skt/- 1 Jud.205.cri.appeal.1542.04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1542 OF 2004 Anil Namdeo Rajguru ... Appellant R/o at Mulund Colony, (Ori.Accused Hanuman Pada, Near Tower, No.1) Mulund (W), Mumbai 400 082. Vs. The State of Maharashtra At the instance of the Sr.Inspector of Police, Mulund Police Station, ... Respondent Mumbai. ...... None present for the appellant. Ms.A.T.Javeri, APP for the respondent-State. ...... CORAM : J.H. BHATIA, J. DATE : 14th JULY, 2010. ORAL JUDGMENT : 1 The present appeal is filed by the original accused no.1 who was convicted for the offence punishable under Sections 307, 506(2) r/w. Section 34 of Indian Penal Code and was sentenced to undergo R.I. for four years and to pay fine of Rs.500/- for the first charge and RI for two months with fine of Rs. 100/- for the second charge. The appellant was also skt/- 2 Jud.205.cri.appeal.1542.04.sxw convicted for the offence punishable under Section 135 of the Bombay Police Act and was sentenced RI for four months and fine of Rs.100/-. Similar order of conviction and sentence was passed against accused No.2 by the Additional Sessions Judge, Greater Mumbai in Sessions Case No.732 of 1998. It appears that accused no.2 has not preferred any appeal. 2 The prosecution case in brief is that injured PW1 Ashok and PW2 Manoj and some others and accused no.1 Anil and accused no.2 Pravin as well as the eye witnesses of this case were residing in the nearby localities. Prior to the incident of the present case also some quarrel had taken place and relations between accused persons and PW1 Ashok and PW2 Manoj were strained. On 1.4.1998, P.W.1 Ashok, PW2 Manoj and PW4 Kishor and some others were standing on the bridge in front of Sai Temple on New Rahulnagar Road for preparation of Ramnavmi festival. At that time, accused nos. 1 Anil & and accused no.2-Pravin accompanied by two other persons came there. They were armed with swords. Accused no.1 Anil gave a blow skt/- 3 Jud.205.cri.appeal.1542.04.sxw with a sword on left hand near wrist of PW1 Ashok, due to which his palm was cut and was dangling with skin of his hand. Accused no.1 also gave a blow on his right upper arm causing bone deep injury. At the same time, accused no.2 Pravin gave a blow with a sword on the right leg of PW2 Manoj and caused injuries on his the right and left legs. Both the injured fell down. PW1 Ashok and PW2 Manoj were taken to Agarwal Hospital and then to the General Hospital, Mulund. Both were admitted in the Hospital and were examined and operated. For better treatment, they were shifted from General Hospital, Mulund to Sion Hospital, where they were treated by Dr.Anil Suple and Dr.Mihir Thakkar. By performing some operations the left palm of PW1 Ashok was rejoined with his wrist. PW1 Ashok was discharged from Hospital on 13.5.1998. PW2 Manoj was also examined and after treatment, he was discharged on 8.4.1998. PSI Dnyaneshwar Jadhav, PW7 recorded the report of PW1 Ashok and also prepared Spot Panchnama and collected two pairs of chappals, sample of blood stained cloths from the spot. He recorded statements of the witnesses and arrested both the skt/- 4 Jud.205.cri.appeal.1542.04.sxw accused on 6.4.1998. On the basis of the information given by accused no.1 Anil, the blood stained sword recovered. Cloths of both the injured persons were seized. The muddemal property was referred for chemical analysis for report. After the investigation, chargesheet was filed in the Court of Metropolitan Magistrate and the case was committed to the Court of Sessions. 3 The learned Additional Sessions Judge, framed charge under Section 307, 506(2) r/w. Section 34 of Indian Penal Code and under Section 37(1) r/w.Section 135 of the Bombay Police Act against both the accused. The accused pleaded not guilty. According to them, both were not present at the spot of incident and they were working elsewhere. 4 On behalf of the prosecution, in all seven witnesses are examined. Some documents were placed on record. The accused persons also examined themselves in defence to prove that they were not present at the scene of offence at the time of incident. After skt/- 5 Jud.205.cri.appeal.1542.04.sxw hearing the parties, the learned Trial Court convicted both the accused persons for the said charges and awarded sentences as stated above. 