JUDGMENT
1. The appellant aggrieved by the judgment and order dated 29-7-1994 passed by the Additional Sessions Judge, Dhule, in Sessions Case No. 122 of 1993 convicting and sentencing him to undergo five years R.I. and to pay a fine of Rs. 500/- in default to suffer further R.I. for two months under section 307 IPC and to two years R.I. and a fine of Rs. 500/- in default to suffer further R.I. for two months under section 363 IPC; substantive sentences to run concurrently, has come up in appeal before me.
2. The prosecution case in brief, as emerging from the evidence on record, is that the victim Deepak (P.W. 4) is the son of one Uttam Mali (P.W. 1). Uttam had a younger brother by name of Ramesh Mali (P.W. 2), who was running a photo studio in which the appellant was working. About 6 months prior to the incident on account of the appellant coming late to the studio he was turned out by Ramesh. On this score the appellant nursed a grudge not only against Ramesh but his nephew Deepak also.
2A. Deepak (P.W. 4) at the time of the incident was a student of Class 3 in Nutan Vidya Mandir. At about 5.30 p.m. on 13-10-1993 the appellant met Deepak at the school and on a cycle took him towards the temple of Ekvira Goddess and the garden nearby. At about 7.30 p.m. he reached Deepak back to the house of his parents. On account of Deepak returning late his parents reprimanded him and also the appellant.
2B. On 14-10-1993 as usual Depak left for the school at about 12 noon but did not return till 5.30 p.m., the time of his coming back from the school. After the school got over the appellant met Deepak at Ganesh Vachanalaya and told him that he had taken permission of his parents to take him for a stroll. Thereafter he took him on a cycle in the direction of village Fagane on Parola road. On a culvert on that road near Shanti Hotel the appellant stopped the cycle and made Deepak lie down near the wall. Thereafter he took out a shaving blade of Topaz make and gave a number of cuts on the stomach as well as the neck portion of Deepak with the same. When Deepak cried the appellant is alleged to have run away.
After some time Deepak got up and requested one cyclist by name of Ratilal to take him to Dhule. Ratilal brought him to Shanti Hotel. Sunil Chaudhari (P.W. 8) the owner of the Shanti Hotel informed Taluka Police Station Dhule on telephone and then removed Deepak to Civil Hospital, Dhule.
3. The injuries of Deepak were medically examined by Dr. Puri (P.W. 10) of Civil Hospital Dhule at 9 a.m. on 14-10-1993. Dr. Puri found the following injuries on the person of Deepak :-
“1. Incised wound on neck (10 cm x 1 cm x skin-deep).
2. Eight small incised wounds on abdomen in epigastric region as shown in diagram –
(1) was of the size 8 cm x .5 cm;
(2) 7 x .5 cms.
(3) & (4) 5 x .5 cm each;
(5), (6), (7) and (8) 3 cm. x .5 cm. each.”
4. It appears that on getting telephonic message from Sunil Chaudhari (P.W. 8) the police of Taluka Police Station Dhule informed the parents of Deepak about his admission in Civil Hospital, Dhule. Thereupon Deepak’s father Uttam (P.W. 1) and his brother Ramesh (P.W. 2) along with other family members rushed to the Civil Hospital. There Deepak informed them that the appellant had given a number of cuts by a shaving blade on his stomach and throat.
5. The FIR of the incident was lodged by Uttam (P.W. 1) at Taluka Police Station on 14-10-93 some times before 9.45 p.m. and on the basis of it P.S.O. Saiyad registered C.R. No. 345/93 under section 307 IPC against the appellant.
6. The investigation was conducted by P.S.I. Pandharinath Vaidya (P.W. 9). He arrested the appellant at about 11 p.m. in the premises of Dhule hospital the same day. Since there was blood on the nails and fingers of the appellant two panchas were called and in their presence clippings of nails from his fingers were taken P.S.I. Vaidya also recorded the statement of P.W. 4 Deepak and interrogated some other witnesses. He sent the nail clippings of the appellant, the weapon of assault, a blade, etc. to the chemical analyser. Finally on 2-12-1993 he submitted the charge-sheet against the appellant.
