((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1361 OF 2004 Vasudeo Pyari Yadav Appellant versus State of Maharashtra Respondent Shyam Mehta alongwith Neel Kumar for appellant. Y.S.Shinde, APP for the State. CORAM : A.S.OKA, J. DATE : 13th February 2009 JUDGEMENT : 1. The submissions of the learned counsel appearing for the parties were heard yesterday. This is an appeal against conviction. The conviction of the appellant (original accused no.2) is for the offences punishable under section 452 read with 34, section 323 read with section 34, section 342 read with section 34, section 392 read with 34 and section 394 read with 34 of Indian Penal Code. For the offences under sections 392 and 394, the appellant has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/-. In default, he is sentenced to undergo rigorous imprisonment for six months. For the offence ((-2-)) punishable under section 342 he has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/-. In default, he has been sentenced to undergo rigorous imprisonment for one month. The sentence for the offence under section 323 is the same. For the offence under section 452, he has been sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/-. In default, he has been sentenced to undergo rigorous imprisonment for three months. 2. The case of the prosecution is that PW no.1 Mohanlal Ramnath Agarwal was doing cloth business. He was having a shop by name Kasturi on the ground floor of the building Kasturi, Property No.842, Budhwar Peth, Laxmi Road, Pune. On the first floor of the said building he had his office and on the second floor he was residing with his wife. His two sons were residing separately in different parts of City of Pune. One of his sons Shyamsundar had a shop business at Narayan Peth, PUne. His other son Devkinandan was a partner with him in the cloth business and of the shop by name "Kasturi". The first accused Basappa was ((-3-)) employed as a sweeper by PW-1 for cleaning his shop as well as house. For that purpose first accused used to report at 8.30 a.m.. The appellant (accused no.2) was employed in shop premises of Shyamsunder, the son of PW-1. There were 14 employees employed by PW-1 in his shop along with accused no.1. There is a separate entry to the shop premises in the building of PW-1. A separate entry is also provided for approaching first and second floors. A duplicate key of the shop premises was provided to the accused no.1. At 8.30 a.m. every day he used to report to the residence of PW-1 for cleaning the house and thereafter at about 9.30 or 10.00 a.m., he used to clean the shop premises. 3. On 6th October 2003 at about 7.00 a.m., the first accused came to the house of the complainant and knocked the door. PW-1 complainant opened the door and found that accused no.1 was standing outside the door. PW-1 complainant questioned the accused no.1 as to why he had come at 7.00 a.m. instead of 8.30 a.m.. The first accused replied that he wanted to clean the house and he entered the house. By that time the complainant’s wife ((-4-)) came there and questioned the accused no.1. The complainant’s wife told the accused no.1 that as the said day happened to be Ekadashi, cleaning and sweeping of the house should not be done. The accused no.2 was standing in the staircase. Subsequently he also entered the house. The case of the prosecution is that the accused pushed the complainant and his wife and dragged them to the bed room. The accused demanded the bag containing cash collected from the business on the earlier day. The accused cut the telephone wire. The accused no.1 sat on the chest of the complainant and started beating him. Accused no.2 took Nehru shirt of the complainant and handed over to the accused no.1 who inserted the shirt into his mouth. The Accused no.2 assaulted the complainant and his wife by giving blows by hand as well as by kicks. Accused no.1 caught hold the neck of complainant and threatened him to kill if bag containing the cash was not handed over to him. The accused no.1 assaulted the complainant by a wooden stick on his back and on his knee. As complainant and his wife declined to hand over the bag, the accused no.2 threatened the complainant’s wife that if she failed to give keys of cupboard, they would kill her. ((-5-)) Ultimately, the complainant’s wife succumbed to the terror and agreed to provide the key. The accused no.2 snatched the keys from the complainant’s wife and opened the cupboard. The accused snatched the bag containing the cash from the cupboard and ran away. While leaving the house of the complainant, both of them bolted the doors of the house from outside. Thus, the complainant and his wife were wrongfully confined to the house and were prevented from coming out of the house. The complainant and his wife shouted loudly from their bed room for help. Persons gathered there called the complainant’s son Shyamsundar. With his help the door was opened and the complainant and his wife were released. 4. While the accused were running alongwith the bag, a Police Constable Bhujbal was on patrolling duty. When he noticed that the accused were running in suspicious manner, he chased them and made them to stop. However, the accused did not stop. Ultimately, the said Police Constable caught hold of the accused with the help of one person. The accused were caught red handed with the cash of Rs.1.45 lakhs. ((-6-)) 5. The prosecution examined three witnesses. PW-1, as stated above, is the complainant Mohanlal. PW-2 is Doctor Rahul Kataria who examined and treated the injuries on the person of the complainant. PW-2 had issued a medical certificate which was proved in his evidence. PW-3 Aatmacharan is the investigating officer. 