IMPORTANT POINT
Liability u/s 397 I.P.C. is individual & not constructive.

JUDGMENT

Vishnu Sahai, J. - The appellant aggrieved by the judgment and order dated 12-12-1983, passed by the Additional Sessions Judge, Greater Bombay, is Sessions Case No. 389 of 1982, convicting and sentencing him to undergo a separate sentence of seven years R.L under both Sections 392 r/w 397 r/w 34 I.P.C and 394 LP.C. Sentences to run concurrently has come up in appeal before us.

2. Briefly stated the prosecution case runs as under:

The informant Sakharam Shankar Lokhande (P.W.1) at the time of the incident was serving in Bharat Petroleum, as a watchman. On 16-4-1982 he had been assigned duty at Wadibunder from 4 p.m. to midnight. After finishing his duty at about 12.15 a.m. when he had reached the footway between Wadibunder and Dockyard Railway Station, the appellant, co-accused Ashok Tukaram Salve and Abdul Salam Yusuf Jaitapkar met him. Ashok Tukaram Salve and appellant caught hold of him the informant pushed them and started running. He fell with his right cheek on the ground. Ashok' Tukaram Salve, thereafter assaulted him with a razor on his left thigh and right hand. He thereafter/took his wrist watch. The appellant took out Rs. 200/- which was in hip pocket of his trousers. Thereafter the appellant and others ran away. The complainant thereafter went to the Station Master Dockyard Railway Station. The Station Master gave First Aid. Thereafter a Police Constable accompanied him to V.T. Railway Police Station. At the said Police Station he lodged his complaint.

From the V.T. Railway Police Station he was sent to St. George's Hospital. At the said hospital Dr. Vijaykumar Purshottam Ved (P.W.9) medically examined him at 1.20 a.m. and found on his person two incised wounds. One of them was 3" x 1/4" x 1/4" muscle deep was situated on the right cheek and the other which was about 4" x 1/4" x 1/4" into skin deep was situated on the left thigh. The said Doctor also found an abrasion on his left eyebrow.

2A. The evidence shows that the informant Sakharam Shankar Lokhande (P.W.I) reached at about 4 a.m. Police Station Ghatkopar. There S.I. Balkrishna Mahadeo Babar (P.W.11) recorded Fxhibit 29 and registered on its basis C.R. No. A-113 of 1982.

2B.The evidence also shows that at about 12.30 a.m. the same night Police Constable Maruti Ishwar Shinde and Head Constable Ramdas Parekh were called by P.S.I. Babar at V.T. Railway Police Station and were told that one person was robbed at Dockyard Railway Line. They accompanied P.S.I. Babar by the first local train at 4.15 a.m. to Dockyard Railway Station. They went to the place of incident. P.S.I. Babar remained there. Maruti Ishwar Shinde along with Ramdas Parekh started searching for the appellant and others. They saw two persons going in suspicious circumstances at a distance of about 25 feet from the railway line. On seeing them, they started running. Maruti Shinde (P.W. 2) caught Ashok Tukaram Salve and Head Constable Ramdas Kishan Parekh (P.W.3) caught the appellant.

At about 4.15 a.m. the appellant and Ashok Tukaram Salve were brought to S.I. Babar. S.I. Babar sent for public panchas. One out of them was Shatrughan More (P.W. 5). The appellant and Ashok Tukaram Salve were interrogated and expressed their willingness to get recoveries effected. Consequently Ashok Tukaram Salve and the Appellant, in the company of Shatrughan More, P.S.I. Babar and other police personnel went to a place near two Railway Chawls near Wadibunder Road. There was a small ditch covered by a stone. The appellant removed the stone and thereafter Ashok Tukaram Salve took out two razors (Articles 7 and 8) and two currency notes of Rs. 100/- each from the ditch. The said articles were taken in possession under a panchanama.

3. The investigation in the case was conducted by Sub Inspector Balkrishna Mahadeo Babar in the usual manner. During the course of the same co-accused Abdul Salam Yusuf Jaitapkar was arrested. 'On seeing him the complainant identified him as the third accused in the case. During the co