Bombay High Court
Vilas Bhagwat Bhujade vs State Of Mah., Thr. Pso P S Mankapur ... on 5 February, 2020
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 623 OF 2019
APPELLANT : Vilas Bhagwat Bhujade,
Aged 30 years, Occu. Carpenter,
R/o Geeta Nagar, Zingabai Takli,
Mankapur, Nagpur,
Presently at Central Prison, Nagpur.
VERSUS
RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Mankapur, Nagpur
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Mr. Mir Nagman Ali, Advocate for the appellant.
Mr. V. A. Thakare, A. P. P. for the respondent /State
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CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 05, 2020.
ORAL JUDGMENT
1. This appeal challenges the judgment and order of conviction passed by the learned Additional Sessions Judge-11, Nagpur in Sessions Trial No. 115 of 2017 on 18.07.2019. By the impugned judgment, though the learned trial Judge acquitted the appellant for the offence punishable under Section 309 of the Indian Penal Code, he convicted the appellant for the offence punishable under Sections 307 and 448 of the Indian Penal Code. ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 :::
2 APEAL623.19.odt For the offence punishable under Section 307 of the Indian Penal Code, the learned trial Judge imposed sentence of five years simple imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for six months. So far as his conviction for the offence punishable under Section 448 of the Indian Penal Code is concerned, he is directed to suffer simple imprisonment for one month and to pay a fine of Rs.500/- and in default to suffer further simple imprisonment for 15 days.
2. When Laxman Kawaduji Hande (PW10), An Assistant Police Inspector, was attached to Police Station, Mankapur, Nagpur and he was discharging his duties, he received information from Control Room that 2-3 persons are injured with blade and knife at the house of Kathote. He was directed to rush to the spot immediately. Accordingly, he along with the staff rushed to the spot. On reaching to the spot, he gathered information that one Bhujade (appellant) injured two kids by name Niharika and Krish with blade and those two injured kids were taken to the hospital by their mother and grand-mother.
API Hande met with Samruddhi Chaudhari who disclosed to him that she can show the place where the incident had occurred ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 3 APEAL623.19.odt and accordingly, the place was shown to him. It was a terrace of second floor. Three blades of Super-Max company were lying on the spot. API Hande thereafter prepared the spot panchanama in presence of Mayur Dharmali (PW7). The spot panchanama is at Exh.38. API Hande also seized the blades, packets of chips, sleepers of kids, piece of brick, empty packet of Super Max blade, plain as well as blood stained soil and some part of Tulsi Vrundavan at the time of preparing spot cum seizure panchanama (Exh.38) and its seizure is mentioned in the said proved document itself.
Subsequently, Sunanda Arvindrao Kathote (PW3), the owner of the house wherein injured kids were residing with their parents as tenant, lodged her report. The oral report of Sunanda is at Exh.24. The report was disclosing commission of cognizable offence. Consequently, API Hande registered the crime against the appellant vide Crime No. 159/2016 for the offence punishable under Sections 448, 307 and 309 of the Indian Penal Code. The printed first information report is Exh.25. The oral report (Exh.24) of Sunanda (PW3) states that Digambar Wakode, who is her relative was staying on the first floor as tenant since last six years along with his wife Vaishali, son Krish aged about 5½ years and daughter Niharika aged about 2½ years. The report would show that the appellant, a carpenter, resides in front of her house along with his ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 4 APEAL623.19.odt family. He is married and having one son. He used to regularly visit Digambar and used to have chit-chatting with Vaishali, wife of Digambar. He also used to play with Krish and Niharika and used to offer them sweets. These two kids were also loving him.
