Ramgopal through LRs vs Smt. Jashoda Bai through LRs

This Criminal Appeal is directed against judgment and order dated 31.07.1998 rendered by Additional Sessions Judge, Agar, Distt. Shajapur in S.T. No.27/1995, whereby the appellants have been convicted under Section 397 of IPC and sentenced to undergo 7 years R.I.

Prosecution story, briefly stated, is that on 12.08.1994 Ratan (P.W.4), resident of Village Mhow Khera, Chakbada Bid, Police Station kanad, Distt. Shajapur returned to his village after sale of blankets in Karnataka. He was having 55,000/- rupees cash in his house. In the intervening night of 12-13th August 1994 some miscreants knocked at his door. Though Ratan (P.W.4) feeling apprehensive did not open the door, however, some of the miscreants climbed up to the roof of his house and by cutting the wooden shaft and removing roof tiles 2-3 persons entered into his house and opened the door from inside.

Allegedly, thereafter, some 15-20 miscreants barged into the house of Ratan (P.w.4), who was there with his wife Sitabai (P.W.5), and started assaulting Ratan (P.W.4) and Sitabai (P.W.5) with ''Lathi'', stick and ''Falia'' etc. Ratan (P.W.4) and Sitabai (P.W.5) could identify appellant Kalu Banjara and Dulhesingh Banjara, resident of the same village were also with the miscreants. A bag in which money was lying was handed over by Ratan (P.W.4) and Sitabai (P.W.5) to Kalu and other miscreants on a demand being made by them in this regard. Thereafter, all the miscreants left the house of Ratan; Mangilal (P.W.6), real brother of Ratan, who was residing in the nearby the house also reached in the meantime to the house of Ratan (P.W.4); the miscreants also assaulted him and thereafter fled away from the spot. Mangilal went to the house of Ratan (P.W.4) and found them in an injured condition. He then proceeded to Police Station Kanad to lodge a report regarding the incident, however, FIR (Ex.P/4) could be lodged only in the morning. The investigation was set in motion. Mangilal (P.W.6), Ratan (P.W.4) and Sitabai (P.W.5) were sent for medical examination. They were examined same day i.e. 13.08.1994 at Primary Health Center, Agar by Dr. J. Atulkar, who as per Ex.P/1, P/2 and P/3 found a number of injuries respectively, on the person of Mangilal (P.W.6), Ratanlal (P.W.4) and Sitabai (P.W.5). On being advised, Ratan (P.W.4) and Sitabai (P.W.5) were sent for X-Ray examination. Dr. Gopal Sahay (P.W.8), vide report Ex.P/5 found fracture in the scapula region of Ratan (P.W.4), while, vide Ex.P/7 fracture on left olecranon was found on the person of Sitabai (P.W.5). The witnesses were interrogated.

After usual investigation, a charge-sheet was filed before the Court of Competent Magistrate, who in turn committed the case to the Court of Sessions from where it was made over to the Court of Additional Sessions Judge, Agar.

Charge for offence under Section 392 r/w Section 397 of IPC was framed against appellants Kalu Banjara and Dulesingh Banjara. The appellants abjured the guilt and claimed to be tried. The prosecution in support of its case examined as many as eight witnesses including Ratan (P.W.4), his wife Sitabai (P.W.5) and brother Mangilal (P.W.6). Dr. J. Atulkar (P.W.1) and Dr. Gopal Sahay (P.W.8) are Medical Officers, while Bhavsingh (P.W.7) is said to be the witness of spot map. Apart this, documents Ex.P/1 to Ex.P/10 were also marked in evidence. The appellants chose not to adduce any oral or documentary evidence, however, Ex.D/1, D/2 and D/3 respectively, police statements of Ratan (P.W.4), Sitabai (P.W.5) and Mangilal (P.W.6) were marked during their examination.

The incriminating circumstances appearing against the appellants in the prosecution evidence were brought to the notice of the appellants during their examination under Section 313 of the Cr.P.C. The appellants denied their complicity and expressed total innocence with regard to all the incriminating circumstances.

The learned trial Court on appreciation of evidence oral and documentary, vide the impugned judgment found the

appellants guilty under Section 397 of IPC and sentenced each of the appellants to seven years R.I.

In this appeal, the conviction and sentence is challenged on the ground that the learned trial Court has committed serious error in relying upon the testimony of Ratan (P.W.4), Sitabai (P.W.5) and Mangilal (P.W.6). It is submitted that as per Ratan (P.W.4), the miscreants were having their faces covered with cloth, therefore, it was not possible to identify any of them. Hence, the testimony of Ratan (P.W.4) and Sitabai (P.W.5) that during incident they had identified appellants Kalu and Dulesingh is not inspiring. It is submitted that no independent witness was examined. It is also submitted that while Sitabai (P.W.5) has deposed that the injuries were caused by ''Dharia'' , however, Ratan (P.W.4) has deposed that the injuries were caused by ''Lathi'' and that due to this anomaly testimony of these two witnesses is rendered doubtful. Lastly, it is submitted that the investigating officer was not examined before the Court, therefore, the learned trial Court ought not to have recorded the conviction. Hence, the impugned judgment is liable to be set aside.

