1 CriAppeal-250-05.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINALAPPEAL NO. 250 OF 2005 Macchindra @ Machhya Ganpat Gholap ) at present lodged at Yerawada Central ) Prison, B Yard, Yerawada - Pune 411 006. ).. Appellant (Orig.Accused No.1) Vs. State of Maharashtra ) Through Vishrantwadi Police Station) .. Respondents Smt. Rita Kapur, Advocate Appointed for the Appellant - Absent. Ms. M.H.Mhatre, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 5th August, 2010. JUDGMENT: 1. The accused has preferred this Appeal through jail challenging the Judgment and order dated 7.1.2004 passed by the 14th Adhoc Assistant Sessions Judge, Pune, in Sessions Case No. 390/2003 whereby the accused was convicted for the offence punishable under Section 307 IPC and was sentenced to undergo R.I. for seven years and to pay fine of Rs.5,000/- and in default to undergo simple imprisonment for six months. 2 CriAppeal-250-05.sxw 2. The prosecution case, in brief, is that PW-1 Amol Shivappa Kamble, the injured, was returning from his work on 5.9.2003 at about 5.30 p.m. At that time, the present accused, who is also resident of the same locality, was with him. At about 7 to 7.30 p.m. they went for a walk. When they were on Pune-Alandi Road, near water supply, the accused whipped out a knife and repeatedly assaulted PW-1 Amol. Several injuries were caused, including a stab wound on the abdomen. He fell on the spot with several bleeding injuries. he was taken to Sassoon Hospital by his brother-in-law, Suresh Shinde, where he was examined and admitted. At the Hospital, police recorded FIR of Amol Kamble and on that basis, offence was registered. During investigation, police recorded spot panchnama, collected blood mixed earth from the spot of the incident. Clothes of the injured Amol were also seized and sealed. During investigation, accused came to be arrested. His blood stained clothes were also seized and sealed. On the basis of information given by the accused, a knife was recovered and seized. All these articles were referred to the C.A. After investigation, police filed charge- sheet against the accused under Section 307 IPC. The case was committed to the Court of Sessions for trial. 3. Charge was framed against the accused under Section 307 IPC. He 3 CriAppeal-250-05.sxw pleaded not guilty. His defence was of total denial. On behalf of prosecution in all 7 witnesses were examined and some documents were placed on record. After hearing the evidence of prosecution and the arguments of both sides, the learned Assistant Sessions Judge convicted and sentenced the accused as stated above. 4. Heard the learned APP for the State and perused the record and proceedings of the trial Court. Unfortunately, the Advocate appointed for the accused to conduct the appeal did not appear. 5. PW-1 Amol Kamble is the only eye-witness of the incident. His evidence reveals that on 5.9.2003 at about 5.30 p.m. he was returning from his work along with his friend PW-2 Sanosh. At Vishrantwadi, the accused also met them and they were chit-chatting on the way. From his evidence, it appears that the accused had some illicit relations with another boy Nilesh and, therefore, during the chit-chatting, Amol said that they all could committed rape on Nilesh. He reached home at 6.30 p.m. and after getting fresh,he came out from the house. At that time, the accused was also seen near the house of PW-1 Amol and accused suggested PW-1 Amol to come for a walk. They walked for about 2 kms. from his house towards Vishrantwadi. At about 7.30 p.m., when PW-1 Amol and accused reached near the water supply, the accused abruptly whipped out a knife 4 CriAppeal-250-05.sxw and stabbed on his abdomen. After that he assaulted repeatedly and caused several injuries saying as to why Amol was teasing his niece. During that assault, he suffered several injuries on his waist, thigh, left ribs, shoulder and chest. His T-shirt and pant were also torn. Due to these injuries, he fell unconscious and when he regained consciousness, he was at his house and from there he was taken to Sassoon Hospital by his brother-in-law Santosh. At the Hospital, police came and recorded his FIR. 6. Evidence of PW-3 Dr. Abhay Khadke shows that he was on duty at Sassoon Hospital on 5.9.2003. At about 9.50 p.m., one Suresh Shinde brought PW-1 Amol to the Hospital in injured condition with history of assault. On examination, he found following injuries on his person :- "(1) Stab would on interior abdominal wall. 3 cm. it was simple injury, caused by sharp pointed two edge weapon. (2) Incised wound on right chest bone at nipple level. 2 cm., simple in nature, caused by sharp pointed two edge weapon. (3) Incised wound on left chest wall. 3 cm x 1.5 cm. simple in nature caused by sharp pointed two edge weapon. (4) Incised wound left axilla. 5 x 3 x 2 cm. simple in nature caused by sharp pointed two edge weapon. (5) Incised wound on the left scapula. 2 x 1 x .5 cm. 5 CriAppeal-250-05.sxw simple in nature caused by sharp pointed two edge weapon. (6) Incised wound on posterior abdominal wall above left iliac crest. 3 cm. simple in nature caused by sharp pointed two edge weapon. (7) Abrasion in the midline lateral to curvical vertebrae 2 cm. simple in nature, caused by hard or blunt object. (8) Incised wound left occipital region. 6 x .5 x. .5 cm. caused by sharp pointed two edge weapon, simple in nature." On performing operation, he found that the colon i.e.large intestine was perforated with two perforations. There was a mesenteric tar at two places with heavy blood loss. The operation was performed by Dr. Padmasen, Senior of Dr. Abhay Khadke. He produced all the medical papers of PW-1 Amol marked Exhibit 17. As per his evidence, all these injuries could be caused with a sharp cutting weapon like a knife. In view of the injury No.1 i.e. stab wound on the abdomen, the length of the weapon must be 7 cm. The medical officer was cross- examined at length, but he could not be shattered. His evidence shows that with the injuries, and particularly injury No.1 with internal wounds and blood loss, death would have been caused if timely treatment would not be provided to him. 7. From the above evidence, it is clear that Amol was assaulted with knife and several injuries were caused. At least one of the injuries could be fatal. 