1 AJ-114.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPEAL NO.114 OF 1997 Dilip Dattu Jadhav, Aged: 28 years, Occ: Tailor, r/o Rajur (Bahula), Tal. & Dist: Nasik. .... Appellant - Versus - The State of Maharashtra .... Respondent S/Shri Ganesh Gole with Shyam Rushi Pathak for the Appellant. Shri J.P. Kharge, Addl. Public Prosecutor, for the State. CORAM: R.C. CHAVAN, J. DATED: FEBRUARY 21, 2011 ORAL JUDGMENT: 1. This appeal is directed against the appellant s conviction for the offences punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act ) and Section 307 of the Indian 2 AJ-114.97 Penal Code (for short, IPC ) and sentence of RI for three years and six months with fine of Rs.500/- and Rs.200/-, respectively, imposed upon the appellant by the learned Special Judge under the Act at Nasik. 2. The facts, which are material for deciding this appeal, are as under: On 7-4-1996, at about 8:00 p.m., the appellant was allegedly passing by the house of one Ramesh Baburao Talkhe. Uncle of Ramesh by name Bhimrao had come to the house of Ramesh. The appellant allegedly uttered some abuse towards a cow belonging to Ramesh and family. Bhimrao accosted the appellant as to why the cow was abused and thereafter Bhimrao, too, was abused by the appellant. An altercation ensued. Thereafter, Ramesh and others intervened and persuaded Bhimrao to go to his own place. When Bhimrao was proceeding towards his place, the 3 AJ-114.97 next incident of the appellant stabbing Bhimrao with a pair of scissors occurred. Bhimrao was injured and on hearing his cries, Ramesh and others rushed to rescue him. The appellant was seen running away with a pair of scissors in his hand. Bhimrao was taken to the house of Ramesh, his injury was dressed and then he was removed to Civil Hospital, Nasik. On 8-4-1996 a report was made to the police by Ramesh whereupon an offence was registered. It is not disputed that Ramesh and the other family members belong to the Scheduled Castes whereas the appellant is a high caste Hindu. The appellant had allegedly referred to Bhimrao as Dhedpat . 3. In the course of the investigation the police recorded statements of the witnesses, collected medical certificate of the victim, seized a piece of scissor from the spot while drawing panchnama of the spot, arrested the 4 AJ-114.97 appellant and recovered another piece of scissor at the instance of the appellant from the place shown by the appellant. On completion of the investigation the charge-sheet was sent. 4. The learned Judicial Magistrate, First Class, Igatpuri committed the case to the Special Court of Sessions at Nasik where the appellant was charged by the learned Special Judge of the offences punishable under Section 3(1)(x) of the Act and Section 307 of the IPC. Since the appellant pleaded not guilty to the said charge, he was put on trial at which the prosecution examined, in all, ten witnesses in its attempt to bring home the guilt of the appellant. After considering the evidence of the prosecution witnesses in the light of defence of denial about abusing and claim that the victim had in fact been injured by the horn of the cow, the learned Judge convicted and sentenced the appellant, as indicated in the 5 AJ-114.97 preceding paragraphs. Aggrieved thereby, the appellant has preferred this appeal. 5. I have heard the learned counsel for the appellant and the learned APP for the State. With the help of both the learned counsel I have gone through the evidence on the record. When an offence is entirely made up by words of mouth, it would be necessary for the Court to be careful in ensuring that the evidence is reliable, since it would be always easy to make up an offence by alleging that a particular word was spoken. As rightly pointed out by the learned counsel for the appellant that in this case the learned trial Judge should have seen that the evidence about use of a single word Dhedpat for addressing PW-8 Bhimrao was discrepant. PW-5 Ramesh, who had lodged the report about the incident, had categorically stated in the middle of para 4 of his examination-in-chief that the appellant had 6 AJ-114.97 abused his paternal uncle by another abusive word, not related to the caste. The witness was categorical that the appellant had not given any other abuse to Bhimrao. The learned APP submitted that towards the end of para 5 of the examination-in-chief, however, Ramesh had stated that the appellant had abused Bhimrao by calling him Dhedpat. As rightly submitted by the learned counsel for the appellant, this wisdom dawned upon PW-5 Ramesh only after reading his report and therefore this is not something which he remembered spontaneously while deposing about the incident. This is merely an echo of the report which was given on the next day of the incident. 