Bombay High Court
Bapurao S/O Laxman Belsare (In ... vs The State Of Maharashtra, Thr. ... on 28 July, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.371/2016
Bapurao S/o Laxman Belsare,
age 38 Yrs., Occu. Labour,
R/o Satti, Tahsil Anjangaon Surji,
Distt. Amravati. ..Appellant.
..Vs..
The State of Maharashtra,
through Police Station Officer,
Anjangaon Surji, Tq. Anjangaon Surji,
Distt. Amravati. ..Respondent.
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Shri R.D. Hajare, Advocate (appointed) for the appellant.
Shri N.R. Patil, A.P.P. for the respondent / State.
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CORAM : Z.A.HAQ, J.
DATE : 28.7.2017.
ORAL JUDGMENT
1. Heard Shri R.D. Hajare, learned Advocate, appointed to argue the
appeal on behalf of the appellant and Shri N.R. Patil, learned A.P.P. for the
respondent / State.
2. The appellant / accused has challenged the judgment passed by the
learned Additional Sessions Judge convicting him for the offence punishable
under Section 304-I of the Indian Penal Code and sentencing him to undergo
rigorous imprisonment for 10 years and to pay fine of Rs.3,000/- (Rs. Three
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Thousand) and in default of payment of fine to undergo further rigorous
imprisonment for 6 months.
3. The case of the prosecution is that on 5 th May, 2014 Ramesh
Devisingh Rathod lodged report that his brother Sudharkar Devisingh Rathod
was murdered by the accused Bapurao Laxman Belsare, the report disclosed
that on 5th May, 2014 at about 2.45 p.m. first informant's cousin Jyotiram
Rathod approached him and disclosed that quarrel was going on between his
brother Sudhakar and accused Bapurao, Jyotiram and first informant rushed to
the spot where quarrel was going on, and when they reached near Durga
temple they saw that Sudhakar and Bapurao were quarrelling and Bapurao
stabbed knife on the chest of Sudhakar causing injury which proved to be fatal.
4. After the F.I.R. was registered, the investigation was undertaken and
after completing the necessary formalities, the charge-sheet for the offence
punishable under Section 302 of the Indian Penal Code and Sections 4/25 of
the Arms Act was filed. The case was committed to the Sessions Court which
framed charge for the offence punishable under Section 302 of the Indian Penal
Code, read over and explained the charge to the accused and as the accused
did not accept the guilt and claimed to be tried, the trial was conducted and
after conducting the trial the Sessions Court recorded that the prosecution has
proved that the crime is committed by the accused and convicted the accused
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sentencing him as per the order.
5. The learned Advocate for the appellant referred the evidence on
record and submitted that the conclusions of the learned Sessions Judge that
the prosecution has proved its case beyond doubt are not proper. However,
after arguing for sometime on this point he fairly conceded that the conclusions
of the learned Additional Sessions Judge that the prosecution has proved that
the accused caused stab injury on the chest of deceased are proper and cannot
be faulted with. It is submitted that the prosecution has not been able to
establish motive and the evidence on record is not sufficient to hold that the
accused stabbed deceased with intention to cause his death. It is submitted
that the conviction for the offence punishable under Section 304-I of the Indian
Penal Code is unsustainable and even after it is found that the accused has
stabbed the deceased, the conviction can be only under Section 304-II of the
Indian Penal Code.
6. The learned A.P.P. argued that the injury is on the left side of chest
and because of the penetration of knife the heart and thoracic cage was
damaged / injured and this shows that the accused stabbed deceased with
intention to cause his death.
7. After examining the record I find that the prosecution has not been
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able to establish the motive for commission of crime. The appellant / accused
and deceased were known to each other. The incident occurred in market area
in the afternoon and the evidence on record shows that the incident occurred
because of sudden quarrel between the appellant / accused and the deceased.
There is only one injury and evidence on record does not show that the
appellant / accused attempted to cause further injury. Thus I find substance in
the submissions made by the learned Advocate for the appellant and hold that
the conviction of the appellant / accused for the offence punishable under
Section 304-I of the Indian Penal Code is unsustainable and it has to be under
Section 304-II of the Indian Penal Code.
8. Considering the above facts and that the appellant is a labour and
has to maintain his mother, 2 small children and the fact that he is not involved
in any other crime / offence earlier, the interests of justice would be sub-served
by directing that the appellant /accused shall undergo rigorous imprisonment
for 5 years and to pay fine of Rs.3,000 (Rs. Three Thousand) and in default of
payment of fine to undergo further rigorous imprisonment for 6 months.
9. Hence the following order:
(i) The judgment passed by the learned Additional Sessions Judge is
modified and it is held that the appellant / accused is convicted for the offence
punishable under Section 304-II of the Indian Penal Code.
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(ii) The appellant shall undergo rigorous imprisonment for 5 years and
shall pay fine of Rs.3,000/- (Rs. Three Thousand) and in default of payment of
fine the appellant shall undergo further rigorous imprisonment for 6 months.
(iii) The judgment is modified accordingly.
(iv) The muddemal property be dealt with according to law after the
period of appeal is over.
(v) The appeal is partly allowed in the above terms.
(vi) Fees of Shri R.D. Hajare, Advocate appointed to represent the
appellant / accused is quantified at Rs.5,000/- (Rs. Five Thousand Only).
JUDGE
Tambaskar.
