1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.9 OF 2006 Namu Chamar Machhi ..Appellant Age : 23 yrs Residing at Raigaon Paiki Amrunpada, Taluka Dahanu, District Thane (At present in Kolhapur Central Jail) V/s. The State of Maharashtra ..Respondent Mr.Indrajeet R. Kulkarni, Advocate, for applicant Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 31ST JULY, 2008 ORAL JUDGMENT . The accused/appellant was convicted in Session Case No.44/2000 by Judgment dated 16th November, 2005 by 2nd Ad-hoc Additional Sessions Judge, Palghar under Section 307 of the Indian Penal Code with rigorous imprisonment for a period of seven years and fine of Rs.1000/- in default to suffer rigorous imprisonment for three months. 2. Sou.Sangita claimed to be wife of the accused/appellant. She had clashes with the accused 2 and consequently 15 days prior to the incident she had joined her parents. Then the accused/appellant had even prevented her from attending work at factory. On 27th January, 2000 at about 3.00 P.M. The accused called Sou.Sangita and demanded Rs.2000/- from her. She showed her inability to comply such huge demand. The accused started abusing her. The accused had brought Axe with him and on denial to comply his demand he hit the axe to the victim on her left side of neck near ear causing bleeding injuries to her. The accused sneak away from the place of incident. Sau.Shantibai, mother of victim was taking her meal on oatla, she initially did not intervene the accused. She immediately rushed to the victim and attempted to stop her bleeding. With help from neighbours the victim was taken to Cottage Hospital at Dahanu for treatment where the victim was operated and she was admitted as indoor patient. Intimation received by police activated registration of Crime No.7/2000 for the offence punishable under Section 326 and 504 of the Indian Penal Code. During the course of investigation 3 considering the nature of the injuries the offence was altered to Section 307 of the Indian Penal Code. The axe used in the Crime was handed over by the accused two days after the incident when he was put under arrest. His apparels were taken charge. The apparels of the victim brought by her parents were also taken charge. After receiving report from the Office of Chemical Analyser charge sheet came to be filed before the Judicial Magistrate First Class, Dahanu, District Thane who committed the same before the Sessions Court at Palghar, District Thane in the light of Section 209 of the Criminal Procedure Code. 3. The learned Additional Sessions Judge, Palghar explained charge (Exh.11) to the accused in vernacular. Accused pleaded not guilty and claimed to be tried. 4. According to the accused, the victim fell on the sickle which was kept beside the firewood in her parental house and due to the falling besides firewood, she received bleeding injury. He claimed 4 to have been falsely implicated in the matter. 5. P.W.1 Sangita Namu Machhi is the victim. P.W.2 Kesu Raghu Pagi acted as panch in whose presence under the Spot Panchnama the details of about house were recorded. P.W.3 Shanti Laxman Pagi is an eye witness, mother of victim who was present at a short distance at the time of incident. P.W.4 Vasant Bhivsen More went to Cottage Hospital, Dahanu and recorded F.I.R vide Crime No.7/2000. The accused was also put under arrest by them. P.W.5 Lotan Pitamber Chaudhari conducted investigation. P.W.6 Ladkibai Mangal Bhavrya and P.W.7 Dharma Barkya Karela were present at the scene of offence and they helped P.W.2 in taking the victim to the Cottage Hospital, Dahanu. P.W.8 Dr.Prasad Narayan Vaidya has examined the victim on 27th January, 2000 and the gravity of the matter forced him to perform emergency operation to save her. 6. Now, the arguments advanced by advocate for appellant needs to be considered. 5 (a) The Investigating Officer did not verify the marriage of P.W.1 with accused. (b) Whether the axe had blood stains ? (c) If the axe was seized under the Panchanama then how it could have been seen by the Medical Officer subsequently on 5th February, 2000. (d) The axe is not recovered as contemplated under Section 27 of the Evidence Act. (e) The Certificate issued by P.W.8 Medical Officer is not as per the proforma as much as there is no identity of victim or accused in the respective Medical Certificates. (f) The evidence of the victim and her mother is contrary. 7. The collective analysis of evidence of P.W.1 and P.W.3 shows that at the material time after collecting firewood P.W.3 had come to the hut/room and was taking meals by sitting at ota in the house/hut. While accused having called P.W.1 she went forward and P.W.3 remained busy in taking her meals. The evidence does not suggest that P.W.3 had no occasion to witness what was going on between P.W.1 and accused. The house of P.W.1 or P.W.3 in no circumstances can be said to be of big 6 volume as the parties are from labour class and nature of the house referred in panchanama shows it to be like a shanty. 