1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 66 OF 2008 1. Vishnu Kurtikar, s/o Upaso Kurtikar, r/o H. No. 300, Tatodi, Dharbandora, Goa. 2. Sukdow Gawde, w/o Putu Gawde, r/o H.No. 269/1, Post Navelim, Sanquelim, Goa. Both the Applicants are presently in custody at Central Jail, Aguada. ... Applicants versus State of Goa through the Public Prosecutor, Panaji, Goa. ... Respondent Shri S. G. Bhobe, Advocate for the Applicants. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 5TH AUGUST, 2009. ORAL JUDGMENT This revision is filed by the accused who has been convicted and sentenced under Section 307 r/w 34 I.P.C. by the learned Assistant Sessions 2 Judge, Margao, and whose conviction has been confirmed by the learned Sessions Judge, Margao, by Judgment dated 8-9-2008. 2. The injured Krishna Kurtikar/PW1 and both the accused are related to one and another and were neighbours. The accused were charged and tried with the allegation that on 5-1-2001 at about 21.00 hours at Tatodi, Dharbandora, both the accused in furtherance of their common intention assaulted the said Krishna Kurtikar with a bamboo stick and a sword on his head with the intention or knowledge, and under such circumstances that if by that act death was caused, they would have been guilty of murder, thereby committing offences punishable under Section 307 r/w 34 I.P.C. 3. The accused pleaded not guilty and prosecution examined 14 witnesses to support the charge and although their defence as reflected from their statement under Section 313 of the Code was one of bare denial, the fact remains that at one stage, it was even suggested to the said Krishna that it is he who assaulted them. 4. Be that as it may, the learned trial Court after assessing the evidence produced by the prosecution has come to the conclusion that the case of the prosecution was proved beyond reasonable doubt, and, presently it is being argued by Shri S. G. Bhobe, learned Counsel on behalf of the Applicants/Accused that there is perversity in the findings of the Courts below. 3 5. It is well settled that in revisional jurisdiction, this Court will not interfere with concurrent findings of fact, and if any authority is required for this proposition, I may refer to a decision of this Court in the case of Ramchandra Govind Take and others v. The State(AIR 1969 Bombay 20). Revisional jurisdiction is supervisory in nature and can be used only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law resulting in flagrant miscarriage of justice, as observed by the Apex Court in Amar Chand Agarwala v. Shanti Bose and another(AIR 1973 SC 799). It cannot be exercised so as to make one part of the Code of Criminal Procedure, 1973 to come in conflict with another, as would be the case, in case the parties are permitted to argue matters in revisional jurisdiction as if it is an appeal which is otherwise definitely excluded by other provisions of the said Code. 6. Nevertheless, I will briefly deal with the submissions made on behalf of the Applicants by their learned Counsel Shri Bhobe. The first is with reference to the medical certificate of the said injured which was produced in terms of Section 194 of the Code by an application filed to that effect on 9-12-2003. The said medical certificate shows that the injured who was examined in Goa Medical College was found with the following injuries:- 1. Incised wound of left parietal region 5 x 2 cms. 2. Laceration occipital region 8 x 2 cms. 3. Incised wound left fronto temporal region 3 x 0. 5 x 0.5 cms. 4 4. Incised would left lower parietal region 3 x 0.5 x 0.5 cms. 5. Fracture left Ulna and left Tibia. 7. Relying on a decision of this Court in the case of Raju @ Rajeshkumar Munnilal Gupta and another v. State of Maharashtra(2006 ALL MR(Cri) 2772), learned Counsel submits that the said medical certificate was not proved as required in law, and particular reference has been made to sub-section(3) of Section 294 of the Code, and to an observation of this Court in that regard in the above case which says that the Code merely dispenses with the proof of signature of the person to whom it purports to be signed, and, in no manner dispenses with the requirement of proving the contents of such document which is necessary in terms of Section 61 of the Evidence Act to make the same admissible. 8. On the other hand, Shri C. A. Ferreira, learned Public Prosecutor has submitted that the said certificate was produced along with an application and with no objection of the learned Counsel appearing on behalf of the accused, and as such, no further proof was required, and in this context, learned Public Prosecutor has placed reliance on a Full Bench decision of the Rajasthan High Court in Shabbir Mohammad v. State of Rajasthan(1996 Cri. L. J. 2015) and which according to the learned Public Prosecutor has been rendered relying upon 5 a Full Bench decision of this Court in Shaikh Farid Hussinsab v. The State of Maharashtra(1983 Cri. L. J. 487). 9. This controversy has been dealt with by the learned trial Court in para 59 of the Judgment. It appears that the said application dated 9-12-2003- Exh.42 for production of the medical certificate under Section 294(1) of the Code was made by the prosecution after it was found that the doctor who had examined the said Krishna Kurtikar was not available, and that application was granted by the Court with no objection given by the learned Counsel appearing on behalf of the accused. As the opening words of Section 294 by themselves show, the section is meant to dispense with formal proof of documents which would mean that the signature as well as contents as found on the certificate would be taken as proved. 