1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO.859 OF 2002 Jaywant Mahadev Patil Mane ...Appellant (Orig.Accused) Vs. The State of Maharashtra ...Respondent Mr.P.B.Kakade, Advocate for Appellant Mr. S.R. Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 27TH NOVEMBER, 2009 P.C. 1.This Appeal is directed against the judgment of the learned 6th Additional Sessions Judge, Satara dated 11th June 2002 convicting the appellant herein for the offence punishable under Section 307 of the I.P.C and sentencing him to suffer simple imprisonment for 3 years and to pay a fine of Rs.5000/-and in default to suffer simple imprisonment for another 6 months. Further an amount of Rs.3000/- is directed to be paid 2 to the widow of the complainant from the amount of fine recovered. 2.The Advocate for the accused states that a fine of Rs. 5000/- has been paid by the accused in the trial Court at Satara. However, part of the fine amount has not been paid to the complainant s wife as directed. 3.The case of the prosecution is that on 18th July 1995 at about 7.30 p.m the accused came near the shop of the complainant and had a quarrel with the complainant upon the fact that the complainant had given some information to the police relating to certain ganja sale by the accused. The accused assaulted the complainant with knife. The complainant sustained several injuries. He was removed to the hospital. The complainant expired about 6 months thereafter. 4.This case is sought to be proved essentially through the evidence of two eye witnesses P.W.3 and P.W.6 corroborated by the evidence of the Doctor. 5.P.W.3 who is also a kinsman of the accused he knows about the incident which took place at 7.30 p.m in the evening. He did not remember the date of the incident. He deposed that the quarrel took place on the pan shop of the accused, which he saw. He has deposed about the 3 light on the road at that time. However, he has not gone to the shop of the accused, though he had witnessed the quarrel. He has deposed that he has not seen the injuries of the complainant, but he was taken to the hospital by the complainant's cousin brother Jagannath in a tempo. 6.He has also deposed that the complainant was armed with a sickle. He has not deposed how and why the complainant had gone to the pan shop of the accused. This cross examination shows his relationship as kinsman of the accused. His cross examination further shows that the complainant was addicted to liquor and there were several criminal complaints against the complainant. It also shows that the complainant was talking irrelevantly and after the quarrel he went by the side of the road and fell on the ground. Thereafter, his cross examination shows that the accused came out of the pan shop and the complainant ran away. 7.His evidence is not trustworthy, credible and acceptable. As he is a kinsman of the accused he appears not to have given the full account of the incident. Though he has admitted witnessing the incident at 7.30 p.m his admission that the complainant fell to the ground shows that his later deposition that 4 the complainant ran away is false. Besides his admission that the complainant was removed to the hospital by his cousin brother Jagannath, is corroborated by the medical case papers Exhibit-23 showing that the complainant was admitted by one Jagannath Maruti Mane. 8.The other eye witness is P.W.6. The evidence of P.W.6, shows the incident having taken place at 7.30 p.m 4 or 5 years before the deposition. It also mentions about the quarrel between the accused and the complainant near the pan shop of the accused. P.W.6 has deposed that the accused was armed with the knife. He gave 3 knife blows on the person of the complainant on his chest and stomach. P.W.6 pulled the complainant aside. The complainant fell to the ground. Blood oozed from his injuries. P.W.6 removed the complainant to the hospital in the tempo of one Salim Khan. He identified that knife which came to be recovered and produced in Court. His cross examination shows that he was the cousin brother of the complainant. He admitted that the complainant was addicted to liquor. He deposed about the light on the road at the time of the incident. In his cross examination he has specifically refuted the fact that the complainant was armed with sickle and scythe. 5 9.He has been cross examined also about the case of the complainant. His evidence shows that that was on the point of ganja. He has refuted that he has any cross terms with the accused due to any business rivalry or that the complainant sustained injuries self inflicted by his own sickle. 