1 Apeal 1186/07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Amk CRIMINAL APPEAL NO. 1186 OF 2007 Vinay Kuwar Singh .. Appellant Vs. The State of Maharashtra .. Respondent Mr. Arfan Sait appointed for the Appellant. Mrs. A. A. Mane, APP for the Respondent State. CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Judgment : 5th May, 2011. Date of pronouncing the Judgment : 7th June, 2011. JUDGMENT 1. The Appellant has challenged the Judgment dated 21.12.2006 of the Ld. Additional Sessions and Special Judge for SEBI Act at Kurla, Bombay convicting him of an offence punishable under Section 307 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a term extending 8 years and to pay a fine of Rs.10,000/- and in default for further rigorous imprisonment of 3 months. 2. The accused was charged in Sessions Case No. 823 of 2006 with having committed an assault on 17.06.2006 at about 15.30 to 15.45 at ‘X’ Wing building, 1st floor, Chandivali, Sakinaka, Mumbai – 400 072 upon the victim Hiren K. Velani by knife on throat and head with intention and knowledge to kill the victim. Under such circumstances if he had caused death of the said Hiren, he would have been guilty of murder. 3. It is the prosecution case that the accused at the aforesaid date, time and place came near the victim 2 Apeal 1186/07 who was Supervisor of the building under construction, took aside and removed the knife under his pant and assaulted him on his throat. The victim sustained injury and bled profusely. He felt giddy and fell down. He shouted for help and one Dhanraj Jadhav came there. The accused fled. Dhanraj Jadhav and others helped him. Ramesh Patel, PW 1 lodged complaint. He was shifted initially to Patel Nursing Home and then to Nanavati Hospital. Spot panchnama was made and the knife, which had fallen down when the accused fled, came to be recovered along with some blood stains on the earth. Surgery was done and medical report was obtained. The accused was arrested on the same day and his clothes were seized. The clothes of the victim as well as the accused were sent for chemical analysis. The prosecution filed the charge sheet. 4. The accused pleaded not guilty and claimed to be tried. 5. The prosecution has led evidence of the Complainant as PW 1, injured witness himself as PW 2, two panchas for recovery of the clothes as well as the spot panch and the doctor who examined and later treated the victim. 6. The Complainant is not an eye witness to the incident. He was amongst those who helped the victim. He was the employer of the victim. He had also employed the accused initially. The accused admittedly was employed in the construction business premises of PW 1 as a Security Contractor. The victim was employed as a Supervisor. The accused was admittedly removed from 3 Apeal 1186/07 service. That was after the victim was employed. 7. PW 1 has deposed that on 17.06.2006 one Piyush Patel phoned him and informed him about the incident. He rushed to the spot. He found the victim bleeding profusely from his throat injury. Piyush Patel was there. He was told that the assailant was the accused. He knew the accused as his security contractor. He identified the accused in Court. He deposed that he took the victim to Patel Nursing Home at Andheri. First aid was given to him. He was advised surgery. The requisite infrastructure was not available at the Nursing Home. Hence the victim was removed to Nanavati Hospital. From the hospital he was taken to the police station. He went to the spot. The police seized knife and the blood stains from the spot. He identified the knife as the same knife found on the spot when he took the police to the spot. 8. His cross-examination has shown that a watchman was employed at the construction site. He was required to move around it. He was asked about various persons at the construction site. That line of cross-examination is completely immaterial. He was asked about the timing when he reached the various hospitals and the police station on the way of his transport. He refuted the suggestion that he was not present at the spot. 9. The victim himself has led evidence as PW 2. He is the injured witness. He is, therefore, an eye witness of the incident himself. He has deposed that the accused was the security supervisor from the Indian Guards Services at the construction site when he joined 4 Apeal 1186/07 services. He was removed from service thereafter. He deposed that he was the supervisor of RCC work. He has described the incident that transpired upon him. On 17.06.2006 at 3.30 p.m. when he was at “X” building, he saw the accused on the 1st floor landing. The accused called him and took him to a flat. He wanted to know how to conceal some money he had. The victim told that he could not help him. The accused then asked him about his mobile instrument and suddenly removed the knife from under his pant and assaulted him on his throat. He sustained injury. He bled profusely. He felt giddy and fell down. The accused picked up the mobile and started fleeing. He shouted for help. The accused dashed to a wall nearby. The mobile and the knife fell down. The accused fled. He further deposed that Dhanraj Jadhav and Ramesh Patel PW 1 came to help him and removed him to the hospital. 