Bombay High Court
Manohar Laxman Karande vs State Of Maharashtra Thr.Pso. ... on 13 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.353/2017
Manohar s/o Laxman Karande,
aged 45 years, r/o Khodshiwni,
Dist. Duggipar, Tq. Sadak,
Dist. Bhandara. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, Post Duggipar,
Dist. Bhandara. ...RESPONDENT
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Mr. Yash Maheshwari, Advocate for appellant.
Ms T. Udeshi, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 13.07.2017
ORAL JUDGMENT
1. The present appeal is directed against the judgment
and order of conviction passed by the learned Additional Sessions
Judge, Bhandara in Sessions Trial No.132/1995 by which the
Court below has convicted the appellant for an offence punishable
under Section 307 of the IPC and directed that he should suffer
rigorous imprisonment for five years and pay a fine of Rs.4,000/-,
in default of payment of fine further rigorous imprisonment for a
period of one year. He is also convicted for the offence under
Section 448 of the IPC and was directed to suffer rigorous
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imprisonment for six months and to pay a fine of Rs.1,000/-, in
default of payment of fine, further rigorous imprisonment for 1 ½
months.
2. In Sessions Trial No. 132/1995, the appellant Manohar
and his two brothers Prakash and Vyankat were charged by the
learned Additional Sessions Judge for an offence punishable under
section 307 and 452 read with Section 34 of the IPC. They were
charged for assaulting Duryodhan Kumbhare (PW2) on
19.05.1995 in the house of Duryodhan.
After a full dress trial, the learned Court below
acquitted the other two accused Prakash and Vyankat of the
offences.
3. The only submission that was advanced before this
Court by Mr. Maheshwari, learned counsel for the appellant is that
the conviction of the appellant for the offence punishable under
Section 307 of the IPC is erroneous and at the most the appellant
can be convicted for an offence under Section 324 of the IPC even
if the entire prosecution case and its evidence is accepted as it is.
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4. Dr. Wasudeo Lanje (PW10) who was Medical
Superintendent at Cottage Hospital, Sakoli examined Duryodhan
Kumre on 19.05.1995 when he was brought to him by police
personnel from Police Station Duggipar. After his examination, he
noticed following injuries on his person :
"Stab injury right lumber region above iliac crest 2 inch
X 1 inch, Peritoneal deep. No active bleeding. No other
injury was seen. The above injury was caused by hard
and sharp object."
He issued certificate Exh.-46. The injured was also
referred to General Hospital, Bhandara for further treatment.
It would be useful to refer the following portion
appearing in the examination in chief of Dr. Wasude Lanje (PW10)
to appreciate the submission of Mr. Maheshwari, which reads thus:
"It is not possible to opine, on the basis of external
examination of the injuries, caused to Duryodhan if the
same was sufficient to cause the death, in the ordinary
course, unless internal examination of the portion of
abdomen was done."
It is an admitted position that no internal examination
of the abdomen of the injured Duryodhan was conducted.
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Though Duryodhan was referred for further treatment
to General Hospital at Bhandara, the learned Judge himself
observed in paragraph 23 and the judgment which is reproduced
hereunder.
".....In this respect, the Investigating Officer has not
produced on record further treatment given to P.W. 2
Duryodhan at the General Hospital, Bhandara. Nor any
attempts appear to have been made by him to undertake
the internal examination of the said injury by taking out
its X-ray photographs."
Thus, it is clear that the nature of injuries whether it
was grievous or whether death could have occurred by the said
injuries was not proved at all.
5. In that view of the matter, the conviction as recorded
by the learned Judge of the Court below in cannot sustain and is
liable to be set aside.
However, in view of the evidence of Duryodhan (PW2)
it is crystal clear that he was attacked by the present appellant by
means of knife. There is nothing to disbelieve the version of
Duryodhan (PW2). In any event, further injury appearing on the
person of Duryodhan is attributable to the weapon that was seized
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i.e. the knife. Thus, it is clear that the appellant is responsible for
causing injuries on the person of Duryodhan (PW2) and therefore
he can be convicted for the offence punishable under Section 324
of the IPC.
6. The appellant was arrested on 19.05.1995. The
remand papers show that before learned Magistrate on
28.08.1995, an application for grant of bail was filed and the
learned Magistrate on 30.08.1995 released the appellant by
exercising his powers under Section 167 (2) of the Cr.P.C. Thus
the appellant was in jail for a period of 3 ½ months.
The applicant has already deposited the entire fine
amount. The incident has occurred in the year 1995. At the time
of filing of the appeal, the appellant was 45 years of age. Thus, as
on today, he must have completed 60 years. After the incident has
occurred and till today no other untoward incident is reported to
have occurred in between the two families. In that view of the
matter, some leniency can be shown towards the appellant.
Hence, following order is passed.
ORDER
(i) Criminal Appeal No.353/2001 is partly
allowed.
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(ii) The judgment and order dated 05.10.2001
passed by Additional Sessions Judge, Bhandara in
Sessions Trial No. 132/1995 thereby convicting the
appellant for an offence punishable under Section 307
of the IPC is quashed and set aside. Instead, the
appellant is convicted for an offence punishable under
Section 324 and 448 of the IPC.
(iii) The appellant is directed to suffer jail
sentence which he has already undergone.
(iv) There shall be no order as to the fine
amount.
JUDGE
kahale
