Bombay High Court
Jayantilal Govindji Vador vs The State Of Maharashtra on 22 December, 2021
Bench: C.V. Bhadang
jud-apeal-514-2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.514 OF 2016
Jayantilal Govindji Vador ]
R/at B/4, Kamla Nehru Shopping ]
st
Center, 1 Floor, N.S. Road, ]
Mulund West, Mumbai ]
At present undergoing sentence at ]
Nashik Central Prison ] ..Appellant
V/s.
The State of Maharashtra ]
At the instance of Sr. Inspector of Police ]
Navghar Police Station Vide their C.R. ]
No.33 of 2013 ] ..Respondent
----
Mr.Sudeep Pasbola a/w Mr.Karl P. Rustomkhan i/b Mr.Rahul
Arote for the Appellant.
Mr.S.R. Agarkar, APP, for the Respondent-State.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 27 OCTOBER 2021
PRONOUNCED ON : 22 DECEMBER 2021
JUDGMENT :
. By this appeal, the Appellant-Accused is challenging
the judgment and order dated 30 June 2016 passed by the
learned Sessions Judge, Greater Mumbai in Sessions Case No.929
of 2013. By the impugned judgment the Appellant has been
N.S. Kamble page 1 of 19
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convicted for the offence punishable under Section 307 and 354
of the Indian Penal Code ('IPC' for short). For the offence under
section 307 of the IPC the Appellant has been sentenced to suffer
RI for 10 years with fine and under Section 354 of IPC he has
been sentenced to suffer RI for 5 years with fine. Both these
sentences have been directed to run concurrently.
2. The prosecution case may be briefly stated thus:-
That the victim Asha Devendra Sindhal (PW-1) was
working as a cook and was known to the Appellant. On 12 March
2013 at about 6.00 p.m. Asha was proceeding for her work.
When she reached near Ganpati Temple one autorikshaw came
and stopped by her side. Asha noticed that it was the Appellant
who was occupying the autorikshaw and insisted her to sit besides
him. Asha resisted for the reason that she was to go for work.
However, the Appellant is alleged to have assured Asha that he
will drop her at the place of her work upon which Asha boarded
the autorikshaw. The Appellant asked the autorikshaw to be
taken towards Airoli threatening her to keep quiet. The
Appellant was having a big knife wrapped in newspaper.
3. It is the material prosecution case that the Appellant
asked the victim about repayment of his money and also asked
her to stay with him and aksed for sexual favours which was
refused by the victim, whereupon the Appellant is alleged to have
N.S. Kamble page 2 of 19
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taken out the knife and assaulted her on her left arm, head and
back and thereafter pushed her out of the running autorikshaw.
PW-1 fell down on the road near Airoli Bridge. It so happened
that Neeta Anil Dalal (PW-2) and Linet Parera (PW-3) who were
traveling by a bus passing by the side of autorikshaw noticed that
the victim had fallen down from the running autorikshaw and
therefore they alighted from the bus and found that the victim
was lying in an injured condition. She was carried to Veer
Savarkar Hospital where her statement was recorded by the police
and FIR came to be registered for the offence punishable under
Section 307 of Indian Penal Code. After she was given some
medical aid the victim was shifted to Ashirwad hospital at
Mulund.
4. In the course of the investigation the Appellant came
to be arrested and the Investigating Officer recorded the
statement of the witnesses and made certain seizures of the
clothes of the Appellant, as well as the victim. A spot
panchnamma was drawn and after completion of the
investigation a charge-sheet came to be filed against the Appellant
for the offence punishable under Section 307 and 354 of IPC, as
it was also alleged by the victim that in the autorikshaw the
Appellant had inserted his hand in her top.
N.S. Kamble page 3 of 19
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5. The learned Sessions Judge framed charge under the
aforesaid sections. The Appellant pleaded not guilty to the
charge and claimed to be tried. The defence of the Appellant is
one of total denial and false implication.
