Appeal against conviction for grievous hurt. The High Court upheld the trial court's judgment, finding that stab injuries on vital parts endangered life, constituting grievous hurt, despite evidentiary irregularities.
Appeal dismissed. Judgment and order of the trial court dated 7th May, 2002 held to be correct and sentence confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
905.APPEAL964_2002
Vidya amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 964 OF 2002
Hiralal Karbhari Sable Age: 45 years R/o. Shastri Nagar, Room No. 64/4, LIC Colony, Bandra (E), Mumbai – 400 051 … Appellant
vs.
The State of Maharashtra (at the instance of Tardeo Police Station) … Respondent
Mr. Swapnil Wagh, Advocate appointed as amicus curiae for the appellant.
Ms. Alpa Javeri, APP for the State.
CORAM : MRS. MRIDULA BHATKAR, J. DATE : 10th July, 2014.
ORAL JUDGMENT:
It is necessary to mention that the Single Judge of this Court by its order dated 26th April, 2012 has expedited the appeal. The appeal is pending on the file since 2002 and the incident has taken place in 10th February, 1992. On 28th April, 2014 the appellant was present in the Court when the matter appeared on the board of final hearing and he informed the Court that he is unrepresented by any advocate. Therefore, Advocate Swapnil Wagh was appointed as amicus curiae and the matter was fixed for final hearing on 13th June, 2014. Thereafter the matter was adjourned to 20th June, 2014. Advocate Swapnil Wagh was directed to remain present on 27th June, 2014. On 27th June, 2014, leave was granted to the counsel for the appellant to produce
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compilation of documents. Thereafter the matter is fixed on 10th July, 2014 i.e. today. The appellant is not present today.
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she was stabbed by her husband. All the injuries were inflicted on the stomach, neck and chest. She screamed and rushed out of the house. By hearing her scream, the neighbours and other people in the vicinity gathered there. Then she was taken to Nair Hospital and was admitted for nearly 10 days. She gave FIR on the same day, which is marked as Exhibit 10. The appellant ran away from the spot. He was arrested a week thereafter i.e. on 17th February, 1992. When the Investigating Officer PW-7 Uday Vasantrao Dubal was attending Tardeo Police Station, he received message at 5 a.m. on 10th February,, 2002 from Nair Hospital about the stab injuries and admission of PW-1 Lata Hiralal Sable in the hospital. He along with PC-22303 rushed to the Nair Hospital and thereafter recorded the FIR. He registered offence at C.R. No. 77 of 1992 under section 307 of the Indian Penal Code against the appellant. He prepared spot panchnama on the same day which is marked as Exhibit 30. A knife was seized during the panchnama. He collected muddemal articles. The accused was arrested on 17th February, 1992. He recorded the statements of neighbours and other witnesses. He sent the blood stained clothes of the complainant to C.A. After completion of the investigation, he filed charge sheet on 29th March, 1992 before the Additional Commissioner, 4th Court, Girgaum. Learned Magistrate thereafter committed the case to the Sessions and thereafter the learned Sessions Judge framed the charges. The accused pleaded not guilty and thereafter the trail concluded in conviction.
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Sessions Judge. He further submitted that the panch PW-5 Dayashankar Kharve did not support the case of the prosecution and thus spot panchnama is not proved. He further argued that the prosecution could not prove either the injuries or the nature of the injuries sustained to the complainant. He relied on the finding of the Judge in the judgment while assessing the testimony of PW-6 Dr. Apurva Anil Sinha who could not prove the medical case papers of the complainant. He submitted that three doctors as per his evidence have attended the patient on 10th February, 1992. As per the evidence of the complainant, she was operated, however, the contents in the medical case papers were not proved as PW-6 was not working at the relevant time and therefore could not say anything about handwriting or contents in the case papers. The Trial Court did not accept the proof of medical case papers though proof can be accepted only on the point of admission of the complainant in the hospital. The contents in the medical case papers are not proved by the prosecution. He further argued that the Trial Court should not have relied on the medical certificate produced by the prosecution, which is marked at Exhibit 27. The learned counsel submitted that mere production of a document does not mean the proof of the document. In support of his submissions, he relied on the case of Bama Kathari Patil vs. Rohidas Arjun Madhavi & Anr., reported in 2004 (4) LJSOFT 14 and equivalent 2004(2) ALL MR 290. He submitted that the document is required to
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be proved in accordance with the provisions of Evidence Act. The learned counsel further submitted that the medical certificate Exhibit 27 discloses that she was brought to the hospital by PC 14196, however, as per the evidence of PW-3 Laxmi Suresh Walekar, she and her relative brought the victim to the Nair hospital immediately after the incident. The learned counsel further submitted that as per the evidence of I.O. PW-7 Uday Dubal, PC No. 22303 was present in the hospital, thus there is a confusion who exactly was with the complainant when she was brought in the hospital. The learned counsel argued that as the medical case papers were not proved, the complaint is not proved. The prosecution has failed to prove the basic fact of injuries caused to the complainant. Thus, the prosecution could not prove that the injuries were grievous in nature and therefore conviction passed on such evidence which suffers various infirmities is illegal and to be set aside. He further submitted that the evidence of PW-3 Laxmi S. Walekar and PW-4 Lata Kisan Patel are not to be given much weightage, as none of them were eye witness to the incident. He further submitted that there was no eye witness to the incident and when the complainant was actually assaulted, she was sleeping. He submitted that the report of CA ought to have been discarded by the learned Trial Judge, as there are specific irregularities in respect of sending of blood stained clothes to the C.A. and the C.A. is not examined. He further submitted that it appears from the evidence of
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PW-3 Laxmi Walekar that the lady who reported her about the assault of the complainant was Shakuntala who is not examined by the prosecution and thus the evidence of the witnesses is hearsay. He further submitted that the injuries caused to the victim were not grievous, which can be covered under section 320 of the Indian Penal Code, as the ingredients of grievous hurt under section 320 are not proved. The conviction under section 326 cannot be sustained and is to be set aside.