10. He was in the hospital from the date of incident till 26.06.2006. He remained in the hospital for six clear days. He stated that he could identify the clothes and the knife. When the knife was shown, he deposed that he could not recollect whether that was the same weapon with which he was assaulted. 11. His cross-examination has not made any dent in his evidence. It has only brought out that he had joined services 5-6 months prior to the incident. In the examination-in-chief he stated that the accused was removed 3-4 days after his joining. This is an anomaly. However it is not material to determine the incident in which he came to be assaulted. The fact remains that both the victim and the accused were employed at the 5 Apeal 1186/07 site. The accused was removed from his service. The victim was the supervisor. The prosecution has sought to establish the motive for the assault. The anomaly in the date or month does not matter. What is material to see is that PW 1, the Complainant, has clearly identified the knife. He was in a better state of mind to see, remember and understand. He was called soon after the incident. He went to the spot. Hence he remembered the weapon clearly. The victim deposed that he would be able to identify the knife. Hence he knew about the knife, but he was truthful enough not to identify just any knife for the asking. When he was shown the knife, he could not recollect whether it was the same weapon. This is the most natural. He may not be able to identify the weapon as in the short time in which he was assaulted he would not be able to see that intently to remember its description. He comes out as a witness of truth. His evidence is corroborated by the evidence of PW 1 in their identification of the knife. 12. It is argued that Dhanraj Jadhav and Piyush Patel who were concerned with the incident have not been examined. Piyush Patel only telephoned the Complainant who was in the business of constructing the building at the site. Since the Complainant is examined, his evidence is immaterial. Dhanraj Jadhav came to the spot only upon the call for help. He is not an eye witness. His evidence is also not required. 13. The only material evidence is of the injured witness himself. An injured witness is the eye witness in his own incident. If he can fully depose and his deposition is credible and acceptable, no further 6 Apeal 1186/07 repetition by other witnesses is required. 14. PW 3 is the spot panch. He was called for the execution of the panchnama of the scene of the offence. He has deposed about blood found on the floor and one small knife at the place of the incident. He has deposed about its recovery and seizure under panchnama. He has proved the panchnama. His evidence shows that he was called by 11 to 11.30 hours in the morning. That is an obvious error. The other evidence shows a different turning of the spot panchnama. That evidence shall be considered presently. Aside from this error, his cross- examination has not revealed any other discrepancy. 15. Pws 4 & 5 are the panch for the recovery of the clothes of the accused. PW 4 has deposed that he was called at 10 p.m. PW 5 has deposed that he was called at 9 p.m. They were employed by the same employer. They have both identified the accused as the person working on the site. They knew the accused as they both working at the site. PW 5 has identified the two shirts of the accused. Aside from a case put to him that he was not present, his cross-examination does not show anything else. 16. The clothes of the victim as well as the accused have been sent for chemical analysis. The Chemical Analyst’s Report shows innumerable blood stains on the shirts of the accused as well as the knife. The blood group is ‘B’ which of course is not shown to be of the accused. 17. PW 6 is a doctor from Nanavati Hospital who 7 Apeal 1186/07 examined the victim at about 9 p.m. The victim was taken to his hospital after he was given first aid at Patel Nursing Home. He has deposed that the victim was discharged on 26.06.2006 and was brought on 17.06.2006 from Patel Nursing Home. 18. He has deposed about the injuries thus : Transvers wound 10 x 4 x 2 cms. Upper part of anterior aspect of the neck. Multiple bleeders – ligated. Omohyid and pharyngeal muscles severe above hyoid would. Lower poles of both submandibular gland and bleeding actively. Oropharynx intact. Both submandibular glands repaired. Parapharyngeal and Omohyoid muscles repaired. Wound is deep up to carotid sheath. No.12 Romovac drains kept. Platysma sutured. Skin layers sutured. 