Rajan Ayyar Shettiyar vs The State Of Maharashtra
2021 Latest Caselaw 12188 Bom

                        rpa                         1/21               cri.appeal 145 2000.doc


                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                     CRIMINAL APPEAL NO.145 OF 2000


                        Rajan Ayyar Shettiyar                    ]
                        Adult, Indian Inhabitant                 ]
                        (Presently lodged in Arthur Road         ]
                        Central Prison, Mumbai)                  ]   .. Appellant

                                Versus
                        State of Maharashtra                     ]
                        (At the instance of Kurla Railway Police ]
                        Station, Kurla, Mumbai 70)               ]   .. Respondent

                                                      ......
                        Ms.Sumedha S. Kokate, Amicus Curiae to represent the Appellant
                        Mr.R.M. Pethe, APP for the Respondent - State.
                                                      ......

                                                     CORAM : PRAKASH D. NAIK, J.

                                  CLOSED FOR ORDERS ON  : 6th AUGUST, 2021.
                                  JUDGMENT PRONOUNCED ON : 31stAUGUST, 2021.

                        JUDGMENT :

The appellant is convicted for the ofence punishable

under Section 307 of Indian Penal Code ("IPC", for short) and

sentenced to sufer rigorous imprisonment for three years and six

months and to pay a fne of Rs.1,000/-, vide judgment and order

dated 2nd February, 2020, passed by the Additional Sessions Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER Date:

Judge, Greater Mumbai, Mumbai, in Sessions Case No.270 of AHER 2021.08.31 13:24:39 +0530

1997.

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2           The appellant has        preferred this     Appeal under

Section 374 of C.P.C., challenging the impugned judgment and

order convicting him for the aforesaid ofence.

3 The prosecution case in short is that the victim is the

wife of the accused. The relations between them were strained.

The accused used to ill treat the victim for which several

complaints were lodged with the police and the accused was

residing separately from the victim from about a couple of

months prior to the incident. On the date of incident, the victim,

P.W.1 and another lady were proceeding to workplace. They were

waiting on platform at Mankhurd railway station to board the

train. When the train arrived, the accused came there and

noticing that the train took motion, he pushed the victim on the

track. The alert motorman stopped the train. The accused could

not succeed in his attempts, hence, he pounced on the victim and

attacked her with sharp edged weapon causing bleeding injury to

her throat. P.W.3 Police Naik was on duty at platform no.1. He

rushed to the spot. The crowd caught hold of the accused and

handed over him to P.W.3. The victim was treated for injuries. Her

complaint was recorded. The investigation proceeded. On

completing investigation, charge-sheet was fled.

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4           Charge was framed against the accused by order

dated 30th November, 1999, for ofence punishable under Section

307 of IPC. The accused pleaded not guilty. Prosecution examined

eight witnesses. The injured could not be examined since she was

out of India. P.W.1 Ramlaxmi is the niece of victim. P.W.2 Bhiku

Gotule is the ASI attached to Kurla Police Station. P.W.3 Namdeo

Darade is the Police Naik attached to Kurla Railway Police

Station. P.W.4 Dural Kaudan is the brother of injured/victim. P.W.5

Sapurda Kharate was working as Porter at Kurla Railway Station.

She was examined as panch witness. P.W.6 Dr.Bharati Tukley is

the medical oficer who treated the victim. P.W. 7 is the PSI. He

was SHO at Kurla Railway Police Station. P.W.8 Arjun Kadam was

attached to Kurla railway police station as police inspector.

5 Statement of accused was recorded under Section

313 of Cr.P.C. In his explanation, he stated that at the relevant

time he was standing outside Mankhurd railway station, and,

having tea. Meanwhile, police came and caught hold of him and

took him to Kurla railway police station.

6 Learned advocate Ms.Sumedha Kokate was appointed

as Amicus Curiae to represent the appellant since the advocate rpa 4/21 cri.appeal 145 2000.doc

for the appellant was absent on 14 th March, 2019, 15th March,

2021 and 5th August, 2021.

7 Learned appointed advocate made following

submissions:

(i) The prosecution has not proved its case beyond

reasonable doubt;

(ii) The complainant/victim was not examined as witness

by the prosecution.

(iii) Evidence of P.W.1 sufers from discrepancies. She

doesn't remember the exact date of incident. She is

not aware how the victim fell on the track. She did not

see the accused infecting blow to the victim on the

track. She had not seen the accused running away

with knife in his hand. She is not sure whether police

has recorded her statement. She did not see the

accused pushing the victim on the track.

