2013 ALL MR (Cri) 112
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.C. CHAVAN, J.

Shaikh Harun Shaikh Chhotu Vs. The State Of Maharashtra

Criminal Appeal No. 186 of 1993

21st November, 2012

Petitioner Counsel: Shri PROSPER D'SOUZA
Respondent Counsel: Shri Y.M. NAKHWA

Penal Code (1860), Ss.326, 452 - Grievous hurt and house trespass - Appellant had illicit intimacy with the victim - Appellant came with a barber's razor and caused serious bleeding injuries to the victim on her abdomen, face, neck and shoulder - Defence that victim being of loose character and husband of victim's sister who was drunk tried to overpower and assaulted the victim not tenable - Evidence of the victim about the manner in which she was injured cannot be ignored - Conviction upheld. (Paras 9, 10)

JUDGMENT

JUDGMENT :- This appeal is directed against the appellant's conviction by the learned Additional Sessions Judge, Nashik for offences punishable under Sections 326 and 452 of the Indian Penal Code (for short, "IPC") and sentences of rigorous imprisonment for four years with fine of Rs.2,000/- and one year with fine of Rs.500/- imposed upon the appellant upon conclusion of Sessions Case No.234 of 1992 before him.

2. The facts which are material for deciding this appeal are as under:-

The appellant had illicit intimacy with the victim who had been divorced by her husband. The appellant got married thereafter and, therefore, the victim told the appellant to severe his relations with the victim. The appellant, however, insisted on continuance of those relations. This happened at Chalisgaon. In the month of May, 1992 the victim came to the house of her sister Chhaya at Nashik Road. On 4-5-1992, in the afternoon, the appellant also came to the house of Chhaya and met the victim. He then left Chhaya's house. In the evening when the victim was alone at Chhaya's house, the appellant came with a barber's razor and caused serious bleeding injuries to the victim on her abdomen, face, neck and shoulder. The victim's sister came home and found the victim in an injured state and, therefore, rushed to the police station. In the meantime, Chhaya's husband also came home, found the victim injured and took her to the hospital of Dr. Jadhav where she was treated. Dr. Jadhav also informed the police. On the report of Chhaya, first information report was registered and investigation commenced.

3. In the course of the investigation the police performed panchnama of the spot and seized the blood stained clothes of the victim. They recorded statements of the witnesses. The appellant was absconding. Charge-sheet was filed against the appellant showing him as an absconder. He secured anticipatory bail. Eventually, the case was committed to the Court of Sessions at Nashik.

4. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offences punishable under Sections 452 and 307 of the IPC. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all seven witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of false implication, the learned Judge convicted and sentenced the appellant, as aforementioned. Aggrieved thereby, the appellant is before this Court.

5. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor (for short, "APP") for the State. With the help of both, I have gone through the evidence on record.

6. PW-1 Chhaya is the victim's sister who states about the incident of 4-5-1992. She stated that her husband was drunk on the relevant day and was at home. She states that her husband left the home at 4:00 p.m.. She and her children had also gone out. When she came back, she found the victim in an injured state and the victim informed her of the assault by the appellant. She claims to have gone to the police to report the incident. In the meantime, her husband Salim Shaikh, who has not been examined, came home, found the victim in an injured state and took her to the hospital of Dr. Jadhav. When Chhaya returned home, she did not find the victim and learnt that the victim had been taken to Dr. Jadhav's hospital. Chhaya proved her report at Exhibit-10. In the course of cross-examination, Chhaya admitted that her husband had consumed alcohol on that day. But she could not tell when her husband had returned home. She, however, denied the suggestion that the victim being of loose character was sought to be over-powered by her husband and in that incident her husband had stabbed the victim.

7. PW-2 Ravindra is a neighbour who is supposed to have seen a person carrying a razor coming out of the house of Chhaya. However, he refused to support the prosecution story and turned hostile. PW-3 Shakuntala is the victim herself who stated about her illicit intimacy with the appellant and she also stated that after the appellant's marriage she had asked the appellant to cease relations with the victim. The appellant refused. She claims to have come to her sister's house at Nashik. She states that the appellant visited her sister's house in the afternoon and left on being asked to live happily with his wife. She also states of an earlier incident of a threat given by the appellant. She then stated that in the evening when the husband of her sister, her sister and her children had gone out, the appellant came to the home and started stabbing her with a barber's razor on the cheek, neck, back and the abdomen resulting in several bleeding injuries being caused. She then stated about the sister's arrival and the arrival of the sister's husband and her being taken to the hospital. She states that she had taken treatment in Dr. Jadhav's hospital for one month. In the course of cross-examination, she denied the suggestion that she was working as a commercial sex worker or that she was in the exclusive keeping of one Subhash Sawant or had illicit intimacy with one Masjid Musalman. She denied that Chhaya's husband Salim was inside the house. However, she admitted in her cross-examination that after the incident her sister Chhaya left her husband Salim. She stated that Salim had abandoned Chhaya and the children. She denied that she sustained injuries during her quarrel with Salim.

