1. Heard finally with the consent of learned Advocates for the parties.

2. In this appeal, the challenge is to the Judgment and order, dated 16.12.2020, passed by the learned Additional Sessions Judge Nagpur, whereby the learned Judge, on conviction of the accused for the offence punishable under Section 307 of the Indian Penal Code (for short ‘the IPC’), sentenced him to suffer simple imprisonment for 7 years and to pay a fine of Rs.10,000/-and in default to suffer simple imprisonment for six months.

3. Background facts:

The crime was registered on the report of PW-1, who is the maternal aunt of the injured PW-2 (hereinafter referred to as ‘the victim’) in the crime. It is the case of the prosecution that the deceased Kirti was the sister of the victim. The accused was husband of Kirti. On 28.04.2013, when the victim and Kirti were proceeding to Kamptee road to attend the marriage ceremony of their relative on a two wheeler, they met with an accident. Kirti died in the said accident due to a head injury. Kirti was a pillion rider and the victim was riding a two wheeler. After this accident, the accused started blaming the victim for the death of his wife. The accused insisted the victim to marry him. The victim did not accept the proposal of the accused. The accused, as a result of this, started harassing the victim. Prior to this incident, the victim had reported the harassment caused to her by the accused to Mankapur Police station. The marriage of the victim was settled with one Harish Borkar resident of Indora, Nagpur and was scheduled to be held on 20.03.2017.

4. The informant, who is the maternal aunt of the victim had come to Nagpur, on 01.12.2016, to attend the birthday celebration of Arya, the niece of Harish Borkar. On 01.12.2016, the informant stayed at the house of the victim. After attending the birthday celebration, on 02.12.2016 at about 4:00 p.m., the victim went to drop the informant at Zingabai Takali Bus stop. The informant was a pillion rider. After dropping the informant at the bus-stop, the PW-2 was about to start her return journey. The accused was standing by the side of the bus stop. When the victim was returning, the accused mounted an assault on her with a sattur (butcher’s knife). The accused inflicted 5-7 blows with a Sattur on the head of the victim. The victim tried to ward off the blows with her hand. The accused gave blows with sattur on her hand, as well. The victim fell down from the vehicle. The accused continued to inflict the blows with sattur on the victim. The victim received injuries all over her body. The blood had started oozing from the injuries. After hearing the hue and cry from the victim, the people in the locality came to her rescue. The police was informed about the incident. The accused was over powered by prosecution witnesses PW-3, 6 and 8. The police came to the scene. The police took accused in the custody. The victim was carried to the hospital. She was treated in the hospital. PW-1 reported the matter to the police. On the basis of her report, the crime bearing No. 200 of 2016 was registered against the accused.

5. The investigation was carried out by API Ganjendra P. Raut. The initial investigation with regard to the panchanama was carried out by PSI V. M. Chaudhari. The samples were taken from the spot. The weapon i.e. sattur was seized from the spot. The victim was examined by the doctor. She was in a critical condition. She was treated in the hospital for about 20 days. She ultimately survived. The investigation revealed the commission of an offence of attempt to murder by the accused. The charge-sheet was, therefore, filed against the accused.

6. On committal of the case to the Sessions Court, learned Additional Sessions Judge framed the charge against the accused. The accused pleaded not guilty. His defence is of total denial and false implication. According to the accused, the victim met with an accident while riding a two wheeler and sustained injuries. The prosecution has examined 17 witnesses to prove the charge. Learned Judge on consideration of the evidence, found said evidence sufficient to prove the charge against the accused and as such, held him guilty and sentenced him, as above. The appellant is before this Court against this judgment and order.

7. I have heard the learned Advocate for the appellant and learned APP for the State. Perused the record and proceedings.

8. Learned Advocate for the appellant submitted that the injuries sustained by the victim were not grievous injuries and as such, not sufficient to cause death of victim in the ordinary course of nature. Learned Advocate would submit that the learned Judge has failed to properly appreciate the medical evidence. In the submission of the learned Advocate for the appellant the evidence of the medical officer at the most would be sufficient to prove the charge under Section 325 of the Indian Penal Code. Learned Advocate further submitted that the recovery of the weapon, alleged to have been used in the crime, is doubtful. Learned Advocate submitted that the weapon was not recovered at the instance of the accused and therefore, much importance cannot be given to this circumstance. Learned Advocate submitted that this incident was video-graphed by PW-8 however, the prosecution has failed to prove the video recording. Learned Advocate submitted that the evidence of PW-1 and 2 is not consistent. Learned Advocate further submitted that there is a strong reason for them to falsely implicate the accused in this case. Learned Advocate submitted that eyewitnesses PW-3, 6 and 8 do not inspire confidence. Their evidence is doubtful for the reasons elicited in their respective cross examination. Learned Advocate submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt. Learned Advocate submitted that the prosecution has failed to prove that the intention of the accused was to commit the murder of the victim. Learned Advocate submitted that the CA report is hardly of any use to corroborate the case of the prosecution on any aspect.