6. The report at Exhibit-25 itself gives a very curious account of the incident. The appellant had allegedly abused a cow, whereupon Bhimrao told the appellant that cow was like Goddess Laxmi and that the appellant should not 7 AJ-114.97 be abusing the cow, whereupon the appellant told Bhimrao that he had abused the cow and not him. Ramesh claims to have intervened and also states in the FIR that Bhimrao then asked the accused to excuse him whereupon the appellant asked Bhimrao as to why he was seeking to be forgiven and then stated that Bhimrao was not related to the appellant and was a Dhedpat. Ramesh then states in the report that thereafter he and his father dragged Bhimrao and asked Bhimrao to go his mala, that is field. Ramesh then states that the appellant went to his house. According to Ramesh, thereafter he and his siblings were carrying Bhimrao towards his house in the field and then the incident about stabbing took place. 7. PW-8 Bhimrao is the next witness on the incident of abusing. He does not state that he had been called by any name except Dhedpat by the appellant, as contrasted with the 8 AJ-114.97 evidence of Ramesh who had referred to some other abuse. He does not state that he had said any apologetic words towards the appellant or that this elicited a response by the appellant in which Bhimrao was referred to as Dhedpat. He, too, states that thereafter he started proceeding towards his mala and that his nephew and niece were accompanying him. 8. The evidence of PW-9 Dnyaneshwar, the third eye-witness to the incident, also does not show that the appellant had given any other abuse to Bhimrao. He, too, states that the appellant had called Bhimrao as Dhedpat. Thus, the entire account about the exchange of words between Bhimrao and the appellant or the apology which Bhimrao sought to tender are missing. 9. The learned APP submitted that deviation in the account of the incident by one 9 AJ-114.97 of the witnesses should not lead to rejection of the testimony of the other two witnesses, namely, PW-8 Bhimrao and PW-9 Dnyaneshwar, both of whom state that the appellant had addressed Bhimrao as Dhedpat. At the cost of repetition it has to be pointed out that when an offence is made up entirely by words of mouth, it would be extremely risky to rely on such an account of the incident, particularly in the face of the fact that the spontaneous response by the first informant in his examination-in-chief was not only of not referring to the caste based abuse, but also to state that no other abuse was given, ruling out that any caste based abuse was hurled at Bhimrao. It has also to be noted that the account of the incident as given by PW-8 Bhimrao and PW-9 Dnyaneshwar deviates in particulars from that incorporated in the FIR. In view of this, the learned Special Judge ought to have extended benefit of doubt to the appellant as to his complicity in the offence 10 AJ-114.97 punishable under Section 3(1)(x) of the Act and the conviction of the appellant for the said offence, therefore, cannot be sustained. 10. The prosecution had examined, apart from Ramesh, Bhimrao and Dnyaneshwar, panchas Ravindra, Manoj, Vithal, Sadu and witness Nitin, PWs-1, 2, 3, 4 and 7 respectively. They state about the seizure of parts of the scissor and also identification of the scissor as the one sold by PW-7 Nitin to the appellant. The learned counsel for the appellant submitted that according to the account of PW-5 Ramesh, PW-8 Bhimrao and PW-9 Dnyaneshwar, Bhimrao had actually left the place to proceed towards his mala when this incident of stabbing took place. The evidence of PW-5 Ramesh and PW-9 Dnyaneshwar would show that they were not accompanying Bhimrao when this incident of stabbing took place. The learned counsel for the appellant submitted that therefore the 11 AJ-114.97 evidence of PW-5 Ramesh and PW-9 Dnyaneshwar does not provide any corroboration to the words of Bhimrao and hence the defence that Bhimrao had been injured