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Sable, who is the wife of the appellant has deposed against him. She has given details about the occurrence of the incident that on 10th February, 2002 when she was sleeping along with children and husband, at 4 a.m. she got injured as she was stabbed by her husband. She has specified that she received four stab injuries on the vital part of her body i.e. on stomach, neck and chest. She started screaming and ran away from the assailant. On hearing her scream, the people from the vicinity gathered there immediately. Thereafter she was shifted to the Nair Hospital where she was treated. She was in the hospital for 10 days. The evidence of PW-3 and PW-4 who reached the spot immediately after the assault is important. The complainant had disclosed the name of the assailant to them. PW-4 Lata Kisan Patel has stated that she has seen the appellant running away from the spot when the incident took place. The learned counsel for the appellant submitted that the prosecution has not proved the FIR because thumb impression was not attested. However, in her oral evidence, the complainant has stated about giving the FIR to the police in the hospital. As she saw the FIR she identified her thumb impression and confirmed the contents in the FIR. There is an endorsement of the doctor certifying her mental and physical condition. It is true that the said doctor is not examined by the prosecution, however, the effect of non-examination of the doctor is that the said endorsement was not proved and therefore that endorsement cannot be read in the evidence
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when the contents in the FIR are read. Thus, the certificate of the doctor was an additional factor in the FIR and therefore, though it is not proved, it does not render FIR not admissible and cannot be treated as not proved. It is to be noted that the incident has taken place within the four walls of the hut of the complainant and the appellant. It is to be noted that the complainant and the appellant have settled their family dispute before the Family Court 4 to 5 days prior to the incident of assault and they started residing together. The complainant has stated about the motive of assault. She has stated that the appellant was not happy with her and he was after her to give him divorce, as he wanted to marry some other lady whom he was having an affair. This evidence of complainant is not destroyed by the defence in the crossexamination. When the incident of assault takes place within four walls, then unless contrary is shown, the person who is present in the room is to be considered as assailant if other evidence is cogent and consistent. Thus, the incident has taken place at 4 a.m. when all the family members were inside, there is no reason to disbelieve evidence of Lata, the injured that her husband inflicted four stab blows and these blows were on her vital parts.
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Judge. Besides the medical case papers, the evidence of victim person is a direct and best evidence. The other two ladies have also stated that Lata was injured by her husband in the early hours of that day. It is true that the documents cannot be proved only by production but its contents are to be proved through the author of the document. However, in the present case, medical certificate Exhibit 27 was produced by the prosecution in the cross-examination as it was asked by the defence to produce the said certificate. The medical certificate was rightly exhibited. The contents in the medical certificate therefore can be read in the evidence and has rightly relied by the learned Judge. The certificate discloses four incised wounds on the body of the victim. There are the stab injuries and therefore the description of the injuries is shown as incised wounds which is consistent with the testimony of the complainant. She was shifted to the Nair Hospital immediately after the incident as per the evidence of PW-43 Laxmi Walekar. She was admitted in the ICU and was operated. She was in the hospital for 10 days.
Secondly. - Permanent privation of the sight of either eye. Thirdly- Permanent privation of the hearing of either ear.
Fourthly. - Privation of any member or joint.
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Fifthly. - Destruction or permanent impairing of the powers of any member or joint.
Sixthly. - Permanent disfiguration of the head or face.
Seventhly. - Fracture or dislocation of a bone or tooth.
Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.”
The said section Eighthly describes that the injury which endangers life, it means, the injury should be dangerous to life. These stab injuries if would have caused to hand, thigh or back, then those injuries are not on the vital parts. However, these four stab injuries were caused on the
vital part of the complainant and that too when she was sleeping.
9. The word “injury” is defined in Section 44 as follows:
The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
The word “hurt” is defined in Section 319 as follows:
“Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
In the defining clause of Culpable homicide under section 299, the term “bodily injury as is likely to cause death” is used. The same expression is used in Sections 301 and 304 of the Indian Penal Code. However, while defining “grievous hurt”, the term “injury as is likely to
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cause death” is absent but the legislature have used the expression “any hurt which endangers life”. Undoubtedly, the terms “any hurt which endangers life” and “injury as is likely to cause death” are not synonymous but are distinct terms. “Injury as is likely to cause death” cannotes more severity in the nature of injury, however “any hurt which endangers life” is a broader term which is read as “it is dangerous to life”. The use of word “likely” brings the act of injury and occurrence of death closer than the term “hurt that endangers life”. An injury can be dangerous but it may not likely to cause death, however, all injuries which are likely to cause death are necessarily a hurt endangering life.
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view that sentence awarded by the trial Court is proportionate and
hence is order is maintained.
(MRS. MRIDULA BHATKAR, J.)
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3 issues framed by the court
Whether the conviction for injuries to vital parts endangering life under section 326 IPC is sustainable given the infirmities in medical case papers and FIR evidence.
Whether the injury caused to the intimate parts of the body amounts to grievous hurt under section 320 IPC.
Whether the learned Single Judge erred in confirming the conviction and sentence awarded by the trial Court.
2 provisions across 1 enactments
Hiralal Karbhari Sable
The State of Maharashtra
Mridula Bhatar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