5 Heard the learned APP. Perused the record and proceedings of the Trial Court. Ms. Hema Sharma who had preferred this appeal, on behalf of accused no.1 did not turn up at the time of the final hearing of the matter. Earlier also, when the matter was called, she did not turn up. Therefore, I have read the prosecution evidence with the help of learned APP. The evidence of PW1 Ashok and PW2 Manoj reveals that there was some previous dispute between these witnesses on one hand and the accused persons on the other. As per their evidence, on 1.4.1998, they were celebrating Ramnavami Festival. At that time they were present on the bridge in front of Sai Temple, new Rahulnagar. At that time, accused no.1 Anil, accused no.2 Pravin and two others came there with swords. Accused no.1 Anil gave blow of sword on left hand of PW1 Ashok due to which his left hand was completely cut and was simply dangling by skin. He gave another blow of sword on the skt/- 6 Jud.205.cri.appeal.1542.04.sxw right upper arm causing the bleeding injury. At the same time, accused no.2 Pravin gave a blow with sword on the right leg of PW2 Manoj causing injuries on his right leg and right forearm. They also deposed that PW2 Manoj had also suffered injury on left ear. The injured persons shouted, therefore both the accused and their companions ran away from the spot. PW4 Kishor, who was also present at the time of incident, has supported the evidence of PW1 Ashok and PW2 Manoj. 6 The injured persons were taken to Agarwal Hospital and then to the Sion Hospital for further treatment, where they were examined and treated. PW1 Ashok was operated upon and his dangling palm was attached to hand. The medical evidence shows that he was discharged from the hospital on 13.5.1998. Evidence of PW5 Dr.Sheetalkumar Gupta reveals that as per the medical papers of PW1 Ashok and PW2 Manoj, they were brought to the hospital on 1.4.1998 and they were examined and operated upon by Dr.Anjali Saple and Dr.Mihir Thakkar. However, none of these two Doctors, who had actually examined and operated PW1 Ashok and PW2 Manoj, were skt/- 7 Jud.205.cri.appeal.1542.04.sxw examined before the Court as witnesses. No explanation has been given as to why those two doctors, who had actually attended the injured persons were not examined. Dr.Sheetalkumar Gupta admitted that during the relevant period, he was a student of Raipur Medical College, Chattisgad and he had joined Sion Hospital in February 2002. From his evidence, it is clear that he was not even acquainted with the handwriting of Dr.Mihir Thakkar and Dr.Anjali Saple. Thus, his evidence does not go beyond production of the case papers of PW1 Ashok and PW2 Manoj. Only on the basis of those medical papers, he deposed that left wrist of PW1 Ashok was amputed and his hand was dangling by skin. There was also lacerated wound on his right elbow. The operation for revascularisation and reconstruction of the left hand was performed to join the hand to the left wrist. First operation was performed on 2nd April 1998 and second operation was performed on 3rd April 1998 and finally on 13.5.1998, PW1 Ashok was discharged. skt/- 8 Jud.205.cri.appeal.1542.04.sxw 7 As per the evidence of Dr.Sheetalkumar Gupta, based on the medical papers, PW2 Manoj, was having a fracture of right compound patella for which he was operated. He was discharged on 8.4.1998. The case papers of PW1 Ashok and PW2 Manoj were marked as Exh.18 & 19 respectively. There is no medical evidence in respect of any other injury suffered by PW2 Manoj. 8 It is proved by PW7 Dyaneshwar Jadhav, Investigating Officer that he had seized the clothes of the injured and of the accused persons and had also recovered the blood stained sword from the drainage, which is open place, on the basis of information given by accused no.1 Anil. PW3 Ashok Manik Balshankar, who was a Panch witness, supported the prosecution only to the extent of seizure of the weapons and production of the same by the accused no.1 Anil. But his evidence did not support the prosecution about the information given by accused 1Anil leading to the spot from which the sword was seized. Exh.12A is a Memorandum Panchanama written by the PSI PW7 Dyaneshwar Jadhav, Exh.12 is a seizure panchnama of the sword. The skt/- 9 Jud.205.cri.appeal.1542.04.sxw learned Trial Court held that the evidence of PSI Dyaneshswar Jadhav is not reliable as far as information given by accused no.1 about the weapon is concerned. However, he believed that the weapon was recovered from the drain, which is a open place. 9 Even though the doctors who had examined and operated upon the injured PW1 Ashok and PW2 Manoj, evidence of these witnesses appears to be true and reliable. Taking into consideration the evidence on record, it appears that PW1 Ashok suffered grievous hurt as his left hand was amputed and was required to rejoined. For that purpose, he was required to live in the hospital as Indoor Patient, for about 43 days from 1.4.1998 to 13.5.1998. Similarly, it is proved that PW2 Manoj had suffered fracture on his right leg. Therefore, both of them had suffered the grievous hurts. The evidence on record shows that injuries were caused by giving blows with sword. Unfortunately, the Medical Officer, who had at the first instance examined and seen the injures, was not examined and no details of those injuries have come on record. In view of the skt/- 10 Jud.205.cri.appeal.1542.04.sxw