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2008 DIGILAW 862 (BOM)

MOHD. KAMAR ABDUL ANSARI v. STATE OF MAHARASHTRA

2008-06-24

V.K.TAHILRAMANI

body2008
JUDGMENT:- The appellant-original accused No.1 has challenged the Judgment and Order dated 24-3-2005 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 1273 of 1997. By the said Judgment and Order, the learned Sessions Judge convicted the appellant under section •150 read with section 34 and 393, 394 read with section 398 of the Indian Penal Code. For the offence under section 450 read with 34 the learned Sessions Judge sentenced the appellant to suffer R.L It 5 years and fine of Rs. 2000/- in default R.L for one month. For the offence under section 393, 394 read with 398 the learned Sessions Judge sentenced the appellant to suffer R.L for 7 years and fine of Rs. 2000/- in default R.L for one month. The learned Sessions Judge directed the substantive sentence of imprisonment to run concurrently. 2. The prosecution case briefly stated is as under: The complainant P.W. No.1 Bhakre was residing in Flat No. 10, Chandan Apartment, Opp. Kamani Engineering, L.B.S. Marg, Kurla (W), Mumbai 400070. On 30- I 0-1996 at about 2.20 p.m., his door bell rang. The complainant opened the door. At that time the appellant and another unknown person were standing at the door. They enquired whether he was doctor. Dr. Bhakre replied affirmatively. They told him that one lady patient was to be examined, hence, Dr. 13hakre turned to pick up pen. Immediately one of the persons assaulted him with chopper. Dr. Bhakre tried to save himself, in the process he got injured on his left hand. Dr. Bhakre caught hold of that persons neck with his right hand, Meanwhile, the wanted accused gave a blow with weapon in his hand. To escape the said blow, Dr. Bhakre used the appellant as shield as a result the accused received the said blow. The other person fled away from the spot and the appellant fell down due to injuries. On hearing commotion, P.W. No.5 Swapnali-wife of the complainant rushed from the kitchen to the living room. At that time the second assailant ran away. Meanwhile P.W. No.2 Dr. Patil and P.W. No.3 Dr. Badhe also came there. A telephone call was given to the police. Police came. The appellant came to be arrested. The complainant as well as the accused were sent to the hospital on examination, the complainant was found to have injury on the left hand. Meanwhile P.W. No.2 Dr. Patil and P.W. No.3 Dr. Badhe also came there. A telephone call was given to the police. Police came. The appellant came to be arrested. The complainant as well as the accused were sent to the hospital on examination, the complainant was found to have injury on the left hand. Both accused and the complainant had sustained injuries. After completion of investigation, charge-sheet came to be filed. 3. Charge was framed against the appellant under section 450 read with sections 34, 393 and 394 read with 34 of the Indian Penal Code, section 398, Indian Penal Code and under section 37(1 lea) read with section 135 of the Bombay Police Act. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was of total denial and false implication. After going through the evidence, the learned Sessions Judge convicted and sentenced the accused as stated in paragraph 1 above. Hence this appeal. 4. The conviction of the accused is mainly based on the evidence of the complainant-P.W. No.1 Dr. Bhakre. As the prosecution case in paragraph 2 above has been taken from the evidence of the complainant in his examination in chief, I do not find it necessary to repeat the same here in detail Suffice to say that the complainant has stated that the appellant along with one other person had entered in the t1at of the complainant stating that they wanted him to examine a lady patient. When Dr. Bhakre turned to pick a pen, the appellant assaulted Dr. Bhakre. As stated earlier, Dr. Bhakre was referred to the hospital On examination Dr. Bhakre was found to have sustained superficial injuries i.e. y, X Y, superficial abrasion on his left hand. 5. Admittedly P.W. Nos. 2, 3 as well as P.W. No.5 are not eye witnesses to the assault on the complainant. However, I find that there is no reason to disbelieve the testimony of Dr. Bhakre that two persons entered in his house out of which one of them is the appellant and that the appellant assaulted him with chopper. However, from the medical certificate it is seen that the injury is simple in nature. 6. Mr. However, I find that there is no reason to disbelieve the testimony of Dr. Bhakre that two persons entered in his house out of which one of them is the appellant and that the appellant assaulted him with chopper. However, from the medical certificate it is seen that the injury is simple in nature. 