1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.636 OF 2009 Manik s/o Sadashiv More, age 35 years, Occ. Nil, R/o at present Jail, Nashik Road Central Prison. ..Appellant Versus The State of Maharashtra (Copy to be served on P.P. High Court of Judicature of Bombay Bench at Aurangabad) ..Respondent ... Advocates appearing for : Appellant : Smt. Anuradha Mantri (appointed) and Respondent : Smt. B.R. Khekale, APP ... CORAM : SHRIHARI P. DAVARE, J. DATE : 8 th June, 2010. ORAL JUDGMENT : 1. The challenge in this appeal is to the conviction and sentence inflicted upon the appellant (original accused) by judgment and order dated 20.7.2009 rendered by learned Additional Sessions Judge – 2, Beed in Sessions Case No.8/2009 convicting the appellant for the offence punishable under section 307 of Indian Penal Code and sentencing him to suffer imprisonment for three years and to pay fine of Rs.500/- with default condition for non payment of fine to suffer simple 2 imprisonment for one month. 2. Factual matrix of the prosecution case which can be summarized, are as under :- It is the case of the prosecution that injured/victim namely Daivshala i.e. PW 1 herein married with the accused namely Manik More about 12 years back and she was residing with the accused in her matrimonial home along with her minor daughter namely Pratiksha aged about 14 years and two sons namely Pratik and Pranit. It is alleged that accused herein was a lazy person and was not doing any work and used to indulge in Matka and 52 cards game. Moreover, since last two years he was infected with HIV positive and therefore his wife Daivshala used to keep distance from him in their sexual life. 3. It is also alleged that on 13.04.2008 PW 1 Daivshala i.e. complainant and her husband Manik i.e. accused and their children took dinner and went to sleep. At about 2.30 am when the complainant Daivshala was asleep the accused Manik came near her and touched her and woke up her and demanded satisfaction of sex, but she denied, stating that he was suffering from HIV positive. Thereupon the accused attempted to use force for his satisfaction but the complainant Daivshala opposed for the same. It is alleged that thereupon the accused got wild and stated to complainant that she was not useful for him and why he should keep her alive and pressed her throat by his both hands and therefore Daivshala shouted loudly and thereupon her daughter and 3 sons woke up. Thereafter accused lifted sickle (Koyta) and inflicted blow thereof on the neck, chest and throat of the complainant and thereby she sustained bleeding injuries. Thereafter, accused/appellant herein fled away. After the said incident, PW 4 Pratiksha i.e. daughter of Daivshala went to neighbourers who called police personnel by telephone. 4. It is also the case of the prosecution that PW 5 PSI Sikandarkhan Shamsherkhan was on patrolling duty during the intervening night between 13.04.2008 to 14.04.2008 and at about 3.15 a.m. he received a message from Shivaji Nagar Police Station in charge informing that PW 1 Daivshala was injured by her husband at her home in Govind Nagar locality Beed and asked him to rush on the said spot to assist the victim. Accordingly PW 5 Sikandarkhan went to the said spot and found PW 1 Daivshala in injured condition. Thereupon, PW 5 Sikandarkhan removed her to Government Hospital with the assistance of neighborers and PW 2 Dr. Ashok Kachare, Medical Hospital in Civil Hospital, Beed examined her and noted injuries sustained by her and gave her medical treatment as well as issued injury certificate (Exh 17). He attempted to make enquiry with her but she was not in a position to talk. Accordingly he made necessary entries in the station diary which is produced at (Exh.27). Thereafter the prosecution case recites that PW 5 Sikandarkhan recorded the statement of complainant PW 1 Daivshala and accordingly she lodged the complaint (Exh.14) and First Information Report was registered under CR No. 75/2008. 4 5. The prosecution case further reveals that PW 5 PSI Sikandarkhan visited the spot of incident i.e. residential house of the accused and complainant on the same day i.e. on 16.4.2008 along with complainant and panch, and blood was noticed on the tiles besides the bed, as well as sickle was found having blood stains thereon. Accordingly spot panchnama (Exh.28) was prepared in presence of panch PW 10 Chandrabhan Kamble and Godhadi (article No.1) and blood stained sickle (article No.2) were seized under spot panchnama (Exh 28). Moreover, the blood stained clothes of the victim Daivshala comprising red colour saree (article No.3) and black colour blouse (article No.4) were also seized under panchnama (Exh 29). Moreover, photographs of the said site were taken by the photographer which are at articles A to E respectively. Moreover, PW 5 recorded the statement of PW 3 Rekha Gaikwad i.e neighborer. 