Bombay High Court
Sumit @ Bazuka S/O Naresh Tirbude vs The State Of Maharashtra, Thr. Its Pso, ... on 10 March, 2025
2025:BHC-NAG:2697
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.102 OF 2022
Sumit @ Bazuka s/o Naresh Tirpude
Aged about 24 yrs., Occu.: Labour,
R/o. Ambedkar Nagar, Nagpur Fail,
Pulgaon, Tahsil Deoli, District Wardha .... APPLICANT
// V E R S U S //
State of Maharashtra,
through its Police Station Officer,
Police Station Pulgaon,
District Wardha .. RESPONDENT
___________________________________________________
Ms Radha M. Mishra, Advocate (appointed) for the applicant.
Mr. V.A. Thakare, APP for the State.
_________________________________________________
CORAM : URMILA PHALKE JOSHI, J.
DATE : 10.03.2025
ORAL JUDGMENT
1. Heard.
2. ADMIT. Taken up for final disposal forthwith by
the consent of learned counsel for the parties.
3. By preferring this revision, the applicant has
challenged the concurrent findings of learned Judicial
72 revn 102.22 jud..odt
Magistrate, First Class, Court No.3, Pulgaon in Regular
Criminal Case No.123/2017 dated 10.01.2018, confirmed
in Criminal Appeal No.12/2018 by Additional Sessions
Judge, Wardha, by which the applicant is convicted for the
offence punishable under Section 392 of the Indian Penal
Code (for short, 'the I.P.C.') and sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.1,000/-,
in default to suffer further rigorous imprisonment for three
months.
4. The facts which are necessary for disposal of the
present revision are as under:-
Informant- Jitendra Shrivastava lodged an FIR
on an allegation that he is a businessman and runs a shop
by name 'Sai Guru General Stores' at Bhagatsingh
Square, Pulgaon. On 21.05.2017, at about 5.00 p.m., the
present applicant came to his shop and demanded
Rs.500/- and forcibly took bundle of stole kept on counter
and fled away from the spot of the incident. While leaving
72 revn 102.22 jud..odt
the shop he threatened the informant that he will break
the shop, if his report is filed with police. Thus, the
applicant has committed robbery of bundle of stole worth
Rs.1000/- to Rs.1200/- and also threatened the
complainant/informant. On the basis of the said report
the police have registered the crime against the applicant.
5. After registration of the crime, during
investigation, the investigating officer, has drawn the spot
panchanama and recorded relevant statements of the
witnesses. The accused was arrested and his memorandum
statement was recorded in presence of two panchas and at
his instance the knife as well as bundle of stole was
recovered. After completion of the investigation the
charge-sheet was filed. The trial Court has framed the
charge against the present applicant. For proving the
charge against the applicant prosecution examined in all
nine witnesses, namely PW1 Jitendra Shrivastava (Exh.6) ,
72 revn 102.22 jud..odt
PW-2 Gajanan Sardar (Exh.9), PW-3 Nandkishore Satija
(Exh.10), PW-4 Devidas Choudhary (Exh. 12), PW-5
Pratik Borkar (Exh. 14), PW-6 Ashishkumar Sahu
(Exh.18), PW-7 Dilip Dayalani (Exh.19), PW-8 Ranjit
Ingole (Exh.20) and PW-9 Ravindra Munjbaile (Exh.23),
the Investigating Officer. Besides oral evidence,
prosecution placed reliance on oral report (Exh.7), FIR
(Exh-8), Spot panchanama (Exh.10), memorandum
panchanama (Exh.21) and Seizure panchanamas (Exh.
22). All the incriminating evidence was put to the accused
in order to obtain his explanation regarding the evidence
appearing against him. The defence of the accused is of
total denial and false implication.
6. After appreciation of the evidence, learned trial
Court held the applicant guilty and sentenced him as
above. The said finding is confirmed by the District and
Additional Sessions Judge, Wardha in Criminal Appeal
72 revn 102.22 jud..odt
No.12/2018.
7. Being aggrieved and dissatisfied by the
impugned judgment and orders, this revision is preferred
by the present applicant.
8. Heard Ms Radha Mishra, learned Counsel for
the applicant. She submitted that the trial Court and the
Appellate Court relied on the evidence of Jitendra
Shrivastava (PW-1) and other eye witnesses Ashishkumar
Sahu (PW-6) and Dilip Dayalani (PW-7). The natural
conduct of these witnesses is not there as they have not
attempted to catch the present applicant though they have
witnessed him running from the spot of the incident.
