Judgment:
Naresh H. Patil, J.
1] Heard.
2] The appellant was charged for assaulting Kalpana Mahimkar with intention to cause death with deadly weapon i.e. knife. The charge was framed against him for offence punishable under section 307 of Indian Penal Code on 30.8.2000. The appellant pleaded not guilty and claim to be tried.
3] The prosecution case in brief is that the present accused was in love with the victim Kalpana. Both were originally belonged to State of Gujarat and they were knowing each other since the year 1988. The family members of Kalpana were against the relationship between the two. In search of job, Kalpana shifted to Mumbai. She was doing a part time job in Chartered Accountant's Firm at A.C. Market, Tardeo, Mumbai owned by P.W. 1 Ganesh Mehta. It is the prosecution case that the appellant was on visiting terms with victim Kalpana. Though the appellant was residing at Ahmedabad, he used to frequently visit Kalpana.
4] On 26.10.1990 on the day of incident Kalpana was working in the office. The appellant went to her office and had a brief talk with her and thereafter left the office. After sometime when Kalpana was returning from toilet the appellant assaulted her while she was in the corridor of the office. Hearing Kalpana screaming her colleagues rushed to the spot and rescued her. The appellant inflicted blows with knife on her person. The prosecution witnesses caught hold of the appellant who was holding a blood smeared knife in his hand. The victim fell unconscious and she was taken to Bhatia Hospital and was got admitted there. It is the prosecution case that the appellant inflicted blows of knife on himself soon after the assault on Kalpana was over. He was admitted in Nair Hospital.
5] P.W. 6 Dr. Virani was attached to Bhatia Hospital as honorary surgeon. Doctor examined Kalpana aged 20 years and noticed following injuries :
a. Incised wound behind the right ear bleeding, 1/2' X 1 /4â
b. CLW right upper side of neck 1/2 X 1/4â
c. CLW behind right mastoid 1â x 1/4â (Occipital artery ruptured)
d. Penetrating CLW through left cheeks 1â X 1/2â bleeding plus left upper pre-motor nerve severed
e. CLW left cheek â zygomatic region
f. CLW left side of neck 1â X 1/4â bleeding plus
g. CLW left ear posteriorly 1/2â X 1/4â
h. CLW behind left ear 1 1/2â X 1/4â extending to skull bleeding plus
i. Incised wound on back at level of C-7 extending up to the bone.
j. Right mid line wound on back mt T 7 with fracture of spine and leak of CSF.
k. Left lower CLW at level of inferior angle of scapula with fracture 7th rib posteriorly.
l. Right lower CLW with fracture of transverse process of T 8.
m. Inter scapular CLW extending up to bobe bone (sutured)
n. Left upper pre-molar tooth broken.
o. Fracture spine D5-D6 level
According to the doctor the patient had traumatic paraplegia due to laceration and transaction of the spinal cord with total loss of anatomical continuity with a gap of 1 cm. In other words she suffered total paralysis to both lower limbs. The victim was operated twice for the injuries. According to the doctor Kalpana was in a state of shock when she was brought by her office colleagues to the hospital. In the opinion of the doctor injuries on the patient were possible due to assault by weapon like knife Article 32. All the injuries were grievous in nature and if not treated promptly, it could have resulted in death of Kalpana in normal circumstances. According to P.W. 6 Virani because of injury 'o' fracture of spine D5-D6 level, the spine got fractured resulting into paraplegia. There were no chances of recovery in future according to the doctor. After the investigation was over charge sheet was filed and the accused was tried for the said offence. The prosecution examined seven witnesses. P.W. 2 Suresh Dayalal Nanda was declared hostile. P.W. 3 is victim, Kalpana Mahimkar. P.W. 4 is Yashwant Shelar who was office colleague of Kalpana.
6] The crucial evidence is of victim Kalpana herself. In her evidence on commission she narrated in detail the incident. After the assault she became unconscious. According to her the accused wanted to accompany her and on refusal by her he attacked her. She stated that the police had recorded her statement. It was stated by her that she had written letters to accused Article C-1/I at the instance of the accused. The accused was also writing letters to her. Those letters are brought on record. It has come in the evidence of P.W. 3 that while going to toilet she did not see anybody near the corridor. She saw accused for the first time when she was returning from toilet. No sooner she reached near the accused he started inflicting blows. First blow was hit on left cheek with sharp object. With that blow victim became unconscious. Prior to giving that blow P.W. 3 asked him as to why he had come upstairs though he was told to wait at the bus stop. He said that one would understand whose heart is broken and then started assaulting. The evidence of P.W. 3 finds support from the prosecution witnesses.
7] P.W. 1 is Mr. Ganesh Mehta who is practising as Chartered Accountant in a firm, named Ganesh Mehta and Co. which is a partnership firm since the year 1982. He deposed before the court that his peon Shelar came running in his cabin and told that somebody attacked Kalpana with knife. When the witness reached the spot he saw Kalpana was lying on the floor in pool of blood. One Mr. Shetty who was having office opposite to his office was holding the accused before the court and that the accused was holding knife in his hand, which was smeared with blood. On asking Mr. Shetty told him that he saw accused assaulting Kalpana with knife. P.W. 4 is Yashwant Shelar who was also working in the said firm. He too saw the boy holding the knife in his hand. He had identified the appellant before the court. He saw accused assaulting himself. The version of the complainant is corroborated by these two prosecution witnesses.
