Pradip Subhash Ingle vs The State Of Maharshtra Through ...
2022 Latest Caselaw 6348 Bom

                                                           41.cri.appeal.190.2012.Judg.odt
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH : NAGPUR

                     CRIMINAL APPEAL NO.190 OF 2012


Pradip Subhash Ingle,
Aged 22 years, Resident of Kherda,
Tq. Barshitakli, Distt. Akola.                           ..... APPELLANT


                                   // VERSUS //

The State of Maharashtra,
Through Police Station Officer,
Police Station, Pinjar, Distt.: Akola.                   .... RESPONDENT

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       Mr. Ashwin Wasnik, Advocate for appellant.
       Mrs. M. H. Deshmukh, APP for respondent/State.
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                              CORAM : AVINASH G. GHAROTE, J.

DATED : 06/07/2022

ORAL JUDGMENT :

1. Heard Mr. Wasnik, learned counsel for the appellant and

Mrs. Deshmukh, learned APP for the respondent/State.

2. Mr. Wasnik, learned counsel for the appellant submits that

there is no explanation as to how the appellant has sustained injury. He

further submits that PW-5 Amrapali has not supported the prosecution

story. The C.A. report Exh.35 (pg.61) does not indicate any blood on the

knife. The panch PW-4 Kishor (pg.28) for the seizure has turned hostile

and therefore, the recovery has not been proved. He further submits,

41.cri.appeal.190.2012.Judg.odt

that the weapon was not sent for query as to whether the injury was

possible because of it. He therefore submits, that on these grounds the

impugned judgment which convicts the appellant for the offence under

Section 307 of the Indian Penal Code and sentences him for rigorous

imprisonment of 7 years and to pay a fine of Rs.10,000/-, in default

rigorous imprisonment of one year and so also under Section 354 of the

Indian Penal Code for rigorous imprisonment for one year and fine of

Rs.1,000/-, in default rigorous imprisonment of one month, be quashed

and set aside.

3. Mrs. Deshmukh, learned APP for the respondent/State

opposes the appeal and submits that the evidence of PW-2 - Victim is

clear and specific. She further states that even PW-5-Amrapali supports

the version of PW-2 to a certain extent. The defence theory, that the

victim and the appellant were having a long-standing love affair, which

came to the knowledge of the husband of the victim/PW-2, as a result of

which, her husband has made an assault, has not been proved. The

seizure of the weapon, has been proved by the Investigating Officer and

so also by the panch witness PW-4, who admitted his signature upon the

spot panchnama, though he has denied about seizure of knife (pg.34).

The injuries according to her, have been proved by PW-7 Dr. Syed Irfan

Syed Pasha (pg.76) who has issued the certificate at Exh.47 (pg.80)

regarding the injuries sustained by the victim, and by PW-8 Dr. Umesh

41.cri.appeal.190.2012.Judg.odt

Agrawal. She therefore submits, that the assault and the injuries

resulting from the assault, have been clearly attributed to the appellant

and have been proved, considering which, the impugned judgment does

not need any interference.

4. The incident is dated 28.5.2007, when in the morning at

about 9.30 a.m. the victim Shalu Rathod (PW-2) and her neighbour

Amrapali (PW-5) had gone to Godri (an open space used by the villagers

to answer nature's call) the appellant/accused had reached there and

told the victim/PW-2 that he wanted to talk with her. Upon refusal by

the PW-2, the accused caught her hand, and took her in his arms and

took her some distance away and demanded sexual favours, which was

refused, as a result of which, he took out a knife from right pocket of his

pant and assaulted the victim/PW-2 twice on her abdomen, above the

navel. A third blow was given by him on the chest of the victim, above

the right side, when the victim caught his hand, she sustained bleeding

injuries on her right palm on account her catching hold of the knife, to

protect herself. It is alleged that PW-5 Amrapali shouted upon seeing the

incident. The appellant/accused thereafter inflicted blows by knife upon

himself, saying that he would kill the victim/PW-2 and himself too.

Upon hearing her cries, PW-5 Amrapali and one Diwakar came running,

as a result of which, the accused left her. PW-5 Amrapali, is thereafter

stated to have lifted her from the ground and made her stand

41.cri.appeal.190.2012.Judg.odt

whereupon she fell unconscious. The victim thereafter was taken to the

Primary Health Center, Pinjar by the police authority under the letter

Exh.38. Upon examining the victim/PW-2, PW-7 Dr. Syed Irfan Syed

Pasha found the following injuries :

"i. Stab wound admeasuring 3 cm X 2 cm X deep- 5 cm above the umbilicus.

ii. Stab wound admeasurin 3 cm X 2 cm X deep above 7 cm above the umbilicus.

iii. Incised wound 2 cm X 5 cm bony deep on medical aspect of right thumb over the proximal phalanx.

iv. Stab wound admeauring 3 cm X 2 cm X deep - over the right breast - about 8 cm below right clavicle."

