-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 892 OF 2007 IN SESSIONS CASE NO. 256 OF 2005 Baburao Dinkar Sanas : .. Appellant. Age 39 yrs. : (Org.Accused) Convict Prisoner No.C-4070 : at Kolhapur Central Jail, Kalamba : Residence at Panchganga, 12th : Bungalow, Servant Quarters, Kopri,: Thane (E). : V/s. The State of Maharashtra : .. Respondents. (at the instance of Kopri Police : Station) ---- Through Jail. Mr. Murtaza Najmi, Advocate, appointed for the Appellant. Mr. A.S. Shitole, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 04th FEBRUARY,2009 DATED : 04th FEBRUARY,2009 DATED : 04th FEBRUARY,2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant accused was prosecuted for the offence punishable under sections 307, 326, 452 and 506 of the Indian Penal Code and under section 37 (1) r/w. 135 of the Bombay Police Act. By the impugned judgement and order, he is convicted only for the offence punishable under section 307 of the Indian Penal Code and sentenced to suffer R.I. for 10 years and to pay fine of Rs. -: 2 :- 5000/-, in default to undergo R.I. for one month. 2. The prosecution case in short is as under : i. On 19.02.2005 injured Geeta Ramesh Pande had come to her parents’ house at Thane from Nasik to celebrate birth day of her daughter. On 22.02.2005, at about 2.30 pm to 3 pm she was sleeping in the Padvi of the house of her parents. At that time, the accused, who was residing nearby, entered in the house of Geeta’s parents with sickle in his hand. The accused assaulted Geeta by means of sickle on her face and caused fracture as well as grievous injury and thereby disfigured face of Geeta. The accused attempted to commit murder of Geeta by uttering words "Tumhala Sarvana Barbad Karin". The Complainant Seema, who is the sister of injured Geeta asked accused as to why he has assaulted Geeta, however, the accused ran away in his auto-rickshaw. Geeta had sustained injury to her left side cheek and left hand. There was severe bleeding from the injuries. She was taken to Civil Hospital in auto-rickshaw of one Tukaram Malusare. The accused committed the said offence due to his previous quarrel with Geeta at Nasik. The complainant Seema lodged report against accused with Kopri Police -: 3 :- Station, Thane. After recording the statements of witnesses and completion of the investigation, the charge-sheet was filed in the Magistrate’s Court. Since the offence punishable under section 307 was exclusively triable in the court of Sessions, the case was committed to the Court of Sessions. Thereafter, the learned IIIrd Adhoc Additional Sessions Court, Thane framed the charge against the accused under sections 307, 326, 452 and 506 of IPC and under section 37 (1) r/w. 135 of the Bombay Police Act, to which the accused pleaded not guilty and claimed to be tried. Defence of the accused was of total denial. ii. The prosecution in order to prove guilt of the accused examined seven witnesses. PW-1 - is a doctor by whom victim Geeta was examined firstly. PW-2 Seema is the sister of victim Geeta, who has witnessed the incident and informed the same to the Police. PW-3 is victim Geeta and PW-4 and PW-5 are panch witnesses to the seizure panchanama of clothes of the accused and arrest panchanama respectively. PW-6 is the doctor -Satish B.Bhat from J.J. Hospital, Mumbai under whose supervision victim Geeta received treatment and PW-7 is the Investigating Officer, P.S.O.- Bapu D.Devre. -: 4 :- 3. The learned IIIrd Adhoc Additional Sessions Judge, Thane, held that the prosecution proved that the accused, attempted to commit murder of Geeta; voluntarily caused grievous hurt to Geeta and committed house trespass with preparation to cause grievous hurt to Geeta and caused criminal intimidation. The learned IIIrd Adhoc Addl. Sessions Judge, Thane, however convicted the accused for the offence punishable only under section 307 of the Indian Penal Code and sentenced him as stated above. 