As per the oral report, on the day of the incident i.e. 05.10.2016 at about 16.00 hours, the first informant, her husband Arvind and Vaishali were chit-chatting on road and Krish and Niharika were also playing nearby. That time appellant came there and took both the kids along with him for giving them chips. This act was not objected by anybody since it was a regular affair. After some time, the appellant came back with Krish and Niharika and on the pretext that he will offer them chips, took them on third floor. That time, the first informant, her husband and Vaishali were still chit-chatting on road. In the meanwhile, they heard loud weeping of Krish and they saw that Krish was coming down in an injured condition. Therefore, the first informant and his mother Vaishali, ran towards Krish to notice the injury on his neck and oozing blood. When they went upstairs, that time they noticed that appellant Vilas was injuring Niharika by means of blade on her neck. So they shouted. Therefore, the appellant released Niharika. Both the kids were injured and blood was oozing out from their respective injuries. Due to their blood, clothes of Sunanda, the first informant, ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 5 APEAL623.19.odt were also stained with blood. Thereafter, the appellant himself assaulted on his person by blade and by one brick and ran away from the spot.
3. During the course of investigation, the Investigating Officer seized the clothes of Vaishali, mother of kids in presence of panch witness PW7 Mayur under seizure memo (Exh.39), which were stained with blood. Similarly, he seized the clothes of the appellant under seizure memo (Exh.40). Jeans pant on the person of the appellant was stained with blood. Since the injured kids were carried by first informant Sunanda, the Investigating Officer also seized her clothes , which were stained with blood, under seizure memo (Exh.41).
4. During the course of investigation, it was noticed by the Investigating Officer that the appellant took injured kids initially with him to the bank and withdrew the amount. The Investigating Officer, therefore, took CCTV footage of the said bank and prepared the panchanama (Exh.53). This footage was given by the Bank Manager Vishal Abhyankar (PW12), who also gave certificate under Section 65-B of the Evidence Act. The Investigating Officer thereafter purchased a new Pen Drive for CCTV footage. The bill of ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 6 APEAL623.19.odt purchase of Pen Drive is at Exh.54. The Investigating Officer thereafter took steps for obtaining hash value of the Pen Drive and the same was sent to the Forensic Laboratory. After completion of other usual investigation, the Investigating Officer was of the view that sufficient material is collected to send the appellant for trial and therefore, he filed the charge-sheet.
5. The learned Magistrate, in whose Court the Charge- sheet was presented, found that the case is exclusively triable by the Court of Sessions. Consequently, he committed the case to the Court of Sessions. Thereafter it was registered as Sessions Trial No. 115/2017.
The learned Additional Sessions Judge, Nagpur framed the Charge against the appellant for the offence punishable under Sections 448, 307 and 309 of the Indian Penal Code. The appellant abjured his guilt and claimed for his trial.
6. In order to substantiate Charge, the prosecution has examined in all 13 witnesses and also relied upon various documents, which were duly proved during the course of trial. After evaluating the prosecution case, the learned trial Judge delivered the impugned judgment. Hence, this appeal.
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7. Heard Mr. Mir Nagman Ali, the learned counsel for the appellant and Mr. V. A. Thakare, the learned Additional Public Prosecutor for the respondent/State.
8. It is the submission of learned counsel Mr. Ali for the appellant that the Court below has committed a mistake in convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code. He would submit that even if the entire prosecution case is taken as proved against the appellant, the offence cannot travel beyond the offence punishable under Section 325 of the Indian Penal Code. He, therefore, submitted that such relief be granted in favour of the appellant.
9. Per contra, learned Additional Public Prosecutor Mr. Thakare for the State vehemently opposed this submission of the learned counsel for the appellant. He submitted that looking to the age of the injured kids and the part of the body on which the appellant caused injuries by means of sharp razor blade, the trial Court was justified in recording the finding of guilt against the appellant for the offence punishable under Section 307 of the Indian Penal Code. He, therefore, prayed that the appeal be dismissed. ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 :::
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10. Though, in all thirteen witnesses are examined by the prosecution to prove the assault on the kids by the appellant, evidence of PW3 Sunanda Kathote, PW5 Vaishali Wakode, mother of injured kids, PW6 Samruddhi Chaudhari and injured kid Krish (PW8) is relevant. PW3 Sunanda, PW5 Vaishali and PW6 Samruddhi are the eye witnesses. PW9 Dr. Himanshu Ambade and PW13 Dr. Abhijeet Gajbhare are the Medical Officers and their evidence would also be relevant for deciding this appeal.
