The State Of Maharashtra vs Masumshaha Dadaminya Pathan
2021 Latest Caselaw 13162 Bom

                                                  908-CriAppeal-427-2021+
                                    -1-

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                  908 CRIMINAL APPEAL NO. 427 OF 2021
                 WITH APEAL/423/2021 WITH ALS/64/2021

                  SADIK SHAHA S/O. YUNUS PATHAN
                                VERSUS
            THE STATE OF MAHARASHTRA AND ANOTHER
                                  .....
                Advocate for Appellant : Mr. V. D. Gunale
          APP for Respondent No.1 : Mr. Govind O. Wattamwar
                                  .....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATED : 15th SEPTEMBER, 2021

PER COURT:-

1. Heard.

2. By judgment and order of conviction dated 31.05.2021, the

Additional Sessions Judge-6, Jalna in Sessions Case No. 100 of 2019,

has convicted the accused for the offence of culpable homicide not

amounting to murder punishable under Section 304 Part II of IPC and

sentenced to suffer rigorous imprisonment for five years. Being

aggrieved by the same, the informant Sadik Shaha s/o Yunus Pathan

has preferred Criminal Appeal No. 427 of 2021 for enhancement of

the sentence with a prayer to modify the conviction of the accused as

for the offence punishable under Section 302 of IPC instead of Section

304 Part II of IPC.

908-CriAppeal-427-2021+

3. Similarly, the State has also preferred an appeal bearing

Criminal Appeal No. 423 of 2021 for enhancement of the sentence

and also filed an application for leave to appeal bearing ALS No. 64 of

2021 against the same judgment and order of conviction passed by

the Additional Sessions Judge-6, Jalna by treating the order as an

acquittal of the accused for the offence punishable under Section 302

of IPC.

4. It appears that the learned Judge of the trial court though tried

the accused for the offence punishable under Section 302 of IPC,

however, at the conclusion of the trial, convicted the accused for

having committed lesser offence punishable under Section 304 Part II

of IPC i.e. culpable homicide not amounting to murder. In view of the

same, it is not necessary to consider the said order as an acquittal

under Section 302 of IPC for which an application for leave to appeal

is necessary.

5. Learned APP thus seeks time to take specific instructions in this

regard.

6. Stand over to 29.09.2021.

(SHRIKANT D. KULKARNI, J.) (V. K. JADHAV, J.) vre