1 Cri.Appeal 427-1995 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.427 OF 1995 1. Balasaheb Ganpati Chavan ..Appellants Age : 27 yrs, Occu : Goldsmith 2. Dinesh Paterao Kudalkar Age : 25 yrs, Occu : Goldsmith 3. Nishikant Ganpati Kudalkar Age : 26 yrs, Occu : Agriculturist 4. Shahajahan Dastigir Chaugule Age : 24 yrs, Occu : Agriculturist All are residents of Pathankadoli, Taluka Hatkanangale, District Kolhapur. V/s. The State of Maharashtra ..Respondent Mr.S.V.Marwadi with Mr.V.V.Katti i/b. Mr.A.P.Mundargi, Senior Counsel, for the Appellants Mr.Y.M.Nakhawa, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 27TH APRIL, 2011 ORAL JUDGMENT . This Appeal is directed against appellants' conviction for the offence punishable under Section 307 read with Section 2 Cri.Appeal 427-1995 34 of the Indian Penal Code by the learned Additional Sessions Judge, Kolhapur upon conclusion of Sessions Case No.13 of 1993 before him. 2. Facts which are material for deciding this Appeal are as under :- Appellant No.1 Balasaheb lost his brother prior to the incident. The first informant Namdev is an accused in the case of murder of Shivaji, brother of Balasaheb. On 25 th September, 1992 when Namdev had gone to betel leaf shop near S.T.Stand, Pattankodoli, the appellants are alleged to have assaulted him. Appellant No.1 Balasaheb gave blows by Sword, Appellant No.2 Dinesh gave blows by Gupti, Appellant No.3 Nishikant held the victim while Appellant No.4 Shahajahan gave a blow by iron rod. The victim tried to run away but was given a chase by the appellants. The victim ultimately reached a temple and from there was taken by one Sunil Jadhav to 3 Cri.Appeal 427-1995 his house, from where he was taken to a hospital at Kolhapur. Police were called and on taking the report of the victim an offence was registered. 3. In course of investigation, police arrested the first three appellants on the very next day. The appellant Shahajahan was also arrested soon thereafter. Police performed panchanama of the spot, recorded statements of witnesses, seized incriminating articles, including a Sword recovered at the instance of appellant Balasaheb, and sent the incriminating articles to the Forensic Science Laboratory. On completion of investigation, charge sheet was sent to the Court of JMFC, Ichalkaranji, District Kolhapur, who committed the case to the Court of Sessions at Kolhapur. 4. The learned Additional Sessions Judge to whom the case was made over, charged the 4 Cri.Appeal 427-1995 Appellants of the offence punishable under Section 307 of the Indian Penal Code. The Appellants pleaded not guilty and hence, were put on trial at which the prosecution examined in all 18 witnesses in its attempt to bring home guilt of the appellants. After considering the prosecution evidence in the light of defence of denial and false implications, the learned Additional Sessions Judge held all the four Appellants guilty for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years each. Aggrieved thereby, the appellants are before this Court. 5. I have heard the learned Counsel for the Appellants as well as the learned APP for the Respondent  State. With the help of both the learned Counsel I have gone through the evidence on record. The victim himself has been examined as P.W.1 Namdev Banda Koli. 5 Cri.Appeal 427-1995 P.W.2 Appasaheb Sakharam Kirtikar, P.W.3 Vijay Vasant Kelkar and P.W.8 Popat Devgonda More are reluctant eye witnesses, who state about the Appellants giving a chase to the victim but do not state about the actual assault. P.W.6 Kisan Annu Sutar is an eye witness to the assault. He stated that the Appellants gave a chase to the victim and then assaulted the victim. The victim then ran away towards West to Biroba temple. P.W.4 Rajendra Shankar Arekar and P.W.5 Deepak Dattatraya Madhale are panchas on seizure and other panchanamas performed in the course of investigation. Dr.Ajit Bhalchandra Joshi, who examined the victim has been examined as P.W.7. P.W.9 to P.W.12 are ASI Khallappa Satyappa Chougule, Head Constable Abdul Rahman Ibrahim Gadkari, Police Constable Ramchandra Bhau Patil and Police Constable Nandkumar Appaso Ghodke local officers, who participated in various stages of investigation from recording the report till filing of charge sheet. 