8. Substantial time is consumed in castigating on the marital status of P.W.1 as she had earlier married to Naresh Suresh Kakad of the same village and thereafter, she had begotten a daughter. She has also admitted her marriage with Jairam Shankar Tandel from whom also she had begotten a daghter. There is no dispute that Sarita is the wife of accused. She had showed her ignorance about the date of such marriage to be of 15th January, 2001. According to her, marriage of accused with Sarita took place before two years. A suggestion was given in paragraph five that after marriage of accused with Sarita she had given threats to him that she would see the accused. Even, if, we go by the calculation projected by the defence to the witness, it is more than clear that the incident has taken place on 27th January, 2000 and it could not have its impact about the marriage of the accused with Sarita having taken place on 15th 7 January, 2001. Marital status is of little consequences in a matter of such amplitude. A suggestion was given to the victim & P.W.3 that victim fell on sickle while opening the tie of bundle of firewood and sustained the injuries. However, both have rightly denied the same. The evidence of P.W.8 Dr.Prasad Narayan Vaidya, Medical Officer dispel the claim that the injuries suffered by the victim were due to fall on sickle. He was vocal in his version that the injury suffered by the victim was possible only by the axe which was shown to him as per Exh.37 on 5th February, 2000. At this stage, without discussing propriety of showing axe to the witness on 5th February,2000, when the axe was taken charge on 29th January, 2000, the fact remains that P.W.8 has in unequivocal terms indicated the nature of the injuries suffered by P.W.3 were only due to axe. The injuries suffered by the victim are cut and lacerated wound 8x3x3 cms irregular in shape at left side of neck extending from angle of mandible to the lateral border sterno mascoid region exposing the mandible and sterno mastoid with the destructed vacinature 8 with oozing blood. In Certificate at Exh.36 it is stated that the above injuries appear to be caused by hard and sharp object and nature of the injuries is grievous threatening to the life of the patient. The claim of defence is shattered by the nature of the injury referred above. It is a common knowledge that sickle is semi circular weapon with a small handle used for trimming grass or cutting vegetable. Indeed, if P.W.1 had suffered such injury by sickle she could not have suffered a cut and lacerated wound as noticed by P.W.8. 9. It was canvassed by the defence that since she was residing with her parents from the last three to four years, she had no reason to have marital status with the accused. This is misplaced submission as the evidence of P.W.1 Sangeeta was recorded on 29th December, 2004 in which she had stated that she was residing with her parents since last three to four years. It is pertinent to note that in the F.I.R (Exh.19) recorded on 27th January, 2000 she illustrates that she had quarrel with accused 15 days prior to the incident. Thus, 9 events of her residence cannot be stretched to the past three to four years from 27th January, 2000. 10. P.W.3 in her substantial evidence did not mention that how much amount the accused had demanded. It will not be changing colour and complexion of the mater as in her statement under Section 161 of the Criminal Procedure Code I find that she has referred about visit of the accused and demanding Rs.2000/- from her daughter. It is a natural reaction from P.W.3 Shanti that she did not at that material time intervene when such demand was made by the accused from P.W.1 since it could be a matter of husband and wife. It is erroneous to claim that P.W.3 Shanti could not see the incident. Few words stretching from unconnected portion of the evidence will not be making the task easy for the defence. She has stated that she came from forest, kept the firewood and went in the house. That does not mean that she did not take her meals or was not at ota at the material time. In paragraph two of her evidence it is stated that she was taking lunch on ota of her house and 10 accused started demanding money to Sangita which Sangita had denied. 11. P.W.6 Ladkibai Bhavrya and P.W.7 Dharma Barkya Karela deposed on the aspect of visit of the accused to the house of P.W.1 Sangeeta. P.W.6 Ladkibai resides in the same village. She was carrying household activities, and on that day she had been to fetch water at about 3.50 P.M when the incident had taken place at 5.00 P.M. She witnessed the incident of accused coming to the house of P.W.1 and even giving a axe blow at the neck of the victim and Sangeeta sustained injuries to her neck. P.W.6 along with Dharma and Shantibai put a cotton swab around the neck of the victim and then the victim was taken to the hospital. Boring well to be at 200 feet away from house of P.W.1 will not be a obstacle in P.W.6 not witnessing accused going to P.W.1 & assaulting her. P.W.7 Dharma to be present is also referred by P.W.6 Ladkibai and P.W.3 Shanti in their respective witness. During the evidence