10. The Full Bench of this Court in Shaikh Farid Hussinsab v. The State of Maharashtra(supra) has clearly stated that Section 294 of the Code dispenses with proof of every document when it becomes formal on its genuineness not being disputed. There is nothing in Section 294 to justify execution of a post mortem report from the purview of documents covered thereby. Sub-section(3) of Section 294 of the Code covers post-mortem notes and every other document of which genuineness is not disputed. The word “genuineness” contemplates not only genuineness of the signature but also the genuineness of the contents of the documents. The Full Bench further held that raising no dispute to the genuineness of any document implies their considered 6 decision of further details being irrelevant, and, the Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended on demonstrable grounds. The authority to read in evidence implies the authority to use the document and rely on it for adjudicating the points at the trial. In the light of the said decision, the submission of learned Counsel has to be rejected and the decision cited has to be considered as not good law. 11. Shri Bhobe, learned Counsel has next submitted that the complaint of the said Krishna Kurtikar recorded on the next date could not have been considered as a F.I.R. and in fact it has been submitted by Shri Bhobe that the station diary which was not produced ought to have been considered as a F.I.R. This aspect of the case has also been considered by the learned trial Court. It appears that before the Investigation Officer P.I. Raut/PW14 proceeded to record the said complaint, he had with him the details, as conveyed to him by ASI Balikar of another Police Station(Ponda) to the effect that two persons, namely Vishnu and Sukdow had assaulted the said Krishna and whereupon he had proceeded to the spot and had kept the policeman to guard the scene, and then proceeded to Central Hospital at Tisk, Usgao, and then to Goa Medical College, Bambolim where he had recorded the complaint, and after recording the said complaint-Exh.PW1/A he returned to Collem Police Station and registered Crime No.2/2001 at 13.15 hours on 6-1-2001, and thereafter the scene of offence panchanama was conducted. The said P.I.Raut Dessai/PW14 had admitted that he 7 had realized that a crime had taken place in his jurisdiction, and had further stated that he had made a station diary entry and proceeded to the spot at Tatodi, and then to the Central Hospital, and then again to Goa Medical College, Bambolim. Whether the station diary made by him or the complaint written down by Krishna Kurtikar was treated to be as F.I.R. was only an academic exercise, as it is not the case of the defence that the information which P. I. Dessai had with him before proceeding to the scene of offence was in any way contrary to the information recorded in writing from the said Krishna Kurtikar who otherwise had no reason whatsoever, to falsely implicate the accused, being his own relatives and neighbours. 12. Learned Counsel has further submitted that Krishna Kurtikar had not stated in his complaint that he had identified the accused in the source of moonlight, and, therefore learned Counsel submits that there is perversity in that regard. As already stated, the accused were related to the said Krishna Kurtikar and were his neighbours with whom he had even pleaded not to assault him as he had a child and as such it would not have been difficult for him at all to identify his assailants, the accused. In any event, it has to be considered that this is a matter concerning appreciation of evidence which cannot be considered in revisional jurisdiction. 13. Lastly, to scale down the conviction from Section 307 to Section 325 r/w 34 I.P.C., it is submitted that even if the said Krishna Kurtikar was first 8 assaulted with the danda, which according to the learned trial Court was 55” long and with a sword which was 34” long, the evidence shows that thereafter both the accused had left the said weapons and had assaulted him with fist blows, and, therefore learned Counsel submits that no intent or knowledge to cause death could be attributed to the accused. This matter has also been considered by the learned trial Court. As can be seen from the injuries particularly injury no.2 which was a laceration on the occipital region, it was 2 cms. deep and on a vital part of the body, namely the head which shows that it was given with a considerable force. Learned trial Court had placed reliance on the case of State of Maharashtra v. Balram Bama Patil and others(AIR 1983 SC 305) wherein the Apex Court had stated that although the nature of the injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even in some cases, be ascertained without any reference at all to actual wounds. The Apex Court has stated that it is sufficient in law, if there is present an intent coupled with an overt act in execution thereof. In the case at hand, the said Krishna Kurtikar was assaulted as he was going on his scooter, without a danda on the back of his head, a vital organ of the body, as noted by the trial Court. The said Krishna Kurtikar was chased and assaulted again and accused no.1 assaulted with a danda, and accused no.2 with a sword on his face as a result he had injuries on the head and neck. Thereafter, he fell unconscious, and as rightly observed by the learned trial Court the accused left the place only after the said Krishna Kurtikar had fallen unconscious but otherwise was saved on account of timely 9 arrival of the witnesses. The aforesaid facts are sufficient to bring the case under Section 307 r/w 34 I.P.C. In other words, the accused having assaulted the said Krishna with deadly weapons, on a vital part of the body, and having left the place only after Krishna had fallen unconscious, intention or knowledge ti cause death can be attributed to the accused. It appears that the incident took place because of property dispute between the mother of Krishna Kurtikar and the brother of accused no.1 about eight days prior to the incident which dispute was subsequently settled between them, and which fact has not been taken into consideration by both the Courts below in imposing the sentence against the accused. 14. Considering the gravity of the assault, the sentence imposed by the learned trial Court on the accused cannot be considered to be severe for its further reduction. In the circumstances, I find there is no merit in this revision and consequently the same is hereby dismissed. The Applicants/Accused to surrender to the trial Court to undergo the sentence. N. A. BRITTO, J. RD