material on record, it can be held that accused no.1 Anil and accused no.2 Pravin had caused the grievous hurts with sharp and cutting weapons like sword to PW1 Ashok and PW2 Manoj. As they had come together with weapons, it can be held that they shared the common intention also. 10 In view of the manner, in which they gave the blows with sword on the left wrist and the right upper arm of PW1 Ashok and a blow of the sword on the knee of PW2 Manoj, it appears that the intention of the accused persons was to cause grievous hurts and they had actually caused the grievous hurt with the sharp and cutting weapon like sword and therefore, they would be liable to be convicted for the offence punishable under Section 326 of the Indian Penal Code. The learned Trial Court, however, convicted both the accused for the offence punishable under Section 307 of the Indian Penal Code. In para 30 of the Judgment, the learned Additional Sessions Judge observed that “accused no.1 has given blow of sword on the left hand near wrist resulting in amputation of left palm and it was skt/- 11 Jud.205.cri.appeal.1542.04.sxw dangling to a wrist skin. It would show that the blow given by accused no.1 was with force.” He also observed that “PW 1 Ashok Purve saved himself otherwise the blow would have struck on his neck. The act of the accused no.1 Anil at the time of occurrence clearly shows his intention that the blow was given by him with the intention of causing death of PW1 Ashok.” After careful perusal of the FIR as well as the oral testimony of PW1 Ashok, PW2 Manoj and PW4 Kishor, it appears that these witnesses had nowhere stated that accused no.1 Anil had given a blow on the neck of PW1 Ashok but Ashok had saved himself by raising his arm due to which he had suffered the injury on the left wrist. The observations made by the learned Trial Court are not supported by any evidence. The learned APP tried to contend that as both the accused had come prepared with sword and they had given the blows with the sword with certain intention, it should be also held that their intention was to cause death. I am unable to accept this proposition. By giving blow with a sharp and cutting weapon like sword, one may cause simple hurt, punishable under Section 324 I.P.C. or skt/- 12 Jud.205.cri.appeal.1542.04.sxw grievous hurt punishable under Section 326 I.P.C. and may also attempt to commit murder. Whether the accused is liable to be held guilty punishable under Section 307 of the Indian Penal Code, depends on the intention with which he had assaulted and caused the injury. The intention of the accused persons can be gathered from the manner they gave the blows. It appears that accused no.1 gave the blow on the left hand and right upper arm of PW1 Ashok and while accused no.2 gave a blow with sword on the knee of PW2 Manoj. It shows that they avoided the vital parts of the body particularly the neck, chest, stomach etc. and therefore, it can be gathered that their intention was to cause grievous hurt and not to cause death. 11 It is also material to note that there is not a word in the evidence that accused persons had given any threats. It is not clear that on what basis, the Trial Court convicted the accused persons under Section 506(2) of the Indian Penal Code. However, there is sufficient evidence on record to show that there was a notification published in the Government gazette skt/- 13 Jud.205.cri.appeal.1542.04.sxw whereby there was a prohibition for carrying out weapons from 29.3.1998 and 28.4.1998. This incident occurred on 1.4.1998 and the accused were carrying weapons like swords and they also used it and therefore offence punishable under Section 37 r/w.Section 135 of the Bombay Police Act has been committed. 12 Coming to the point of sentence, I find that even if that the accused are liable to be convicted for the offence punishable under Section 326 and not under Section 307 of the Indian Penal Code, rigorous imprisonment of four years with some fine would be justified. 13 The learned APP, on instructions, makes a statement that the present appellant has already undergone the sentence and had been also released. 14 For the aforesaid reasons, the appeal is partly allowed. The impugned order of conviction and sentence for the offence punishable under Section 307 and 506(2) of the Indian Penal Code is hereby set aside. However, skt/- 14 Jud.205.cri.appeal.1542.04.sxw the appellant-accused no.1 is convicted for the offence punishable under Section 326 r/w.Section 34 of the Indian Penal Code and is sentenced to undergo RI for four years and to pay fine amount of Rs.500/- and in default to pay the fine, to undergo further RI for two months. The conviction and sentence for the offence punishable under Section 135 of the Bombay Police Act is maintained. 15 The appeal stand disposed of accordingly. [ J.H. BHATIA, J.]