( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 54 of 2005 CRIMINAL APPEAL No. 54 of 2005 CRIMINAL APPEAL No. 54 of 2005 Sunil Vishnupant Dhondugade, age 27 years, Occupation business, resident of Masur, Taluka Karad, District Satara (Kolhapur Central Prison) .. Appellant. (Original Accused). versus. versus. versus. The State of Maharashtra. ..Respondent. Mr N. N. Gavankar i/b Arfan Sait for the Appellant. Mrs M. H. Mhatre, A.P.P. for the State. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. DATED : 22ND APRIL,2009. DATED : 22ND APRIL,2009. DATED : 22ND APRIL,2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: ------------- ------------- ------------- 1. Heard rival submissions at length today, in the present appeal, which is preferred by the appellant, original accused, challenging his conviction for the offences ( 2 ) punishable under Section 307 of the Indian Penal Code (I.P.C.for short). The impugned judgment and order came to be passed by the learned 3rd Additional Sessions Judge, Satara (the "Trial Court" for short) in Sessions Case No. 45 of 1994 on 18.12.2004. The appellant accused is convicted for the offence punishable under Section 307 of the I.P.C. and sentenced to suffer R.I.for ten years and fine of Rs. 5,000/- in default to suffer further R.I. for three months. The appellant-accused is acquitted of the charges for the offences punishable under Sections 392 and 342 of the I.P.C. as the Trial Court did not believe the case of the prosecution as there was a robbery of gold bracelet of the woman (P.W.1) and it was held that the appellant-accused attempted to commit murder of the said woman and assaulted her with a knife in such a manner and under such circumstance that she would have died of such injuries. At this juncture, it must be mentioned that as per the substantive evidence of the attending doctor and also as mentioned in the medical certificate injured woman P.W.1 had sustained 17 injuries, out of ( 3 ) them injury no.1 is in fact the fatal injury inflicted on the abdomen, various other injuries were inflicted on the arms and also on the palms giving the impression that there was an attempt by the woman to escape the assault, as those were the defence injuries. There were also injuries on the back of the woman and that after immediate treatment was given to her at the hospital, within two hours of the incident she lodged her complaint with the local police at the hospital itself and offence was registered. 2. In order to appreciate the arguments advanced on behalf of the appellant, learned counsel Shri Gavankar, the prosecution case can be narrated, in brief, as under: 3. Complainant P.W.1 Dr.Mrunalini and her husband P.W.2 Dr.Dilip Patil are both medical practitioners, staying and having their medical practice at Satara and in the nearby area. The appellant-accused is the friend of one Dhananjay Shinde. The said Dhananjay Shinde was son of the sister of P.W.2, Dr.Dilip Patil. ( 4 ) Reportedly, the said Dhananjay Shinde died in an accident after the present incident of assault occurred. According to the prosecution case, the present appellant was in need of money to the extent of Rs.25,000/- or Rs. 30,000/- for getting a job to his wife who is a Diploma holder in Pharmacy. He wanted such financial assistance from P.W.2. However, such advance of loan was denied by P.W.2. 4. According to the prosecution case, on the fateful day i.e. 29.12.1993 complainant P.W.1 was present in her house. Her old aged father was also present in another room. At about 3.45 p.m. accused came in the house and asked for Dr Dilip Patil and after knowing that he had gone to nearby village, he asked for a glass of water and when P.W.1 turned back to bring glass of water, he took out a knife which he had brought with him and inflicted several blows on the person of P.W.1 on almost on various parts of the body, abdomen, hands and back. During the said incident, Mangalsutra, gold ring which the complainant was wearing, were missing. After such ghastly attack, the ( 5 ) accused ran away from the spot of the incident. Mangalsutra and gold ring were found in the room itself, however, golden bracelet was not found. It is also the case of the prosecution that P.W.1 shouted for help and as such neighbours gathered, including P.W.5 Rustum Sheikh and with the help of another person by name Mahendra Kamble, P.W.1 was taken to the clinic of Dr Yashwant Patil and thereafter she was taken to the Civil Hospital, Satara. She was treated by P.W.3 Dr Anil Shinde, who was working as a Medical Officer in the Civil Hospital. Immediate treatment was given to P.W.1 and a operation was performed. An arrangement was made to give her blood after getting the matching of blood group. An information was given to police. One police constable attached to the Civil Hospital recorded complaint of P.W.1. The said complaint was treated as the F.I.R. and the investigation was commenced. During the investigation, the present appellant-accused was arrested on 31.12.1993. According to the police, on 4.1.1994 the accused voluntarily gave statement to produce weapon of assault ( 6 ) i.e. knife and as such the knife was recovered at his instance under the panchnama (Exh.55). 