6 Cri.Appeal 427-1995 6. The learned Counsel for the appellants first submitted that victim Namdev, who was examined as P.W.1, had admitted in his cross examination that he had been prosecuted in the past for an offence punishable under Section 304A of the Indian Penal Code and had also received notice for externment. Therefore, according to the learned Counsel, the victim could have several other enemies and since, vicitim stated in the FIR that he had received a blow on his head by someone , without naming Balasaheb, implication of the appellant in the assault is an after thought and therefore, should not have been relied on by the learned Trial Judge. As rightly pointed out by the learned APP, since the assault was launched from the back side of the victim, the reference to someone , appears in the first sentence of the narrative of assault. When he received the first blow obviously the victim did not know who gave that blow. But this does not mean that his attribution of 7 Cri.Appeal 427-1995 authorship of that blow to the appellant Balasaheb is an afterthought since the events which immediately followed was wrong were enough for the victim to infer that Balasaheb was the author of the first blow. It is only natural for a person to fail to notice as to who is the person giving blow from the back side, but once the blow is given and the assault continues, the person would undoubtedly notice as to who was the author of the injuries. In this case, Namdev has stated about further blows by the appellants and therefore, it cannot be said that Namdev has subsequently developed story involving the appellants on the assault made by some unknown persons. 7. Though P.W.2 Appasaheb Sakharam Kirtikar, P.W.3 Vijay Vasant Kelkar and P.W.8 Popat Devgonda More are reluctant eye witnesses and stated only about the victim being given a chase, they have unmistakenly 8 Cri.Appeal 427-1995 pointed to the participation of the appellants in a chase, armed with weapons, and therefore, there is no reason why the word of P.W.1 Namdev Banda Koli corroborated by these witnesses, should not be believed, as the learned Trial Judge has rightly done. The learned Counsel for the appellants submitted that these witnesses should not be believed because the possibility of their actually having their seen the chase or assault has been ruled out from the cross examination of these witnesses, showing their positions in their shops from where the assault or the chase could not have been seen. Now, ordinarily when an assault taken place in a place like the one at which Namdev was assaulted, in a market near S.T.Stand, persons present there would not continue with their ordinary business even on noticing that an assault has taken place and would at least take the trouble of looking at what has happened. Therefore, there is no reason to 9 Cri.Appeal 427-1995 reject testimonies of these witnesses insofar as they provided corroboration to the evidence of Namdev Banda Koli. 8. P.W.1 Namdev had stated that he had received a blow with the Sword on the back side of his head and thereafter, he started running towards the garage of Abbas Mistry when the Appellants chased him. He then states that the Appellant Balasaheb gave two blows with the Sword on his left arm when he caught blade of the Sword in his left hand to prevent Balasaheb from giving further blows. He states that the Appellant Dinesh was armed with Gupti gave a blow on the right side of his abdomen near waist. Appellant Nishikant was not armed with any weapon and he is stated to have merely held the victim near garage. The Appellant Shahajahan is alleged to have given blows with iron bar on the back of the victim. This account of the injuries received by Namdev would have to be examined with 10 Cri.Appeal 427-1995 reference to the evidence of P.W.7 Dr.Ajit Bhalchandra Joshi, who examined the victim. Dr. Joshi stated that on 25 th September, 1992 at 10:10 p.m. he examined Namdev and found that Namdev had as many as nine injuries which have been described as under :- (i) CLW (contused lacerated wound) left parietal region 5 x 1 cms fresh bleeding present. (ii) CLW (contused lacerated wound) 2 cm left lateral and downwards to injury No.1 in size 3 x 1 cm bone deep. (iii) Contused lacerated wound 2 cm below and downward to injury No.2 size 4 x 1 cm also bone deep. (iv) Contused lacerated wound on occipital bone left side oblique size 5 x 1 cm bone deep. (v) Stab wound left lower 1/3 rd of arm tearing anteriorly size 3 x 1 cm in centre, with clean cut edges. Fracture of lower 1/3 rd of humerous bone. (vi) Stab wound above left elbow joint bone deep. Size 4 x 5 x 2 cms in centre. (vii) Incised would left wrist joint going obliquely and anteriorly size 4 x 1 cms skin deep. (viii) Incised wound on base of left middle extending upto middle phalan of the left ring/finger 5 x 3 cms. 11 Cri.Appeal 427-1995 (ix) Incised perforating wound right lumbar region 4 cms above right illiac crest placed horizontally size 3 x 1 cms query depth. No apparent internal injuries Injury Nos.1 to 4 were simple. Injury Nos.5 to 9 were grievous in nature. Age of the injuries within 4 hours. 