Decided on January 04,2017

Bhojraj @ Raj Lalkant Bhattarai Appellant


A.M.BADAR J. - (1.) By this appeal, the appellant/accused is challenging the Judgment and Order passed by the learned Adhoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No.566 of 2007 on 22/08/2008 thereby convicting him of offences punishable under Sections 307, 452 and 324 of the Indian Penal Code (In short, "the IPC"). For offence punishable under Section 307 of the IPC, the appellant/accused was sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.1000/- in default to undergo further rigorous imprisonment for two months. For the offence punishable under Section 452 of the IPC, he was sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- in default to undergo further rigorous imprisonment for one month. For the offence punishable under Section 324 of the IPC, the appellant/accused was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- in default to undergo further rigorous imprisonment for a period of one month.
(2.) Background facts leading to the prosecution and conviction of the appellant/accused are thus : (a) The appellant/accused was in employment of P.W. No.4 Suraj Prakash Kohali as a cook. Because of the incident of taking the car of the employee unauthorisedly and dashing it, he was terminated from the employment by P.W.No.4 Suraj Prakash Kohali in the year 2006. (b) P.W. No.4 Suraj Kohali along with his son Rajesh Kohali (P.W.No.3) and Zhiba Rajesh Kohali (P.W.7) were residing with his family at Kohali House, 3rd Floor, Shantaram Narayan Lane, Walkeshwar Road, Mumbai. (c) According to the prosecution case, in the night hours of 13/04/2007, P.W.No.2 Ramesh Kamat watchman of the building had seen the appellant/accused in the vicinity of the Kohali House. Thereafter, at about 4.15 a.m. on 14/04/2007, the appellant/accused committed house-trespass with an intention to commit murder of P.W.No.4 Suraj Kohali. Accordingly, armed with knife he entered in the room of P.W.No.4 Suraj Kohali, attempted to commit his murder by assaulting him by means of knife, so also by gaging his mouth and nose. Upon hearing sounds of commotion coming from the bedroom of P.W.No.4 Suraj Kohali, Sonibai Bane (P.W.No.5) maid servant of the family disclosed this fact to P.W.No.7 Zhiba Kohali, who in turn disclose the same to her husband P.W.No.3 Rajesh Kohali. Then P.W.No.3 Rajesh Kohali followed by his wife P.W.No.7 Zhiba Kohali and maid servant Sonibai Bane (P.W.No.5) entered in the bedroom of P.W.No.4 Suraj Kohali to see the appellant/accused gaging mouth and nose of P.W.No.4 Suraj Kohali by means of hand while armed with a knife. The appellant/accused then rushed towards P.W.No.3 Rajesh Kohali and attempted to assault him by means of knife. The blow of the knife landed on upper and lower lips of informant P.W.No.3 Rajesh Kohali. During the course of assault on him by the appellant/accused, there was injury to the palm of P.W.No.4 Suraj Kohali as he had held the blade of knife in order to save himself. As family members of the injured gathered, the appellant/accused ran away from the house. P.W.No.2 Ramesh Kamat and informant P.W.No.3 Rajesh Kohali chased him for apprehending him. However, he could not be caught by them. P.W.No.4 Suraj Kohali and informant P.W.No.3 Rajesh Kohali were then taken to Breach Candy Hospital by P.W.No.8 Sunil Kohali. P.W.No.3 Rajesh then lodged report with Malabar Hill Police Station, which resulted in registration of Crime No.34 of 2007 against the appellant/accused for offences punishable under Sections 452, 307 and 324 of the IPC. P.W.No.9 PSI Vinayak Kanade visited the spot and prepared spot panchanama. Incriminating articles found on the spot were also seized. After completion of investigation, the charge-sheet was filed and ultimately after due trial, the appellant/accused was convicted and sentenced as indicated in the opening paragraph of this Judgment.
(3.) I have heard the learned Advocate appearing for the appellant/accused at sufficient length of time. Learned counsel appearing for the appellant/accused strenuously urged that considering the nature of injuries suffered by P.W.No.3 Rajesh and P.W. No.4 Suraj, it cannot be said that the appellant/accused intended to commit murder of the victim. For this purpose, the learned counsel for the appellant/accused placed reliance on State of Maharashtra v. Bodya Ramji Patil, 1978 Cr.L.J. 411 and Shamshuddin and Ors. v. State of Bihar, 2011 Cri.L.J. 4521. Learned counsel for the appellant/accused further argued that evidence of the prosecution is full of lacunae because the Doctor who had examined P.W.No.3 Rajesh and P.W.No.4 Suraj was not examined. It is further argued that evidence of P.W.No.3 Rajesh suffers from infirmities, as he had not stated material aspects during the course of investigation and improved his story while in the witness box.;

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