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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     438      OF     2009   

Deepak @ Wireless ….Appellant

VERSUS

State of Maharashtra                .…Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal is directed against the judgment of the High  

Court of Bombay Bench at Aurangabad dated 25.04.2007  

by which the High Court dismissed the Criminal Appeal  

No.403 of 2005 and confirmed the conviction and  

sentence imposed on the appellant for offences under  

Sections 395, 396 and 397 of IPC. The appellant was  

imposed with punishment of rigorous imprisonment of  

five years and a fine of Rs.500/- in default to undergo  

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further three years rigorous imprisonment for offence  

under Section 395 of IPC, rigorous imprisonment for life  

and fine of Rs.500/- for offence under Section 396 of IPC  

and further rigorous imprisonment for three years and  

fine of Rs.500/- in default to undergo one year rigorous  

imprisonment for the offence under Section 397 of IPC.     

2. The genesis of the case was that on the date of  

occurrence, namely, 13/14.06.2004, P.W.10 A.P.I.,  

attached to police station Pachod received a wireless  

message from P.S.I. Dhakne, who was on patrol duty,  

that some thieves had entered in that area. P.W.10,  

therefore, proceeded to the police station and on the way  

he met P.S.I. Dhakne and others and in the enquiry it  

came to light that the thieves had gone to the adjoining  

area. They started combing operation in that area and  

while they were going towards Aurangabad they noticed  

three persons fleeing on a motorcycle in high speed. The  

team led by P.W.10 followed those persons and that after  

a distance of chase those persons abandoned the  

motorcycle in the place called Jamkhed crossroad and  

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started running in the open field. The police party chased  

them and could apprehend two out of the three persons.  

Out of the two persons who were apprehended, one was  

the appellant. The suspects were brought to the police  

station and in the meantime, P.W.10 received a telephone  

call that a theft had taken place in the house of one  

Vasanta Bhumre. On reaching the house of Vasanta  

Bhumre, P.W.10, noticed the wife of Vasanta Bhumre  

lying in the middle room in a pool of blood and his  

brother Sharad was found dead in the adjacent passage.  

P.W.10 arranged for sending the injured wife of P.W.2-

Vasanta Bhumre to the hospital in the police vehicle and  

while going to the hospital P.W.9-Mirabai informed  

P.W.10 that about four to five assailants wearing pant  

and shirt caused injuries to her as well as the deceased  

Sharad and fled away from the scene of occurrence in a  

motorcycle. After admitting P.W.9 in the hospital, P.W.10  

said to have returned back to the scene of occurrence and  

sent the dead body for postmortem after holding the  

inquest. P.W.10, based on the investigation stated to have  

learnt that the appellant and his accomplices, namely,  

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Rahul Bhosle, Ravi Shinde, one Balaji and another  

unknown person (the last two were absconding) indulged  

in the dacoity in the house of P.W.2 on the night of  

13/14.06.2004. The appellant alone was proceeded for  

the offences under Sections 395, 396 and 397 of IPC,  

since the other two were juvenile, they were dealt with  

separately. The prosecution examined as many as 10  

witnesses on its side apart from the material objects and  

chemical analysis report in support of the case. The Trial  

Court by its judgment dated 09.05.2005 convicted the  

appellant and imposed the punishment, as above, and  

the same was confirmed by the High Court, aggrieved by  

the same the appellant has come before this Court.

3. Assailing the judgment of the Courts below, Mr. Rajiv  

Nanda, learned counsel for the appellant in his  

submissions contended that the offence of dacoity per se  

was not made out in as much as the basic ingredient of  

five persons conjointly committing the offence of robbery  

and murder was not made out. The learned counsel also  

argued that no recoveries either from the appellant or any  

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other person were made as regards the alleged articles  

looted in the occurrence and, therefore, neither the  

charge of robbery nor that of dacoity was made out. In  

support of the said submission learned counsel also  

contended that though from the chemical analysis report  

the blood sample found in the clothes of the appellant  

was found to be of ‘Group B’, no comparison of the blood  

group of the appellant with that of the deceased was ever  

carried out and, therefore, merely based on the blood  

stains, found on the clothes of the appellant, there was  

no scope to connect the appellant to the offence of dacoity  

and murder falling under Section 396 of IPC. According to  

learned counsel, the police foisted a false case against the  

appellant by arresting him from his residence and that  

the appellant was not involved in the crime. The learned  

counsel contended that P.W.9, the so called eye-witness,  

never deposed that any jewels or other properties were  

stolen on that day and that identification of the appellant  

in the Court, without holding proper test identification  

parade cannot form the basis for convicting the appellant  

for the serious offence of dacoity and murder. The learned  

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counsel summed-up his submissions by stating that  

there was no test identification parade, that there was no  

recovery of pant or stolen goods and the basic ingredient  

of conjoint effort of five persons in the involvement of the  

offence proved fatal to the case of the prosecution.  