5. The accused who had stabbed himself was also referred to

PW-7 Syed Irfan under letter Exh.39 for examining him and upon

examining him, he was found to have sustained a stab wound

admeasuring 3 cm X 1 cm in deep - 4 cm. above umbilicus caused by

sharp object. The victim was also referred to the Government Medical

College/Hospital, Akola by PW-7 where she was admitted on 28.5.2007.

The PW-8 Dr. Umesh Agrawal examined her and performed surgery upon

her. The bed ticket is at Exh.54.

6. The appellant was thereafter charge-sheeted. The

prosecution has examined as many as eight witnesses as under:

41.cri.appeal.190.2012.Judg.odt

Sr. Name of Witness Exh. Page No. No.

1 PW.1: Murlidhar Bhagwan Ingle (Panch spot) 18 12 - 13

2 PW.2: Shalu Mahadeo Rathod (Victim) 20 14 -17

3 PW 3: Kailash Ramdeo Rathod (Panch seizure 22 20-21 of clothes)

4 PW 4: Kishor Ramsing Rathod (Panch spot + 25 28-30 seizure)

5 PW 5: Amrapali Laxman Ingle (eye witness) 27 38-40

6 PW.6: Shailendra Raghunath Nagarkar 28 41-47 (Investigating Officer)

7 PW.7: Dr. Syed Irfan Syed Pasha (PHC Pinjar) 46 76-79

8 PW.8: Dr. Umesh Hanuman Agrawal (Surgery, 53 82-85 Akola Medical College Hospital)

7. The evidence of PW-2 Shalu Mahadev Rathod (victim), PW-

5 Amrapali Laxman Ingle, PW-7 Dr. Syed Irfan, PW-8 Dr. Umesh Agrawal

and PW-4 Kishor Ramsing Rathod is material.

8. PW-2 Shalu Mahadev Rathod has been examined at Exh.20

and has narrated the incident as stated above. She has lodged the

complaint which is at Exh.21. She has been cross-examined extensively

and has admitted that three months prior to the incident, the accused

41.cri.appeal.190.2012.Judg.odt

had told her that he loved her, however, she had not responded. She

denied the suggestion that there was any long-standing love affair

between them. She had further admitted that she and PW- 5 Amrapali

were sitting at different places for easing themselves. Though, there is a

minor omission in her statement which she had admitted in her evidence

that though she had stated before the police that Amrapali came to her

house at 9.30 a.m. on the day of the incident and had also called

Diwakar, these were not in her statement, however, these are not of such

consequence so as to make her statement disbelievable. She has also

stated that because of the incident, her husband had divorced her. The

cross-examination of PW-2, does not indicate anything being brought

out, to discredit her testimony.

9. The evidence of PW-2 Shalu regarding the incident to

certain extent is supported by PW-5 Amrapali who has been examined at

Exh.27 (pg.38), in which, she admits that on 28.5.2007 in the morning

at about 10.00 to 11.00 a.m. she and PW-2 had gone to the Godri to

answer nature's call, and when they were squatting, the accused Pradip

had reached there, lifted PW-2 and took her to some distance and had

also asked PW-5 Amrapali not to intervene. When PW-5 was at some

distance about 300 to 400 ft. away, she heard shouts of PW-2 saying that

she was dying, whereupon PW-5 seeing Diwakar at some distance, gave

41.cri.appeal.190.2012.Judg.odt

him a call and both of them ran to the direction where the accused had

taken the victim, whereupon they saw that the victim and the accused

were lying in injured condition on the ground having bleeding injuries

on their abdomen. Diwakar is stated by her to have taken out his

baniyan, torn it into pieces and tied one piece around the injury of the

victim and one around the injury of the accused. Though PW-5, does not

state that she has actually seen the accused assaulting the victim PW-2,

however, she corroborates the prosecution story of the appellant/accused

having lifted her and carried her away and she was merely at a distance

of 300 to 400 ft., when she heard the victim shouting that she was

dying. It is further material to note, that when she reached the spot, she

does not say that there was any one there, except the accused and the

victim. Though, in her cross-examination, she states that Diwakar,

Prameshwar and husband of PW-5 while going towards the Godri were

at a distance 25 ft. behind them and the place where Shalu was

squatting was not visible to her, however nothing has been brought on

record in her cross-examination to discredit her testimony regarding the

taking away of the PW-2 by the accused.

10. The evidence of PW-7 Dr. Syed (who has been examined at

Exh.46 indicates the nature of injuries suffered by the PW-2. The injury

certificate at Exh.47 has been duly proved by him and he categorically

41.cri.appeal.190.2012.Judg.odt

states that injuries 1, 2 and 4 were on the vital parts of the body and

were sufficient in the ordinary course of nature to have caused death.