      (iv)    The motorman has not been examined;


      (v)     No independent witnesses present in the crowd were

              examined by the prosecution.
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      (vi)    There is no forensic report or evidence to establish

              that the hexablade was used by the accused in

              commission of the ofence;

(vii) No fnger print of accused was on hexablade;

(viii) Hexablade was recovered on the next date;

(ix) No CCTV Footage was produced from the railway

station;

(x) There is no evidence to show that the hexa Blade is

used to cut the throat of the victim;

(xi) The medical oficer has not stated anything about the

ftness of the victim while recording the statement;

(xii) No witnesses have stated that they have seen the

accused assaulting the victim with weapon;

(xiii) The trial Court failed to appreciate the absence of

relevant material and evidence; such as, non

examination of victim, non examination of motorman

of train who is possible eye witness to the incident,

non examination of any person from the crowd, who rpa 6/21 cri.appeal 145 2000.doc

could have been eye witnesses to the incident;

(xiv) Learned advocate relied upon the decision of the

Supreme Court in the case of Takhaji Hiraji Vs.

Thakore Kubersingh Chamansingh and Ors. 1 and

the decision of Calcutta High Court in the case of

Soumik Roy Vs. State of West Bengal dated 5th

March, 2021.

8 Learned APP submitted that there is suficient

evidence for convicting the accused for the ofence under Section

307 of IPC. The relationship between the accused and the victim

was strained. The accused was caught at the spot of incident. The

evidence of P.W.1 inspires confdence. The witnesses have

deposed that the relationship between the accused and the victim

was strained. The accused was ill-treating the victim. She had

lodged complaints against him in the past. The accused has used

weapon in causing injury to the victim. The medical evidence

supports the prosecution case.

9 I have scrutinized the evidence on record. P.W.1 .

Ramlaxmi is the niece of victim. She was waiting along the victim

1 (2001) 6 SCC 145 rpa 7/21 cri.appeal 145 2000.doc

at Mankhurd railway station at platform no.3 for boarding train to

Chembur. Her friend was also accompanying them. When the

train arrived, she boarded the train alongwith the friend.

However, her aunt (victim) could not. The victim was bleeding.

She was frightened. P.W.1 caught down from the train. She did

not know how the victim fell on the track. The victim told her that

her husband had pushed her on the track. The crowd had

gathered there and they assaulted the accused. The victim was

taken to the hospital. Police had caught the accused immediately

at the spot. The accused is the husband of the victim. Statements

of the witnesses were recorded. She further stated that there

were quarrels between the accused and the victim. Several

complaints were fled by the victim against the accused with

Cheeta Camp Police Station, Trombay. About 2 to 3 months prior

to the incident, the accused had started residing separately. She

had not seen the accused inficting knife blow to his wife and

running away with knife in his hand. In the cross-examination by

defence, the witness denied that the victim did not disclose to her

that accused pushed her on the track. She cannot say whether

police had recorded statement as per her say.

10 P.W.2 Bhiku Gorule was attached to Kurla railway

station as ASI. He was instructed to visit Shatabdi Hospital at rpa 8/21 cri.appeal 145 2000.doc

Govandi for recording statement of the injured women, who was

admitted for treatment since she was assaulted by her husband at

Mankhurd railway station. When he rushed to hospital, P.W.3

Namdeo Darade was present at the hospital. She was in

conscious condition. With the permission of Doctor, statement of

injured was recorded as per her say. Her signature was obtained.

Blood stained clothes of the victim were recovered. He identifed

the signature of the patient (injured). He also identifed his

signature on the statement. He identifed the clothes of the victim

and the weapon seized during investigation. He was cross -

examined by the defence. In the cross-examination, nothing could

be brought on record to doubt his version. P.W.3 Namdeo Darade

was attached to Kurla Railway Police Station. From 24 th

September, 1996 to 25th September, 1996, he was on duty at

Mankhurd railway station. On 25th September, 1996, he was

standing on platform no.1 at Mankhurd railway station. He heard

somebody shouting "Pakdo, Pakdo", from platform no.3. The

passenger on that platform started running helter and skelter. He

rushed to platform no.3. The passengers had caught one person.

He was informed that the said person had assaulted women on

her throat. He identifed the accused in the Court. The accused

was taken in custody at the fag end of platform no.3. Wife of the rpa 9/21 cri.appeal 145 2000.doc

accused (victim) and her friend were standing by the side of the

track. The injured was holding her throat by her hand having

sustained throat injury. He made inquiry with the injured. She

stated that she will go on her own to the hospital with her friend.