6. At the trial the prosecution examined in all fourteen
witnesses and produced the record of the investigation. The
Appellant did not lead any evidence in defence.
7. The learned Sessions Judge has found the Appellant
guilty as aforesaid. Hence, this Appeal.
8. I have heard Mr.Pasbola, the learned counsel for the
Appellant and Mr.Agarkar, the learned Additional Public
Prosecutor for the Respondent-State. With the assistance of the
learned counsel for the parties, I have gone through the record.
9. It is submitted by the learned counsel for the
Appellant that the presence of the Appellant in the autorikshaw
with PW-1 is doubtful as PW-5 who is the autorikshaw driver has
not supported the prosecution. It is submitted that the evidence
of PW-5 would support the defence that the PW-1 had seen the
Appellant when she was traveling with another person in the
autorikshaw.
N.S. Kamble page 4 of 19
jud-apeal-514-2016
10. It is pointed out that the evidence of PW-2 and PW-3
does not corroborate the evidence of PW-1 as there are material
omissions and discrepancies between their evidence. The learned
counsel pointed out that even PW-6 who is the Traffic Personal
who had reached the spot, also does not support the prosecution.
The learned counsel pointed out that PW-2 and PW-3 are chance
witnesses and their presence on the spot is doubtful. He pointed
out that the Investigating Officer PW-12 has not conducted any
identification parade and therefore the uncorroborated testimony
of PW-1 cannot be accepted, particularly when there were
disputes between PW-4 (husband of PW-1) and the Appellant on
the point of the monetary transactions. The learned counsel also
pointed out a discrepancy between the evidence of PW-1 and
PW-4 in which PW-4 has stated that PW-1 had proceeded for her
work in the autorikshaw when PW-1 claimed that she was
proceeding on foot.
11. Insofar as the recovery of the weapon (Article-A) is
concerned, it is submitted that same is from a public place. PW-8
who is the panch witness on the recovery has not supported the
prosecution. He therefore, submitted that the recovery which is
spoken of by PW-12 cannot be accepted particularly when the
same is from a public place.
N.S. Kamble page 5 of 19
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12. Reliance in this regard is placed on the decision of the
Supreme Court in Salim Akhtar Alias Mota V/s. State of U.P. 1,
Kora Ghasi V/s. State of Orissa2 and Trimbak V/s. State of
Madhya Pradesh3 and decision of this Court in Parshuram Alias
Parshu Ganpat Nalwade V/s. State of Maharashtra 4 and Jaysing
Alias Gangawa Mesraj Kharariya and Another V/s. State of
Maharashtra5.
13. It is submitted that even the recovery of the blood
stained clothes is doubtful as the Appellant was arrested on 15
March 2013 i.e. after 2 days of the incident and it is highly
improbable that the Appellant would keep the blood stained
clothes, in a plastic bag from which they were allegedly
recovered. It is submitted that even otherwise the Chemical
Analysis report as to the blood stained clothes is inconclusive.
14. The learned counsel has pointed out certain
omissions in the evidence of PW-1. It is pointed out that the
alleged advances from the Appellant seeking sexual favour from
PW-1 have not been disclosed by her to her husband or any body
else. He pointed out that the parties were known to each other at
least from the year 2004 and they were on visiting terms with
each other and thus it is unlikely that the Appellant would make
1 (2003) 5 Supreme Court Cases 499
2 AIR 1983 Supreme Court 360
3 AIR 1954 S.C. 39-Vol 41
4 Criminal Appeal No.553 of 2008 decided on 23 April 2015
5 1999 CRI. L.J. 1687
N.S. Kamble page 6 of 19
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any such gesture or advances seeking sexual favour from PW-1.
The learned counsel has pointed out certain discrepancies from
the evidence of PW-14 Dr.Sameer Devalekar about the history of
the assault given which is not in consonance with the evidence of
PW-1. It is submitted that the Appellant has been falsely
implicated on account of the recovery of certain amount from the
husband of the PW-1. It is submitted that the Appellant had seen
PW-1 traveling in the autorikshaw with one Ravi Sab who was
resident in the vicinity of PW-1 and therefore being scared of any
disclosure being made by the Appellant to her husband, PW-1
has falsely implicated the Appellant. The learned counsel pointed
out that the possibility of PW-1 having jumped out from the
autorikshaw and having sustained injuries cannot be ruled out.
