DEEPAK @ WIRELESSversusSTATE OF MAHARASHTRA

                        [2012] 7 S.C.R. 484


A                    DEEPAK @ WIRELESS
                                 v.
                   STATE OF· MAHARASHTRA
                (Criminal Appeal No. 438 of 2009)

                      SEPTEMBER 4, 2012
B
        [SWATANTER KUMAR AND FAKKIR MOHAMED
                IBRAHIM KALIFULLA, JJ.]

        PENAL CODE, 1860:
c
       ss.395, 396 and 397 - Ingredients of - Explained -
  Appellant along with four others (two juveniles and two
  remained absconding) committing robbery resulting in death
  of one victim and grievous injuries to the other - Held: The
0 injured witness clearly stated that the number of assailants
  was five - She identified the appellant unhesitatingly in the
  court and stated that he was one of the assailants - The factum
  of death of one of the victims and grievous injuries to the
  witness has been supported by medical evidence - The
E evidence of the brother of the deceased and the spot
  panchnama recorded in his presence show that the accused·
  had taken away cash as also ornaments worn by the inured
  witness - Therefore, the conviction of the appellant for his
  involvement in the crime with four others falling u/ss 395, 396
  and 397 /PC, as recorded by trial court and confirmed by High
F Court, does not call for any interference - Evidence -
  Identification of accused.

        EVIDENCE:

G      Dacoity - Identification of accused in court - Held: The
  witness was a victim at the hands of the accused-appellant
  and suffered grievous injuries which disabled her movements
  for quite a long time - In fact, the trial court has observed
  descriptively as to how she was placed in a situation where
                                484
H
 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA                    485


she was able to observe the conduct of the appellant and              A
other accused so closely giving no scope for any doubt as to
her unhesitant identification of the appellant at the time of trial
- Penal Code, 1860 - ss.395, 396 and 397.

     The appellant was prosecuted for CQmmitting                      8
offences punishable ulss 395, 396 and 397 IPC. The
prosecution case was that the appellant along with four
others committed dacoity in which the brother of PW2
was killed and PW-9, the wife of PW-2, was seriously
injured by the accused. Out of the said 5 accused, two                C
remained absconding; and two being juveniles, their case
was separated. The trial court convicted the appellant
under each of the three counts and sentenced him to
various terms including imprisonment for life uls 396 IPC.
The High Court confirmed the conviction and the
sentence.                                                             0

     In the instant appeal it was, inter alia, contended for
the appellant-accused 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             E
and murder was not made out; that no recoveries from
any person, much less the appellant, were made as
regards the alleged articles looted in the occurrence; and
that identification of the appellant in the court without
holding any proper test identification parade could not               F
form the basis of his conviction.

     Dismissing the appeal, the Court

    HELD: 1.1 In order to find a person guilty of offences
punishable u/ss 395, 396 and 397 of IPC, his participation            G
along with a group of five or more persons indulging in
robbery and in that process committing murder and also
attempting to cause death or grievous hurt with deadly
weapons would be sufficient. Use of a knife in the course
                                                                      H
    486     SUPREME COURT REPORTS              [2012] 7 S.C.R.


A of commission of such a crime has always been held to
  be use of a deadly weapon. [para 5] [494-G-H]

         1.2 In the case on hand, three persons were arrested
    and since two accused persons other than the appellant
8   were juveniles, they were stated to have been proceeded
    separately. Besides, two other accused were absconding
    throughout the stage 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
C   severe injuries at the hands of the accused. In her chief-
    examination she stated that on the date of occurrence
    four to five thieves entered their house. In the cross-
    examination, however, she came out with a definite
    answer that the number of persons involved in the
0   offence was five. She further stated 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
E   belonging to the age group of 18 to 25 years. According
    to her, after witnessing the attack on the person of her
    brother-in-law, when she started shouting, the accused
    persons turned towards her and started assaulting her
    by inflicting injuries on her eyes, head, back etc. As far
F   as the appellant was concerned, P.W.9 identified him
    unhesitatingly in the court and declared that he was one
    of the assailants. There is no reason why the version of
    P.W.9 should not be believed. She had the first hand
    information relating to the crime and who suffered
G   extensively at the hands of the accused persons. Her
    statement before the court did not appear to be
    vacillating. Having regard to the definite statement made
    by P.W.9, who was able to witness the whole occurrence,
    namely, the initial assault on her brother-in-law which
H   cost his life and thereafter on herself, that the number of
 DEEPAK@ WIRELESS v. STATE OF MAHARASHTRA             487


