1 apeal-621-94.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 621 OF 1994. Shri Ashok Magan More, age 37 years, Resident of Udhana Mangal Bhavan Society, Limbayat Udhana Yard No.2, Near Hanuman Mandir, District Surat, (Gujarat State) .. Appellant/Original Accused. versus The State of Maharashtra .. .. Respondent. Mr Rohan P. Surve i/by Madhav Jamdar for the Appellant. Mr J. P. Yagnik, Addl. Public Prosecutor for the Respondent-State. CORAM:- A. P. BHANGALE, J. DATE :- 29th NOVEMBER , 2010. ORAL JUDGMENT.:- 1. This appeal by the appellant is directed against the judgment and 2 apeal-621-94.doc order passed by learned Additional Sessions Judge, Nandurbar in Sessions Case no.28/1994, decided on 24.11.1994, whereby the appellant was held guilty for an offence punishable under Section 307 of the Indian Penal Code and was sentenced to suffer R.I. for two years and pay fine in the sum of Rs.1000/- in default to suffer R.I. for three months. 2. Briefly stated, the prosecution case is that the appellant Ashok More, who was aged about 19 years at the time of the incident, and was taking education in 10th standard in public high school at Visarwadi. According to the prosecution, his class mate was a girl, by name Ms Malti, studying in the same school, while Ravidas Gavit ( examined as PW 2), alleged victim in the case, was ex student of that school and was intending to appear for 12th standard examination externally. According to the prosecution, said Ravidas was in love with Ms Malti. He came to know that the appellant was possessing photograph of said Malti and was pointing that photograph to other students in the class under the pretext that the appellant is having love affair with Ms Malti. This happened about eight days prior to the incident which occurred on 28.1.1994. PW 2 Ravidas (Exh.13) gave understanding to the appellant not to keep an evil eye upon Ms Malti and had even slapped the appellant. On the date of the 3 apeal-621-94.doc incident i.e. on 28.1.1994, while Ravidas (PW 2) and his friend Babulal (PW 1) were proceeding towards MSEB ground at Visarwadi to watch a cricket match at about 1:00 p.m., going through the school ground of public school, at that time the appellant came from behind, gave knife blows on the buttock, stomach and chest of Ravidas (PW 2). While Babulal (PW 1) tried to intervene, he had received injury on his left wrist. The appellant was apprehended by the school peon and kept confined in the ladies teachers’ room, Headmaster of the school informed police on phone while injured Ravidas (PW 2) was lying on the bench in the veranda outside the office of the school. Police arrived on the scene, took Ravidas to Primary Health Centre (P.H.C.) for medical treatment, while the accused appellant was taken to police station. Babulal (PW 1) lodged complaint/FIR which was registered under section 307 read with section 324 of I.P.C. Investigation followed. The investigating officer proceeded to the spot and drew spot panchnama (Exh.16). 3. It is further case of the prosecution that knife was recovered from the appellant, as also a knife having steel handle, having letter “A” with a blade of about three inches and bag containing photograph of the girl Malti. According to the prosecution, clothes of the accused were also seized in the course of investigation. Clothes of the injured Ravidas were 4 apeal-621-94.doc recovered under panchnama. Medical certificate regarding injuries sustained by Ravidas (PW 2) was also collected. Injured Ravidas was treated at Chinchpada Mission Hospital between 28.1.1994 to 11.2.1994 before he was discharged. 4. Muddemal articles knife, clothes and blood sample of the accused – appellant, as well as seized clothes of Ravidas (PW 2) and Babulal (PW 1)were forwarded to the office of the Chemical Analyser, Aurangabad for chemical analysis. After completion of investigation the appellant was charge sheeted before the Judicial Magistrate, Navapur on 15.3.1994 and the case was committed to the Court of Session at Nandurbar. 5. Charge for offence under section 307 of I.P.C. was framed against the appellant to which he pleaded not guilty and claimed to be tried. 6. The case was primarily defended by the appellant on the ground that Ravidas and Babulal had been to the school and assaulted the appellant but the appellant had snatched knife from Ravidas and in that process Ravidas (PW 2) and Babulal (PW 1) received the injuries. In order to prove offence against the appellant, the prosecution has examined eight witnesses and closed its evidence. No defence evidence was led by 5 apeal-621-94.doc the appellant in the trial Court. 7. The learned trial Judge after considering the evidence led before him concluded that the prosecution has proved its case against the appellant for the offence punishable under section 307 of the I.P.C. Accordingly, the appellant was convicted and sentenced by the impugned judgment and order. 8. Heard Mr Surve, holding for Mr Madhav Jamdar appearing for the appellant, and Mr J.P. Yagnik, learned A.P.P. appearing for the Respondent-State. 