15. The learned Additional Public Prosecutor has
supported the impugned judgment. It is submitted that
admittedly there were monetary transactions between Appellant
and the PW-4 and an amount of Rs.20,000/- was said to be due
and payable by PW-4 to the Appellant. It is submitted that there
is consistent evidence of PW-1 to show that the Appellant had
made gestures seeking sexual favours from her and on account of
her refusal, she was assaulted in a premeditated manner, as the
Appellant was found carrying a weapon with him in the
autorikshaw. It is submitted that the evidence of PW-1 is
corroborated by the evidence of PW-2 to PW-4 as also the
N.S. Kamble page 7 of 19
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medical evidence, notwithstanding certain discrepancies/
omissions, which in the opinion of the learned Additional Public
Prosecutor are not of substantial nature. It is submitted that the
evidence of PW-1 also finds corroboration from the medical
evidence. It is submitted that normally a victim of such offence
would not venture to falsely implicate someone else, in the place
of the real assailant.
16. It is submitted that the defence is farfetched and
improbable as PW-1 cannot be expected to jump from the
autorikshaw, even assuming that she was seen with Ravi Sab in
the autorishaw. It is submitted notwithstanding that PW-5 and
the panch witnesses have not supported the prosecution, the
evidence of PW-1 is sufficient to find the Appellant guilty. It is
submitted that the recovery cannot be said to be from a place
which is accessible to all and quite to the contrary it was within
the special knowledge of the Appellant which is the gist of the
incriminating circumstance as to recovery of the weapon at the
instance of the Appellant. He therefore submitted that the appeal
be dismissed.
17. I have carefully considered the rival circumstances
and the submissions made. It has come on record that PW-1 and
her husband PW-4 were acquainted with the Appellant at least
since the year 2004. It has also come on record that there were
N.S. Kamble page 8 of 19
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monetary transactions between the Appellant and PW-4. It has
consistently been stated that the Appellant was indulging in
money lending and had advanced loan to PW-4. According to
PW-1 and PW-4 the amount was being repaid in installments of
Rs.3,000/- and at the time of the incident an amount of
Rs.20,000/- was payable. As noticed earlier these monetary
transactions between the parties are not disputed. PW-1 was
working as a cook with Mr.Jain at Mulund. On the day of
incident at about 6.00 p.m. she had started to go for her work.
18. Broadly speaking there are three spots of incident in
this case. The first is near the Ganesh Temple, where the
Appellant is alleged to have gone in an autorikshaw and asked
PW-1 to accompany him. The second is in the running
autorikshaw itself in which PW-1 was assaulted. The third is on
the Airoli Bridge on the public road where according to PW-1 she
was pushed out of the autorikshaw and was noticed by PW-2 and
PW-3 who are independent witnesses. PW-1 has stated about the
incident which happened in the evening of 12 March 2013 with
meticulous details. She has stated that when she had reached near
Ganpati Temple, on way to her work, the Appellant came in an
autorikshaw and asked her to accompany him when she refused.
However the Appellant insisted for PW-1 to accompany him and
then took her towards Airoli Bridge in the autorikshaw. It is
claimed that the Appellant asked PW-1 for sexual favours and to
N.S. Kamble page 9 of 19
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stay with him and on her refusal she was assaulted with knife
(Article-A) on her head, left hand and on the back and thereafter
thrown out of the autorikshaw near the Airoli Bridge.
