( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 754 OF 2008 Bhagwat s/o Raghunath Karande, R/o Wadgaon Lakh, Taluka Tuljapur, District Osmanabad. APPELLANT VERSUS 1. The State of Maharashtra 2. Bhujang s/o Shrimant Karande, R/o Wadgaon Lakh, Taluka Tuljapur, Dist. Osmanabad. RESPONDENT ..... Mr. S.J. Salgare, advocate holding for Smt. S.S. Jadhav, advocate for the appellant. Mrs. Y.M. Kshirsagar, APP for the respondent No.1/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 15th October, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Sessions Judge, Osmanabad in ( 2 ) Sessions Case No. 19/2008 whereby and whereunder the appellant is convicted for offence punishable under section 307 of the I.P. Code and sentenced to suffer rigorous imprisonment for seven (7) years and fine of Rs. 5000/-, in default to suffer simple imprisonment for six (6) months. 2. In brief, the prosecution case is as follows : Injured PW Bhujang is inhabitant of village Wadgaon (Lakh) and resides in a house situated in his agricultural land. He works as Assistant to Priest (-------) in the temple of Goddess Tuljabhavani at Tuljapur. The appellant is his cousin and resides in a house situated at a short distance from the agricultural land of PW Bhujang. On 10th August, 2007, PW Bhujang was proceeding from a bandh of his agricultural land to reach main road as he wanted to go to Tuljapur in order to attend his work. It was around 7 a.m. that he had left the house. While he was walking from over the bandh, the appellant went from his behind. The appellant urged him to give tobacco. PW Bhujang stopped for a while. All of a sudden, the appellant dealt blow of a ( 3 ) sickle on his abdomen. While giving such a blow, the appellant only told him “it was not fair” and thereafter, attempted to give second blow but PW Bhujang caught the sickle in the air by his right hand. He sustained minor injury to the ladies finger of the right hand. He cried out for help and, therefore, immediately PW Macchindra Karande and PW Kisan Karande rushed towards the place. On seeing them coming, the appellant fled away. Father of PW Bhujang also rushed to the place. A cloth piece was tied around the abdominal injury of PW Bhujang since the blood was oozing out therefrom and intestine had protruded out of the slit caused due to the injury. He was taken to Civil Hospital at Solapur in a jeep vehicle. He was treated in the said hospital. The police recorded his statement at the hospital. It was treated as F.I.R. An offence was registered against the appellant vide crime No. 150of 2007 at Tuljapur Police Station. The police arrested the appellant. The sickle was recovered at his behest. The blood stained shirt of PW Bhujang was lateron seized under a panchanama. It was revealed during course of investigation that the appellant had ( 4 ) suspected extramarital relations between his wife and the victim i.e. PW Bhujang. That is why he assaulted PW Bhujang in the relevant morning. On basis of material gathered during course of investigation, the appellant came to be chargesheeted for offence punishable under section 307 of the I.P. Code. 3. The learned Sessions Judge placed implicit reliance on version of injured PW Bhujang as it was duly corroborated by the medical certificate. The learned Sessions Judge came to the conclusion that the appellant attempted to cause death of injured PW Bhujang in the relevant morning due to the suspicion about extramarital relations between the latter and his wife. Consequently, the appellant came to be convicted and sentenced as described hereinabove. 4. Heard learned counsel and learned A.P.P. 5. Coming to the oral evidence of the prosecution, it may be gathered that PW3 Macchindra did not corroborate case of the prosecution as regards his ( 5 ) having seen the appellant while running away from the proximity of place of occurrence soon after the incident of assault. He was declared hostile. Still, however, his version is of little assistance to the prosecution in as much as he was immediately informed by injured PW Bhujang that the appellant was the assailant. The immediate conduct of PW Bhujang can be considered as “res geste”. This much part of the version of PW Macchindra is relevant. There is solitary version of PW Bhujang to show that the appellant assaulted him in the relevant morning by means of sickle. The counsel would submit that the appellant’s motive is not duly proved. He submits that version of PW Bhujang should not be accepted in as much as there is no independent corroboration to show complicity of the appellant. 