4. In order to prove incident, the prosecution adduced evidence of PW-3- victim Geeta and PW-2 Seema, the sister of victim Geeta. PW-3 deposed that she resides with his husband and children at Nashik and her parents are staying at Kopri Colony, Thane. She knew the accused who is residing near her parents houe. She testified that three years prior to the incident, her husband had gone to Thane to the house of her parents The accused after seeing that the husband of PW-3 had come to Thane, had come down to the resident of PW-3 at Nashik and caught hands of the PW-3 and misbehaved with her. PW-3 therefore, lodged a report with the Ambar Police Station at Nasik. PW-3 further deposed that on 19.02.2005 she had come to her parents’ house at Thane to celebrate the birth day of her -: 5 :- daughter. On 22.02.2006 at about 3.00 p.m. while she was sleeping in the Padavi in the house of her parents, the accused came in the Padvi by having sickle in his hand and assaulted on her face and therefore, she got up from the sleep. The accused assaulted on her face, second time by the sickle and due to said assault, PW-3 had sustained fracture on her nose, near left eye and her two teeth fallen down due to the said assault. At that time PW-3’s father, sister and her daughters were in the house. The accused ran away after assaulting PW-3. PW-2 Seema followed the accused, however, the accused threatened her saying he would assault her also if she come forward. PW-3 was taken to the Kopri Police Station in an autorickshaw; from where she was taken to the Civil Hospital, Thane. The doctor at Civil Hospital Thane treated her and put stitches on the injury to stop the bleeding from her injuries. Thereafter, she was shifted to J.J.Hospital, where she was admitted for two months. She tried to stop the bleeding by means of Baniyan. The Baniyan was also stained with her blood and it was seized by the police. The weapon sickle, which was used in the assault and seized, was marked as article-A. She identified the accused before court, as a person who assaulted her with weapon/ Article-A sickle. She lastly stated that there are two scars on her face due to which her face became disfigured. PW-3 was cross-examined by -: 6 :- the defence but nothing material could be brought so as to discard her evidence led in the examination-in-chief. I find that the evidence of PW-3 is cogent, consistent, reliable and inspires confidence. 5. The evidence of PW-3 is supported by PW-2 Seema. Seema deposed that she resides in the out-house alongwith her parents at Kopri Colony, Bara Bungalow, Thane. She deposed that all her three sisters including Geeta are married and Geeta’s marriage was solemnized about 8 to 9 years prior to the incident and that Geeta resides at Nashik alongwith her husband. Sofar as the incident in question is concerned, PW-2 deposed that on 19.02.2005 PW-3 Geeta had come to her parents house alongwith her daughters. She knew the accused who resides in the same area/ court yard. PW-2 deposed that on 22.02.2005 she left at about 9 a.m. for her work and returned at her home at about 1 p.m.. At about 3.00 p.m. she alongwith her father and daughters of her sister Geeta were in the inner room of the house and Geeta was sleeping on a cot in Padvi (outer room) of the said house. At that time, the accused came there with the sickle in his hand. He was seen in anger. The accused loudly stated "Me Ata Tumbhala Sodnar Nahi". Thereafter, the accused inflicted sickle blows on the left cheek of her sister Geeta by force. One blow of sickle was given on the left hand of Geeeta and -: 7 :- thereafter, the accused ran away. The accused was chased by her. She asked him as to why he assaulted Geeta. The accused stated that he will ruin all of them. The accused thereafter, threw the sickle in an autorickshaw in front of his house and ran away. Thereafter, she called her mother. The blood was oozing from the injuries of her sister Geeta. They firstly took victim Geeta to Kopri Police Station and thereafter, she was taken to Civil Hospital Thane for medical treatment. PW-2 had lodged a complaint to the police. PW-2 identified the sickle, the muddemal Article -A. PW-2 was cross examined by the defence. However, her evidence in the chief is not at all shattered. The evidence of PW-3 is corroborated by the evidence of PW-2. The presence of the PW-2 at the spot of incident is most natural. Her evidence is consistent with the evidence of PW-3 and therefore, I find the same to be reliable. 6. The evidence of PW-2 and PW-3 is further corroborated by the medical evidence of PW-1 and PW-6. PW-1 Dr. Bhavana N. Telang in her evidence testified that she was attached to the Civil Hospital, Thane as Medical Officer on 22.02.2005. On that day, Kopri Police had brought victim Geeta Ramesh Pande for medical examination. PW-1 doctor examined victim Geeta and noted following injuries on her person. -: 8 :- i. Incised wound on the left side of the nose measuring 3 x 2x 1/2 cm. . ii. Incised wound on the lateral to injury no. 1 measuring 1 x 1/2 x 1/2 cm oblique in shape. iii. Incised wound on the left side near the lateral canthus measuring 10 x 2 x bone deep suspecting fracture on maxillary bone laterally floor on the left eye