9. Learned APP submitted that the learned Judge has thoroughly appreciated the evidence adduced by the prosecution and on doing so, has held the accused guilty. Learned APP submitted that the assault mounted by the accused was so brutal and ferocious that within no time he inflicted 29 injuries on vital body parts of the victim. Learned APP submitted that the intention of the accused was to commit the murder of the victim. Learned APP submitted that there was a strong motive for the accused to commit this crime. The intention, motive and knowledge of the accused have been established on the basis of the evidence adduced by the prosecution. Learned APP submitted that the evidence of PW-1, 3, 6 and 8, who are the eyewitnesses to the incident, is credible and as such, rightly believed by the learned Judge. Learned APP further submitted that the evidence of the victim, coupled with corroborative medical evidence, is sufficient to prove the involvement of the accused in the crime and the intention of the accused to commit her murder on account of her refusal to marry him. Learned APP submitted that the presence of the eye witnesses PW-3, 6 and 8 on the spot was but natural. It is pointed out that PW-3 has a pan shop at a distance of 200 meters from the spot of the incident. Learned APP submitted that the accused was over powered by PW-3 and 6 and on receipt of information about this crime, police came to the scene of occurrence and arrested him on the spot itself. Learned APP submitted that the CA report clearly proves that the blood on the clothes of the accused, clothes of the victim and sattur was human blood.

10. At the outset, it would be necessary to consider the medical evidence. After sustaining the injuries, the victim started profusely bleeding. It has come on record that, from the spot, she was immediately carried to the hospital. She was initially examined by PW-11, a medical officer attached to Government Medical College, Nagpur. He has deposed that the victim was brought to the hospital with a history of assault by a known person. He has deposed about the injuries sustained by her and the nature of the injuries including the body parts where the injuries were caused. Exh. 79 is the admission form. PW-12 and 17 are two medical officers, who had examined the injured. PW-12 Sagar Bhalerao has deposed that the injured was brought by constable Smt. Meena attached to Mankapur Police station, with a history of assault by a known person. In his evidence, he has deposed about the condition of the victim. He has stated that the victim was having active bleeding when she was brought to the casualty department. PW-17 Dr. Rishikesh Shambharkar was present with PW-12 Dr. Bhalerao. PW-12 and 17 in their respective evidence, have deposed about the injuries sustained by the victim. They noticed the following injuries on the person of the victim.

11. Injury report is at Exh. 83. Doctors have opined that the injuries were caused within one hour. The medical officers have opined that injury Nos. 1 to 4, 10 to 21 and 23 to 29 were simple injuries and injury Nos. 5 to 9 and 22 were grievous injuries. Medical officers PW-12 and 17 have categorically deposed that the injuries were caused by a sharp metallic object. It has come on record that, during the course of investigation, the sattur was sent to medical officer PW-17 for his opinion. He has opined that the injuries sustained by the victim could be caused by this sattur. PW-12, in his evidence, has deposed that the injuries are sufficient in the ordinary course of nature to cause the death of a person. PW-11 has deposed contrary to what PW-12 has stated. However, the fact remains that the detailed examination of the victim was carried out by PW-12 and PW-17. PW-11 was a resident medical officer and under his supervision, the victim was admitted to the hospital.

12. It is the defence of the accused that while driving a two wheeler the victim met with an accident. She sustained all the injuries in the said accident and on the basis of those injuries, he has been falsely implicated. This defence was put to PW-12 and 17 in their cross examination. They have stoutly denied the said defence. In my view, on careful appreciation of the evidence of the medical officer, it is not possible to accept this defence of the accused. The injuries sustained by the victim were incise wounds and chop wounds. The medical officers have stated that such injuries could not be possible due to hard and blunt object. The injuries could be caused by a sharp edged weapon only. The weapon i.e. sattur used in this crime is a sharp edged weapon. In my view, therefore, the medical evidence is sufficient to establish beyond doubt that the victim had sustained 29 serious bleeding injuries. She was profusely bleeding when she was brought to the hospital. The injuries were fresh. There was no reason for the medical officer to give a report against the accused. While appreciating the evidence of the victim and eyewitnesses this medical evidence would be very crucial. The medical evidence is the most vital corroborative evidence adduced by the prosecution in this case.

