Chandrashekhar S/O Ramchandra ... vs The State Of Maharashtra Through ...
2021 Latest Caselaw 11213 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                        CRIMINAL APPEAL NO. 116 OF 2018


  Chandrashekhar S/o. Ramchandra Katre,
  Aged about 41 years, Occ. Labour,
  R/o. At Bagheda, Tah. Tumsar,
  Dist. Bhandara.                                                         . . . APPELLANT

                         ...V E R S U S..

  The State of Maharashtra through
  Police Station Officer,
  Gobarwahi Police Station,
  Tah. Tumsar, Dist. Bhandara.                                         . . . RESPONDENT

 ------------------------------------------------------------------------------------------------
 Shri N. B. Kalwaghe, Advocate for appellant.
 Shri T. A. Mirza, A.P. P. for respondent/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 18.08.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Through this appeal, the appellant challenges the

judgment and order dated 07.11.2017 passed by the Additional

Sessions Judge, Bhandara in Sessions Trial No. 24/2015, convicting

and sentencing him in the manner hereinafter:-

(i) Under Section 307 of the Indian Penal Code to suffer

rigorous imprisonment for life.

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 (ii)             Under Section 452 of the Indian Penal Code to suffer

rigorous imprisonment for 3 years and to pay fine of ₹ 5,000/-, in 5,000/-, in

default to suffer rigorous imprisonment for 3 months.

3. The prosectuion case in brief is that the incident of assault

on Asha Katre (PW2) and Bhagiratha Bopach (PW3) took place on

26.01.2015 around 9.15 p.m.. It is alleged that the accused was

having love affair with Asha (PW2) and she have 12 years old son from

the accused. Bhagiratha (PW3) is mother of Asha (PW2). On

26.01.2015, the accused entered the house of Asha (PW2) and

Bhagiratha (PW3) and pulled Bhagiratha (PW3) by holding her hair

and gave blow of 'Katha' (Mutton Chopper) on her head. Bhagiratha

(PW3) raised her hand in order to protect her and therefore,

Bhagiratha (PW3) sustained injury on her head and hand. The

accused, thereafter, attacked Asha (PW2) by holding her hair and

assaulted her by 'Katha'. Asha (PW2) also tried to save her by her

hand and sustained injury on her head and left hand. In the said

assault, finger of left hand of Asha (PW2) was required to be amputate

and wrist of Bhagiratha (PW3) was detached. After the assault, the

accused ran away from the spot. Asha (PW2) and Bhagiratha (PW3)

were shifted to the Government Hospital, Tumsar and thereafter to the

Government Medical College, Nagpur.

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4. Narendra Gajanan Bopache, cousin of Asha (PW2), lodged

the First Information Report (FIR) with Gobarwahi Police Station, Tah.

Tumsar, Dist. Bhandara on the same day and accordingly the FIR

(Exh.31) came to be registered against the accused vide Crime No.

2/2015 for commission of offence under Sections 307 and 482 of the

Indian Penal Code.

5. Rajendra Wadyalkar (PW8) carried out initial part of the

investigation and Manoj Wadhive (PW12) carried out remaining part

of the investigation. The Investigating Officer recorded the statement

of the witnesses, including the injured eye-witnesses- Asha (PW2) and

Bhagiratha (PW3), collected blood samples of the accused and the

injured and sent it for chemical analysis. He seized clothes of the

accused and the injured, recovered weapon used for commission of

crime i.e. 'Katha'. After completion of the investigation, charge-sheet

came to be filed against the accused for his involvement in the

commission of offence referred to above. The offence punishable

under Section 307 of the Indian Penal Code being exclusively triable by

the Court of Sessions hence, the jurisdictional Magistrate committed

the case to the Sessions Court for trial.

6. Charge (Exh.22) came to be framed against the accused

for the offence punishable under Sections 307 and 452 of the Indian

Penal Code. As the accused pleaded not guilty, the trial commenced

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against him. From the cross-examination and statement under Section

313 of the Code of Criminal Procedure, the defence of the accused is of

false implication.

7. During the trial, in all, prosecution examined 12

witnesses. Two of them, Asha (PW2) and Bhagiratha (PW3), were

examined as eye-witnesses. The learned Trial Judge believed the

evidence of Asha (PW2) and Bhagiratha (PW3), being injured eye-

witnesses, convicted and sentenced the appellant in the manner stated

above.