by the horn of a cow should have been accepted. This would be too far fetched. Making a suggestion that Bhimrao was injured by a cow s horn would lead to an inference that the injuries on Bhimrao, which had been proved by PW-6 Dr. Patil, have been accepted by the defence and they seek to explain those injuries by stating that Bhimrao had been hit by a cow. Dr. Patil has totally ruled out the possibility that the injuries observed could be caused by person being hit by the horn of a cow. Therefore, this probability raised by the defence was rightly rejected by the learned trial Judge. Further, the piece of the pair of scissors which had been seized in the course of the investigation by PW-10 API Salunke and which had been sent to the forensic science laboratory show, as per Exhibit-33 the 12 AJ-114.97 report of the laboratory, stains of human blood. Thus, the version of Bhimrao that he had been stabbed by the appellant by a pair of scissors was rightly accepted by the learned trial Judge. 11. The question is as to whether the injuries inflicted could qualify to be an attempt to commit murder by simple injuries caused by a sharp or dangerous weapon. The injuries are described as multiple scratches on chest and stab wounds on left hypochondria region and left anterior superior iliac spine. In respect of these two stab injuries, only the length has been given. Neither the breadth nor the depth have been measured or mentioned by the Medical Officer, PW-6 Dr. Patil. The learned counsel for the appellant is right in submitting that for an injury to qualify as a stab wound, it must be deeper than its length or breadth. This has also been accepted by the 13 AJ-114.97 Medical Officer in his cross-examination. In the absence of any measurement about the depth of the injury, it is not clear as to how the doctor defines the injury as a stab injury. In the case of serious injuries which are cavity deep, it may not be possible for a medical officer conducting external examination to state about the depth of the injury since measuring the depth may result in causing additional injury to the victim, but in that case it would have been open to the doctor to at least mention that the injury was skin deep, muscle deep, cavity deep or deeper than all these three areas. Therefore, in the absence of proper description of the injuries, the learned trial Judge need not have taken them to be serious injuries. The Medical Officer himself is B.A.M.S., according to the qualification which he stated. He does not state that the victim was subjected to any surgical procedure. The victim was in the hospital from 7-4-1996 to 14 AJ-114.97 15-4-1996, that is for eight days and therefore the injury does not qualify to be even a grievous hurt. Considering this, the learned trial Judge should not have held that the appellant s inflicting these injuries on the victim amounted to an attempt to commit murder. He should have held that the appellant was proved to have caused simple injuries by a sharp cutting object. In view of this, the conviction of the appellant for the offence under Section 307 of the IPC is reduced to that for the offence punishable under Section 324 of the IPC. 12. This takes me to the question of sentence. I have heard the learned counsel for the appellant and the learned APP. Considering the fact that the incident is of the year 1996 and the appellant was convicted in 1997, that is almost 14 years ago, as also the fact that the appellant was in custody for a period of 15 AJ-114.97 about 8-10 days only, no useful purpose would be served by asking the appellant to revisit the jail after 14 years. 13. In the result, the appeal is partly allowed. The appellant s conviction for the offence under Section 3(1)(x) of the Act and the sentence inflicted for that offence is set aside. The appellant s conviction for the offence under Section 307 of the IPC is altered to that for the offence punishable under Section 324 of the IPC and the sentence imposed upon the appellant is reduced to RI for seven days with fine of Rs.50,000/-, in default RI for a period of one year. If the fine is not deposited within a period of eight weeks, the learned trial Judge shall have the appellant committed to jail to serve his prison term. From the fine, if recovered, a sum of Rs. 40,000/- be paid to the victim Bhimrao Manaji Talkhe. Sd/- (R.C. CHAVAN, J.)