crapeal332of02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.332 OF 2002
1 Prafulla s/o. Rambhau Shelke,
aged about 30 years,
2 Kishor s/o. Rambhau Shelke,
aged about 35 years,
3 Rajesh s/o. Rambhau Shelke,
aged about 40 yars,
4 Rambhau s/o. Tukaram Shelke
aged about 60 years,
All agriculturist,
Resident of Tembhurni,
Taluka Chandur Railway,
District Amravati ....APPELLANTS
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station, Chandur Railway,
District Amravati
...RESPONDENT
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Mr. R.M. Patwardhan, Counsel for Appellants.
Mr. H.R. Dhumale, Additional Public Prosecutor for
Respondent /State.
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crapeal332of02.odt 2
CORAM
:ROHIT B. DEO, J.
DATE :18 th SEPTEMBER, 2017.
ORAL JUDGMENT The counsel for the appellants states that appellant 4 has expired and the death certificate is placed on record. The death certificate is marked Exhibit "X" for identification. The appeal shall stand abated as regards appellant 4. 2 The appellants have been convicted under section 307 read with section 34 of Indian Penal Code ("IPC" for short) for having assaulted Raosaheb Harinarayan Shelke. The appellants have also been convicted for having caused grievous hurt to Vinayak Harinarayan Shelke and Bhaiyya Harinarayan Shelke. 3 Today, the complainant Raosaheb Harinarayan Shelke has filed an affidavit for himself and on behalf of his two brothers Vinayak Harinarayan Shelke and Bhaiyya Harinarayan Shelke. The affidavit is to the effect that the incident occurred in the heat of passion. The appellant 4 has already expired on 20.12.2013. In paragraph 6 Raosaheb states that the accused and the complainants / victims are cousin brothers and all grievances have been settled amicably. The affidavit speaks that the accused ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:37:03 ::: crapeal332of02.odt 3 and the complainants / victims now have a healthy relationship and intend to peacefully and happily stay together. A prayer is made in paragraph 6 that in order to ensure that the accused and the complainants / victims have healthy and a peaceful relationship, the judgment impugned may be set aside. 4 The learned counsel for the appellants invites my attention to the judgment of the Hon'ble Supreme Court in Manohar Singh Vs. State of Madhya Pradesh and another, (2014) 13 SCC 75 and in particular to paragraph 7 to 9 of the said judgment. The learned APP, however, would urge that the conviction is for offence punishable under section 307 of IPC and the accused are in custody only for 19 days or thereabout including pre-conviction detention. Faced with the obstacle posed by the submission of the learned APP, the learned counsel for the appellants Shri. R.M. Patwardhan would urge that in any event, and even if the entire prosecution evidence is taken at face value, no offence under section 307 is proved. At the most, the accused could have been convicted for offence punishable under section 323 of IPC, is the submission.
5 The learned counsel for the accused invites my ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:37:03 ::: crapeal332of02.odt 4 attention to the injury certificate and the evidence of the Medical Practitioner (PW11). The stab injury to Raosaheb which has persuaded the learned Sessions Judge to record a finding that the accused intended to kill Raosaheb is admitted by the Medical Practitioner to be on non-vital part. It is not the case of the prosecution, that the accused were prevented or interrupted in the assault or that but for such external intervention the accused would have taken the assault to the logical end. On a holistic appreciation of the evidence, I am inclined to agree with the submission of the learned counsel for the accused that even if the evidence is taken at face value, the prosecution has not established offence punishable under section 307 of the IPC. The nature of weapon which allegedly caused the stab injury is Jambiya which is seized and produced in the Court. Raosaheb however deposes that the weapon shown to him in the Court is not the weapon with which he was assaulted. The single stab injury and the fact that the every injury is minor, in my opinion, is one of the circumstance to suggest that there was no intent to kill. The prosecution has not brought on record any other circumstance to suggest that the accused had the common intention to kill Raosaheb. In view of the nature of the injuries, it can not be even said that the injuries suffered by Raosaheb are grievous injuries. ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:37:03 ::: crapeal332of02.odt 5 The submission of the learned APP that if the ingredients of section 307 of the IPC are not established, the accused may be convicted under section 325 or 326 of the IPC also can not be accepted. If the injury is not shown to be life endangering, it is difficult to accept the submission of the learned APP that the accused can be convicted for offence punishable under section 325 or 326 of the IPC. The very sine quo non is that the injury must result in grievous hurt. That, however, is not, what is established by the prosecution.
6. I am inclined to set aside the judgment impugned to the extend the accused are convicted of offence punishable under section 307 of the IPC in so far as assault on Raosaheb is concerned and instead convict the accused for offence punishable under section 324 of the IPC.
In view of the affidavit filed on record on behalf of Raosaheb, I am inclined to grant benefit of section 4 of the Probation of Offenders Act to the appellants / accused.
Appellants / accused 1 to 3 shall appear before the Trial Court and execute a bond to appear and receive sentence when called upon during the next six months and in the meanwhile to ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:37:03 ::: crapeal332of02.odt 6 keep the peace and be of good behavior.
Appeal disposed of accordingly.
JUDGE Belkhede ::: Uploaded on - 19/09/2017 ::: Downloaded on - 21/09/2017 01:37:03 :::