8] The prosecution examined P.W. 5 Badri Ganpat Gaikwad who was also working in the said office. P.W. 7 Vasant Vishnu Patil is the investigating officer. He proved spot panchnama which was in his hand writing (Exhibit 21). The muddemal was sent to the chemical analyser. Blood sample of Kalpana was taken, which was sealed under a panchnama Exhibit 28. The blood sample was sent to chemical analyser. The chemical analyser's reports are at Exhibits 10, 11 and 12. Injury certificate of Kalpana dated 18.3.1991 and that of accused dated 26.3.1991 are marked as Exhibits 24 and 30. The blood group of Kalpana was analysed as of 'O' group. The blood group of accused was analysed as of 'B' group. On article 32 knife blood group 'B' was detected.
9] The learned senior counsel Mr. Shirish Gupte submitted that the assault was not intended attempt to cause injury to Kalpana. It was an act reflecting frustration in love by the appellant. The fact that after assaulting Kalpana the appellant assaulted himself with the same knife demonstrates the level of frustration and anger. He too suffered injuries. Exhibit 30, injury certificate, of the accused was admitted by the accused. In the submissions of the learned senior counsel the appellant is incarcerated for more than eight years. The accused had married during the period while he was on bail. Considering the fact that the victim is paralytic, suitable compensation could be awarded and in the facts and circumstances of the case the sentence be reduced to already undergone.
10] The learned APP submitted that considering the evidence on record the appellant does not deserve any sympathy and leniency of whatsoever nature. No compensation in terms of monetary relief could serve the purpose and do justice to the victim girl. The fact that the victim got married itself demonstrates casual approach of the appellant to the serious miseries faced by Kalpana in her lifetime. According to the learned APP said offence is committed not only against an individual but against the society at large. Considering the present social scenario and outcry against the offences being committed against women this is a fit case where strong message needs to be given by dismissing the appeal of the appellant.
11] During the course of hearing, it was informed that though the trial court awarded amount of fine of Rupees Two Lacs the said amount was not withdrawn by the respondent no. 2 Kalpana Mahimkar. The respondent no.2 did not engage any lawyer. Notices issued earlier by this court were served. By way of abundant precaution, we had directed that the concerned police to verify as to whether respondent no. 2 Kalpana wishes to engage an advocate to represent her. Today, the learned APP has placed on record a report signed by a Senior Police Inspector. The learned APP submits that he had himself visited the residence of Kalpana along with a constable. On the said report the victim had made endorsement to the effect :
âI don't want any money from court and also I don't want to engage any lawyer. Court can pass any orderâ.
The said endorsements were made in presence of her brother and signed by both of them. The learned APP fairly submits that though the financial condition of Kalpana and her family is not sound but they are absolutely reluctant to accept any compensation in terms of money and they are not interested even to contest the appeal on any count but have left the matter to the decision of the court. The learned APP further submitted that brother of Kalpana is not married. Father of Kalpana is not alive. The mother and brother are taking care of Kalpana who is practically bed ridden. She is unable to discharge her day to day duties due to paralytic lower limbs.
12] We have perused the entire evidence, the judgment of the trial court and considered the submissions advanced.
13] We find that the testimony of P.W. 3 Kalpana Mahimkar the victim girl is reliable and convincing. Her evidence is not shaken in the cross-examination. She has not tried to improve upon the version. After receiving assault for 15 days Kalpana was in the hospital. After hearing screams of Kalpana her office colleagues rushed to the spot. They noticed appellant standing with knife in his hands. He also tried to assault himself. He was caught hold of by the office colleagues of Kalpana. Police was informed and soon thereafter Kalpana was admitted to hospital. The police took custody of the accused.
14] It was tried to be suggested by the defence counsel that both the accused and victim were having intimacy. Finding that Kalpana was not keen to carry on relationship the appellant might have assaulted in anger out of frustration. Considering the nature of injuries we are convinced to observe that the nature of injuries reflected the intention of the assailant. The injuries were so severe that one tooth of Kalpana had fallen due to injury on left cheek. Due to these very injuries Kalpana suffered permanent paralysis to both lower limbs. Two operations were performed but with all the efforts the doctor could not revive her. Throughout entire life Kalpana will have to live life of a bed ridden person. This has happened with her at an early age of her life. The incident is traumatic and shocking for her. Even if some suggestions of the appellant were not acceded to by P.W. 3 Kalpana or even if it is presumed that she was not showing interest in carrying on the relationship, it was absolutely unbecoming of the appellant to go to the office of Kalpana armed with dangerous weapon and assault her so severely. Going to office of Kalpana armed with a knife and considering the nature of injuries itself demonstrates that the appellant on that day intended to cause such serious injuries which would have resulted in death if timely medical aid was not provided.
15] We are not convinced with the plea of the accused and the defence taken before the court. Doctor examining the victim has clearly deposed before the court regarding the nature of injuries. There are eye witnesses to the incident. That soon after hearing the screams of Kalpana they reached the spot, caught hold the accused. Even on the testimony of P.W. 3 Kalpana alone the guilt could be established. The spot panchnama and recovery panchnama of the knife and the other medical evidence and the reports of experts do establish the prosecution version. 16] Considering the evidence on record, we are of the opinion that no leniency could be shown to the accused person on any count. Considering the nature of evidence and the stand adopted by Kalpana and the view expressed by Kalpana on APP's visit shows that she was not even interested in getting monetary compensation or for any increase in the same. On merits the appeal fails. It is accordingly dismissed.