2013 ALL MR (Cri) 1989
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.C. CHAVAN, J.
Vilas Madhukar Lokhande Vs. The State Of Maharashtra
Criminal Appeal No.38 of 1997
10th August, 2012
Petitioner Counsel: Mr. S.A. DHAMALE
Respondent Counsel: Mr. J.P. KHARGE
Penal Code (1860), Ss.324, 498A - Voluntarily causing hurt by dangerous weapon - Proof - Appreciation of evidence - Husband assaulted wife with knife - Medical evidence proved injuries were grievous in nature and there was possibility of person dying - PW, victim, confirmed accused as author of injuries sustained by her - No evidence of prior ill-treatment to victim, therefore conviction u/s.498A not proper as one incident of assault does not qualify for cruelty - Appellant not only caused injuries to body of victim but also caused injuries to her character and reputation - Accused having no previous or subsequent criminal record, not shown as menace to society - Revisiting prison 16 years after incident not justifiable - Conviction u/s.324 however, maintained. (Paras 8, 9, 10)
JUDGMENT :- This appeal is directed against appellant's conviction by the learned Additional Sessions Judge, Nashik for the offences punishable under Sections 324 and 498A of the Indian Penal Code and sentence of rigorous imprisonment for a period of two years with a fine of ' 2000/- or in default rigorous imprisonment for six months, and rigorous imprisonment for one year with a fine of ' 500/- or in default rigorous imprisonment for three months imposed upon the appellant respectively on the two counts on conclusion of Sessions Case No.195 of 1996 before him.
The victim, Nandabai, was married to the appellant about eight years prior to the incident and had two sons born of the wedlock. She and the appellant both were serving in some factories around Nashik. From 4th July, 1996 some quarrels began between the husband and wife because of appellant's expressing suspicion about the character of the wife. The victim, therefore, shifted to her mother's house and went to attend her job from her mother's house. On 8th July, 1996 when she was proceeding towards the place of work - a Biscuit factory at about 6:30 a.m., the appellant is alleged to have followed her. The appellant asked the victim to accompany him to his parent's house. As they started walking towards the parent's house, near Nandini hospital, the appellant took out a knife and gave several blows on the victim's person. The victim snatched the knife but fell down. She was taken to the police station on a motor cycle by a passer by. She gave a report to the police and thereafter, was sent to the Civil Hospital at Nashik. The investigating officer had caused her statement to be recorded by the learned Magistrate as well. An offence was registered. The knife which the victim had brought with her was seized. Her blood stained clothes were also seized. The appellant was apprehended on 6th September, 1996. After recording statements of witnesses and completing investigation, charge sheet was sent to the Court of the Chief Judicial Magistrate, Nashik, who committed the case to the Court of Sessions at Nashik.
3. The learned Additional Sessions Judge to whom the case was made over, charged the appellant for the offences punishable under Sections 307 and 498A of the Indian Penal Code. Since the appellant pleaded not guilty he was put on trial at which the prosecution examined in all six witnesses in its attempt to bring home guilt of the appellant. After considering the prosecution evidence in the light of defence of appellant that in the appellant's presence someone else assaulted the victim, the learned trial Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby, the appellant is before this Court.
4. I have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent - State. With the help of both the learned counsel I have gone through the evidence on record. The victim Nanda Vilas Lokhande was examined as PW-1. She stated as to how the appellant started suspecting her character and as to how she left for her mother's house. She stated that on the incidental morning, the appellant was standing near the gate of CEAT Company, having come there on a bicycle. She was walking along with Vandana Vaikwad, Ummila and Taimavshi. One Mahendra Sardar was also present. The appellant asked victim to accompany him to his parent's house and the appellant then carried her with him. When they reached Nandini hospital, the appellant gave several blows on her person. She then stated about having gone to the police station, handed over the knife, reported the matter to the police and having been sent to the hospital, as also about seizure of her blood stained clothes. In cross examination she stated that the appellant used to allege that she had illicit intimacy with Ranganath and Balu. The victim stated the appellant never alleged that she had any relation with a police constable attached to Satpur Police Station. Further suggestions made to the victim in the cross provide enough motive to the appellant to launch an assault on the victim. It was suggested to the victim that the appellant was unable to satisfy her sexually and therefore, she wanted divorce from him. It was suggested that she was interested in having relations with others as also physically she could over power the appellant and that she used to beat him up. It was suggested that the victim was having illicit relations with Mahendra Sardar, who just before the incident was walking with the victim and other co-workers. It was suggested that the victim and Mahdnra Sardar were walking too closely and their bodies were touching each other. As if this was not enough, it was suggested to the victim that another person had accompanied the victim and that person was also victim's paramour and that as the said person had seen the victim in close proximity of Mahendra Sardar, that person hit the victim by knife and that the victim had, in fact, snatched the knife from her own paramour. She denied all these suggestions. She stated in her cross examination that after the assault, a motor cyclist whom she did not know came, she boarded the motor cycle and that the person carried her to the police station. The deficiency which was left in making reckless suggestions to the witnesse was made good by suggesting to PW-7 API Devidas Narayan Lahare that police constable attached to his police station, who had illicit intimacy with the victim had brought the victim to the police station.