6 CriAppeal-250-05.sxw 8. Evidence of PW-7 PSI Kachru Gaikwad reveals that he recorded spot panchnama Ex.21 and collected blood mixed earth and plain soil from the spot. Evidence of PW-5 - Harischandra Nanak and PW-7 PSI Gaikwad shows that the accused was arrested on 6.9.2003 and at that time, his shirt and pant were seized under a panchnama, Ex.23. On the same day, he was interrogated and he agreed to produce the weapon which was used for commission of offence. It was recorded as memorandum Ex.24. Thereafter, the accused took police and panchas near the spot of incident and he produced a knife from near Babul tree. The knife article 7 was seized under a panchnama Ex.24A. Whole of the property was referred to C.A. As per the C.A. report, the clothes of PW-1 Amol and earth seized from the spot revealed that they were stained with human blood. On the full pant of Amol and shirt and pant of the accused, human blood of Group "A" was found. On the knife also, the human blood was found. Blood of the injured Amol was of Group "A" as per the C.A. report Ex.15C. From this, it is clear that the blood of Amol was found not only on the spot and his own clothes, but also on the clothes of the accused. This provides corroboration to the testimony of Amol. 9. It may be noted that according to Amol, the knife Article 7 was not the weapon of offence with which he was injured. Therefore, recovery of the knife 7 CriAppeal-250-05.sxw article 7 and the C.A. report to that extent is not of much importance. Mere non-recovery of the weapon of offence is not sufficient to throw away the prosecution story. The prosecution case is based on the direct evidence of injured himself and his evidence is corroborated by the C.A. report in respect o the clothes of the injured as well as the accused. 10. It is pointed out during the evidence that in the FIR the injured Amol had given name of the assailant as Machindra @ Machchya Thorat while name of the accused is Machindra @ Machchya Gholap. In view of this discrepancy in surname, attempt was made on behalf of the accused that the assailant was a different person having surname `Thorat'. However, PW-1 Amol denied it. According to him, when he lodged the report, he was not sure about the surname of the accused and therefore, mistake was committed in giving his surname. It is also important to note that PW-2 Santosh has also deposed that after completing the work at about 5.30 p.m., he was proceeding along with PW-1 Amol. On the way, accused met them and at that time Amol had told the accused that he had relations with Nilesh and also that 10 persons could commit rape on Nilesh. Thus, PW-2 Santosh had deposed about the presence of the accused during their chit-chatting while returning home and PW-1 has specifically stated that after some time when he came out of the house, the accused was present and both of 8 CriAppeal-250-05.sxw them went together for a walk on invitation by the accused and near Vishrantwadi water supply scheme, the accused assaulted him. It is well-settled position of law that normally an injured person is not likely to save his assailant. In the present case, Amol was seriously assaulted and he suffered as many as 8 injuries on his different parts, including stab wound which could be vital. Nothing has come on record that Amol had any enmity with a different person named Machindra @ Machchya Thorat. The name of the accused is Machidra @ Machchya. The only difference is about surname. If the persons are different, the surnames could be fatal, but Amol has explained that mistake was committed in giving surname because he was not sure. There is nothing on record on the basis of which it could be believed that Amol would falsely implicate the present accused and save the real culprit, who had caused serious injuries to him. Therefore, I find that the prosecution has satisfactorily proved beyond any reasonable doubt that the accused was the assailant. Taking into consideration the nature of the injuries, it may be held that the intention of the accused was to cause death or to cause such injury which would be sufficient to cause death. As Amol survived the assault, the accused is liable to be convicted and sentenced for the offence punishable under Sections 307 IPC. Therefore, I find no reason to interfere in the impugned order of conviction and sentence. 9 CriAppeal-250-05.sxw 11. Before concluding,I find it necessary to note that the incident of this case had taken place on 5.9.2003 and very promptly the investigation was completed and charge sheet was filed. The case was also committed to the Court of Sessions promptly and the trial was concluded and judgment was delivered by the trial Court on 7.1.2004 i.e. just within four months after the day of the incident. It appears that the accused did not know that he could prefer appeal before the Sessions Judge against the conviction and sentence of 7 years imprisonment awarded by the Assistant Sessions Judge. Therefore, he preferred the appeal to the High Court through jail. Unfortunately, nobody in the Judicial Branch of this Court scrutinised the papers properly and this appeal was registered in 2005 and remained pending till this day. Thus, while the trial Court finished the trial within 4 months, it took more than six and half years to decide this appeal. As reported by the learned APP, the accused has already undergone the sentence awarded by the trial Court and has been released from jail. Thus he had completed the sentence even before his appeal could be decided. Had the Registry examined the appeal memo and the judgment of the trial Court, this appeal could have been referred to the Sessions Judge, Pune who could have heard and disposed of the appeal in much shorter period than the period taken in this Court. Therefore, it is necessary that the appeals submitted through jail are carefully and promptly scrutnised to avoid such delays. 10 CriAppeal-250-05.sxw 12. For the aforesaid reasons, the Appeal stands dismissed. The observations in para 11, be placed before the Hon'ble the Chief Justice for giving appropriate directions. (J.H.BHATIA,J.)