1 Cri-Appeal-675-92.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 675 OF 1992 Shri Rolan Sayar Gonsalvis ) Aged about 45 years; ) R/o. Rajiv Gandhi Zopadpatti, ) Near Shahad Rly. Station, ) Tal.Kalyan, District Thane. ).. Appellant (Org.Accused) Versus The State of Maharashtra ..Respondents Ms. Vrishali Raje i/b. Shri S.R.Chitnis,Advocate, for the appellant. Smt. P.P.Bhosale, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 10th December, 2010. JUDGMENT : 1. The original accused has preferred this Appeal challenging the judgment and order dated 31.10.1992 passed by the learned VII Addl. Sessions Judge, Thane, in Sessions Case No. 361/1990 whereby the accused was convicted for the offence punishable under Section 307 of IPC and was sentenced to undergo R.I. for seven years and to pay fine of Rs.200/-. 2. Prosecution case, in brief, is that injured PW-8 Kisan Balu Pawar is son of brother of PW-1 Chandrabhaga. The accused, his wife PW-1 2 Cri-Appeal-675-92.sxw Chandrabhaga and PW-8 Kisan used to live together. His wife and PW-8 Kisan used to carry on business of fruits in the local trains. On 3.10.1989 after 10 p.m., some quarrel took place between the accused and his wife at their house and the accused was beating her. Therefore, PW-8 Kisan intervened and asked the accused not to beat her. On that, accused lifted a small piece of log or stick and rushed after PW-8 Kisan to assault him, but the said stick hit his wife Chandrabhaga and she fell down. After that, Kisan went out from the house. The accused assaulted him with a broken bottle near Shahad Bridge and caused number of injuries on his abdomen, back, arms, etc. As a result of the same, his intestines came out from and he fell down and was unconscious for some time. PW-4 Ashok Tukaram Kulkarni, who is a cousin of injured Kisan had come to the spot and seen the incident. He immediately rushed to his house and informed his brother PW-3 Bharat about the incident. Thereafter, Bharat also went there. With help of a police constable, they took injured Kisan to the Municipal Hospital, Kalyan, where he was examined by the medical officer Dr. Kshama Mumbaikar. Immediately after examination, he was referred to Civil Hospital, Thane where he was examined by PW-11 Dr. Fulchand Dengre during the same night. He was given treatment in the hospital and was discharged on 13.10.1989. After he was taken to hospital, PW-3 Bharat lodged a report Exhibit 11 at Mahatma Phule Chowk Police Station at Kalyan, on the basis of which Crime No. 3 Cri-Appeal-675-92.sxw 238/1989 under Section 307 of IPC was registered on 4.10.1989 at 2 a.m. When Kisan was taken to Hospital, he was unconscious. Later on, he regained consciousness and his statement in the form of dying declaration was recorded by the Executive Magistrate. During investigation, PW-14 Mohan Nalavade Police Inspector recorded the spot panchnama, and seized the broken pieces of bottle from the spot. He also seized the blood stained clothes of the accused himself and half-pant of injured Kisan. On the basis of information given by the accused, the broken bottle, which was used as a weapon of offence, was also recovered. The Finger Print Expert was called and he collected the chance finger prints on the said broken bottle. These finger prints tallied with the finger prints of the accused. After investigation, charge-sheet was filed in the Court of J.M.F.C., Kalyan. In due course, the case was committed to the Court of Sessions. 3. Charge Exhibit 5 was framed against the accused under Section 307 and in the alternative, under Section 326 of IPC. The accused pleaded not guilty. According to him, he was falsely implicated in this case. 4. According to the accused, injured Kisan was in the habit of consuming liquor. He was expecting free accommodation and food from the 4 Cri-Appeal-675-92.sxw accused which was not possible. According to him, because of this reason, he has been falsely implicated. He does not know how Kisan had suffered the said injuries. 5. On behalf of prosecution, in all 15 witnesses were examined. Several documents were also placed on record. After hearing arguments of both sides, the learned trial Court convicted and sentenced the accused as stated earlier. 