P.W.7 Dharma did not support the prosecution. However, he accepts, 11 hearing the shouts of P.W.3 Shanti and he went ahead and found that neck of P.W.1 was injured, with bleeding from the said injury. Shantibai asked P.W.7 to call Dharma and told him that accused was demanding Rs.2000/- he co-ordinated the victim to be taken to the hospital where victim was admitted. The defence suggested him in paragraph three of his evidence that it was not true that he was deposing false and that he had not seen the incident. This suggestion is verified by me in vernacular deposition with the assistance of the learned defence counsel, and I found the same to be identical, which prompts me to believe that there was no mistake in recording the evidence. Such mysterious suggestion to P.W.7 projects at one stage that the defence itself is in doubt about the presence or absence of P.W.7 at the material time. 12. On analysis of evidence of P.W.1, P.W.3, P.W.6 and P.W.7 coupled with the evidence of P.W.8 I have no hesitation that they are giving correct account of the features which transpired at the house of P.W.1/P.W.3 in which the accused had 12 assaulted P.W.1 with the axe causing bleeding injury to her neck. 13. The defence canvassed that the evidence in relation to recovery of axe is doubtful and for that purpose he invited my attention to the Judgment of the Hon'ble Supreme Court reported in 2004 CRI.L.J.1380 in the matter of Anter Singh v. State of Rajasthan. “(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” There cannot be a quarrel on these aspects. However, the facts in this case disclose that on 13 29th January, 2000 the accused himself appeared at the police station with the incriminating object the axe and it was taken charge under the Panchanama Exh.26 in presence of P.W.4. The axe is four inch in length having a blade of three inch and handle of ten inch. It was an old one used in the house. Since the axe was produced by the accused during the process of his arrest, the formalities as contemplated under Section 27 of the Evidence Act, as observed by the Hon'ble Lordship in the Judgment of Anter Singh v. State of Rajasthan were not obligatory and consequently, the seizure of the axe cannot be doubted and disputed. 14. The objection about showing this axe to P.W.8 on 5th February, 2000 referred below Exh.37 now needs to be scanned. The Panchanama Exh.26 does not suggest that blade of the axe was so wrapped to avoid its exposition to outsiders. There is nothing to demonstrate that on 5th February, 2000 when it was shown to P.W.8, such wrapper was removed. In the scenario of the matter, inspection of the axe by P.W.8 will not be 14 diluting the prosecution case. That apart, the defence of the accused runs in a direction that victim suffered injuries due to fall on the sickle. 15. It is curious that C.A.Report at Exh.30 refers to presence of human blood on the blade and handle of the axe, though Panchanama Exh.26 does not refer of stains. It is a common knowledge, the stains due to coagulation of the blood get dry and they are not visible to bare eyes. The Chemical Analyzers are having equipped sophisticated apparatus with ultra-violet rays with even having enlargement process, in such scenario it was expert's eyes coupled with their instruments which could make out presence of the blood stains on the axe taken charge at the instance of the accused. 16. The defence counsel relied on the Judgment of the Hon'ble Supreme Court reported in 2003(2) Crimes 520 (SC) in the matter of Babudas versus State of Madhya Pradesh. It was a case based on circumstantial evidence. The dead body was found in lake. The witness claimed that he saw the 15 accused in the company of the deceased. The prosecution claimed that from accused No.1 money was recovered and from accused No.2 recovered the knife. In that context the Hon'ble Lordship in paragraph five of their Judgment has observed thus :- “Then the learned counsel appearing for the appellant had very seriously contended that the evidence led by the prosecution in regard to recovery of knife, money and wrist-watch is so artificial that the same cannot be accepted by any reasonable person.” These were the points canvassed by the defence counsel and by no stretch can be treated to be guide line, illustrated by the Hon'ble Lordship. It is more than clear, in the said Judgment of the Hon'ble Supreme Court there is no exposition of law to appreciate evidence of recovery in a particular angle. 17. There is no rule of law mandating a particular form to be forwarded by the Medical Officer while issuing Certificate. The factual aspects in this case cannot be ignored. The incident had taken place in January, 2000, P.W.8 16 Medical Officer was attached to Cottage Hospital, Dahanu, a remote area and the victim was brought for treatment and considering her condition, this fact was informed to the police and then she was operated for the injury. The injury was grievous in nature. P.W.8 has clarified that the Medical Certificate issued by him was as per general practise followed in the hospital. In this background, the genuineness of the Certificate at Exh.36 or Exh.37 cannot be linked with any distrust. 