13. PW-1 is the informant. She is the maternal aunt of the victim. In her evidence, she has stated that after the death of Kirti in the accident on 28.04.2013, the accused would blame the victim for the death of Kirti. She has further stated that after the death of Kirti, the accused was after the victim to marry him. She has stated that since the victim declined to marry with him he had a serious grudge against the victim. She has deposed that on 01.12.2016, she stayed at the house of the victim for the purpose of attending the birthday celebration of the niece of Harish Borkar, with whom the marriage of the victim was settled. It has come in her evidence that after attending the birthday celebration on 01.12.2016, on 02.12.2016 the victim had come to Zingabai Takali Bus stop to drop her. It has further come in her evidence that the accused was present by the side of the bus stop. She has stated that as soon as the victim turned to go back, the accused assaulted her with sattur. In her evidence, she has narrated the incident in great detail. She has stated that the accused inflicted merciless blows of sattur on the head, hand, chest etc. of the victim. She has stated that the accused was furious. The people standing around the bus stop tried to rescue the victim. They pelted stones at the accused. She has stated that one person over powered the accused. The person on the spot beat the accused with a stick and pipe. She has stated that after the incident, the victim was carried to the hospital. She reported the matter to Mankapur Police Station. Undisputedly, she is a relative of the victim. She has admitted that the accused had no cordial relations with the family of the victim on account of the death of Kirti as well as on account of refusal of the victim to marry him. This witness has denied all suggestions put to her, consistent with the defence of the accused. The report was lodged by this witness. Perusal of her cross examination would show that no admission of any significance has been elicited to doubt her presence on the spot. PW-1 was an eyewitness to the incident. On re-appreciation of her evidence, I do not see any reason to discard or disbelieve the same.

14. PW-2 is the victim. In her evidence, she has narrated the incident in great detail. She has deposed about the motive of the accused to commit this crime. She has stated that the accused, after the death of her sister Kirti in an accident, would blame her for the death of his wife. She has further deposed that after the death of her sister, the accused insisted her to marry him but she refused the said proposal. She has stated that on 02.12.2016 she carried PW-1 on her scooter to drop her at Zingabai Takali Bus Stop. She has stated that when she went to the bus stop, she found that the accused was present by the side of the bus stop. She has stated that PW-1 told her to go back after dropping her. It has come in her evidence that, at that time, the accused came to the spot and assaulted her with the sattur all over her body. She has stated that when the accused mounted the first assault, she fell down from the scooter. She tried to ward off the blows on her head and therefore, she sustained injuries to her hands. She has stated that the accused assaulted her mercilessly with sattur. She has categorically deposed that prior to this incident dated 02.12.2016, she had lodged a report against the accused on account of harassment caused to her by him. The copies of the reports are part of the record. They are at Exh. 43 and 44. In her cross examination, she has admitted that her sister met with an accident when they were proceeding on a scooter to attend the marriage at Kamptee road. She has admitted that on that count, the accused had a grudge against her. Their relations were strained. A number of suggestions have been given to this witness in her cross-examination consistent with the defence of the accused. The witness has denied all the suggestions. She has specifically denied that the injuries sustained by her were caused in a vehicular accident. Perusal of her cross examination would show that as far as the account of the incident and the events on the date of the incident narrated by her are concerned, it is consistent. No dent has been caused to the core of her evidence as to the occurrence of the incident, the weapon used by the accused in the accident and the involvement of the accused in the accident. Perusal of her cross examination would show that no admission of any significance has been brought on record to probablise the defence of a false implication put forth by the accused. On minute perusal of her evidence, I am satisfied that her evidence is of stellar quality. It is not possible to sustain the injuries of the kind stated above, in the accident. Her evidence has been fully corroborated by the evidence of the medical officer. The medical officer has categorically denied the suggestions that such injuries could be caused due to fall in a vehicular accident.