They being the adjacent shop owners, are the interested
witnesses and their evidence deserve to be discarded as
found unbelievable and untrustworthy. She submitted
that now the applicant has already undergone the period
72 revn 102.22 jud..odt
of one year and six months. Considering the same, the
quantum of sentence be reduced and he be released on the
punishment which he has already undergone. She
submitted that the memorandum statement of the present
applicant was recorded but one of the panch witness i.e
PW-5 has not supported the prosecution case and the
discovery as such is not proved by the prosecution. For all
the above reasons, the revision be allowed.
9. Learned APP strongly opposed the contentions
raised by the applicant and submitted that evidence of
PW-1, PW-6 and PW-7 is consistent and nothing is
brought on record to cast a shadow of doubt on their
evidence. He further submitted that in addition to the oral
evidence, the memorandum statement of the accused was
recorded and in presence of two panchas the incriminating
article knife and bundle of stole was seized at the instance
of the present applicant. Considering that there is
72 revn 102.22 jud..odt
sufficient evidence, the trial Court held the applicant
guilty, which is confirmed by the Additional Sessions
Judge, Wardha. No interference is called for and
therefore, revision deserves to be dismissed.
10. On hearing both the sides and on perusal of the
evidence, it reveals that the applicant is charged for the
offence punishable under Section 392 of the I.P.C. The
definition of robbery is given under Section 390 of the
I.P.C., which states that theft is "robbery" if, in order to
committing of the theft, or in committing the theft, or in
carrying away or attempting to carry away property
obtained by the theft, the offender, for that end,
voluntarily causes or attempts to cause to any person death
or hurt or wrongful restraint, or fear of instant death or of
instant hurt, or of instant wrongful restraint said to have
committed the robbery. Thus, the offence of robbery is
defined in Section 390 of the I.P.C. and punishable under
72 revn 102.22 jud..odt
Section 392 of the I.P.C.
11. To prove the charge against the present
applicant, the prosecution mainly placed reliance on the
evidence of PW-1 Jitendra Shrivastava, who has lodged
the FIR. The sum and substance of his evidence is that on
21.05.2017 at about 5.00 p.m. when he was present in the
shop, the accused, to whom he was knowing by his face,
entered his shop under the influence of liquor and
demanded Rs.500/- from him and also threatened him by
showing knife. As the complainant/informant denied to
pay money, he lifted the bunch of stole, worth Rs. 1000/-
to Rs. 1200/- and ran away from the spot of the incident.
PW1 further stated that PW-7 is having his own shop in
front of his shop. Whereas one Sanjay Chincholkar is
having his hair cutting saloon in front of the shop of PW1.
This fact is also corroborated by PW-6 who has also stated
that he was acquainted with the informant Jitendra, whose
72 revn 102.22 jud..odt
shop is in front of his shop. On the day of the incident
when he was sitting in front of his shop he witnessed that
the accused was running away by taking bundle of the
stoles from the stop of the complainant and therefore, the
informant has disclosed the incident to him. PW-7 has
also narrated that he heard the noise in the shop of the
informant and also witnessed the accused taking the
bundle of stole from the shop of the complainant. These,
three witnesses were cross-examined at length. During
cross-examination of the informant (PW1), it is brought
on record that if he purchases something he has to obtain
the bill. The evidence of the investigating officer shows
that the complainant has produced the bill in his presence.
Except that cross examination, nothing incriminating is
brought on record to falsify the version of the informant
(PW-1).
12. PW-6 and PW-7 are also cross-examined.
72 revn 102.22 jud..odt
Their cross examination would show that the distance
between the shop of PW-6 and the shop of the informant
is about 15 to 20 ft. When he called the police, accused
had already fled away. In the cross-examination of PW-7
he admits that the informant has disclosed the incident
when he visited his shop. Except this submission,
nothing more is brought on record by the defence counsel.
Besides the oral evidence of all these witnesses, PW-2 who
is another shop owner, has not supported the prosecution
case, but during cross-examination by the learned APP he
admits that the accused in front of him fled away along
with the bundle of stole. Thus, though PW-2 has not
supported the prosecution during his chief examination,
but during cross-examination he admits about the
incident.