6. Thereafter further investigation was taken over by PW 8 PSI Ramesh Khune attached to Shivaji Nagar Police Station Beed on 17.4.2008. Accordingly he visited the spot of incident and inspected the same. Moreover, he recorded the statement of eye witness PW 4 Pratiksha More i.e. daughter of complainant and accused, as well as recorded statements of Padmakar and Sachin, who carried the victim Daivshala to the hospital. He also recorded statements of Bhagwan and victim’s mother. Thereafter the accused was found on 22.4.2008 and PW 8 PSI Ramesh Khune arrested him under the arrest panchnama (Exh 43). The blood stained shirt of the accused was seized under the 5 panchnama (Exh 42). 7. It is the case of the prosecution that on 2.12.2008 PW 6 Dr. Satish Raghunath Tambade attached to Civil Hospital, Beed took blood sample of the complainant PW 1 Daivshala and it was sent to CA Office Aurangabad for examination purpose along with forwarding letter (Exh 44). Moreover, blood sample of the accused was collected and same was also sent to CA Office for examination purpose along with forwarding letter (Exh 45). So also seized articles were also sent to CA office for examination purpose in sealed condition along with forwarding letter (Exh 46) through constable B.No.1304 and CA reports thereof were received. The report of blood sample of Daivshala is produced at (Exh 38). Report of blood sample of accused is produced at (Exh 47) and CA report of seized articles is produced at Exh.48. 8. Prosecution case further recites that PW 8 PSI Khune also recorded the statements of some of the witnesses during the course of investigation. Moreover he prepared site plan of the spot of incident through competent officer of Revenue Department which is marked at Exh.49. Accordingly after completion of investigation charge sheet came to be filed before learned Judicial Magistrate (F.C.), but since the charge under section 307 of Indian Penal Code was exclusively triable by the Court of Sessions, said case was committed to the Court of Sessions, Beed. Thereafter, learned Additional Sessions Judge – 2, Beed framed charge against the appellant (original accused) at (Exh 6) and accused 6 faced the trial for the said charge. 9. To substantiate the charge levelled against the accused the prosecution has examined in as much as ten witnesses as mentioned below :- 1] PW 1 Daivshala Manik More i.e. wife of the accused and complainant as well as injured/victim. 2] PW 2 Dr. Ashok Manikrao Kachre – Medical Officer, Civil Hospital Nashik, who examined the patient i.e. PW 1 Daivshala. 3] PW 3 Rekha w/o Sanjay Gaikwad – neighbourer. 4] PW 4 Pratiksha Manik More – minor daughter of the complainant and accused. 5] PW 5 PSI Sikandarkhan Shamsherkhan – who received information on telephone and removed the complainant to Civil Hospital, Beed. 6] PW 6 Dr. Satish Tambade – who took blood sample of PW 1 Daivshala. 7] PW 7 Dr. Appasaheb Dadasaheb Baglane – who did blood test of accused. 8] PW 8 PSI Ramesh Deorao Khune – Investigating Officer. 9] PW 9 Santosh Tulshiram Jadhav – neighbourer 7 10] PW 10 Chandrabhan Chintamanrao Kamble – Panch of the spot panchnama (Exh 28). 10. The defence of the accused was of total denial and he stated in his statement recorded under section 313 of Code of Criminal Procedure that in the relevant night some unknown thieves entered into the house and there was scuffle and in that event Daivshala sustained injuries, but after thought, she implicated the accused in the alleged offence falsely because he was suffering from Aids disease and accordingly claimed to be innocent. 11. After scrutinizing and appreciating the evidence on record, learned trial judge convicted the appellant and sentenced him for the offence punishable under section 307 of Indian Penal Code as aforesaid. Being aggrieved and dis-satisfied by the said judgment and order rendered by learned Additional Sessions Judge -2, Beed on 20.7.2009 in Sessions Case No.8/2009, the appellant has preferred present appeal praying for quashment thereof. 