Criminal Revision Application No. 213 of 2009

5th November, 2012

Petitioner Counsel: Mr. B.N. MAGAR
Respondent Counsel: Mr. N.R. SHAIKH

Cases Cited:
Dharman @ Dharmaraj Vs. State, 2011-TLMAD-0-2344 [Para 8]

JUDGMENT

JUDGMENT :- The revision is filed against judgment and order of Criminal Appeal No. 12/2005, which was pending in the Court of Additional Sessions Judge, Hingoli. The appeal was filed to challenge the decision of Ad-hoc Assistant Sessions Judge, Hingoli given in S.T. No. 55/2004. The Assistant Sessions Judge has convicted and sentenced the appellant for offence punishable under section 394 r/w. 34 of Indian Penal Code. This decision is confirmed in appeal. During the pendency of the appeal before the Sessions Court, the appellant No. 2 died. Both the sides are heard. The original papers are perused by this Court.

2. The papers show that the incident took place on 22.7.2004 at about 9.00 p.m. On that day, complainant Ambadas had gone to village Pankanergaon for making some purchase in weekly bazar. He had taken with him the amount of Rs. 5500/-. From this village, he was returning to his village Sengaon. He travelled in a jeep up to Khairkheda-pati and there he alighted from the jeep. From this spot, he was to walk the remaining distance. He has made allegations that both the accused, who were known to him, came there and they first pelted stones at him and then they assaulted him and forcibly took the amount of Rs. 5,000/-, which was with him. It is his case that he had already spent amount of Rs. 500/- for making some purchases.

3. It is the case of complainant that he started shouting and after that, some persons of Sengaon like Shamrao and Shivaji came there. He disclosed the incident to them. These persons called the wife of the complainant to the spot. The wife took the complainant to Risod Hospital. From there, the complainant was shifted to Sengaon Government Hospital by police. His report was recorded in Sengaon Hospital and on the basis of this report, crime at C.R.No. 50/2004 came to be registered in Sengaon Police Station for offence punishable under section 394 of I.P.C. at about 3.00 hours of 23.7.2004.

4. Police collected M.L.C. and it showed that complainant had sustained atleast two fracture injuries. Police visited the spot and they prepared the spot panchanama. Some blood was found on the spot, but nothing was taken over from the spot. Both the accused came to be arrested on 23.7.2004 itself. Accused No. 1 - Vishwanath, present petitioner, gave statement under section 27 of the Evidence Act to police on 27.7.2004. He then took police and panchas to his house and from there, he produced the cash amount of Rs. 2500/-. Similar statement was given by the deceased accused on 28.7.2004 and he also produced the cash amount of Rs. 2500/- from his house. Separate panchanamas came to be drawn in respect of these incidents.

5. Police recorded statements of some persons, who had rushed to the spot. After completion of investigation, the chargesheet came to be filed for offence punishable under section 397 of I.P.C.

6. In the Trial Court the prosecution examined in all seven witnesses. The Trial Court convicted and sentenced both the accused for offence punishable under section 394 r/w. 34 of I.P.C. The imprisonment of four years is given to the appellant. Accused/appellant had taken the defence of total denial. The Trial Court has believed all the witnesses.

7. The complainant (PW 6), has given evidence that at about 9.00 p.m. when he was present on the spot of the incident, both the accused came there, they beat him by using stones and they forcibly took away the cash amount of Rs. 5,000/- from him. He has deposed that he shouted for help and then some persons like Shamrao, Shivaji and Sayaji came there. He has given evidence that he disclosed the incident to them. He has deposed that he sustained injuries in the incident and from this spot, his wife shifted him to Risod Hospital. He has given evidence that he was taken to Sengaon Hospital and there police recorded his report. The report at Exh. 31 is proved in his evidence and on the aforesaid contentions, this report is consistent.