Learned counsel also relied upon the decisions of this  

Court in Suraj Pal v. State of Haryana - reported in  

(1995) 2 SCC 64 and Mohd. Abdul Hafeez v. State of  

Andhra Pradesh –  reported in (1983) 1 SCC 143 in  

support of his submission.

4. The learned counsel for the State in his submissions by  

retracing the sequence of events, which ultimately  

resulted in the arrest of accused persons, contended that  

P.W.9 was an eye-witness to the occurrence who after  

hearing the cries of her brother-in-law, namely, the  

deceased Sharad in the early hours of 13/14.06.2004 at  

about 2 to 2.30 a.m. noticed that the appellant and the  

other accused were brutally beating the deceased with  

knife, iron rod and wooden club and when she started  

shouting for help, the accused persons ran towards her  

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and caused injuries by knife as well as by other weapons  

on her face and other parts of her body. The learned  

counsel, therefore, contended that since P.W.9 before the  

infliction of injuries upon her was able to view the brutal  

attack on her brother-in-law by the accused and,  

thereafter, such persons attacked the witness herself, she  

was able to identify the appellant without any hesitation  

in the Court. As far as the number of persons who  

participated in the crime is concerned, here again learned  

counsel would draw support from the version of P.W.9  

herself in her cross-examination where she stated in  

uncontroverted terms that five individuals were involved  

in the crime at that point of time. As far as stealing of  

articles is concerned, the learned counsel by referring to  

the evidence of P.W.2 contended that he was able to  

specify the articles stolen while committing the dacoity in  

his house by way of cash as well as jewels removed from  

the body of P.W.9. As far as the non-production of  

weapons and the stolen articles are concerned, the Trial  

Court has noted that due to inability of the police to  

arrest the two absconding accused, recoveries of those  

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items were not placed before the Court. The learned  

counsel for the State by relying upon the said conclusion  

of the Trial Court contended that the said conclusion was  

well justified and, therefore, on that ground the  

conviction cannot be interfered with. The learned counsel  

also pointed out that the evidence of P.W.8 whose  

motorcycle was stolen in the early hours of 14.06.2004,  

which was recovered and handed over to him, supported  

the case of the prosecution in finding the appellant guilty  

of the offence. Learned counsel placed reliance upon the  

recent decision of this Court where one of us (Hon’ble Mr.  

Justice Swatanter Kumar) was a party-Rafiq Ahmad  

alias Rafi v. State of Uttar Pradesh - reported in (2011)  

8 SCC 300 in support of his submissions.

5. In the above said background of the case pleaded by both  

the parties, when we examine the case on hand, the  

appellant was convicted and imposed with sentences for  

offences falling under Sections 395, 396 and 397 of IPC.  

When we examine the said offences alleged and found  

proved against the appellant, it will have to be stated that  

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when a person is involved in an offence of theft of higher  

magnitude, then it becomes dacoity and when dacoity is  

committed with murder and also results in causing  

grievous hurt to others, it becomes robbery punishable  

under Sections 395, 396 and 397 of IPC.  In other words,  

when the offence of theft is committed conjointly by five  

or more persons, it becomes dacoity and such dacoity by  

those persons also results in commission of murder as  

well as causing of grievous hurt to the victims, it results  

in an offence of robbery. A reading of Sections 395, 396  

and 397 of IPC makes the position clear that by virtue of  

the conjoint effort of the accused while indulging in the  

said offence makes every one of them deemed to have  

committed the offence of dacoity and robbery. In the  

result, when such offences of dacoity and robbery are  

committed, the same result in the death of a person or  

hurt or wrongful restrain or creating fear of instant death  

or instant hurt or instant wrongful restraint.  In  

substance, in order to find a person guilty of  offences  

committed under Sections 395, 396 and 397 of IPC, his  

participation along with a group of five or more persons  

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indulging in robbery and in that process commits murder  

and also attempts to cause death or grievous hurt with  

deadly weapons would be sufficient.  Use of a knife in the  

course of commission of such a crime has always been  

held to be use of a deadly weapon.  

