Cri. Appeal No. 328/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 328 OF 1998 Dagdu s/o. Namdeo Lahase, Age 24 yrs., Occu. Driver, R/o. Hatnoor Colony, Jalgaon, Tq. & Dist. Jalgaon. ....Appellant. Versus The State of Maharashtra ....Respondent. Mr. S.B. Jadhav Advocate h/f., Mr. N.B. Suryawanshi, Advocate for appellant. Mr. G.R. Ingole, APP for State/respondent. CORAM : T. V. NALAWADE, J. DATED : 8th July, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 62/1997 which was pending in Court of Vth Additional Sessions Judge, Jalgaon. By the decision dated 28.9.1998 the Trial Court has convicted and sentenced the appellant/accused No. 1 for offence punishable under section 307 of the Indian Penal Code. Cri. Appeal No. 328/1998 2 2. In short, the facts leading to the institution of the appeal can be stated as follows :- The injured Abhiman Patil was aged about 32 years at the relevant time and he was working as agent for the office of District Industries Center and persons who were interested in getting loan from this office. Abhiman used to prepare project files for the borrowers. He was charging commission for this work. 3. Kamal is wife of complainant Abhiman and she was working in the hospital of one Dr. Nawale. Abhiman used to visit the hospital for reaching his wife to hospital and during his visit, he got acquainted with accused No. 1, present appellant, Dagadu. The appellant was working as a driver on the car of Dr. Nawale. Accused No. 2 Ramchandra was doing some carpentry work in the hospital for some time and so he also got acquainted with Abhiman. 4. From Kamal, accused No. 1 learnt that Abhiman was working as agent and he was helping the people for getting loan from District Industries Center. Accused No. 1 then requested Abhiman to prepare project file for his proposal as he wanted to take loan of Rs. 3.30 lacs. Accused No. 1 paid Rs. 500/- as an advance amount Cri. Appeal No. 328/1998 3 for the expenses to Abhiman. Abhiman prepared project file and proposal was submitted for loan. However, the District Industries Center did not sanction the loan. As the loan was not sanctioned, accused No. 1 started demanding back his amount of Rs. 500/- from Abhiman. Abhiman said that he had already spent the amount on paper work and also on giving tea etc. to the staff of District Industries Center and he would not return the amount. As the amount was not returned, the relations between Abhiman and accused No. 1 became strained. 5. On 13.12.1996, the day of incident, Abhiman went to village Adegaon for settling the marriage of his niece. He was expected to return to Jalgaon in the evening. Accused No. 1 was known to Kamal, but accused No. 2 was not known to her. They visited the house of Abhiman and they made inquiry about Abhiman. Kamal informed that Abhiman was out of station and he was likely to return at 6.30 pm. Abhiman did not return till 8 pm. At 8 pm accused Nos. 1 and 2 again visited the house of Abhiman and she told that Abhiman had not yet returned. Abhiman reached Jalgaon at about 8.15 pm and he alighted from the bus of MSRTC at Khote Nagar Stop. From there, Abhiman was returning home on foot. When he was near Y.B. Hostel, he noticed that one car stopped near Cri. Appeal No. 328/1998 4 him. As the car stopped near him, he also stopped. Accused Nos. 1 and 2 alighted from the car and then accused No. 1 demanded back Rs. 500/- from Abhiman. Accused No. 1 insisted that Abhiman should return the amount there only and immediately. When Abhiman refused to return the amount, accused No. 2 held Abhiman and accused No. 1 gave blow of knife on the abdomen of Abhiman. Abhiman sustained bleeding injury and he collapsed there. Accused Nos. 1 and 2 then left the spot. After some time Abhiman somehow stood on his legs and he started walking to his house. After crossing some distance, Abhiman felt that he was loosing consciousness, so he started giving calls to by-passers for help. Shravan Chavan and his relative Rathod were living in the vicinity of the spot and they heard the calls given by Abhiman. They went to the spot and they noticed that Abhiman was injured. Abhiman told them that he was living in the house of Patil, which is situated on other side of the road, but due to injury, he was not in a position to see the house and so they should help him to reach to his house. These two persons reached Abhiman to his house. After reaching to house, Abhiman told his wife Kamal about the assault in the presence of these two witnesses. 