apeal473.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.473 OF 2002
1] Madhav s/o Bhujangrao Awachar,
Aged about 25 years,
Occ: Agriculturist.
2] Bhujangrao s/o Panduji Awachar,
Aged about 70 years,
Occ: Agriculturist.
Both R/o Kinkheda, Taluka Risod,
District Washim.
(Both appellants presently in jail.) ....... APPELLANTS
...V E R S U S...
The State of Maharashtra, through
the Police Station Officer, Police Station,
Risod, District Washim. ....... RESPONDENT
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Shri A.V. Gupta, Senior Counsel for Appellants.
Mrs. M.H. Deshmukh, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
7 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The appellants are challenging the judgment dated
14.08.2002 by 2nd Additional Sessions Judge, Washim in Sessions Trial 101/1998, by and under which, the appellants are convicted of offence punishable under section 307 read with section 34 of ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 ::: apeal473.02.J.odt 2 Indian Penal Code and are sentence to undergo rigorous imprisonment for five years and to pay fine of Rs.500/-. 2] Heard Shri A.V. Gupta, the learned Senior Counsel for the accused and Mrs. M.H. Deshmukh, the learned Additional Public Prosecutor for the State. Shri A.V. Gupta, the learned Senior Counsel would urge that the evidence on record is too sketchy and marred by inter se contradictions to be the basis of conviction of offence punishable under section 307 of the Indian Penal Code. According to the learned Senior Counsel, the allegation that the injured complainant Nayabrao was passing by the field of the accused and at that point in time, accused 1 Madhav dragged him to the field of the accused, is proved to be an omission. The learned Senior Counsel would urge that the version of the complainant that accused 1 Madhav dragged him to the field of the accused, and then, while accused Madhav held the complainant accused Bhjuangrao inflicted knife blow, is inherently unreliable. The learned Senior Counsel invites my attention to the admitted position that at the relevant time Bhujangrao was 65 years of age.
3] Shri Gupta, the learned Senior Counsel would urge ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 ::: apeal473.02.J.odt 3 that although it is a settled legal position that the testimony of an injured witness is on a higher pedestal than that of other witnesses in the sense that the injury ordinarily lends an assurance that the witness was present on the spot, the principle is not inflexible. The learned Senior Counsel would urge that it is a position brought on record that the relationship between the complainant and the accused was strained. The complainant and the accused were not on talking terms since 4 to 5 years prior to the incident. In such a situation, the assumption that an injured person would ordinarily not implicate the innocent and absolve the guilty, may not unnecessarily apply, is the submission of the learned Senior Counsel.
4] The learned Senior Counsel submits, in the alternate and arguendo, that even if the evidence is accepted at the face value, the accused could have been convicted at the most under section 324 of the Indian Penal Code. According to the prosecution, the 65 years old Bhujangrao is alleged to have been armed with a rusted knife and inflicted a single blow on the complainant. According to the complainant, accused 1 Madhav was holding him when Bhujangrao inflicted the knife blow. It is axiomatic, that Bhujangrao did not intend to kill. Even according ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 ::: apeal473.02.J.odt 4 to the complainant, he was helpless. Nothing prevented Bhujanrao from taking the assault to its logical end. It is not the case of the prosecution, that the assault was interrupted or prevented due to the intervention of some third person or external factor. I have carefully scrutinized the record to ascertain if there is any material on record to suggest that the assault was with the intent to kill. I did not come across any matter which would suggest that Bhujangrao are Madhav intended to kill the accused. Under the circumstances, I am inclined to accept the submission of the learned Senior Counsel for offence punishable under section 307 of I.P.C. is not made out against the accused.
5] I have given due consideration to the injury certificate Exh.43. The injury certificate indeed makes a reference to the injury being grievous. But then, in the circumstances of the case, the injury will be grievous only if it is life endangering. Grievous injury is defined in section 320 of Indian Penal Code. The injury suffered by the complainant is not covered by any of the eight categories. The injury might have been covered under "eightly" were the injury life endangering. Other than the certificate which is proved by P.W.5, there is no material on record to throw light on the number of days of hospitalization, the ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 ::: apeal473.02.J.odt 5 treatment received by the complainant post the initial medical aid, the date of discharge, whether any surgical intervention was as a fact required etc. I am not persuaded to accept the submission of the learned A.P.P. that the injury is a grievous injury within the meaning of clause eightly of section 320 of I.P.C. 6] I would therefore, set aside the conviction under section 307 of the Indian Penal Code and instead convict the accused for offence punishable under section 324 of the Indian Penal Code, while maintaining the sentence of payment of fine. 7] The learned Senior Counsel would urge that the accused are entitled to the benefit of probation under section 4 of the Probation of Offenders Act, 1958. The learned Senior Counsel invited my attention to the relatively recent judgment of the Hon'ble Supreme Court in Ramesh Kumar alias Babla vs. State of Punjab AIR 2016 SC 2858. The incident occurred due to an internal dispute between the family. The complainant is the younger brother of Bhujangrao the accused 2. The incident occurred 20 years ago. Bhujangrao who is attributed with the role of inflicting the single knife blow is now 85 years of age. Madhav accused 1 is 41 years. The accused have filed on record ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 ::: apeal473.02.J.odt 6 an affidavit stating that they are not involved in any altercation or dispute between the complainant since last twenty years. 8] Considering the nature of the allegations and the offence proved, and taking into consideration the fact that the Bhujangrao is 85 years old and Madhav is now settled in life, I am inclined to grant the benefit of section 4 of Probation of Offenders Act.
9] I therefore, grant the benefit of the Probation of Offenders Act to both the accused and direct that the accused be released on executing appropriate bond before the Trial Court to appear and receive sentence if and when called upon to do so within six months and in the interregnum to keep the peace and be a good behaviour.
10] The appeal is partly allowed in the above terms.
JUDGE NSN ::: Uploaded on - 08/09/2017 ::: Downloaded on - 10/09/2017 01:54:48 :::