6. Keeping the above basic prescription of the offence  

described in the above provisions in mind, we examined  

the case on hand. In the first instance, what is to be  

examined is whether the basic ingredient of the offence  

falling under Sections 395, 396 and 397 of IPC, namely,  

participation of five or more persons was made out. In the  

case on hand, as has been stated by the Courts below,  

the appellant alone was proceeded, though three out of  

five persons said to have been taken into custody. As per  

the judgment of the High Court three persons were  

arrested and since two accused persons other than the  

appellant were juveniles, they were stated to have been  

proceeded separately. It is the case of the prosecution  

that two other accused, namely, one Balaji and another  

unknown person were absconding through-out the stage  

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of trial. In order to prove the participation of five persons,  

the sole reliance was placed upon the deposition of P.W.9,  

the victim who suffered severe injuries at the hands of the  

accused. In her evidence in the chief examination she  

stated that on the date of occurrence four to five thieves  

entered their house, that on hearing the shouts of her  

brother-in-law she went to the adjacent room and saw  

those persons assaulting her brother-in-law with the aid  

of knives, rods and wooden club. She also described the  

features of those persons as belonging to the age group of  

18 to 25 years, that they were wearing trousers and  

shirts, that they were of medium height and dark in  

complexion. According to her, after witnessing the attack  

on the person of her brother-in-law Sharad, when she  

started shouting, the accused persons turned towards her  

and started assaulting her by inflicting injuries on her  

eyes, head, back etc. On the morning of 14.06.2004, after  

the police party arrived and when she was being taken to  

the hospital in the police vehicle by P.W.10, she stated to  

have informed him that four to five persons indulged in  

the said offence. In the cross-examination, however, she  

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came out with a definite answer that the number of  

persons involved in the offence was five. As far as the  

appellant was concerned, P.W.9 identified him  

unhesitatingly in the Court and declared that he was one  

of the assailants. P.W.10, the investigating officer in his  

evidence stated that after apprehending two out of the  

three accused persons who were fleeing on the  

motorcycle, they were brought to the police station who  

disclosed their names as Deepak and Rahul Bhosale and  

that third person who fled away was Ravi Shinde by  

name. The Rahul Bhosale and Ravi Shinde were stated to  

be juveniles and, therefore, they were proceeded  

separately.

7.  P.W.4 the Panch witness confirmed the seizure of the full  

pant and shirt worn by the appellant, a motorcycle key, a  

knife and cash of Rs.150/- from the person of the  

appellant which were marked as Exhibit 19. It was  

pointed out by the said witness that the act of seizure  

from the accused was made in his presence between 9  

a.m. and 10 a.m. in the morning of 14.06.2004. He,  

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however, stated that police did not take into custody the  

wooden articles from the accused in his presence and it  

was, therefore, contended that his version cannot be  

believed. After holding the investigation P.W.10 filed  

chargesheet before the Court wherein it was alleged that  

the appellant along with juveniles Rahul son of Rambhau  

and Ravi son of Laxman and two others, namely, one  

Balaji and another unknown person (the last two were  

stated to be absconding) indulged in the offence on the  

night of 13/14.06.2004. The question for consideration is  

whether with the above evidence available on record, the  

conclusion of the Courts below in having held the  

appellant guilty of the offences under Sections 395, 396  

and 397 of IPC merits acceptance.  

8. Primarily the version of P.W.9 who was a victim has  

stated that on the night of 14.06.2004 four to five thieves  

entered their house and indulged in the crime. In the  

cross-examination, however, she asserted that the  

number of persons were five. There is no reason why the  

version of P.W.9 should not be believed. She had the first  

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hand information relating to the crime and who suffered  