From the spot, he took in custody monthly season ticket/pass, one

yellow colour plastic bag with the lunch box in it, which were

found lying by the side of the track. Said articles belonging to the

injured. The accused was arrested. In the cross-examination, the

witness admitted that he caught hold of the accused at the fag

end of the platform towards C.S.T. end. Nothing could be brought

through the cross -examination of this witness to disbelieve the

version of this witness.

11 P.W.4 Dural Kaudan is the brother of the injured. He

deposed that the complainant/injured was married to the accused

about 15 to 20 years ago. The accused used to trouble the victim.

On several occasions, he tried to persuade accused but he did not

show any improvement. Injured lodged complaint with the police

against the accused for ill-treatment. Victim used to go for work

at Chembur. On 25th September, 1996, the injured was admitted

in hospital as she sustained injury to her throat. There was no

efective cross-examination by the defence.

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12         P.W.5 Sapurda Kharate was examined as panch

witness for recovery of clothes of the injured. He was called at

Kurla railway police station for drawing panchanama. Police

obtained his signature. Police have efected another panchanama.

The panchanama were marked as Exhibits 12 and 13. This

witness was working as Porter at Kurla railway station. On 29 th

September, 1996 this witness was called to Kurla Railway Police

Station for drawing panchanama of seizure of clothes. Signature

of this witness was obtained on the paper and was asked to to go.

He was shown the panchanama dated 25th September, 1996. He

stated that it bears his signature and its contents are true and

correct. The other pancha has not signed in his presence. Another

panchanama was executed in his presence for seizure of Season

ticket, yellow plastic bag with lunch box. He identifed his

signature on the panchanama. He was shown the clothes of the

victim which were identifed by him. He was cross-examined. He

stated that when the witness reached police station, she was

made to sit and prepared panchanama. He was shown the

clothes and other articles. He denied that panchanama was not

recorded in his presence and that he has deposing false.

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13          P.W.6 Dr.Bharti Tukley, is the medical oficer attached

to Shatabdi Hospital, Govandi. On 25th September, 1996, she was

on duty. The victim was brought by relatives with history of

assault by her husband. She had bleeding injury. She complained

of dificulty in speech. She sustained CLW anterior neck 5 cm x 1

cm x 1 cm; CLW anterior neck 4 cm x 1 cm x 1cm. She was

admitted in the hospital. She was indoor patient for fve days.

Medical certifcate was issued to that efect. She was discharged

on 29th September, 1996. She brought the original medical

register maintained by the hospital. The xerox copy of extract of

entry No.3814 dated 25.09.1996 was taken on record. She stated

that the entry mentioned in Ex. 15/1 can be caused by sharp

weapon. In the cross-examination, she deposed that it is true that

if one falls on cutter knife one may sustain the injuries found on

the person of patient.

14 P.W.7 Gajanan Ravji Sangale was station house oficer

at Kurla railway police station. On the day of incident, he was on

duty. Statement of patient alongwith his report was produced by

ASI Gorule (P.W.2). He registered C.R.No.394 of 1996.

Investigation was thereafter transferred to P.W.8 Arjun Kadam,

attached to Kurla Railway police station as an inspector.

rpa 12/21 cri.appeal 145 2000.doc

P.W.8visited the spot of incident and drawn the spot panchanama.

From the spot, he took in custody the piece of hexablade. After

the panchanama, he proceeded to Shatabdi Hospital to make

inquires with the complainant. He produced panchanama dated

26th September, 1996 about the recovery of hexablade, which

were marked as Exhibit 19. He identifed the hexablade which

was recovered from the spot. He recorded statement of

witnesses. He took blood sample, complainant's clothes and the

hexablade to the chemical analyser by letter dated 17 th October,

1996. On completing investigation, he fled a charge-sheet. The

complainant has gone to Kuwait. He made inquiries. He fled

report to that efect which was marked as Exh. 23 colly. In the

cross-examination, he stated that he has not recorded statements

of police constable who carried the samples to C.A. The cross-

examination is cryptic. Nothing could be elucidated from the said

witness to support the defence of the accused.

15 The C.A. report regarding clothes of the victim and

the weapon was marked as Exh. 22 collectively. The result of the

analysis indicate that Exhibit 1 (blouse) has considerable number

of blood stains ranging from 0.1 to 10 cms in diameter spread

around the neck and Exhibit 2 (Sari) is stained with blood at rpa 13/21 cri.appeal 145 2000.doc

places; Exhibit 3 (blade) is stained with blood. The species origin

of Exhibits 1, 2 and 3 is human. The ABO Grouping of Exhibits 1

and 2 is "O" and Exhibit 3 is Inconclusive. The C.A. report

regarding blood of the victim (Exhibit 22) indicate blood of the

victim Mrs.Victoria Rajan Shettiyar was of blood group "O".

