2017 ALL MR (Cri) 3599
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

V. M. DESHPANDE, J.

Yogesh s/o. Kacharu Ighe Vs. State of Maharashtra

Criminal Appeal No.334 of 2015

17th July, 2017.

Petitioner Counsel: Shri C.R. THAKUR
Respondent Counsel: Shri N.B. JAWADE

(A) Penal Code (1860), S.307 - Attempt to murder - Mens rea - Appellant allegedly attempted to kill 70 years old senior citizen who was residing alone by pressing her neck - No injuries found on her neck - However, her evidence shows that appellant pressed her neck from front side which is wind pipe area, due to which she felt suffocation and in order to save her life she gave kick blow to appellant - Facts constitute mens rea of appellant to commit offence u/S.307. (Para 15)

(B) Penal Code (1860), Ss.457, 392, 307 - Lurking house trespass by night, robbery and attempt to murder - Sentence - Leniency - Appellant with intention to commit robbery had entered house of senior citizen who was all alone residing - Thereafter, he tried to commit her murder by pressing her neck - Leniency cannot be shown in favour of appellant. (Para 16)

(C) Penal Code (1860), Ss.457, 392, 307 - Lurking house trespass by night, robbery and attempt to murder - Appeal against conviction - Appellant allegedly entered house of 70 years old senior citizen who was residing alone, with intention to commit robbery and thereafter, tried to kill her by pressing her neck - Benefit of doubt sought on ground that due to darkness, victim could not see face of person who tried to press her mouth - However, she being experienced doctor, recognised appellant by appearance from witness box - Injury report of appellant corroborated version of victim - Guard and other persons who caught hold of appellant, also in support of victim - Conviction proper. (Paras 9, 10, 11, 12, 13, 14)

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order of conviction passed by Learned Additional Sessions Judge, Nagpur dated 27/7/2015, in S.T. No 504/2013. By the impugned judgment and order of conviction the appellant is convicted for the offence punishable under Sections 457, 392, 307 of Indian Penal Code.

In so far as the sentence part is concerned for the offence punishable under Section 457 of the Indian Penal Code he is directed to suffer R.I. for three years and to pay fine of Rs. 500/- and in default of payment of fine to undergo further R.I. for three months.

On account of his conviction under Section 392 of the Indian Penal Code the learned Court below directed that appellant should suffer R.I. for three years and to pay fine of Rs. 500/- and in default of payment of fine he has to suffer R.I. for three months.

In so far as offence under Section 307 of the Indian Penal Code is concerned, the learned Court below directed appellant to suffer R.I. for five years and to pay a fine of Rs.1000/- and in default of payment of fine he has to suffer R.I. for six months.

2. The prosecution case is as under:

On 12/09/2013 Dr. Rekha Rajan Bhiwapurkar, aged about 70 years filed her oral report with P.S. Sitabuldi, Nagpur. Her oral report is at Exh.7. The printed F.I.R. is at Exh.8. On the basis of the oral report lodged by Dr. Rekha Bhiwapurkar (PW1) the offence was registered vide Crime No.307/2013 for offence punishable under Sections 457, 392 and 307 of the Indian Penal Code.

3. As per oral report, Dr. Rekha Bhiwapurkar runs her clinic at Main Road, Sadar, Nagpur. She lost her husband Dr. Rajan Bhiwapur about three months prior to the date of the incident. Her son Dr. Ashish Bhiwapurkar is staying at Mumbai whereas, her daughter Dr. Shilpa Aarya stays at Civil Lines, Nagpur.

4. As per F.I.R. (Exh.8) on 11/9/1993, after returning from her clinic and after having dinner with her maid servant Parvatabai Vithalraoji Ingale (PW7) she was watching television sitting on sofa in her room. At about 1.30 in the night she slept on sofa itself. For some reasons when her sleep was disturbed that time she noticed a person was standing near her. She inquired with that man as to who he is. Upon that he kept his palm on her mouth and threatened "chup raho". That time she took bite to his fingers . She tried to get herself rescue from that man. That time, the said person tried to press her neck. Dr. Rekha Bhiwapurkar made all her efforts to save her life and in that she gave a kick blow to the said person. Resultantly, the said person fell down. Therefore, she immediately came out side her room and ignited the passage light and started raising voice for help. After hearing her voice for help one servant Jitendra Paswan (PW2) from bunglow situated in front of her house and other persons came there. They noticed movements in front of garden of her house therefore, they caught hold the said person. On inquiry, he disclosed his name as Yogesh (appellant).

