The Bombay High Court dismissed an application challenging the judgment and order dated 03.08.2022 passed by the learned Additional Sessions Judge, whereby the learned Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded for the offence punishable under Section 307 of the Indian Penal Code. The Court observed that even if it is found in any case that on account of some irregularity, the accused has been prejudiced, the Court has to take care of the prejudice caused to the accused within the parameters of law and set it at rest.
Brief Facts:
It is the case of the prosecution that when the informant on 06.03.2011 at about 6.00 p.m. was washing his hands and face in front of his house, the accused, who is a resident of the same locality and known to the informant, came to his house and made a demand of Rs.100/- for consuming liquor. The informant did not have money and therefore, he could not pay. He refused to pay the money. The accused got annoyed. The accused abused the informant.
The accused came from behind the informant and inflicted a blow with a sharp razor (Vastara) on the throat of the informant. The informant sustained a bleeding injury. The accused further inflicted a blow with the weapon on his waist. After seeing the incident, people gathered on the spot. They apprehended the accused and assaulted him. The informant thereafter went to the police station and reported the matter to the police. The crime was registered against the accused for an offence punishable under Section 307 of the I.P.C. The Learned Judge held the accused guilty under Section 307 of the IPC. The accused preferred an appeal in the Sessions Court, which was dismissed. Hence, the present application.
Contentions of the Applicant:
The Learned Counsel for the Applicant submitted that there are major inconsistencies in the evidence of prosecution witnesses and therefore, the evidence of the witnesses about the incident is unbelievable. He contended that even if the evidence is accepted as it is, the offence made out by the prosecution would be under Section 324 of the I.P.C. Further, he argued that the entire trial against the accused was vitiated because the learned Ad-hoc Assistant Sessions Judge was not empowered to try the cases for the offences with imprisonment for more than 10 years.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the conviction of the accused is based on the proper appreciation of evidence and it does not warrant interference. Further, he contended that the learned Sessions Judge should not have assigned the case to the learned Ad-hoc Assistant Sessions Judge; however, on the ground of this irregularity, the entire conviction and sentence cannot be quashed and set aside. Learned APP submitted that the accused has already undergone a substantial period of sentence and therefore, remitting the matter back for de novo trial would not serve any purpose.
Observations of the Court:
The Court noted that the intention or knowledge of the accused is the prime factor to conclude whether the offence made out is an attempt to murder or any other offence. The nature and extent of the injury is not the decisive factor while determining whether the accused had the intention to cause death or such bodily injury as is likely to cause death. The Court said that in the backdrop of the evidence of the witnesses and the other determinative factors the offence made out would be under Section 324 of the I.P.C and not under Section 307 of the I.P.C. The injuries sustained by the informant were simple injuries.
Further, the Court observed that there was an irregularity in the conduct of the proceeding by the learned Ad-hoc Assistant Sessions Judge. However, the Court said that even if it is found in any case that on account of some irregularity, the accused has been prejudiced, the Court has to take care of the prejudice caused to the accused within the parameters of the law and set it at rest. In the case at hand, Court said, remitting the matter to the Sessions Judge would not be in the interest of the accused.
The decision of the Court:
The Bombay High Court, allowing the application, held that the accused is convicted for an offence punishable under Section 324 of the IPC.
Case Title: Mangesh v State of Maharashtra
Coram: Hon’ble Justice G. A. Sanap
Case no.: CRIMINAL REVISION APPLICATION NO.50 OF 2023
Advocate for the Applicant: Mr. V. N. Mate
Advocate for the Respondent: Mr. Amit Chutke
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