6. The learned counsel appointed to espouse the cause of the appellant submitted that the offences have not been established by the prosecution beyond reasonable doubt. He submitted that the evidence of PW-1 is inconsistent and does not inspire confidence. He submitted that PW-1 has made improvements while deposing before the Court. He submitted that PW-2 Dr.Rahul Kataria deposed before the Court that at 10.30 a.m. on 6th October 2003 PW-1 called him for giving medical treatment. He pointed out that PW-2 stated that the injuries on the person of PW-1 were five to six hours old. He submitted that if the said version is accepted, the prosecution case that the incident happened after 7.00 a.m. cannot be accepted. He submitted that the entire prosecution case deserves to be disbelieved. ((-7-)) He submitted that even if the evidence of the prosecution witnesses is to be accepted as it is, it is very clear that the prosecution has not established commission of the offence punishable under section 452 of the Indian Penal Code inasmuch as the prosecution has not established that the intention of the accused was to cause hurt while committing house trespass and that the same was committed after making preparation for causing hurt or for assaulting or for wrongfully restraining some person or for putting some person in fear of hurt. He submitted that merely because the accused trespassed into the house for the purposes of assaulting the complainant is not sufficient to support the conviction under section 452. He submitted that unless the necessary ingredient of preparation is established, the offence under section 427 cannot be established. 7. Lastly by placing reliance on various decisions of the Apex Court he submitted that the Trial Court has committed serious error by imposing maximum sentence of rigorous imprisonment for ten years for the offences punishable under sections 392 and 394 of the ((-8-)) Indian Penal Code. He submitted that the appellant has no antecedents and for the first offence such a harsh view could not have been taken. He pointed out that the age of the appellant at the relevant time was about 27 years and for the first offence he could not have been sentenced to suffer maximum punishment prescribed by the statute. 8. The learned APP supported the impugned judgement and order. He submitted that the offence is of very serious nature as the age of PW-1 at the relevant time was about 83 years. He submitted that the victims of the offence are 83 years old complainant and his wife who were staying on the second floor of the building and both their sons were residing separately. It is submitted that the crime has been committed against the old couple and, therefore, the learned Judge has rightly not shown leniency. He submitted that the evidence of PW-1 is very consistent and it inspires confidence. He submitted that the evidence is corroborated by PW-2. He submitted that this is a case where the accused were caught red handed in the close vicinity of the house of the complainant by a Police Constable and the ((-9-)) accused were caught with the stolen bag containing the cash. He submitted that no interference was called for. 9. I have given careful consideration to the submissions. I have perused the notes of evidence and record. At the time of recording of evidence the age of PW-1 was 83 years. In the first part of his examination in chief he has described the location of Kasturi building. He deposed that the accused no.1 was employed by him for last four years for doing the work of cleaning and sweeping the shop and house. He stated that accused no.2 was employed in the shop of his son Shamsundar located at Narayan peth, Pune. He stated that the first accused used to come daily at about 8 to 8.30 a.m. on the second floor of his house. He stated that there is lock on the entry door of first and second floors and one key of the said lock was provided to the second accused. While deposing about the incident of 6th October 2003 he stated thus :- "5. On 6.10.2003 at about 7.00 a.m. accused no.1 Basappa came on IInd floor in Kasturi building and called me for opening the door. I asked him "why do you come at 7.00 a.m." then he replied me he want to cleaning or sweeping the ((-10-)) house. By that time my wife had come there. My wife has also asked him "why do you come" then he said he had come for sweeping and cleaning house. Then my wife told him "today is Ekadashi, therefore, do not make cleaning or sweeping." Therefore, we have opened the door. Basappa entered into our house. The another person was below four steps of staircase and he could not be seen to me. Thereafter, he had also come to house and he was the another accused no.2 i.e. Vasudeo. Both accused nos.1 and 2 Basappa and Vasudeo came in house and demanded me to give bag. Basappa asked me to give bag, which is containing cash of the shop, came at night from the shop. I asked him which bag you want and whether you are conscious or under the influence of liquor. I refused to give them bag, therefore, accused no.1 gave me push and went ahead and accused no.2 gave push to my wife. Both accused dragged to me and my wife and took us to bed room and demanded cash bag. We have refused to give them bag, therefore, accused started beating. Both accused nos.1 and 2 have assaulted and beaten to me and my wife. Accused assaulted me with fist blow and with my wooden stick. Accused no.2 put my cloth into my mouth. Due to beating of accused, I fell down on ground and accused sat on my chest and put my cloth into my mouth. Accused