5. During the investigation, clothes of the injured P.W.1 and also the weapon recovered at the instance of the accused were sent for chemical analysis and C.A. reports were obtained. On completion of investigation, charge sheet was filed before the learned Judicial Magistrate, First Class, Satara who committed the case to the Court of Session. 6. During the trial before the III Additional Sessions Judge, Satara in all nine witnesses were examined i.e. the complainant P.W.1 Dr. Mrunalini, P.W.2 Dr. Dilip, P.W.3 Dr. Anil Shinde (Medical Officer in the Civil Hospital, Satara), P.W.4 Dr Yashwant Patil (Private Medical Practitioner), P.W.5 Rustum Shaikh, P.W. 6 Satish Taralekar (neighbouring witnesses), P.W. 7 Appasaheb Taralekar, who acted as panch for spot panchnama and also acted as panch for drawing memorandum and recovery panchnama of knife at the instance of the accused, P.W.8 Ashok Kathale, in whose ( 7 ) presence, accused was arrested under a panchnama and last witness P.W.9 Mr Jay Jadhav (Dy.S.P.), who on completion of investigation filed charge sheet in the court. 7. Finding the substantive evidence of the prosecution witnesses and mainly that of P.W.1 and considering the effect of the documentary evidence and mainly that of the injuries sustained by the complainant i.e. 17 incised wounds on almost various parts of her body including abdomen and back, the learned Trial Court convicted the accused for the offence punishable under Section 307 of the I.P.C. However, accused was acquitted for the offence punishable under Sections 392, 342 of the I.P.C. 8. During the arguments the learned counsel Shri Gavankar appearing for the appellant accused submitted three main defences. Firstly, that it is the alibi of the accused that on the relevant date,time and place of the incident he was accompanied with his wife for seeing a movie at Satara city and ( 8 ) the said movie was between 3.00 p.m. to 6.00 p.m. Second defence is that P.W.1 complainant wanted to protect Dhananjay Shinde and as such involved the present appellant. Thirdly, defence is that the version of P.W.1 cannot be believed as she had given diverging versions so far as the motive is concerned. On this aspect, it is submitted that initially P.W.1 had mentioned that the accused had demanded Rs. 5,000/- from her husband and as the amount was not given, he had assaulted her by entering her house on the relevant afternoon. At some other time, she had mentioned that the accused had demanded Rs. 30,000/- for getting the job to his wife and that for this purpose the accused wanted certificate from her husband i.e. P.W.2. However, as such request of the appellant was not fulfilled the accused had assaulted her. In the opinion of this Court, when the case is based on circumstantial evidence, definitely, the motive plays a vital role. However, as in the present case, there is direct substantive evidence of P.W.1 herself and it is to be tested whether her testimony if required to be believed or not. Under these ( 9 ) circumstances, the third defence cannot be accepted on preponderance of probability. 9. Now, coming to the first defence as to the alibi, it must be mentioned that apart from producing the movie tickets and apart from examining his own wife, there is no other evidence brought by the appellant-accused on record. In that event, hardly it can be said that at the relevant time the accused was not present and had not committed any offence and that he was away from the spot and was at the movie hall. Considering the over-whelming evidence of the prosecution and mainly that P.W.1, this defence of alibi cannot be accepted even on preponderance of probability. 