Bombay High Court
Manohar @ Mayur Chipalekar vs State Of Maharashtra on 4 October, 2023
Bench: Bharati Dangre
2023:BHC-AS:29289
(13)IA-3465-2023.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.3465 OF 2023
IN
CRIMINAL APPEAL NO.1054 OF 2023
Manohar @ Mayur Chipalekar ] .. Applicant
vs.
State of Maharashtra ] .. Respondent
Mr.Anil Shitole for the Applicant.
Mr.S.R. Agarkar, APP for the State.
CORAM : BHARATI DANGRE, J
DATE : 4th October, 2023.
P.C.
1] The Interim Application is taken out by the convicted Appellant
seeking suspension of sentence and securing his release on bail,
during the pendency of the Appeal.
2] Heard the learned counsel for the Applicant and the learned APP
for the State.
The Applicant stand convicted for committing an offence
punishable under Section 307 of the IPC and he is sentenced to suffer
R.I. for 3 years and fine of Rs.5000/-, and in default directed to suffer
S.I. for one month.
(13)IA-3465-2023.doc
3] The case of the prosecution which has surfaced before the
Sessions Court at Panvel through PW 2, the injured, is to the effect that
on 07.05.2014, when he had visited the Grampanchayat Office, on his
driver parked the vehicle, he reached near the Office and started
ascending the steps, at that relevant time, the present Applicant
alongwith Preetam Tambde followed him. As per PW 2 the present
Applicant pushed him and caught hold of his collar from behind and
he was stabbed by means of a knife in his stomach. Similarly, another
blow was mounted on his right hand, which landed on his finger. He
started bleeding from the stomach and raised cry for help, pursuant to
which, the Gram Sevak Prakash Mhatre and Shiva Chiklekar
approached him and Mayur and Preetam are alleged to have fled away
from the spot.
The injured was taken to Metro Hospital where he was given
preliminary treatment, thereafter he was taken to Lifeline Hospital,
Panvel, where he continued to be admitted as indoor patient and took
treatment for 10 days.
4] In order to establish its case, the prosecution has examined 8
witnesses, which include, the informant himself alongwith his driver.
The Medical Officer is examined as PW 4.
In order to corroborate the version of the informant/injured, the
(13)IA-3465-2023.doc
driver PW 3 stepped in witness box , but he resiled from the statement,
the learned APP sought permission to cross-examine the witness and
he denied the suggestion that when he heard the shouts of Rajesh,
and he saw in that direction, he had seen the Applicant and other
accused running towards from Grampanchayat office.
5] The injuries sustained by PW 2 are corroborated by PW 4, a
surgeon working in Lifeline Hospital, Panvel, who examined him on
07.05.2014, as the patient was referred to him and he noticed stab
injury on right side of upper part of abdomen, of 2.5 inch in length and
which was actively bleeding.
PW 4 specifically depose that CT scan of abdomen and pelvic
reflected superficial haematoma in right anterior abdominal wall
measuring 10 x 6.4 x 3.8 mm. He also deposed that the injury was
compressing underlying liver capsule as well as liver tissue, and it was
grievous in nature. According to him the injury was sufficient to cause
his death.
The injury certificate issued by him alongwith notes of clinical
examination is marked as Exhibit 50. He also deposed that the injury
was possible by sharp object and when he was shown a knife, he
answered in the affirmative that the injury could be caused by Article 'A'.
(13)IA-3465-2023.doc
6] The learned counsel for the Applicant has stressfully relied upon
the cross-examination of PW 4 where on a suggestion that this injury
could be caused be on fall on sharp object, he has answered in the
affirmative.
The learned counsel would submit that the prosecution has failed
to prove its case beyond reasonable doubt as it did not conclusively
establish the recovery of the weapon and most importantly no motive is
established. Apart from it, it is his submission that the other Accused
Nos.1 and 3 stand acquitted of the said offence.
7] On perusal of the impugned Judgment, I do not notice any such
legal infirmity, since the learned Judge has rightly appreciated the
evidence of injured (PW 2) read with the evidence of Medical
Officer(PW 4) and arrived at a conclusion that an act is committed with
an intention or knowledge, that it would result into death and an offence
under Section 307 is attracted. Since the ingredients of the offence
were made out with the specific deposition of PW 4 that the said injury
was sufficient to cause death, finding of guilt has rightly been recorded
against the Applicant and the other two stands acquitted since there
was no role attributed to them.
8] It is well settled position of law, as laid down by the Apex Court in
(13)IA-3465-2023.doc
the case of Preet Pal Singh vs. State of U.P. (2020) 8 SCC 645 that
upon conviction having been awarded, the presumption of innocence
is not available and until and unless there is perversity in the finding
rendered by the Court which has convicted the Accused, the power
under Section 389 do not deserve to be exercised, merely on the
ground that the sentence imposed is of minuscule nature or for a fixed
period of time, and only on the ground that Appeal is admitted by the
court.
Since prima facie I do not find any perversity in the impugned
order, as the learned Judge has rightly recorded that the Applicant is
the author of the injuries and the sentence of imprisonment for a period
of three years is imposed, I do not deem it appropriate to suspend the
sentence.
However, I deem it necessary that the hearing of the Appeal is
expedited once the Record and Proceedings is received.
For the above reasons, Interim Application is rejected.
9] The learned counsel for the Applicant, on instructions make a
statement that the Applicant shall surrender before the trial Court within
a period of four weeks from today. If there is failure to do so, the
Investigating Officer shall effect his arrest.
[BHARATI DANGRE, J]