6. Heard the learned Counsel for the accused-appellant as well as the learned APP. Perused the record and proceedings of the trial Court. 7. PW-8 Kisan is the injured and victim of the offence. Admittedly, he is son of brother of PW-1 Chandrabhaga, who is wife of the accused. The evidence of witnesses reveals that Kisan used to live with his aunt PW-1 Chandrabhaga and the accused. They used to sell fruits in the local train. PW-3 Bharat and PW-4 Ashok are brothers inter-se. They are also sons of another brother of PW-1 Chandrabhaga. They also reside in the same locality. It appears from the evidence that it was the period of Navratra and the people in the locality were participating in Garbha dance. As per the evidence of PW-8 Kisan, on 3.10.1989 at about midnight, quarrel was going on between the accused and his 5 Cri-Appeal-675-92.sxw wife Chandrabhaga in their house. The accused was beating her. At that time, Kisan also reached there. He asked the accused not to beat her. However, the accused took a small piece of log or a Dandka and rushed to assault Kisan but it actually hit PW-1 Chandrabhaga and she fell down. According to Kisan, he then ran outside the house. At that time, the accused had a bottle in his hand which he had broken on the ground. The accused followed him and gave several blows with the broken bottle on his abdomen, back and arms, due to which he suffered serious bleeding injuries on different part of his body. His intestines had come out and therefore he fell on the ground. He also deposed that PW-4 Ashok had come there and then he had gone away and come back along with his brother PW-3 Bharat. Then he was taken to Kalyan Hospital. From there, he was taken to Ulhasnagar Hospital and then immediately he was taken to Thane hospital where he was hospitalized. 8. PW-2 Chandrabhaga in her evidence before the Court initially denied that there was any quarrel between herself and her husband. However, immediately she corrected herself and deposed that quarrel had taken place between herself and the accused and PW-8 Kisan had intervened. However, she deposed that she does not now what happened thereafter as she herself went away to the house of her sister Putalabai, who resides at Ulhsnagar. According to her, 6 Cri-Appeal-675-92.sxw she had not seen the accused assaulting Kisan with stick. According to her, on the next day, she came to know that Kisan was taken to hospital. PW-1 Chandrabhaga was declared hostile by the prosecution because she did not support the prosecution case on the material aspects. PW-2 Juli is daughter of the accused and Chandrabhaga. According to her, she had also not seen the incident. She was also declared hostile by the prosecution. 9. PW-4 Ashok deposed that on 3.10.1989, he had been to attend Garba dance in the night. He came to the house of the accused and he found that some quarrel was going on between the accused and his wife. Kisan also came there. On his arrival, PW-8 Kisan asked the accused not to quarrel and he tried to convince the accused. However, the accused picked up a small piece of log i.e. Dandka and gave a blow with the same to Kisan, but it actually hit Chandrabhaga. According to him, there was one empty bottle in the room. The accused had broken the bottle and had run after Kisan with the broken bottle. He deposed that while running away, PW-8 Kisan fell down and then accused assaulted him with the broken bottle on the abdomen, back and arms, due to which Kisan suffered several bleeding injuries. According to PW-4 Ashok, after the accused had assaulted Kisan with the broken bottle and had run from the spot. Ashok himself went to the house of PW-1 Chandrabhaga and told her about the incident 7 Cri-Appeal-675-92.sxw and then she went to the spot. According to Ashok, he then went to his own house and informed his brother PW-3 Bharat about the incident. Thereafter, Ashok and PW-3 Bharat both went to the spot and with the help of a policeman present at the site of Garbha, took Kisan to the hospital. In view of the evidence of PW-8 Kisan as well as the evidence of PW-4 Ashok, it appears that after the initial quarrel at the house of the accused,Kisan had run away and the accused had chased him with a broken bottle in his hand. At some distance from that place, the accused