Madhav S/O Bhujangrao Awachar And ... vs State Of ...
2017 Latest Caselaw 6878 Bom

 apeal473.02.J.odt                         1



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

                     CRIMINAL APPEAL NO.473 OF 2002

 1]       Madhav s/o Bhujangrao Awachar,
          Aged about 25 years,
          Occ: Agriculturist.

 2]       Bhujangrao s/o Panduji Awachar,
          Aged about 70 years,
          Occ: Agriculturist.

          Both R/o Kinkheda, Taluka Risod,
          District Washim.

          (Both appellants presently in jail.)              ....... APPELLANTS

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

          The State of Maharashtra, through
          the Police Station Officer, Police Station,
          Risod, District Washim.                            ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.V. Gupta, Senior Counsel for Appellants.
          Mrs. M.H. Deshmukh, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:               th
                            7    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               The   appellants   are   challenging   the   judgment   dated

14.08.2002 by 2nd Additional Sessions Judge, Washim in Sessions

Trial 101/1998, by and under which, the appellants are convicted

of offence punishable under section 307 read with section 34 of

Indian Penal Code and are sentence to undergo rigorous

imprisonment for five years and to pay fine of Rs.500/-.

2] Heard Shri A.V. Gupta, the learned Senior Counsel for

the accused and Mrs. M.H. Deshmukh, the learned Additional

Public Prosecutor for the State. Shri A.V. Gupta, the learned

Senior Counsel would urge that the evidence on record is too

sketchy and marred by inter se contradictions to be the basis of

conviction of offence punishable under section 307 of the Indian

Penal Code. According to the learned Senior Counsel, the

allegation that the injured complainant Nayabrao was passing by

the field of the accused and at that point in time, accused 1

Madhav dragged him to the field of the accused, is proved to be

an omission. The learned Senior Counsel would urge that the

version of the complainant that accused 1 Madhav dragged him to

the field of the accused, and then, while accused Madhav held the

complainant accused Bhjuangrao inflicted knife blow, is inherently

unreliable. The learned Senior Counsel invites my attention to the

admitted position that at the relevant time Bhujangrao was 65

years of age.

3] Shri Gupta, the learned Senior Counsel would urge

that although it is a settled legal position that the testimony of an

injured witness is on a higher pedestal than that of other

witnesses in the sense that the injury ordinarily lends an assurance

that the witness was present on the spot, the principle is not

inflexible. The learned Senior Counsel would urge that it is a

position brought on record that the relationship between the

complainant and the accused was strained. The complainant and

the accused were not on talking terms since 4 to 5 years prior to

the incident. In such a situation, the assumption that an injured

person would ordinarily not implicate the innocent and absolve

the guilty, may not unnecessarily apply, is the submission of the

learned Senior Counsel.

4] The learned Senior Counsel submits, in the alternate

and arguendo, that even if the evidence is accepted at the face

value, the accused could have been convicted at the most under

section 324 of the Indian Penal Code. According to the

prosecution, the 65 years old Bhujangrao is alleged to have been

armed with a rusted knife and inflicted a single blow on the

complainant. According to the complainant, accused 1 Madhav

was holding him when Bhujangrao inflicted the knife blow. It is

axiomatic, that Bhujangrao did not intend to kill. Even according

to the complainant, he was helpless. Nothing prevented Bhujanrao

from taking the assault to its logical end. It is not the case of the

prosecution, that the assault was interrupted or prevented due to

the intervention of some third person or external factor. I have

carefully scrutinized the record to ascertain if there is any material

on record to suggest that the assault was with the intent to kill.

I did not come across any matter which would suggest that

Bhujangrao are Madhav intended to kill the accused. Under the

circumstances, I am inclined to accept the submission of the

learned Senior Counsel for offence punishable under section 307

of I.P.C. is not made out against the accused.

5] I have given due consideration to the injury certificate

Exh.43. The injury certificate indeed makes a reference to the

injury being grievous. But then, in the circumstances of the case,

the injury will be grievous only if it is life endangering.

Grievous injury is defined in section 320 of Indian Penal Code.

The injury suffered by the complainant is not covered by any of

the eight categories. The injury might have been covered under

"eightly" were the injury life endangering. Other than the

certificate which is proved by P.W.5, there is no material on

record to throw light on the number of days of hospitalization, the

treatment received by the complainant post the initial medical aid,

the date of discharge, whether any surgical intervention was as a

fact required etc. I am not persuaded to accept the submission of

the learned A.P.P. that the injury is a grievous injury within the

meaning of clause eightly of section 320 of I.P.C.

6] I would therefore, set aside the conviction under

section 307 of the Indian Penal Code and instead convict the

accused for offence punishable under section 324 of the Indian

Penal Code, while maintaining the sentence of payment of fine.

7] The learned Senior Counsel would urge that the

accused are entitled to the benefit of probation under section 4 of

the Probation of Offenders Act, 1958. The learned Senior Counsel

invited my attention to the relatively recent judgment of the

Hon'ble Supreme Court in Ramesh Kumar alias Babla vs. State of

Punjab AIR 2016 SC 2858. The incident occurred due to an

internal dispute between the family. The complainant is the

younger brother of Bhujangrao the accused 2. The incident

occurred 20 years ago. Bhujangrao who is attributed with the role

of inflicting the single knife blow is now 85 years of age.

Madhav accused 1 is 41 years. The accused have filed on record

an affidavit stating that they are not involved in any altercation or

dispute between the complainant since last twenty years.

8] Considering the nature of the allegations and the

offence proved, and taking into consideration the fact that the

Bhujangrao is 85 years old and Madhav is now settled in life, I am

inclined to grant the benefit of section 4 of Probation of Offenders

Act.

9] I therefore, grant the benefit of the Probation of

Offenders Act to both the accused and direct that the accused be

released on executing appropriate bond before the Trial Court to

appear and receive sentence if and when called upon to do so

within six months and in the interregnum to keep the peace and

be a good behaviour.

10] The appeal is partly allowed in the above terms.

JUDGE

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