1 APEAL-OJ-1141.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPEAL NO.1141 OF 2009 Vijay Prakashlal Chauhan, Age 35 years, r/o C-6, Room No.3, P.N.T. Colony, Sahar Road, Andheri (E), Mumbai-99. .... Appellant - Versus - The State of Maharashtra .... Respondent Ms Shaikh i/b Shri Khan Abdul Wahab for the Appellant. Ms Rajeshree Gadhvi, Addl. Public Prosecutor, for the Respondent-State. CORAM: R.C. CHAVAN, J. DATED: NOVEMBER 30, 2011 ORAL JUDGMENT: 1. This appeal is directed against the appellant s conviction by the learned Additional Sessions Judge, Mumbai for the offence punishable under Section 307 of the Indian Penal Code (for short, IPC ) and sentence of rigorous imprisonment for 5 years with fine of Rs.5,000/-, or in default to suffer further rigorous imprisonment for six months imposed upon the appellant on conclusion 2 APEAL-OJ-1141.09 of Sessions Case No.451 of 2009 before the learned Sessions Judge. 2. Facts which are material for deciding this appeal are as under: The appellant was running a mobile telephone shop. The victim was serving in his shop. The appellant seems to have been attracted to the victim and there was, according to the prosecution, one sided love affair. The victim left the employment of the appellant and took up employment at the airport. Her duty hours were 8:00 p.m. to 8:00 a.m.. On 25-3-2009 when she was returning from her duty and was proceeding to her house by staircase, the appellant called her. The victim refused to talk to the appellant and this eventually led to the appellant hitting the victim with a sharp weapon at several places, including the throat. This led to bleeding injuries on the victim, who was shifted to Holy Spirit Hospital by persons around. The appellant had run away. On a report by the victim, the appellant was arrested. In the course of interrogation of the appellant, he agreed to produce the knife which was used in the commission of the offence, as well as 3 APEAL-OJ-1141.09 clothes, which were seized. The police had caused panchnama of the spot to be drawn up, recored statements of witnesses, seized the victim s clothes, sent the seized articles to the Forensic Science Laboratory and on completion of the investigation, charge-sheeted the appellant before the learned Metropolitan Magistrate, 22nd Court, Andheri, Mumbai, who committed the case to the Court of Sessions. 3. The learned Additional Sessions Judge, to whom the case was made over, charged the appellant of the offence punishable under Section 307 of the IPC. Since he pleaded not guilty, he was put on trial at which the prosecution examined in all six witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of denial, the learned Judge convicted and sentenced the appellant, as mentioned earlier. Aggrieved thereby, the appellant is before this Court. 4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, APP ) for the State. With the help of both the learned counsel, I have gone through the entire record. 4 APEAL-OJ-1141.09 5. PW-1 Preeti is the victim, who states about her employment with the appellant and the incident of 25-3-2009 when she was repeatedly stabbed by the appellant. In the course of her cross-examination, it was sought to be suggested to the victim that the victim and the appellant had a love affair and that the victim wanted to marry the appellant. It was suggested that it was in fact the victim s mother who was opposed to such alliance and that the appellant s mother and sister liked the victim. The victim admitted that she was liked by the appellant s family members, but denied that she was in love with the appellant or that she wanted to marry the appellant. She stated that she used to meet the appellant once in a while even after she left the appellant s job, though she denied that she used to roam about with him. However, the cross-examination stops at this and does not go further to suggest that the appellant had been jilted by the victim and therefore he had been animus. On the other hand, it has been suggested to the victim that when she was talking with the appellant, some unknown person snatched her purse and in that snatching she got injury on her neck and abdomen. In that case, the appellant should 5 APEAL-OJ-1141.09 have been the first person to take the victim to the hospital and also try to catch the person who snatched the purse or at least go to the police and report the incident. But this does not seem to have happened. Though the learned counsel for the appellant sought to suggest that the appellant was not involved in the attack, there would be obviously no reason for the victim to state about the complicity of the appellant if, according to the appellant, the victim was in love with him and if the appellant was only having an innocent chat with the victim. 6. As rightly pointed out by the learned APP, this is not all. The knife which was seized at the instance of the appellant pursuant to memorandum of the appellant s statement recorded by PW-6 PI Gurav in the presence of PW-4 Raju Thakur and which was sent by PI Gurav to the Forensic Science Laboratory shows that it had blood stains, though the Laboratory could not ascertain the blood group. Therefore, the word of the victim is duly corroborated by this discovery, apart from the fact that there would be obviously no reason for the victim to name a wrong person as her assailant, and in any case if the victim and 6 APEAL-OJ-1141.09 the appellant had an affair, there would be no reason for the victim to wrongly name the appellant as the assailant. Thus, the authorship of the injuries on the victim was rightly attributed to the appellant by the learned trial Judge. 