7. The case was committed to the Court of Session in the usual manner. There charges under Sections 307 and 363 IPC were framed against the appellant to which he pleaded not guilty and claimed to be tried. His defence was that of denial.
In the trial prosecution, apart from tendering and proving a large number of exhibits examined as many as 10 witnesses. In defence no witness was examined. The trial judge believed the evidence adduced by the prosecution and passed the impugned order.
8. I have heard Mrs. Pratibha Patil for the appellant and Mrs. Joyti S. Pawar APP for State. I have also perused the statements of witnesses, the material exhibits and the impugned judgment. After giving my anxious consideration to the matter I am of the view that on merits there is no substance in this appeal and it deserves to be dismissed. However, in my view, the sentence awarded to the appellant is excessive and deserves to be reduced.
9. The short question involved in this appeal is whether the evidence of Deepak (P.W. 4) the solitary eye-witness of the incident inspires confidence or not. This question has to be decided in the backdrop of the fact that he is a child witness aged 10 years and therefore his evidence should be subjected to closest scrutiny and the greatest caution. There is no rule of law that the evidence of a child witness has to be mechanically rejected. A Division Bench of this Court, to which I was a party, in the decision reported in 1995 Cri LJ 1432, State of Maharashtra v. Prabhu Barku Gade, after considering a large number of authorities has held that the testimony of a child witness cannot be rejected mechanically and is only to be accepted after greatest circumspection and closest scrutiny.
10. In his deposition in the trial court. Deepak (P.W. 4) stated that on 14-10-1993 at about 5.30 p.m. the appellant met him at Vachanalaya and after telling him that his parents had permitted him to take him for a stroll took him on his cycle. On the culvert near Shanti hotel, the appellant made him lie down and thereafter, took out a topaz blade and with the same made a number of cuts on his neck and abdomen. The authenticity of the aforesaid account furnished by Deepak is borne out by the injuries found on his person by Dr. Puri. In the earlier part of this judgment, it has been mentioned that Dr. Puri found a large number of incised wounds on the person of Deepak. These injuries in his opinion could be caused by a blade.
Unless the appellant was the real villain there was no reason for Deepak to have falsely implicated him. On the converse, there was ample reason for the appellant to have assaulted Deepak. As mentioned in para 2 above, the appellant was turned out from the photo studio run by Ramesh (P.W. 2) the uncle of Deepak, because he used to come late. Hence, he was also sore with Deepak.
11. Corroboration is also lent to the ocular account of Deepak by the statement of Madhu Wagh (P.W. 3) who was studying with Deepak in the same school and who deposed that on 14-10-1993 at about 5.30 p.m. the appellant took Deepak on a cycle. Again a clinching corroboration in support of the prosecution case is furnished by the circumstance that on the nail clipping of the appellant the chemical Analyst found human blood of A group. This circumstance was put to the appellant in his statement under section 313 Cr.P.C. He sought to explain it by saying that his blood is also of the same group. However, I do not feel that this is a sufficient and proper explanation on the part of the appellant. It was obligatory on his part to have explained as to how blood fell on his nails. This has not been done by him in the instant case.
12. The statement of Deepak corroborated by the injuries received by him and the circumstances enumerated above leaves not even an iota of doubt in my mind about the appellant’s involvement in the incident and of his having committed the crime in question.
13. The question which remains is as to what is the offence made out against the appellant.
Mrs. Pratibha Patil strenously urged that even if the prosecution case is accepted in its entirety the conviction of the appellant under section 307 IPC is unsustainable, and only an offence under section 324 IPC would be made out. She backed her submission by placing the following circumstances before the court. She firstly urged that had the appellant really intended to commit the murder of Deepak, he would not have chosen to assault him with a shaving blade. Instead he would have used a more lethal weapon. She secondly contended that the circumstances that all the injuries sustained by Deepak were simple in nature and no vital organ of his was injured also shows that the requisite intention to attempt to commit murder is lacking.
