Jagdish Tarachand Gaud vs The State Of Maharashtra
2023 Latest Caselaw 6400 Bom

                                         {1}         CRI.APPEAL 97 OF 2023 & ANR.


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD
                        904 CRIMINAL APPEAL NO.97 OF 2023
                              WITH APPEAL/979/2022
                       AKASH RUSHIKUMAR TEKUR
                                 VERSUS
               THE STATE OF MAHARASHTRA AND OTHERS
                                     ...
     Advocate for Appellant Appeal/97/2023 : Mr.Bhushan S. Dhawale
               APP for Respondent no.1-State : Mr.S.D.Ghayal
 Advocate for Respondent no.2 to 5 in Appeal/97/2023 and for Appellant in
            Appeal/979/2022 : Mr.S.P.Sonwane h/f. Mr.P.P.More
                                     ...
                        CORAM : SMT. VIBHA KANKANWADI &
                                     ABHAY S. WAGHWASE, JJ.

                               DATE :    6th July, 2023

 PER COURT :-

1. Present appeal has been filed challenging the acquittal of the

original accused nos.1 to 4 from the offence punishable under Section 307

of the Indian Penal Code (IPC). We would like to reproduce prayer clause

'C' for better understanding of the challenge.

"C) The judgment and order dated 30-11-2022 in Sessions Case No.56 of 2019 passed by the Ld. Sessions Judge, Jalna acquitting the respondents 2 to 5 from the offence u/s 307 of Indian Penal Code, 1860, may kindly be set aside and the respondents no.2 to 5 be convicted u/s 307 r/w 34 of Indian Penal Code, 1860, and may kindly be sentenced to life imprisonment."

2. Present appellant is the original informant who can be said to be the

"victim" within the definition of Section 2(wa) of the Code of Criminal

Procedure (Cr.P.C.).

{2} CRI.APPEAL 97 OF 2023 & ANR.

3. Heard learned Advocate for the appellant, learned APP for the

respondent no.1-State and learned Advocate for respondent nos.2 to 5.

4. It has been submitted on behalf of the appellant, after taking us

through the material which was before the learned trial Judge, that as per

the prosecution story, the incident had taken place at around 10:30 a.m. on

28-07-2017. Informant i.e. present appellant alongwith his friend

Sudarshan Choudhary had gone to a plot which was owned by Sudarshan.

They saw crowd and therefore, when there they found that Cadestral

Surveyor was measuring the plot and hence, Sudarshan had taken

objection that as he has not been issued with the notice, the measurement

should not be proceeded further. Accused nos.1 to 3 were present there.

After Sudarshan had taken objection, all of them started abusing

Sudarshan as to why he is objecting for the measurement. When

Sudarshan replied that, he being the owner of the neighbouring plot, the

measurement cannot be done in his absence or without notice to him,

accused no.1 Jagdish gave signal to his sons and then the sons took

wooden sticks and started assaulting Sudarshan. When informant tried to

intervene and rescue his friend, at that time, accused no.1 Jagdish took out

pistol from his waist and fired two bullets towards Sudarshan. Sudarshan

dodged and then informant proceeded towards accused no.1 Jagdish to

take away the pistol, but at that time, accused no.1 Jagdish fired a bullet

towards him. The bullet hit left thigh of the appellant as a result of which

{3} CRI.APPEAL 97 OF 2023 & ANR.

he fell down and then two sons of accused no.1 i.e. accused nos.2 and 3

then assaulted informant by kick blows. It is then stated that the wife of

accused no.1 i.e. accused no.4 also assaulted informant by means of wood.

The people who gathered at the spot took the informant and his friend to

hospital and then the FIR was lodged.

5. The learned Advocate for the appellant submits that the trial Court

has held that accused no.1 had fired a shot which had caused injury to the

left thigh of the informant but has come to the wrong conclusion that

offence under Section 307 of the IPC has not been made out but it is

offence under Section 326 of the IPC. The common intention has not been

considered as against accused nos.2 to 4 and therefore, re-appreciation of

the evidence is required. He, therefore, prayed for admission of the matter.