no.1 Basappa and accused no.2 Vasudeo took safe key from my wife and opened the iron cupboard and took cash bag from cupboard. I resisted both the accused but they gave me push and went away alongwith cash bag and put the latch on the door from outside. Therefore, we could not come out of house. However, from the house window I shouted loudly for help, my wife has also shouted loudly for help. Many people gathered on the ground, on road. One lightwala i.e. neighbour came but he could not come up as the accused had put lock on ground entry. Therefore he went to my son Shamsunder at Narayan Peth, Pune and called him to our house. One police- constable was going by auto rickshaw on ground road and he was telling me by raising hand that he has ((-11-)) caught hold cash bag and also caught hold accused persons. My son Shamsunder came to our building and he opened the door." 10. He identified the bag in which the cash was kept by him. He identified other muddemal articles. He stated that he has already received the stolen property i.e. the cash of Rs.1.45 lakhs. Surprisingly a very brief cross examination of the said witness has been made. The first part of the cross examination is on the employees employed by PW-1. He was questioned about his daily collection and he stated that his daily collection was Rs.70 to 80 thousand from the said Kasturi shop. A case sought to be made in the cross examination is that his son Devkinandan had not paid the salaries to his employees for 5 to 6 months and therefore there used to be quarrel between them. He denied the suggestion that for a period of two to three years prior to the incident he had not paid the salary to the accused. A suggestion was given that the accused no.2 had proceeded to deposit the cash of the business in bank and at the instigation of his son, the complainant filed a false complaint. PW-1 admitted that except for injury on his back he has not received any ((-12-)) other injury. 11. PW-2 Dr.Rahul Katariya deposed that on 6th October 2003 at about 10.30 a.m., the complainant called him for giving medical treatment. Accordingly, he visited the house of the complainant. He deposed as regards injuries on the person of the complainant. The relevant part of his deposition reads thus:- "... ... I examined medically him and gave him treatment. I found some abbrassion marks on the right and left elbow and right wrist. I also found some wheal marks on his backside and there was swelling. I also found his left knees a little bleeding. The above injuries are possible probably some hard and blunt substance like wooden stick or hard substance came in contact. The above wheal injury is possible, assaulted by wooden stick. The other injuries shown in medical certificate a,b,c,e are possible if somebody gave push or resistance or fell down came in contact with some hard object, such injuries are possible. The abovesaid injuries are simple in nature. The aforesaid injuries were about 5 or 6 hours old injuries and it were fresh. The injured patient gave me history of assault. Thereafter, I issued him medical certificate. It bears my own handwriting. Contents are correct. It is signed by me. It is at Exh.24. ... ..." 12. He stated that he also examined complainant’s wife Kamlabai and found contusion on her back. He proved the medical certificate ((-13-)) of the injuries of the complainant which is at Exhibit-24 as well as medical certificate of the injuries sustained by the complainant’s wife which is at Exhibit-25. The counsel for the appellant pointed out that the witness stated that he was called at 10.30 a.m. and he has deposed that the injuries were 5 to 6 hours old. The learned counsel submitted that the incident must have occurred at 4.30 or 5.00 a.m. and therefore, the version of the PW No.1 is not truthworthy. It is pertinent to note that PW-2 has not stated that he examined the complainant and his wife at 10.30 a.m.. His version is that at about 10.30 a.m., the complainant called him for giving medical treatment. He stated that thereafter he visited the house of the complainant. It is not brought on record that PW-2 examined the complainant and his wife at 10.30 a.m. or immediately thereafter. Therefore, this criticism has no merit. In the cross examination PW-2 admitted that the complainant had not told him the exact time of the incident and no weapon was mentioned by him while giving history. He stated that the complainant and his relatives informed that the injuries were resulted by use of some hard substance. ((-14-)) 13. PW-3 Atmacharan Shinde was attached to Faraskhana Police Station at that time. He is not the investigating officer. He proved the FIR, spot panchanama and the arrest panchanama. There is hardly anything in the cross examination made of the said witness. 14. The evidence of PW-1 discloses that at 7.00 a.m. the accused no.1 knocked the door. Alongwith him the accused no.2 (appellant) was present. This shows that they were together at that time. The complainant was knowing both of them as the first accused was his employee and the second accused was an employee of his son. The prosecution has established the theft of the cash amount of Rs.1.45 lakhs by the accused. The evidence of PW-1 and PW-2 establishes that due to assault made by the accused by stick as well as by hand, hurt was caused to PW-1 and his wife. As stated earlier, the stolen property was found in the custody of the accused with they were caught red handed. There is no reason to disbelieve the evidence of PW No.1. Therefore, this was a case where all ingredients of case of robbery under section 390 were proved. Similarly, the ((-15-)) offence under section 323 has been proved as the evidence of PW-1 and PW-2 on this aspect will have to be accepted. Section 394 is an offence of voluntarily causing hurt in committing or attempting to committing robbery. Therefore, the said offence is also established by the prosecution. 