8. PW-4 Dr. Rajendra Jadhav stated that the victim had been brought to his hospital by Salim Shaikh on 4-5-1992 at 9:00 p.m. and that he had observed the following four injuries on the victim's person:

"1. Clean incised wound on left lumber of size 3 x 2 cm small intestine coming out with perforation. The intestine had a hole because of cutting

2. Clean incised wound on left side of face from lip to back of neck 15 cms x ½ cm.

3. Clean incised wound nape of neck cm They were two in number. One injury was of 4 x 1 cms and second incident was 5 x 1 cm

4. Clean incised wound left shoulder of size 2 x 1 cms it was followed by another injury ½ x ½ cms."

He stated that the injuries could have been caused by a barber's razor. Injury No.1 could have been a fatal injury. He also stated that there was disfiguration of face due to the injury which the victim had suffered. He proved his medico legal certificate at Exhibit-14. PW-5 Uttam and PW-6 Bhaskar are panchas of panchnama of the spot and seizure of clothes at Exhibits-17 and 19 respectively. PW-7 PI Sarnaik had conducted the investigation.

9. The learned counsel for the appellant submitted that the appellant had been falsely implicated in order to take a revenge upon the appellant. He submitted that it could have been Salim Shaikh who had attempted to over-power the victim and stabbed her when she refused to submit. The learned counsel submitted that it is indeed strange that the entire family of Chhaya should leave the house in the evening, that Chhaya should return home only after the victim had suffered injuries and that Salim should re-enter the house when Chhaya had gone to give a report of the incident to the police. The learned counsel submits that it is also strange that Salim Shaikh had abandoned Chhaya soon after the incident or Chhaya had abandoned Salim Shaikh soon after the incident. He submitted that if Salim had nothing to do with the matter, there is no reason why Salim should have left Chhaya soon after the incident. The learned counsel also submitted that Salim was not examined at the trial and this would cast a suspicion whether the incident had in fact occurred, as stated by the two sisters.

10. As rightly pointed out by the learned APP, the aspect of Salim's non-examination has been duly dealt with by the learned trial Judge in his Judgment. The learned APP submits that merely because Salim was drunk on that day or because Salim had returned to the house after the incident after Chhaya went to report the matter to the police, inference need not be drawn that Salim had caused the injuries to the victim. He submitted that if Salim had indeed caused injuries to the victim, since Salim had abandoned Chhaya after the incident, there would be no reason for the victim or Chhaya to name Salim as the culprit since Salim had left both Chhaya as well as the victim. In view of this, the doubts sought to be created by the learned counsel for the appellant on account of Salim's drunken state on the incidental day and his abandoning Chhaya soon after the incident cannot lead to outweigh the evidence of the victim about the manner in which she was injured.

11. The learned APP submitted that, considering the serious nature of the injuries observed by PW-4 Dr. Jadhav, the learned Judge ought to have convicted the appellant for the offence punishable under Section 307 of the IPC but had concluded that the appellant intended to disfigure the victim and not kill her. He submitted that the sentence of imprisonment for four years imposed upon the appellant is also not much compared to the magnitude of the assault launched by the appellant. He submitted that the victim had suffered disfiguration and therefore the sentence need not be disturbed. The learned counsel for the appellant, on the other hand, submitted that the incident is more than 20 years old and the appellant has been living in the shadow of conviction for almost 19 years now. He submitted that the appellant is married and having settled life with children and has no other crime to his discredit and therefore sending the appellant back to prison now after 19 years would be harsh. Though this argument has force, it is to be noted that the appellant has not at all suffered any substantial incarceration and therefore considering the sentence of four years of imprisonment only imposed upon the appellant for the disfiguration that he has inflicted upon the victim, no further reduction in the sentence is called for.

12. In view of the above, the appeal is dismissed. The conviction of the appellant and the sentences imposed upon him are maintained. The appellant shall surrender to his bail within a period of six weeks, failing which the learned trial Judge shall have the appellant arrested and committed to prison to serve the sentence.

Appeal dismissed.