15. The prosecution has examined independent witnesses. PW-3 Vijay Gawande is one of them. He has stated that his pan shop is situated at Zenda Chowk, Zingabai Takali. He has stated that on 02.12.2016 around 4:00 p.m., he was present at the shop. He has stated that at that time he heard the commotion from the side of the bus stop. His evidence would show that prior to this incident, he was knowing the accused. He has stated that he saw the accused assaulting one girl. He has stated that he went to the spot. He has further stated that onlookers had gathered on the spot. He has deposed that people were requesting the accused to spare the girl, but he was not paying any heed to the people. He has stated that, therefore, he brought pipe and wooden log from a nearby construction site. He gave a pipe to his friend. He threw a wooden log towards the accused. The wooden log hit the accused and the accused fell down. He, therefore, went ahead and over powered the accused and rescued the girl. In the scuffle ensued between him and the accused, he sustained injury to his hand. The people on the spot came to his help and they controlled the accused. He stated that after some time the police came on the scene of occurrence and took custody of the accused.

16. PW-6 Dheeraj Paradhi has deposed that on 02.12.2016 at around 3 pm to 4 pm he was standing near the pan shop of PW-3. At that time, he heard hue and cry from the side of the bus stop. People had gathered near the bus stop. He went towards the spot with PW-3. He has deposed that they saw the accused assaulting a girl with sattur. It has come in his evidence that they tried to rescue the girl from the clutches of the accused, but to no use. He has stated that they threw a pipe and a wooden log towards the accused. Some people pelted stones at the accused. He has categorically deposed that PW-3 over powered the accused and rescued the girl. He has deposed that after some time police came on the spot and took the accused in custody.

17. As far as the evidence of PW-3 and 6 is concerned, it was suggested during their cross examination that since the distance between the spot and the pan shop is 200 meters, the place of the incident was not visible from the pan shop. It was suggested to them that they have deposed falsely on the say of the police. These witnesses have denied all the suggestions. While appreciating their evidence it needs to be borne in mind that these witnesses have not stated that they saw the incident from the pan shop. They have deposed that after hearing the hue and cry, they went to the spot and after going to the spot they saw that the accused was inflicting blows with sattur on a girl. It was suggested in their cross examination that they were not present on the spot. They have denied this suggestion. Perusal of their evidence would show that the account of the incident narrated by PW-3 and 6 is consistent with the one narrated by PW-1 and victim PW-2. Perusal of their cross examination would show that no material has been elicited to create a doubt about their presence on the spot, the act and the role played by them and the involvement of the accused in the incident. On minute scrutiny of their evidence I do not see any reason to doubt their credibility.

18. PW-8 Mukesh Thakre is another independent witness. He has stated that on 02.12.2016 at about 4:00 p.m. at the square of Zingabai Takali he saw the crowd. He has further stated that PW-3 had caught hold of the accused. He has further stated that the accused was holding sattur in his hand. He has stated that the people around the spot tried to save the girl from the attack of the accused. The evidence of PW-3, 6 and 8 is sufficient to corroborate the version of PW-1 and 2 as to the occurrence of the incident and the involvement of the accused. All these witnesses have identified the sattur used by the accused in the commission of the crime. The sattur was seized by the police on the spot. They have categorically deposed about the merciless assault mounted on the victim by the accused with sattur. They have stated that after sustaining the injuries, the victim had started profusely bleeding. They have stated that she was carried to the hospital. The evidence of PW-1 and 2 on the occurrence of the incident and the involvement of the accused is consistent. The evidence of PW-1 and 2 has been corroborated by the evidence of independent witnesses PW-3, 6 and 8. Therefore, I do not see any reason to discard or disbelieve their evidence. Besides, the medical evidence, as considered above, fully corroborates the evidence of the victim and the evidence of other witnesses. The possibility of the victim sustaining such serious injuries in a vehicular accident as sought to be made out by the accused has therefore been completely ruled out. The learned Judge has thoroughly appreciated the evidence of the witnesses and found it worthy of credence. On re-appreciation of the said evidence, I do not see any reason to discard or disbelieve the same.

19. PW-14 Dattatray Choudhary is the investigating officer. PW-5 Rahul Jadhav is a panch witness to the seizure of the clothes of the victim. PW-4 Guddu @ Surendrasingh Sarvajeetsingh Thakur is the panch witness on the spot panchanama and seizure panchanama of the articles including the sattur from the spot. The accused was admittedly taken into custody by the police on the spot. Overall perusal of the evidence would show that the accused has not seriously denied his presence on the spot, as deposed by the witnesses. Seized articles including the sattur were sent to CA. The articles include the clothes of the accused, the clothes of the victim, the samples drawn from the spot and the weapon.