13. The evidence of PW-3 and PW-4 is formal in
nature. PW-5 acted as panch on the memorandum
72 revn 102.22 jud..odt
statement and discovery panchanama, which was drawn
on the basis of the memorandum statement made by the
present applicant. This PW-5 has not supported the
prosecution case initially, but during cross-examination he
admits that he was called by the police to act as a panch.
The accused was in the custody of the police. Accused
made memorandum statement and thereafter accused led
them at his house. He denied that at his instance the
articles were recovered. Thus, he has supported to the
extent that accused made memorandum statement and led
them and investigating officer towards his house.
14. PW-8 is the another panch, who specifically
stated that in his presence the accused has made
memorandum statement and thereafter led them to his
house and at the instance of the accused, the knife and
bundle of stoles was seized from his house. Though, he
was cross-examined, but nothing incriminating is brought
72 revn 102.22 jud..odt
on record during his cross-examination.
15. PW-9 is the Investigating Officer of the said
incident, who has narrated about the investigation carried
out by him. During his cross-examination he stated that he
has taken the entry in the lockup register as the accused
was kept in the lockup. He has also taken the entries in
the station diary. He admits that he has not produced lock
up register extract along with charge-sheet. Except this
cross-examination, nothing is brought on record.
16. On appreciation of the evidence the learned
trial Court and the Appellant Court has considered that
the accused was seen running from the spot of incident
not only by the complainant, but by PW-6 and PW-7 and
their evidence is not shattered during cross-examination
and by believing the said evidence the applicant is
convicted.
72 revn 102.22 jud..odt
17. Learned counsel for the applicant submitted
that as far as the evidence of PW-6 and PW-7 is
concerned, they are interested witnesses as they are the
shop owners having shops near the shop of the
complainant. However, considering the submissions and
the evidence which is brought on record, the evidence of
these two witnesses is not shattered during cross-
examination. Even there is no suggestion to the extent
that they had no opportunity to witness the said incident.
There is no cross-examination as to the fact that they have
not witnessed the accused running away from the spot of
incident. Thus, their evidence as to the fact that they have
witnessed the incident and witnessed the accused running
from the spot, is remained unchallenged. Learned counsel
for the applicant though placed reliance on various
decisions including George Pon Paul vs. Kanagalet and
ors. reported at (2009) 13 SCC 478 ; Vasi Alias Vasio
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Prabhatabhai Rabari and ors. Vs. State of Gujarat , reported
at (2010) 15 SCC 247 ; Din Dayal vs. State of Delhi
(Administration) (Union Territory of Delhi) reported at
1991 Supp (2) SCC 220 ; and Kuppan and others vs.
State of T.N. reported at AIR 2000 SC 3510(1).
18. On perusal of these decisions, it reveals that the
benefits are given to the applicants therein considering the
nature of the evidence and their young age. As far as
present applicant is concerned, the crime chart shows that
23 offences of similar nature are registered against him.
The prosecution has established the case against the
accused beyond reasonable doubt not only on the basis of
the evidence of the eye witnesses, but also on the basis of
supported evidence in the nature of memorandum
statement of the accused and discovery at his instance.
The scope of revision is very limited. This Court in its
revisional jurisdiction cannot re-appreciate the evidence. It
72 revn 102.22 jud..odt
is the trial Court which has to decide whether evidence on
record is sufficient to make out a prima-facie case against
the accused to prove the charge. What the Court has to
see within the scope of revision is whether any error or
illegality is committed either by the trial Court or by the
Appellant Court. As far as this aspect is concerned, on
perusing the record and examining the legality and
propriety of the finding, it reveals that on appreciation of
the evidence, which is not shattered during the cross-
examination, the learned trial Court as well as the
Appellant Court gave a finding as to the guilt of the
present applicant.
19. On appreciating the evidence and on examining
the legality and propriety of the concurrent findings, I do
not see any reason to interfere with the said findings and
therefore, the revision being devoid of merits, liable to be
dismissed.
72 revn 102.22 jud..odt
20. Accordingly, Criminal Revision is dismissed.
21. The fees of the appointed counsel for the
applicant be quantified as per rules.
22. Criminal Revision stands disposed of. The
pending application, if any stands disposed of.
(URMILA PHALKE JOSHI, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 18/03/2025 18:17:54