11. PW13 Dr. Abhijeet Gajbhare's evidence would show that on 05.10.2016, Niharika and Krish were brought to Mayo Hospital. They were brought in casualty department. Senior Doctors examined them and thereafter the senior Doctors decided to suture their wounds. His evidence would show that these two kids were admitted in the hospital for 4-5 days and when their condition became stable, they were discharged. Evidence of Dr. Gajbhare would show that injured Niharika had sustained injury of size 6x1x1 cm on both of her hands ,on right forearm and wrist. Niharika was also having one injury on her left forearm and left arm of size 2 x 1 x 0.5 cm each. She was also having two injuries on neck of size 3 x 1 x 0.5 cm each. After examining Niharika, Dr. Gajbhare issued Medico-legal certificate. The said certificate is at Exh.69. ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 :::
9 APEAL623.19.odt Similarly, Dr. Gajbhare (PW13) also examined injured Krish. He found injuries on his both hands and neck. Krish was having injury of size 4 x 2 x 1 cm on right elbow. The measurement of the injury on his neck was 4 x 1 x 0.5 cm. Similarly, there was injury of size 1 x 0.5 x 0.5 cm on right wrist and injury of size 1 x 0.5 cm on left wrist. Dr. Gajbhare found that Krish had also sustained injury on left hand on upper side of size 4 x 3 x 1 cm and one injury on leg admeasuring 5 x 3 x 2 cm. Similarly, Krish had sustained injury on his right shoulder having size 6 x 3 x 0.5 cm. The injury certificate of Krish is at Exh.70. Evidence of Medical Officer Dr. Gajbhare would show that the kids were admitted in the hospital and after they became stable, they were discharged under Discharge Cards (Exhs.71 and 72).
12. During the course of investigation, from the spot itself the Investigating Officer seized blades of Super-Max company. The Investigating Officer under requisition (Exh.49) sent the same to Mayo Hospital for obtaining the opinion as to whether such blade could cause the injuries as noticed by the Medical Officer when two kids were examined.
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13. PW9 is Dr. Himanshu Ambade, who received Exh.49 with the weapon blade in sealed condition. Evidence of Dr. Ambade would show that when he opened the sealed packet, he found that the packet was having three blades of Super-Max company and thereafter he gave his report (Exh.50) answering the queries of the Investigating Officer. He opined that the injuries on the person of injured Krish and Niharika are possible due to said blade. Dr. Ambade returned the said blades and the report in sealed condition to the Investigating Officer.
14. Looking to the nature of injuries on various parts of the bodies of both the injured kids, in my view, nobody can even imagine that those injuries are self-inflicted injuries. Even such was not the defence of the appellant during the course of the trial or even it was not remotely submitted before this Court.
15. Once the Court reaches to the conclusion that the injuries found on the person of these two toddlers were not self- inflicted injuries, the question that this Court is required to answer is as to who is the author of such injuries.
16. According to the prosecution, it is the appellant who has ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 11 APEAL623.19.odt caused injuries on the person of Krish and Niharika. As observed in the earlier part of this judgment, to prove the authorship regarding the injuries at the hands of the appellant, the prosecution has examined three eye-witnesses and in addition to that examined injured kid Krish (PW8). It was but natural on the part of the prosecution that it did not examine Niharika in view of her age that she was aged only 2½ years. In addition to the oral evidence, the prosecution has also relied upon the Chemical Analyser's report. Sunanda (PW3), apart from the fact that she set the criminal law into motion by lodging report (Exh.24), she is also an eye-witness. From the first information report as well as her substantive evidence, the prosecution has established that the parents of the injured were residing in her house as her tenant and the house of the appellant is situated in front of her house. Her evidence would show that the appellant was well acquainted not only with her but also with Vaishali (PW5), the mother of injured kids, which fact is corroborated by Vaishali (PW5). From the evidence of these eye- witnesses, there is no difficulty in recording a finding that the appellant was well acquainted with the family of the injured kids and not only that, he used to visit their house regularly and used to offer them various eatables at various points of time. ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 :::
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17. From the evidence of PW6 Samruddhi Chaudhari, it is clear that at the time of incident, Durga festival was going on. Evidence of first informant Sunanda (PW3) and mother of injured Smt. Vaishali (PW5) corroborate with each other that on the day of the incident, they along with Arvind, husband of first informant were chit-chatting on road in front of their house and the kids were playing nearby and that time the appellant came and took the kids with him for offering them some eatables. There is nothing on record to show that this aspect of their evidence cannot be accepted. Their evidence further show that after some time the appellant came back with packets of chips and on the pretext that he will offer the same to them, took them on the third floor of the house. Since, in past on many occasions the appellant used to offer eatables to the kids, in my view, these ladies not objecting the appellant from taking the kids with him to third floor, is most natural.
