Divakar Bhairavnath Yadav @ Rocky vs The State Of Maharashtra
2016 Latest Caselaw 6529 Bom

                                                                      APPEAL-791-2012.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                         CRIMINAL APPELLATE JURISDICTION




                                                      
                          CRIMINAL APPEAL NO.791 OF 2012

     DIVAKAR BHAIRAVNATH YADAV @ ROCKY )...APPELLANT




                                                     
              V/s.

     THE STATE OF MAHARASHTRA                                  )...RESPONDENT

Ms.Apeksha Vora, Advocate for the Appellant.

Mr.S.V.Gavand, APP for the Respondent - State.

                                   CORAM        :     A. M. BADAR
                            
                                   DATE         :     17th NOVEMBER 2016 &
                                                      18th NOVEMBER 2016.
      


     ORAL JUDGMENT :
   



     1                By   this   appeal,   appellant   /   convicted   accused   is 

challenging the judgment and order of his conviction passed on

28th December 2011 in Sessions Case No.18 of 2011 by the

learned 3rd Ad-hoc Assistant Sessions Judge, Greater Bombay. The

appellant / accused was convicted for the offences punishable

under Sections 509, 506(II) and 307 of the IPC. For the offence

punishable under Section 509 of the IPC, he was sentenced to

avk 1/18

APPEAL-791-2012.doc

suffer rigorous imprisonment for 6 months and to pay fine of

Rs.500/-, in default, to suffer simple imprisonment for 15 days;

for the offence punishable under Section 506(II) of the IPC, the

appellant was sentenced to suffer rigorous imprisonment for 1

year and to pay fine of Rs.500/-, in default, to suffer further

simple imprisonment for 15 days; and for the offence punishable

under Section 307 of the IPC, the appellant / accused was

sentenced to suffer rigorous imprisonment for 10 years and to pay

fine of Rs.3,000/-, in default, to suffer further simple

imprisonment for 1 month. He was acquitted of the offences

punishable under Section 504 of the IPC and under Section 135

read with Section 37(1)(a) of the Bombay Police Act. Substantive

sentences imposed on the appellant / accused were directed to

run concurrently. For the sake of convenience, the appellant shall

be referred to as the accused.

2 Heard the learned counsel appearing for the

appellant / accused. She vehemently argued that evidence of

prosecution and particularly that of PW7 Dr.Shams Tabrez does

avk 2/18

APPEAL-791-2012.doc

not show that injured Pravin Padwal had suffered serious injuries

which were ordinarily sufficient to cause death of a human being.

The learned counsel argued that, though the offence punishable

under Section 307 of the IPC does not require causing of even

hurt, but intention of the accused is required to be established.

Such intention, according to the learned counsel for the

appellant / accused can be gathered from the nature of weapon

used, nature of injury caused as well as opportunities for the

accused for causing injuries. The learned counsel argued that in

the case in hand, though according to the prosecution case, the

accused was holding rampuri knife having blade of length of 5

inches, injury allegedly caused to PW3 Pravin Padwal is of size 2

cm x 2 cm x peritoneal deep. That, though the accused was

having tons of opportunities to inflict several blows of knife, he

had inflicted only one blow, and as such, it cannot be said that the

accused had assaulted PW3 Pravin with such intention and

knowledge, and in such circumstances, that if by that act, he had

caused death of PW3 Pravin, then, he would have been guilty of

murder. The learned counsel for the appellant / accused further

avk 3/18

APPEAL-791-2012.doc

argued that offence punishable under Section 509 of the IPC is

also not made out by the prosecution as the utterances allegedly

made by the accused were not even heard by PW2 Priyanka

Raorane. According to the learned counsel for the appellant,

evidence of the prosecution is suffering from several

contradictions and the same is not consistent. Evidence of PW1

Akshay is at variance with evidence of PW5 Prakash Ramugade,

the Investigating Officer, in respect of the time when Akshay was

present at the spot. Therefore, in every probability, PW1 Akshay is

deposing falsely to implicate accused in the crime in question.

The learned counsel further argued that the prosecution has

suppressed the genesis of the incident as though according to the

prosecution case, the accused has caused injury by means of knife,

medical papers show that PW3 Pravin had suffered contused

lacerated wound. Therefore, according to the learned counsel for

the appellant, the appellant / accused is entitled for benefit of

doubt in this case, and therefore, the appeal needs to be allowed.

     avk                                                                          4/18





                                                                     APPEAL-791-2012.doc


     3                I have also heard the learned APP appearing for the 




                                                                            

respondent / State. He vehemently argued that the accused is

identified by the prosecution witnesses and evidence of PW3

Pravin cannot be jettisoned because being an injured witness, his

presence on the scene of occurrence cannot be doubted. The

learned APP further argued that the weapon used by the accused

is knife and the part of body chosen for giving a blow is abdomen.

