apeal101of16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.101 OF 2016
Sheikh Wasim @ Sonu S/o. Sheikh
Ahmad Ansari,
Aged about 24 years,
R/o. Mhada Colony, Wanjari-layout,
Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Yashodhara,
District Nagpur. ...RESPONDENT
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Mr. C.R. Thakur, counsel for the Appellant.
Mr. P.S. Tembhare, Additional Public Prosecutor for
Respondent /State.
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CORAM:
ROHIT B. DEO, J.
DATE:
NOVEMBER 06, 2017 ORAL JUDGMENT:
Exception is taken to judgment and order dated 19.1.2016, in Sessions Trial 01 of 2015 delivered by Additional Sessions Judge - 2, Nagpur, by and under which the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 333 of the Indian Penal Code ("IPC" for ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 02:08:54 ::: apeal101of16.odt 2 short) and is sentenced to rigorous imprisonment for 10 years and to payment of fine of Rs. 5000/-.
2 Heard Shri. C.R. Thakur, the learned counsel for appellant and Shri. P.S. Tembhare, the learned Additional Public Prosecutor for respondent / State.
3 With the assistance of the learned counsels, I have given my anxious consideration to the evidence on record and the findings recorded by the learned Sessions Judge. 4 The finding of the learned Sessions Judge that the appellant Sheikh Wasim @ Sonu inflicted one stab injury on the person of Police Head Constable Subhash Ramchandra Jangle (PW 4) does not suffer from any infirmity. The evidence of the injured Subhash is corroborated by the evidence of Rajesh Mahadevrao Tenburiya (PW 1).
5 I have noticed from the cross-examination of the injured witness Subhash, that the cross-examination was conducted as a ritualistic formality. I refrain from making any further observations. Be that as it may, on a holistic appreciation ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 02:08:54 ::: apeal101of16.odt 3 of evidence, I do not see anything wrong in the finding recorded by the learned Sessions Judge that the appellant / accused inflicted one stab injury on the person of Subhash (PW 4) and that the said hurt was caused to PW 4 to deter him from discharging duty as public officer. The prosecution has established on record, that in the night intervening 23.8.2014 and 24.8.2014, PW 1 and PW 4 who were on patrolling duty found the movements of the appellant suspicious and attempted to apprehend the appellant / accused Sheikh Wasim @ Sonu. Concededly, in an attempt to avoid the clutches of law, the appellant inflicted the stab wound. 6 While the finding that the appellant assaulted the policeman on duty is unexceptionable, I am not persuaded to agree with the learned Sessions Judge that offence punishable under section 333 of the IPC is established. 7 The injury certificate Exh. 42 makes a reference to a stab wound 6 cm x 4 cm which is muscle deep on the left side of the chest. Strangely, injury certificate refers to the nature of object as hard and blunt. That apart, injury certificate does not describe the nature of the wound. The injury certificate is absolutely silent on whether the stab wound and the incised ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 02:08:54 ::: apeal101of16.odt 4 wound on the right thumb are grevious injuries much less injuries which are life endangering. The prosecution has not proved on record the details of the treatment undergone by PW 4 - Subhash. A solitary sentence in the evidence of PW 4 - Subhash that 'he was hospitalized for a period of 6 to 7 days' is grossly insufficient to attract the clause eighthly in section 320 of the IPC. The statement in evidence of the injured witness that the weapon was stuck in the chest appears to be highly doubtful. 8 It is true that the weapon is shown to have been seized in the hospital. However, there is no evidence on record and in particular it is not elicited from the doctor at the Mayo Hospital that the weapon was stuck in the chest of the injured witness and was removed in the hospital.
9 The conviction of the appellant accused for offence punishable under section 333 of the IPC is manifestly unsustainable. I am afraid, there is absolutely no evidence on record to suggest that the injured witness Subhash suffered grevious hurt within the meaning of section 320 of the IPC. The conviction under section 333 of the IPC deserves to be set aside. Instead, the appellant / accused is convicted under section 332 of ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 02:08:54 ::: apeal101of16.odt 5 the IPC.
The appellant is sentenced to rigorous imprisonment for 2 years & 6 months. The appellant accused is in detention since 24.8.2014.
The appellant / accused be released forthwith if not required in any other case.
Appeal is partly allowed.
JUDGE RS Belkhede ::: Uploaded on - 07/11/2017 ::: Downloaded on - 08/11/2017 02:08:54 :::