Nilesh Chhannu Bairagi Patnaik & ... vs State Of Mah. Thr. Pso Lakadganj, ...
2017 Latest Caselaw 2444 Bom

APEAL 464/03                                       1                           Judgment


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.
                    CRIMINAL APPEAL NO. 464/2003 
1.      Nilesh S/o. Chhannu Bairagi Patnaik,
        Aged about 20 years, Occ. Labour (In Jail).

2.      Shankar S/o. Kisanrao Banjari,
        Aged 37 years, Occ. Helper.

Both R/o. New Bagadganj, Nagpur.                                          APPELLANTS

                                   .....VERSUS.....

State of Maharashtra,
Through Police Station Officer,
Police Station, Lakadganj,
Nagpur, Dist. Nagpur.                                                      RESPONDE
                                                                                    NT

                   Shri R.H. Rawlani, counsel for the appellants.
        Shri A.R. Chutke, Additional Public Prosecutor for the respondent.

                                                 CORAM : N.W. SAMBRE, J. 

                                                            09  TH    MAY  ,    2017. 
                                                 DATE    :
                                                  

ORAL JUDGMENT   

                 This   appeal   is   by   the   accused   persons   who   were

convicted by the learned Additional Sessions Judge, Nagpur vide

judgment and order dated July 1, 2003, whereby the accused

no.1/appellant no.1 was sentenced to suffer rigorous imprisonment for

seven years with fine of Rs.5,000/- for the offence punishable under

Section 307 of the Indian Penal Code and rigorous imprisonment for

three months with fine of Rs.100/- for the offence punishable under

Section 37(1) read with Section 135 of the Bombay Police Act and the

accused no.2/appellant no.2 was sentenced to suffer simple imprisonment

APEAL 464/03 2 Judgment

till the rising of the Court with fine of Rs.100/- for the offence punishable

under Section 323 of the Penal Code. In default of payment of fine of

Rs.5,100/-, the accused no.1 was sentenced to suffer rigorous

imprisonment of one year.

2. The prosecution story in brief, as could be narrated from the

material available on record, is as under:-

The accused no.2-Shankar is the maternal uncle of accused

no.1-Nilesh and were residing together. On September 11, 2001, in the

late midnight hours, when victim Sk. Kalam came to his house under the

influence of liquor and was shouting, the same was responded to by his

mother by scolding him in loud voice. Since the same was the regular

phenomenon and the people in locality were disturbed by the same, the

present appellants-accused assaulted victim Sk.Kalam and his mother.

The accused no.1 gave a knife blow to Sk.Kalam, whereas the accused

no.2 gave a slap to the mother of Sk.Kalam, resulting into the registration

of the crime in question.

3. Anisa, the sister of victim, went to the police station and the

police after hospitalizing Sk.Kalam, registered an offence punishable

under Section 323, 307 read with Section 34 of the Indian Penal Code

and Section 37(1) read with Section 135 of the Bombay Police Act and

APEAL 464/03 3 Judgment

charge-sheeted the accused persons under Section 173 of the Code of

Criminal Procedure.

4. The charge was framed against the accused persons vide

Exhibit 8. In support of the prosecution case, the prosecution has

examined P.W.1-Abedabi, mother of victim Sk.Kalam. Abedabi stated in

her evidence that she was assaulted by the appellant no.2 on her ear and

cheek and her son was assaulted by the accused no.2 by knife. She has

proved the report Exhibit 39. In her cross-examination, certain omissions

were brought on record in relation to the condition of her son, i.e. P.W.2-

Sk.Kalam, who was under influence of liquor. An omission is also

brought on record that Sk.Kalam had initially tried to assault Shankar, the

appellant no.2. She has admitted that she was prosecuted for the penal

offences in Amravati and there were various police complaints against her

from the people residing in the same vicinity.

5. P.W.2-Sk.Kalam, son of P.W.1, is examined at Exhibit 40.

P.W.2 deposed that he suffered a grievous stab injury due to the assault

by the appellant no.1, however, in his cross-examination, he has admitted

that the accused no.1-Nilesh gave a knife blow from his backside. He

then admitted that he used to consume liquor.

APEAL 464/03 4 Judgment

6. P.W.3-Dr.Prashant who is examined at Exhibit 49 has

narrated that the victim has suffered grievous injury, however, he has not

deposed that the nature of injuries was likely to cause the death of the

victim.