19. PW-1 has also stated that in the autorikshaw the
Appellant tried to outrage her modesty, by inserting his hand in
her top. However, this part of the evidence is not corroborated by
the complaint of PW-1 which was recorded on the same day in
the hospital. It is only in the supplementary statement of PW-1
recorded on 23 March 2013 in which she claimed that the
Appellant had tried to outrage her modesty. I have given my
anxious consideration to the overall evidence and the evidence of
PW-1 on the point of the Appellant having taken her in the
autorikshaw, asking her for sexual favour and assaulting her by
the knife (Article-A) and thereafter throwing her from out of the
running autorikshaw which evidence is of a consistent nature,
inspiring confidence. Insofar as the allegation about the
outraging of the modesty is concerned, it would be unsafe to rely
on same, as there is no whisper about the same, in the complaint.
It is well settled that even with a truthful witness, there may be a
tendency of improvement or embellishment, in order to add spice
to the overall allegations. It is precisely in such cases that the
Court has to make an attempt to separate grain from the chaff.
On a careful consideration of the evidence of PW-1, I find that
her evidence as to the principle incident of assault is natural and
N.S. Kamble page 10 of 19
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cogent and one inspiring confidence. It is trite that a victim of
such an assault would not venture to implicate a person falsely,
thereby exonerating the real assailant. It is necessary to note that
the evidence of an injured witness, normally would carry greater
weight and probative value.
20. I have considered the submission as to certain
discrepancies between the evidence of PW-1 and PW-4.
However, I do not find that they are of such a nature which would
strike at the root of the veracity of the evidence of PW-1 and PW-
4. For instance it was pointed out that PW-4 stated that in the
evening PW-1 had left in an autorikshaw, while PW-1 herself
stated that she was proceeding on foot. It is necessary to note that
according to PW-4 he along with PW-1 and their daughter had
gone out in the afternoon and had returned in the evening by an
autorikshaw, after which PW-1 had proceeded for her work at
about 6.00 p.m. In all probability as PW-1 and PW-4 had
returned by an autorikshaw, after going out in the afternoon, that
there is likelihood of some confusion. However, the evidence of
PW-1 is clear that she was proceeding on foot to her work place,
when she was intercepted by the Appellant in an autorikshaw.
21. I have also considered the submission as to the
possibility of PW-1 having jumped out of the autorikshaw and
thereby sustaining the injuries, which in my considered view
N.S. Kamble page 11 of 19
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cannot be accepted for multiple reasons. First it is improbable
that because PW-1 was allegedly seen with Ravi Sab by the
Appellant in the autorikshaw, she would venture to jump out of
the autorikshaw on the apprehension that the Appellant may
disclose this to her husband. In such a case, there would be an
attempt to flee away from the spot and not otherwise. Secondly
and most importantly a reference needs to be made to the
panchnamma as to the recovery of the autorikshaw which is at
Exhibit-23. Although PW-8 Kalidas Hajare who is a panch was
allowed to be cross-examined by the learned Additional Public
Prosecutor, the seizure of the autorikshaw bearing
No.MH-03/BA/6605 has been established on the basis of the
evidence of the Investigating Officer. What is significant is that
there were blood stains found on the rear seat/portion of the
autorikshaw which were dried blood stains. The Investigating
Officer had obtained the sample of the said blood stains and they
were sent for the report of the Chemical Anlaysier. It is necessary
to note that as per Chemical Analysier Report (Exhibit-66) which
is about blood sample taken from the PW-1 her blood group is
stated to be 'O'. It is significant to note that even the specimen
taken from the blood stains from the autorikshaw were also
found belonging to blood group 'O'. This circumstance clearly
supports the case of PW-1 about an assault in the running
autorikshaw and rules out the possibility of PW-1 having
sustained the injuries (which the Medical Officer has stated,
N.S. Kamble page 12 of 19
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could be caused by the weapon, Article-A), being sustained
because of a fall from the running autorikshaw. The rexin hood
of the autorikshaw has found to be damaged / cut, in all
probability during the incident.