16 The defence of the accused is of total denial.

However, he stated that he was outside Mankhurd railway station

where he was caught by the police and taken to Kurla railway

police station.

17 The Appeal was admitted by this Court. Apparently,

the sentence was not suspended. The record indicate that the

appellant accused has undergone the sentence of imprisonment.

18 On analysing the evidence, I do not fnd any infrmity

in the fndings arrived at by the trial Court convicting the

appellant for the ofence under Section 307 of IPC. Inspite of the

fact that the victim/injured was not examined by the prosecution

as she was not available for recording evidence, there is suficient

evidence before the Court to fasten the guilt of the accused. The

accused is the husband of the victim. The incident of assault had rpa 14/21 cri.appeal 145 2000.doc

occurred on 25th may, 1996. The relationship between the

appellant and the victim was strained. The evidence discloses

that the wife of the accused had lodged several complaints

against him. The complainant/victim was out of country. The

report in that regard along with the statement was fled before

the court which was marked at Exhibit 23. P.W.1 is the niece of

the victim. She was accompanying the victim on the day of

incident. She has categorically stated that in the year 1996, she

and the complainant were residing in the same locality, although

the does not remember the exact date of incident, she stated that

it took place about four years ago. She has narrated the incident.

P.W.1, victim and their friend were together. They were standing

on platform no.3 at Mankhurd for boarding the train. Although

she has not stated that she had seen the accused pushing the

victim on the platform and assaulting her, she had categorically

deposed that she was accompanying the victim and when the

train arrived, she boarded the train. The complainant could not

do so. Thereafter, she heard weeping of the complainant. She got

down from the train. The victim was on the track. It is pertinent

to note that this witness has referred to the presence of the

accused on the platform. She stated that the crowd had gathered

and they had severely beaten the accused and police caught the rpa 15/21 cri.appeal 145 2000.doc

accused. She took the complainant to the hospital. The nature of

relationship between the accused and the complainant is

disclosed by this witness. The victim had lodged several

complaints against the accused and that accused had started

residing separately from his wife (victim) since last 2 to 3 months.

This witness was cross-examined, however, the exercise was

futile. All the witnesses have submitted that the victim was

shifted to the hospital. Thus, the victim was taken to the hospital

as she had sustained the injuries. P.W.1 is the witness who took

the victim to the hospital. Although P.W.1 has not deposed about

the fact that she had seen the accused giving blow by the weapon

or running away with the weapon, the circumstances put forth by

the said witness are strong enough to attribute the motive of the

accused to establish his presence at the scene of ofence. The

presence of the victim at the spot, the nature of injuries sustained

by her which infers that the accused had assaulted the victim and

caused injury to her throat. It is also pertinent to note that when

the victim was taken on hospital by P.W.1, the history was

recorded by the hospital. The said document was marked at

Exhibit-15. It indicates that the history of assault by husband on

08:30 a.m. on 25th September, 1996 by knife was recorded and

that the victim had dificulty in speech. The document also refers rpa 16/21 cri.appeal 145 2000.doc

to the nature of injuries sustained by the victim. Thus, right from

inception, it is the case of the prosecution that the victim was

assaulted by the accused. P.W.3 has supported case of

prosecution. He heard shouts of public. He took accused from

custody of public at platform.

19 The case of the prosecution that the victim was

assaulted by weapon which has resulted in the injury to the neck

of the complainant is further corroborated by the medical

evidence which was brought on record through P.W.6 Dr.Bharti

Tukle. She has deposed that the victim was brought to the

hospital with history of assault by her husband and she had notice

the injurious viz. CLW anterior neck 5 cm x 1 cm x 1 cm; CLW

anterior neck 4 cm x 1 cm x 1cm. The victim was admitted as

indoor patient for fve days. The medical certifcate was

produced. Thus, after the incident of assault, the victim was taken

to the hospital by P.W.1 which fact is corroborated by the other

evidence on record. The victim was examined by P.W.6. The

injuries were found on the neck which shows the intention of the

accused. The incident had occurred on the track of railway

station. The incident had occurred when the train had arrived and

it was on motion. The victim was assaulted with knife by giving rpa 17/21 cri.appeal 145 2000.doc

blow on the throat which is proved by the evidence of witnesses

and medical evidence. The suggestion given to this P.W.6 is

insignifcant in the light of her evidence and in examination-in-

chief and the medical case papers. It is also pertinent to note that

P.W.1 has stated that the victim had told that the accused had

pushed her on the track and thereafter caused injury to her with

sharp edged weapon. Although the witnesses has not referred to

the injury caused by the accused in the examination-in-chief. The

prosecution has brought on record that P.W.1 took the victim to

the hospital immediately.