6. Kamal called the landlord and other neighbourers for help Cri. Appeal No. 328/1998 5 and she shifted Abhiman to Government Hospital. At about 1.15 hrs. of 14.12.1996 police recorded the report given by Kamal in the hospital and the crime at Cr. No. 113/1996 came to be registered in Jalgaon Taluka Police Station for aforesaid offences. API Jagtap took over the investigation of the case. He recorded statements of aforesaid witnesses and also of Abhiman. Both the accused came to be arrested immediately. 7. While in police custody, accused No. 1 gave statement to Jagtap that he had kept the knife in his house. Memorandum statement of accused No. 1 was prepared in presence of panch witnesses. Accused No. 1 took police and panchas to his house and from there he produced a knife. The knife came to be seized under panchanama. The spot of offence was also shown by accused No. 1 and panchanama of the spot came to be prepared. As there were blood stains on the clothes of accused No. 1, these clothes were taken over under panchanama. During the course of investigation, blood samples of both the accused came to be obtained. The aforesaid knife, clothes of accused No. 1, clothes of injured and the blood samples came to be sent to C.A. office. Human blood came to be detected on the knife and also on the clothes of the accused. After completion of investigation, Jagtap filed chargesheet. Cri. Appeal No. 328/1998 6 8. In the Trial Court, the prosecution examined in all 12 witnesses. The Trial Court has acquitted accused No. 2 and the appellant is convicted for offence punishable under section 307 of the Indian Penal Code and sentence of rigorous imprisonment of three years and fine of Rs. 200/- is given to the appellant. In the appeal, both the sides are heard. Advocate for the appellant was heard also on the point of sentence. 9. Prosecution has relied both on direct and circumstantial evidence. Abhiman (PW 10) has given evidence that he was working as agent and on commission he was helping people to get loan from District Industries Center. He has given evidence that he was knowing accused No. 1 and on the request of accused No. 1 he prepared a proposal for loan. He has deposed that advance amount of Rs. 500/- was given to him for expenses and this amount was spent by him for preparing proposal. He has deposed that the District Industries Center did not sanction the loan and then accused No. 1 started demanding back the amount of Rs. 500/-. He has deposed that he refused to give amount as he had already spent the amount for work. Cri. Appeal No. 328/1998 7 10. Abhiman (PW 10) has deposed that on 13.12.1996 at about 8.30 p.m. he was returning home on foot. He has deposed that near Y.B. Hostel accused Nos. 1 and 2 came in a car and they intercepted him. He has deposed that at the spot accused No. 1 gave blow of knife on his stomach. Abhiman (PW 10) has deposed that he collapsed there, but after some time, he somehow stood on his legs and started walking towards his house. He has deposed that on the way he gave calls for help and two pedestrians helped him in reaching him to his house. He has deposed that after reaching the house, he narrated the incident to Kamal, his wife. He has deposed that Kamal shifted him to Government Hospital. He has deposed that his blood stained clothes were taken over by the police. He has identified the knife used against him. 11. It is only suggested to Abhiman that he sustained the injury due to fall on a tin. This suggestion is denied. Dr. Bhagwat (PW 11) has given evidence that he examined Abhiman on 13.12.1996 and found one stab injury on the abdomen of size 1 inch x 1/4 inch, muscle and cavity deep. He has deposed that through this injury omentum was coming out. Doctor has deposed that this injury was grievous in nature and was sustained within two hours. Doctor has given opinion that Article No. 1, knife, can cause such injury. Cri. Appeal No. 328/1998 8 Doctor has denied that such injury can be caused due to fall on a tin. Doctor has deposed that Abhiman was indoor patient from 13.12.1996 to 23.12.1996 and if timely treatment was not given, Abhiman would have died. Thus, doctor has deposed that the injury is sufficient in the ordinary course of nature to cause death. In the cross examination of the doctor it is brought on record by the defence that leprotomy was done and there were four injuries found on ileum. Doctor has further deposed that two liters of blood found in abdominal cavity was drained out. Certificate at Exh. 36 prepared by the doctor is consistent with his oral evidence. This evidence has given corroboration to the version of Abhiman. 