1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.1483 OF 2004 Ramesh Viraswami Naidu Hindu, aged about 25 years, permanently residing at Plot No.38, Raman Mama Zopadpatti, Bainganwadi, Gowandi, Mumbai 400 043, and presently undergoing sentence at Mumbai Central Prison, Mumbai ...Appellant(Org.Accd.No.1). v. State of Maharashtra (At the instance of Vikroli Police Station C.R.No.226/2000) ...Respondents. Mr.Sherali S. Khan, adv. For the Appellant. Mr.Ramesh Viraswami Naidu-in-person-appellant produced/present in Court. Ms.M.H.Mhatre, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JULY 13, 2010 ORAL JUDGMENT: 1 Original accused no.1, who was convicted for the offences punishable under Sections 452, 393, 394 and 398 of the I.P.C. and was sentenced to undergo R.I. for seven years for the offence punishable under Sections 398 of the I.P.C. and to undergo for four years and to pay fine of Rs.500/- on each of the remaining three counts, has challenged the conviction and sentence awarded by the Additional Sessions Judge, 2 Mumbai in Sessions Case No.406/01. 2 To state in brief, incident of this case occurred at the house of P.W.1 Haresh situated at Vikroli, Tagor Nagar. He was living there with his wife Tara and son Vinay. Haresh used to run business of ready- made garments and behind the factory premises , he used to reside with his family. On 21.10.2000 at about 5.00 a.m. P.W.2 Tara woke up and was busy in her daily routine work. At about 6.15 a.m., door bell of the house rang and she opened the door and found that two persons were standing outside the door. They said that they had come from one Farukh Shaikh in connection with the factory work and they wanted to speak to her husband. She woke up her husband and P.W.1 Haresh came out of the house and had some talk with those two persons. Both those persons, one of whom was the accused no.1 and is the present appellant, were armed with swords. One of the culprits put the swords on the neck of Haresh and came inside the house. On taking entry in the house, both the persons told Haresh and his wife Tara that they are from Rajan gang and they wanted ransom of Rs.50,000/-. On their refusal to pay, one of them put sword on the neck of P.W.2 Tara and demanded keys of the cupboard. She gave key, however, the culprit could not open the cupboard as the key was in a bunch of the keys. One of the culprits put 3 sword on the neck of Haresh and hit him on the head with the sword due to which Haresh was injured. Meanwhile, P.W.2 Tara and her son Vinay caught hold of the assailant but that person took bite of P.W.2 Tara. The person, who had assaulted Haresh left the sword and ran away. However, second person was caught on the spot by Haresh, his wife Tara and son Vinay. Hearing shouts, many people came there. Somebody informed the police and PSI Suhas Chaudhary P.W.8 came there in the mobile van. Person, who was caught disclosed his name as Ramesh Naidu, who is accused no.1 and appellant before this Court. Both the swords, which were lying on the spot were seized by the police. Clothes of Haresh and Tara were also seized. They were referred to medical officer for examination. After investigation, police filed chargesheet against the four persons out of whom one was absconding. Case was committed to the Court of Sessions. 3 Accused nos.1, 2 and 4 were charged for the offences punishable under Sections 452,393, 394 read with Sections 34 and 398 of the I.P.C. as well as under Section 25 of the Arms Act. Accused persons pleaded not guilty. After the trial, accused nos.2 and 4 were acquitted of all the charges while the accused no.1 was convicted and sentenced as stated above. 4 4 At the outset, it may be stated that the accused/appellant is also present before the Court today and makes a statement that he has already undergone his complete sentence of imprisonment and has also paid fine amount. According to him, he was released from jail about one year two months ago. However, it was not known that he has been released from jail after undergoing sentence, and, therefore, Non Bailable Warrant was issued against him and he has been brought before the Court under the warrant. From the record, it appears that he was in custody from 21.10.2000, i.e., the date of incident till 28.12.2001 when he was granted bail and on conviction on 25.11.2004, he was taken in custody on conviction and since then he was in jail. 5 On perusal of the evidence before the trial Court, it appears that P.W.1 Haresh and P.W.2 Tara deposed about the prosecution case in detail. Their evidence shows that two persons had forcibly taken entry in their house and they were armed with swords. They made demand of Rs. 50,000/- but P.W. Nos.1 and 2 could not satisfy the demand and refused to pay. One of the accused put sword on the neck of Haresh and also assaulted him with the sword and caused injury. Another culprit assaulted P.W.2 Tara and put sword on her neck. As P.W.2 Tara and her son tried to catch hold of the said assailant, said person took bite.. 5 Meanwhile, one of the assailants ran away leaving the swords on the spot. Many people including P.W.3 Divakar Pardhi came to the spot. He also corroborated the evidence of P.W.1 and 2 to the extent that the accused no.1 was caught on the spot and when the police came there, he was handed over to the police. Evidence of P.W.8 PSI Chaudhary shows that he got information from the control room that one thief was caught at Chawl No.192, Tagor Nagar and immediately he rushed to the spot and found that accused no.1 was caught by the people and P.W.1 Haresh was injured. Accused No.1 disclosed his name as Ramesh Naidu. Swords, which were lying on the spot were seized under panchanama, Ex.16. 6 Evidence of P.W.5 Dr. Naresh shows he had examined P.W.1 Haresh and that on examination, he found contused lacerated wound of size 5 to 6 cm x 3 x 4 c.m. on the temporal bone. Active bleeding was present. Shape of the injury was like inverted angle. According to him, injury was possible by the sword or by any other sharp weapon. 7 Evidence of P.W.6 Dr.Avinash shows that he had examined P.W.2 Tara and found contusion on her left arm with teeth marks and small multiple cuts on her left hand. He also found multiple abrasions on the right shoulder, right forearm and right hand and small abrasions on 6 the left foot of Vinay son of Haresh. Evidence of the two medical officers goes to provide corroboration to the testimony of the P.W.1 Haresh and P.W.2 Tara. 8 Besides this, as per the evidence on record, the swords and the clothes of P.W.1 Haresh were referred to C.A. C.A. reports revealed that the on the clothes as well as swords there were human blood stains of 'O' group. Clothes of the accused no.1 Ramesh, which were seized under panchanama Ex.27 were also referred to the C.A. C.A.report revealed that there were human blood stains of 'O' group. Accused No.1 had not suffered any injury. Presence of blood of 'O' group, which appears to be blood of P.W.1 Haresh provides further corroboration to the prosecution story against the present appellant. Besides, the appellant was caught at the spot by the Haresh, his wife and son and other people from the locality. Taking into consideration all this material, I find that the learned trial Court was right in holding that the accused had committed offence. Taking into consideration the nature of the offence and particularly, the fact that during an attempt to commit robbery, accused/appellant was armed with sword. His conviction with the help of Section 398 of the I.P.C. and sentence of R.I. for seven years, which is minimum sentence is justified. Therefore, I find no substance in 7 the present appeal. 9 For the aforesaid reasons, appeal stands dismissed. As the appellant was brought before the Court today under the Non Bailable Warrant, he is released forthwith. (J.H. BHATIA,J.)