6. Mr. Khatavkar, learned counsel for the appellant had submitted that there is no material to show that the appellant or the other accused had entered into the house of the complainant with an intention to commit robbery and hence, sections 393, 394 and 398 would not be attracted. In the present case F.I.R. has been immediately lodged. In the F.I.R. the complainant has stated that two persons entered into his house and assaulted him on account of professional rivalry. Nowhere the complainant has stated in the F.I.R. that the accused persons had come into his house to commit robbery. So also P.W.Nos.2,3, and 5 have not stated in their evidence that they suspected that the accused entered into the complainant's house to commit robbery. In his evidence, the complainant had stated before the Court that he realised thereafter that robbery must be the intention of the persons who entered into his house. However, the complainant has not stated so in the F.I.R. In the F.I.R. it is categorically stated by the complainant that according to him the assault had occurred on account of professional rivalry. Hence, this improvement by the complainant in his evidence before the Court that he suspected that robbery is the motive cannot be relied upon. 7. Thus, it is seen that there is no evidence to show that the accused persons had entered into the house to commit robbery. If at all the accused persons had entered the house of the complainant with intention to commit robbery, as soon as they entered the house, they would have demanded cash, valuables or they would have made an attempt to snatch the jewellery on the person of the complainant or they would have asked for the keys of the cupboard etc. However, no such act has been done by any of the accused. As soon as accused entered the house, they have assaulted the complainant. However, no such act has been done by any of the accused. As soon as accused entered the house, they have assaulted the complainant. From the evidence on record, it does appear that there was no intention to commit robbery and the reason for assault may be professional rivalry as stated by the complainant in his F.I.R. Hence, sections 393, 394, 397 would not be attracted and conviction for the said offences would have to be set aside. 9. As far as conviction under section 450 is concerned, section 450 deals with house trespass in order to commit offence punishable with life imprisonment. In the present case, as robbery has been ruled out, one would have to look into actual act of the accused person. The act of the appellant is that of assaulting the complainant with chopper. The injury caused by the appellant is already described above. The said injury is a simple injury. In such case, it would not attract life imprisonment and hence, section 450 of the Indian Penal Code would not be attracted. 10. In the present case, there is enough material to show that the appellant had committed house trespass, however, not with intention to commit offence punishable with life imprisonment, hence, in such case section 451, Indian Penal Code would be attracted. The maximum sentence of imprisonment under section 451 is two years. The evidence on record clearly shows that the appellant had assaulted Dr. Bhakre with a deadly weapon like chopper-Article 1. However, as the injury was simple in nature, section 324 of the Indian Penal Code could be attracted. 11. In the result, the Appeal is partly allowed. The conviction and sentence under sections 450, 393, 394 and 398, Indian Penal Code is set aside. However, the appellant is convicted under sections 324 and 451 of the Indian Penal Code. Under section 451 the appellant is sentenced to R.1. for two years and fine of Rs. 2,000/- in default R.1. for one month. For the offence under section 324 of the Indian Penal Code, the appellant is sentenced to R.1. for 3 years and fine of Rs. 2,000/- in default R.1. for one month. Both the substantive sentences of imprisonment to run concurrently. The appellant has been taken into custody on 19th March 2005 i.e. the appellant has been in custody for about 3 and Y, years. Hence, the appellant-Mohd. for 3 years and fine of Rs. 2,000/- in default R.1. for one month. Both the substantive sentences of imprisonment to run concurrently. The appellant has been taken into custody on 19th March 2005 i.e. the appellant has been in custody for about 3 and Y, years. Hence, the appellant-Mohd. Kamar Abdul Ansari be set at liberty if he is not required in any other offence. Appeal partly allowed.