9. Shri Surve, learned counsel for the appellant, took me through the entire evidence on record, He contended with reference to the evidence of Ravidas ( PW 2 ) that Ravidas had beaten the appellant about eight days prior to the incident, suspecting that the appellant had relations with Ms Malti. The appellant, in fact, had brotherly relations with Ms Malti and was not having any love affair with her. Learned counsel for the appellant submitted that Ravidas ( PW 2 ) also admitted in the course of his cross-examination in paragraph 3 of his evidence that Ravidas ( PW 2 ) had tried to give understanding to the appellant and asked him not to 6 apeal-621-94.doc have any evil eye upon Ms Malti and at that time slapped the appellant and also told Ms Malti about the assault and warning given to the appellant asking her to report him, if any mischief played by the appellant in the school. It was further admitted by Ravidas ( PW 2 ) that Ms Malti had told him that she was having love with him only and not with the appellant in any form. Thus, according to the learned counsel, under these circumstances, it was actually Ravidas ( PW 2 ) along with Babulal (PW 1), had intention to assault the appellant on the date of the incident. According to learned counsel Malti could have thrown light upon the incident, as to intention of said Ravidas and Babulal and their conduct but she was not examined by the prosecution. According to learned counsel, therefore, the learned trial Judge erred to convict the appellant for the offence punishable under section 307 of Indian Penal Code. In the alternative, it is submitted that at the most, penal liability of the appellant could have been to the extent of offence punishable under Section 324 of the I.P.C. and not more. 10. Learned A.P.P.,on the other hand, contended that repeated blows by the knife were given by the appellant on vital parts of the body of PW 2 Ravidas, on his abdomen, right shoulder and according to him, PW 1 Babulal had tried to intervene, while the appellant was assaulting Ravidas. 7 apeal-621-94.doc Learned A.P.P. submitted that had Babulal not intervened in the incident, the appellant might have succeeded in killing Ravidas. He submitted that, while passing impugned judgment and order, the learned trial Judge has considered entire evidence on record, including medical evidence which corroborated direct evidence so as to arrive at conclusion of guilt of the appellant under section 307 of I.P.C. Learned A.P.P. also submitted that considering the age of the appellant leniency was shown by learned trial Judge while imposing sentence of R.I. for two years only and fine in the sum of Rs.1000/-. 11. I have heard submissions at Bar, and also perused the impugned judgment and order in the light of the evidence adduced by the prosecution on record. It appears that main evidence of the prosecution is that of injured witness (PW 2) Ravidas Gavit who deposed about the incident which occurred on 28.1.1994 at about 1:00 p.m. He along with his friend Babulal (PW 1) had decided to go to watch a cricket match at MSEB ground and were proceeding for that purpose in that direction. When they were passing through school ground, the appellant came from behind, gave knife blow upon buttock, when Ravidas turned, another blows landed on his chest and abdomen. Babulal had tried to save Ravidas but he also received an injury on his left leg at the hands of the appellant. 8 apeal-621-94.doc Ravidas ran towards office (teachers’ room), while the appellant was apprehended by Prabhakar (peon of the school), while he was about to enter in the office room. The appellant was, thus, kept confined in the adjoining ladies teachers’ room, while injured Ravidas was lying on the bench in the veranda of the school and became unconscious. The admissions given in the course of cross-examination by Ravidas about the incident which happened eight days prior to the incident, also gave rise to inference that the appellant was reprimanded on the ground that he should not keep an evil eye on Ms Malti and was slapped. Such an incident can give rise to animosity on the part of the appellant to take revenge for the warning which he had received. The admissions given in the course of cross examination, as submitted by learned counsel for the appellant, cannot therefore help cause of the defence. The evidence of injured witness Ravidas (Exh.13) is corroborated by another injured witness Babulal (PW 1) who deposed about the incident that he and Ravidas were proceeding towards MSEB ground in order to see cricket match on that day and while they were passing through the ground the appellant came from behind and gave knife blow to Ravidas on his buttock and when Ravidas turned, he was given knife blow on the stomach, while Babulal (PW 1) tried to save Ravidas, he also received injuries on his left wrist, as 9 apeal-621-94.doc a result of knife blow from the appellant. While Ravidas tried to run away towards the office of school, the appellant had chased him. It has come in the evidence of Babulal that peon of the school by name Prabhakar had apprehended the accused in the door of the office while he was about to enter. Thus, the fact that the incident had happened in the school ground, including the manner of assault, in which it occurred, till the time police were informed, the appellant was arrested, as also complaint was lodged PW1 Babulal is the only witness. The argument that material witness Ms Malti was not examined by the prosecution and, therefore, adverse inference shall be drawn against the prosecution would not impress me because Ms Malti was not present at the time of the incident. She could not have been a direct witness as to the incident. It is discretion of the prosecution to examine those witnesses who can unfold narrative of the prosecution story, namely, as to the main incident which had occurred .Which witnesses if examined would substantiate the substratum of the prosecution case and the accusations made against the accused; is discretion of the Public prosecutor. It is always open for the prosecution to apply before the trial court if any particular witness is not examined to pray for to offer such witness for cross examination or to examine any witness dropped by the prosecution in support of the defense. Even, 10 apeal-621-94.doc