1 CrAJ-20.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPEAL NO.20 OF 1997 Motilal Balaji Mutkeri , Age-34 years, residing at 522, Sakhar Peth, Solapur. .... Appellant Vs. The State of Maharashtra .... Respondent Shri Rahul S. Kate for the Appellant. Ms Geeta P. Mulekar, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: NOVEMBER 22, 2010 ORAL JUDGMENT: 1. This appeal is directed against the conviction of the appellant for the offence under Section 307 of the Indian Penal Code and sentence to suffer RI for three years and fine of Rs.1000/- imposed upon him by the learned 3rd Addl. Sessions Judge, Solapur on conclusion of Sessions Case No.184 of 1995. 2. The facts which are material for deciding this appeal are as under: The appellant is a cousin of the victim Nagmani. There were admittedly some disputes 2 CrAJ-20.97 between the family of Nagmani and the appellant on account of partition at which Nagmani's father is alleged to have played an important role. On 16-2-1994, when the victim was alone in her house at about 1:45-2:00 p.m., the appellant came to her house, followed the victim in the kitchen, consumed a glass of water which he himself took. When the victim felt something hit her buttocks, she turned around and found the appellant armed with a knife. The appellant allegedly asked the victim to hand over the ornaments, took away her necklace, stabbed her on the abdomen and chest and then ran away. Her cries attracted her brother-in-law's wife who was residing on the floor below. She was taken first to Dr. Kothadia's Hospital and from there to Dr. N.M. Wadia Charitable Hospital where Dr. Kothadia treated her and thereafter on 25-4-1994 she was shifted to Mumbai for further treatment. 3. The appellant was arrested on 6-4-1994 and in the course of the investigation agreed to produce the knife which was used in the commission of the offence. The knife was seized and sent to the forensic science laboratory which reported that the knife had stains of blood group of AB which was the victim's blood 3 CrAJ-20.97 group. The appellant was released on bail on 16-4-1994. On 19-4-1994 he is alleged to have handed over the necklace to one Rajendra Basavanappa Javale from whom it was seized on 20-4-1994. In the course of the investigation, the police recorded statements of the witnesses, drew panchnama of the spot and on completion of the investigation sent the charge-sheet to the Court of the learned Judicial Magistrate, First Class, Solapur, who committed the case to the Court of Sessions. 4. The learned Addl. Sessions Judge charged the appellant with offences punishable under Sections 450 and 394 r/w Section 397 of the IPC as also under Section 135 of the Bombay Police Act. Since the appellant pleaded not guilty to the charge, the prosecution examined as many as eleven witnesses to bring home the guilt of the appellant. After considering the evidence of the prosecution witnesses in the light of the defence of false implication raised by the appellant, the learned trial Judge acquitted the appellant of the offences punishable under Sections 450 and 394 r/w Section 397 of the IPC and Section 135 of the BP Act, but convicted and sentenced him, as afore-mentioned, for the offence punishable 4 CrAJ-20.97 under Section 307 of the IPC. Aggrieved thereby, the appellant has preferred this appeal. 5. I have heard Advocate Shri Rahul Kate and the APP Ms Geeta Mulekar for the State. With the help of both the learned counsel I have gone through the record. The learned counsel for the appellant is right in submitting that there are some glaring contradictions in the prosecution evidence. The learned trial Judge has rightly disbelieved the evidence of seizure of the necklace since it would have been improbable to conceive of the accused person handing over a stolen necklace to the servant of the victim s husband after being bailed out and such necklace being recovered on the very next day by the police. It shows an overzealous attempt by the police to collect evidence. In any case, the witnesses on seizure of this necklace have turned hostile and have not supported the prosecution case. They are PW-3 Shaukat Mustafa Pathan and PW-4 Rajendra Basavanappa Javale. 69 6. There is another important discrepancy in the prosecution evidence, as rightly pointed out by the learned counsel for the appellant. 5 CrAJ-20.97 The victim PW-1 Nagmani had stated in her evidence that she had first been taken to Dr. Kothadia s Hospital and from there she was referred to Wadia Hospital. In fact, the FIR also mentions that she had first gone to Dr. Kothadia s Hospital. Dr. Kothadia, who has been examined as PW-10, is a family physician of the victim s family. However, he states that he came to know that the victim had been admitted to Wadia Hospital from a telephonic message received from the victim s relation. He does not state that the victim had come to his hospital. There was no reason for Dr. Kothadia to conceal that the victim had come to his hospital. He has proved the injury certificate issued by him upon examination of the victim which records that the victim had the following injuries: 1. CLW Left breast around areola. 