persons involved in the offence was five, the reliance       A
placed upon her version by the courts below was well
justified for proceeding against the appellant for the
offences falling u/ss 395, 396 and 397 of IPC. [para 6 and
8] [495-B-H; 496-G-H; 497-C-E]
                                                             B
    1.3 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 Ext. 19. It
was pointed out by the said witness that the act of          c
seizure from the accused was made in his presence. PW-
10, after holding the investigation, filed charge-sheet
before the court wherein it was alleged that the appellant
along with two juveniles and two others (the last two were
stated to be absconding) indulged in the offence on the      o
night of 13/14.06.2004. [para 7] [496-C-E]

     1.4 Therefore, it cannot be said that the basic
ingredient of involvement of minimum of five persons for
the offences u/ss 395, 396 and 397 IPC was lacking in this   E
case. [para 9] [497-F]

     2. As regards the robbery committed by the accused,
the evidence of P.W.2, the husband of P.W.9, assumes
significance. He stated that the assailants had taken away
a sum of Rs.4,000/- to 5,000/- cash as well as the           F
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 and P.W.2 was not
present at the time when the occurrence took place. In
fact the judgment of the trial court shows that Ext. 28,     G
which is spot-panchnama recorded in the presence of
P.W.2, disclosed that the appellant and the other accused
relieved the victim of cash and other jewels while
committing the murder of the deceased. One relevant
factor which is to be noted was that P.W.9 was so very       H
    488     SUPREME COURT REPORTS                [2012] 7 S.C.R.


A seriously injured that she was hospitalized for 2-3
  months after the occurrence. Therefore, when such a
  seriously injured witness 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
B 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, this
  Court holds that in the peculiar facts of the case, the said
C evidence was sufficient for the courts 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 the deceased and the grievous injuries
D inflicted upon P.W.9 would definitely constitute the
  offence falling u/ss 395, 396 and 397 of IPC. [para 9) [497-
  G-H; 498-A-F]
         3. In the case on hand, P.W.9 was a victim at the
E   hands of the appellant and the other accused and
    suffered grievous injuries which disabled her movements
    for quite a long time. She had the opportunity of
    witnessing the involvement of the appellant and the other
    accused in the gruesome act of killing her brother-in-law
F   by beating him severely. She was also assaulted by the
    accused so severely which according to P.W.1 disabled
    her movements for quite sometime. In fact, 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
G   of the appellant and other accused so closely giving no
    scope for any doubt as to her unhesitant identification of
    the appellant 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. [para 13)
H   [501-C-E]
 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA             489


    Dana Yadav alias Oahu and others v. State of Bihar        A
2002 (2) Suppl. SCR 363 = (2002) 7 sec 295, Simon and
others v. State of Kamataka 2004 (1) SCR 1164 = (2004) 2
SCC 694 and Daya Singh v. State of Haryana - 2001 (1) SCR
1115 =AIR 2001SC1188 - relied on.
                                                              B
    Mohd. Abdul Hafeez v. State of Andhra Pradesh (1983)
1 sec 143 - distinguished.

    Suraj Pal v. State of Haryana 1994 (5) Suppl. SCR 373
= (1995) 2 sec 64 - referred to.
                                                              c
     4. The factum of death of the deceased and the
grievous injuries suffered by P.W.9, was supported by the
evidence of P.W.1, the postmortem doctor who also
attended on P.W.9. In the absence of any other contra
evidence, the murder of deceased as well as the grievous      D
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 who gave the
details about the loss of properties in the crime
committed by the accused was well justified. Therefore,       E
the conviction for the offences alleged against the
appellant of his involvement with four others falling u/ss
395, 396 and 397 of IPC as found proved and as
confirmed by the High Court does not call for any
interference. [para 11] [498-G-H; 500-A-C]                    F

    Rafiq Ahmad alias Rafi v. State of Uttar Pradesh (2011)
8 sec 300 - cited
                    Case Law Reference:
                                                              G
    1994 (5) Suppl. SCR 373 referred to          para 3
    1983 (1) sec 143           distinguished     para 3
    (2011) a sec 300           cited             para 4
                                                              H
    490      SUPREME COURT REPORTS                [2012] 7 S.C.R.