8. The complainant (PW 6) has further deposed that the amount stolen included 15 currency notes of Rs. 100/- denomination, 40 currency notes of Rs. 50/- denomination, 25 currency notes of Rs. 20/- denomination and 100 currency notes of Rs. 10/- denomination. He has identified this amount in the Court and he has identified both the accused in the Court. His evidence and F.I.R., Exh. 31, show that in the previous statement i.e. the F.I.R., he had not given the denomination of the currency notes. Admittedly, after recovery of the amount, police did not call the complainant to police station and he was not shown the amount for giving him an opportunity to identify the currency notes. As the amount came to be recovered after more than four days of the incident and as there was no description given of the currency notes in the F.I.R., this improvement made by the complainant cannot be ignored. It can be said that there is exaggeration done in the evidence by the complainant.

9. In the cross examination, the complainant admitted that when he was taken to Risod hospital and doctor from Risod Hospital called the police, but he did not narrate the incident to police from Risod. He was there for more than 2 hours. M.L.C. prepared by the Risod Hospital is not produced on record. There is record of only Sengaon Hospital and Sengaon police. The history which must have been given to Risod police is important in this case as it could have been treated as first version. The absence of such record needs to be kept in mind at the time of appreciation of the evidence of the complainant.

10. The evidence of complainant (PW 6), in the cross examination, shows that the accused persons are having agricultural lands and their houses are situated in their lands. They are from Andha community. The house of sister of the complainant is in the vicinity of the houses of the accused and so the accused were known to the complainant prior to the incident. His evidence shows that he was on visiting terms with the accused. He has tried to say that he had no quarrel or dispute with the accused. These circumstances also need to be kept in mind at the time of appreciation of evidence as they create probability that the accused had no intention to rob the complainant. Suggestions are given that the complainant either fell from vehicle in motion or he had some quarrel.

11. In F.I.R. the complainant had informed that he had made some purchase and he had spent Rs. 500/- in Bazar, but in the cross examination, he deposed that he did not make any purchase on that day. This circumstance, inconsistency, is also important. He again tried to say that he had purchased some articles like clothes, grossery articles. The evidence of the two witnesses, who had allegedly reached to the spot after hearing shouting of the complainant, does not show that there was any bag or any article with the complainant. If the number of currency notes which are shown to be recovered is considered, it can be said that the complainant was allegedly having 180 currency notes. In view of this circumstance, it was necessary for him to say as to how and where he had kept these currency notes. It was necessary for him, to explain as to what happened to the articles, which were purchased by him. The circumstance that he is very specific on the amount viz. Rs. 5,000/- lost by him creates doubt. If there was the intention to rob the complainant, the thieves would have taken all the amount from him and so this circumstance also creates doubt about the version of the complainant about taking away of Rs. 5,000/- from him. He is not specific as to whether accused No. 1 or accused No. 2 took the amount from him.

12. In the cross examination, the description of the incident is given by him and he has tried to say that the incident was going on for about 15 minutes. According to him, first, the stones were pelted at him from distance, then accused came close to him, one of the accused sat on his chest and after that also stones were used for beating him. There is no map of scene of offence to show that the location of the houses of the witnesses from this spot. If the complainant had raised shouts for calling for help, during these 15 minutes somebody would have certainly reached the spot. It was only 9.00 p.m. and the incident took place in the square, where two major roads cross each other. The other witnesses have not given evidence that they had any glimpses of the accused when they reached the spot after hearing the shouting of the complainant. The evidence of the other witnesses show that they reached the spot within few minutes after hearing shouts of the complainant. These circumstances also create doubt about the case of robbery. Though in the spot panchanama, it is shown that there was some blood on the road, nothing was collected from the spot of offence. All these circumstances create reasonable doubt about the allegation that there was the robbery.

13. Shamrao (PW 1) has given evidence that incident took place at about 8.00 to 9.00 p.m. He has deposed that after hearing shouts he rushed to the spot and when he rushed there, he found that Ambadas was lying on the road. He has given evidence that Ambadas disclosed the incident to him. No material contradiction is brought on record in the cross examination of this witness in relation to his previous statement. His statement was recorded on 23rd itself. Shivaji (PW 2) has given similar evidence. The names of both these witnesses were mentioned in the F.I.R. by the complainant. It can be said that the witnesses noticed that Ambadas was lying in the injured condition on the road between 8.00 p.m. and 9.00 p.m.