18. Also, evidence of Sunanda (PW3) and Vaishali (PW5) are corroborating each other that after some time due to loud weeping, they went towards terrace and that time they noticed injuries on the person Krish and the appellant was assaulting by means of blade on Niharika. This part of their evidence is also corroborated by PW6 Samruddhi.
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19. Minute scrutiny of the evidence of these three witnesses, in my view, show that their evidence is trustworthy and there is no iota of any evidence that there was any reason for these three ladies to implicate the appellant falsely.
20. PW8 Krish is also examined by the prosecution. At the time of his evidence, he was seven years of age. His evidence would show that at the relevant time, he was playing with his sister Niharika. That time the appellant came and after bringing chips for them, he assaulted on them by means of blade.
21. The prosecution case that the appellant took the kids on terrace on the pretext that he will offer eatables, is substantiated by contemporaneous document (Exh.38), spot panchanama, which clearly shows that while drawing the same, the Investigating Officer found chocolates and packets of chips on the spot, which were seized under the said panchanama itself.
22. The Investigating Officer sent the muddemal articles to Forensic Laboratory for chemical analysis under requisition letter dated 13.10.2016. The Chemical Analyser's report is the part and parcel of the paper book and it is available at page 125 of the paper ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 14 APEAL623.19.odt book. Though, the learned Judge has not exhibited the said Chemical Analyser's report, in view of the observations of this Court (Coram : B.P. Dharmadhikari and V.M. Deshpande, JJ), in the case of Omprakash S/o Gayaram Nirmalkar .vs. State of Maharashtra, reported in 2016 All MR (Cri) 3337, in paragraph 38 of the said judgment, Chemical Analyser's report can be read in evidence though it is not formally exhibited. The Chemical Analyser's report would show that not only the clothes of injured and clothes of Sunanda and Vaishali were stained with human blood, but the clothes of the appellant were also stained with human blood.
23. On re-appreciation of the entire prosecution case, I am of the view that the prosecution has successfully established the authorship that it was the appellant who caused injuries on the kids, Krish and Niharika.
24. Insofar as the submission of learned counsel Mr. Ali for the appellant that the injuries were simple in nature and therefore, the appellant cannot be convicted for the offence punishable under Section 307 of the Indian Penal Code, in my view, is devoid of any substance. The kids were helpless, not only that the appellant caused injuries on their neck and also on wrists, through which ::: Uploaded on - 06/02/2020 ::: Downloaded on - 07/02/2020 01:33:03 ::: 15 APEAL623.19.odt major blood vessels pass. It is only with the grace of God, these two kids survived. The learned Judge of the trial Court has already shown leniency in favour of the appellant in respect of the quantum of sentence.
25. In totality of the circumstances, I am of the view that this appeal is meritless and accordingly it is dismissed.
The judgment and order of conviction passed by the learned Additional Sessions Judge-11, Nagpur in Sessions Trial No. 115 of 2017 on 18.07.2019, is hereby maintained.
The appellant, who is in jail, shall undergo the remainder of his jail sentence.
V. M. Deshpande, J.
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