20 The defence of the accused is that he was outside

Mankhurd railway station and having tea. Trial Court has

observed that there was no justifed explanation as to for what

reason the accused was present at Mankhurd railway station. He

was not employed anywhere, and, that he was required to board

the train at Mankhurd to attend his workplace. In fact, it is the

case of the defence that the accused was unemployed, and,

therefore, false complaint was lodged against him. According to

accused, he was caught outside the Mankhurd railway station and

brought to station. However, no such suggestion was put to the

prosecution witnesses. It is not denied that the complainant had rpa 18/21 cri.appeal 145 2000.doc

sustained injuries. He was present at the railway station. He did

not take any step for taking the applicant in the hospital.

21 P.W.2 had recorded the complaint of the victim. He

had obtained the permission of doctor on duty. There is no reason

to doubt the fact that the victim had given her statement to

police. The clothes of the victim were produced by her mother.

P.W.2 had identifed the clothes. The cross-examination of this

witness is of no assistance to the defence. P.W.3 was on duty at

Mankhurd railway station. His version inspires confdence. His

presence at the railway station is established. There is no reason

to doubt his version. His conduct is natural. He heard the shouts

of people and rushed to the spot. The accused was caught by the

people. He took the accused in custody. He had identifed the

accused. He referred the injuries sustained by the victim. He

stated that the victim was holding her throat with her hand

having sustained bleeding injury. From the spot, he took in his

custody monthly pass, yellow coloured plastic bag and lunch box.

The said articles were belonging to the complainant. There was

no reason for the said articles being found on the track.

Surprisingly, in the cross-examination of this witness, suggestion

was given that he caught the accused at the fag end of the rpa 19/21 cri.appeal 145 2000.doc

platform towards CST end. The suggestion indicate that the

denfence admits his presence at the platform. It is pertinent to

note that in an explanation ofered in the statement under Section

313 of Cr.P.C., the accused have stated that he was outside

Mankhurd railway station from where he had caught. Thus, his

presence near the spot of incident is admitted. There is no

efective cross-examination to demolish the evidence of this

witness. These are the strong circumstances which proves the

presence of the accused and the fact that he was assaulted his

wife.

22 P.W.4 is brother of complainant who deposed about

the strained relationship between the complainant and his wife

and the ill treatment given to her by the accused. The victim and

the accused were residing as his neighbours. There were quarrels

between them. He tried to persuade him, but, there was no

improvement. He also stated that complaints were lodged against

the accused by the victim about the ill-treatment. P.W.5 is the

panch witness for recovery of clothes of the injured and the

articles at the spot. The panchanama has been proved in

evidence. P.W.7 and P.W.8 have conducted investigation. P.W.8 has

stated that the victim had gone to abroad and not available for rpa 20/21 cri.appeal 145 2000.doc

recording evidence and the report in that regard is fled before

the Court.

23 C.A. report regarding the clothes of the victim and

the weapon as well as about the blood group of the victim were

adduced in evidence, which also supports the prosecution case.

24 Thus, despite the fact that the victim was not

available for deposing before the Court, there are strong

evidence enough to convict the appellant, the nature of injuries

caused to the victim, the fact that the injury was inficted on the

neck and the place where the incident had occurred shows the

intention of the accused that he had attempted to cause death of

the victim. The trial Court had correctly appreciated the evidence

and convicted the accused. The decisions relied upon by learned

advocate for the appellant were delivered in the facts of those

cases. I fnd no reason to interfere with the fndings and the

judgment of conviction.

25 At this stage, the assistance rendered by learned

advocate Ms.Sumedha Kokate who was appointed as A micus

Curiae to represent the appellant needs to be appreciated. Within rpa 21/21 cri.appeal 145 2000.doc

a short span of time, she had efectively prepared herself to argue

the matter and represented the appellant. The concerned

authority shall pay the professional fees to the extent of

Rs.5,000/-, to the learned advocate appointed as Amicus Curiae.

:: O R D E R ::

(i) Criminal Appeal No.145 of 2000, is dismissed;

(ii) The judgment and order dated 2nd February, 2020,

passed by the Additional Sessions Judge, Greater

Mumbai, Mumbai, in Sessions Case No.270 of

1997, convicting the appellant for the ofence

punishable under Section 307 of IPC, is

confrmed, and, sentence imposed therein is

confrmed;

(iii) Criminal Appeal No.145 of 2000, stands disposed

of accordingly.

(PRAKASH D. NAIK, J.)