( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.655 OF 2007 CRIMINAL APPEAL NO.655 OF 2007 CRIMINAL APPEAL NO.655 OF 2007 Manishkumar Ramdinesh Singh .. Appellant V/s The State of Maharashtra .. Respondent (Versova Police Station) Mrs.Rohini Dandekar for the Appellant. Mr.Y.M.Nakhwa, A.P.P.for the State. CORAM : CORAM : CORAM : R.V.MORE, J. R.V.MORE, J. R.V.MORE, J. DATE : 24TH FEBRUARY, 2009. DATE : 24TH FEBRUARY, 2009. DATE : 24TH FEBRUARY, 2009. JUDGMENT: JUDGMENT: JUDGMENT: 1. Appellant was prosecuted for the offence punishable u/s.307 of the Indian Penal Code and Section 37(1)(a) read with Section 135 of the Bombay Police Act. Appellant was convicted by the learned Additional Sessions Judge, Bombay for the offence punishable u/s.307 of the Indian Penal Code and was sentenced to suffer R.I.for 8 years and fine or Rs.10,000/-, in default, to suffer R.I.for three months. Appellant was however acquitted for the offence punishable u/s.37(1)(a) read with Section 135 of the Bombay Police Act. 2. The prosecution story in brief is as under:- . Father of the appellant has been serving in Central Institution of Fisheries Education at seven Bungalows, ( 2 ) Andheri (W), Bombay 400 061. The father of the accused secured job for the injured Santu Sharma in the said Institute in its Gym as a cleaner (safaiwala). The injured started residing in the Institute’s Gym only. The Appellant also used to work in the same Institute in its office. The prosecution story further proceeds that the Appellant used to visit PW-1 injured Santu Sharma and also used to borrow petty cash amount from the injured. The injured could not turn down his request keeping in mind the fact that the father of the Appellant had secured job to him. The Appellant however, never used to return the said money to the injured. The incident in question occured on 27.03.2005. Couple of days days prior to the day of incident, the appellant had demanded Rs.2000/-from the injured. The injured refused to pay as the Appellant had never returned the amounts earlier taken. For this refusal to give money the Appellant accused had grudge against the injured. On the date of incident in the afternoon hours, the Appellant met injured while the injured was returning to the Gym after taking food. The Appellant told injured that he would take rest in the Gym in the premises of the injured and would leave in the evening. The injured also slept in the said Gym premises, however, soon after he felt some piercing sensation to his throat, he woke up and to his shock he found that the Appellant was assaulting him with a knife on his throat. The injured somehow rescued himself, and ( 3 ) in the process knife fell down from the hands of the Appellant and it hit the Gym machine and it was broken. The injured who sustained bleeding injury tried to escape and rushed out of the Gym, but the Appellant chessed him and started beating him with his belt when the injured tried to confine the Appellant in the Gym. The injured tried to speak out and inform the persons in the T.V.Room but due to his throat injury his voice was not coming out. The injured was immediately rushed to the Nanavati Hospital by the Security Staff of the Institute. The Police who received the intimation from the hospital about the injured having been admitted there, also rushed to the hospital. At that time the injured was not in a position to speak to the police, however, PW-2 Mr.Vinodkumar Chaudhary who was doing Ph.D.in the said Institute was present in the Hospital, and he narrated the incident in short to the police. The police brought him to the police station and recorded his statement and it was treated as F.I.R. Crime was registered as C.R.No.17 of 2005. 3. Complainant thereafter had shown the place of incident to the police. Spot panchanama was drawn, From the spot vide spot panchnama, police seized blood with the help of cotton swab, knife blade, knife butt, blood stained lungi, spects cover, two shirts, one polythene bag, one leather bag, belt buckle (broken), one pocket diary belonging to the Appellant etc. One Mr.Arjun ( 4 ) Sharma who was present at the spot, at the time of spot panchanama, identified the pocket diary as that of the Accused. Statement of witnesses were recorded. Appellant was trying to flee to his native place. Police team caught him at Tilak Nagar Railway Station. Appellant was apprehended on the platform from where the train to Patna departures. Appellant