The State Of Mah.Thr. Pso Akola vs Vijay @ Pintya Waman Awchar And ...
2017 Latest Caselaw 2194 Bom

Judgment                                                                       apeal611.04

                                           1




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




                      CRIMINAL APPEAL No.  611  OF  2004.



      State of Maharashtra,
      through P.S.O. Barshitakli,
      District - Akola.                                          ....APPELLANT.



                                        VERSUS

  1. Vijay @ Pintya Waman Awchar
     Aged about 20 years.

  2. Waman Laxman Awchar,
     Aged about 40 years,

      Both resident of Patkhed,
      Tq. Barshitakli, 
      District Akola.                                            ....RESPONDENTS
                                                                                . 



                            ----------------------------------- 
                    Mr. S.S. Doifode, A.P.P. for the Appellant.
                  Mr.U.J. Deshpande, Advocate for Respondents.
                            ------------------------------------




                                   CORAM :  B. P. DHARMADHIKARI
                                                 & V.M. DESHPANDE, JJ.

DATED : MAY 04, 2017.

Judgment apeal611.04

ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)

This appeal under Section 378 (3) of the Criminal Procedure Code

is filed by the appellant - State challenging exoneration of respondents

under Section 302 of Indian Penal Code, and their conviction for a lesser

offence under Section 304 Part-II read with Section 34 of Indian Penal Code.

2. We have accordingly heard Shri S.S. Doifode, learned A.P.P. for

the appellant - State and Shri U.J. Deshpande, learned counsel for the

respondents.

3. Additional Sessions Judge, Akola has vide judgment and order

dated 01.07.2004, delivered in Sessions Trial No. 97/2003 found both the

respondents not guilty for an offence punishable under Section 302 of Indian

Penal Code and for offence under Section 304 Part-II read with Section 34 of

Indian Penal Code. They were sentenced to undergo rigorous imprisonment

for a period of five years and to pay fine of Rs. 500/- each, in default to

suffer simple imprisonment for one month. It is not in dispute that this

conviction is not assailed by respondents and they have already completed

Judgment apeal611.04

the period of sentence in prison.

4. Shri Doifode, learned A.P.P. appearing on behalf of the appellant

submits that in a scuffle with father by deceased, son has intervened. He

brings a dangerous sharp edged weapon and delivers a single blow on vital

part of the body. In this situation, the logic by the Court below to hold that

there was no intention in the matter is unsustainable. He contends that use

of such a weapon and the mode and manner in which the blow is delivered,

are itself indicative of the intention.

5. Shri Deshpande, learned counsel appearing on behalf of the

respondents submits that the scuffle was going on only between father and

deceased. Son was not party to it. Evidence brought on record by the

prosecution shows that son emerges from house with a weapon, gives only

one blow. There is no other injury or any attempt by him to inflict any other

blow on the deceased. He therefore, states that in this situation, there was

no question of Section 34, as also Section 302 of Indian Penal Code. He

takes us through the relevant parts of the impugned judgment to urge that

the Trial Court has rightly found the offence under Section 304 Part-II.

6. Arguments narrated supra show limited scope in which we have to

Judgment apeal611.04

apply our mind. In any case this being an appeal against acquittal, the scope

of intervention itself is narrow. The prosecution has brought on record only

a scuffle between deceased and father. Father goes to house brings a stick

and gives its blow to the deceased. Father therefore, had no intention to

inflict any fatal blow on the deceased. There is no evidence to suggest that

father has invited son for his assistance, and therefore, son had intervened in

the scuffle. In so far as use of stick by father is concerned, the judgment

impugned acquits him (respondent no.2) of offence punishable under

Section 324 of Indian Penal Code.

7. Thus, material on record only shows that son (respondent no.1)

suddenly emerges from house with a knife, gives its blow. It is obvious that

in this situation, no meeting of mind between respondent no.1 and

respondent no.2 could even be inferred. The recourse to Section 34 of

Indian Penal Code therefore, is, obviously unwarranted. However, we need

not delve more into this aspect, as both the respondents have already

undergone the punishment.

8. The ongoing scuffle made the son to intervene in it at a spur of

moment and he stopped after delivering a single blow. The deceased

Ramesh was about 29 years old and scuffle was with father who was more

Judgment apeal611.04

than 40 years of age. In that situation, the son has suddenly intervened in

the scuffle, but has not acted in any cruel way and has not, after delivering a

blow taken any undue advantage. Premeditation is thus absent here.

9. The Trial Court has considered this aspect in paragraph nos. 24

and 25 of its judgment. It has also relied upon a Division Bench judgment

of this Court where in some what similar circumstances there were two

blows delivered on the deceased.

10. In this situation, taking over all view of the matter, we cannot say

that the view taken by the Trial Court is not a possible view. We therefore,

find no case made out warranting intervention in this jurisdiction. Criminal

Appeal is therefore, dismissed. No costs.

11. Property be destroyed as directed by the trial Court after the

Appeal period is over.

                             JUDGE                                     JUDGE


Rgd.