extensively at the hands of the accused persons. Her  

statement before the Court did not appear to be  

vacillating. It is true that initially in her chief examination  

she stated that four or five persons were involved in the  

crime but the said doubt, if any, as regards the  

involvement of number of persons was cleared thankfully  

at the instance of the appellant himself by getting a  

definite answer from the witness in the cross-examination  

that the number of persons were five in all. Such a  

definite answer in the cross-examination should bind the  

appellant and, therefore, there is no reason to discard the  

said version of P.W.9. It was argued that when the police  

could apprehend three of the accused and also  

ascertained the name of fourth person as Balaji; its  

failure to even find out the name of fifth person creates  

serious dent in the case of the prosecution. In the first  

blush, such a submission though appears to be sound,  

having regard to the definite statement made by P.W.9  

who suffered at the hands of the appellant and the other  

accused who was also able to witness the whole  

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occurrence, namely, the initial assault on her brother-in-

law which cost his life and thereafter on herself in making  

a clear cut statement that the number of persons  

involved in the offence was five, we are of the view that  

the reliance placed upon her version by the Courts below  

was well justified for proceeding against the appellant for  

the offences falling under Sections 395, 396 and 397 of  

IPC.

9. We are, therefore, not able to countenance the contention  

of learned counsel for the appellant that the basic  

ingredient of involvement of minimum of five persons for  

the offences under Sections 395, 396 and 397 of IPC was  

lacking in this case. Once we get rid of the said hurdle  

and hold that the case of the prosecution as proceeded  

against the appellant for the said offences was  

maintainable, the next question for consideration is  

whether there was any robbery committed by the  

accused. In this respect, the evidence of P.W.2 the  

husband of P.W.9 assumes significance. P.W.2 in his  

evidence stated that the assailants had taken away a sum  

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of Rs.4,000/- to 5,000/- cash as well as the ornaments  

worn by P.W.9 on her neck and hands. It is true that  

P.W.9 has not referred about removal of either cash or  

ornaments from her body. P.W.2 was not present at the  

time when the occurrence took place. One relevant factor  

which is to be noted was that P.W.9 was seriously  

injured. In fact the judgment of the Trial Court disclose  

that Exhibit 28, which is spot-panchnama recorded in the  

presence of P.W.2, disclosed that there was blood  

everywhere and the cupboard of the room was open and  

curtains were thrown here and there and the household  

articles were lying all over and the window was forcibly  

opened and was found broken which was relied upon by  

the Court below to hold that the appellant and the other  

accused relieved the victim of cash and other jewels while  

committing the murder of deceased Sharad. P.W.9 was so  

very seriously injured that she was hospitalized for two to  

three months after the occurrence. In fact, at one stage  

having regard to the physical condition of P.W.9, a  

commission was appointed to record her evidence though  

later on the same was given up. Therefore, when such a  

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seriously injured witness at the hands of the appellant  

was examined and there was a slip in referring to removal  

of stolen articles and when there is definite evidence of  

P.W.2 who is none other than her husband who  

specifically stated the articles which were stolen by the  

appellant and the other accused, in the absence of  

anything brought out in the cross-examination of P.W.2  

as regards the stolen articles, we hold that in the peculiar  

facts of this case, the said evidence was sufficient for the  

Court below to hold that there was really an act of theft  

committed by the appellant and other accused. The said  

commission of offence having regard to the involvement of  

number of persons and the murder of Sharad and the  

grievous injuries inflicted upon P.W.9 would definitely  

constitute the offence falling under Sections 395, 396 and  

397 of IPC.

10. When we come to the question of death of the deceased  

and the grievous injuries suffered by P.W.9, the evidence  

of P.W.1, the postmortem doctor who also attended on  

P.W.9, in his evidence after referring to the 11 injuries  

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found on the body of the deceased made it clear that the  

cause of death was cardio respiratory arrest due to head  

injury associated with asphyxia due to aspiration of blood  

oozing from the compound fracture mandible and  

laceration of mucus membrane of the gum. P.W.1 also in  

his chief stated that injuries found on the body of P.W.9  

which by the description themselves made it clear that  

they were of grievous in nature. In order to appreciate the  

nature of injuries sustained by P.W.9 the injuries  

themselves can be noted which were as under:

“1. Incised wound on right forehead, 3 x 2 x 2  cms. caused by sharp weapon.

2. Incised wound on the right side of right eye  measuring 6 x 2 x 2 cm caused by sharp  weapon.

3. Incised wound on cheek 3 x 1 x 1 cm, caused  by a sharp weapon.

4. Contusion on right cheek and infra-orbital  region 6 x 5 cm caused by hard and blunt  object.

5. Evidence of fracture mandible at the middle  region with loose teeth lower incisor nature of  injury, grievous in nature, caused by hard and  blunt object.

