Sheikh Washim @ Sonu S/O Sheikh ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8464 Bom

 apeal101of16.odt                          1




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


                     CRIMINAL APPEAL NO.101 OF 2016


 Sheikh Wasim @ Sonu S/o. Sheikh 
 Ahmad Ansari,
 Aged about 24 years,
 R/o. Mhada Colony, Wanjari-layout,
 Nagpur                                                                 ...APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Yashodhara,
 District Nagpur.                                                    ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Mr. C.R. Thakur, counsel for the Appellant.
          Mr. P.S. Tembhare, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                        ROHIT B. DEO, J. 

DATE:

NOVEMBER 06, 2017

ORAL JUDGMENT:

Exception is taken to judgment and order dated

19.1.2016, in Sessions Trial 01 of 2015 delivered by Additional

Sessions Judge - 2, Nagpur, by and under which the appellant

(hereinafter referred to as "the accused") is convicted for offence

punishable under section 333 of the Indian Penal Code ("IPC" for

short) and is sentenced to rigorous imprisonment for 10 years and

to payment of fine of Rs. 5000/-.

2 Heard Shri. C.R. Thakur, the learned counsel for

appellant and Shri. P.S. Tembhare, the learned Additional Public

Prosecutor for respondent / State.

3 With the assistance of the learned counsels, I have

given my anxious consideration to the evidence on record and the

findings recorded by the learned Sessions Judge.

4 The finding of the learned Sessions Judge that the

appellant Sheikh Wasim @ Sonu inflicted one stab injury on the

person of Police Head Constable Subhash Ramchandra Jangle

(PW 4) does not suffer from any infirmity. The evidence of the

injured Subhash is corroborated by the evidence of Rajesh

Mahadevrao Tenburiya (PW 1).

5 I have noticed from the cross-examination of the

injured witness Subhash, that the cross-examination was

conducted as a ritualistic formality. I refrain from making any

further observations. Be that as it may, on a holistic appreciation

of evidence, I do not see anything wrong in the finding recorded

by the learned Sessions Judge that the appellant / accused

inflicted one stab injury on the person of Subhash (PW 4) and that

the said hurt was caused to PW 4 to deter him from discharging

duty as public officer. The prosecution has established on record,

that in the night intervening 23.8.2014 and 24.8.2014, PW 1 and

PW 4 who were on patrolling duty found the movements of the

appellant suspicious and attempted to apprehend the appellant /

accused Sheikh Wasim @ Sonu. Concededly, in an attempt to

avoid the clutches of law, the appellant inflicted the stab wound.

6 While the finding that the appellant assaulted the

policeman on duty is unexceptionable, I am not persuaded to

agree with the learned Sessions Judge that offence punishable

under section 333 of the IPC is established.

7 The injury certificate Exh. 42 makes a reference to a

stab wound 6 cm x 4 cm which is muscle deep on the left side of

the chest. Strangely, injury certificate refers to the nature of

object as hard and blunt. That apart, injury certificate does not

describe the nature of the wound. The injury certificate is

absolutely silent on whether the stab wound and the incised

wound on the right thumb are grevious injuries much less injuries

which are life endangering. The prosecution has not proved on

record the details of the treatment undergone by PW 4 - Subhash.

A solitary sentence in the evidence of PW 4 - Subhash that 'he was

hospitalized for a period of 6 to 7 days' is grossly insufficient to

attract the clause eighthly in section 320 of the IPC. The

statement in evidence of the injured witness that the weapon was

stuck in the chest appears to be highly doubtful.

8 It is true that the weapon is shown to have been

seized in the hospital. However, there is no evidence on record

and in particular it is not elicited from the doctor at the Mayo

Hospital that the weapon was stuck in the chest of the injured

witness and was removed in the hospital.

9 The conviction of the appellant accused for offence

punishable under section 333 of the IPC is manifestly

unsustainable. I am afraid, there is absolutely no evidence on

record to suggest that the injured witness Subhash suffered

grevious hurt within the meaning of section 320 of the IPC. The

conviction under section 333 of the IPC deserves to be set aside.

Instead, the appellant / accused is convicted under section 332 of

the IPC.

The appellant is sentenced to rigorous imprisonment for 2

years & 6 months. The appellant accused is in detention since

24.8.2014.

The appellant / accused be released forthwith if not

required in any other case.

Appeal is partly allowed.

JUDGE

RS Belkhede