14. Dr. Balasaheb (PW 4) was attached to Rural Hospital at Sengaon. He has given evidence that he examined complainant at about 2.25 a.m. on 23.7.2004. He found three C.L.Ws., which were on nose, mandible and right arm. He found contusion over right ribs and he found contusion over end of right humerus. He has given evidence that he noticed fracture of right mandible and right supracondule region. The X-ray in respect of these injuries were taken. Doctor has given evidence that such injuries can be caused due to hard and blunt object like stones. The injury certificate prepared by doctor is proved as Exh. 26. It is already observed that the record prepared by Risod Hospital is not produced. The evidence of this doctor shows that history of assault was given. He has given admission that if a person falls from vehicle in motion, such injuries can be caused. It can be said that the evidence of the doctor is consistent with the evidence of the complainant.

15. Mohan (PW 5), the panch witness, has given evidence that on 27.7.2004 appellant Vishwanath gave statement to police in his presence and on the basis of his statement, the amount of Rs. 2500/- came to be recovered from the house of this accused. He has given description of currency notes. The memorandum of statement is proved as Exh. 28-A and panchanama of seizure is proved as Exh. 28-B.

16. Mohan (PW 5) has given similar evidence against the deceased accused Temdeo. He has given evidence that on 28.7.2004 Temdeo gave similar statement. In a similar manner, the amount of Rs. 2500/- was recovered from the house of Temdeo. The memorandum statement of Temdeo is proved as Exh.29-A and panchanama of seizure is proved as Exh. 29-B.

17. The evidence on record shows that the houses of the accused Nos. 1 and 2 are adjacent to each other. The evidence of the panch witness shows that on 27th itself he has seen both the accused in police station. The witnesses tried to say that in the vicinity of the house of Vishwanath, there is no other house. In the cross examination, he has admitted that on the next day i.e. on 28th police obtained some signatures in respect of the incident of seizure of money at the instance of accused No.1. This circumstance and particularly, circumstance of late recovery of the cash amount creates doubt about the evidence of recovery. In any case, the question of identity of stolen property was involved and so this Court holds that the evidence regarding the recovery of cash amount cannot be given much weight. In the year 2004 anybody could possess the amount of Rs. 2500/-. There is smell of concoction in respect of the evidence with regard to the discovery of the stolen property. There is no need to discuss the evidence of Investigating Officer (PW 7) in this regard. There is also no need to discuss the evidence on spot panchanama and evidence of Ramrao (PW 3).

18. The discussion made above shows that there is clear possibility that on that day, the complainant was assaulted by the appellants and some injuries were caused. This court holds that benefit of doubt needs to be given in respect of the allegations that the complainant was robbed of the amount of Rs.5,000/-. On this point, one case reported as 2011-TLMAD-0-2344 Madras High Court [Dharman @ Dharmaraj Vs. State] was cited. The facts and circumstances of each and every case are always different. This Court has come to the conclusion that the evidence on record is sufficient to prove that the appellant had assaulted the complainant on that day and the injuries were caused to him. The Trial Court convicted the accused for offence punishable under section 394 of I.P.C., though they were charged for offence punishable under section 397 of I.P.C. If the taking away of the money was also proved and as grievous injuries were caused, the conviction for offence punishable under section 397 was possible. In view of these circumstances, this Court holds that the conviction, sentence can be given of the offence for causing hurt or at the most, of causing grievous hurt, but not by dangerous weapon.

19. The incident took place in the year 2004. The age of the petitioner was given as 50 years at the relevant time. The petitioner was behind bar for more than one month. In view of these circumstances, this Court holds that sentencing the petitioner Vishwanath with imprisonment for the period already undergone will be just and sufficient. So the order.

ORDER

(i) The revision is allowed.

(ii) The judgments and orders of S.T. No. 55/2004 given by the Ad-hoc Assistant Sessions Judge, Hingoli and Criminal Appeal No.12/2005 given by Sessions Judge, Hingoli are hereby modified. The conviction for offence under section 394 r/w. 34 of I.P.C. is set aside. The appellant stands acquitted of the offence punishable under section 394 r/w. 34 of I.P.C.

(iii) The revision petitioner is convicted for the offence of causing hurt to the complainant and he is sentenced to suffer imprisonment for the period already undergone.

(iv) The other part of the operative order of the Trial Court is confirmed.

Revision Application allowed.