5. A.P.I. Pawan Prataprao Besle (PW8) registered the offence. He sent Dr. Rekha Bhiwapurkar and also accused for their medical examinations. He prepared spot panchnama (Exh.48). He also seized the clothes of accused under seizure memo (Exh.39). He also seized amount from his pocket. These were more than Rs. 3,000/-. Thereafter he handed over the investigation to A.P.I. Ravindra Lalxmikant Dubey (PW6). Ravindra Dubey (PW6) completed the other investigation including recording the statements of the witnesses. Thereafter, he filed the chargesheet.

6. After charge (Exh.2) was framed against appellant he denied the charge and claimed for his trial.

7. In order to bring home guilt of the appellant the prosecution has examined in all 8 witnesses. Dr. Rekha Rajan Bhiwapurkar (PW1),the complainant, Jitendra Rajendra Paswan (PW2) who is one of the persons who caught hold appellant, Nitesh Ramsing Malik (PW3),the panch on the spot panchnama (Exh.48) who turned hostile, Yashwant S/o Gangadhar Yerpude (PW4), a guard in the house of Dr. Rekha Bhiwapurkar who also caught hold appellant alongwith Jitendra Paswan, Dr. Mithun S/o Purushottam Gholpe (PW5) who has examined Dr. Rekha Bhiwapurkar and appellant, API Ravindra Laxmikant Dubey (PW6) who has completed the investigation and filed the chargesheet before Learned Magistrate, Smt.Parvatabai Vithalraoji Ingale (PW7), the maid servant of Dr. Rekha Bhiwapurkar and A.P.I. Pawan Prataprao Besle (PW8) who registered the offence and conducted the initial investigation.

8. Dr. Rekha Bhiwapurkar (PW1) was aged about 70 years at the time of incident. She used to reside alone in the house in view of death of her husband Dr. Rajan Bhiwapurkar, prior to three months of occurrence. Her evidence shows that her son is a heart surgeon and he is in job at J.J. Hosplital,Mumbai. Her married daughter Dr. Shilpa Aarya stays in Civil Lines, Nagpur. Dr. Rekha Bhiwapurkar (PW1) used to stay alongwith her maid servant in the house Smt.Parvatabai (PW7).

9. P.W.1 Dr. Rekha Bhiwapurkar's evidence shows that she is gynecologist and surgeon and is having her clinic as Prakash Nursing Home at Sadar,Nagpur. She works from 12 O'clock in the afternoon till 7 O'Clock in the evening. Her evidence is in confirmity with the F.I.R. (Exh.8). Though there are certain omission in her evidence, however on perusal of F.I.R. (Exh.8) and her evidence those omissions are found to be very minor in nature. Further F.I.R. is not last word of the prosecution. Merely because there are certain omissions in the F.I.R. (Exh.8) that by itself is not sufficient to cast doubt on truthfulness of the prosecution case.

10. Dr. Rekha Bhiwapurkar (PW1) states in her evidence that as usual she reached to her house at 8 O'clock in the night, then she had dinner at 9'O clock . Thereafter her maid servant (PW7) also had her dinner. Her evidence shows that the doors of her house are such from which anybody can enter. Dr. Rekha Bhiwapurkar (PW1) was watching television in the night by sleeping on her sofa set. At 12'O clock her sleep was disturbed as she felt some body is near her sofa. Though she could not notice his face due to darkness she asked who is said person. On that, said person arrogantly replied and asked her to keep mum. He tried to shut her mouth. She bites his fingers when he tried to press her mouth by palm. Thereafter, he pressed her neck portion from front side which wind pipe area due to that she felt suffocation therefore she gave kick by her right leg resulting into the felling of the said person on the floor. Thereafter Dr. Rekha Bhiwapurkar (PW1) switched light on and started shouting for help. Her evidence shows that guard and also others and Dr. Jaiprakash who was also watching television in his house reached to the spot. He also called Jitendra who stays on first floor of the Dr. Jaiprakash's house.

11. P.W.5 is Dr. Mithun Gholpe. He has examined Dr. Rekha Bhiwapurkar on 12/9/2013. He noticed following injuries on her person.

"1) Abrasion over right side of lower lip 0.5 x 0.5 cm.

