Judgment:
.:
1. The appellant challenged validity and legality of the impugned judgment and order dated 17.11.1995 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No. 955/1988 whereby the appellant was held guilty for the offence punishable under section 304, Part II of Indian Penal Code and was sentenced to suffer R.I. for five years. The learned trial Judge, however, recorded acquittal for the offence punishable under section 302 of I.P Thus, the .C. appellant is challenging his conviction under section 304 Part II of I.P.C.
2. It appears case of the prosecution that on 9.6.1988 at about 16.45 hours the accused was sitting in his pan shop situated adjacent to Gulshan Iran hotel at Musafeerkhana Bombay1. At that time, victim Lalita and her mother arrived at the pan shop of the accused. As a result of some talk between them, quarrel ensued and consequently the appellant used scissor which was readily available in the pan shop and assaulted Lalita on her chest. Lalita was taken to the Saint George Hospital, Mumbai with history of assault by means of scissor. She succumbed to her injury. The complaint was lodged by her mother at M.R.A.Marg, Police Station, Mumbai initially under section 307 of I.P.C. vide C.R. No.270/1988. As Lalita was carried to the hospital for medical treatment in a critical condition. Investigation followed. Thereafter, the weapon of offence scissor (article No.1), clothes of the deceased ( article Nos. 2 and 3) and clothes of the appellant accused ( article Nos. 4 and 5) were recovered under scissor memos. After Lalita succumbed to her injuries, her dead body was referred for postmortem examination which was performed by Dr Hamida Shaikh (PW 3). Postmortem notes were drawn as per Exh.13. The muddmal articles seized during the course of investigation including weapon of offence, were sent to Chemical Analyzer and FSL for chemical analysis. Report of Chemical Analysis was received (Exh.21). After completion of the investigation, the Investigating Officer submitted chargesheet before the learned Metropolitan Magistrate 33rd Court, Ballard Pier, Mumbai. The learned Metropolitan Magistrate committed the case to Sessions Court, Mumbai for trial.
3. Charge was framed (Exh.5) to which the accused pleaded not guilty and claimed to be tried.
4. The prosecution had examined five witnesses in order to prove its case for alleged offence of murder. The learned trial Judge, after scrutiny of oral as well as documentary evidence led on record, found that deceased Lalita met with homicidal death on 9.6.1988, as a result of assault upon her at about 16.45 hours. The learned trial Judge after examination of merits of the evidence and hearing submissions at Bar, concluded that the accused can only be clothed with the knowledge that the injury which he caused was likely to cause death of Lalita but without any intention to cause her death or to cause such bodily injury as is likely to cause death. Therefore, the offence under the circumstances would be such which would fall under section 304 part 2 of I.P.C. but not under section 302 of I.P.C. Accordingly, the trial Court convicted the appellant for offence punishable under section 304 part 2 of the IPC and imposed sentence upon the accused to suffer R.I. For five years.
5. The appeal is pending since 1995. The appellant is on bail and he is represented by Advocate Mr A.R.Pandey. The appellant or his Advocate did not bother to remain present before this Court though the appeal was notified for final hearing. In my opinion, no separate notice is required to be served on the appellant, particularly, when the appellant was enlarged on bail pending hearing and final disposal of the appeal and is represented by the Advocate on record. They ought to have remained present before this Court at final hearing. It is the duty of Advocate accepting criminal brief to attend the case at final hearing. Negligence in this regard may amount to professional misconduct. The relative observation of the Supreme Court in S. J. Chaudhary vs. State (Delhi Administration) AIR 1984 SC 618, wherein it has been observed thus :
"The trial before the Sessions Court must proceed and be dealt with continuously from it's inception to it's finish. It will be in the interest of both prosecution and the defence that the trial proceed from day today. Sessions cases must not be tried piecemeal. Once the trial commences, be must except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded"
6. A criminal appeal is further continuation of trial proceedings and has same urgency to be concluded as early as possible by same analogy. An Advocate accepting criminal appeal must attend it at final hearing. His failure without any pressing or inevitable reason will amount to professional misconduct or breach of his professional duty. It is now well settled that criminal appeal cannot be dismissed on the ground of default in appearance, the court has to go through the record of the case even in the absence of the appellant or their counsel and decide the matter on merits [ See Parshuram and Anr Vs State of Orissa, (1994) 4 SCC 664].
7. Under the aforesaid circumstances, the Court has no option but to examine the merits of the appeal with the assistance of learned Additional Public Prosecutor, Shri K.V. Saste, who took me through the evidence on record.