10. Now, coming to the main defence i.e. of falsely implicating the appellant in order to protect one Dhananjay Shinde, certain background as to the involvement of Dhananjay Shinde can be narrated. According to the appellant-accused, said Dhananjay Shinde was in love with P.W.1 prior to her marriage. Said Dhananjay Shinde was the son of paternal aunt ( 10 ) of Dr Dilip Patil i.e. husband of P.W.1. It is also alleged on behalf of the appellant-accused that the said Dhananjay Shinde was continuing his advances towards P.W.1 even after her marriage. However, P.W.1 was not responding him and due to such reason Dhananjay Shinde had, in fact, evil design and committed the present incident of assaulting P.W.1 on the relevant afternoon. It is further argued that noticing such assault at the hands of Dhananjay Shinde, P.W.1 thought it fit to take name of somebodyelse instead of Dhananjay Shinde as the assailant. According to the accused, P.W.1 wanted to shield Dhananjay Shinde as otherwise during the trial in which Dhananjay Shinde would be the accused, her earlier love affair with him would have been exposed to public. In the opinion of this Court, this defence cannot be accepted on any count. More so, when it would be highly improbable and unnatural that a woman who is not responding to her earlier lover and wanted to get rid of the said person, would in fact shield him, inspite of said person committing severe attack on her chest, practically taking ( 11 ) her life. Again, it would be highly improbable to accept, even on preponderance of probability, the defence of the appellant that P.W.1 would shield the said Dhananjay Shinde knowingly that he is the assailant and then will take the name of the appellant and that also after having such type of planning and design in mind and to take his name just within two hours of the assault when she was being treated for such severe injuries. If such argument on behalf of the appellant is required to be accepted, then it would be logical for P.W.1 in fact to take name of the alleged real assailant i.e. Dhananjay Shinde so that he would be definitely be debarred from her life after facing the charges for which the present appellant is charged. 11. All the same, in the opinion of this Court, none of the defences raised on behalf of the appellant can be accepted, even on preponderance of probabilities. In other words, it must be mentioned that the substantive evidence led before the Sessions Court by way of evidence of P.W.1 and ( 12 ) corroborated by the medical evidence in the form of 17 incised wounds rightly prompted the Trial Court to hold the appellant-accused guilty of the offence punishable under Section 307 of the I.P.C. Again, on this aspect, by taking shelter of the authority in the case of State of Maharashtra v. Gulabsingh and others, State of Maharashtra v. Gulabsingh and others, State of Maharashtra v. Gulabsingh and others, A.I.R., 1978 Bombay 367 A.I.R., 1978 Bombay 367 A.I.R., 1978 Bombay 367 it is tried to argue on behalf of the appellant that there was no any intention of the accused to kill P.W.1 or that he had no knowledge to that effect that by such assault she would have died. 12. After going through the ratio propounded by the above said authority, after construing the factual position as in the present case and after considering the argument of the learned Advocate for the appellant, it must be said that there were definitely presence of ingredients of the offence punishable under section 307 of the I.P.C. when there were almost 17 incised wounds inflicted on the injured woman. If P.W.1 would have died of such injuries, it would have been a case of murder and in that event there would ( 13 ) be a colourable effect to the incident that such murder was committed for the purpose of robbery of ornaments. Again on this aspect, it is argued on behalf of the appellant that out of such 17 incised wounds, only injury no.1 which is on the right hypochondrium, oblong in shape, transverse in direction measuring 3 cms x 2 cms, peritoneal deep as large bowel protruding out through wound, is the only injury which could be termed as grievous injury and as such further argued that the matter could be taken for lesser sentence i.e. only for causing injury and not for offence punishable under Section 307 of the I.P.C. This argument also cannot be accepted for the simple reason that in the present case, only injury no.1 inflicted not in a spur of moment or on the passion but here it is a case in which there are other 16 injuries inflicted on the injured which were incised wounds. At the cost of repetition, it must be mentioned that many of the injuries were on the palms and fore arms of the injured woman can be attributed as the defence wounds. Thus, coming to the picture that definitely the assailant was ( 14 ) determined to do away with the woman and that it was not a case of single blow in a fight and then running away. This Court finds no reason to interfere with the conviction under Section 307 of the I.P.C. 13. All the same, this Court is not in agreement with the arguments advanced on behalf of the appellant, so also there is nothing to alter the sentence maintaining the conviction so as to give lesser punishment to the appellant. 14. Consequently, the present Criminal Appeal No.54 of 2005 must fail and same is accordingly dismissed. The impugned judgment and order dated 18.12.2004 in Sessions Case No. 45 of 1994 shall sustain. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)