22. PW-2 Neeta Anil Dalal and PW-3 Linet Parera have
also stated about having noticed PW-1 on the road in an injured
condition and then helping her to get admitted in hospital. PW-1
was initially taken to the Veer Sawarkar Hospital which is a
Government Hospital and thereafter shifted to private hospital
namely Ashirwad Hospital at Mulund by PW-4 Devendra
Sindhal and PW-13 Shilpa Bhinde. The contention about non
holding of an Test Identification Parade, cannot be accepted, as
P.W.1 and the Appellant were acquainted with each other.
23. I have carefully gone through the evidence of PW-2
and PW-3 and although they may have been at the spot of the
incident as they were returning from work, their evidence cannot
be discarded as being chance witnesses. The criticism as to PW-2
and PW-3 being chance witnesses, has to be considered, in the
totality of the evidence of PW-1, PW-2 and PW-3. There is
sufficient evidence on record that PW-2 and PW-3 had manged
to help PW-1 being carried to the hospital along with PW-6
Mahadev Daund.
N.S. Kamble page 13 of 19
jud-apeal-514-2016
24. PW-9 Ajay Kumar Sharma is the panch on the seizure
of the weapon who has also turned hostile. However, the seizure
of the weapon at the instance of the Appellant has been spoken to
by the Investigating Officer who states that on 17 March 2013,
the Appellant made a confessional statement offering to produce
the knife which was reduced in the form of a panchnamma
Exhibit-45. The Appellant led the police and the panchas to the
spot. The Appellant led them by the steps going down towards
the left side of the bridge while proceeding to Airoli. The knife
was recovered by head constable Gangurde from the grass as
indicated by the Appellant, which was a knife having aluminum
handle with a button. The knife was accordingly seized under
panchanama Exhibit-46 after it was sealed. This recovery has
been criticized on the ground that it is from a public place. It is
true that the probative value to be attached to the evidence of
discovery under Section 27 of the Evidence Act would dependent
upon several factors including the place from where the recovery
is made and the possibility of the Investigating Officer having
already found the incriminating article. It is evident that the
question whether the discovery under Section 27 can be accepted
or not would depend upon facts and circumstances of each case.
25. In the present case the incident is alleged to have
happened near the Airoli Bridge and the knife was recovered at
the instance of the Appellant from the grass after the Appellant
N.S. Kamble page 14 of 19
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led the Investigating Officer and other members, by the steps
climbing down the Khadi Bridge while proceeding towards
Airoli. The knife was recovered from the grass and thus for all
practical purpose, it can be said that it was concealed from the
public view in the grass. The place under the bridge cannot be
said to be easily accessible to or frequented by public, so as to
doubt the recovery. Looking to the spot where the incident is
alleged to have happened coupled with the confessional
statement of the Appellant, (to the extent it is admissible) and
which is corroborated by the recovery of the weapon, in my view,
is sufficient to establish the incriminating circumstance of
discovery as contemplated under section 27 of the Evidence Act.
As noticed earlier the question about the acceptability and the
probative value to be attached to the evidence of recovery is a
question of fact in each case.
26. A brief reference may be made at this stage, to the
decisions on which reliance is placed on behalf of the Appellant.
There is no manner of dispute with the preposition that if the
recovery is from a public place which is accessible to all, the
evidence as to discovery becomes doubtful and it cannot be
accepted. However, the decisions on which reliance is placed by
the Appellant, in my humble view, are distinguishable on facts.
N.S. Kamble page 15 of 19
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27. Kora Ghasi was a case where the High Court had
reversed the aquittal of the Appellant-Accused and the Supreme
Court found that the evidence against the Appellant was "very
Slender" and the learned Sessions Judge was right in acquitting
the Appellant and the High Court was not justified in interfering
with the finding of acquittal.
28. In Trimbak, on facts, it was found that the ornaments
were recovered from an open space accessible to all sundry and
therefore the Supreme Court found it difficult to hold positively
that the Accused was in possession of these articles. The Supreme
Court found that the fact of recovery was compatible with the
circumstance of somebody else having placed the articles there
and therefore the circumstance cannot be used to conclusively
prove that the accused was in possession of the articles.