7. Another witness, P.W.9-Dr.Smita, however, in her evidence

narrated that had it been the case that the victim would not have been

given proper treatment, he would have died of the injuries in question.

There is a specific statement given by her in her cross-examination that

the injuries suffered by the victim are possible if a person falls on a sharp

object by force.

8. If the evidence of the doctors, viz.P.W.3-Dr.Prashant and

P.W.9-Dr.Smita is read in the backdrop of the cross-examination of the

victim, what can be inferred is that P.W.2 suffered grievous stab injury as

he was assaulted by the appellant no.1 from backside. P.W.2 also

admitted that at the relevant time, he was under the influence of liquor

and was shouting which has resulted into the gathering of the person in

and around the locality and requesting him not to shout. He then

admitted that he fell on the broken cement pipes which were installed so

as to block the entry of four wheelers.

APEAL 464/03 5 Judgment

9. The aforesaid piece of evidence if given cumulative effect,

raises a serious doubt as regards whether the injuries suffered by the

victim were either because of fall on the broken cement pipes which has

sharp edges or whether it was because of the stabbing attempted by the

accused no.1.

10. Though the learned Additional Public Prosecutor tried to

canvas that there is discovery of a knife under Section 27 and the said

knife was found to be stained with the blood having blood group O

RH+ve, i.e. the blood group of the victim, however, there is no

explanation as to why the issue of fall of the victim on the broken cement

pipes was not investigated into.

11. Apart from the above, what is required to be noted from the

evidence of P.W.2 is that he was in the habit of drinking liquor and

creating scenes in the locality. At the relevant time also, the victim, i.e.

P.W.2 was under influence of liquor and was shouting loudly which has

prompted the people from the locality asking him not to shout. Apart

from above, it could also be gathered from the evidence of P.W.1 and

P.W.2, the mother and the son, that both were shouting at the appellant

no.2 and the appellant no.2 has tried to control the P.W.2's behaviour and

his shouting, i.e. using filthy language, has prompted the appellant no.1

to give one single blow.

APEAL 464/03 6 Judgment

12. In the backdrop of above, what could be required to be

noted is that the accused no.1-Nilesh has undergone punishment of 6

Months and 15 Days, i.e. for a period of 3 Months and 9 Days before the

order of conviction and 3 Months and 6 Days after the order of conviction

is passed.

13. The age of the appellant no.1 at the relevant time appears to

be 20 years, a young boy, who perhaps appears to have been provoked by

the conduct of the P.W.2, who was shouting under the influence of liquor

which act was further corroborated by the P.W.1, mother of P.W.2.

14. From the above conduct, it cannot be inferred that the

appellant no.1 was of the intention to commit the crime, much less, a

crime punishable under Section 307 of the Penal Code. It cannot be

inferred from the available material that there was an apparent or the

specific intention of the accused to cause death of the victim.

15. The above observation, particularly the absence of the

intention to cause death and the conduct of P.W.1 and P.W.2 prima-facie

leads me to consider the case of the appellant no.1 to be one punishable

under Section 325 of the Indian Penal Code. The fact remains that the

appellant no.1 has caused a grievous hurt to the victim, i.e. P.W.2,

APEAL 464/03 7 Judgment

however, since the intention to commit the crime was absent, in my

opinion, the appellant no.1's case could be considered under Section 325

of the Penal Code. As such, I pass the following order.

O R D E R

I) The conviction of the appellant nos.1 and 2 is maintained.

II) However, the sentence imposed upon the the appellant no.1

for the offence punishable under Section 307 of the Indian Penal Code is

modified and the appellant no.1 is sentenced to suffer simple

imprisonment for a period for which he has already undergone the

sentence and to pay fine of Rs.2,000/- for the offence punishable under

section 325 of the Indian Penal Code.

III) The sentence imposed upon the appellant no.1 for the

offence punishable under Section 37(1) read with Section 135 of the

Bombay Police Act is maintained.

IV) Both the sentences shall run concurrently.

V) In default of payment of fine amounting to Rs.2,000/-, the

appellant no.1-accused no.1 shall suffer simple imprisonment for a period

of one month.

VI) The sentenced imposed by the learned Additional Sessions

Judge, Nagpur on the appellant no.2-accused no.2 is maintained.

VII) Seized muddemal property being worthless be destroyed

after appeal period is over.

 APEAL 464/03                               8                         Judgment


VIII)           The appeal stands disposed of in the aforesaid terms.



                                        JUDGE
APTE