ball. iv. Incised wound on the left side of maxillary bone measuring 6 x 1 x 1cm. suspecting the fracture of the said bone. 7. PW-1 further stated that the above injuries were caused within six hours, grievous in nature and might have been caused by sharp object. She produced medical evidence at Exh.13. She stated that the patient Geeta was in her hospital for 2 to 3 hours and as the fractures were suspected, the patient was referred to the J.J. Hospital. She also stated that at the time of medical examination she had taken X rays of the patient and X ray report found -: 9 :- that there was fracture in maxillary bone and zigomatic bone. She deposed that there was sever bleeding from the injury of the victim Geeta from her mouth and injured site, so also from her ear. She deposed that because of those injuries there was disfiguration of the face of the patient. She stated that if the injuries would not have attended in time, it could have been fatal. Lastly she deposed that those injuries are possible by the sickle, muddemal article no.1. 8. PW-6- Dr. Satish Bhat deposed that he examined victim Geeta Pande and found following injuries on her person: i. C.L.W. in the left infraorbital region 5 c.m. x 1/2 cm. ii. C.L.W. 1 c.m. x 1/2 c.m. of the left malar prominence. iii. Fracture on zygoma bone as well as maxilla bone and nasal bone. iv. C.L.W. over the left wrist. v. Abrasion on left chin. -: 10 :- vi. She had bleeding from the left nostril. vii. There was injury to left frontal nerve. viii. Diffuse swelling over left mid face. 9. PW-6 deposed that patient -Geeta was admitted in emergency ward and thereafter she was shifted to ward No.35 for plastic surgery. He stated that on 4th of March, 2005 Geeta under went surgery to fix the shattered bone on the face.. After healing the wounds, Geeta was discharged on 13.03.2005. He further stated that Geeta came to the J.J.Hospital second time for follow up procedure and at that time it was noticed that patient -Geeta was unable to close left eyelid completely due to the nerve injury. In view of this, she was again admitted on 18.03.2005 in the hospital; however, no surgery was required for second time, as the eyelid would become alright without surgery and she was discharged on 19.04.2005. He deposed as PW-3 was pregnant at the time of treatment, she was referred to Gynaecologist and C.T.Scan and neurology and department of Anasthetia and department of ophthalmology. -: 11 :- 10. PW-6 further specifically stated that Geeta was admitted for total period of 15 days on first occasion and 32 days on the second occasion. He opined that the said injuries would have been caused by sharp heavy object and that those injuries are possible by the sickle, Article -A. The medical evidence given by PW-1 and PW-6, if scrutinized, it is undoubtedly corroborative of the version of PW-2 and PW-3. 11. The PW-4 and PW-5 are the panchas to the seizure panchanama and arrest panchanama. However, they have not supported the prosecution case. 12. PW-7 is the Investigating officer. He deposed that at the relevant time, he was attached to the Kopri Police Station and on 22.02.2005 the complainant Seema and her mother brought the injured Geeta in an autorickshaw to Kopri Police station. The injured was sent to the civil hospital alongwith a letter to Civil Hospital for medical treatment. Since Geeta was unconscious, her statement could not be recorded on that day. However, PW-7 came to know from Seema about the incident and accordingly the report was lodged by Seema. He further deposed that on the basis of the report of Seema, he registered an offence against the accused and the spot panchanama in the presence of two panchas was prepared by him, which is at -: 12 :- Exh.43. He also seized clothes of injured Geeta under the panchanama at Exh.30. He further deposed that the accused was arrested near Anandnagar Checknaka in front of Ekvira Dhaba, where he had come in his auto rickshaw. He deposed that after the arrest, the accused disclosed his name and also gave his residential address. At that time, the accused had produced sickle before him, which was seized by him under the panchanama. Under the panchanama, the shirt of the accused was also seized which was stained with blood. He proved the seizure panchanama at Exh. 52. He also identified the sickle Article-A. I.O. further deposed that he thereafter, sent clothes and weapon of assault to Chemical Analyser, Mumbai alongwith the letter dated 29.3.2005. He thereafter, recorded the statements of injured Geeta and after receipt of the C.A. report at Exhs.53 and 54, filed charge-sheet. 