was then taken to police station and his personal search was taken in the presence of panchas. His clothes alongwith one wrist watch and purse containing cash amount and one railway ticket to Patna Junction was seized under panchnama. The statement of the injured was recorded after his discharge from the hospital. Clothes of the injured were also seized. Muddemal articles were sent to Chemical Analyser and after receipt of the Chemical Analyser’s report, chargesheet came to be submitted in the Magistrate’s Court. The offence u/s.307 being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. Charge was framed against the Appellant u/s.307 of the IPC, vide Exhibit 2. Charge was explained to the Appellant to which he pleaded not guilty and claimed to be tried. The defence of the Appellant as per the statement recorded u/s.313 of the Code of Criminal Procedure, seems to be that fight between him and the injured was going on and as a result injured fell down and sustained injury and that the Appellant did not assault him. ( 5 ) 4. The prosecution in order to establish the guilt of the Appelllant has examined following nine witnesses:- PW-1 : Santu Sharma - Injured. PW-2 : Vinodkumar Chaudhary - Complainant. PW-3 : Mr.A.S.Dwivedi, Panch-witness to the Spot Panchnama. PW-4 : Mr.Jaysingh Yadav - Security Guard at the Institute. PW-5 : Dr.Niraj Dubey from Nanavati Hospital PW-6 : Mr.Kamate - Investigating Officer PW-7 : Mr.Shankar Gauda - Panch Witness for personal search of the Appellant. PW-8 : Mr.Ashok More - Investigating Officer PW-9 : Mrs.Sangita Patil - Investigating Officer 5. The learned Sessions Judge after going through the evidence led by the prosecution and statement of the Appellant u/s.313, and after hearing the learned Counsel found that the offence u/s.307 of the IPC was established against the Appellant, and as stated above, the Appellant was convicted. 6. Mrs.Rohini Dandekar, the learned Counsel for the Appellant took me through the deposition of the witnesses and submitted that the prosecution failed to establish guilt of the Appellant beyond reasonable doubt. She submitted that the FIR was registered ( 6 ) against the unknown person. She further submitted that except evidence of PW-1 Injured, there is no evidence which connects the Appellant with the incident in question. She submitted that the evidence of PW-1 injured, does not inspire confidence and therefore, the same should not be taken into consideration. She lastly submitted that in any case, the prosecution failed to make out an offence u/s.307 of the IPC, and at the most the prosecution has established the offence u/s.324 of the IPC. 7. On the other hand, the learned A.P.P. Mr.Nakhwa supported the impugned judgment and order. He submitted that there is enough evidence to show the Appellant’s complexity in the offence alleged against him. He has submitted that the evidence of PW-1 coupled with the evidence of PW-5 Dr.Niraj Dubey alongwith the spot panchanama and the Chemical Analyser’s report is sufficient to convict the Appellant u/s.307 of the IPC. 8. Having heard the learned Counsel for the respectie parties and having gone through the deposition of the prosecution witnesses and the relevant evidence, I am of the considered opinion that there is no merit in the appeal. 9. PW-1 Inuured deposed about borrowing habit of the Appellant. He further deposed that the Appellant prior ( 7 ) to Holi festival in March, 2005 had demanded an amount of Rs.2000/- from him. He has also deposed that he did not pay Rs.2000/- to the Appellant for the reason the Appellant never returned the amounts taken on earlier occasions. The Appellant again on 25th March, 2005 demanded the money from PW-1. However PW-1 injured refused to pay that amount. . He further deposed that on the date of incident, viz.27th March, 2005 at about 15.15 hours, after taking food he was returning to Gym as he used to reside in the Gym. The Appellant met him on the way and had one polythene bag with him. The Appellant told PW-1 that there was no water and therefore he came to Gym. As PW-1 wanted to sleep he asked the Appellant for leaving the Gym. Appellant however told PW-1 that he will also sleep in the Gym and will leave at about 5 p.m. Thereafter PW-1 slept. After sometime, PW-1 felt some piercing sensation to his throat as a result of which he woke up. To his shock he noticed that the Appellant was assaulting him with knife on his throat. There