Rahul S/O. Haridas Borkar vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 8710 Bom

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


             CRIMINAL REVISION APPLICATION (REVN ) NO.77 OF 2017
                                               


     Rahul s/o Haridas Borkar
     aged about 24 years, 
     Occ. Student, R/o Near 
     Petrol Pump, Lahan Umri, 
     Akola.                                            ... Applicant

     -vs- 

     State of Maharashtra,
     Thr. Police Station Officer, 
     Civil Lines, Akola 
     Tahsil and District Akola.                        ... Non-applicant. 


         Shri A. R. Deshpande, Advocate for applicant. 
         Shri A. A. Madiwale, Addl. Public Prosecutor for non-applicant/State.


                                             CORAM  : A.S.CHANDURKAR, J.

                                              DATE     : November 15, 2017

        Oral Judgment : 


                          Heard. 

                        Admit. 

In view of order dated 21/09/2017 the learned counsel for

the parties have been heard at length.

The applicant is accused No.3 against whom First Information

Report No.49/2012 for the offence punishable under Sections 147,

148, 149, 307, 504 of the Indian Penal Code (for short, the Penal

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Code) read with Sections 4 and 25 of the Arms Act read with

Section 135 of the Maharashtra Police Act, 1950 has been

registered. After completion of investigation the charge-sheet

came to be filed. The applicant moved an application below

Exhibit-36 before the trial Court under Section 227 of the Code of

Criminal Procedure, 1973 (for short, the Code) for his discharge

from the offence punishable under Section 307 of the Penal Code

and Sections 4 and 25 of the Arms Act. By order dated

31/05/2017 this application was rejected. Being aggrieved the

present revision application under Section 397 read with Section

401 of the Code has been filed.

2. It is submitted on behalf of the applicant that on perusal of

the First Information Report as well as other material filed along

with charge-sheet, no offence under Section 307 of the Penal Code

has been made out. The specific allegation of assaulting the

informant by way of a knife is attributed to accused No.1. In so far

as present applicant is concerned, it is stated that he was present

along with other accused persons and it is further stated that the

accused persons had rivalry against the informant. They were also

holding sticks in their hands. On the basis of injury report of the

informant it is submitted that the informant suffered only one

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injury as a result of the assault by a knife. No injuries were

suffered by the informant at the instance of the present applicant

and hence he needs to be discharged with regard to the offence

punishable under Section 307 of the Penal code. Reliance is

placed on the decision in Sarju Prasad v. State of Bihar AIR

1965 SC 843 and it is submitted that in absence of any other

injury on the informant, the trial Court ought to have allowed the

application below Exhibit-36.

3. The application is opposed by the learned Additional Public

Prosecutor. It is submitted that on consideration of the First

Information Report as well as other statements recorded, it is clear

that the applicant was present on 17/02/2012 when the alleged

assault on the informant took place. These statements record the

presence of the applicant and hence his implication is proper.

Considering the nature of injuries sufferred by the informant, the

applicant does not deserve to be discharged in so far as offence

under Section 307 of the Penal Code is concerned.

4. Perused the First Information Report as well as other material

placed on record along with charge-sheet. The statement of the

informant dated 17/02/2012 reveals that the applicant along with

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other accused persons assaulted the informant when he told the

group that a particular candidate had got elected in the election of

the Municipal Corporation. He has subsequently stated that

accused No.1 assaulted him with a knife in presence of two

witnesses Satish Patil and Ankush Agrawal. He was then taken for

medical aid. Statement of Ankush Agrawal indicates that accused

No.1 assaulted the informant from the backside with a knife. The

present applicant along with others were present and they had

pelted stones. Similar statement has been recorded by other

witnesses. The injury report of the informant indicates one stab

injury suffered by him. Besides this there is no other injury

sustained by him. This is the material available in so far as the

applicant herein is concerned.

5. In Sarju Prasad (supra) it was held that for the

purposes of offence under Section 307 of the Penal Code being

made out, the requisites of Section 300 of the Penal Code have to

be satisfied. In absence of any requisite intention or knowledge of

the accused, charge under Section 307 of the Penal Code would

not be made out. In the light of aforesaid law if the material on

record is considered it is clear that the knife injury is not attributed

to the present applicant who is accused No.3. Same is attributed

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to accused No.1. The statements of witnesses indicate that the

applicant and others were abusing the informant and pelting

stones. However there is no injury suffered as a result of this

pelting of stones. The learned Judge of the Sessions Court despite

observing that what is required to be considered was whether

there exists a sufficient ground for proceeding against the

applicant, failed to take into consideration the material on record.

By doing so it erred in rejecting the application. The applicant is

thus entitled to discharge from the offence punishable under

Section 307 of the Penal Code as well as Sections 4 and 25 of the

Arms Act.

6. In view of aforesaid the following order is passed :

(i) The order dated 31/05/2017 passed below Exhibit-36

thereby refusing to discharge the applicant for the

offence punishable under Section 307 of the Penal Code

and Sections 4 and 25 of the Arms Act is set aside.

(ii) Application below Exhibit-36 is partly allowed and the

applicant is discharged only with regard to offence

punishable under Section 307 of the Penal Code and

Sections 4 and 25 of the Arms Act.

                 (iii)         It is clarified that observations made in this order are




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only for deciding the present challenge. The trial shall

be conducted on its own merits and in accordance with

law.

(iv) Revision application is partly allowed in aforesaid

terms.

JUDGE

Asmita