12. In order to deal with the submissions advanced by learned counsel Smt. Anuradha Mantri for the appellant and Mrs. Khekale learned APP for the respondent effectively, it is necessary to advert to the material evidence adduced and produced on record in the said context. Coming to the deposition of PW 1 Daivshala More i.e. complainant as well as injured victim and wife of the accused, who 8 stated that the accused is her husband and out of the said wedlock they were blessed with two sons namely Pratik and Pranit and one daughter namely Pratiksha and they were residing together in Govind Nagar locality, Beed. She also stated that her husband Manik was not doing any work and was in habit of gaming cards and was also HIV positive since last two years. She also stated that since accused Manik was suffering from Aids, she discontinued sexual terms with him. However, on 13.4.2008 when she was asleep along with her children at her home in the night at about 2.00 am accused came to her and asked her to have sex, but she denied because he was affected by Aids. Thereupon she stated that her husband-accused pressed her throat by both hands and told her that she was not of any use to him and he wanted to kill her. Thereupon PW 1 Daivshala asked him to leave her, but accused did not leave her. She further stated that accused lifted a sickle from Mala and inflicted blows thereof on her neck, throat and chest and thereby she sustained bleeding injuries on her neck, throat and chest and blood was fallen on her saree, blouse and also on the flooring. After said assault the accused ran away leaving sickle on the spot. She also stated that due to occurrence of the said incident her children woke up. She further stated that her daughter i.e. PW 4 Pratiksha called the neighbourer i.e. PW 3 Rekha Gaikwad and Sanjay Gaikwad and they contacted the police personnel on telephone and accordingly police personnel arrived at their home and removed her to Government Hospital, Beed with the assistance of said neighbourers. She further stated that she was indoor patient in the hospital for about 3 days and 9 she was not able to talk as her voice was interrupted because of pressure on the throat. She further stated that she was given discharge on 16.4.2008 and thereafter she went to Shivaji Nagar police Station and lodged the complaint (Exh 14). 13. During cross examination, she stated that the incident occurred on the day of birth anniversary of Dr. Babasaheb Ambedkar. She also stated that she came to know that her husband was infected with HIV positive about two years back, as well as she was knowing through television programs and Aids advertisement that said disease was infectious through intercourse and therefore she kept distance from her husband i.e. accused in sexual relations. The defence of the accused was put up to PW 1 during the cross examination, but she denied that during the relevant night any thieve came to their house and attempted to snatch her ornaments and in the scuffle she sustained injuries and accused was implicated in the present case falsely. Besides that there is nothing in the cross examination damaging the prosecution case and beneficial to the case of the accused. 14. Even considering the testimony of PW 1 Daivshala, it is amply clear that she has narrated the prelude of the incident as well as very occurrence of the incident in detail. She also categorically stated that accused pressed her throat by his both hands and inflicted blows of sickle on her neck, throat and chest i.e. vital parts of the body and thereby she sustained bleeding injuries and blood was fallen on her 10 clothes as well as flooring. She also identified the sickle by which blows were inflicted upon her body by the accused, which was found and seized from the loft where it was thrown by the accused. However, during the cross examination the testimony of PW 1 Daivshala has not been shaken and therefore, the version of PW 1 in respect of occurrence of the incident requires to be accepted and consequently same is required to be believed. 15. Coming to the deposition of PW 2 Dr. Ashok Kachare, who has deposed that he was on duty as a Medical Officer in Civil Hospital, Beed on 14.04.2008 since 00.00 hours and at about 03.45 a.m Mrs. Daivshala Manik More i.e. injured/complainant and PW 1 herein was brought to the hospital by one Sanjay Vitthal Gaikwad, a neighbourer with history of assault and PW 2 Dr. Ashok examined her and found following injuries. 