This, according to the learned APP, reflects intention of the

accused to commit murder of PW3 Pravin. The learned APP

submitted that for proving the offence under Section 509 of the

IPC, intention of the accused is relevant, and what is need to be

examined is utterances hurled against the victim and not whether

such utterances were actually heard by the victim. The learned

APP, therefore, submitted that the impugned judgment and order

convicting the accused needs to be confirmed.

4 In order to bring home the guilt to the accused, the

prosecution has examined in all seven witnesses. Akshay Raorane

is examined as PW1 at Exhibit 10. FIR lodged by him is at Exhibit

avk 5/18

APPEAL-791-2012.doc

11. Priyanka Raorane is examined as PW2 at Exhibit 12. Injured

Pravin is examined as PW3 at Exhibit 14. Panch witness B. Gupta

is examined as PW4 at Exhibit 15. Exhibit 16 is the Spot cum

Seizure panchnama, whereas, Exhibit 17 is Seizure panchnama of

clothes of the victim, namely, Pravin Padwal. Investigating Officer

Prakash Ramugade is examined as PW5 at Exhibit 18. Another

Investigating Officer, namely, M.S. is examined as PW6. Dr.Tabrej,

who was present at the time of operation of PW3 Pravin is

examined as PW7 at Exhibit 25 and Exhibit 26 are the papers of

medical treatment of injured PW3 Pravin.

5 Considering the nature of charge leveled against the

accused, fate of the prosecution case to a large extent hinges on

testimonies of PW1 Akshay, PW2 Priyanka and PW3 Pravin. It is

the case of prosecution that on 18th December 2009, PW1 Akshay

Raorane accompanied by his aunt PW2 Priyanka Raorane and one

Nikita Raorane had returned from Churchgate to Dahisar Local

Railway Station. When they were passing from near the subway

of the local railway station, looking at PW2 Priyanka Raorane, the

avk 6/18

APPEAL-791-2012.doc

accused uttered "kya ball hai" intending to outrage her modesty.

PW1 Akshay took exception to this conduct of the accused. The

accused pushed him. Therefore, PW1 Akshay telephonically

contacted PW3 Pravin, a home-guard, who happens to be his

maternal uncle. PW3 Pravin immediately reached on the spot and

questioned the accused. Thereupon, according to the prosecution

case, the accused whipped out a rampuri knife and dealt a blow

thereof on abdomen of PW3 Pravin causing bleeding injury to

him. Pravin was then taken to Bhagwati hospital for medical

treatment where he was operated.

6 Careful scrutiny of evidence of PW1 Akshay and PW2

Priyanka goes to show that in unison both these witnesses

deposed that when they came out of Dahisar local railway station,

the incident in question took place. As per version of PW1 Akshay,

the accused uttered obscene words "kya ball hai" for PW2

Priyanka. Evidence of both these witnesses further goes to show

that the accused abused Akshay, and therefore, PW1 Akshay called

his maternal uncle PW3 Pravin, who happens to be a home-guard.

     avk                                                                        7/18





                                                                       APPEAL-791-2012.doc

Depositions of PW1 Akshay, PW2 Priyanka and PW3 Pravin then

congruously shows that when PW3 Pravin tried to intervene, the

accused abused him, took out a knife and stabbed PW3 Pravin on

abdomen. Thereafter, as seem from their evidence, the accused

threatened them and others by uttering that if anyone dares to

come near, he will stab him. Evidence of PW1 Akshay gains

further corroboration from the FIR Exhibit 11 lodged by him with

promptitude.

7 The incident of assault on PW3 Pravin coming on

record through version of these three witnesses gains further

corroboration from evidence of PW7 Dr.Tabrej. His evidence shows

that he was attached to Bhagwati hospital and he had examined

injuries suffered by PW3 Pravin. Version of PW7 Dr.Tabrej shows

that PW3 Pravin was having a stab injury of size 2 cm x 3 cm x

peritoneal deep at left para umbilical region, apart from an

abrasion to his left forearm. This Medical Officer further deposed

that PW3 Pravin was operated at Bhagwati hospital. Cross-

examination of this witness goes to show that when police came to

avk 8/18

APPEAL-791-2012.doc

the hospital, PW3 Pravin was in post operative sedation. This

fact deposed by the Medical Officer finds corroboration from

version of PW3 Pravin. As per version of PW3 Pravin, ultimately

police recorded his statement on 22nd December 2009 at Bhagwati

hospital as before that he was unconscious.

8 Exhibit 26 are papers of medical treatment of PW3

Pravin duly proved by PW7 Dr.Tabrej. It is seen from medical case

papers at Exhibit 26 that PW3 Pravin had taken treatment as

injured patient with the said hospital from 18 th December 2009 to

27th December 2009. Final diagnosis recorded by the Medical

Officer is suffering of stab injury by PW3 Pravin. In the wake of

this evidence, I find no substance in the contention of learned

counsel for the appellant / accused that the documents at Exhibit

26 show that PW3 Pravin has suffered contused lacerated wound.

