MP 1 APEAL595_08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 595 OF 2008 IN SESSIONS CASE NO. 193 OF 2007 Dudhnath @ Ajay Baburam Harijan Navjivan Gamdiay Road, Belantian Building, Mahalakshmi Station, Mumbai ... Appellant At present lodged at Nashik Road Central Prison, Nashik Versus The State of Maharashtra ... Respondent Mr. Aniket Vagal, Advocate for the Appellant. Smt. G. P. Mulekar, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 18TH OCTOBER 2011 ORAL JUDGMENT : Original accused No.2 in Sessions Case No.193 of 2007 has preferred this appeal against the judgment and order dated 14.09.2007 passed by the 1st Ad-hoc Assistant Sessions Judge, Bombay, whereby the appellant / accused No.2 and another accused No.3 Durgesh Panchlal Harijan were convicted for the offences punishable under Sections 394, 450 and 342 r/w. Section 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years and to pay fine of Rs.2000/- on first two counts and to undergo simple imprisonment for one year with fine of Rs.500/- on the third count. 2. At the outset, the learned Counsel for the appellant made a statement that he would not challenge the conviction of the accused for the offence of robbery, house-trespass and wrongful restraint, but, according to him, on the basis of the prosecution story, the conviction under Sections 394 and 450 of the MP 2 APEAL595_08 Indian Penal Code cannot stand and the sentence awarded by the trial Court is also excessive. 3. The prosecution case, in brief, is that the complainant P.W.1 Manibai Idnani, aged about 77 years, used to reside in her flat at Tirupati Apartment, Opposite Mahalakshmi Temple, Mumbai along with her husband. Their son P.W.2 Prakash used to reside separately in different house at Bhulabhai Desai Road, Mumbai. The old couple had employed one servant who had also left the job. As usual, on 15.11.2006 at about 10.30 a.m., husband of P.W.1 Manibai left the house to attend the business, and thereafter P.W.1 Manibai was alone at her house and the door of the flat was closed from inside. The door has a small window in the middle so that the insider can watch as to who is outside the door. On that day, at about 12.30 p.m., two boys, who are identified as accused No.2 Dudhnath and accused No.3 Durgesh, came near the flat and rang the door bell. Therefore, P.W.1 Manibai went near the entrance of the door. The accused persons showed a chit to her showing her name. The accused persons told her that they had come to meet her. However, after reading her name on the chit, P.W.1 asked the said boys to come on the next day as at that time she was alone in the flat. While talking to them, she had opened the door, and when it was half-open, the accused Nos. 2 and 3 pushed the entrance and entered into the flat. They caught hold of Manibai and asked to handover keys. They took her towards the bedroom, tied her hands, legs and mouth with piece of cloth and thereafter they searched for the key. After some search, the accused No.2 got the key of the cupboard and he removed ornaments and cash from the cupboard. They also broke open another cupboard in the bedroom and took out some more ornaments and clothes. After that the accused Nos. 2 and 3 tied Manibai to a basin with piece of cloth and went away along with the cash and ornaments stolen from the house. 4. At about 1.00 p.m., P.W.5 Raju Menaria, who was a delivery boy from Manoranjan Hotel, came there to supply lunch to Manibai and he rang the door MP 3 APEAL595_08 bell. As her mouth was closed, she could not speak clearly but she raised some voice and thereafter instructed him to open the shutter of the small window. The said boy saw the old lady in tied condition. Thereafter, the liftman and neighbour were called who in turn phoned her son and the husband. Husband of P.W.1 opened the door as the key of the house was with him. Thereafter, police was contacted and she lodged the report. F.I.R. was registered. Police made panchanama. It was revealed that cash and ornaments worth Rs.2,50,000/- were stolen away from the house. On the basis of the report lodged by her, Crime No.310 of 2006 was registered for the offence under Sections 452, 342 and 392 r/w. Section 34 of the Indian Penal Code. During the investigation, both the accused persons were arrested within a short period, and on the basis of information given by them, most of the stolen property was recovered and seized. Accused No.1 Nandu Singh was also arrested with them. After investigation, charge-sheet was filed against accused Nos. 1, 2 and 3 for the offences punishable under Sections 450, 452, 342, 394, 120-B r/w. Section 34 of the Indian Penal Code, and accordingly, charge was framed against all the three accused persons under these Sections. 5. After the trial, accused No.1 was acquitted. Accused Nos.2 and 3 were also acquitted of the charges under Sections 452 and 120-B of the Indian Penal Code. They were convicted of the charges under Sections 450, 394 and 342 r/w. Section 34 of the Indian Penal Code and they were sentenced as stated above. 