29. In Salim Akhtar Alias Mota on facts the recovery was
disbelieved as it was from an open space, accessible to all.
30. In Jaysing Alias Gangawa Mesraj Kharariya and
Another the recovery of the sword was from an open land which
was held to be not acceptable. There was one more reason why
the entire evidence about the recovery including that of the blood
stained clothes of the Appellant-Accused was not found
acceptable. Insofar as the blood stained clothes are concerned,
N.S. Kamble page 16 of 19
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the Supreme Court found it is highly improbable that the
Appellant-Accused would hold on to the blood stained clothes
for about 12 days, inasmuch as the blood stained clothes was
recovered from the person of the Appellant after 12 days of the
incident. Thus the entire evidence about the recovery of the
blood stained clothes and the weapon namely sword was
disbelieved.
31. Lastly, in Parshuram Alias Parshu Ganpat Nalwade a
Division Bench of this Court refused to rely on the evidence of
recovery for three reasons, namely that the recovery was from an
open space. Secondly none of the witnesses had stated that the
weapon was sealed and thirdly the panch was found to be a stock
panch.
32. Coming to the present case as noticed earlier the
recovery is from a place, in the grass under a bridge. In my
humble view the present case would be distinguishable.
33. This takes me to the medical evidence about the
nature of the injuries found on the person of PW-1. There are
two medical officers who are examined, namely PW-7 Dr.Hemant
Vekhande who was then attached to Veer Sawarkar Hospital,
Mulund and PW-14 Sameer Suresh Devalekar who was attached
to Ashirwad Hospital.
N.S. Kamble page 17 of 19
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34. PW-7 Hemant Vekhande had examined PW-1 and
found the following injuries on her person.
(a) Injury on left arm of size 14 cm x 5 cm x 5 cm
deep
(b) Injury on left arm of size 12 cm x 5 cm x 5 cm
x 8 cm deep
(c) Injury on back of size 5 cm x 2 cm x 7 cm
deep
(d) CLW on vertex of size 7 cm x 1 cm x 1 cm
deep.
35. PW-14 Dr. Sameer Devalekar had found following
injuries.
(a) A sutured CLW (cut lacerated wound) on the
head admeasuring 7 x 0.5 cm.
(b) Three injuries on shoulder -
(i) Anterior it was 15 x 5 cm in size
(ii) Posterior the injury was 15 x 5 cm in size
which was bone deep.
(iii) Between anterior and posterior injuries
there was CLW 7 x 5 cm. It was superficial cut injury.
(c) Third injury on dorsal spine which was bone
deep and the dimensions were 3 x 5 cm.
36. PW-7 who was the first Medical Officer who
examined PW-1 at Veer Sawarkar Hospital, has stated that the
injuries were profusely bleeding and were stated to be likely to be
caused by a weapon like knife. PW-7 stated that the injuries
were grievous in nature and enough to result into hemorrehagic
shock. He states that the injury on the back was sufficient to give
pneumothorax and due to the loss of blood there was a drop in
N.S. Kamble page 18 of 19
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the blood pressure. From the evidence of PW-7 it is clear that the
injuries were life threatening. The evidence of PW-14 is to the
similar effect.
37. Thus considering the overall evidence of PW-1 to
PW-4 coupled with the evidence of Chemical Analysier in the
form of blood stains found in the autorikshaw and the
circumstantial corroboration by the evidence of discovery. I find
that the prosecution has established the offence punishable under
Section 307 of the Indian Penal Code against the Appellant,
although I am inclined to give benefit of doubt to the Appellant,
insofar as the offence under Section 354 of the IPC is concerned.
38. In the result following order is passed.
ORDER
(i) The Appeal is partly allowed.
(ii) The conviction and sentence under Section
354 of IPC is hereby set aside.
(iii) The conviction and sentence awarded to the
Appellant under Section 307 of IPC is hereby
confirmed.
C.V. BHADANG, J.
N.S. Kamble page 19 of 19
