1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINL APPELLATE JURISDICTION CRIMINAL APPEAL NO.555 OF 2005 Chandrashekhar Narayan Amin ...Appellant. v. The State of Maharashtra ...Respondents. Mr.Arfan Sait, appointed adv. For the Appellant. Smt.A.T.Javeri and Smt.R.V.Newton, APPs for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : 4th December , 2009 ORAL JUDGMENT: 1 The accused was convicted for the offences punishable under Section 457, 397 and 326 of the Indian Penal Code and was sentenced to undergo R.I. for two years and to pay fine of Rs.1,000/-, R.I. For 7 years and to undergo R.I. For two years and to pay fine of Rs. 500/- for the said offences respectively by the learned Additional Sessions Judge, Ratnagiri in Sessions Case No.38 of 2004. Accused has by this appeal challenged his conviction and the sentence. 2 Prosecution case in brief is that accused/appellant was in service of the P.W.1 Vijaya M. Waghdhare and used to attend her floor mill situated in her house itself. Accused also used to eat and sleep there only. Vijaya was living in the said house alongwith her son, daughter-in- 2 law and their daughter. On 17.11.2003 her son Sanjay had gone to Mumbai. At about 8.10 pm after closing the floor mill, accused approached P.W.1 Vijaya and demanded some money for consuming liquor. She gave her Rs.10/-. Accused was not satisfied and he demanded more money which she refused. After that he went away to consume liquor and also came back. Vijaya and her daughter-in-law were sleeping in one room and her grand daughter Rakshika was in another room. At about 11.00 pm Vijaya woke up on hearing the screams of daughter-in- law Sayali and she found that accused was assaulting Sayali with sickle and she had suffered several injuries. Vijaya also cried and the accused assaulted her with a sickle and caused several injuries on her head, breast, left thumb and nose. In that incident, accused also snatched gold chain and gold necklace of Vijaya. During that incident Rakshika also came there and accused assaulted her. He also snatched an amount of Rs. 1500/- consisting of currency notes and coins from her and ran away. After his departure. it was revealed that he had made entry in the room by removing certain roof tiles of the room. Vijaya shouted and, therefore, several neighbours came there. Some of them informed Sanjay, who came back and he took his mother Vijaya to Jaitapur hospital and from there, she was shifted to General Hospital, Ratnagiri where she was 3 examined and given treatment. Sayali was also examined and treated for the injuries suffered by her. Vijaya lodged a report on the basis of which initially crime was registered at Ratnagiri Police Station and then was transferred to Rajapur Police Station within whose jurisdiction the incident had occurred. After some search, on next day accused was found near a pick-up shed at Chavanwadi near Ansure fata. He was arrested under panchanama. Gold chain and gold necklace as well as an amount of Rs.1500/- were also recovered from him. While he was in custody, on the basis of information given by him, sickle was seized by the police under panchanama from a spot near the pick-up shed where he was arrested. Weapon and the clothes of Vijaya and other articles and blood samples were referred to C.A. After investigation charge-sheet was filed and eventually case was committed to the Court of Sessions. 3 Vide Exhibit 3 accused was charged for the offences punishable under Sections 457, 307 and 397 of the I.P.C. Accused pleaded not guilty and claimed to be tried. On behalf of the prosecution in all 7 witnesses were examined. The learned trial Court convicted him for the offences punishable under Sections 457, 326 and 397 of the I.PC. and sentenced him as stated erlier. 4 Heard the learned counsel for the parties. Perused the record 4 and proceeding of the trial Court. P.W.1 Vijaya, P.W.2 Sayali and P.W.3 Rakshika were the eye witnesses of the incident. Their evidence clearly reveals that accused was in the service of P.W.1 Vijaya and was working at her floor mill. He also used to eat and sleep there only. Incident of this case occurred on 17.11.2003 at about 11 p.m. P.W.1 Vijaya deposed that accused had demanded money from her for consuming liquor after closing the floor mill. She gave him amount of Rs.10/- but he wanted more which she refused. After that he went away after taking the meals. Vijaya and Sayali slept in one room and Rakshika was sleeping in another room. Accused used to sleep in padavi in front of the floor mill. The evidence of Sayali reveals that at about 11 p.m. hearing some sound, she woke up and found accused in her room. Accused began to assault her with sickle and caused injuries. As she screamed, her mother- in-law P.W.1 Vijaya also woke