Rameshwar Harichandra Mankar vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 4986 Bom

Judgment

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

         CRIMINAL APPLICATION (APL) NO.170 OF 2017

Rameshwar Harichandra Mankar,
Aged about 32 years, Occupation Laborer,
R/o Palsod, Taluka Akot, District Akola.            ..... Applicant.

                                 ::   VERSUS   ::

1.  State of Maharashtra,
Through P.S.O.,
Police Station Dahihanda,
Taluka Akot, District Akola (M.S.)

2.  Ganesh Janrao Deshmukh,
Aged Major, Occupation Cultivator.

3.  Kausalyabai wd/o Janrao Deshmukh,
Aged about 70 years, Occupation Cultivator.

Both R/o Palsod, Taluka Akot,
District Akola.                                                ..... Non-applicants.

================================================================
           Shri R.G. Kavimandan, Counsel for the Applicant.
           Shri V.B. Bhise, Counsel for non-applicant Nos.2 & 3.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 25, 2017.



                                                                                .....2/-



 Judgment

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ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel for the parties.

2. Applicant Rameshwar Harichandra Mankar is first

informant and injured. He lodged first information report

with Dahihanda Police Station on 1.12.2006 in respect of

occurrence of 1.12.2006. On the basis of oral report lodged by

applicant Rameshwar, the police authorities at Dahihanda

registered an offence against non-applicant Nos.2 and 3

punishable under Sections 324, 336, 504, and 506 read with

Section 34 of the Indian Penal Code, 1860.

3. The investigating officer, after completion of

entire investigation, filed a final report under Section 173 of

the Code of Criminal Procedure, 1973 before learned Judicial

Magistrate First Class. Along with charge-sheet, injury

certificate of applicant/injured was also placed on record.

.....3/-

Judgment

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The injury certificate shows that doctor, who examined

applicant, noticed following injuries:

"i) incised wound on back middle part left

side 1" x 1/2" x 1/2".

ii) incised wound on neck 1 & 1/2" x 1/4" x

1/4", which according to doctor, caused by

sharp weapon."

4. The complainant/applicant filed an application in

the Court of learned Judicial Magistrate First Class under

Section 216 of the Code of Criminal Procedure, 1973 for

addition of charge since the charge against non-applicant

Nos.2 and 3 were framed for the offences punishable under

Sections 324, 336, 504, and 506 read with Section 34 of the

Indian Penal Code. The said application was also supported

by learned Additional Public Prosecutor In-charge of brief.

However, said application was rejected by learned Judicial

.....4/-

Judgment

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Magistrate First Class on 30.11.2016 by citing reasons that in

injury certificate it is not mentioned by the doctor that

injuries, that disclosed, are dangerous to life of informant and

also the first information report does not disclose that injuries

were caused with an intention to kill the applicant.

5. Feeling aggrieved thereby, the applicant carried a

revision before the Revisional Court being Criminal Revision

No.33 of 2016. The Revisional Court rejected the said revision

application on 1.2.2017 and one of grounds that bore in the

mind of learned Sessions Judge is that there will be prejudice

to the accused since charge under Section 307 of the Indian

Penal Code, 1860 is framed as he will have to face it before

learned Sessions Court and, therefore, he rejected the

application.

6. Injury is not sine qua non for constitution of

offence punishable under Section 307 of the Indian Penal

.....5/-

Judgment

apl170.17 12

Code. What is important is the intention which is the

deciding factor. The intention can be gathered from

attending circumstance since motive is always in the closed

mind of assailants. The part of body, which is chosen by

assailants in the present case, is neck. The neck is a vital part

of the body. Further, the weapon, that is used by assailants, is

a sickle which is sharp cutting weapon. Choosing of neck for

giving assault on the person of the complainant being neck is

one of factors by which prima facie one could reach to the

conclusion that there was an intention on the part of

assailants to commit murder of the informant.

7. The Courts below have committed a mistake in law

by observing that the first information report does not

disclose that assault was made with an intention to kill

informant. By lodging a first information report only criminal

law is set into motion. The first information report is never

.....6/-

Judgment

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the last word of the prosecution rather it is a starting point

for the investigating officer to investigate into cognizable

offence. During trial, it is always open for the complainant; or

the first informant, or the other witnesses, whose statements

are recorded during the course of investigation by the

investigating officer, to depose before the Court. The first

information report is never a substantive piece of evidence. It

is always used for the purposes of corroboration or

contradiction for the maker of the said document.

8. In that view of the matter, in my view, both the

Courts below have committed a serious mistake at law in

pointing out that since there was no reference made by the

applicant in his first information report that he was assaulted

with an intention to kill him, the offence under Section 307 of

the Indian Penal Code, 1860 cannot be made out.

9. The Revisional Court, in my view, has committed a

.....7/-

Judgment

apl170.17 12

further mistake in citing reason that there will be prejudice to

the accused persons if charge is framed under Section 307 of

the Indian Penal Code. The reasoning given by the Revisional

Court, that the accused persons will have to face Sessions

Trial and it will cause delay, is hardly any reason to non-suit

the prosecution.

10. In view of the aforesaid discussions and in view of

injuries, as noticed on the person of the applicant, both the

Courts below have committed a serious mistake at law

warranting interference by this Court. Consequently, I pass

the following order :

ORDER

i) Order passed by learned Judicial Magistrate

First Class below Exhibit 29 dated 30.11.2016 in

Regular Criminal Case No.107 of 2007 together

with judgment and order passed by learned

.....8/-

Judgment

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Additional Sessions Judge at Akot dated 1.2.2017

in Criminal Revision No.33 of 2016 are hereby

quashed and set aside.

ii) Learned Judicial Magistrate First Class is

directed to take suitable steps for committal of

case since the offence under Section 307 of the

Indian Penal Code is exclusively triable by the

Court of Sessions.

The criminal application stands allowed and

disposed of. Rule is made absolute.

JUDGE

!! BRW !!

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