8. The prosecution had led evidence of five witnesses in order to prove its case against the accused. It appears that PW 1 Ismail who was working in Gulshan Iran Hotel, near Crawford Market, Mumbai since ten years prior to the incident knew the appellantaccused who owned pan shop near the said hotel. On the date of the incident PW 1 was present in the hotel. According to him, there was some talk between the accused and mother of Lalita and at that time Lalita had sustained injuries inflicted by the accused by means of scissor which was in the hand of the accused. Lalita sustained injury on her chest. The accused was immediately arrested by the police. PW 1 Ismail Hamid had identified weapon of offence (scissor, article No.1) and also clothes ( article Nos. 2 and 3 blouse and Salwar) which were worn by Lalita at the time of the incident. It appears from his crossexamination that statement of PW 1 Ismail Hamid was recorded on the same day at about 7 O' Clock in the evening and according to him, the incident had happened prior to 6 O'clock. In a specific answer to the question as to where he was present at the time of the incident PW 1 Ismail Hamid stated that he was present near the pan shop of the accused, although he do not know as to who took injured Lalita to the hospital. There was no material discrepancy, omission, or contradiction in the deposition of PW 1 Ismail Hamid who was independent and natural eye witness to the incident. Another witness Vijay Baburao Mane (PW 2) deposed as a panch witness regarding seizure of weapon of offence (Article No.1), seizure of clothes belonging to the appellantaccused (article Nos. 4 and 5 Lungi and shirt) which were found blood stained. PW 2 deposed about correctness of panchnama (Exh.10). The prosecution has also examined Dr Prakash Nalate (PW 4), Casualty Medical Officer (C.M.O) working in Saint George Hospital, Mumbai who deposed that Lalita was brought in the hospital on 9.6.1988 at about 5:00 p.m. by her mother with alleged history given that Lalita was assaulted with scissor ten to fifteen minutes back prior to her bringing in the hospital. Lalita had sustained injury on left side of her chest which was incised wound punctured 1/4" x 1/2" x deep. PW 4 made necessary entries in his handwriting as per Exh. 16 which corroborated the evidence of PW 4 Dr Prakash Nalate in respect of the entry made in the casualty medical register of the Saint George Hospital. History of assault in Exh.17 clearly mentions that victim was hit by scissor on left side of the chest which is additional corroboration to the evidence of PW 4 Dr Prakash Nalate. The entry reads, thus : " hit/struck, alleged stab injury, 10/15 minutes back in the chest by scissor, no other history available".
9. The prosecution led evidence of Dr Hamida (PW 3) to whom dead body of Lalita was referred for postmortem examination. Dr Hamida found the following external injury on the body of deceased as described below :
Incised wound punctured 1/4" x 1/2" deep over chest, 2" above, and 1/2" middle to left nipple. With corresponding internal injuries:
Haematoma 2. 2/2" circulate below pectoral area left side punctural area 1"x1'4" above 4 rib 1"x 1/4", 3rd, 4th rib above 4 rib 1/2" lateral to sternal border transfer plead.
10. PW 4 Dr Hamida found both lungs were extremely pale, cut surface extremely pale, left thoracic cavity contain 2000 cc of liquid blood with large blood clot that is haemothorax. Punctured pericardium with pericardium effusion of blood 100 cc. According to PW 4 Dr Hamida probable cause of death of the deceased Lalita was cardio respiratory failure due to shock due to massive left haemothorax with intra thoracic injuries following stab injury over chest (unnatural). She also gave opinion that the injury can be possible by a sharp and puncturing weapon. She also opined that injury observed by her on the person of deceased can be possible by article No.1, which was one blade of scissor. Thus, she deposed about correctness of PM notes (Exh.13). Alternative probability was suggested to her that injury may be possible by knife also which Dr Hamida admitted. She also questioned as to whether injury was ante mortem and whether hurt was also punctured wound. Nothing damaging to her evidence was extracted in the course of her cross examination. Thus, the evidence of PW 3 read along with PM notes (Exh.13) do not leave any doubt in the mind that the deceased died as a result of cardio respiratory failure as a result of shock and due to massive left haemothorax with intra thoracic injuries following stab injury over the chest of deceased. Death of deceased Lalita was unnatural and injury was antemortem.
11. Learned Trial Judge had also discussed in detail regarding the evidence led, as also findings recorded by Chemical Analyzer in Exh.21 collectively indicating that on the clothes of the deceased which were described as blouse and Salwar (Article Nos. 1 and 2) were stained with blood of human origin. Weapon of offence (Article No.4 scissor) was also found stained with blood of human origin. Clothes of the appellant/accused (article Nos. 2, 5 and 6) were also found stained with blood of human origin , although the exact blood group could not be determined. The evidence on record did corroborate with the evidence of the eyewitness PW 1, as also the evidence of Casualty Medical Officer (PW 4) and PW 2 Vijay (Exh.9) considered in juxta position to each other. When appellant was questioned about this evidence in his statement under section 313 of Cr.P.C., the appellant appears to have feigned ignorance about it and he tried a lame explanation that his Lungi was stained with human blood because he is suffering from piles. His Lungi appears at Art.No.6 described in C.A.report No.BT. 8883 of 1988 M.L.Case No.1640/B/88 dated 16.8.1988. Assistant Chemical Analyzer to Govt. Forensic Science Laboratory, Bombay mentioned it as Exh.6 and on Exh.6 no any blood was detected. However, according to the appellant Lungi must have been stained because he was suffering from piles.
12. Upon overall examination of the evidence led by the prosecution and considering the reasons stated in the impugned judgment by the learned Trial Judge, no infirmity whatsoever is found regarding the finding as to homicidal death of Lalita. Under the circumstances, considering the evidence that there was some talk going on between Lalita, mother and the appellant, which gave rise to sudden quarrel, in the result the appellant lost his mental cool and assaulted the victim with readily available scissor in his pan shop. Considering these circumstances, therefore, the learned Trial Judge considerd the case of the appellant according to law as covered under Section 304 Part II of I.P for less aggravated penal liability and .C. imposed sentence accordingly. After cumulative evaluation of evidence led by the prosecution, there appears no evidence led by the prosecution in this case to demonstarte that the appellant had entertained any malice against the deceased. It appears that he gave only one blow of a blade of scissor on the spur of moment without an intention to commit murder and without aiming at particular part of the body. Dr Hamida who performed autopsy over dead body of the deceased Lalita, was not specifically questioned as to whether the injury inflicted upon Lalita was sufficient in the ordinary course of nature to cause death.
13. For aforesaid reasons, no fault can be found with the impugned judgment and order. In the result, therefore, the appeal is without merits and it stands dismissed. The bail bonds of the accused appellant shall stand cancelled. The accused shall surrender before the trial Court within a period of four weeks from today to undergo remaining sentence. Registry to communicate this Judgment and order to the trial Court immediately.