.W.No.1 coupled with the evidence of P.W. Nos.2 and 6 those who have stated in their evidence about the identity of these two persons as being the robbers as these two police officers were knowing both the accused with their name and this aspect is sufficiently clear on perusal of evidence of P.W.6, Landge where he stated that accused Nos.1 and 2 started running from the place of incident after seeing P.W.2 and 6 and therefore, considering the evidence of P.W.1 read together with evidence of P.W.2 and 6 and other evidence on record, accused Shaikh Salim Shaikh Ahmed and Shaikh Khaled Shaikh Babamiyan committed offence punishable under Section 393 read with Section 34 of the Indian Penal Code. The accused wrongfully restrained the complainant and attempted to rob him at the point of knife. Further evidence of P.W.1 makes it clear that accused Salim pelted stones which hit on his back and therefore, Sessions Judge concluded that the appellant-accused committed offence punishable under Section 393 read with Section 34 of the Indian Penal Code.

17. On independent scrutiny of evidence, I find that the findings and reasons recorded by the Sessions Court are in consonance with the evidence brought on record by the prosecution. Therefore, in my opinion, the appellant-accused is rightly convicted the offence alleged against him.

It has come on record that the appellant Shaikh Khaled has assaulted P.W.2 Nanekar by knife and Nanekar sustained injury because of his assault. Therefore, he is convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer R.I. for one year. The evidence of Medical Officer, P.W.4 supports the prosecution case about the assault by knife on P.W.2. Therefore, in my opinion, accused-appellant Shaikh Khaled Shaikh Babamiyan, is rightly convicted for the offence punishable under Section 324 of the Indian Penal Code.

18. In the result, the appeal stands dismissed. Since this Court has confirmed the judgment and order dated 30-10-1999 passed by the Sessions Judge, Beed in Sessions Case No.99 of 1999 and dismissed the appeal of the appellant, the appellant-accused should surrender his bail for undergoing remaining part of the sentence. The Superintendent of Police, Beed to ensure that the accused-appellant Shaikh Khaled Shaikh Babamiyan surrenders his bail to undergo remaining part of sentence, if any. It is left open to police authorities to verify from the record for how long accused-appellant Shaikh Khaled Shaikh Babamiyan was in jail to undergo sentence, as ordered by the learned Sessions Judge, Beed in Sessions Case No.99 of 1999 on 30-10-1999. Depending upon the verification of actual period undergone, if police authorities found that he has not completed sentence, in that case, they have to send him for undergoing remaining part of sentence, in jail. It is needless to state that if he has already undergone period of sentence ordered by the learned Sessions Judge, in that case, he need not be sent in jail.

Appeal dismissed.