assaulted Kisan with a broken bottle and caused several injuries. At the spot of that incident, PW-1 Chandrabhaga was not present and she was informed when PW-4 Ashok went to her house. There is nothing in the evidence of PW-4 Ashok or the evidence of PW-8 Kisan that PW-2 Juli was present at the time of actual assault. In view of this evidence, I find that PW-1 Chandrabhaga and PW-2 Juli were in fact not the eye-witnesses of the actual assault resulting in the injuries. Admittedly, PW-3 Bharat was sleeping at his house when the incident occurred. He was woken up by PW-4 Ashok and was informed about the incident. Then he went to the spot and took Kisan to the hospital. On the basis of information which he had received from Ashok, PW-3 Bharat lodged the FIR Exhibit 11. Thus, Bharat himself is not the eye-witness, but his evidence is material because immediately after the incident, he was informed by the eye-witness of the incident that the accused had assaulted Kisan 8 Cri-Appeal-675-92.sxw with a broken bottle. Thus, the evidence of PW-3 Bharat provides corroboration to the testimony of PW-4 Ashok and PW-8 Kisan. 10. The learned Counsel for the appellant pointed out that though PW-4 Ashok claims to be an eye-witness, evidence of PW-8 Kisan shows that Ashok reached there when he fell down after assault. In view of this, the learned Counsel urged that PW-4 Ashok was also not eye-witness and he came there after the incident was over. I am not inclined to accept this contention because as per the evidence, PW-8 Kisan ran away from the house and accused was chasing him with a bottle. Naturally, PW-8 Kisan was not watching as to where PW-4 Ashok was. According to Ashok, he also saw the accused chasing Kisan and according to him, Kisan fell down while running and, then the accused began to assault him with bottle and he also reached. It is possible that Ashok actually reached the spot when Kisan fell down. It is possible that he might be at the distance of few paces when the accused had began to assault and therefore while Kisan noticed presence of Ashok after he himself fell down, while Ashok had actually seen the assault. PW-4 Ashok immediately went to the house of the accused and informed Chandrabhaga and then went to his own house and informed his brother Bharat about the incident. This conduct provides corroboration to his testimony that he had actually seen the incident and therefore immediately he 9 Cri-Appeal-675-92.sxw rushed to his brother to provide assistance to injured Kisan. Both the brothers immediately went to the spot and then they called a police constable who was present at the spot of Garba dance. 11. PW-13 police constable Dipak Magare deposed that he was on duty for the Garba programme under Shahad Railway Bridge from 7 p.m. At about 11.45 p.m. when Garba was still going on, PW-3 Bharat Kulkarni came to him and informed that someone was assaulted and was lying near the board on the road in that hutment area with bleeding injuries on abdomen and back. According to PW-13 Dipak, he immediately went to the spot and and he took the injured to Municipal Hospital, Kalyan by rickshaw with help of PW3 Bharat. Evidence of PW-7 Dr. Kshama Mumbaikar, then medical officer at the Municipal Hospital, Kalyan, deposed that during that night injured Kisan was brought to the Municipal Hospital and she had examined him at 0.35 hours on 4.10.1989. This shows that immediately after the incident, with help of policeman, PW-3 Bharat had taken Kisan to hospital. This immediate conduct of Ashok and Bharat and the police constable and the medical examination of Kisan goes to provide corroboration to the testimony of Ashok that he had seen the incident. 12. Evidence of PW-7 Dr. Kshama Mumbaikar reveals that on 10 Cri-Appeal-675-92.sxw examination of Kisan, she found the following injuries :- "1) Incised wound on left side arm 1" x ½" transverse bleeding; 2) Incised wound on right abdomen 4" x 1" cavity deep intestine protruding bleeding plus..plus transverse. 