Robbery definition does not necessitate weapon presence; conviction upheld based on sufficient evidence.

1. By presenting this revision petition, the revision petitioner / convict challenges his conviction for offence punishable under S.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 charge sheet to the learned Judicial Magistrate First Class, 6th Court Nagpur.

3. The learned Magistrate charged the accused of having committed offence punishable under S.458 of the Penal Code .
However, subsequently he altered the charge to one under S.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