8. We have heard Shri N. B. Kalwaghe, learned Advocate for

the appellant and Shri T. A. Mirza, learned A.P.P. for respondent/State.

Shri N. B. Kalwaghe, learned Advocate for the appellant submitted that

testimonies of Asha (PW2) and Bhagiratha (PW3), alleged to be eye-

witnesses, do not inspire confidence and the learned Trial Judge is not

justified in convicting the appellant relying on the testimonies of Asha

(PW2) and Bhagiratha (PW3). He submitted that there are material

inconsistencies and omissions in the testimonies of Asha (PW2) and

Bhagiratha (PW3). He submitted that the learned Trial Judge is not

justified in convicting the appellant under Sections 307 and 452 of the

Indian Penal Code.

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9. Shri T. A. Mirza, learned A.P.P. for the respondent/State

supported the impugned judgment and submitted that testimonies of

Asha (PW2) and Bhagiratha (PW3) inspire confidence. The ocular

evidence of the eye-witnesses are supported by medical evidence and

other circumstantial evidence in the form of recovery of the weapon

and blood-stained clothes. He submitted that from the nature of

injuries on the person of Asha (PW2) and Bhagiratha (PW3) and

considering the manner of assault, it is clear that the appellant intends

to cause death of Asha (PW2) and Bhagiratha (PW3) and therefore,

the learned Trial Judge is fully justified in convicting the appellant

under Sections 307 and 452 of the Indian Penal Code.

10. In our view, this appeal deserves to be dismissed since, we

feel that offence under Sections 307 and 452 of the Indian Penal Code

is made out against the appellant by the evidence on record.

11. So far as, involvement of the appellant in the incident is

concerned, the same has been established beyond pale of doubt by the

credible evidence furnished by Asha (PW2) and Bhagiratha (PW3),

medical evidence of Dr. Vilas Rahangdale (PW6) and Dr. Gopal Sarve

(PW9) and blood-stained clothes of the accused which having blood of

Asha (PW2) and Bhagiratha (PW3) on it and recovery of the weapon

from the accused.

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12. It is evident from the ocular evidence furnished by Asha

(PW2) and Bhagiratha (PW3) that the appellant pulled hair of

Bhagiratha (PW3) and gave blow of 'Katha' on her head. Bhagiratha

(PW3), in order to save the blow, raised her hand near her head and

sustained injury on her head as well as on her hand. The accused

thereafter turned to Asha (PW2) and assaulted her using 'Katha'. Asha

(PW2) also tried to save her by her left hand and sustained injury on

little finger of her left hand and also on right hand, cheek and chin.

The evidence of both the above witnesses remained unshaken in their

cross-examination on the material points. The oral testimonies of Asha

(PW2) and Bhagiratha (PW3), injured eye-witnesses, are supported by

medical evidence in the form of testimonies of Dr. Vilas Rahangdale

(PW6) and Dr. Gopal Sarve (PW9), who had examined Asha (PW2)

and Bhagiratha (PW3). Dr. Vilas Rahangdale (PW6), is the first

Medical Officer working at the Government Hospital, Tumsar, who

noticed following injuries on the person of Asha (PW2) and Bhagiratha

(PW3), which are as under :-

Injuries on the person of Asha (PW2)

(i) Incised wound on forehead, 6 cm X 2 cm X 1 cm, injury was fresh, caused by sharp object. The body prominence seen.

(ii) Incised wound on chin, 5 cm X 2 cm X 1 cm, injury was fresh, caused by sharp object.

(iii) Incised wound on right hand, cut down 4th and 5th finger, injury was fresh, caused by sharp object.

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           Injuries on the person of Bhagiratha (PW3)

           (i)      Lacerated wound on forehead, 4 cm X 2 cm, injury was
           fresh, caused by hard and blunt object.
           (ii)     Lacerated wound on left ear, 6 cm X 2 cm, it was fresh
           injury, it was caused by hard and blunt object.
           (iii)    Incised wound on left wrist, 3 cm X 2 cm, injury was fresh,
           caused by sharp object.
           (iv)     Incised wound on left parietal region of head, 4 cm X 2 cm,
           injury was fresh, caused by sharp object.
           (v)      Detachment of left wrist joint.