6. In view of the contention of the learned Counsel for the accused appellant, it is not necessary to scrutinize the prosecution evidence. Taking the facts as alleged by the prosecution, it is clear that the accused Nos.2 and 3 made entry in the house of P.W.1 Manibai and wrongfully restrained her in the house by tying her hands, legs and mouth and thus her movements were restricted and she was also restrained from raising alarm. The accused persons MP 4 APEAL595_08 having wrongfully restrained P.W.1 Manibai searched out key of the cupboards, opened them and took some ornaments and cash. As they wrongfully restrained her and confined her in her own house, the accused persons had committed the offence punishable under Section 342 r/w. Section 34 of the Indian Penal Code. Section 390 of the Indian Penal Code defines 'robbery'. It provides that, theft is robbery if, in order to the committing of the theft, or in committing the theft or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or restraint. In the present case, as the accused persons had wrongfully restrained and confined Manibai while committing the offence of theft from her house, it amounted to robbery. As the accused persons had taken away the property by committing theft after they restrained and confined her, they are liable to be convicted for the offence of robbery punishable under Section 392 of the Indian Penal Code. Under Section 392, whoever commits robbery shall be punishable with imprisonment for a term which may extend to ten years, and shall also be liable to fine. Section 394 is the aggregative form of robbery. It provides that, if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for the term which may extend to ten years, and shall also be liable to fine. In view of the language of Section 394, it is clear that Section 394 would be invoked if the offender while committing or attempting to commit robbery voluntarily causes hurt. In the present case, there was no allegation either in the F.I.R. or in the oral evidence that the accused persons had assaulted and caused any hurt to Manibai, while committing or attempting to commit robbery. The only allegation was that they had wrongfully restrained and confined her in the bedroom by tying her hands and legs. As there was no allegation nor there was any evidence of MP 5 APEAL595_08 causing any hurt by the accused to Manibai, Section 394 of the Indian Penal Code could not be invoked. The accused persons could be convicted for the offence of robbery punishable under Section 392 r/w. Section 34 but not under Section 394 r/w. Section 34 of the Indian Penal Code. 7. As per Section 452 of the Indian Penal Code, whoever commits house- trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment which may extend to seven years and fine. Section 450 is the aggregative form of the house-trespass. Section 450 provides that, whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years and shall also be liable to fine. The accused persons were charged and convicted for the offences under Section 450 as well as under Section 452. Under Section 452, no separate sentence was passed. The trial Court convicted the accused for the offence under Section 450 because it held that the accused had committed the offence of robbery voluntarily causing hurt punishable under Section 394 for which punishment of imprisonment is life imprisonment. If Section 394 could not be invoked, the accused could not be held guilty for the offence under Section 450 also. For the offence of robbery punishable under Section 392, the maximum punishment is imprisonment for ten years and fine. Therefore, if the accused makes a house-trespass and commits robbery without causing any hurt to anybody, Section 450 will not be applicable. 8. In view of facts and circumstances of the case, the prosecution only proved that the accused had committed the offences of robbery punishable under Section 392, a house-trespass punishable under Section 452 and wrongful confinement punishable under Section 342 of the Indian Penal Code. MP 6 APEAL595_08 As no hurt was caused, Section 394 could not be applied, and in the result, the accused also could not be convicted for the offence under Section 450 of the Indian Penal Code. Therefore, to that extent, the appeal deserves to be allowed. 9. For the aforesaid reasons, the appeal is allowed. The impugned order of conviction and sentence is hereby set aside. (a) The appellant / accused No.2 Dudhnath @ Ajay Harijan is hereby convicted for the offence punishable under Section 392 r/ w. Section 34 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.2000/-, and in default to pay fine, to undergo further rigorous imprisonment for three months. (b) He is also convicted for the offence under Section 452 r/w. Section 34 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/-, and in default to pay fine, to undergo further rigorous imprisonment for two months. (c) He is also convicted for the offence punishable under Section 342 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for six months. 10. The appellant / accused No.2 is acquitted of the charges under Sections 394 and 450 of the Indian Penal Code. 11. The substantive sentences of imprisonment, on all the counts, shall run concurrently. (J. H. BHATIA, J)