18. One does not require an Astrologer to define the axe to be a dangerous weapon. The nature of the injuries referred by P.W.8 with cut and lacerated wound of size 8x3x3 cm establishes that they were grievous in nature. For attracting the offence under Section 307 of the Indian Penal Code. inflicting a serious injury itself it not necessary. The axe is such a formidable weapon which the accused had used at the neck of the victim, follows that consequence were likely to prove fatal to the victim. These circumstances 17 spell out an attempt to commit murder for the offence punishable under Section 307 of the Indian Penal Code. The accused knew that the nature of blow of axe inflicted by him was sufficiently and eminently dangerous and it was likely to cause death of the victim. The accused with pre- meditation in his mind having annoyed with, on refusal to comply with the demand of Rs.2000/-, gave blow of an axe by hiting it aiming on the neck of the victim, which situation points out that the accused wanted to eliminate the victim. However, since the accused tried to escape from the spot and the victim sustained the bleeding injury of 8x3x3 cm in size, and the manner in which the accused gave the blow, the surrounding circumstances and the results achieved coupled with intention of the accused, led the learned Additional Sessions to draw irresistable conclusion that the accused wanted to eliminate victim, which brings the case within the purview of Section 307 of the Indian Penal Code. Due to the blow given by the accused with the axe on the vital part of body the victim became unconscious at the spot and then was moved 18 to the Cottage Hospital, Dahanu where P.W.8 was on duty. There is no merit in the appeal. 19. Now at this stage the learned defence counsel says, considering the custody period of two years and 11 months undergone by the accused he being only bread earner and there is no past history of Criminal antecedents, the sentence may be reduced to which he has already undergone. This request is difficult to accede as the nature of the injuries referred herein before, the manner in which the offence had taken place, the gravity of provisions of Section 307 of the Indian Penal Code, does not warrant to interfere with the sentence of seven years recorded by the learned Additional Sessions Judge. 20. The appeal is dismissed. (K.U.CHANDIWAL, J.) 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 2. 65 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 66 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 67 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 68 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 69 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 70 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 71 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 72 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 73 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 74 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 75 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 76 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 77 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 301. 78 302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320. 321. 322. 323. 324. 79 325. 326. 327. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342. 343. 344. 345. 346. 347. 80 348. 349. 350. 351. 352. 353. 354. 355. 356. 357. 358. 359. 360. 361. 362. 363. 364. 365. 366. 367. 368. 369. 370. 81 371. 372. 373. 374. 375. 376. 377. 378. 379. 380. 381. 382. 383. 384. 385. 386. 387. 388. 389. 390. 391. 392. 393. 82 394. 395. 396. 397. 398. 399. 400. 401. 402. 403. 404. 405. 406. 407. 408. 409. 410. 411. 412. 413. 414. 415. 416. 83 417. 418. 419. 420. 421. 422. 423. 424. 425. 426. 427. 428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 84 440. 441. 442. 443. 444. 445. 446. 447. 448. 449. 450. 451. 452. 453. 454. 455. 456. 457. 458. 459. 460. 461. 462. 85 463. 464. 465. 466. 467. 468. 469. 470. 471. 472. 473. 474. 475. 476. 477. 478. 479. 480. 481. 482. 483. 484. 485. 86 486. 487. 488. 489. 490. 491. 492. 493. 494. 495. 496. 497. 498. 499. 500. 501. 502. 503. 504. 505. 506. 507. 508. 87 509. 510. 511. 512. 513. 514. 515. 516. 517. 518. 519. 520. 521. 522. 523. 524. 525. 526. 527. 528. 529. 530. 531. 88 532. 533. 534. 535. 536. 537. 538. 539. 540. 541. 542. 543. 544. 545. 546. 547. 548. 549. 550. 551. 552. 553. 554. 89 555. 556. 557. 558. 559. 560. 561. 562. 563. 564. 565. 566. 567. 568. 569. 570. 571. 572. 573. 574. 575. 576. 577. 90 578. 579. 580. 581. 582. 583. 584. 585. 586. 587. 588. 589. 590. 591. 592. 593. 594. 595. 596. 597. 598. 599. 600. 91 601. 602. 603. 604. 605. 606. 607. 608. 609. 610. 611. 612. 613. 614. 615. 616. 617. 618. 619. 620. 621. 622. 623. 92 624. 625. 626. 627. 628. 629. 630. 631. 632. 633. 634. 635. 636. 637. 638. 639. 640. 641. 642. 643. 644. 645. 646. 93 647. 648. 649. 650. 651. 652. 653. 654. 655. 656. 657. 658. 659. 660.