1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.817 OF 2003 Nitin Laxman Taloskar, Age 22 years, Occupation student, residing at Taloskar House, Near Maruti Mandir, Bhandupgaon, Bhandup (East), Mumbai  82, at present in Kolhapur Central Prison, Kalamba ..Appellant(Orig.Accused.) Versus 1. The State of Maharashtra. 2. Miss. Darshana Madhukar Patil, residing at Police Patil, House Bhandup village Bhandup (East) Mumbai  82. ..Respondents. Shri R. D. Suryawanshi, Advocate for the Appellant. Mrs M. H. Mhatre, A.P.P., for the State. CORAM: A.R.JOSHI,J. DATE : 25TH JUNE,2009. 2 ORAL JUDGMENT 1. Present appeal is preferred by the appellant  accused challenging the order of his conviction passed in Sessions Case No. 345 of 2002. The said judgment and order was passed by the Additional Sessions Judge, Greater Bombay (the Trial Court for short) on 28 th April, 2003. By the final order the appellant was convicted for the offence punishable under section 307 of the I.P.C and sentenced to suffer R.I. for period of ten years and to pay a fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment (R.I.) for six months. 2. By the same order, the appellant was acquitted for the offence punishable under section 37 (1) (a) r.w.s. 135 of the Bombay Police Act, 1959 and 25 (1-B)(b) of the Indian Arms Act,1959. During the pendency of the trial before the Sessions Court, the appellant - accused was on bail. However, after conviction on 28th April 2003, he was taken in the custody and since then he is in jail. 3. Prior to appreciating the rival arguments, the case of the prosecution, as unfolded before the Trial Court, can be summarized in order to have proper perspective of the 3 matter. The victim girl P.W. No.2 and the appellant-accused were knowing each other as they were resident of Bhandup. P.W.2 Darshana was the student of 10th standard during the relevant time of the incident of November, 2001. On 29th November, 2001 she was proceeding to her school along with her mother. That time the appellant - accused was talking with some-one by name Santosh Thombare at the paper stall of said Thombare. By pointing towards the accused, Darshana narrated to her mother regarding the eve teasing practiced on her by the appellant- accused, as to he hitting on her head with the hands while on her way to go to school. On this P.W.No. 4, mother of P.W.1, accosted the accused and censured him to refrain from doing such activities. Thereafter, P.W.No.2 when coming back from her school in the afternoon at about 2:30 p.m., or so, when accompanied by her classmate one Pratik Joshi P.W.No.3, she was accosted by the appellant - accused on the Bhandup Railway fly over bridge. On seeing P.W.2 Darshana accused took out some weapon like knife/chopper and assaulted on her neck, head, elbow and left fore-arm causing severely bleeding injuries. There were three incised wounds and other C.L.Ws. The major injury being incised wound on the left side of neck extending anteriorly upto mid line and posteriorly till back of the 4 neck, measuring 20 cms x 10 cms muscle deep. Another incised wound over left anterior parietal region 6 cms x 2 cms bone deep with fractured segment. Third incised wound was inflicted over left posterior parietal region 6 cms x 2 cms bone deep with fractured segment. Apart from these three incised wounds, there was also an incised wound over right 3rd forearm 2 cms x 0.5 cm. Due to such sadly attack Darshana fell on the ground in a pool of blood. Her classmate, P.W.3 Pratik Joshi, frightened on seeing this assault and ran away. Incidentally, by that time, one Tushar Patil,cousin of P.W.No.2 was proceeding from the said railway fly over bridge and noticed the mob gathered at some place and also that time he was told by one Mahesh Thombare P.W.No.6 regarding assault on his cousin sister P.W.2. As such P.W.1 Tushar Patil went near the spot and ascertained that his relative P.W.2 was assaulted. By that time police persons also arrived and injured girl was taken to Mulund Hospital for immediate medical treatment. On the way to the hospital, P.W.No.2 victim girl informed Tushar P.W.1 regarding assault at the hands of the present appellant-accused. Also according to the case of the police, P.S.I. Palande P.W. No. 8, then on station house duty, received a message from Mulund General Hospital about admission of a injured girl and accordingly he reached there along with staff and learnt 5 that the injured girl was shifted to Sion Hospital for emergent medical treatment. At Sion Hospital injured P.W.No. 2 was admitted in Intensive Care Unit (ICU) as her condition was very serious due loss of blood. About five bottles of blood was transfused during her treatment. Tushar Patil P.W. 1 lodged his complaint with Mulund Police Station giving the name of the accused. The said complaint was treated as F.I.R. Exh.6. It was almost immediately filed after the incident and naming the present appellant - accused as the assailant. 