1 Cri.Revn.Appln.No./241/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.241 OF 2011 WITH CRIMINAL APPLICATION NO.4770 OF 2011 Vishwanath s/o Uttamrao Khapare ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri M.P. Kale, Advocate for the applicant Mrs. R.K. Ladda, A.P.P. for respondent No.1. ..... CORAM : U.D. SALVI, J. DATED : 22nd & 24th November, 2011. PER COURT : 1. Heard. Perused revision application and the annexures thereto. 2. Legality and propriety of the judgment and order of conviction of the accused under Sections 307 and 504 of the Indian Penal Code, 1860 and consequent sentence on each count, passed by the learned Assistant Sessions Judge, Parbhani in S.T. No.89/2008 on 18.12.2010 as well as the judgment confirming the said conviction and sentence passed by the Sessions Judge, 2 Cri.Revn.Appln.No./241/2011 Parbhani in Criminal Appeal No.76/2010, on 22.9.2011, is questioned in the present criminal revision application. 3. A Crime at C.R. No.21/2008 under Sections 307, 504 of the Indian Penal Code came to be registered against the applicant with Bori Police Station upon the complaint made by one Madhukar Khapare on 23.3.2008. The complainant Madhukar Khapare alleged that, on 23.3.2008, while he was walking out of the temple of Goddess Jagdamba around 7.00 a.m. and proceeding towards his residence, he was assaulted by the applicant/ accused Vishwanath with sickle from the back side; and he had sustained the first blow of the sickle on the neck from his back side and when he turned around, he sustained two more blows on his right hand in the process of his effort to ward off the blow on his stomach. 4. Mr. Kale, learned Advocate for the applicant submitted that, at this stage, he had no quarrel about the occurrence of the incident, but certainly disputed the application of the provisions of Section 307 of the Indian Penal Code, 1860 to the facts, both by the trial Court as well as the appellate Court. To substantiate his submissions, he invited the attention of this Court to the testimony of P.W.1 Madhukar, the victim and the Medical Officers namely P.W.4 Dr. Seema Panad, P.W.8 Dr. Sangita Puri, P.W.9 Dr. 3 Cri.Revn.Appln.No./241/2011 Parmeshwar Salve. According to him, the learned trial Court as well as the appellate Court had completely misinterpreted the medical evidence and had found the application of Section 307 of the Indian Penal Code sustainable in the present case. In his opinion, the medical evidence failed to reveal that the victim had sustained any fracture or any injury which hospitalised the victim for 20 days and as such, the appellant/ accused ought not to have been convicted for the offence punishable under Section 307 of the Indian Penal Code, 1860 and at the most, could have been convicted under Section 324 of the Indian Penal Code, 1860. 5. The learned A.P.P. for the State submitted that the victim had sustained grievous injuries on the vital parts and as such, the intention to attempt murder of the victim is apparent from the evidence on record. 6. Submissions of the rival parties call for survey of the evidence of the victim and the medical evidence in order to assess the propriety and correctness of the application of Section 307 of the Indian Penal Code, 1860 in the present case. P.W.1 Madhukar Khapare deposed that while he was getting down from the temple of Goddess Jagdamba on 23.3.2008, he had seen the accused holding his hands back; and no sooner he had reached house of 4 Cri.Revn.Appln.No./241/2011 one Ramkisan Khapare, the appellant/ accused came from behind and inflicted blow below the right side ear and neck and thereupon he turned around and saw the accused holding the sickle in his hand. He further deposed that he thereafter tried to save himself from further sickle blows by his right hand and in the process, had received two more blows of sickle given by the appellant/ accused on the elbow of palm of the right hand; and thereafter he had received the fourth blow of sickle from the accused on his left side ribs below the chest. His evidence further reveals that he was initially removed to Government Hospital, Bori, where he received medical aid and was thereafter confined as indoor patient for 7 days in the Civil Hospital, Parbhani. 7. P.W.4 Dr. Seema Panad deposed that, she was the duty Medical Officer at Rural Hospital, Bori on 23.3.2008 and had noticed the following injuries on the person of P.W.1 Madhukar Ganeshrao Khapare, and accordingly, issued the medical certificate (Exhibit 42) : 1. C.L.W. over neck right side, it was grievous injury caused by sharp object and age of the injury was within 6 hours. 5 Cri.Revn.Appln.No./241/2011 2. C.L.W. on abdomen from left side of size 2 x 1 x 1 cms. Nature of injury is grievous, caused due to sharp weapon, age of injury is within 6 hours. 3. C.L.W. on right hand with fracture to bone nature of injury is grievous and caused due to sharp weapon. Age of injury is within 6 hours. 8. In her cross-examination, she revealed that she had not opened the injuries, but merely had a visual survey of the injuries. In her re-examination, she disclosed that so far as the wound on the neck was concerned, she saw possibility of cutting of carrotid artery and there was profused bleeding; and as regards the abdominal injury, and the injury on the right hand, she had noticed bleeding and bone deep right hand injury and, therefore, she had opined them as grievous injuries. Her further cross-examination revealed that, she had suspected that there was puncture to the carrotid artery and, therefore, she opined that the nature of injury was grievous and so was the case with abdominal injury. She added that, she had not taken the X-ray of the right hand and, therefore, could not say whether there was a fracture of the bone or not. Her evidence, therefore, is not a critical assertion of the fact that the victim had sustained fracture or grievous injury within the meaning of Section 320 of the Indian Penal Code, 1860. P.W.5 Dr. 6 Cri.Revn.Appln.No./241/2011 Kedar Khating, who happened to examine the victim on 12.4.2008, deposed that, there was a fracture to third metacarpal of the finger of the victim P.,W.1 Madhukar Khapre. He produced X-ray plates Exhibits 49 and 50. According to him, the fracture to the metacarpal could be caused by means of sickle if the blow was inflicted forcefully. 