ORDER R.C. Chavan, J.
1. By presenting this revision-petition, the revision-petitioner/convict challenges his conviction for offence punishable under Section 394 of the Penal Code recorded by the learned Judicial Magistrate First Class, 6th Court, Nagpur, and confirmed on appeal by the learned Additional Sessions Judge, Nagpur.
2. Facts, which gave rise to the applicant's prosecution are as under:
On the night of 17-12-1991, complainant's wife noticed the accused stealing articles from almirah in their house. She caught the accused, but the accused gave her two fist blows. Her cries attracted the complainant, who tried to catch hold of the accused. However, the accused inflicted knife blow on the complainant's shoulder, resulting in a bleeding injury. The cries of complainant and his wife attracted neighbours, who caught the accused. The accused was tied up and police were informed. Accused was handed over to the police. On a report, an offence was registered. A knife was seized from the accused. After recording statements of witnesses and on completion of investigation, police sent chargesheet to the learned Judicial Magistrate First Class, 6th Court Nagpur.
3. The learned Magistrate charged the accused of having committed offence punishable under Section 458 of the Penal Code.
However, subsequently he altered the charge to one under Section 394 of the Penal Code. The accused pleaded not guilty and claimed to be tried. After considering the evidence tendered before him at the trial, the learned Magistrate held that the prosecution had proved that on the incidental night, the accused committed house breaking and attempted to commit robbery and in course of such attempt, voluntarily caused hurt to the complainant. He, therefore, convicted the accused and sentenced him to suffer rigorous imprisonment for eighteen months and fine of rupees three hundred, or in default to undergo further simple imprisonment for one month. Aggrieved thereby, the convict preferred Criminal Appeal No. 5 of 2004 before the learned Additional Sessions Judge, Nagpur, Who, after considering the contentions raised and examining the record of trial, dismissed the appeal and confirmed the conviction of the accused recorded by the learned Trial Magistrate. Aggrieved thereby, this revision-petition has been filed.
4. The learned Counsel for the revision-petitioner submitted that the property was not produced before the Court and, therefore, the learned Trial Judge should not have held that the revision-petitioner had Inflicted injuries by knife. He further submitted that though the complainant PW-1 had deposed that he had seen the accused for the first time in the Court, even in the absence of test identification parade, the learned Trial Judge had proceeded to hold the identity of the petitioner proved. According to the learned Counsel, non-examination of complainant's wife, who had allegedly caught the accused first, should have led to an adverse inference against the prosecution. Without examining the Medical Officer, the learned Trial Judge held that an injury was proved. The Officer, who conducted investigation, also was not examined. In view of this, according to the learned Counsel, the evidence before the Trial Court was extremely scanty and could not have led the Trial Court to convict the revision-petitioner. He submitted that even the First Appellate Court failed to see these aspects.
5. The learned Additional Public Prosecutor for the State submitted that it is not necessary to examine a number of witnesses to prove the same point. In this case, there was enough unimpeached evidence to show that the revision-petitioner had entered the house of the complainant after sunset and before sunrise in order to commit a robbery and that in course of commission of such offence he had injured the complainant. Therefore, according to the learned Additional Public Prosecutor, there is no infirmity in the judgments rendered by the Courts below.
6. The learned Counsel for the revision-petitioner relied on the decision of this Court in the case of Fateh Mohamad Gulmohamad Sayed and etc. v. State of Maharashtra reported in 2003 Cri. L.J. 3586, to support his contention that in the absence of test identification parade, the identification of the accused, a perfect stranger, for the first time in the Court has no evidentiary value. There can be no dispute about this general proposition of law. In that case, the accused was not apprehended on the spot. The accused had tied up the victims and also pasted sticking tapes to the lips of the victims. The accused had decamped with booty of Rs. 2, 61,000/-. Subsequently, a report was made and thereafter the accused were arrested. In this context, this Court observed that the test identification parade was necessary. In the instant case, the accused had been nabbed at the spot itself. Therefore, there was no question of conducting a test identification parade, since the link from the commission of offence till the arrest of the accused was very much established and the complainant was present all along.
7. The learned Counsel for the revision-petitioner also relied on the decision of this Court in the case of Chhabilal s/o Chhotanbhau Pardhi and Ors. v. State of Maharashtra reported in 2005(1) Mh. L.J. 376. The learned Counsel submitted that the conviction under Section 394 of the Penal Code could not be handed down in the absence of production of the weapon and evidence about causing of hurt. In the case on which the learned Counsel relied, the learned Judicial Magistrate, Amgaon, had convicted the applicants of offence punishable under Section 324 of the Penal Code when they had been charged of the offence punishable under Section 325 of the Penal Code. It was contended before the Court that in order to attract the provisions of Section 324 of the Penal Code, it was necessary to prove that the hurt was caused by means of any instrument which, if used as a weapon of offence, was likely to cause death. The learned Counsel submitted that in the instant case, since the weapon of offence was not produced, Section 394 of the Penal Code was not attracted.
8. It may be seen that the robbery has been defined in Section 390 of the Penal Code. What is required is voluntarily causing or attempting to cause death or hurt or wrongful restraint or fear of instant death or instant hurt or instant wrongful restraint. Just as this Section does not refer to any use of weapon, illustrations (a), (c) and (d) of this Section also do not refer to use of any weapon. In these circumstances, production or non-production of weapon is utterly irrelevant for establishing the ingredients of offence punishable under Section 394 of the Penal Code. Non examination of Medical Officer is likewise irrelevant, since whatever injury was stated to have been caused to the complainant would be sufficient to hold that the accused had atleast instilled the fear of causing Instant hurt.
9. The last submission of the learned Counsel for the revision-petitioner is related to non-examination of the Investigating Officer. The learned Counsel submitted that non-examination of the Investigating Officer was fatal to the prosecution. It may be seen that in this case, the prosecution had examined the complainant as PW-1, a neighbour Bhaurao as PW-2 and ASI Ambikaprasad as PW-3. There is nothing to show that ASI Ambikaprasad was not the Investigating Officer. He had stated that he had recorded statements of witnesses and filed the chargesheet in the Court. Merely because he had not performed the spot panchanamas at Exhibits 23 and 24 proved by PW-2, or effected seizure vide Exhibit 22, it does not follow that ASI Ambikaprasad was not the Investigating Officer. Since these documents have been duly proved by PW-2 Bhaurao, non-examination of the Officer, who effected seizure or effected panchanama of spot, is not material.
10. To sum up, the revision-petitioner herein was caught on the spot itself, the revision-petitioner has not stated that the complainant or PW-2 Bhaurao had any enmity with the revision petitioner to falsely rope in the petitioner or to catch the petitioner. Therefore, there appears to be no error in conviction recorded by the learned Magistrate and confirmed by the learned Additional Sessions Judge.
11. In view of this, the revision-petition is dismissed.