20. CA reports are on record. Perusal of the CA reports would show that human blood was detected on the clothes of the accused. Similarly, human blood was detected on the clothes of the victim seized from the spot. The blood was also detected on the sattur. It was human blood. Three CA reports dated 14.03.2017 are with regard to the analysis of the clothes and articles and the CA report dated 31.03.2017 is with regard to the analysis of the blood detected on sattur, are part of the record. Perusal of these reports would show that certain samples were sent for DNA analysis. This fact has been recorded in the CA reports. It is seen that the DNA report is not part of the record. On being questioned, the learned APP informed that there is no clarity about this fact in the record. The DNA report is not part of the record. The question is whether the DNA report was received or not. Since, the DNA report is not part of the record it can be safely said that the DNA report was not produced in the Court. It needs to be stated, at this stage, that in majority of the cases the samples at the stage of investigation are sent for DNA analysis. However, the DNA report is not produced before the Court on time or not produced at all. In this case, fortunately for the prosecution there is direct evidence as to the involvement of the accused in the crime. In a case, based on circumstantial evidence, the DNA report plays a very vital role. The DNA report, one way or the other, assists the Court to arrive at a just and proper conclusion. In my view, this is a very serious matter. The cognizance of such a serious lapse is required to be taken. In this case, therefore, the necessary directions are required to be issued to the concerned authority for a necessary inquiry in such a matter and for further action in accordance with the law against the negligent and careless officer. It needs to be stated that, till date, there is no clarity about the receipt of the DNA report or otherwise. The DNA report is a very important piece of evidence. The blood detected on the clothes of the accused was human blood. The victim had sustained 29 bleeding injuries. The DNA report would have extended a helping hand to the case of the prosecution. Similarly, the DNA report would have helped the accused to make good his submission with regard to the packing, sealing and preservation of the samples. In my view, this is a very crucial aspect that has been completely over looked and neglected by the investigating officer. Be that as it may, the available CA reports are sufficient to conclude that the blood detected on the clothes of the accused and his chappals was human blood.

21. The next important issue is with regard to the offence made out in this case. Learned Advocate for the accused relied upon the decision of the Punjab and Haryana High Court in the case of State of Punjab .v/s. Bant Singh and another 1996 Cri.L.J. 3886 and submitted that the injury caused by a sharp edged weapon on the head i.e. a vital part of the body by itself, may not be sufficient to declare the said injury being dangerous to life. Relying on this judgment, it is submitted that the offence made out against the accused would be under Section 325 of the IPC. In the case before the Punjab and Haryana High Court, only one injury was found on the head of the accused. The remaining three injuries were on the other parts of the body. In this background, the Punjab and Haryana High Court altered the conviction from 307 to 326 of the IPC.

22. The question of prime importance in such a case is as to what was the intention of the accused while committing the crime. It is also necessary to keep in mind the motive for the commission of the crime. It is also necessary to see whether the act is premeditated or on the spur of the moment. The weapon used by the accused and the body parts where injuries are inflicted is also important factor. The intention is a state of mind. The intention of the accused is always locked in his mind and confined to the accused alone. The key to open this lock is the evidence adduced by the prosecution and attending circumstances coupled with the conduct of the accused. The brutality with which the crime is committed is also a vital factor to ascertain the intention of the accused. The intention has to be ascertained keeping in mind the above-stated factors. Similarly, the knowledge that such injuries would cause the death of a person is also required to be appreciated keeping in mind the above-stated facts. In this case, the accused had a motive to commit the crime. The accused came to the spot of the incident with sattur. The weapon used in this case is a dangerous weapon. It is a butchers knife. This shows that he came to the spot with full preparation. The act was premeditated. The accused mounted an assault with this weapon on the victim. The assault was so ferocious that the people standing around the spot could not dare to intervene. However, PW-3 and 6 took mercy on the victim and intervened. If they had not intervened, then the accused would have continued to assault the victim with such a knife till her last breath. The injuries sustained by the victim are indicative of the intention of the accused. The victim sustained 29 injuries. The majority of the injuries were grievous injuries. The intention of the accused, as can be seen from the abovestated circumstances, was to kill the victim. The accused was carrying a grudge against the victim on two counts i.e. death of his wife Kirti and refusal of the victim to marry him.

23. In my view, therefore, the submissions advanced by the learned Advocate that the accused had no intention to kill the victim cannot be accepted. Doctor has stated that the grievous injuries sustained by the victim were sufficient in the ordinary course of nature to cause death. In view of this, I do not see any substance in the appeal. Learned Judge has properly appreciated the entire evidence on record. No interference is warranted in the well reasoned judgment and order passed by the learned Judge. As such, the appeal is dismissed.

24. Accordingly, the criminal appeal stands disposed of. Pending applications, if any, also stand disposed of.