1- Contused Lacerated wound on neck 3 cm. It was to the left side of neck having ‘V’ type, it’s one side (length) was 3 cm another side length was 2 cm and 1 cm was broad and ½ cm deep. 2- Incised wound on left side on the chest 4 cm below clavicular and 1 cm above the nipple, this injury having size 1cm x 1cm x ½ cm (deep.) 3- Third incised wound just below the second injury. It was on 1cm away from second injury, having size 3 cm x 1 cm x ½ cm. 4- Fourth injury was abrasion below left clavicular by 4 cm of size 2cm x 1 cm. 11 The doctor stated that first and fourth injuries might have caused by hard and blunt object by blunt side of sickle, knife, whereas, second and third injuries might have caused by sharp object i.e. probably knife. He also stated that all the injuries were caused within six hours and said injuries were simple in nature. He further stated that patient was admitted in the hospital and was discharged on 16.04.2008. He issued injury certificate to police personnel which is produced at (Exh 17). He also stated that he treated the said patient and provided saline and took stitches etc. as stated in the said case papers. PW 2 Dr. Ashok further stated that injuries were on vital part of the body and if timely treatment was not provided to her there would have been complications to the life of the victim. PW 2 Dr. Ashok was confronted with photograph ‘F’ and thereupon he stated that weapon sickle was seen in the said photograph and it is much heavy and injuries may be possible by such weapon. He further stated that condition of said patient was much serious. He also stated that he do not recollect whether patient was able to talk while examination. 16. In the cross examination, he stated that he referred the fact of history of assault in the case papers dated 14.4.2008 but failed to mention the name of the person who gave history. He also stated that at the time of admission, the patient was able to talk. He also accepted that when injuries were simple in nature, nor extensive nor serious those would heal rapidly. He also stated that he was aware about weapon sickle (koyta) and if such weapon is used with force the nature 12 of injury may be severe and not simple. He further stated that nature of injury is ascertained on the basis of it’s size, depth and part of the body and grievous injury may be there if such weapon is used with force. He further stated that if such weapon is used with force and victim sustained injury on the vital part, the victim may die or may suffer grievous injury. He also stated that blood stains may occur on such weapon, if bleeding injury is caused by it. As regards injury sustained by victim, he stated that victim had external injury but the wound was incised. He also stated that it is least possible to cause such injury to the throat in the scuffle if somebody attempted to snatch Mangalsutra, however he stated that such injuries are possible by razor, knife. 17. After scrutinizing the testimony of PW 2 Dr. Ashok and injury certificate issued by him at Exh.17, it is amply clear that injured Daivshala sustained four injuries as mentioned herein above, out of which injury No.1 was contused lacerated would on the neck having measurement of 3 cms and it was to the left side of neck having ‘V’, its one side length was 3 cm and another side length was 2 cm and 1 cm and was broad and ½ cm deep, whereas the injury No.2 was incised wound on left side on the chest 4 cm below clavicular and 1 cm above the nipple and size of the said injury was 1cm x 1cm x ½ cm (deep). The third injury was incised wound just below the second injury and it was 1cm away from second injury, having size 3 cm x 1 cm x ½ cm whereas fourth injury was abrasion below left clavicular having size 4 13 cm x 2cm x 1 cm. Thus, the injury Nos.2 and 3 were incised wounds ; whereas injury no.1 was CLW and injury No.4 was abrasion. PW 2 Dr. Ashok stated that injury Nos.2 and 3 are incised wounds, which might have caused by sharp object. Although PW 2 Dr. Ashok stated that said injuries were simple in nature, said injuries were on vital part of the body, such as neck and chest. PW 2 Dr. Ashok has categorically stated that if timely treatment was not provided to the injured Daivshala, there would have been complications to her life and he has further categorically stated that said injuries might have been possible by sickle which was visible in photograph ‘F’. He also stated that condition of the patient was serious and said very aspects are incriminating against the appellant herein, which involve him in the alleged crime. 