6. At the outset, we would like to say that we are making the scrutiny

of the evidence just to see whether the appeal under Section 372 of the

Cr.P.C. can be admitted. For that purpose, we will not go deep into the

aspect as to whether the learned trial Judge was correct in holding accused

no.1 guilty of committing offfence under Section 326 of the IPC, but at the

same time, we would see that while holding so whehter justifiable reasons

have been given to lesser the said offence. When the trial Court has

accepted the fact that it is proved by the prosecution that such incident had

taken place and then the ocular evidence is supported by the medical

{4} CRI.APPEAL 97 OF 2023 & ANR.

evidence which shows that the informant had sustained bullet injury to his

left thigh, then it is required to be seen as to whether it would fall under

Section 307 or 326 of the IPC and whether the trial Court was justified in

observing that accused no.1 had no intention to kill the informant. It is

also required to be considered that when the fact has been brought on

record that two shots were fired towards witness Sudarshan but he has

dodged and therefore no injury was caused to him by the said bullets,

whether those facts would prove offence under Section 307 of the IPC or

not. The position of law is clear that there may not be an injury when it is

an offence under Section 307 of the IPC. From this angle, definitely the

evidence is required to be re-appreciated and therefore, when accused no.1

has been held guilty for offence under Section 326 of the IPC, whether he

could have been held guilty for the offence under Section 307 of the IPC

deserves to be considered in the appeal.

7. As regards accused no.4 is concerned, the evidence would show that

her presence itself is doubtful and at no earlier point of time allegations are

that she took part in abuses or objections are against her. It is a case of no

evidence. Therefore, we do not find that the present appeal deserves to be

admitted as against respondent no.5 - original accused no.4.

8. As against respondent nos.3 and 4 i.e. original accused nos.2 and 3,

it is to be noted that the trial Court has held them guilty of the offence

{5} CRI.APPEAL 97 OF 2023 & ANR.

under Section 324 read with Section 34 of the IPC and has released them

on probation of good conduct under Section 360 of the Cr.P.C. for a period

of one year. Now, the prayer herein is that they ought to have been held

guilty for the offence under Section 307 read with 34 of the IPC as accused

no.1 has shot the bullets. It can be observed that accused nos.2 and 3

might be having knowledge that accused no.1 was holding pistol but it

cannot be said with certainty that they had the knowledge that it would be

used. For invoking offence with common intention i.e. Section 34 of the

IPC, prior meeting of mind is necessary and it cannot be restricted to

knowledge only. Therefore, even if the knowledge would have been

brought on record yet the facts do not show that accused nos.2 and 3 were

having knowledge that the said pistol would be used by their father.

Therefore, no case is made out for admitting the appeal as against

respondent nos.3 and 4 i.e. original accused nos.2 and 3. With the

aforesaid observations, we pass the following order :

ORDER

(I) The appeal stands dismissed as against respondent nos.3 to 5 i.e. original accused nos.2 to 4.

(II) The appeal is "admitted" as against respondent no.2 - original accused no.1.

{6} CRI.APPEAL 97 OF 2023 & ANR.

(III) Issue notice to respondent nos.1 and 2. Learned APP waives service of notice for respondent no.1. The matter be tagged with Criminal Appeal No.979 of 2022, which has been preferred by original accused no.1. Mr.S.P.Sonwane, learned Advocate holding for Mr.P.P.More, learned Advocate waives service of notice for respondent no.2.

(IV) In view of the decision in Smt.Praneeta Prakash Navage v. The State of Maharashtra and Others (Criminal Application No.1129 of 2012 in Criminal Appeal No.1548 of 2011 with companion matter, decided at Principal Seat on 01-08-2012), respondent no.2 to file undertaking that he would remain present whenever directed in connection with Criminal Appeal No.97 of 2023. We are also taking note of the fact that, he being appellant in Criminal No.979 of 2022, his sentence has been suspended and he is directed to be released on bail by order dated 22-12-2022.

(V) Record and Proceedings with paper book has been received in Criminal Appeal No.979 of 2022.

               ( ABHAY S. WAGHWASE )            ( SMT. VIBHA KANKANWADI )
                     JUDGE                                JUDGE
 SPT