All the injuries in my opinion were caused  within 6 hours, patient was referred to Govt.  

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Medical College Hospital, Aurangabad, for  further management and treatment. The  certificate issued bears my signature. Its  contents are correct. It is at Exh.12.”

11. In the cross-examination of P.W.1, it was suggested that  

the injuries found on the deceased and noted under  

exhibit 11 could have been caused in a fatal motor vehicle  

accident, which was duly denied by P.W.1. It also came  

out in the cross-examination of P.W.1 that when P.W.9  

was brought before him she could not speak and was in a  

critical condition. Here again he denied a suggestion that  

the injuries on the person of P.W.9 could have been  

caused by a metal sheet striking her. Beyond that  

nothing else was elicited from P.W.1 by way of cross-

examination. P.W.9 in the course of her examination  

before the Court showed the scar injury which was visible  

on her face which was duly noted by the Trial Court. In  

the said circumstance, in the absence of any other contra  

evidence, the murder of deceased Sharad as well as the  

grievous injuries caused on P.W.9 were beyond any  

controversy. In the said circumstances, the reliance  

placed upon the evidence of PW-2, the husband of PW-9  

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who gave the details about the loss of properties in the  

crime committed by the accused was well justified.  

Therefore, the conviction for the offences alleged against  

the appellant of his involvement with four others falling  

under Sections 395, 396 and 397 of IPC as found proved  

and as confirmed by the High Court does not call for any  

interference.  

12. As far as the decision relied upon by learned counsel for  

the appellant in the case of Mohd. Abdul Hafeez (supra),  

it was held therein that the identification of the accused  

by the victim in the absence of a test identification parade  

cannot be believed. While holding so, this Court noted  

that though no fault can be found with the said witness  

in not mentioning the names as the accused were not  

known to him, the failure to give some description of the  

accused who said to have removed cash from his pocket  

coupled with the non-holding of the test identification  

parade was such that his evidence cannot be relied upon.  

The said decision was in the peculiar facts of that case.  

On the other hand, the decisions relied upon by the High  

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Court for accepting the statement of P.W.9 even in the  

absence of test identification parade fully supports the  

case on hand. Those decisions referred to by the High  

Court in Dana Yadav alias Dahu and others v. State of  

Bihar – (2002) 7 SCC 295, Simon and others v. State of  

Karnataka - (2004) 2 SCC 694 and Daya Singh v. State  

of Haryana - AIR 2001 SC 1188 are apposite on the  

point. Therefore, the said decision relied upon by the  

learned counsel is of no assistance to the appellant. In  

Suraj Pal (supra) at paragraph 14 of the said judgment  

while insisting on holding the test identification parade, it  

was held that the same would enable the identification of  

the accused at the earliest possible opportunity after the  

occurrence by such witnesses is of vital importance with  

a view to avoid the chance of his memory fading away by  

the time he is examined in the Court after some lapse of  

time. There can be no two opinion about the principle laid  

down in the said decision relating to the importance of  

holding of test identification parade.

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13. In the case on hand, we have elaborately stated as to how  

P.W.9 who was a victim at the hands of the appellant and  

the other accused and who suffered grievous injuries  

which disabled her movements for quite a long time and  

who had the opportunity of witnessing the involvement of  

the appellant and the other accused in the gruesome act  

of killing her brother-in-law by beating him severely and  

after successfully beating him to death also assaulted her  

so severely which according to P.W.1 disabled her  

movements for quite sometime. In fact, the Presiding  

Officer of the Trial Court has observed descriptively as to  

how P.W.9 was placed in a situation where she was able  

to observe the conduct of the appellant and other accused  

so closely giving no scope for any doubt as to her  

unhesitant identification of the appellant made in his  

presence at the time of trial. P.W.9 also in her evidence  

gave the description of all the accused and the clothes  

worn by them as well as their physical features.  

Therefore, the decision relied upon by learned counsel for  

the appellant is of no assistance on this aspect while the  

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decision relied upon by the High Court fully supported  

the case of the prosecution.

14. Having regard to our above conclusion, we do not find  

any merit in this appeal, the appeal fails and the same is  

dismissed.              

….…..……….…………………………...J  [Swatanter Kumar]

…………….………………………………J.                     [Fakkir Mohamed Ibrahim  

Kalifulla]

New Delhi; September 04, 2012

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