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Judgment
R.C. Chavan, J.—This is an appeal against conviction of the appellants for the offences punishable under Sections 307 read with 34 of the Indian Penal Code and sentenced to suffer R.I., for five years and to pay fine of Rs. 500/- in default to suffer R.I., for 3 months, inflicted by the learned Additional Sessions Judge, Raigad, in Session Case No. 111 of 1993.
When the appeal was called out for hearing, Ms. Ameeta Kuttikrishnan, advocate, holding for Mr N.V. Pradhan, advocate for the appellant, submitted that the appellant had taken away brief from their office, long back on l8.l2.2000 and that the appellant had so acknowledged in the register maintained in the advocate''s office. Therefore, learned Counsel Ms. Ameeta Kuttikrishnana, for the accused, expressed inability to assist the Court, in deciding this appeal. She submitted that the Court may issue notice to the appellant or may appoint amicus curiae.
The question of issuing notice to to the appellant cannot arise because the appellants themselves have preferred this appeal against their conviction and when learned Counsel, appearing on their behalf returned their brief, therefore, it was for them to ensure that the appeal is prosecuted on their behalf diligently. After taking the brief way back in 2000, till 2010, they neglected to engage another advocate. It is clear that they do not want to prosecute the appeal. As far as appointment of amicus curiae is concerned, amicus curiae could be appointed when inspite of due diligence, accused is not represented before the Court. Therefore, there is no question of adjourning the hearing any further for appointing amicus curiae and hearing it again. Therefore, with the help of learned Additional Public Prosecutor, I have gone through the record and I am proceeding to decide this appeal by this judgment.
The facts which are material for deciding this appeal are as under:
One Rajesh Baburao Thakur, was a worker of Center for Indian Trade Union and was a member of Communist Party of India (Marxist). In April, 1992, he had taken up cause of one Pushpalata Pandharinath Thakur, allegedly kidnapped by present appellants. He had caused Morcha to be taken out, which led to arrest of the appellants. The appellants were prosecuted and have been eventually acquitted in that case; possibly because of some compromise worked out between the victim, her family and the appellants.
On 23.5.l993, one Pandurang got married at Multi Purpose Hall of Jawaharlal Nehru Port Trust. Rajesh Thakur attended the said marriage. Marriage and reception ceremonies were over at about 5.00 p.m. Rajesh Thakur was chitchatting with his friend Ramesh Patil. Two appellants alongwith third accused Kamlakar Bhoir charged at Rajesh and inflicted blows on his shoulder, chest and side of abdomen. The third accused Kamlakar had already left the place. The accused persons ran away in a rickshaw. The victim Rajesh was taken to hospital where he was given necessary treatment. On the report made by the victim, an offence was registered and investigation commenced.
In course of investigation, police performed panchnama of spot and seized some incriminating articles from the spot. Accused persons were arrested and at the instance of appellants weapons used in commission of offence were seized. Incriminating articles were sent to Forensic Science Laboratory, which reported that the blood stains weapons as well as blood stains on the spot and those on the victim''s clothes were of blood group of victim. On completion of investigation, the appellants, alongwith Kamlakar Bhoir, were chargesheeted. Upon commitment of the case by the learned Judicial Magistrate First Class, Uran, trial commenced before learned Additional Sessions Judge, Raigad at Alibag.
Since appellants and third accused Kamlakar pleaded not guilty to the charges of offence punishable under Sections, 307, 392 read with 34 of the Indian penal Code and they were put on trial, at which prosecution examined as many as 9 witnesses in order to prove the guilt of the appellants. After considering the prosecution evidence in the light of defence of false implication on account of previous enmity, learned Additional Sessions Judge acquitted the appellants and third accused for offence u/s 392 read with 34 of the Indian Penal Code and also acquitted the third accused Kamlakar for the offence punishable u/s 307 r/w 34 of the Indian Penal Cope. He convicted and sentenced the appellants for offence punishable u/s 307 read with 34 of the Indian Penal Code as mentioned earlier. Aggrieved thereby the appellants have preferred this appeal.
I have heard learned Additional Public Prosecutor and with her help, I have gone through the entire record. P.W.1, was a Revenue Inspector, who had been examined to prove the sketch of the spot drawn by him at the instance of police. This sketch is at Exh.15. P.W.2, Rajesh Thakur is the victim himself, who was injured in the assault by two appellants. P.W.3 Ramesh Patil, was with the victim at the time of incident and had witnessed the entire incident. P.W.6 Mahadeo, was present at the spot and had seen the appellants leaving the spot after incident. P.W. 4 Ramesh Thakur was a panch at the panchnama of spot. P.W. 5, Vijay Gajanan Patil, was a panch at the panchnama of seizure of articles recovered at the instance of appellants, has refused to support the prosecution, and he turned hostile. P.W.7 is the Investigating Officer, Police Inspector, Patil. P.W. 8, Hanumant, is a driver of rickshaw, which was allegedly forcibly taken away by the appellants after incident. He too turned hostile. P.W.9, is Dr. Sunita Arole, who had treated the victim after his admission at Sion Hospital.