4. During the investigation clothes of the victim girl were taken under panchnama. On the next day, after ascertaining condition of the girl, her statement was recorded. The appellant accused came to be arrested on 6.12.2001 under panchnama. During the investigation, on 19.12.2001 the appellant - accused indicated to give voluntary statement and accordingly under the panchnama the clothes having blood stains and also one big knife were seized at the instance of the appellant. Memorandum and discovery panchnamas are at Exhs.21 and 21-A. The seized articles were sent for Chemical Analyser s reports and after obtaining reports charge sheet was submitted before 27th Court Mulund and case was committed to the Court of Sessions. 6 5. During the trial, total 11 witnesses were examined. Such as P.W.1 Tushar Manohar Patil (complainant) P.W.No.2 victim girl, Ms Darshana Madhukar Patil, P.W.3 Pratik Joshi, classmate of the injured victim and eye - witness to the incident of assault, P.W. No. 4 Manisha Patil, mother of the victim girl, P.W.No.5 Dr S. Balsubramaniam (RMO) Sion Hospital, P.W.No.6 Mahesh Thombare, another eye witness, who happened to be present on the spot during the incident of assault and who reported the incident to P.W.1 Tushar Patil, P.W.No.7 is panch regarding recovery of the clothes and the weapon at the instance of the appellant - accused. P.W.No.8 is P.S.I. Telang, an Investigating Officer. P.W.No.9 is another Dr Vivek Shetty from Hinduja Hospital where the victim girl was transferred on 1.12.2001 and was an indoor patient till 5.12.2001. Whereon 3.12.2001 operation was performed on her left fore- arm repairing the two tendons so as to get back the usual movements of her fingers and thumb. P.W.10 is the Head Constable Vijay Wange and P.W.No.11 is another I.O., Prasanna More, who concluded the investigation. 6. It is an admitted position and which is significant so far as seriousness of the injuries on the victim is concerned, that initially the victim girl was admitted to Mulund Hospital, however she was taken to Sion 7 Hospital and was an indoor patient from 29.11.2001 till 1.12.2001 and thereafter from Sion Hospital she was taken to Hinduja Hospital and was indoor patient till 5.12.2001. It must be mentioned that the spot panchnama (Exh.22), arrest panchnama of the appellant - accused (Exh.24) and panchnama regarding clothes of the victim girl (Exh.23) are the admitted documents. Out of the above mentioned witnesses, the important prosecution witnesses are in fact P.W.No.2 victim girl herself and P.W.No.6 Mahesh Thombre who is also an eye - witness. Evidence of P.W.No. 1 is also of much significance so far as he has found out that some mob had gathered on the railway fly over - bridge on the relevant afternoon and subsequently found that his own relative P.W.No. 2 had sustained injuries. So far as the injuries and gravity of the same is concerned, substantive evidence of P.W.No.5 Dr S. Balsubramaniam from Sion Hospital and also the evidence of P.W. No. 9, Dr Vivek Gundu from Hinduja Hospital is significant and this is coupled with the documentary evidence of medical case papers produced during the trial. At the cost of repetition, it must be mentioned that the injuries sustained by the victim girl were of very serious nature but for the timely medical treatment, those injuries would have proved fatal. 7. During the arguments learned Advocate Shri 8 Suryawanshi appearing for the appellant, placed much emphasis on the alleged non-availability of motive and as to no much seriousness of the injuries sustained by the victim. It is strongly argued that the motive as allegedly spelt out by the witnesses and mainly by P.W.Nos.2 and 4 is of such a flimsy nature that it cannot be accepted so as to consider that only for such type of scolding and censuring of the accused he would commit such a severe attack on the girl. On this aspect it is submitted that according to P.W.Nos.2 and 4 when victim girl was going to school she was accosted by the appellant accused and there was a sort of eve teasing and for which on the day of incident he was censured by P.W.No.4, mother of the victim girl and thereafter the appellant accused went away. By pointing out this circumstance, it is submitted that there was no reason for the accused to commit such assault on Darshana P.W.No.2. It is also tried to argue that the assault on the victim was by some unknown person and that name of the appellant has been falsely implicated as an after thought. In order to substantiate this argument, attention of this