18. Turning to the deposition of PW 4 Pratiksha Manik More i.e. daughter of the complainant and accused, she was about 14 years at the time of her deposition and therefore learned trial judge put preliminary questions to her and ascertained whether she was capable of giving replies thereof. Accordingly PW 4 Pratiksha had stated in her deposition that she was residing in the house along with her parents, two brothers namely Pratik and Pranit and her Pappa i.e accused herein was not doing any work. He was in the habit of gaming. She further stated that on 13.4.2008 in the night hours her mother, brothers and father were in the house and after dinner they went to the bed however she woke up at 2.30 a.m. when she heard shouts of her brother namely Pranit and observed that her Pappa was pressing throat of her Mammy 14 by his both hands while Mammy was in sleeping condition. She further stated that her father stood up and took out a sickle from the roof and inflicted blows thereof on the neck twice and chest and thereby her mother sustained bleeding injuries and thereafter her father went away from the house on the pretext that he would bring auto rickshaw, but did not return back. Hence PW 4 Pratiksha stated that she went to neighbourers and told the occurrence of events. Thereafter police personnel were called and Mammy was taken to the hospital. She identified her Pappa i.e. accused herein. 19. During cross examination, PW 4 Pratiksha More stated that she did not see quarrel between her mother and father in the day hours on the relevant day of incident, but before the day of incident they were on quarrelsome terms. She volunteered and stated that she woke up due to shouts of her brother, however there is no cross examination regarding said voluntary statement. She also stated that she attempted for help and shouted for assistance to save her mother. Suggestion was given to her that she deposed on the say of her Mammy i.e. the complainant herein but she denied the same. The defence of the accused was also put up to her that during that relevant night thieves had been to their house and they assaulted her mother but same also was denied by her. 20. PW 4 further categorically stated in the cross examination that her Papa i.e. accused was not doing any work, and therefore, there 15 used to be frequent quarrels between her parents and her Pappa i.e. accused used to assault her Mammy i.e. complainant. Suggestion was given to her that she deposed voluntarily against accused since she had grudge against him, but same was denied by her. 22. It is amply clear from the testimony of PW 4 Pratiksha that she has given eye witness account in her testimony, since she woke up after the shouts at the relevant time i.e. at 2.30 a.m. on 14.4.2008 while she was asleep and witnessed that accused was pressing throat of her mother i.e. complainant by his both hands. She stated that when the complainant was in sleeping condition, accused stood up and took out a sickle from the roof and inflicted a blows thereof on the neck and chest of the complainant and thereby the complainant sustained bleeding injuries. Pertinently, said eye witness account given by PW 4 has not been shaken in the cross examination and very version of PW 4 Pratiksha in respect of witnessing the very occurrence of the incident has not been dis-lodged in the cross examination, and therefore, said eye witness account requires to be accepted, and consequently, the same requires to be believed. 23. On the background of the aforesaid material evidence, the learned counsel appearing for the appellant submitted that although the alleged incident occurred on 14.4.2008, the First Information Report came to be lodged on 16.4.2008 and there is unexplained delay of three days in lodging First Information Report which creates suspicion in 16 respect of the prosecution case. It is also canvassed by learned counsel for the appellant that it is evident from the testimony of PW 2 Dr. Ashok Kachare and injury certificate (Exh.17) that all the injuries sustained by injured Daivshala were of simple nature, and therefore, ingredients of section 307 of Indian Penal Code do not exist and same are absent, and hence, conviction and sentence inflicted upon the appellant there-under, deserves to be quashed and set aside. It is also canvassed by the learned counsel for the appellant that PW 2 Dr. Ashok Kachare is not aware of the name of the person who gave history of assault, but stated in his deposition that injured Daivshala was able to talk at the time of her admission in the hospital, which is contradictory to the testimony of PW 1 herself who stated that she was unable to talk and said aspect amounts to lacuna in the prosecution case and hampers the prosecution case. Learned counsel for the appellant/accused urged that there was about 12 years marital life between accused and injured Daivshala and during the said span of long