P.W. 9 Dr. Sunita had stated that she treated the victim and found that the victim had suffered following injuries.
i) incise would over epigastrium 2cm x 1 cm subcutaneous deep.
ii) incise wound over right hypocondrium 2cm x 1 cm (depth not probed)
iii) incise wound over right 7th rib 2 cm x 1 cm subcutaneous deep.
iv) incise wound over right shoulder 2cm x 1 cm subcutaneous deep.
v) incise wound over arm, middle 1/3 exterior aspect 2cm x 1 cm.
vi) incise wound over left anterior axillary fold 2 cm x 1 cm subcutaneous deep.
She found that entry of air was decreased on account of his injuries. There was about 300 CC of blood in the chest cavity. Witness stated that the injuries were grievous and could have led to death of the victim. Cross examination of this witness shows that the witness had failed to mention the measure of dimensions of injuries, which she clarified to be centimeters. This is not a very serious lacuna though ideally Medical Officer should have mentioned that the dimensions were in centimeters. There is nothing else in the cross examination which could reduce the veracity of the evidence tendered by the witness. It is also worth of mentioning that it was suggested to the victim himself who was examined as P.W.2 that he had been assaulted by someone else and because of disputes in the union, he named the appellants as assailants. Thus that suggestion shows that it has not been disputed at the trial that the victim had been seriously injured.
Both P.W. 2 Rajesh and P.W.3 Ramesh, the victim and eye witness, categorically named two appellants as the authors of injuries inflicted on Rajesh. They state that appellant Kishor and Abhay, inflicted blows by means of Gupti and knife respectively on shoulder, chest and side of abdomen. The only material discrepancy in the evidence of these two witnesses is as regards the clothes which appellants were wearing. P.W. 2 victim Rajesh stated that the appellants were wearing shirts. P.W.3 Ramesh stated that they were wearing banians. As rightly submitted by the learned APP, this is not a serious discrepancy warranting the disbelief in the victim and his friend. She submitted that the victim was unlikely to name a wrong person as perpetrator of assault on him letting real culprit scot-free.
In the backdrop of the facts, appellants themselves had suggested to the victim that there was enmity between the victim and the appellants or that there was some disputes in the union, as also the fact that it was suggested to the victim that the appellants were involved in the case of kidnapping one Pushpalata because of victim''s speech, it would be difficult to infer that the appellants had really no grievance about victim and therefore, no motive to launch such assault. In view of this the evidence of Rajesh P.W.2, duly corroborated by P.W. 3 Ramesh, would have to be accepted as has been rightly done by the learned Additional Sessions Judge.
The evidence about discovery of weapons at the instance of appellants, is deficient. P.W.5, Vijay who was panch at seizure has turned hostile. The Investigating Officer P.W.7, Police Inspector, Patil, has stated about the seizure in an extremely casual manner. In his examination in chief, he stated that on 27.5.1993, he attached Gupti at the instance of accused Kishore Patil under Memorandum of Discovery Panchnama at exh. 25 and 25A and he also attached knife at the instance of accused Abhay Parshuram, under memorandum of discovery panchnama vide Exhibit 24 and 24A. Though the learned Trial Judge, in para 22 of the judgment has observed that memoranda of discovery, have been proved by prosecution through Investigating Officer and that solitary statement of Investigating Officer, a retired Police Inspector, can be taken as sufficient for proving alleged recovery of weapons u/s 27 of the Evidence Act, this conclusion has to be disapproved. The learned Judge should have seen that it was necessary for the Investigating Officer to depose as to how the accused came to disclose about concealment of weapon used in commission of crime and how weapons came to be discovered at the instance of appellant. Summary statement of the witness in para 2 of his deposition hardly satisfies the requirement of a discovery u/s 27 of the Evidence Act and the learned Judge should have, therefore, discarded this part of evidence.
The learned Additional Public Prosecutor submits that the discovery of weapons could be excluded from consideration since in this case there is an eye witness account of the incident given by two witnesses who would have no reason to name wrong persons as perpetrators of crime. Therefore, in the face of evidence of P.W. 2 Rajesh and P.W.3 Ramesh, which has not been impeached inspite of vigorous cross examination, it cannot be said that the learned Judge erred in concluding that the appellants were the authors of the injuries inflicted on the victim.
Considering area of body on which injuries have inflicted and the observations of P.W.9, Dr. Sunita Arole, that the injuries could have caused death, the learned Judge must be held to have rightly concluded that the offence of attempt to commit murder had been duly proved. Since in this case as injuries been caused in course of attempt to commit murder, offence attracts imprisonment of life. The learned Judge has duly considered the question as to whether the benefit of Probation of Offenders Act, could be given to the appellants and had ruled out such possibility because of legal bar.
I have carefully considered the possibility of inflicting some lesser sentence on the appellants in the light of fact that incident has taken place l7 years ago in l993 when the appellants were 21 years of age. However, given the nature of assault and also the fact that appellants have been in jail merely for three months, before or after conviction, reduction in sentence which would obviate their revisiting jail is ruled out, since of R.I. for five years with fine of Rs. 500/- would in ordinary course be proper punishment for offence of attempt to commit murder where injuries are inflicted. In view of this, even the sentence which is inflicted does not warrant any interference. In view of this appeal is dismissed.
The appellants shall surrender to their bail and if they do not surrender, within a period of four weeks, the learned Sessions Judge, Alibag, shall take necessary steps to take them in custody to serve the sentence.