RAJAN DEVAN MUKER Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present appellant/ accused No. 2 has challenged the judgment and order dated 8.3.2004 passed by the learned 4th Ad hoc Assistant Sessions Judge, Bombay at Sewree. In Sessions Case No. 818 of 2002 whereby he was convicted for the offence punishable under section 392 read with section 397 and section 341.P.C. and was sentenced to undergo R.I. for seven years.

(2.) To state in brief, on 6.3.2002, at 21.45 hrs., one Babulal Samadali Shaikh lodged a report at Antop Hill Police Station, Mumbai to the effect that on earlier day i.e. on 5.2.2002 at 6.30 p.m. after alighting from a local train at G.T.B. Nagar, he was walking down towards Bangalipura. When he was beneath the railway bridge, three persons restrained him. Two of them caught his hands and third person, who was wearing red shirt, pointed a knife on his neck and demanded money. Then that person forcibly took amount of Rs. 200/- from the pocket of his pant. He also informed that one Manirule Gayan was also robbed at about 4.30 p.m. and amount of Rs. 255/- was taken away by the culprits. Statement of said Manirule Gayan was also recorded at the same time. On 7.3.2002, accused No. 1 Chandu Pyarelal Chauhan and the present appellant - accused No. 2 Raju were arrested in another case, being Crime No. 349 of 2002 under section 379 I.P.C. When they were in the detection room, one P.W. 2 Suhas Arjun Kamble came to the Police Station. He was shown both the accused in the detection room and then he stated that he was also robbed of Rs. 20/- on 5.3.2002 at about 6.15 a.m. by the persons while he was returning from his duty. The present appellant - accused No. 2 was one of them and he was holding a knife. His statement was recorded. On 8.3.2002, accused Nos. 1 and 2 were arrested in the present case i.e. Crime No. 76/2002 under section 392 read with section 397 I.P.C. On 10.3.2002, on the basis of information given by accused No. 1 Chandu, a knife and amount of Rs. 200/- were recovered. On 21.3.2002, identification parade was held wherein both the accused were identified by P.W. 2. After investigation, charge-sheet was filed and the case was committed to the Sessions Court for trial. After trial both the accused were convicted and sentenced as stated above.

(3.) Heard learned Counsel. Perused Record and proceedings. Record reveals that Charge Ex. 2 was framed against accused Nos. 1 and 2 under sections 392 and 397 read with section 34 I.P.C. The charge was only in respect of robbery from the complainant Babulal Samadali Shaikh. There was no charge in respect of robbery from Manirule Ayub Gayan and Suhas Arjun Kamble. Recording of prosecution evidence was completed on 16.2.2004. Statement of accused under section 313 was also recorded on 24.2.2004. From the charge Ex. 2, it appears that on 4.3.2004, the said charge was amended and it was added that Manirule Ayub Gayan and Suhas Arjun Kamble were robbed of Rs. 255/- and Rs. 20 respectively. On the next page below the charge Ex. 2, there is an endorsement that contents of addition of charge were read over and explained to both the accused in vernacular. That endorsement appears to be of 24.2.2004 and it also appears that the accused had pleaded not guilty of additional charge on 24.2.2004. However, charge Ex. 2 does not show that the amendment of the charge was made on 24.2.2004. It appears that the plea of accused about additional charge was recorded on 24.2.2004 while the charge was in fact amended on 4.3.2004.