920-REVN-77-17 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN ) NO.77 OF 2017
Rahul s/o Haridas Borkar
aged about 24 years,
Occ. Student, R/o Near
Petrol Pump, Lahan Umri,
Akola. ... Applicant
-vs-
State of Maharashtra,
Thr. Police Station Officer,
Civil Lines, Akola
Tahsil and District Akola. ... Non-applicant.
Shri A. R. Deshpande, Advocate for applicant.
Shri A. A. Madiwale, Addl. Public Prosecutor for non-applicant/State.
CORAM : A.S.CHANDURKAR, J.
DATE : November 15, 2017
Oral Judgment :
Heard.
Admit.
In view of order dated 21/09/2017 the learned counsel for the parties have been heard at length.
The applicant is accused No.3 against whom First Information Report No.49/2012 for the offence punishable under Sections 147, 148, 149, 307, 504 of the Indian Penal Code (for short, the Penal ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 ::: 920-REVN-77-17 2/6 Code) read with Sections 4 and 25 of the Arms Act read with Section 135 of the Maharashtra Police Act, 1950 has been registered. After completion of investigation the charge-sheet came to be filed. The applicant moved an application below Exhibit-36 before the trial Court under Section 227 of the Code of Criminal Procedure, 1973 (for short, the Code) for his discharge from the offence punishable under Section 307 of the Penal Code and Sections 4 and 25 of the Arms Act. By order dated 31/05/2017 this application was rejected. Being aggrieved the present revision application under Section 397 read with Section 401 of the Code has been filed.
2. It is submitted on behalf of the applicant that on perusal of the First Information Report as well as other material filed along with charge-sheet, no offence under Section 307 of the Penal Code has been made out. The specific allegation of assaulting the informant by way of a knife is attributed to accused No.1. In so far as present applicant is concerned, it is stated that he was present along with other accused persons and it is further stated that the accused persons had rivalry against the informant. They were also holding sticks in their hands. On the basis of injury report of the informant it is submitted that the informant suffered only one ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 ::: 920-REVN-77-17 3/6 injury as a result of the assault by a knife. No injuries were suffered by the informant at the instance of the present applicant and hence he needs to be discharged with regard to the offence punishable under Section 307 of the Penal code. Reliance is placed on the decision in Sarju Prasad v. State of Bihar AIR 1965 SC 843 and it is submitted that in absence of any other injury on the informant, the trial Court ought to have allowed the application below Exhibit-36.
3. The application is opposed by the learned Additional Public Prosecutor. It is submitted that on consideration of the First Information Report as well as other statements recorded, it is clear that the applicant was present on 17/02/2012 when the alleged assault on the informant took place. These statements record the presence of the applicant and hence his implication is proper. Considering the nature of injuries sufferred by the informant, the applicant does not deserve to be discharged in so far as offence under Section 307 of the Penal Code is concerned.
4. Perused the First Information Report as well as other material placed on record along with charge-sheet. The statement of the informant dated 17/02/2012 reveals that the applicant along with ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 ::: 920-REVN-77-17 4/6 other accused persons assaulted the informant when he told the group that a particular candidate had got elected in the election of the Municipal Corporation. He has subsequently stated that accused No.1 assaulted him with a knife in presence of two witnesses Satish Patil and Ankush Agrawal. He was then taken for medical aid. Statement of Ankush Agrawal indicates that accused No.1 assaulted the informant from the backside with a knife. The present applicant along with others were present and they had pelted stones. Similar statement has been recorded by other witnesses. The injury report of the informant indicates one stab injury suffered by him. Besides this there is no other injury sustained by him. This is the material available in so far as the applicant herein is concerned.
5. In Sarju Prasad (supra) it was held that for the purposes of offence under Section 307 of the Penal Code being made out, the requisites of Section 300 of the Penal Code have to be satisfied. In absence of any requisite intention or knowledge of the accused, charge under Section 307 of the Penal Code would not be made out. In the light of aforesaid law if the material on record is considered it is clear that the knife injury is not attributed to the present applicant who is accused No.3. Same is attributed ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 ::: 920-REVN-77-17 5/6 to accused No.1. The statements of witnesses indicate that the applicant and others were abusing the informant and pelting stones. However there is no injury suffered as a result of this pelting of stones. The learned Judge of the Sessions Court despite observing that what is required to be considered was whether there exists a sufficient ground for proceeding against the applicant, failed to take into consideration the material on record. By doing so it erred in rejecting the application. The applicant is thus entitled to discharge from the offence punishable under Section 307 of the Penal Code as well as Sections 4 and 25 of the Arms Act.
6. In view of aforesaid the following order is passed :
(i) The order dated 31/05/2017 passed below Exhibit-36 thereby refusing to discharge the applicant for the offence punishable under Section 307 of the Penal Code and Sections 4 and 25 of the Arms Act is set aside.
(ii) Application below Exhibit-36 is partly allowed and the applicant is discharged only with regard to offence punishable under Section 307 of the Penal Code and Sections 4 and 25 of the Arms Act.
(iii) It is clarified that observations made in this order are
::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 :::
920-REVN-77-17 6/6
only for deciding the present challenge. The trial shall be conducted on its own merits and in accordance with law.
(iv) Revision application is partly allowed in aforesaid terms.
JUDGE Asmita ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 01:46:54 :::