9. Dr. Joshi had brought the case papers as well X ray plates with him at the trial. He observed that injury No.9 was sufficient in the ordinary course of nature to cause death of the victim and injury Nos.1 to 9 were also cumulatively sufficient to cause death, if not treated within time. He stated injury Nos.1 to 4 could be caused by an iron bar. Injury Nos.5 to 8 could be caused by Sword. Injury Nos.1 to 4 could be caused by blunt side of the Sword or by its handle. Injury Nos.7 and 8 were defence injuries that is injuries caused in course of victim holding the Sword and injury No.9 could have been caused can be caused by a Gupti or a Knife having both the edges sharp. He further stated that Namdev was given treatment and was shifted to operation theatre. The surgery 12 Cri.Appeal 427-1995 performed did not reveal any internal injury on account of stab wound, injury No.9. 10. In his cross examination Dr.Joshi has revised his opinion and stated injury Nos.6, 7 and 8 were also simple in nature and had been wrongly certified them to be grievous in the Medical Certificate. 11. As already re-counted appellant Nishikant was not armed with any weapon. He is alleged to have only held the victim as the victim was being given blows by other persons. This, according to prosecution, had occured after victim had received blows by Sword on his head and left arm. The injuries caused on both these parts of the body were bleeding. Therefore, ordinarily, if appellant Nishikant had held the victim when further blows were being administered, the clothes of Nishikant would bear some blood stains. The panchanama of arrest of Balasaheb, Dinesh and Nishikant 13 Cri.Appeal 427-1995 which is at Exhibit 17 shows that there were no blood stains or any other marks of injuries on the clothes of Nishikant, creating a doubt whether Nishikant had at all participated in the assault. 12. P.W.1 Namdev had admitted towards the end of his cross examination that the appellants are the Complainant and witnesses in the murder of Balasaheb's brother. The learned Counsel for the appellants, therefore, submitted that the possibility of Namdev falsely implicating Nishikant because he was a witness against Namdev in the murder case cannot be ruled out. Considering the fact that Namdev had not attributed any role except pinning down to Nishikant, as also the fact that Nishikant could not have held Namdev without staining his clothes with Namdev's blood, the learned Trial Judge should have seen that participation of Nishikant in the assault on Namdev was doubtful and 14 Cri.Appeal 427-1995 therefore, should not have held Nishikant guilty of the offence punishable under Section 307 of the Indian Penal Code. 13. As far as appellant Shahajahan is concerned, P.W.1 had stated that Shahajahan had given blows by iron rod on Namdev's back but the evidence of Dr.Joshi which has been discussed above, does not show any injuries on the back. Since Namdev did not attribute any other injuries to Shahajahan, his participation in the assault has also become doubtful. And, in the context of the fact even Shahajahan was, according to Namdev, a witness against Namdev in the case of murder of Balasaheb's brother, Namdev having included Shahajahan also in the story of assault developed by him cannot be ruled out. The learned Trial Judge should, therefore, have seen that the evidence against Shahajahan was also unreliable and should have acquitted Shahajahan of the offence charged. 15 Cri.Appeal 427-1995 14. The learned Counsel for the appellants submitted that if the story of Namdev is thus found to be exaggerated and unreliable in respect of details of assault given by him in respect of two of the four appellants, it would not be proper to accept that story as regards assault by appellants Balasaheb and Dinesh. This contention has to be rejected, since falsus in uno falsus in omnibus has been time and again held in applicable in India given the tendency to exaggerate include persons who are actually not involved. Therefore, because the appellants Shahajahan and Nishikant could not have been held guilty of the offence charged, it does not imply that the appellants Balasaheb and Dinesh also should be acquitted. Their complicity would have to be examined with reference to the evidence tendered independently. 