13. According to Dr. Vilas Rahangdale (PW6), he advised Asha

(PW2) and Bhagiratha (PW3) for conducting X-Ray and CT-Scan of

brain. He, therefore, referred both the injured to the General Hospital,

Bhandara. According to Dr. Vilas Rahangdale (PW6), both the patients

were not responding to the verbal instructions. Dr. Vilas Rahangdale

(PW6) stated that the injuries suffered by Asha (PW2) and Bhagiratha

(PW3) are grievous in nature and sufficient, in ordinary course of

nature, to cause death of the person. He further stated that the

injuries found on Asha (PW2) and Bhagiratha (PW3) may be possible

due to 'Katha'- the recovered weapon. Dr. Gopal Sarve (PW9) attached

with the General Hospital, Bhandara examined Asha (PW2) and

Bhagiratha (PW3) on 26.01.2015 at 11.15 p.m.. As per his testimony,

he sutured wounds of the injured and was of the opinion that the

injured needed plastic surgery and therefore, he referred Asha (PW2)

and Bhagiratha (PW3) to the Government Medical College, Nagpur.

Dr. Gopal Sarve (PW9) stated that the injuries suffered by Asha (PW2)

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and Bhagiratha (PW3) were grievous in nature and were life

threatening injuries. The evidence of Dr. Vilas Rahangdale (PW6) and

Dr. Gopal Sarve (PW9) remained unshaken during their cross-

examination. It is pertinent to note that the injuries, as deposed by

both the injured eye-witnesses Asha (PW2) and Bhagiratha (PW3), are

in consonance with the medical evidence in the form of testimonies of

Dr. Vilas Rahangdale (PW6) and Dr. Gopal Sarve (PW9), the medical

certificate issued by both the Medical Officers and their medical

evidence.

14. We have examined the versions of Asha (PW2) and

Bhagiratha (PW3) and we find them to be implicitly truthful witnesses.

In the first place, it should be borne in mind that both have explained

the circumstances as they saw the incident. Secondly, it should be

remembered that manner of assault described by them is corroborated

by the medical evidence. The testimony of Bhagiratha (PW3)

establishes the motive and intention to kill Asha (PW2) and Bhagiratha

(PW3). The motive for commission of the crime as established is that

the accused had love affair with Asha (PW2) since long. The accused

and Asha (PW2) have 12 years old son. The accused performed

marriage with one Asha Thakre and due to the said reason, Asha

(PW2) filed many cases against the accused. From the evidence, it

appears that Asha (PW2) lodged report against the accused in the year

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2003 under Sections 294 and 506 of the Indian Penal Code and in the

year 2007, she lodged report under Section 324 of the Indian Penal

Code. Those repeated lodging of the reports by Asha (PW2), injured

witness, was the root cause for assaulting the injured, as the accused

was feeling being harassed by Asha (PW2) and therefore, he intended

to kill Asha (PW2). Therefore, the prosecution has proved the motive

for commission of crime and therefore, in our view, there was no

reason for Asha (PW2) and Bhagiratha (PW3) to falsely implicate the

appellant.

15. In addition to the credible evidence referred to above, we

have bonus evidence against the appellant in the form of recovery of

blood-stained clothes and recovery of 'Katha' (Mutton Chopper) at his

pointing out. The weapon is discovered by the accused in presence of

independent witness- Mahavir Jaitwar (PW4). The accused made

disclosure statement regarding concealing 'Katha' in bush of 'Bandhi' of

a field of Zanditola Road and also shown his willingness to show the

weapon and accordingly, Mahavir Jaitwar (PW4) alongwith Police

party went to the spot where the accused discovered weapon from

bush of 'Bandhi'. No doubt, the field is adjacent to the public road but,

has no access to it. The Investigating Officer - Manoj Wadhive (PW12)

denied suggestion that the place of discovery of weapon is accessible to

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the public, which is denied by the Investigating Officer, as the said field

is a private property.

16. It needs to be mentioned here that clothes of accused

including shirt were sent to Chemical Analyst, who found human blood

bearing blood group-'B' on the shirt of the accused. It needs to be

noted that blood-group of Asha (PW2) and Bhagiratha (PW3) is also

"B". The accused failed to explain human blood bearing 'B'-group on

his clothes recovered at his instance is a incriminating circumstance.

17. In our view, the evidence referred above conclusively

establishes the involvement of the appellant in the crime.