Court is drawn towards the contents of the medical papers to the effect that the history given by the patient at the time of the admission is regarding `assault by known person when she was admitted at Sion Hospital, whereas such history 9 differently mentioned `as assault by unknown person . In either case, name of the appellant - accused is not mentioned anywhere. However, it appears only in the F.I.R.,and that also due to concoction, further argued. It is also submitted that there was distant relation between the appellant - accused and P.W.No.2, victim girl. However, this position has been purposely suppressed by the prosecution. On this count, attention of this Court is drawn towards the last answer given by the appellant-accused during recording of his statement under Section 313 of the Cr.P.C.,wherein he has stated that the victim girl is his relative. 8. If the above defence of the appellant - accused even to be tested probable on the principle of preponderance of probability, does not sound to reason and logic; and hence not acceptable while considering the substantive evidence of the victim girl P.W.No.2 corroborated by the substantive evidence of P.W.No.6 and eye - witness and also corroborated by the evidence of P.W.No.3, again the eye witness, a school companion of P.W.no.2. 9. So far as gravity of the injuries is concerned, at the cost of repetition, it must be mentioned that from 29.11.2001 till 1.12.2001 victim girl was indoor patient at Sion Hospital and thereafter from 1.12.2001 to 5.12.2001 10 she was taken to Hinduja Hospital and at Hinduja there was operation performed in order to get the usual mobility of her left hand fingers. It is also to be mentioned that the injury on her neck was of such a grave nature and had reached to such an extent to expose carotid artery if by chance of such artery would have been cut due to such assault, the victim would have died on account of profuse hemorrhage and due to loss of blood. In the present matter, it has also appeared on record that she was given about 6 bottles of blood in order to compensate the loss of blood. Considering such circumstance and considering the reasoning given by the Trial Court, while convicting the appellant accused for the offence punishable under Section 307 of the I.P.C., in the opinion of this Court, there is nothing to interfere with the impugned judgment and order, in any manner. In other words, definitely it is not the case in which, even, there can be an interference on the quantum of the sentence which has already been inflicted though it is tried to argue that in the event of confirming the conviction for the offence punishable under Section 307, leniency may be shown by way of lowering the quantum of sentence from 10 years to that already undergone. While arguing on this aspect, it is submitted that the accused is a young boy of then 23 years and now about 28 years old and 11 is in jail since the date of the conviction and that he is the only son of his family now consisting of only mother as his father died few years earlier. All the same, still considering the above arguments, in the opinion of this Court, there is nothing to reduce the said sentence considering the special circumstances of the matter as to deadly assault perpetrated by the appellant accused on the teenaged girl P.W.no.2 when she was returning home after the school. Another curious circumstance is that such assault took place on the particular day at about 1:30 p.m. in front of the various passers - by and on the railway fly over bridge, Bhandup. However, there was no any attempt by any pedestrian to intervene and to come to rescue of the innocent victim. In the opinion of this Court, such type of act is definitely to be condemned. In other words, it must be said that the way in which such severe attack was committed on the victim girl, the age of the accused shall not come in the way of the court to view the matter leniently and thereby to reduce the substantive sentence from 10 years to already undergone. It appears that such act on the part of the appellant accused committed on the broad day light in presence of the public at large, is indicative of no fear in his mind towards law and expression of no deterrence for violation of the law. 12 10. In view of the discussions made above, this Court finds no merit and substance in any of the submissions made on behalf of the appellant. The appeal fails. Hence, the following order:- ORDER: Criminal Appeal No. 817 of 2003 stands dismissed and disposed of accordingly. (A.R.JOSHI,J) 13 All the same, On any count and hence the present appeal must fail and same is accordingly disposed of with the following order. the arguments advanced on behalf of the appellant cannot be accepted.