3 cm skin cut deep extending in between pectoral muscle about 4 . No Heart or Lung injury. 2. CLW left gluteal region. 1½ length x ½ breadth skin & muscle deep. 3. CLW right epigastric region going into the peritoneal cavity. 1½ length, bleeding. Branches of left gastric vessels were cut with injury to pancreas with 6 CrAJ-20.97 blood in to the peritoneal cavity. Though Dr. Kothadia should not have concealed that the victim first came to his hospital, there is no reason to disbelieve his evidence about the injuries which the victim suffered. Therefore, this discrepancy, to which the learned counsel for the appellant points, does not create a dent in the reliability of the prosecution evidence. 7. There would be obviously no reason for the complainant to make a false accusation against the appellant after having suffered such serious injuries. There would be no reason for her to screen the real offender and name the appellant as the perpetrator of crime just for the sake of some partition which took place some years ago. Therefore, the learned Judge was right in relying on the evidence of the prosecutrix in so far as she stated about the assault by the appellant on her person. 8. The learned counsel for the appellant submitted that the injuries which have been observed by PW-10 Dr. Kothadia are all contused lacerated wounds and could not have been caused by the weapon like Article-3 knife, which had 7 CrAJ-20.97 been seized at the instance of the appellant in the presence of PW-2 Dattatraya. The knife had one blunt edge and, therefore, it not impossible that the injuries by the knife appeared to the Medical Officer as contused lacerated wounds rather than clean cut incised wounds. 9. The learned counsel for the appellant also submitted that it was significant that the victim had herself not gone to the police station. He pointed out that PW-8 PSI Patil stated that when he was on bandobust duty at the rest house at Solapur because the Chief Minister was scheduled to visit, he learnt from some citizens that a lady had suffered some injuries and therefore, on instructions of PW-9 PI Patel, went to record the statement of the lady in Wadia Hospital. In this context, it is also significant that a suggestion was made to the victim towards the end of her cross- examination that the incident was altogether different and that the victim was deposing falsely just to save the respect of the family. This suggestion is not as innocuous as is sought to be made out by the learned counsel for the appellant. This shows that the appellant knows the cause of the assault as 8 CrAJ-20.97 well. Therefore, the trial Judge rightly believed the victim when she stated that the appellant was the perpetrator of the assault on her and held the appellant guilty for the murderous assault inflicted on the victim. 10. The learned counsel for the appellant submitted that the appellant could not have been convicted for the offence under Section 307 of the IPC since there was no charge of that offence framed against the appellant. As rightly pointed out by the learned APP, the charge of offence punishable under Section 394 r/w Section 397 clearly mentions that the appellant had caused grievous hurt to the victim and had attempted to cause the death of the said victim. In relation to Section 397 of the IPC, an offence under Section 307 would be a lesser offence and therefore the conviction of the appellant for the offence under Section 307 of the IPC, without there being a charge under that section, is not irregular. In view of this, the conviction of the appellant for the offence punishable under Section 307 of the IPC has to be upheld. 11. The learned counsel for the appellant submitted that the incident is 16-years old and 9 CrAJ-20.97 had occurred on account of some dispute in the family and that the appellant was just 34-years at the time of the incident and therefore may not be sent back to the jail after so many years. The learned trial Judge has in fact been indulgent in inflicting sentence of only three years RI for the murderous assault by the appellant. It has to be mentioned that one of the injuries was cavity deep and had cut the blood vessel inside and also damaged the pancreas. In view of this, it cannot be said that the sentence inflicted upon the appellant by the learned trial Judge was excessively harsh to call for an interference. The appeal is, therefore, dismissed. The appellant shall surrender to his bail within a period of four week. If the appellant does not do so, the learned Sessions Judge shall take steps to have him arrested and commit him to jail. Sd/- (R.C. CHAVAN, J.)