3) Incised wound on left abdomen 5" x ¼" x flesh deep curve in shape bleeding plus. 4) Two Incised wounds on middle region of back I) 1¼" x 1" x bone deep fracture suspected, II) left lower back near middle region 2" x 1" X flesh deep transverse bleeding plus. 5) Incised wound on right wrist frontly 1" x ½" flesh deep transverse bleeding plus--plus. 6) Two Incised wounds on left arm I) ½ x ¾" x flesh deep and II) 1" x ¼" x flesh deep both were transverse bleeding plus-- plus. 7) Incised would on left upper scapula minor." Accordingly, she issued the certificate Ex.21. She also deposed that history of assault was given. According to her, all these injuries could be possible with a broken bottle. All the injuries were fresh. The patient was semi-conscious. Injury No.4 consisted of two incised wounds on the back and injury No.6 included two incised wound on the left arm. Thus, in fact, he had suffered 9 incised wounds on the body. Out of them, injury Nos. 2 and 3 were on the abdomen, while two incised wounds shown as inury No.4 were on the middle region and on the left 11 Cri-Appeal-675-92.sxw lower portion near the middle region of the back. 13. PW-11 Dr. Fulchand Dengre was the Medical Officer at the Civil Hospital, Thane during that night. His evidence shows that on 4.10.1989 at about 2.45 a.m. injured Kisan Balu PW-8, with history of assault with a bottle, was brought to the hospital. He examined Kisan and found the following injuries :- "1. Incised wound left side abdomen iliac fossa region 4½" x 1½" x with protruding intestine; 2. Incised would on right side abdomen front gastric region 5" x ¼" x 1/8"; 3. Incised wound on right hand forearm lower 1/3rd part anterorily 2¼" x 1/4" x 1/8"; 4. Incised wound on the back side chest 2¼" x 1¼" x 1½" with query internal injury of chest organ; 5. Incised wound on left hand fore arm dorsally 1¼" x ¼" x 1/8". 6. Abrasion on left hand forearm laterally lower 1/3rd part ½" x ¼" x skin deep. 7. Liniar abrasion on right side suprascapular region ½" x ¼" x 1/8". Injury Nos. 1 and 2 were on abdomen and intestine was protruding from the injury No.1. Injury No.4 was on the back side. He also deposed that these injuries could be caused by a sharp weapon and these injuries could be sufficient to cause death. Out of these injuries, particularly the two injuries on the abdomen and one injury 12 Cri-Appeal-675-92.sxw on the back of the chest could be dangerous if the timely treatment could not have been given to him. Dr. Fulchand also issued a medical certificate Exhibit 27 accordingly. 14. Both these doctors were cross-examined on behalf of the accused. However, the medical evidence shows that these injuries could not be possible by a fall on the sharp weapon nor these injuries could be possible with a single blow. Taking into consideration the number of injuries on different parts of the body and their dimensions and particularly the depth, it appears that these injuries were caused intentionally with strong blows given with some sharp cutting weapon. As per the evidence of PW-8 Kisan and PW-4 Ashok, these injuries were caused by the accused with the broken bottle. Their evidence is corroborated by the medical evidence. Even though the accused contended that he has been falsely implicated in this case, I do not find any valid reason for PW-8 Kisan to falsely implicate the accused nor there can be a reason for PW-4 Ashok to falsely implicate the accused in this case. The injuries could not be caused accidentally by fall nor these injuries could be self- inflicted. In view of the nature of injuries noted above, they were caused with person with sufficient force and with intention. It is impossible to believe that PW-8 Kisan would save the real culprit and would falsely implicate the accused who is husband of his paternal aunt and 13 Cri-Appeal-675-92.sxw with whom he was living. 15. The evidence of the Investigating Officer PW-14 Nalavade reveals that on the basis of information given by the accused, broken bottle was recovered. However, PW6 Arun Jambhale and PW-9 Sheru Joshi, who were panch witnesses did not support the prosecution and were declared hostile. However PW-14 deposed that the accused had stated that he would produce broken bottle and that statement was recorded as memorandum Ex.16. Then the accused took the police and panchas near the Bridge and from open space he produced the broken bottle (Article 9) and same was seized under a panchnama Ex.17. It could be said that the seizure of a broken bottle