up and then the accused assaulted her with sickle and caused several bleeding injuries to her. Hearing the sound, Rakshika P.W.3 also came there and she was also assaulted by the accused. As per their evidence, the accused snatched away a gold chain and gold necklace from Vijaya. Due to the fear, Rakshika handed over an amount of Rs.1500/- which included currency notes and coins. When Vijaya began to shout, accused ran away from the spot with the 5 weapon as well as stolen articles. On that day, Sanjay son of Vijaya was not at house and, therefore, he was informed and he came back. Injured persons were taken initially to Jaitapur and then to general hospital. Police recorded statement of Vijaya P.W.1 and that statement was treated as F.I.R. Exhibit 7. The accused was arrested by police at Chavanwadi pick-up shed near Ansure phata. That place is around 35 kms from Madban where the incident had occurred. Evidence of P.W.4 Sanjay a panch witness and P.W.6 Police Inspector Laxman Sawant shows that during the search of the accused, gold necklace, gold chain and an amount of Rs.1500/- were found with him and all these articles were seized under panchanama Exhibit 12. That panchanama was prepared between 7.30 and 8.00 pm on 18.11.2003. It means within 24 hours after the incident, accused was arrested and stolen articles were seized from him. 5 The Spot Panchanama, Exhibit 11 was prepared by the Investigating Officer P.W.6 Sawant. The said panchanama is also proved by P.W.4 Sanjay. It shows that roof tiles of bedroom of Vijaya were found removed. Their room was closed from inside when the incident occurred and naturally entry must have been made in the room through the roof by removing the roof tiles. 6 6 Evidence of P.W.5 Tukaram and the Investigating Officer Sawant shows that on 21.11.2003, police interrogated the accused in presence of the panch witnesses and he disclosed that he had hidden the sickle and he was willing to produce the same. Accordingly, memorandum, Exhibit 15 was prepared. Thereafter, police and the panchas alongwith the accused went near a new pick up shade. Accused asked to stop the vehicle .At the distance of 50 to 60 ft. from the pick-up shade, he took out one sickle, which was kept under the stones. That sickle article 3 came to be seized under the panchanama Exhibit 16. The evidence of the Investigating Officer and the panchas could not be shattered in respect of seizure of weapon at the instance of the accused as well as seizure of the stolen articles from him under the different panchanamas. 7 P.W.7 Dr. Mahendra Gavade deposed that P.W.1 Vijaya, P.W.2 Sayali and P.W.3 Rakshika were referred to him at Primary Health Centre, Jaitapur on 18.11.2003. He examined them at 1.30 a.m. onwards on 18.11.2003. Vijaya had suffered four contused lacerated wounds of different sizes, which could be caused by hard and sharp substance and accordingly, he issued medical certificate, Exhibit 22. He also found 7 contused lacerated wounds on the person of Sayali and these injuries 7 could also be caused by hard and sharp substance. Accordingly, he issued certificate, Exhibit 23. He also found abrasion of left elbow joint of Rakshika. This also could be caused by hard and sharp object and accordingly, he issued medical certificate, Exhibit 24. Though the Medical Officer was cross-examined, nothing could be brought on record on the basis of which evidence of the doctor could be disbelieved. 8 Evidence of the medical officer, the spot panchanama and the recovery of stolen articles from the accused as well as recovery of the sickle at the instance of the accused go to provide corroboration to the testimony of P.Ws Vijaya, Sayali and Rakshika. C.A.Report Exhibit 27 shows that the bedsheets, clothes of the injured persons as well the sickle were found stained with human blood though the blood group could not be detected. Human blood on these articles also provides corroboration to the testimony of the eye witnesses. 9 In view of the evidence on record, it is clear that after some dispute about money at about 8.00 pm. on 17.11.2003, accused committed trespass into the room of Vijaya by removing roof tiles of that room. At that time, he was armed with a sickle, which was sharp and cutting weapon and which could cause death also. After having made 8 entry in the house, he used the weapon and caused several injuries to Vijaya, her daughter-in-law as well as grand daughter by the said weapon. Not only this, he snatched away gold ornaments from Vijaya and due to the fear Rakshika handed over an amount of Rs.1500/- to the accused and the accused took away that money also. In view of this, it is clear that intention of the accused was to commit robbery and for that purpose he had taken sharp and cutting weapon with him and having