otherwise, no school girl is expected to come forward and depose about her love affair with her school mate in a court of law. Be that as it may, it was open for the appellant to pray before the trial court, if he considered the evidence of Ms Malti as material, to be examined as a defence witness or as a court witness. For the reasons best known to the appellant, this was not done. 12. Evidence of eye witness Ravidas and Babulal further corroborate by medical evidence of Dr Jim (PW 4) who examined injured Ravidas in Visarwadi Primary Health Centre on 28.1.1994 at about 1:30 p.m. deposed about the stab injuries sustained by Ravidas, which were four in numbers, described vide Exh.20. PW 4 Dr Jim found one cm long laceration on right shoulder, 2 cm long laceration on the upper part of abdomen through which omentum was producing 2 cms x 1 cm laceration on right side of back and 2 cms long laceration on right buttock. All these wounds must have been caused by a sharp weapon. All the four injuries were stab injuries. The injuries sustained by Ravidas were grievous in nature and were sufficient to cause death in ordinary course of nature. Accordingly, medical certificate (Exh.20 ) was issued by Dr Jim (PW 4) in his own handwriting. He also deposed about medical case papers Exh.20. Credibility of this witness was not 11 apeal-621-94.doc challenged in the course of his cross-examination regarding presence of stab injuries, as also their nature, particularly injury on abdomen was sufficient to cause death according to Dr Jim. Prosecution also examined another Medical Officer PW 5 Dr K.T.Patil (Exh.22) who examined injuries on the person of injured Ravidas on 28.1.1994 which were described as follows :- 1 Stab injury on 3” right lateral abdomen, omentum was found outside the injury and intesnal coil was also seen. 2 Stab injury on buttock 2 cm x ? cm x half cm. 3 Stab injury on right scapular surface 1 cm x ? cm x 1/6 cm oblique in nature. 4 Incised wound on middle on back 1 cm x ? cm x 1/5 cm oblique in nature. Accordingly Dr Patil issued certificate Exh.23. Dr K.T.Patil gave his opinion that injury Nos. 1 and 2 were grievous in nature and were possible by means of sharp pointed weapon. He also deposed about 12 apeal-621-94.doc injuries observed on the person of Babulal described in injury certificate (Exh.24), as under: Incised wound on posterior lateral of left wrist obliquely placed about ? cm x ? cms x ? cms, He observed that the injury of Babulal was bleeding and must have been caused by sharp pointed weapon prior to about an hour of the examination. 13. The prosecution examined panch witnesses regarding seizure of knife which was blood stained (under panchnama exh.15), razor, photograph of Ms Malti, clothes which were recovered under panchnama Exh.15 deposed by PW 3 Ashok Gavit, another panch Ananda Namdeo Patil was examined as PW 8, (Police Constable) who deposed about initial investigation that police Head Constable Shri Khairnar at Visarwadi Police Station received a phone call from Headmaster of Public School about the assault by one boy upon another boy and injury caused. Accordingly, Head Constable Shri Khairnar asked PW 8 Ananda Patil to bring the assaulted boy and also take him to hospital. Constable Navsare also accompanied him to public school, Visarwadi where another boy 13 apeal-621-94.doc who assaulted was confined in the ladies staff room who was arrested by PW 8 and taken to Police Station. 14. Prosecution has also examined Headmaster of the school as PW 6 Shri Manohar Shah, who had informed about the incident to the police while accused Ashok More assaulted Ravidas by knife was confined in the ladies staff room. He also deposed that injured Babulal was referred to the hospital along with a constable and injured boy Ravidas was identified as past student of the school. Thus, ocular version of the incident, as deposed by witnesses Ravidas and Babulal, who were injured in the incident, appears amply corroborated not only by medical evidence but also by evidence as to recovery of weapon of offence. There is further corroboration from the C.A. report that the weapon of offence, which was a seized knife during the course of investigation, was found stained with blood from blade in traces, which was of human origin. Clothes which were recovered from the injured Ravidas were found stained with blood was of ‘B’ group. While clothes seized from Babulal were found stained with blood stains of blood group “O”. Clothes of the accused were also seized which were found stained. The blood stains detected on the clothes of the accused were human origin. Thus, the findings of Chemical Analysis appear consistently with evidence led by 14 apeal-621-94.doc the prosecution, particularly, when injured Ravidas had blood group “B” while injured Babulal was having blood group “O” as per C.A.reports, while the appellant was possessing “B” group. The appellant had not sustained any injury. 15. There is no explanation from the appellant as to how his clothes were found stained with blood. Considering the entire evidence, direct as well as circumstantial, learned trial Judge arrived at finding to hold guilty to the appellant for an offence punishable under Section 307 of the Indian Penal Code. View regarding imposition of sentence by the learned trial Judge was also lenient, considering the youth of the appellant at the time of the incident. For all these reasons no ground is made out for interference with the impugned judgment and order. Appeal is without merits. Same is dismissed. The appellant shall surrender his bail bonds in the lower Court within four weeks from today to undergo remaining sentence. (A. P. BHANGALE, J.)