lying in the open place near the Bridge cannot provide any corroboration to the prosecution story, particularly when there is nothing on record to show that broken bottle was referred to C.A. to find out blood of the injured on the said bottle. However, the evidence of PW-15 Bhagwan More, who is a Finger Print Expert, is relevant. According to him, he was posted as Finger Print Expert in the Crime Branch at Thane. On 4.10.1989, he was called at the spot of incident by P.I. Nalavade of Mahatma Phule Chowk Police Station, Kalyan to check the chance finger prints on the broken bottle seized by him. He could get two chance finger prints on the said broken bottle. Finger prints of accused were also taken and they tallied with 14 Cri-Appeal-675-92.sxw the finger prints found on the broken bottle. Accordingly, he gave a report Ex.42 along with all the finger prints and negatives. The, presence of finger prints of the accused on the broken bottle, found near the spot of incident, also provide corroboration to the testimony of PW-8 Kisan and PW-4 Ashok. 16. The learned Counsel for the accused pointed out that the accused had also suffered some injuries on his person as can be seen from the medical certificate Ex.32. This document was admitted in evidence without examining the doctor. It shows that on 4.10.1989 at 11.45 a.m. the accused was examined by the medical officer of Municipal Hospital and following injuries were found on his person :- "C.L.W. 2" x 1/8" Back of hypotherar region of (L+) palm, B1+ -- C.L.W. ¼" x ¼" Lower lip, B1+ --C.L.W.½" x ¼" x ¼" (R+) side of forehead" There was history of assault by broken glass and bricks during the previous night. The learned Counsel contended that the prosecution has not explained these injuries and when the injuries on the person of the accused have gone unexplained by the prosecution, the benefit of doubt should go to the accused. It is material to note that as per the history given by the accused also, he had suffered injuries with a broken glass. One of the injuries was on palm and another was on lower lip 15 Cri-Appeal-675-92.sxw and third was on the right side of forehead. If these injuries were compared with the injuries suffered by PW-8 Kisan, one can say that the injuries suffered by Kisan were very serious in nature while the injuries suffered by accused were minor. It would be natural that if the accused had assaulted Kisan with the broken bottle, he must have tried to resist and possibly in that attempt the accused suffered these minor injuries with the bottle in his own hand. It cannot be believed that the injuries were caused by Kisan to him. In fact, these injuries on the person of the accused go to provide corroboration to the prosecution evidence that he was assailant. 17. Taking into consideration the evidence on record, there remains no doubt that initially some quarrel had taken place between the accused and his wife and because he was beating his wife, PW-8 Kisan intervened and asked him not to beat her. Due to that, accused appears to have got annoyed and therefore he lifted a log of weapon to assault him and n fact assaulted him, but that log actually hit his wife PW-1 Chandrabhaga. Thereafter the accused with broken bottle ran after Kisan, who had run away and near the Bridge he gave several blows on different parts of his body with the broken bottle and caused the above referred injuries. Taking into consideration the number of injuries, their sizes and the parts of body on which they were caused indicates that the accused had 16 Cri-Appeal-675-92.sxw intention to cause such injuries which could have caused death. Had Kisan died because of said injuries, the accused could be held guilty for the offence of murder. Therefore, I find that the trial Court rightly convicted the accused for the offence of attempt to commit murder punishable under Section 307 of IPC. Taking into consideration the manner in which the offence was committed, and the number of injuries, etc. I see no reason to interfere even in the sentence awarded. 18. For the aforesaid reasons, the Appeal stands dismissed. The trial Court shall issue arrest warrant against the accused so that he may be sent to Jail to undergo the sentence of imprisonment. (J.H.BHATIA,J.)