15. Namdev had stated that Balasaheb gave a blow by Sword on the backside of his head. 16 Cri.Appeal 427-1995 According to Dr.Joshi, there were three contused lacerated wounds one below other on the parietal region. There is also an injury on the occipital bone which is described as injury No.4. This could have been caused by the blow on the backside. Therefore, authorship of injury No.4 can be safely attributed to appellant Balasaheb. Namdev had then stated that Balasaheb gave two blows by Sword which correspond to injury Nos.5 and 6 observed by Dr.Joshi. It may be re-called that injury Nos.7 and 8 according to Dr.Joshi, were defensive wounds when Namdev caught the blade of the Sword to prevent further injuries. Dr.Joshi had observed that injury Nos.1 to 4 could be caused even by blunt side of the Sword. Injury No.4 is contused lacerated wound on occipital bone. The learned Counsel for the appellants submitted that if the appellant harboured an intention to cause death of the victim, while assaulting victim by Sword on the back side of head, 17 Cri.Appeal 427-1995 appellant Balasaheb could have as well used sharp edge of the Sword and could have caused more serious injury. The learned Counsel further submitted that from the fact that blunt side of the Sword or handle of the Sword was used hit the back side of Namdev's head would rule out any intention to cause death of Namdev as a result of the injuries inflicted. As rightly submitted by the learned APP, this could have been an accident in appellant's using the wrong side of the Sword, than one which he intended to use and therefore, cannot result in holding that the appellant lacked requisite intention or knowledge. He pointed out that the next injury on the left arm is by the sharp edge of the Sword. He submitted that the fact that the blows inflicted on the left arm need not have been with the intention to cause an injury on the left arm. The blow could have landed anywhere, and since the victim was not a still target the blow landed on left arm. Therefore, the learned APP 18 Cri.Appeal 427-1995 rightly submitted that the fact that Balasaheb assaulted Namdev with Sword and gave as many as three blows would be indicative of the intention to cause death of Namdev. 16. The learned Counsel for the appellants submitted P.W.7 Dr.Joshi does not state that any of the injuries which could be attributed to Balasaheb were sufficient in ordinary course of nature to cause death. He stated that injury No.9 which was not caused by Balasaheb, was stated to be sufficient in ordinary course of nature to cause death. This has been attributed to appellant Dinesh and there is no reason to disbelieve that Dinesh caused the injury. Therefore, according to the learned Counsel for the appellants, appellant Balasaheb could not be attributed with the necessary intention or knowledge. This argument has also to be rejected. It is not material as to what is the result of the assault. What is material 19 Cri.Appeal 427-1995 is the manner of assault and since, in this case, assault by Sword itself is indicative of intention of assault, appellant Balasaheb cannot escape from the conviction for the offence punishable under Section 307 of the Indian Penal Code. 17. This takes me to the question of complicity of appellant Dinesh. Namdev stated that Dinesh gave a blow on the right side of his abdomen near the waist. This corresponds to injury No.9 observed by P.W.7 Dr.Joshi which was an incised perforating wound which upon surgery was found to have not caused any internal damage. The learned Counsel for the appellants, therefore, submitted that since this injury was cavity deep, causing that injury would at worst attract provisions of Section 324 and not 307 of the Indian Penal Code. Again as submitted by the learned APP, not the result, but the manner of assault would be decisive of intention and therefore, 20 Cri.Appeal 427-1995 incised perforating wound on the right lumbar region which was cavity deep would be sufficient to attribute to appellant Dinesh the requisite intention and knowledge. 18. In view of this, conviction of the appellants Balasaheb and Dinesh for the offence punishable under Section 307 of the Indian Penal Code cannot at all be faulted. 19. The learned Counsel for the appellants submitted that the incident occured 19 years ago in the year 1992. The appellants were convicted in the year 1995 and have been living in the shadow of conviction for all these years. They have been in jail for all 67 days that is more than two months and therefore, submitted that they may not be asked to re-visit the jail and sentences may be reduced to those undergone by increasing suitable fine suitably. Considering the nature of assault, it would not be 21 Cri.Appeal 427-1995 appropriate to reduce sentence of the appellants to sentence of imprisonment only two months which they have undergone. But considering the fact that the conviction is recorded about 16 years ago, sentence of imprisonment could be reduced to rigorous imprisonment for three years. 20. In view of this, Appeal is partly allowed. Conviction of appellant Nos.1 Balasaheb and 2 Dinesh for the offence punishable under Section 307 of the Indian Penal Code is maintained but the sentence is reduced to rigorous imprisonment for three years. Conviction of appellant Nos.3 Nishikant and 4 Shahajahan for the offence punishable under Section 307 of the Indian Penal Code is set aside and they are acquitted of the said offence. (R.C.CHAVAN, J.)