9. The evidence of P.W.8 Dr. Sangita Puri discloses that she happened to examine the victim P.W.1 Madhukar Ganeshrao Khapare at Civil Hospital, Parbhani on 23.3.2008 and had noticed the following injuries on the victim : 1) Incised wound over right lateral side of the neck admeasuring 1 cm. x .5 cm. 2) Incised wound over left infra maxillary area 1 x .5 cms. 3) Incised wound over dorsum of right palm between third web space measuring 3 cms. X .5 cm. superficially. 4) Incised wound posterior side of right forearm measuring 1 cm. x .5 cm. superficial. 10. From the record, she deposed that, the nature of all the injuries was simple and the injury No.1 was inflicted on the vital part of the body of the injured. In her opinion, if the injury No.1 had 7 Cri.Revn.Appln.No./241/2011 been inflicted with full force, death could have been ensued and considering nature of all the injuries, death was not possible and the injury had not caused damage to the vital part of the body of the patient. Evidence of Dr. Sangita Puri signifies that, none of the injuries were capable of leading the victim to death and death could have only ensued if the injury no.1 i.e. the injury to the neck was inflicted with full force. As a corollary, it means that the injury was not inflicted with full force, thereby signifying the intention of the offender that he did not intend to cause death of the victim. 11. P.W.9 Dr. Parmeshwar Salve deposed that he had examined the victim – Madhukar Ganeshrao Khapare at Civil Hospital, Parbhani and noticed the following injuries: 1) Incised wound on right side of neck of size 2 x 2 x 2 cms. Vertical direction. 2) Incised penetrating wound on left hypochondriac region of size 2 x 2 x 3 cms. Evidence of fracture of ribs 3) Sutured Incised wound on right hand. 12. According to him, the injury No.2 was grievous in nature and death would have ensued if it was inflicted with full force. In his opinion, neck and ribs of human body are vital parts. 8 Cri.Revn.Appln.No./241/2011 However, in the cross-examination, he deposed that, the injuries noted by him were not sufficient in ordinary course to cause death. He admitted that the victim was kept as indoor patient on his directions, between 23rd and 29th March 2008 and no abnormility was found with the patient during his hospitalisation. It appears that, P.W.9 Dr. Salve was ready to produce the X-ray plates concerning the examination of the victim. However, no serious efforts were made by the defence to counter the observations made by P.W.9 Dr. Salve with reference to those X-ray plates and as such, a fact cannot be denied that the victim had sustained fracture of ribs. 13. From the total survey of the medical evidence, there is no reconciliation of the injury noticed by P.W.5 Dr. Kedar Khating with those noticed by P.W.4 Dr. Seems Panad, P.W.8 Dr. Sangita Puri and P.W.9 Dr. Parmeshwar Salve, learned A.P.P. was also not in a position to reconcile the injuries noticed in the medical evidence. On this background, the submission of Mr. Kale, learned counsel for the applicant that the injury to third metacarpal on the finger noticed by P.W.5 Dr. Kedar on 12.4.2008 i.e. after the discharge of the victim from Civil Hospital, Parbhani, was likely to have been caused subsequently seems to be tenable, more so in view of the evidence of P.W.5 Dr. Kedar that the fracture to metacarpal bone can be caused due to fall on hand. 9 Cri.Revn.Appln.No./241/2011 14. However, amidst the cacophony of the medical evidence a clear fact stands out that there was a fracture sustained by the victim on the ribs and none of the injuries could have possibly caused death of the victim in ordinary course. If such medical evidence is read in conjunction with the oral testimony of the victim, it can be seen that the application of Section 307 of the Indian Penal Code, 1860 was inappropriate. Nonetheless, the aforesaid discussion reveals that the provisions of Section 326 of the Indian Penal Code, 1860 are attracted in the present case. 15. On this backdrop, learned Advocate for the applicant submitted that the applicant/ accused deserves to be dealt with leniently as he is young person with family to support and there has been no criminal history to his credit. Learned A.P.P. for the State submitted that the imposition of the sentence is the matter which is governed by the discretion of the Court. 16. Though the sentence for the offence under Section 326 of the Indian Penal Code is virtually the same as for the offence under Section 307 of the Indian Penal Code, it can be seen that sentence of seven years R.I. leans towards the maximum and needs to be tempered particularly when the applicant is a young 10 Cri.Revn.Appln.No./241/2011 person with family to support and there has been no criminal history to his credit. 17. Criminal Revision Application is, therefore, partly allowed. Conviction of the applicant/ accused under Section 307 of the Indian Penal Code, 1860 and sentence consequent thereto is set aside. The applicant/ accused is convicted of the offence punishable under Section 326 of the Indian Penal Code, 1860 and is sentenced to suffer five years R.I. and to pay a fine of Rs.1000/- (Rupees one thousand), in default of payment of fine, to undergo further R.I. for six months. Conviction and sentence under Section 504 of the Indian Penal Code is maintained. 18. In view of the disposal of this Criminal Revision Application, the bail application, being Criminal Application No. 4770/2011 stands disposed of. ( U.D. SALVI, J. )