6. The star witness of the prosecution is ofcourse injured PW Bhujang. His version purports to show that the appellant asked for some tobacco after approaching him from behind. His version further reveals that the appellant suddenly dealt severe blow of sickle on his abdomen and dressed the sickle for giving another blow, ( 6 ) but he held his hand. He also simultaneously raised alarm. His version purports to show that the appellant fled away immediately while PW Macchindra and Kisan Karande were seen coming towards the place of bandh. His version further shows that the appellant only uttered the words “it is not proper” (--------------). The counsel would submit that such utterances do not give any kind of clue about intention of the appellant to do away with life of PW Bhujang. The appellant did not, at the relevant time, verbally express his intention to cause death of PW Bhujang. Still, however, his acts can be considered to infer his state of mind. The expression of words “--------------” (this is not proper) would indicate that the appellant did not approve certain conduct of PW Bhujang. What was that conduct which he did not approve could be well known to both of them though others may not be knowing about the same. It is highly probable that the appellant did not want to mince the words. Some times, there are even pregnant pauses and even small expressions are sufficient to tell many a things. The words used by the appellant were in connection with his act of mounting ( 7 ) the assault by means of a sharp edged instrument viz. sickle. Moreover, the appellant assaulted on abdomen of PW Bhujang. Thereafter, he had attempted to give the second blow but the bid was foiled as PW Bhujang held his hand. 7. There appears no serious reason for PW Bhujan to falsely implicate the appellant as his assailant. The version of an injured witness is ordinarily of more value. For, an injured witness is unlikely to allow his assailant to go scot-free. Nothing of much significance could be elicited from the cross- examination of PW Bhujang. His version, unmistakably, proves that the appellant is the assailant who gave the severe blow of sickle on his abdomen in the relevant morning. He corroborated the recitals of the FIR (Exh-12). 8. The testimony of PW Bhujang stands duly corroborated by the version of PW2 Dr. Asha Gaikwad. Her version reveals that on the same day, injured PW Bhujang was examined at 8.35 a.m. Obviously, injured PW ( 8 ) Bhujang was rushed to the Civil Hospital at Solapur without any delay. Her version purports to show that injured PW Bhujang gave history of assault in the same morning at about 7 a.m. According to her, there was an incised wound over left hypochondriac area of size 3 x 2 cm. She noticed that intestine had protruded outside the wound. Her version purports to show that the injury was caused by some sharp object within 24 hours. She categorically stated that the injury was dangerous to life and could have caused death of PW Bhujang if it would not have been treated immediately. It is pertinent to notice that PW Bhujang was admitted in the hospital in the same morning of 10th August, 2007 and was discharged on 22nd August, 2007. But for his being a serious patient and there being danger to his life, he would not have been treated as indoor patient for such a long period. 9. The versions of PW Prakash and PW6 Pandit are of no assistance to the prosecution. Both of them are panch witnesses. They were declared hostile. Their cross-examination could not yi3eld any material which ( 9 ) could help the case of prosecution. It is not necessary to elaborately discuss the remaining evidence of the prosecution. For, the testimony of PW4 Shrimant reveals that he came to know about the incident after inquiry with PW Bhujang. His version reveals that the appellant used to reside in a house situated at a distance of 100 to 150 feet away from the residential house. He is father of PW Bhujang and immediately took the latter to the hospital. The learned counsel would submit that the conduct of PW Shrimant is rather strange because he did not immediately approach the police. It is true that PW Shrimant did not report the incident to the police which ordinarily he should have. One cannot be oblivious of the fact that PW Shrimant was much engrossed with medical attendance of PW Bhujang which was his first priority as a father. Secondly, the appellant is his nephew. The motive behind the assault could itself make him to put down his eyes before the relatives and the other villagers. These circumstances cannot be overlooked. Hence, the mere fact that PW Shrimant did not immediately report the incident to the police is not of much importance. ( 10 ) 10. I have gone through the versions of other witnesses, who are mainly the police personnel. PW10 PSI Abhimanyu Salunke is Investigating Officer. He narrated about the steps taken during course of the investigation. There are no serious contradictions located from the police statements of the witnesses. Though the motive is latent, yet, the prosecution case cannot be discarded due to absence of reliable evidence in the context of motive. I am in general agreement with the findings of the learned Sessions Judge. Under these circumstances, I do not find any substance in the appeal. However, the sentence awarded to the appellant seems to be little bit harsh. The appellant is a young and married man. If his cousin was found to be indulging in extramarital affair with his wife, the annoyance caused to him could be the propelling factor which ultimately caused him to assault on PW Bhujang in the relevant morning. In this view of the matter, I deem it proper to reduce the sentence by two years. 11. In the result, the appeal is dismissed. The ( 11 ) substantive sentence is, however, altered and is reduced to term of five (5) years’ rigorous imprisonment, keeping the remaining order rendered by the learned Sessions Judge as it is. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl754-08