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2013 DIGILAW 647 (BOM)

Ashpak Malik Nadaf v. State of Maharashtra

2013-03-14

ABHAY M.THIPSAY

body2013
JUDGMENT :- This appeal is directed against the judgment and order delivered by the Additional Sessions Judge, Kolhapur, in Sessions Case no.2 of 1996 before him convicting the appellant, who was the sole accused in the said case, of an offence punishable under Section 307 of the Indian Penal Code (IPC), and sentencing him to suffer Rigorous Imprisonment for Five years and to pay a fine of Rs. 1,000/-, in default, to suffer Rigorous Imprisonment for One month. 2. The facts of the prosecution case, in brief, can be stated as under: One Janabai Susware was working as a nurse in the Rural hospital, Dattawad. She had taken one room on rent in the house of one Malik Nadaf - father of the appellant. This room was situated close to Rural hospital i.e. within the distance of about 500 feet. That. on 14.8.1995, Janabai had to go for duty at 2.00 p.m. A few minutes prior to 2.00 p.m. the appellant entered in her room and questioned her as to what she had told to his father. Janabai told him that she had not told anything (about the appellant) to his father, and that he could inquire with his father. Saying so, she went out of the room, and informed the appellant's father about the incident. She then, started going towards the hospital for her duty when the appellant came from behind and by putting a handkerchief around her neck, tried to strangulate her Janabai shouted. One Kalagond Patil (PW2) came there and rescued her. Some members of the staff of the hospital also rushed there Janabai had become unconscious. She was taken to hospital and was examined there by Dr. Mahendra Mane (PW5). She was then sent to C.P.R. Hospital, Kolhapur, for further treatment. She regained consciousness on the next date in C.P.R. Hospital, where she was admitted till 20.8.1995. Her statement recorded by the police on 15.8.1995 while she was admitted in C.P.R. Hospital, was treated as the First Information Report (FIR) and investigation commenced. The panchnama of the spot was drawn. The appellant was apprehended. The handkerchief used by the appellant was recovered at the instance of the appellant under a panchnama. On completion of investigation, charge-sheet alleging commission of an offence punishable under Section 307 of the IPC was filed against the appellants pursuantto which the appellant was prosecuted and convicted as aforesaid. 3. The appellant was apprehended. The handkerchief used by the appellant was recovered at the instance of the appellant under a panchnama. On completion of investigation, charge-sheet alleging commission of an offence punishable under Section 307 of the IPC was filed against the appellants pursuantto which the appellant was prosecuted and convicted as aforesaid. 3. The prosecution examined ten witnesses during the trial. Apart from lanabai (PW I) - the injured herself, Kalagond Patil (PW2) and Sharad Pande (PW3), who claimed to be the eye witnesses to the incident, were examined. The other witnesses are: Prakash Dakare (PW4) - a panch in respect of the seizure of the handkerchief, pursuant to the information disclosed by the appellant, Dr. Mahendra Mane (PW5), who had examined Janabai at the Rural Hospital, Dattawad, Dr. Sanjay Padhye (PW6) - who had examined Janabai in C.P.R. Hospital, Shantaram Patil (PW7) - who had recorded the statement of Janabai in C.P.R. Hospital, Vilas Patil, A.P.I.(PW8) - who had registered the crime on the basis of the said statement, Shankar Patil, A.P.I. (PW9) - the Investigating Officer and Dilip Chougule A.P.I. (PW10) - who filed charge-sheet against the appellant. 4. I have heard Ms. Radhika Kamat, the learned counsel for the appellant. I have heard Mr. R. M. Gadhavi, the learned APP for the State. I have gone through the evidence adduced by the prosecution during the trial. I have carefully gone through the impugned judgment and order. 5. Janabai, in her evidence, stated that on 14.8.1995, when she was about to leave her house for going to duty, the appellant came and asked her whether she had told anything against him to his father. That, she had then asked him to inquire in that regard with his father only and to go out of the room, as she had to leave for her duty. According to her, when the appellant entered inside her room, he had closed the door from inside by putting a chain. Janabai opened the door and went out. She complained to the appellant's father that the appellant was troubling her. According to her, the hospital is situate at a distance of about 200 to 250 feet from her room. According to her, when the appellant entered inside her room, he had closed the door from inside by putting a chain. Janabai opened the door and went out. She complained to the appellant's father that the appellant was troubling her. According to her, the hospital is situate at a distance of about 200 to 250 feet from her room. That, when she was going to the hospital and had crossed the road, the appellant came from backside and put a big handkerchief around her neck, and started "pressing her neck with the help of the handkerchief." According to Janabai, he tried to kill her. Janabai then states that she then shouted, when the staff working in the hospital Sharad - Pande (PW3), Shankar Patil (PW9), Kalagond Patil (PW2) etc. came there. According to her she fainted and fell on the ground. Janabai was extensively cross-examined but nothing which would discredit her version could be elicited in her cross-examination. The omission to state, that the appellant had closed the door of her room from inside by putting a chain, to the .police, was brought on record in her cross-examination. But in my opinion, the said omission is of no consequence. 6. The evidence of Kalagond Patil (PW2) and Sharad Pande (PW3) is consistent with the version of Janabai. 