5. The learned counsel for the appellant, in spite of such damaging cross examination on the part of the appellant, tried to suggest that there were some discrepancies in the evidence which warranted rejection of the evidence of the victim. The learned APP rightly pointed out that the appellant had not only admitted his presence at the spot but also came out with an incredible story that somebody else assaulted the victim and even while making such suggestions had not spared the character of the victim by suggesting that the real assailant was another paramour of the victim. The learned APP pointed out that in the statement under Section 313 of the Code of Criminal Procedure, the appellant tried to sing another tune and stated that he never suspected the chastity of his wife. If that was so, suggestions made to the victim in the course of cross examination are totally inexplicable.
6. The learned counsel for the appellant submitted that PW-2 Vandana Kashinath Gaikwad, who was supposed to have been an eye witness had not corroborated version of the victim. As rightly pointed out by the learned APP, PW-2 Vandana was examined to show that the appellant and the victim were last seen together and not because the witness had actually seen the assault, since assault had taken place some distance away from the place where Nanda parted company of Vandana.
7. The learned counsel for the appellant submitted that Blood Group of the blood stained clothes was not ascertained. This is hardly relevant. Report of the Forensic Science Laboratory at Exhibit 24 shows that the knife had stains of human blood. The knife was carried by the victim herself to the police station and therefore, if the report of 'ABO' Blood Group is inconclusive, it does not matter. The learned counsel for the appellant submitted that PW-4 Raghunath Daguji Garud, who was supposed to have witnessed seizure of the blood stained clothes has turned hostile. This too is immaterial, since the appellant is not sought to be held guilty on the basis of circumstantial evidence, like blood stains on the victim's clothes.
(i) Incised wound over left elbow 2 cm x 3 cm
(ii) Incised wound over left lumber region 2cm x 3 cm
(iii) Incised wound over epigastric region 2 cm x 3 cm
(iv) Incised wound over above umbilicus 2 cm x 2 cm
(v) Three incised wounds over chest between breast
Dr. Patil had found injuries were grievous in nature and there was possibility of the person dying, if no medical treatment was provided. After having admitted his presence at the spot and also admitting that the victim suffered injuries, cross examination of Dr. Patil is really enigmatic. PW-6 Police Head Constable Hiraman Tanaji Bharati had received report and PW-7 API Devidas Narayan Lahare had conducted investigation.
9. Though the learned counsel for the appellant wanted the evidence of PW-1 Nanda Vilas Lokhande has to be rejected, there are absolutely no reasons for disbelieving her version that the appellant was author of injuries sustained by her, particularly in the face of cross examination of the victim whereby the appellant invited sufficient motive to cause injuries to the victim. The learned Judge, therefore, cannot be faulted for holding the appellant guilty for the offence punishable under Section 324 of the Indian Penal Code, since the injuries by sharp cutting weapon knife have been proved.
10. As regards conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code, the learned counsel for the appellant submitted that this conviction deserves to be set aside, since one incident of assault would not qualify to be cruelty as defined in explanation to Section 498A of the Indian Penal Code. Though the learned APP submitted that any injury sustained which are of the type described in explanation to Section 498A of the Indian Penal Code, would qualify for attracting punishment under Section 498A of the Indian Penal Code, if the incident of assault is one, there would be no question of handing down conviction of the appellant under two provisions of law and sentencing him separately for two offences. There is no evidence about any prior ill treatment of the victim. In view of this, conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code, though may be technically justifiable is unwarranted, since for inflicting the same injuries he has been held guilty and has been sentenced for the offence punishable under Section 324 of the Indian Penal Code.
11. The learned counsel for the appellant next submitted that the incident occurred due to matrimonial discord about 16 years ago. She submits that parties are residing separately with their families. He submitted that the appellant did not have any previous criminal history and has not indulged in any crime since his conviction. According to her, the appellant was arrested on 6th September, 1996 and was in jail till 27th January, 1997 when by order of this Court he was admitted to bail. Thus, he was in custody for four months and 20 days. The learned counsel for the appellant submitted that considering the genesis of the incident and the fact that the appellant is not a threat to the society, it may not be necessary to send him back prison 16 years after the incident as he had been living under the shadow of conviction for all these years. The learned APP submitted that this is a case where exemplary sentence is warranted, since the appellant has not only caused injuries to the body of the victim but has also, by the reckless cross examination, injured her character and reputation. Though this argument is unexceptionable, it has to be seen in the context of the quarrel between spouses where all sort of allegations are traded. Considering the fact that the appellant is not shown to be menace to the society and has no previous or subsequent criminal record, his being asked to re-visit the prison 16 years after the incident may not be justified. Reduction of sentence of imprisonment to that already under gone by substantially increasing fine would serve end of justice in the peculiar facts and circumstances of this case.
12. In view of this, the appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 324 of the Indian Penal Code is maintained. The sentence is, however, reduced to that already undergone namely four months and 20 days, while fine is increased from Rs.2,000/- to Rs.25,000/- or in default rigorous imprisonment for a further period of one year. Conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code and sentence of rigorous imprisonment for one year with a fine of Rs.500/- or in default rigorous imprisonment for three months is set aside. The entire amount of fine, if recovered, be paid to the victim towards compensation. If the appellant does not deposit the amount of fine within a period of four weeks, the learned trial Judge shall have the appellant arrested and committed to prison to serve sentence in default of payment of fine.