15. The accused have been also been convicted for the offence punishable under section 342 of the Indian Penal Code. After snatching the bag containing the cash amount, the accused left the house of the complainant and bolted and latched the door from outside. Therefore, the accused restrained the complainant and his wife from going out of their house. Therefore, the offence under section 342 has been also established by the prosecution. 16. The learned counsel for the appellant laid emphasis on the submission that the offence under section 452 has not been established. Section 452 of the Indian Penal Code reads thus:- "S.452 : House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparation ((-16-)) 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 of either description for a term which may extend to seven years, and shall also be liable to fine." Before dealing with the ingredients of Section 452, it will be necessary to refer to the charge framed under section 452 against the accused which reads thus :- "3. That you accused on the aforesaid day, date, time place and during the course of the same transaction, either individually or in furtherance of your common intention committed house tress pass by entering into the house of complainant Mohanlal Agarwal, used as a human dwelling having made a preparation for causing hurt to the said Mohanlal Agarwal and thereby committed an offence punishable under section 452 simplicitor or under section 452 read with section 34 of the Indian Penal Code and within my cognizance." Thus, the charge framed is that in furtherance of the common intention the accused committed house trespass by entering into the house of the complainant having made a preparation for causing hurt to the said Mohanlal Agarwal. On plain reading of section 452 it applies to a person who commits house trespass having made preparation for causing hurt to any person or ((-17-)) for assaulting any person. Therefore, the question is whether the prosecution has established that the accused had made preparation for causing hurt to the complainant or his wife or had made preparation for assaulting any person. In the present case what is established by the prosecution is that the accused entered the house of the complainant and committed an assault. Thus, in this case for attracting section 452 of the Indian Penal Code, in the first instance house trespass is required to be established and thereafter it must be established by evidence that there was a preparation made for causing hurt to any person or to assault any person. The fact that a person enters the house of the complainant and commits an assault by itself is not sufficient to prove that he has done so with such preparation. In the present case, the assault has taken place after the complainant and his wife resisted. There is no evidence to show that the accused had made preparation for causing hurt to any person. Thus, there is a merit in the submission made by the learned counsel for the appellant as regards applicability of section 452 of the Indian Penal Code. Taking evidence of the ((-18-)) prosecution witnesses as it is, the offence punishable under section 452 has not been established as it is not proved that the accused had made any such preparation. 17. The learned counsel for the appellant made a grievance that for all the offences maximum punishment prescribed by the statute has been inflicted. He has placed reliance on the decision of Apex Court in the case of Ashok Kumar Vs. State (Delhi Administration) ([1980]2-SCC-282). In the said decision the Apex Court has quoted with approval the observations of Lord Soper in the House of Lords in debate on British Prisons. After referring the said observations, the Apex Court observed in paragraph 5 as under :- "5. Moreover, the appellant has already suffered nearly six months’ imprisonment and it is a well-known fact for criminologists that the initial few months of jail are the most painful and, therefore, the most deterrent. In the present case the offender having served a term of nearly six months must well have realised that the game of crime does not pay." He has also placed reliance on the decision of Apex Court in the case of Krishan Lal @ Bada ((-19-)) Vs. State (Delhi Administration) ([1982]2-SCC-175[I]). In the said case the Apex Court reduced the sentence for the offence under section 392 of the Indian Penal Code from seven years to three years. 18. As disclosed by the charge framed, the age of the appellant was 27 years at the time of commission of the offence. There are no antecedents of the appellant-second accused. He was working as an employee of the first informant’s son. This was the first offence committed by the appellant and that is the reason that it was submitted before the Trial Judge that the provisions of Probation of Offenders Act were attracted. The submission of the learned counsel for the appellant is that the appellant has been in custody from 6th October 2003 and, therefore, he should be let off on the sentence which he has already undergone. It is true that there is merit in the submission of the counsel for the appellant that considering the age of the accused and considering the fact that the appellant is not a habitual offender, sentence of ten years for the offence under sections 392 and 394 is very harsh. At the