7. PW-2 Dr. Sahu had examined the victim and had proved the certificates issued by him at Exhibits-14 and 15. The learned counsel for the appellant had a very strong objection to reliance on this evidence, since she states that the certificates are inconsistent and the injuries mentioned in the two certificates do not tally. She submitted that, in the first certificate dated 25-3-2009, which is at Exhibit-14, there is a reference to only four injuries, two on the side of the neck and throat and two on the flank to the waist. The certificate at Exhibit-15 refers to five injuries. She submitted that the evidence of Dr. Sahu would show that the victim had seven injuries, as stated by him in his deposition. As rightly pointed out by the learned APP, there is no inconsistency in the two certificates as well as the evidence tendered before the Court. The 5th injury in the certificate Exhibit-15 is a sutured injury, 7 APEAL-OJ-1141.09 possibly a surgical injury in the course of treatment. As far as the first four injuries are concerned, they are incised wounds in the anterior part of the neck 5 cm x 2 cm in length, which were fresh and bleeding and muscle deep. There was a linear incised wound on the left side of the neck 10 cm in length, fresh and muscle deep; in the occipital region, a similar injury was 5 cm and muscle deep; a penetrating injury on the left iliac fossa was 2.5 cm in length and 7.5 cm deep. The other penetrating wound on the left flank, just down the left rib was 1.5 cm in length and 13 cm deep. The learned APP rightly submitted that it was only a providential escape for the victim that in spite of this 13 cm deep injury, her vital organs were not injured. Dr. Sahu stated that the abdominal injury was sufficient to cause death, if not treated in normal course. Considering the nature of the injuries observed by the doctor, it would be impermissible to hold that the learned Judge erred in concluding that the injuries were inflicted with the intention to cause the victim s death. The learned counsel for the appellant submitted that the injuries may, at worst, be taken to be those inflicted by a sharp weapon and could attract the provisions of Section 324, or at 8 APEAL-OJ-1141.09 worst, Section 326 of the IPC. This argument is to be rejected because the nature of the injuries shows that they were inflicted with the intention to cause death. 8. The learned counsel for the appellant relied on a Judgment of the Supreme Court in Neelam Bahal & Anr. v. State of Uttarakhand, reported in AIR 2010 SC 428. In that case, after the altercation the victim had suffered two injuries by a knife. After trial, the accused had been convicted for the offence under Section 307 of the IPC. It was submitted before the Supreme Court that since the doctor, who was examined at the trial, had not given any categorical opinion as to the injury, the conviction could be one under Section 323 or Section 324 of the IPC and that since the victim was in hospital for 15 days, the Supreme Court held him guilty for the offence under Section 326 of the IPC. Such is not the present case. Here PW-2 Dr. Sahu has categorically stated that the injuries were life threatening. This is not a case of single injury. The appellant had inflicted multiple stab wounds on the victim and therefore it would be difficult to attribute any intention other than that to cause death could to the appellant. Therefore, 9 APEAL-OJ-1141.09 reliance on the Judgment of the Supreme Court in Sarju Prasad v. State of Bihar, reported in AIR 1965 SC 843, is also equally unhelpful to the appellant. The prosecution had also examined Shri Dinkar Sonawane, Special Executive Officer, before whom the test identification parade was held which was unnecessary, since the victim knew the assailant. 9. In the light of the foregoing discussion, the conviction of the appellant for the offence punishable under Section 307 of the IPC recorded by the learned trial Judge cannot at all be faulted. The learned counsel for the appellant next submitted that in the context of the facts in which the offence was committed, the sentence of rigorous imprisonment for 5 years imposed upon the appellant is too harsh. She submitted that the appellant has already suffered imprisonment for 2-years and 8-months which would come to something more than 3 years with remission. She submitted that the sentence could be reduced to that undergone and for this purpose sought to rely on some Judgments of the Supreme Court. 10. In Harbans Singh v. State of Punjab, 10 APEAL-OJ-1141.09 reported in 2000 (10) JT 300, the Supreme Court had reduced sentence of rigorous imprisonment from 3 years for the offence punishable under Section 307 of the IPC to 1 year and 6 months, which the accused had already undergone. This was in the context of the facts unfolded in that case which are not part of the report. Therefore, it would be hazardous to draw any conclusion that in all cases under Section 307 of the IPC, the sentence should be imprisonment for two years. 11. In Shanabhai Dhulabhai Parmar v. State of Gujarat, reported in AIR 1977 SC 1338, the Supreme Court reduced the sentence of rigorous imprisonment from 5 years to rigorous imprisonment for 2 years for the offence punishable under Section 307 of the IPC, since there was a delay of 14 years in prosecuting the accused. Such is not the present case. 12. In Rajendra Harakchand Bhandari & Ors. v. State of Maharashtra & Anr., reported in 2011 (4) Scale 450 = 2011 (4) JT 137, the accused had undergone two-and-half years of sentence in respect of an incident which took place 20 years ago. The Court noted that the parties had been living in peace for 11 APEAL-OJ-1141.09 all these years and therefore reduced the sentence. It cannot, therefore, be said that the Judgment would be an authority for the proposition that in a case of the type at hand the sentence could be reduced to that undergone. 13. In Rajendra Prasad v. State of Bihar, reported in AIR 1987 SC 1335, on which the learned counsel for the appellant placed reliance, an old man had caused a gun-shot injury by a firearm in the heat of moment. The incident was 10 years old and therefore the sentence was reduced from rigorous imprisonment of 3 years to rigorous imprisonment of one-and- half years. Such is not the present case. Here is a major person of 35 years who was neither young enough to indulge in indiscretion nor old enough to lose his temper. Therefore, this Judgment is also not helpful to the appellant. 14. Considering the genesis of the incident and the manner in which the appellant had inflicted multiple incised wounds on the victim, it cannot be said that the sentence of rigorous imprisonment for 5 years imposed upon the appellant by the learned trial Judge is excessively harsh. Therefore, it does not call 12 APEAL-OJ-1141.09 for any interference. The appeal is consequently dismissed. (R.C. CHAVAN, J.)