Per contra, it is submitted by learned Public Prosecutor that the learned trial Court on elaborate appreciation of evidence on record has found the appellants guilty with regard to offence under Section 397 of IPC. It is submitted that appellants Kalu and Dulesingh are resident of same village, therefore, it would not have been at all difficult for Ratan (P.W.4)

and Sitabai (P.W.5) to identify them by their general features. It is further submitted that in view of the availability of direct testimony of Ratan (P.W.4) and Sitabai (P.W.5) which stands corroborated by medical evidence, the non-examination of investigating officer cannot be said to be fatal to the case. Lastly, it is submitted that the incident occurred in the mid-night inside the house, therefore, the presence of the independent witnesses was not possible and that Mangilal (P.W.6) has corroborated Ratan (P.W.4) and Sitabai (P.W.5) in material particulars. Thus, a prayer is made for dismissal of the appeal.

I have bestowed my careful consideration to the submissions raised at the bar and have also gone through the record. The point for consideration is whether the impugned judgment is sustainable in facts and law?

The prosecution case, primarily, depends upon the testimony of Ratan (P.W.4), his wife Sitabai (P.W.5) and Mangilal (P.W.6), who had lodged the First Information Report (Ex.P/4). Noticeably, in the alleged incident of robbery, all the three persons i.e. Ratan (P.W.4), his wife Sitabai (P.W.5) and brother Mangilal (P.W.6) had sustained injuries as testified by Dr. J. Atulkar (P.W.1), who had examined them on the next morning at Primary Health Center, Agar. Ex.P/1 to P/3 are the medical reports of Mangilal (P.W.6), Ratan (P.W.4) and Sitabai (P.W.5). As per Ex.P/1, Mangilal (P.W.6) sustained two contusions and two abrasions; Ratan (P.W.4) sustained three lacerated wounds and three abrasions, while Sitabai (P.W.5) had

sustained one lacerated wound, two contusions and three abrasions. It is not the case of the defence that the injuries are self inflicted or accidental, therefore, the version put forth by Ratan (P.W.4) and Sitabai (P.W.5) that a large number of miscreants forced entry into their house by breaking the wooden roof slab and roof tiles deserves acceptance.

As regards exact amount of money which allegedly was robbed, though testimony of Ratan (P.W.1), Sitabai (P.W.5) and Mangilal (P.W.6) is at variance because as per Ratan (P.W.4), the miscreants had robbed 55,000/- rupees lying in a pouch under his bedding; Sitabai (P.W.5) has deposed that the robbed money was 75,000/-. Mangilal too has stated that his brother Ratan (P.W.4) told him that 75000/- rupees and utensils etc. were robbed by the miscreants from him. The instant case is that of robbery. The money was lying in the cotton pouch whether it was 55000/- or 75000/- does not make difference as there may be some confusion or lack of communication among these three witnesses about the exact amount of money robbed, however, that does not erode their credibility as regards their testimony about commission of robbery in the mid of the night; particularly, in view of the fact that the FIR (Ex.P/4) of the incident was lodged immediately in the next morning and in medical examination, Dr. J. Atulkar (P.W.1) found injuries on the person of Ratan (P.W.4), his wife Sitabai (P.W.5) and Mangilal (P.W.6). Apart this, fracture of left scapula was found on the body of Ratan (P.W.4), while fracture of left olecranon was found on the body of Sitabai (P.W.5). Both being grievous

injuries, thus, the anomaly with regard to the exact amount of money robbed becomes inconsequential and meaningless.

The question arises whether appellant Kalu and Dulesingh, who are resident of same village where Ratan (P.W.4) resides, were part of the miscreants gang? In this regard, the testimony of Ratan (P.W.4) and Sitabai (P.W.5) is clinching. Both of them have clearly deposed that a lamp was there in the house and they could well identify Kalu and Dulesingh, who had assaulted them. Both these witnesses have been subjected to elaborate cross-examination on the point. Both of them have clearly deposed that they have no past enmity with appellants Kalu or Dulesingh, therefore, it cannot be said that Ratan (P.W.4) or his wife Sitabai (P.W.5) would like to falsely implicate them in the alleged offence. Noticeably, Kalu and Dulesingh both have been named in the First Information Report (Ex.P/4), which was lodged without delay with the concerned Police Station. Thus, I do not find any reason to discard the testimony of Ratan (P.W.4) and Sitabai (P.W.5) on the point of identification of Kalu and Dule Singh.

Though, it is argued that there is anomaly with regard to the weapon used by Kalu in inflicting injury to Ratan (P.W.4) and Sitabai (P.W.5), it is submitted that Ratan (P.W.4) has deposed that injury was caused by ?Lathi? while Sitabai (P.w.5) has stated injury was caused by ?Falia? a sharp weapon, though, no incised wound has been found on the body of Ratan (P.W.4) and Sitabai (P.W.5). However, in the instant case which

pertains to commission of robbery the manner of causing the injury and the weapons used for the same may not by itself be of much importance. Ratan (P.W.4) has clearly deposed that the injuries were caused by ?Lathi?. Sitabai (P.W.5) might be having some confusion in this regard or she might have exaggerated on this point, however, this exaggeration not being in respect of material point cannot be made a ground to throw away the testimony of Ratan (P.W.4) and Sitabai (P.W.5).

Though, non-examination of investigating officer cannot be appreciated, however, that by itself cannot be a ground to throw away the prosecution case, particularly, when two persons, who were robbed in the mid-night and also suffered multiple injuries on their person have clearly deposed about all material aspects of the case.

In view of the aforesaid discussion and analysis, in the considered opinion of this Court, it cannot be said that the learned trial Court has committed any error in recording the conviction and sentence against the appellant for offence under Section 397 of IPC.

Resultantly, this appeal having no merit, deserves to be and is accordingly, hereby dismissed.