A         2002 (2) Suppl. SCR 363 relied on             para 12

          2004 (1) SCR 1164           relied on         para 12

          2001 (1) SCR 1115           relied on         para 12

B       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 438 of 2009.

        From the Judgment & Order dated 25.04.2007 of the High
    Court of Bombay at Aurangabad in Crl. Appeal No. 403/2005.

c         Rajiv Nanda for the Appellant.

          Aprajita Sinha, Asha Gopalan Nair for the Respondent.

          The Judgment of the Court was delivered by

D      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
E 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 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
F
  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
G occurrence, namely, 13/14.06.2004, P.W.10A.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
H
 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA                    491
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

enquiry it came to light that the thieves had gone to the adjoining   A
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             B
called Jamkhed crossroad and 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             c
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 ofVasanta 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
                                                                      0
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              E
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, Rahul
Bhosle, Ravi Shinde, one Balaji and another unknown person            F
(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            G
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
                                                                      H
    492      SUPREME COURT REPORTS                   (2012] 7 S.C.R.


A   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
8
    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 other person were made as regards
C   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
D   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
E   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
F   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 counsel summed-
    up his submissions by stating that there was no test
    identification parade, that there was no recovery of pant or
G   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
H
  DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA 493
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
of Andhra Pradesh - reported in (1983) 1 SCC 143 in support          A
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
                                                                     8
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       C
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          D
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          E
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     F
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 items were not placed before the Court. The learned            G
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           H
    494      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A 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
B 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
C    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 when a person is
     involved in an offence of theft of higher magnitude, then it
     becomes dacoity and when dacoity is committed with murder
D   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
E   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
F   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
G   395, 396 and 397 of IPC, his participation along with a group
    of five or more persons 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
H   to be use of a deadly weapon.
 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA                   495
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      6. Keeping the above basic prescription of the offence         A
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            B
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     c
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 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
                                                                     0
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,
                                                                     E
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        F
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          G
offence. In the cross-examination, however, she 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      H
    496      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A 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
B 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
C 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, however, stated that police did not take into
  custody the wooden articles from the accused in his presence
D 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
E 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
F 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,
G 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 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
H vacillating. It is true that initially in her chief examination she
    DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA               497
        [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

stated that four or five persons were involved in the crime but     A
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         B
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             C
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
occurrence, namely, the initial assault on her brother-in-law
which cost his life and thereafter on herself in making a clear
                                                                    0
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.                                            E

      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         F
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     G
of P.W.9 assumes significance. P.W.2 in his evidence stated
that the assailants had taken away a sum 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            H
    498     SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A 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
8 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
C 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 seriously injured witness
D 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
E 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
F to the i.nvolvement 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.

G      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 found
  on the body of the deceased made it clear that the cause of
H death was cardio respiratory arrest due to head injury'
 DEEPAK @ WIRELESS v. STATE OF MAHARASHTRA                    499
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

associated with asphyxia due to aspiration of blood oozing from      A
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     B
the injuries themselves can be noted which were as under:

      "1.   Incised wound on right forehead, 3 x 2 x 2 ems.
            caused by sharp weapon.

      2.    Incised wound on the right side of right eye             C
            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.
                                                                     D
      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,
            grievow; in nature, caused by hard and blunt object.     E

            All the injuries in my opinion were caused within 6
            hours, patient was referred to Govt. Medical
            College Hospital, Aurangabad, for further
            management and treatment. The certificate issued
                                                                     F
            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,         G
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 tne person of P.W.9
could have been caused by a metal sheet striking her. Beyond         H
    500      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A 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
B 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 who gave the details about the loss of properties in
  the crime committed by the accused was well justified.
c 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
D   for the appellant in the case of Mohd. Abdul Hafeez (supra), it
    was held thElrein 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
E   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
F   hand, the decisions relied upon by the High 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 Oahu and
    others v. State of Bihar - (2002) 7 SCC 295, Simon and others
G   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
H   the test identification parade, it was held that the same would
 DEEPAK@ WIRELESS v. STATE OF MAHARASHTRA                    501
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

enable the identification of the accused at the earliest possible    A
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         B
holding of test identification parade.

      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           C
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        D
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 appellanf 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     E
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 decision relied upon by the High Court fully supported the       F
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.
                                                                     G
R.P.                                        Appeal dismissed.