18. In our view, the learned Trial Judge is fully justified in

convicting the appellant for offence under Sections 307 and 452 of the

Indian Penal Code, as the evidence establishes that the accused in fact

intended to kill both the injured eye-witnesses and therefore, made

assault on vital organs of their body. Both the injured eye-witnesses

sustained injuries on their forehead and head. Finger of Asha (PW2) is

amputate when she tried to save her head from the blow of the

accused on her head. Bhagiratha (PW3) also sustained grievous

injuries. The left hand wrist of Bhagiratha (PW3) was detached while

saving herself from the assault of the accused on her head. Both the

Doctors have stated that the injuries caused to Asha (PW2) and

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Bhagiratha (PW3) were grievous in nature and were life threatening

injuries. Section 307 of the Indian Penal Code reads as under :-

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.--When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."

19. On perusal of the said Section would show that if a

person, who does an act with intention or knowledge that if that act

can cause death, he will be guilty of murder and will be guilty of

offence under this Section. We would like to emphasis the question of

intention to kill or knowledge of death in terms of Section 307 of the

Indian Penal Code as a question of fact. It would all depends on the

facts of a given case. In this connection, it would be pertinent to refer

to the decision in the case of Sarju Prasad Vs. State of Bihar , reported

in (1965) AIR (SC) 843. In paragraph no. 6 of the said decision, the

Apex Court has observed as follows :-

"Therefore, the mere fact that the injury actually inflected by the appellant did not cut any vital organ of Shankar Prasad is not by itself sufficient to take the act out of the purview of Section 307."

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In paragraph no. 7 of the said judgment, the Apex Court

observed that in determining the intention of the accused,

circumstance of motive assumes importance. In our view, motive

stated by Bhagiratha (PW3), in her evidence, satisfactorily proved

intention of the accused to kill the injured eye-witnesses. We,

therefore, squarely satisfied that the appellant is guilty of the offence

under Sections 307 and 452 of the Indian Penal Code.

20. The question which remains is quantum of sentence which

is to be awarded to the appellant for the said offence. According to the

learned Advocate for the appellant, the appellant is 44 years old and

having two minor daughters and son and has old parents. He

submitted that the accused, in fact, wanted to marry Asha (PW2). He

submitted that there was love affair between the accused and Asha

(PW2) and therefore, there was no intention on the part of the accused

to kill the injured eye-witnesses. We are not impressed with Shri

Kalwaghe, learned Advocate for the appellant that lenient sentence

should be awarded to the appellant. In our opinion, considering the

injuries caused to Asha (PW2) and Bhagiratha (PW3) and the manner

of assault proved by the prosecution, the accused intended to kill the

injured witnesses. It was the destiny of the victims that gravity of

assault on their head were scaled down by their hands resulting into

detachment of wrist of Bhagiratha (PW3) and amputation of little

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finger of left hand of Asha (PW2). Both the Medical Officers, Dr. Vilas

Rahangdale (PW6) and Dr. Gopal Sarve (PW9) have stated that the

injuries suffered by the victims were life threatening injuries. The

weapon used by the accused was 'Katha' (Mutton Chopper) and the

injuries suffered by Asha (PW2) on her forehead, chin and right hand

are incised injuries and injuries suffered by Bhagiratha (PW3) are

incised wounds on left wrist, left parietal region and detachment of left

wrist joint.

21. It is well settled that while imposing adequate sentence on

the accused, it is one of the considerations that requisite sentence is for

protection of the society and legitimate response to the collective

conscious. The proportionate punishment is the obligation to the

society, which repose faith on the Court of law to correct the evil.

Therefore, it is the duty of the Courts, while imposing sentence to

remind itself about its reverence for rule of law. Though, the question

of sentence is a matter of discretion, yet the said discretion cannot be

exercised by the Court of law in fanciful and whimsical manner. In the

facts of the present case, the gravity of offence against the two women,

having no capacity to protect themselves, speaks for itself. The wrist of

left hand of one of the victim was detached and little finger of another

victim is cut off due to the result of assault. The Court cannot close its

eyes to the agony and anguish of the victims and eventually to the cry

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of the society. In our opinion, the crime committed by the accused is a

heinous crime which is committed in a brutal manner, which shakes

the conscious of the society and therefore in our opinion, the sentence

imposed by the learned Trial Court i.e. imprisonment for life is proper

sentence in the facts of the present case.

22. For the aforesaid reasons, we confirm the conviction and

sentence of the appellant under Sections 307 and 452 of the Indian

Penal Code. The Criminal Appeal is dismissed.

23. The appellant is in jail and shall serve out his sentence.

                               JUDGE                                         JUDGE




RR Jaiswal