was scuffle/fight between himself and the Appellant. PW-1 tried to save himself. In the process, knife fell down from the hands of the Appellant, it hit the Gym machine and got broken. PW-1 sustained bleeding injury to his throat. He wanted to confine the Appellant in the Gym, but he could not succeed. Appellant started beating the PW-1 injured with his belt. Injured thereafter rushed to T.V.Room and wanted to tell the students present there about the ( 8 ) assult, but due to his throat injury he could not speak. He collapsed outside the T.V.Room. He further deposed that the police approached him in the Nanavati Hospital but he was not in a position to speak due to throat injury. He was discharged from the hospital from 1st April, 2005 and thereafter police called him to the police station. He attended the police station on 4th April, 2005, on which date, his statement was recorded and his clothes were seized under panchanama. PW-1 identified his clothes. He also identified knife blade, and knife butt before the Court. He also identified belt of the Appellant, polythene bag which the Appellant was having with him when he met PW-1 on the way to Gym. I found the evidence of PW-1 cogent, consistent and reliable and the same inspires confidence. He was cross-examined by the defence. However, nothing could be brought on record so as to discard his evidence. There was no reason to PW-1 injured to involve the Appellant falsely in the incident particularly when the Appellant’s father had secured job to the PW-1 injured. 10. The version of PW-1 is corroborrated by the evidence of PW-2 & PW-4. PW-2 deposed that on the day of incident he was watching T.V.in the T.V.Room at about 15.00 hours as it was sunday. There were others also watching the T.V. At that time, all of a sudden PW-1 injured came running in T.V.Room. He was bleeding from throat injury and was unable to speak. Immediately he ( 9 ) called the Security Guard and requested them to shift the PW-1 to Nanavati Hospital. PW-2 alongwith others present there in T.V.Room followed the blood stains which led them to Gym. In the Gym they found one unrolled belt with blood stains, one broken knife, one spect cover. Soon thereafter the Warden alongwith Deputy Warden came to Gym and both the warden went to hospital. PW-2 also had gone to the hospital and thereafter to the police station and lodged the complaint at Exhibit 9. This witness also identified knife blade and knife butt before the Court. This witness was also cross examined, but nothing could be brought on record to shatter his evidence in chief. 11. PW-4 is the Security Guard. He deposed that on the day of incident and just prior to the incident, he saw the Appellant in the Institute and had asked him as to why he has come there on holiday. He deposed that the Appellant had one bag with him. He further deposed that the Appellant, without replying went away. On the next day this witness learnt that PW-1 injured was assaulted by the Appellant. Thus, PW-4 had seen the Appellant alongwith the polythene bag in the Institute. Evidence of PW-4 corroborates the version of PW-1. 12. The prosecution adduced evidence of PW-5 Dr.Niraj Dubey from the Nanavati Hospital. PW-5 deposed that he examined the PW-1 injured on the day of incident. He ( 10 ) further deposed that the PW-1 injured was conscious and restless as he was salivating from mouth. He was breathless. The evidence of PW-5 clearly shows that the PW-1 injured was not in a position to speak. PW-5 on examining the injured had found that the PW-1 injured was bleeding profusely from anterior part of the neck (throat). He certified that this kind of injury can be possible with any sharp weapon like knife and can be fatal if major blood vessels get cut. Knife blade was shown to him and he opined that this kind of injury was possible with the said knife. He had produced treatment papers and the injury certificates at Exhibits 13 and 14 collectively. These documents support PW-5’s version. PW-5 deposed that PW-1 injured was admitted in the Hospital on 27.3.2005 and was discharged on 1.4.2005. The evidence of PW-5 Dr.Niraj Dubey thus corroborates the evidence of PW-1. 