1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.394 OF 2006 Chandrakant @ Chandya @ Chandu Bhagwat Damore. ..Appellant. V/s. The State of Maharashtra ..Respondent. Ms.Pooja Bhojane for Appellant. Mr.V.B.Konde-Deshmukh, APP for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 7, 2008. DATE : APRIL 7, 2008. DATE : APRIL 7, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. Perused the documents on record. 2. This Appeal takes exception to the Judgment and Order passed by the Additional Sessions Judge, Greater Bombay dated 13th February, 2006 in Sessions Case No.450 of 2005 convicting the Appellant for offence punishable under Section 307 of I.P.Code and sentenced him to suffer R.I. for four years and to pay fine of Rs.1,000/- i.d. to suffer R.I. for three months. The incident in question took place on 1st March, 2005. The prosecution case is that the Appellant caused assault on Abdul Hamid Imtiyaz Mulla @ Pape with gupti; thereby punctured the stomach 2 region. As a result of which, even the intestine was protruding out of the punctured stomach. The Complainant in such condition caught hold of rickshaw and on his way stopped near the police station where constable P.W.5 Uttam Thakar accompanied him till Rajawadi Hospital, where the Complainant was taken to Rajawadi hospital and admitted as indoor patient and disclosed the cause of injury due to assault. As the injury caused to the Complainant was serious, the Medical Officer of the Rajawadi Hospital advised to take the Complainant to KEM Hospital. Accordingly, the Complainant was then taken to KEM Hospital. On 11th March, 2005, the Complainant was immediately discharged from hospital on 21st March, 2005. According to the prosecution, the Appellant was initially absconding and was arrested on 13th March, 2005. After his arrest the weapon used during the commission of offence was recovered from the house of the Appellant on 19th March, 2005. After the investigation was completed, police filed charge-sheet against the Appellant for offence punishable under Section 307 of I.P.Code, 37(1)(3) r/w.135 of the Bombay Police Act. As the case was triable by Sessions Court, the matter was remitted to and later on registered as Sessions Case No.455 of 2005. The Appellant pleaded not guilty to the charge 3 and came to be tried. The prosecution examined six witnesses in support of its case, besides relying on documentary and other evidence. The trial Court on analysing evidence on record by the impugned Judgment and Order has accepted the evidence on P.W.2 being trustworthy and has further found that the said version is corroborated by the medical evidence of P.W.1 and P.W.3. The trial Court has opined that whether there was any discovery of weapon or no discovery of weapon would hardly matter in the fact situation of the present case. Having regard to the clinching evidence on record and especially given by the injured witness himself, which is corroborated by the medical evidence. The trial Court for that reason did not give much importance to the evidence of P.W.4 Sanjay Patil and proceeded to hold that the evidence of P.W.2, P.W.1 and P.W.3 was more than sufficient to record finding of guilt. The trial Court has further found that for the nature of injury caused to the Complainant, it was more than evident that intention of the assailant was to cause such bodily injury to the Complainant, which will result in his death. On such finding, the trial Court recorded finding of guilt against the Appellant for offence punishable under section 307 of I.P.Code. 4 3. Insofar as the charge regarding offence under section 37(1) (3) r/w 135 of Bombay Police Act, the trial Court acquitted the Appellant/accused for want of evidence. The above view taken by the trial Court is a subject matter of the Appeal. 4. After having considered, rival submissions and going through the relevant evidence on record with the assistance of the Counsel appearing for the parties, I have no hesitation in taking the view that present appeal is devoid of merits. Indeed, the Counsel for the Appellant is at pains to persuade the Court that the medical evidence did not support the case of the prosecution, rather it would create doubt regarding cause of injury caused to the complainant on account of fall, for which reason the Appellant should be given benefit of doubt. It was also contended that no satisfactory explanation is forthcoming as to what prevented the Investigating Officer to take search of the Appellant’s house immediately on the day of incident or when the Appellant was arrested. Instead, the weapon in question has been recovered from the house after six days from the date of the arrest of the Appellant. It was also argued that the weapon though seized was not forwarded to the Chemical Analyser soon 5 thereafter, but almost after six months, which lapse has not been explained by the prosecution at all. Attempt of the learned Counsel was to persuade the Court to take the view that the recovery of weapon from the house of the Appellant be discarded and the Appellant be given benefit of doubt as the prosecution failed to establish discovery of any weapon from the Appellant. 