12. The evidence of Rathod (PW 6) shows that he heard the calls given by the injured near Y.B. Hostel and he helped Abhiman to return to his home. Witness Choudhari (PW 5) has given evidence on the circumstance that Abhiman had returned home in injured condition. These witnesses have not supported the case of prosecution on the point of disclosure made by Abhiman to his wife. But on other part of the story, their evidence is consistent with the prosecution case. Kamal (PW 9) has given evidence that immediately after reaching the house, Abhiman disclosed the incident to her. The report at Exh. 33 was given by Kamal as Cri. Appeal No. 328/1998 9 Abhiman was unconscious. In the report also she had informed to police that she learnt about the incident and names of assailants from Abhiman. Thus, there is ring of truth in the evidence of Abhiman and his wife. Report was given almost immediately and the report is corroborating the version of Kamal. There is one more circumstance, immediate arrest of accused No. 1 and immediate discovery of weapon at the instance of accused No. 1. All these circumstances are consistent with the case of the prosecution. 13. Jagtap (PW 12) has given evidence that there were blood stains on the clothes of accused No. 1 and so they were taken over under panchanama. He has given evidence that immediately after arrest, accused No. 1 gave statement that he had concealed the knife in his house and the memorandum statement was prepared in presence of panchas. The evidence on the point of disclosure made by accused No. 1 under section 27 of Evidence Act and on the panchanama of seizure of knife, and Exhs. 41 and 42 are consistent with the evidence of Jagtap. Though the panch witnesses, on these documents have not supported the case of prosecution, there is no reason to disbelieve Jagtap as everything was done immediately. Jagtap has given evidence that the clothes of accused, clothes of Abhiman, blood samples and the knife were sent to CA office. The Cri. Appeal No. 328/1998 10 covering letter is not produced by prosecution. But that lacuna will not come in the way of prosecution for proving these circumstances as the CA report shows that the seals of the parcels were intact. Blood was found on the cloths of accused No. 1 and on the knife and no explanation is offered by accused No. 1 with regard to these circumstances. Thus, there is direct and circumstantial evidence in support of the case of the prosecution. This evidence is sufficient to prove the offence beyond all reasonable doubt against appellant. 14. By way of defence, the accused No. 1 has stated in statement under section 313 of Criminal Procedure Code that Abhiman was illegally collecting money from persons and as there were complaints against Abhiman, Abhiman has falsely implicated him. He has tried to say that Abhiman was apprehending that accused No. 1 would give statement against him to police. This case does not appear to be probable in nature as nothing of that sort is brought on record. Further, there is the medical evidence and there are other circumstances which are in support of the version given by Abhiman. 15. The aforesaid evidence shows that accused No. 1 gave blow Cri. Appeal No. 328/1998 11 of knife on abdomen of Abhiman. The injury was dangerous to life and in ordinary course, it would have caused the death of Abhiman. If there was the death, accused No. 1 could have been convicted for offence as defined under section 300, part III of the Indian Penal Code. So the prosecution has made out the offence of attempt of murder punishable under section 307 of the Indian Penal Code. The Trial Court has not committed any error in convicting the accused for this offence. 16. For appellant, the case reported as (1988) 4 Supreme Court Cases 551 [ Hari Singh Vs. Sukhbir Singh and others ] was cited. It was submitted that benefit of the provisions of section 360 of Criminal Procedure Code can be given to the accused. Perusal of the reported case shows that the accused was convicted for offence punishable under section 325 of IPC and so the benefit was given. In the present case, there is conviction for offence punishable under section 307 of IPC, which is punishable with imprisonment for life and so section 4 of Probation of Offenders Act does not permit to give such benefit to appellant. On the point of sentence also there is no case to the appellant as the Trial Court has already taken the lenient view. When in offence punishable under section 307 of IPC, injury is caused, the punishment can be of 10 years Cri. Appeal No. 328/1998 12 imprisonment or life imprisonment, but the Trial Court has sentenced the appellant with imprisonment of three years only. It can be said that the circumstance that there was dispute over the amount given by the accused No. 1 to Abhiman is considered by the Trial Court and due to that lenient view is taken. Thus, it is not possible to interfere in the decision of the Trial Court. So the appeal stands dismissed. [ T. V. NALAWADE, J.] ssc/criapl 328/98