Rather the medical case papers show stab wound suffered by PW3

Pravin and the manner in which it was operated by giving incision

to the abdomen of PW3 Pravin.

     avk                                                                           9/18





                                                                       APPEAL-791-2012.doc


     9                PW1   Akshay,   PW2   Priyanka   and   PW3   Pravin   have 




                                                                              

categorically identified the appellant / accused as the person who

has caused stab injury to PW3 Pravin. Identification before the

court is a piece of substantive evidence and there is nothing on

record to doubt testimonies of these witnesses recording

identification of the accused. Even otherwise, evidence of PW1

Akshay and PW5 Prakash Ramugade, Investigating Officer, as well

as PW6 Motiram Sable, goes to show that the accused was

arrested from the spot of the incident soon after the incident. An

attempt was made to show that this evidence of arrest of the

accused from the spot soon after the incident is doubtful, by

contending that evidence of PW1 Akshay shows that he was at the

hospital up to 11 to 11.15 p.m. whereas, that of PW5 Prakash

Ramugade shows that at about 10. 45 p.m. on that day, i.e. 18 th

December 2009, Akshay was at the spot. Such minor

inconsistencies in version of a witness needs to be ignored because

a witness is not expected to look at the watch on each and every

time during happening of events in succession after commission of

the crime in question. The time gap is so minimal that it needs to

avk 10/18

APPEAL-791-2012.doc

be ignored and much capital cannot be made out of this small

variance in deposition of these two witnesses about the time.

Discrepancies which do not go to the root of the matter and shake

the basic version of the witness cannot be annexed with undue

importance. What is required to be considered is a probability

factor. Nothing is brought on record to show that versions of PW1

Akshay, PW2 Priyanka and PW3 Pravin about the incident,

suffered from basic infirmities rendering it unworthy of credit.

Therefore, cumulative effect of versions of these three witnesses

coupled with that of PW7 Dr.Tabrej unerringly points out causing

stab injury by the accused to PW3 Pravin on 18th December 2009.

10 Evidence on record shows that half T-Shirt and sando

baniyan of injured Pravin was seized vide seizure memo Exhibit

17 which is duly proved by PW4 Bhupen Gupta, panch witness, as

well as PW5 Prakash Ramugade, Investigating Officer. It is also

seen that the blood stained knife was seized from the accused vide

seizure panchnama Exhibit 16, proved by PW4 Bhupen Gupta and

PW5 Prakash Ramugade. These articles were sent for chemical

avk 11/18

APPEAL-791-2012.doc

analysis and report of Chemical Analyzer shows that all these

articles were stained with blood of "B" Group. Evidence on record

shows that PW3 Pravin had suffered bleeding injury causing

staining of seized half T-Shirt and sando baniyan by blood. These

clothes are having corresponding cut reflecting stab injury. Thus,

by applying test of a prudent person, it can be said that half T-

Shirt and sando baniyan are stained with blood of PW3 Pravin and

the group of his blood is "B". Finding of blood of "B" Group on

seized knife gives corroboration to the prosecution case of assault

by means of the said knife by the accused to PW3 Pravin.

11 Now let us examine whether the stab injury inflicted

on PW3 Pravin by the accused was with such an intention and

knowledge and in such circumstances, that if by that act, he had

caused death to PW3 Pravin, then he would have been guilty of

murder of PW3 Pravin. It is well settled that for proving the

offence punishable under Section 307 of the IPC, causing of hurt

is not at all necessary. What is material is the intention coupled

with an overt act. All that is necessary, is to establish the intention

avk 12/18

APPEAL-791-2012.doc

with which the act is done. Once the intention is established, the

nature of act will be wholly immaterial. Presence of injuries, their

number and nature of injuries suffered by the victim are always

helpful while gathering intention of the accused in committing the

act constituting the offence. Such intention can be gathered from

nature of the weapon, the part of body chosen for giving blows

and nature of injuries inflicted, apart from opportunities available

with the accused. Intention is something which is done

intentionally, deliberately and purposely.

12 If evidence adduced by the prosecution in this case is

examined in the light of this requirement of the offence

punishable under Section 307 of the IPC, then it is seen that the

accused who was holding a rampuri knife having 5 inch blade had

given only one blow on person of PW3 Pravin. The size of single

injury as seen from the evidence of PW7 Dr.Tabrej is merely 2 cm

x 3 cm x peritoneal deep. Evidence of prosecution witnesses does

not show that there was resistance offered by the victim or other

persons to the accused at the time of the incident or soon after the

avk 13/18

APPEAL-791-2012.doc

incident. Still, apart from inflicting one single blow, the accused

did not inflict any other injury or blow of knife on person of PW3

Pravin. Though PW1 Akshay was very much present on the scene

of occurrence at the time of the incident, the accused had not

caused any hurt to him in the incident.

