Prafulla S/O Rambhau Shelke And 3 ... vs State Of Maharashtra
2017 Latest Caselaw 7247 Bom

 crapeal332of02.odt                        1




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


                     CRIMINAL APPEAL NO.332 OF 2002


 1        Prafulla s/o. Rambhau Shelke,
          aged about 30 years,

 2        Kishor s/o. Rambhau Shelke,
          aged about 35 years,

 3        Rajesh s/o. Rambhau Shelke,
          aged about 40 yars,

 4        Rambhau s/o. Tukaram Shelke
          aged about 60 years,

          All agriculturist,
          Resident of Tembhurni, 
          Taluka Chandur Railway,
          District Amravati                                          ....APPELLANTS


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


 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Chandur Railway,
 District Amravati
        ...RESPONDENT

 -------------------------------------------------------------------------------------------
          Mr. R.M. Patwardhan, Counsel for Appellants.
          Mr. H.R. Dhumale, Additional Public Prosecutor for 
          Respondent /State.
 -------------------------------------------------------------------------------------------




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  crapeal332of02.odt                   2



                                CORAM       
                                           :ROHIT B. DEO, J. 

DATE :18 th SEPTEMBER, 2017.

ORAL JUDGMENT

The counsel for the appellants states that appellant 4

has expired and the death certificate is placed on record. The

death certificate is marked Exhibit "X" for identification. The

appeal shall stand abated as regards appellant 4.

2 The appellants have been convicted under section 307

read with section 34 of Indian Penal Code ("IPC" for short) for

having assaulted Raosaheb Harinarayan Shelke. The appellants

have also been convicted for having caused grievous hurt to

Vinayak Harinarayan Shelke and Bhaiyya Harinarayan Shelke.

3 Today, the complainant Raosaheb Harinarayan

Shelke has filed an affidavit for himself and on behalf of his two

brothers Vinayak Harinarayan Shelke and Bhaiyya Harinarayan

Shelke. The affidavit is to the effect that the incident occurred in

the heat of passion. The appellant 4 has already expired on

20.12.2013. In paragraph 6 Raosaheb states that the accused and

the complainants / victims are cousin brothers and all grievances

have been settled amicably. The affidavit speaks that the accused

and the complainants / victims now have a healthy relationship

and intend to peacefully and happily stay together. A prayer is

made in paragraph 6 that in order to ensure that the accused and

the complainants / victims have healthy and a peaceful

relationship, the judgment impugned may be set aside.

4 The learned counsel for the appellants invites my

attention to the judgment of the Hon'ble Supreme Court in

Manohar Singh Vs. State of Madhya Pradesh and another,

(2014) 13 SCC 75 and in particular to paragraph 7 to 9 of the

said judgment. The learned APP, however, would urge that the

conviction is for offence punishable under section 307 of IPC and

the accused are in custody only for 19 days or thereabout

including pre-conviction detention. Faced with the obstacle posed

by the submission of the learned APP, the learned counsel for the

appellants Shri. R.M. Patwardhan would urge that in any event,

and even if the entire prosecution evidence is taken at face value,

no offence under section 307 is proved. At the most, the accused

could have been convicted for offence punishable under section

323 of IPC, is the submission.

5 The learned counsel for the accused invites my

attention to the injury certificate and the evidence of the Medical

Practitioner (PW11). The stab injury to Raosaheb which has

persuaded the learned Sessions Judge to record a finding that the

accused intended to kill Raosaheb is admitted by the Medical

Practitioner to be on non-vital part. It is not the case of the

prosecution, that the accused were prevented or interrupted in the

assault or that but for such external intervention the accused

would have taken the assault to the logical end. On a holistic

appreciation of the evidence, I am inclined to agree with the

submission of the learned counsel for the accused that even if the

evidence is taken at face value, the prosecution has not

established offence punishable under section 307 of the IPC. The

nature of weapon which allegedly caused the stab injury is

Jambiya which is seized and produced in the Court. Raosaheb

however deposes that the weapon shown to him in the Court is

not the weapon with which he was assaulted. The single stab

injury and the fact that the every injury is minor, in my opinion, is

one of the circumstance to suggest that there was no intent to kill.

The prosecution has not brought on record any other circumstance

to suggest that the accused had the common intention to kill

Raosaheb. In view of the nature of the injuries, it can not be even

said that the injuries suffered by Raosaheb are grievous injuries.

The submission of the learned APP that if the ingredients of

section 307 of the IPC are not established, the accused may be

convicted under section 325 or 326 of the IPC also can not be

accepted. If the injury is not shown to be life endangering, it is

difficult to accept the submission of the learned APP that the

accused can be convicted for offence punishable under section 325

or 326 of the IPC. The very sine quo non is that the injury must

result in grievous hurt. That, however, is not, what is established

by the prosecution.

6. I am inclined to set aside the judgment impugned to

the extend the accused are convicted of offence punishable under

section 307 of the IPC in so far as assault on Raosaheb is

concerned and instead convict the accused for offence punishable

under section 324 of the IPC.

In view of the affidavit filed on record on behalf of

Raosaheb, I am inclined to grant benefit of section 4 of the

Probation of Offenders Act to the appellants / accused.

Appellants / accused 1 to 3 shall appear before the Trial

Court and execute a bond to appear and receive sentence when

called upon during the next six months and in the meanwhile to

keep the peace and be of good behavior.

Appeal disposed of accordingly.

JUDGE

Belkhede