2) Tenderness appears on the right ring finger. Afterward patient was referred to ENT Unit-II Lecturers and Ortho Unit-1 Lecturer. They have advised (1) X-ray neck A.P. and lateral view which was WNL(@) X-ray chest PA view was WNL. (3) X-ray of right hand AP and oblique view was suggestive of. No evidence of any bony injury. (4) X-ray right knee AP and lateral view was suggestive of. No evidence of bony injury. ENT findings were indirect laryngoscopy suggestive of congestion present over bilateral aryepiglottic folds. All the above injuries were simple, fresh and might have been caused by hard and blunt object. Injury nos. 1 and 2 were obvious and 3rd injuries were not obvious"

12. The appellant was also referred to him for his medical examination and he noticed following injuries.

1) Abrasion signs 0.5 x 0.5 cm. Over dorsum of left middle finger.

2) Linear contusion 6 x 2 cm. Over lateral aspect of left lower leg.

3) Abrasion 1 x 1 cm. Over right knee.

4) Contusion 3 x 2 cm.over lower back.

5) Contusion 4 x 2 cm. Over left infra scapular region.

6) Abrasion 3 x 2 cm. Over inter scapular region of back.

7) Linear contusion 10 x 1 cm. Over right arm laterally.

8) Linear contusion 8 x 1 cm.over right arm.

9) Linear Contusion 5 x 1 cm. Over right deltoid region.

10) Linear contusion 4 x 1 cm. Over left deltoid region.

11) Linear contusion 3 x 1 cm. Over right forearm extensor aspect.

12) Abrasion 1 x 1 cm. Over left hypochondrium.

He also proved the injury certificates of Dr. Rekha Bhiwapurkar (Exh.29) and appellant (Exh.30). The injury report of the appellant corroborates the version of the complainant (PW1) since the doctor notice abrasion signs 0.5 x 0.5 c.m. over dorsum of left middle finger.

13. P.W.2 Jitendra is a cook in the house of Dr. Jaiprakash Bhiwapurkar. He stays on upper story of his bunglow. Dr. Jaiprakash bunglow and Dr. Rekha Bhiwapurkar's bunglow are situated near to each other. His evidence shows that due to shouts of Dr. Rekha Bhiwapurkar he stepped out from Dr. Jaiprakash house. That time Dr. Jaiprakash was with her. In the meanwhile, Yashwant (PW4) , a guard in the house of Dr. Rekha Bhiwapurkar also reached there. They started searching the intruder since Dr. Rekha Bhiwapurkar told them that one person has made forcible entry in her house. That time , they noticed a person was walking on the second floor of the terrace of the house of Dr. Rekha Bhiwapurkar. Noticing the presence of Jitendra (PW2) and Yashwant (PW4) he jumped to gallery and further jumped on the ground and started jumping compound wall that time he was caught hold on the spot itself. In this aspect, the versions of Jitednra (PW2) and Yashwant (PW4) are corroborative to each other. On this aspect of apprehending the appellant on the spot itself there is no crossexamination at all. Further the appellant has afford any explanation about his presence at dead hours of night near the house of occurrence.

14. The learned counsel for the appellant made a submission that due to the darkness the complainant has stated that she could not see the face of the person who tried to press her mouth and therefore benefit of doubt should be given in favour of the appellant. I am afraid that such submission can be accepted especially when she has recognised the appellant from the witness box. She from the appearance pointed out the fingers to the person who is seated in the dock. One cannot forget that the complainant (PW1) is a experienced doctor. Therefore, if she recognising the person by appearance her evidence cannot be doubted especially when the said person tried to kill her by pressing her mouth.

15. The learned counsel for appellant argued that there are no injuries on her neck. The injuries are not sine quo non for the offence punishable under Section 307 of the Indian penal Code. What is required to be seen the intention of the assailant. The evidence of Dr. Rekha Bhiwapurkar (PW1) shows her neck was pressed from front side and that is wind pipe area, therefore she felt unconscious. Due to that in order to save her life she gave kick blow to the appellant. In my view, there is no reason to disbelieve evidence of Dr. Rekha Bhiwapuarkar that she felt suffocation since her wind pipe was pressed by the appellant. That fact in my view constitutes mens rea to commit the offence under Section 307 of the Indian Penal Code.

16. The submission of the learned counsel for the appellant that till this date, the appellant has already undergone 2 and ½ years of sentence and therefore some leniency be shown to him. The appellant has entered in a house of senior citizen who was all alone residing. There he tried to commit her murder by pressing her neck. The Court cannot show leniency in favour of such person who tried to commit robbery in the house of lonely senior citizen. No case is made out even after reappreciation of the entire evidence of the prosecution case. Hence, appeal is dismissed.

Appeal dismissed.