13 Evidence of PW7 Dr.Tabrej does not show whether the

injury inflicted by the accused on PW3 Pravin was a life

threatening injury. There is no evidence to the effect that the

injury suffered by PW3 Pravin was capable of causing his death or

was sufficient in the ordinary course of nature to cause his death.

Therefore, in the instant case, the prosecution has not adduced

necessary evidence to prove intention of the accused, requisite for

making the offence punishable under Section 307 of the IPC.

14 With this, one will have to examine what offence is

committed by the accused by stabbing PW3 Pravin by means of a

knife. Evidence of PW3 Pravin and PW7 Dr.Tabrej shows that

because of stab injury, PW3 Pravin was operated at the hospital,

avk 14/18

APPEAL-791-2012.doc

where he was admitted as an indoor patient for a considerable

period. Perusal of medical case papers at Exhibit 26 reflects that

PW3 Pravin had undergone surgery and sutured to the wound.

This indicates that PW3 Pravin must have suffered because of the

stab injury, atleast for a period of twenty days with severe bodily

pain. It can be safely concluded that PW3 Pravin might not have

been in a position to follow his ordinary pursuits atleast for a

period of twenty days after suffering the injury at the hands of the

appellant / accused. The prosecution, therefore, has certainly

made out the offence punishable under Section 326 of the IPC.

As such, the appellant is certainly liable for conviction for the

offence punishable under Section 326 of the IPC, and accordingly,

he is convicted of the said offence.

15 Learned counsel for the appellant was at pains to

argue that, as PW2 Priyanka Raorane had not heard the obscene

remark hurled at her by the accused, the accused is not liable for

conviction for the offence punishable under Section 509 of the

IPC, and at the most, he can be convicted for the offence

avk 15/18

APPEAL-791-2012.doc

punishable under Section 294 of the IPC. Section 509 of the IPC

reads thus :

509. Word, gesture or act intended to insult the modesty of a woman -- Whoever, intending to insult the modesty of any woman,

utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such

gesture or object shall be seen, by such woman,

or intrudes upon the privacy of such woman, shall be punished with simple imprisonment

for a term which may extend to one year, or with fine, or with both.

Evidence of PW1 Akshay establishes what were utterances of the

accused addressed to PW2 Priyanka Raorane, though she might

not have heard the same. At the cost of repetition, it needs to be

put on record that, the accused, upon seeing PW2 Priyanka

Raorane, uttered "kya ball hai." These utterances are obscene

remarks on breast of PW2 Priyanka Raorane. Therefore, such

utterances are undoubtedly intending to insulting the modesty of

PW2 Priyanka Raorane. Section 509 of the IPC provides that

avk 16/18

APPEAL-791-2012.doc

utterances intending to insult the modesty of woman should be

with an intention that such words or sound shall be heard.

Section 509 of the IPC does not provide that such utterances

should be heard by the subject. Hearing such utterances by

anybody would amount to the offence punishable under Section

509 of the IPC. Hence, no infirmity can be found in the order of

conviction of the accused for the offence punishable under Section

509 of the IPC.

16 Similarly, evidence on record shows that the accused

had intimidated the prosecution witnesses as well as public at

large after assaulting PW3 Pravin, by branding knife. Therefore,

no infirmity can be found in his conviction for the offence

punishable under Section 506(II) of the IPC.

17 In the result, the appeal needs to be allowed partly by

modifying conviction of the appellant / accused for the offence

punishable under Section 307 of IPC to that under Section 326 of

the IPC.

     avk                                                                         17/18





                                                                          APPEAL-791-2012.doc

Rest of the order of conviction and sentence of the

appellant / accused needs to be maintained. The only question left for decision is, now what should be the sentence to which the

accused is liable for committing an offence punishable under Section 326 of the IPC. Needless to state that all substantive sentences of imprisonment imposed on the appellant / accused

are directed to run concurrently by the learned trial court.

18 So far as the sentence part of the impugned order is concerned, the appellant is reported to be behind the bars from

18th December 2009, and as such, he has suffered rigorous

imprisonment for a period of about 6 years 11 months. Similarly, it is seen from the evidence that the appellant is a footpath dweller and as such, there is no propriety in imposing any fine on

him for the offence committed by him, because of his extreme

poverty.

Therefore, the sentence of rigorous imprisonment imposed upon the appellant / accused is modified to the sentence

already undergone by him for all the offences proved against him, including the one punishable under Section 326 of the IPC.

The appeal is partly allowed to this extent and the

same is disposed of.

The appellant / accused be set at liberty, if not required in any other case.

                                                   (A. M. BADAR, J.)

     avk                                                                             18/18