Manohar S/O Pandurang Bawane (In ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 4252 Bom

     apeal66.16.odt                                                                                                                1



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH : NAGPUR




                                                                                                                     
                              CRIMINAL APPEAL NO. 66 OF 2016




                                                                                    
                Manohar Pandurang Bawane
                aged about 46 yrs., Occp. Carpenter,
                r/o Ambedkar Nagar, Near Mata Chowk,




                                                                                   
                Chandrapur, Tah. & Distt.
                Chandrapur.                 ::                   APPELLANT

                         .. Versus
                                   ..




                                                               
                The State of Maharashtra
                                    
                through Police Station Officer, 
                Ramnagar, Chandrapur, Tah. & Distt.
                Chandrapur.                  ::            RESPONDENT
                                   
     ...................................................................................................................................
                                    Shri Rohit Joshi, Advocate for the appellant.
                                    Shri S. S. Doifode, A.P.P. for the respondent.
     ...................................................................................................................................
      

                                                                   CORAM :  S. B. SHUKRE, J.

DATED : 28th JULY, 2016

O R A L J U D G M E N T O R A L J U D G M E N T

1. Heard. This matter is taken up for final hearing.

2. As the appeal has been taken up for final hearing, there is

no need to pass any order on criminal application No. 441 of 2016,

and it is hereby disposed of accordingly.

3. The appellant has been convicted by judgment and order

dated 28/01/2016 of the learned Special Judge, Chandrapur for the

offences punishable under Sections 323 and 307 of the Indian Penal

Code ("I.P.C." for short) and awarded rigorous imprisonments of one

year and five years and also sentences of fine amounts of Rs.1,000/-

and 5,000/- respectively together with default sentences of three

months and six months respectively.

4. The allegation made against this appellant is that on

13/5/2010, this appellant assaulted the complainant by means of a

knife for the reason that this appellant suspected that the complainant

was having an eye upon his wife. In this assault, this appellant

allegedly dealt blows of knife to the abdomen, neck and left knee of

the complainant and thus seriously injured him. On merits of the case,

learned Special Judge found that the offences punishable under

Sections 323 and 307 I.P.C. were proved beyond reasonable doubt.

The learned Special Judge also found that the other offence punishable

under Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 ("Prevention of Atrocities Act" for

short), which was additionally charged against this appellant was not

proved beyond reasonable doubt and accordingly by the impugned

judgment and order, this appellant was convicted for the afore stated

I.P.C. offences and acquitted of the offence punishable under the

Prevention of Atrocities Act. Not being satisfied with the same, the

appellant is before this Court in the present appeal.

5. Learned Counsel for the appellant has invited my attention

to the admissions given by the Medical Officer, Dr. Nilesh Padgelwar to

support his argument that at the most, offence punishable under

Section 324 I.P.C. would be made and not under Section 307 I.P.C.

6. Learned A.P.P. for the State submits that these admissions

are indeed there and, therefore, appropriate order may be passed.

7. P.W.-8 Dr. Nilesh Padgelwar has clearly admitted that

unless injury is caused to the internal organs, it cannot be said that the

injury is grievous as well as dangerous. P.W.-8 Dr. Nilesh also could

not state as to whether or not the injuries suffered by the complainant,

which were in the nature of one stab injury on his abdomen, one stab

injury on his left knee and one lacerated wound on the right side of the

neck, were grievous or simple in nature. There is no evidence brought

on record to show that injuries sustained by the complainant were

sufficient in the ordinary course of nature to cause his death. Such

evidence was necessary in this case and without such an evidence

being present on record, no findings on the commission of the offence

of attempt to commit murder by this appellant could have been

recorded by the learned Special Judge. The impugned judgment and

order also do not show that the learned Special Judge had taken any

pains to consider these aspects and record in specific manner such a

finding.

8. As stated earlier, a finding of guilt under Section 307 I.P.C.

could not have been recorded without the prerequisites being met and

at the most, what could have been held was proving of the commission

of offence of hurt by using a knife, which is punishable under Section

324 I.P.C., which I do so here. It being a lessor offence, the conviction

of the appellant can be converted into the one for offence punishable

under Section 324 I.P.C., which I do so. The appellant has also been

convicted for the offence punishable under Section 323 I.P.C.

However, in view of the fact that now the appellant has been found to

have committed the offence punishable under Section 324 I.P.C., the

order of conviction and sentence for the offence punishable under

Section 323 I.P.C. awarded to the appellant would have to be quashed

and set aside.

9. On the question of sentence, learned Counsel for the

appellant submits that there have been mitigating circumstances going

in favour of the appellant. He submits that now the relations between

the side of the complainant and the family of this appellant have been

improved by the passage of time and an affidavit to this effect has also

been filed on record by complainant Sanjiv Madhavrao Ambekar on

30/3/2016. He further submits that the appellant has two school

going children and that there are no criminal antecedents to the

appellant.

10. Learned A.P.P. for the State submits that appropriate order

be passed in this regard.

11. Upon considering the affidavit dated 30/3/2016 and also

the fact that there are no criminal antecedents to the appellant, I am of

the view that the appellant deserves to be shown leniency by reducing

the sentence awarded to him to a period of detention already

undergone by him. The appellant is in jail since 28/01/2016 and was

also previously detained for 53 days. Such period of detention of the

appellant having been already undergone by him should meet the ends

of justice. Hence, the order.:

                    a)             The appeal is partly allowed.
                    b)             Conviction   of   the   appellant   for   the   offence




                                                

punishable under Section 307 of the Indian Penal Code and the sentence awarded to him for this offence are hereby

quashed and set aside and it is substituted by his conviction for an offence punishable under Section 324 of the Indian

Penal Code for which the sentence of imprisonment stands imposed upon him for such a period as is equivalent to the period of detention already undergone by him.

c) The conviction awarded to the appellant for an

offence punishable under Section 323 I.P.C. and sentence given to him for this offence are hereby quashed and set aside.

d) So far as the fine amount of Rs.5,000/- is concerned, the same is converted as fine amount of an offence punishable under Section 324 I.P.C.

e) The fine amount of Rs.1,000/- for an offence punishable under Section 323 I.P.C. be refunded to the appellant.

f) The appellant be set at liberty forthwith, if not required in any other case.

JUDGE

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Uploaded on :02/8/2016