7. In the course of arguments, the learned counsel for the applicant submitted that considering the weight of the evidence on record, she would not be contending that no incident, as alleged by the prosecution, had taken place. She, however, submitted that there were some variations between the evidence of Janabai and other witnesses, and therefore, exactly in what manner the incident took place, could not be said. She contended that Janabai was exaggerating certain aspects of the matter, and that, though she had claimed that she had fainted after the assault, and that, she regained consciousness only on the next day, the evidence of Dr. Mahendra Mane (PW5) shows that she was very much conscious when brought to the Rural hospital, and that, she had even given the history of the incident herself. It is submitted that the facts proved do not indicate the offence committed by the appellant to be one punishable under Section 307 of the IPC, and that, no intention or knowledge requisite for the offence of murder, could be attributed to the appellant. It is submitted that the facts proved do not indicate the offence committed by the appellant to be one punishable under Section 307 of the IPC, and that, no intention or knowledge requisite for the offence of murder, could be attributed to the appellant. She therefore, submitted, that even if the evidence of the assault is accepted as true, the appellant could be said to have committed only a lesser offence. It is also submitted by the learned counsel for the appellant that during the trial the appellant was on bail, after his initial detention in custody for a period of about fifteen days, and he was also on bail during the pendency of the present trial. The learned counsel submitted that the incident had taken place seventeen years back, and in any event, it would be just and proper to reduce the sentence imposed upon the appellant substantially, even if the appellant is held to have committed an offence punishable under Section 307 of IPC. 8. In view of the concession made by the learned counsel for the appellant, it is not necessary to' discuss the evidence of the prosecution witnesses any further, and it is also not necessary to discuss the reasoning of the trial court in accepting the said evidence. What, however, needs to be considered is, whether the offence committed by the appellant can be said to be one punishable under Section 307 of the IPC. I have, therefore, examined the evidence adduced during the trial from that point of view, and I have also considered the reasoning of the trial court, while coming to the conclusion that the appellant had attempted to commit the murder of Janabai. 9. Undoubtedly, the evidence indicates that the appellant attempted to strangulate Janabai, and this is indicative of an intention to cause death. However, the intention cannot be judged on a single fact or factor, unless, such factor would be conclusive, and therefore, the other circumstances duly proved during the trial, also need to be taken into consideration. It is on consideration of all the relevant circumstances, the conclusion about the existence or otherwise of an intention to commit murder of Janabai is to be gathered. 10. The place where Janabai was attacked by the appellant was very close to the appellant's house and also to Janabai's hospital. It is on consideration of all the relevant circumstances, the conclusion about the existence or otherwise of an intention to commit murder of Janabai is to be gathered. 10. The place where Janabai was attacked by the appellant was very close to the appellant's house and also to Janabai's hospital. The assault took place on a road in the presence of a number of persons, whose presence at that place was natural, expected and known to the appellant. The appellant, also, did not carry any weapon with him. This, prima facie, points out towards absence of any intention to cause death of Janabai. 11. However, this is not the end of the matter. What further needs to be considered is, whether the appellant intended to inflict such an injury on Janabai, as would be sufficient in the ordinary course of nature to cause death of Janabai. The proof of this can be gathered primarily from the medical evidence itself. 12. Dr. Mahendra Mane, who was attached to the same hospital were Janabai was working, has stated that the patient was drowsy. His evidence, however, shows that the patient was co-operative, which indicates that Janabai's version, that she had lost consciousness and regained the same only on the next day, was not correct. Undoubtedly, Dr. Mahendra Mane has stated that the patient was in a serious condition, but he has also stated that, except on the neck, there were no other injuries on the body. In the cross-examination, he has admitted that if neck would be pressed with considerable force, blood may come out of the ear, and that, Janabai was not bleeding from the ear. Dr. Mahendra Mane also admitted that if considerable force is used while pressing neck, first the face becomes pale, but when he examined the patient, the face was not pale. It needs to be observed that Janabai was brought to the hospital immediately after the incident, as the incident had taken place in the vicinity of the hospital itself, and Janabai was examined by Dr. Mahendra Mane, at about 2.40 p.m. itself. 13. Dr. Sanjay Padhye (PW6), who examined Janabai in the C.P.R. hospital, stated that the injuries sustained by the Janabai could be by a hard and blunt object, or by throttling. Mahendra Mane, at about 2.40 p.m. itself. 13. Dr. Sanjay Padhye (PW6), who examined Janabai in the C.P.R. hospital, stated that the injuries sustained by the Janabai could be by a hard and blunt object, or by throttling. He also stated that throttling is different from strangulation and throttling is with the help of hands, whereas, strangulation is with the help of other articles. 