Mrs. Joyti S. Pawar learned APP on the other hand urged that from the circumstance that merely a shaving blade was used and that the injuries of the victim were simple in nature, it cannot be inferred that the appellant did not intend to commit the murder of Deepak. She emphasised that Deepak was a child of tender age of 10 years and that all the nine incised wounds were inflicted by the appellant on vital parts of his body. This, in her contention conclusively established that the appellant intended to commit the murder of Deepak. She urged that the paramount consideration to be borne in mind by the court in deciding whether an offence under section 307 IPC is made out is the question of intention to commit murder and not the nature of injuries alone suffered by the victim. In her contention, and rightly in my view, the nature of injuries is only one of the factors to be kept in mind for deciding the question as to whether there was an intention to commit murder in a given case. She also invited my attention to the statement of Dr. Puri wherein he stated that had the medical aid been not given to Deepak in time his injuries may have proved fatal.
After giving my most anxious consideration to the contentions canvassed by learned counsel for the rival parties, I am inclined to agree with the contention of Mrs. Pawar that an offence under section 307 IPC is made and not one under section 324 IPC, as urged by Mrs. Pratibha Patil. When the appellant inflicted nine incised wounds on vital parts of the body of the victim who was of a tender age of ten years, it can safely be presumed that he intended to kill him. Intention to commit murder in this case can also be inferred from the existence of a strong motive on the part of the appellant against the victim referred to earlier. The statement of Dr. Puri P.W. 10 to the effect that had timely medical aid been not given to the victim his injuries would have proved fatal also brings the offence within the ambit of section 307 IPC. The appellant has thus been rightly convicted by the learned trial judge, both under sections 307 IPC and 363 IPC.
14. The only question which survives is that pertaining to the quantum of sentence. Mrs. Pratibha Patil strenously contended that the appellant was aged about 18 years and 3 months at the time of the incident and there is nothing to indicate that he has a bad history. She urged that the ends of justice would be squarely met if his sentence on both the counts is reduced to the period already undergone by him which is nearly one year and eight months. On the other hands Mrs. Pawar, learned APP, has contended that since the crime by youth is on the increase these days it would not be a proper ground to reduce the sentence of the appellant merely because he was aged 18 years and 3 months. She urged that in case on account of tender age the sentence of the appellant is reduced it would be a case of misplaced sympathy and a premium for the youth to commit crime.
It does appear that the appellant was aged about 18 years and 3 months at the time of the incident. The incident is alleged to have taken place on 14-10-1993 and the statement of the appellant under section 313 Cr.P.C. wherein he has given out his age as 19 years, was recorded on 26-7-1994. There is no observation of the learned trial judge to the effect that the age given out by the appellant is wrong. This means that the appellant was aged 18 years and 3 months at the time of the incident. The Apex Court in its decision Raisul v. State of U.P., has held that the age given in the statement of the accused should be accepted by the court to be true.
In my view frustrated by his dismissal from the service in victim’s uncle’s photo studio and the problem of unemployment staring him on his face, the appellant who was of a tender age of 18 years and 3 months, could not control his rancour and committed this crime. Bearing this in mind and also the circumstance that all the injuries of the victim were simple in nature and no vital organ of his was damaged, the ends of justice would be squarely satisfied if the substantive sentence of the appellant under section 307 IPC is reduced from 5 years R.I. to 3 years and 6 months R.I. I however, do not find that the sentence of fine imposed on that count warrants to be reduced. I neither find the sentence of the appellant under section 363 IPC to be excessive.
15. In the result this appeal is partly allowed and partly dismissed. Although I confirm the conviction of the appellant on both the counts viz. 307 IPC and 363 IPC but I reduce the substantive sentence under section 307 IPC from 5 years R.I. to 3 years and 6 months R.I. However, I maintain the sentence of fine and that in its default under section 307 IPC. I also maintain the sentence under section 363 IPC. As directed by the court below the substantive sentences of the appellant shall run concurrently. The appellant is in jail. He shall remain there till he has served out his sentence.
Before parting with this judgment I would like to put on record the enormous assistance which has been rendered to me by Mrs. Pratibha Patil and Mrs. Joyti S. Pawar in the disposal of this appeal.
16. Appeal partly allowed.