13. The Chemical Analyser’s report at Exhs. 53 and 54 also corroborated the evidence of PW-2 and PW-3. C.A. report at Exh.53 is in respect of blood group of Geeta which was found to be a "A" group. Blood stained pillow, gown, baniyan, full shirt of the accused and sickle used in the commission of the offence were stained with bloods, were also sent to the C.A. to verify the blood group of the blood on stained clothes. The C.A. report at Exh. 54 shows that the pillow, gown, baniyan and full shirt -: 13 :- were found blood stained of having blood group -A. Thus C.A. report at Exh. 54 supports the prosecution case. 14. Thus the prosecution on the basis of the evidence of eye witnesses PW-2 and PW-3, which is corroborated by the medical evidence of PW-1 and PW-6 and further corroborated by evidence of PW-7 and the report of C.A. at Exh. 54 has proved beyond reasonable doubt that on 22.02.2005 the accused assaulted PW-3 Geeta on her face by means of sickle. 15. Now the question which requires consideration is that which offence the accused has committed. Mr. Najmi, the learned counsel, in this regard submitted that if the totality of the circumstances, brought on record, are considered then the offence under section 307 is not made out by the prosecution. Mr. Najmi for the appellant further submitted that even offence under section 326 is not made out by the prosecution. On the basis of the evidence led and the material on record, he submitted that at the most it can be said that the prosecution has established offence under section 324. 16. PW-3 stated that three years prior to the incident when her husband had gone to Thane, the accused had come to Nashik at her residence and misbehaved with -: 14 :- her. PW-3 accordingly, lodged a complaint with the Amber Police Station. PW-7 Investigation officer in para 3 of his cross examination stated the reason behind the incident was the accused loving Geeta unilaterally which she did not like. The accused assaulted Geeta on her face. The fact that the accused assaulted Geeta on her face shows that the intention of the accused was not to commit murder, but he wanted to disfigure her face. The accused also had not taken undue advantage. The accused inflicted two blows on her and thereafter ran away. The medical evidence of PW-1 and PW-6 disclose that both the blows were not given with force. They further testified that had the accused used force, the bone of victim’s face would have smashed. The medical officer attached to the J.J. Hospital again described injuries on the face of the victim Geeta as contused lacerated wounds (CLW). Nature of those injuries reveals that the accused must have used blunt part of sickle to assault on the face of the victim Geeta. In order to attract the applicability of section 307 to the facts of this case, it is necessary to find out that had the victim met with death then the offence be the one under section 302 of IPC. For the purpose of the offence under section 307 what is material is the intention or knowledge and not consequence of actual act done for purpose of carrying out that intention. In the facts and circumstances as evidenced above, it cannot be -: 15 :- said that accused had intention to commit murder or had knowledge that his act would result in death of PW-3 Geeta. Thus the provisions of section 307 are not attracted in the present case. 17. PW-6 deposed that the victim Geeta was admitted in the hospital initially for a period of 15 days and on the second occasion for a period of 32 days. Geeta could not perform her oridinary pursuits due her hospitalization. In addition to this it is also established that the assault by the accused on the face of the victim Geeta has resulted in disfiguration of the face of the victim. In view of the medical evidence, I am of the considered view that the prosecution successfully proved beyond any reasonable doubt that the accused has committed offence under section 326 . 18. In the result, the appellant’s conviction under section 307, in the interest of justice, deserves to be altered under section 326 of the IPC. 19. So far as the sentence is concerned, in my view, having regard to the totality of circumstances coupled with the injury suffered by PW-3 Geeta, the ends of justice will meet if the appellant accused is sentenced to suffer imprisonment for five years and pay fine of Rs. -: 16 :- 10,000/-; in default to suffer R.I. for one month. 20. The impugned judgement and order of the lower court is modified in the above terms. The appeal is partly allowed accordingly. (R.V.MORE,J.) .....