14. Indeed, if the entire evidence adduced before the trial court is considered, it is difficult to say that the appellant can be said to have committed an offence punishable under Section 307 of the IPC. The only circumstance, which is suggestive of the requisite intention and/or knowledge, is that neck was attempted to be pressed, but there are other circumstances which indicate to the contrary, namely, not using any weapon to assault Janabai, not preplanning the place and time of assault, selecting such a place for the assault, where a number of persons known to Janabai would be present nearby, and would intervene in the matter. No motive for entertaining an intention to kill Janabai has been brought on record. This, coupled with the aforesaid circumstances, makes it doubtful as to whether the appellant had the requisite mens rea to bring the offence committed by him within the penal provisions of Section307 of the IPC. Only from the factor that the neck was pressed, the requisite mens rea cannot be inferred, when there are other factors throwing a doubt on the existence of the necessary mens rea. 15. I have considered the reasoning of the trial court in that regard. The relevant discussion is found in paragraph 25 of the impugned judgment. According to the learned Judge, since the appellant had pressed the neck of Janabai with the help of handkerchief, and since Janabai was averagely built and averagely nourished, the act of the appellant can be said to have done with the intention of causing death or with the intention of causing such bodily injury, as was sufficient in the ordinary course of nature to cause death. It is difficult to agree with the reasoning of the learned Judge. The learned Judge did not view the absence of motive in proper perspective. It is difficult to agree with the reasoning of the learned Judge. The learned Judge did not view the absence of motive in proper perspective. The learned Judge, while accepting the position that no motive had been proved by the prosecution, declined to attach any importance to this aspect on the ground that no importance could be given to that aspect, when there were eye witnesses to the incident. The learned Judge observed that motive plays an important role when there is no eye witness and when the case is depending on circumstantial evidence. This legal position was properly understood by the learned Judge, but what he failed to realise is that when there would be a question of gathering intention or knowledge from the act spoken about by the eye witnesses, the question of motive will assume importance. Lack of evidence of motive would not make it improbable that the appellant had indeed attacked Janabai, but it would create a doubt, whether the intention behind the attack was one that would be required in case of the offence of murder. 16. In a criminal trial, the prosecution is required to prove the guilt of an accused beyond reasonable doubt, and the benefit of every reasonable doubt accrues to an accused. Even if that the accused performed an overt act is proved, and even where there would be no doubt in that regard, still a doubt may arise as to the intention with which the act was done. Here, the least that can be said is that there exists a doubt as to the intention and / or knowledge with which the assault was made by the appellant, and consequently, the appellant should have been given the benefit of doubt in that regard. 17. It, however, appears from the evidence of Dr. Mahendra Mane (PW5) that the hurt caused to Janabai had endangered her life. Neck, being a highly sensitive and vital part of the body, putting pressure thereon, would be dangerous to life and accepting the evidence of Dr. Mahendra Mane in that regard, it can be concluded, that the hurt that was caused to Janabai by the assault, would fall under the category of "grievous hurt." The appellant, therefore, appears to be guilty of an offence punishable under Section 325 of the IPC. 18. The incident had taken place more than 18 years back. Mahendra Mane in that regard, it can be concluded, that the hurt that was caused to Janabai by the assault, would fall under the category of "grievous hurt." The appellant, therefore, appears to be guilty of an offence punishable under Section 325 of the IPC. 18. The incident had taken place more than 18 years back. The conviction of the appellant was recorded about 17 years back. During these seventeen years, the appellant has been on bail. The appellant was of about 18 years, at the time of the incident. His position in life must have been considerably altered in this long span of 18 years. Considering this, even on the basis that the appellant had committed an offence punishable under Section 307 of the IPC, the substantive sentence imposed upon him could be and should be reduced; but when he is found to be guilty of a lesser offence i.e., an offence punishable under Section 325 of the IPC, a lenient view of the matter needs to be taken in the matter of awarding of sentence of imprisonment. Also, no permanent damage has been caused to Janabai, by the incident. Considering all the relevant aspects of the matter, however, it would be proper to impose a rather heavy sentence of fine upon the appellant, part of which should be given to the injured/victim Janabai, as and by way of compensation. 19. In the result, the appeal is partly allowed. 20. The order of conviction of the appellant with respect to the offence punishable under Section 307 of the IPC and the sentence imposed upon him there for, is set aside. 21. Instead, the appellant is convicted of an offence punishable under Section 325 of the IPC, and is sentenced to suffer Rigorous Imprisonment of Six (6) months, and to pay a fine of Rs.50,000/-, in default, to suffer Rigorous Imprisonment for Six months. 22. If fine is recovered an amount of Rs. 40,000/- there from be paid to the injured, as compensation. 23. The appeal is disposed of in the aforesaid terms. 24. The appellant shall surrender to his bail bonds forthwith. Appeal partly allowed.