13. PW-3 is a Panch witness to the spot panchanama. He deposed that he was working as a Technical Officer in the said Institute. He further deposed about the police seizing blood scrappings, knife blade, knife butt, lungi, shirt, spects cover, polythene bag, belt, etc. from the spot. He deposed about sealing and labelling the seized articles and the drawing of panchanamas. He identified his signature on the panchanama and also idenfified the articles as they were seized in his presence. The version of this panch witness, no doubt ( 11 ) corroborates the version of Mr.Kamte - Investigating Officer PW-6, who deposed that on the day of incident at about 4.20 p.m. he received message from Nanavati Hospital about one injured person having been admitted there. He made station diary entry and rushed to the hospital. PW-6 has deposed that when he went to the hospital the injured was not in a position to speak, and at that time PW-2 who was present in the hospital had narrated the incident to them. PW-6 further deposed that they came to the police station alongwith PW-2 complainant and his statement was treated as FIR. 14. PW-6 visited the place of incident alongwith PW-2 complainant and the spot panchanama came to be drawn at Exhibit 11. He deposed about the articles seized vide spot panchnama. He deposed that one Arjun Sharma who was present at the time of spot panchnama identified the pocket diary as that of the Appellant. He then returned to the police station and deposited the articles in the police station. The version of PW-6 is corroborated by FIR. He was cross-examined by the defence, however, nothing could be illuciated so as to discard the prosecution story. 15. In addition to above, the prosecution brought on record the Chemical Analyser’s reports at Exhibits 21 and 22. The reports disclose that the blood of PW-1 injured is of "B" group. It further disclosed that the ( 12 ) blood stained clothes of injured were detected with "B" group. The said reports also disclose that the banyan of the Appellant found to have blood stains that of "B" group. This is one more circumstance to establish the Appellant’s guilt in the alleged incident. 16. The statement of the Appellant was recorded u/s.313 of the Code of Criminal Procedure. The Appellant admitted that his father had secured job to PW-1 injured. He also admitted that he and the PW-1 were knowing each other. He also admitted that the injured used to reside in the Institute’s Gym and he used to work in the office of the said Institute. He admitted that he used to borrow money from PW-1 injured. So far as incident in question is concerned, he admitted that the fight between himself and the PW-1 injured took place, as a result of which PW-1 fell down and sustained injury. He also admitted that at that time nobody except himself and PW-1 was there in the Gym. He also admitted that PW-1 was in full pant and shirt at the time of incident and that the bag and belt seized from the spot of incident belongs to him. 17. The statement of the Appellant accused u/s.313 of the Cr.P.C. also supports the prosecution state, as far as the prosecution’s case regarding the presence of the Appellant in the Institute’s Gym at the relevant time, and the altercation between injured and the Appellant. ( 13 ) Taking over all facts and circumstances into consideration, in my opinion, the prosecution has established beyond reasonable doubt, that the Appellant committed an offence punishable under Sectin 307 of the Indian Penal Code. 18. Now, I will consider the arguments of the learned Counsel for the Appellant that the prosecution failed to make out the case u/s.307, and at the most offence u/s.324 of the IPC is established. It shound be noted here that the Appellant had gone to the place of PW-1 injured well prepared. He stayed in the premises where injured was residing and when the injured was slept he assaulted him with the weapon. The weapon which was used by the Appellant is a knife. The part of the body of the victim which was selected for assault by the Appellant was neck (throat). Dr.Niraj Dubey has opined that the injury did not result in the death of the victim due to timely medical treatment given to him. The above facts and circumstances do throw light on the intention of the Appellant. From the above facts and circusmtances knowledge can be inferred on the part of the Appellant. Thus in my opinion, the Appellant was rightly convicted u/s.307 of the Indian Penal Code. 19. The learned Sessions Judge, in my view, has correctly appreciated the evidence on record and has rightly convicted the Appellant accused. There is no ( 14 ) merit in the Appeal. Appeal is accordingly dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)