10.His evidence is corroborated by the evidence of the Doctor P.W.4. The Doctor has set out 13 injuries on the person of the complainant. These are on his chest cavity and head. There is one incised wound on the left hypochondriam. The Doctor has described the injury in Item No.1. It shows that the injury was oblique entering through the 9th and 10th rib obliquely down in the peritoncal cavity. 11.Injuries at Item Nos.2 to 8 are in the chest cavity on various places. These are lateral and oblique. Injuries at Item Nos.9 to 13 are on the head of the deceased by which his upper lower eye lids and peritoneum and scapular region all on the left side of the injured. 12.It is argued on behalf of the accused that the learned Judge has based the conviction upon the Doctors opinion alone which cannot be done. The evidence shows that the oral evidence of P.W.6 has been corroborated by the 6 medical evidence. The oral evidence shows 3 knife blows on the person of the complainant on the chest and stomach. The first 8 injuries are on the chest and stomach. Since they are knife blows they are seen to be oblique in direction. All the injuries except injury No.8 are on the left side of the chest and abdomen. Injury at Item No.8 shows incised wound along the right anterior auxiliary line. That is the lateral injury. These injuries are seen to have been caused by 2 knife blows obliquely given. A 3rd injury is on the head, though P.W.6 has not deposed about the injury to the head of the complainant. 13.It is seen that the evidence of P.W.6 is natural and credible. He may not have seen the injury to his head and hence he has not deposed about it. He ran to extricate the complainant from the assault of the accused. He has however, seen 3 knife blows. The injuries are on 3 parts of the body. 14.The Doctor s evidence shows that all these injuries are possible by knife and that injury No.1 was grevious and sufficient to cause death, if medical aid was not given immediately. The injury at serial No.1 shows the intestine protruding out. The wound is 6 x 3 X 1 cm. It is shown to be an oblique would entering right through the 9th and 10th rib obliquely downwards in the 7 peritoncal cavity. It has resulted in perforation of 3 mm in length over transverse through and through over the transverse colon. Such an injury can be caused by the knife as deposed by the Doctor. 15.The learned A.P.P sought to argue that the recovery of the knife is also proved. In view of the cogent evidence of P.W.6 which is corroborated by the independent medical evidence the aspect of recovery is not needed to be adverted to. 16.The learned Advocate on behalf o the accused drew my attention to 2 judgments (1) in the case of State of Uttar Pradesh Vs. Krishna Gopal, A.I.R 1988 S.C. 2154 and (2) in the case of Chhotanney & Ors. Vs. State of Uttar Pradesh & Ors. 2009(2) S.C. 443, in which it is held that the medical evidence based upon hypothetical answers which are merely conjectural in nature cannot be accepted excluding the eye witnesses account. This case, however does not show any hypothetical answers. The Doctors evidence sets out the injuries in detail. The evidence shows that injury No.1 is sufficient to cause death and can be caused by a knife. That part of the evidence has not been disturbed in the cross examination. The Doctor has been cross examined upon his certificate and about irrelevant aspects of recording the history when the patient is brought to 8 the hospital. His cross examination however, shows that the patient was conscious and able to talk when he was examined. The Doctor has agreed that the injuries may be possible even by a sharp edged sickle and has refuted the suggestion that the injury No.1 was a simple injury. 17.The evidence led by the prosecution is sufficient to maintain the conviction. The learned Sessions Judge has considered both the eye witnesses account as well as the medical evidence corroborating the eye witnesses account. The conviction is therefore, proper. In fact for the grievous injury which has been caused to the complainant, the sentence of 3 years of simple imprisonment is, a very lenient view. However, the prosecution has not appealed for enhancement of the sentence. The sentence is, therefore, confirmed. 18.The Advocate of the accused made a statement before the Court that the fine amount is deposited. Since the complainant s wife has been directed to be paid Rs. 3000/-, but has not been paid, the learned A.P.P shall cause the compensation of Rs.3000/- to be paid from the fine amount deposited in this case to the complainant s wife by the relevant Investigating Officer and report compliance. 9 19.Appeal is dismissed. 20.The Appeal shall however, be kept on board on 16th December 2009 at 3 p.m only to see compliance of the payment of compensation to the complainant s wife. (SMT. ROSHAN DALVI, J.)