When the knife which was seized was shown to him, he affirms that the

injury could have been caused by weapon like it. He further says that

the injury no.3 to the thumb was possible if the victim was trying to

protect herself from the assault. Insofar as the injury caused to the

appellant/accused is concerned, he has also proved injury certificate at

Exh. 48 as he examined the appellant also and has further opined that it

can be a self-inflected injury. His cross-examination only elicits that the

blade of the knife was loose and partly detached from the handle and in

the present condition, the weapon could not have been used for assault

by holding the handle. He further states that both the edges of the knife

were sharp. The nature of extent of injuries along with the report at

Exh. 47 have been duly proved by him.

11. PW-2 Shalu was admitted on 28.5.2007, upon referral by

the PW-7, to the Akola Medical College Hospital wherein PW-8 Dr.

Umesh Agrawal, who has been examined at Exh.53 (pg.82) had tended

to her. In his testimony, he has proved the bed ticket at Exh.54 and so

also the nature of injuries inflicted upon her. He further states that

surgery was required to be performed by him and in his opinion, if the

injuries were not treated, they were sufficient in the ordinary course of

41.cri.appeal.190.2012.Judg.odt

nature to have caused death. His cross-examination is perfunctory and

does not bring out anything to discredit his evidence.

12. PW-1 Madhukar has turned hostile and though he admits his

signature on the panchnama, he however denies any seizure made in

front of him. In cross-examination, he admits that the accused was his

distant relation.

13. PW-4 Kishor has also proved the spot panchnama and

thereby the seizure of the knife. Though, in his evidence PW-4 states

that he did not see any knife lying on the spot, he however, upon being

cross-examined having declared hostile, admits the contents of the

seizure memo to the extent of seizure of sample of earth to be correct

denying the contents of the seizure memo about the knife, which is

marked as 'A'. A perusal of the seizure memo at Exh.26 would indicate

that the spot panchnama itself indicates the seizure of the knife also and

portion mark 'A' is the part and parcel of the same. Therefore, when

PW-4 admits his signature on the seizure memo, the same being a

singular document and not differentiated into various parts, its contents,

have to be held to have been proved by PW-4.

14. The above discussion regarding the evidence which has

41.cri.appeal.190.2012.Judg.odt

come on record would indicate that the incident has been duly proved

by the testimony of PW-2 Shalu as well as PW-5 Amrapali. The evidence

of PW-7 Dr. Syed Irfan Syed Pasha and PW-8 Dr. Umesh Agrawal who

have examined PW-2 and certified the injuries suffered by her prove the

injuries. There is nothing on record brought by the appellant, either by

way of cross-examination or otherwise, to discredit the testimony of

PW-2 regarding the happening of the incident. The line of defence

sought to be raised as indicated from the cross-examination that it was

someone else, who had assaulted the appellant as well as the accused

has not been carried forward and no material has been brought on

record to substantiate.

15. The facts on record, would indicate that the appellant, was

enamoured of the victim who having spurned his advances and

statement of love, has indulged into the extreme act intending to do

away with the victim as well as himself. It is therefore, apparent that the

prosecution story has been properly established. The impugned

judgment indicates that all the aspects of the matter have been carefully

considered by the learned Sessions Court in arriving at the conclusion

regarding the guilt of the appellant /accused, considering which, there is

no case made out for interfering in the well-reasoned judgment passed

by the learned Court below.

41.cri.appeal.190.2012.Judg.odt

16. Mr. Wasnik, learned counsel for the appellant submits that

considering the age of the accused and the fact that the step has been

taken by him, on account of his intense love for PW-2 and the fact that

he has also sustained injuries coupled with the position that the

appellant has already married and having children, leniency be shown,

by reducing the sentence by half.

17. Though, the plea, is on the face of it appealing, however,

what needs to be considered is that the life of PW-2, has been destroyed

because of the said incident as it has come on record that on account of

it, PW-2 has been divorced by her husband. On the other hand, the

appellant claims to have been happily married and blessed with children

too. Such a situation, does not indicate exercise of discretion or any

leniency to the appellant to the extent pleaded for. However,

considering that the appellant is married, and is having children and

since he stands convicted which conviction has been confirmed, ought to

undergo sentence. The appeal is therefore dismissed by maintaining the

conviction of the appellant. However, having regard to the submission of

the appellant being married and having children, the sentence imposed

by the learned Sessions Court, for the offence under Section 307 of the

41.cri.appeal.190.2012.Judg.odt

Indian Penal Code shall stands reduced to six years instead of seven

years.

(AVINASH G. GHAROTE, J)

Sarkate.

Digitally signed byANANT R SARKATE Signing Date:08.07.2022 17:52