5. The argument canvassed on behalf of the Appellant though attractive does not commend to me. It clearly overlooks the nature of evidence, that is available. The evidence of injured witness clearly indicates that there was previous enmity between the Appellant and the Complainant, on account of which the Appellant gave gupti blow to the Complainant on his stomach region which resulted in causing serious injury, due to which even intestine of the Complainant protruded out of the punctured stomach. The fact that such injury was caused and the Complainant was immediately rushed to the hospital and admitted as indoor patient has also been established from the evidence of P.W.1 and P.W.3 the medical officers. While admitting the Complainant in the hospital, it was disclosed that the injury was caused due to the assault. The evidence of P.W.1 and 6 P.W.3 graphically describes the nature of injury caused to the Complainant. The Medical Officers have clearly stated that the injury was fatal and not a simple injury as suggested during the cross-examination. In the Cross-examination of the Medical Officers all that was suggested by the defence was that the injury caused to the Complainant was possible due to fall on sharp edged weapon. There is no further suggestion in the cross-examination that the injury sustained by the Complainant was in fact the result of fall of the complainant on a sharp edged weapon. Thus understood, the suggestion so given in the cross-examination does not take the matter any further. The evidence of P.W.1, P.W.2 and P.W.3 has been carefully analysed by the trial Court to conclude that there was no reason to doubt veracity of the version of P.W.2 that the injury so caused was by the Appellant and none else. There is no reason to doubt the correctness of the said finding. There is also no reason to doubt correctness of the finding of the trial Court that the nature of injury was such, that would clearly indicate intention of the Appellant was to cause death of the Complainant. I am in complete agreement with the opinion recorded by the trial Court that the fact that discovery of the 7 weapon is established by the prosecution or otherwise would not make any difference to the case on hand as the prosecution has substantiated its case that the Appellant was assailant and was responsible to cause injury to the Complainant, which injury was main injury and intended to cause death of the Complainant. On this finding, no further enquiry into the matter is necessary. The argument of the Appellant that the recovery is doubtful or that the weapon recovered was not sent to the Chemical Analyser in time would not make any difference as the recovery would have been relevant only to support the prosecution case. The substantive evidence of P.W.2 has gone unchallenged. The version of P.W.2 has been corroborated by the medical officers’ evidence. Taking overall view of the matter, finding of guilt recorded by the trial Court against the Appellant in respect of the offence under section 307 of I.P.Code is unquestionable. 6. The only other argument, that has been canvassed on behalf of the Applicant is that the Appellant has already suffered substantial part of imprisonment-over three years, as he was in custody since 13th March, 2005. Besides the actual period undergone, the Appellant would also be entitled for 8 remission which would be about six months. In other words, the Appellant has already undergone aggregate sentence of over three and half years. In my opinion, the fact that the Appellant has already undergone sentence of over three and half years can be no basis to reduce punishment. The trial Court has given good reason for awarding sentence for a period of four years and directing the Appellant to pay fine in the sum of Rs.1,000/- i.d. to suffer further R.I. for three months. There is no reason to overturn the opinion recorded by the trial Court for imposing this punishment having regard to the fact situation of the present case. In fact the trial Court has already taken liberal view in the matter by imposing only four years of imprisonment for offence which is punishable upto life, if the fact of the case so warrants. I am not inclined to reduce the period of sentence awarded by the lower Court for the aforesaid reason. 7. In the circumstances, this Appeal fails. The same is dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)