made such preparation to cause injury and death if necessary, he made entry in the house at about 11.00 p.m. i.e. after the sunset and before the sunrise. In view of these facts and circumstances, charges of house trespass punishable under Section 457 and of robbery are proved against him. As at the time of commission of offence he was armed with deadly weapon and he had also used that weapon, he had committed the offence of robbery punishable under Section 394 r/w Section 397 of the I.P.C. 10 The trial Court came to conclusion that intention of the accused was not to cause death but he had caused several injuries, out of which injury no.1 on the person of Vijaya was described as grievous hurt by the medical officer and, therefore, the trial Court convicted the accused for the offence punishable under Section 326 in stead of section 307 of the I.P.C. Injury no.1 on the person of Vijaya was as follows: 9 “1) Contused lacerated wound over left upper lateral quantrant of breast just below the lateral side of clavical directed downward and laterally. The size of the wound was 10 cm X 6 cm X 5 cm. deep. “ Medical officer described this injury as grievous hurt. However, it is settled position of law that Court has to come to its conclusion whether the particular injury was grievous or not and the Court is not bound by the opinion of the Medical Officer even though he is expert in the medical field. Under Section 319 of the I.P.C. whoever causes bodily pain, disease or infirmity to any person is said to have caused hurt. Grievous hurt is defined in Section 320. It reads as follows: “320. Grievous hurt.- The following kinds of hurt only are designated as “grievous”:- First.- Emasculation. Secondly- Permanent privation of the sight of either eye, Thirdly- Permanent privation of the hearing of either ear, Fourthly- Privation of any member or joint. Fifthly- Destruction or permanent impairing of the powers of any member or joint. Sixthly- Permanent disfiguration of the head or face. Seventhly- Fracture or dislocation of a bone or tooth. Eighthly- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. “ Injury no.1 on the person of Vijaya would not fall in any of the first seven categories mentioned in Section 320 of the I.PC. Eighth clause 10 would be applicable, if the hurt endangers life or causes the sufferer to be during the 20 days in severe bodily pain or the sufferer is unable to follow his ordinary pursuits for a period of 20 days. Even though injury no.1 was on the breast of Vijaya and it was caused by sharp and cutting weapon, there is nothing on record to show that that injury had endangered her life nor there is any evidence on record that because of the said injury she had suffered severe bodily pain or was unable to follow ordinary pursuits for a period of 20 days. Therefore, injury no.1 would not fall within eighth clause of Section 320. As such, the injury could not be treated as grievous hurt as defined under Section 320 of the I.P.C. The learned trial Court did not consider this aspect and merely because Medical Officer had described this injury as grievous hurt, he held the accused guilty for causing grievous hurt by using sharp and cutting weapon and convicted him for the offence punishable under Section 326 of the I.P.C. Taking into consideration the injuries suffered by all the three witnesses with sharp and cutting weapon, accused could have been convicted for the offence of causing hurt with sharp and cutting weapon punishable under Section 324 of the I.P.C. 11 The trial Court awarded sentence of R.I. for two years with fine of Rs.500/- for the offence punishable under Section 326 of the I.P.C. which 11 needs to be modified. The sentence of R.I. for two years and fine for the offence punishable under Section 457 of the I.P.C. appears to be justified. Minimum sentence for offence of robbery is rigorous imprisonment, which may extend to 10 years under Section 392. If the accused causes hurt voluntarily while committing the robbery, he may be punished with imprisonment for life or with rigorous imprisonment, which may extend to 10 years as well as fine. Section 397 also provides that if, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. The trial Court has awarded R.I. for 7 years, which was minimum sentence prescribed under Section 397 for the offence of robbery when the accused had used deadly weapon. Therefore, that sentence also can not be interfered with. 12 For the aforesaid reasons, appeal is partly allowed and conviction and sentence under Section 326 of the I.P.C. are hereby set aside and instead the accused is convicted for the offence punishable under Section 12 324 of I.P.C. and sentenced to undergo R.I. for one year. Remaining part of the impugned order is maintained. (J.H. BHATIA,J.)