19. He has deposed that the injury was grievous and possible by a sharp weapon like a knife. He has deposed that if the injury was 1 mm more in depth it would have resulted in death. The assault by the accused was, therefore, near fatal. If the act of the accused had caused the death of the victim he would have been guilty of murder. The doctor has identified the injury certificate and the treatment papers. The treatment papers show “cut throat injury”. The papers of Patel Nursing Home which was sent to the hospital upon the transfer of the victim are kept and produced together with the papers of Nanavati Hospital. The injury in the provisional report of Nanavati Hospital identified by the witness shows that left vanecula is effaced. The certificate of Patel Nursing Home dated 17.06.2006 shows an “incised wound” at 4.30 p.m. today. Trachea and 8 Apeal 1186/07 carotid vessels are shown to be “not injured.” Medical case papers also show the treatment papers of the surgery which was performed upon the victim. It shows the diagram of the injury as also the description thus : Transverse wound around 10 x 4 x 2 cm on upper part of ant. aspect of neck. Multiple bleeders – ligated. Omohyoid & Pharyngeal muscles severed above hyoid bone. Lower poles of both sub mandibular gland severed & bleeding actively. Oropharyix intact. Both sub mandibular glands repaired. Para pharyngeal & Omohyoid muscles repaired wound is deep upto carotid sheath No.12 Romarac drains kept. Platysma sutured skin layers sutured. It is, therefore, seen that intricate emergent surgery was required to save life of the victim. If such medical attention had not been given, the injuries mentioned above would be sufficient to cause death of the victim. 20. The cross-examination of the doctor only shows that the patient was conscious and brought by his brother. It shows the admission that no major vessel was cut. That is naturally because the victim had not succumbed to the injury. Had the carotid vessel been injured the victim would have died. The evidence of the doctor shows that he was saved by a flicker as the injury was mere 1 mm away. The doctor has accepted that if a person fell on a sharp object or came in contact of a sharp object such injury was possible. However the 9 Apeal 1186/07 accused has not shown any circumstances in which the victim could have come in contact with any other sharp object. 21. It is argued on behalf of the accused that the CT Scan of the neck and chest taken on 19.06.2006, which is also a part of treatment papers of Nanavati Hospital produced by the doctor, does not show injury. It shows no evidence of significant neck adenopathy, that the carotid and jugular vessels are normal and there is no evidence of fracture in the visualized sections. A reading of the whole CT scan shows prolapse of a polypoidal soft tissue into the left hemisphenoid sinus via a small bony defect. The CT scan however does not deal with the neck injuries and is, therefore, immaterial to consider. 22. The Ld. Judge has fully and correctly appreciated the oral and documentary evidence in the above sessions case. He has correctly accepted the evidence of the injured witness. He has also rightly considered the recovery of the clothes and the knife. The Ld. Judge has further correctly considered that the evidence of the victim is corroborated by the medical evidence showing the grievous injury. The evidence is, therefore, sufficient to convict the accused as charged. The Ld. Judge has sentenced him to suffer rigorous imprisonment for 8 years. That is in consonance with and within the limit of the sentence under Section 307 of the Indian Penal Code. 23. The intention as well as knowledge of the accused is writ large on his act. The fact that he fled 10 Apeal 1186/07 and had his shirt stained is testimony to his act. The extent of the injury shows such knowledge that if he caused death by such act, he would be guilty of murder. The intention to cause death which is the motive attributed by the prosecution is evident from the fact that he was removed from service after the victim joined service whilst he was working under the victim. 24. Mr. Sait argued that the accused be convicted of the lesser offence of voluntarily causing hurt by deadly weapon punishable under Section 323 of the Indian Penal Code. The accused has caused grievous hurt to the victim on the part of his body such that the knowledge that it would be sufficient to cause death can be imputed upon the accused. The hurt is too grievous to be sidelined as a mere hurt. At best it could be said that the accused voluntarily caused grievous hurt by deadly weapon being the knife and committed offence punishable under Section 326 of the Indian Penal Code. The accused has been charged under Section 307 of the Indian Penal Code. In either event the accused would be liable to imprisonment for life or to imprisonment which may extend to 10 years and also fine. The accused has been sentenced for 8 years. The Sentence is reasonable, fit and proper upon the aforesaid conviction. 25. Neither the conviction nor the sentence is required to be modified. Despite the best efforts of Mr. Sait, the Appeal is dismissed. (ROSHAN DALVI, J.)