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2006 DIGILAW 1808 (BOM)

KALURAM NIVRUTTITAMBE v. State of Maharashtra

2006-11-10

V.M.KANADE

body2006
JUDGMENT :- The applicant was convicted by the Assistant Sessions Judge, Pune, in Sessions Case No. 72 of 1987 for the offences punishable under sections 307 and 326 of the Indian Penal Code. Against the said order, he has preferred an appeal in the Session Court, Pune, being Criminal Appeal No. 330 of 1987. The Sessions Court reduced the sentence and altered the conviction from sections 307 and 326 to sections 326 and 324, respectively. Being aggrieved by the said order passed by the Sessions Judge, he preferred this criminal revision application. 2. The prosecution case in brief is that the applicant stabbed the complainant Meghraj on 8th October, 1986. When the complainant's friend tried to intervene in the said quarrel, he also received stab injury from the applicant. Accused was thereafter arrested and he was convicted by the Assistant Sessions Judge and thereafter, the conviction was altered by the Sessions Court in appeal. 3. The learned Counsel appearing on behalf of the applicant has submitted that considering the nature of injury which was found on the complainant, the offence under section 326 was not made out and at the most, the applicant may be convicted for the offence punishable under section 324 of the Indian Penal Code. The learned Counsel further submitted that in otherwise, looking at the clear facts and circumstances of the case, this is a fit case where the applicant be granted the benefit of Probation of Offenders Act since more than 20 years have passed from the date of the incident and that the injury on the person of the complainant was not on a vital part but was on his shoulder and therefore, section 326 was not attracted. 4. I have perused the judgment and order passed by the trial Court as also by the lower Appellate Court. It is an admitted position that the injury that was caused to the complainant was not on a vital part, it was on the shoulder and the injury was caused on the mandible. Considering this aspect, in my view, the lower Appellate Court erred in convicting the accused for the offence punishable under section 326 particularly when the Sessions Court had not accepted the prosecution regarding the discovery of the knife by the accused. The conviction, therefore, is altered from section 326 to section 324. Considering this aspect, in my view, the lower Appellate Court erred in convicting the accused for the offence punishable under section 326 particularly when the Sessions Court had not accepted the prosecution regarding the discovery of the knife by the accused. The conviction, therefore, is altered from section 326 to section 324. The incident in question had taken place on 8th October, 1986 and according to the prosecution, there was a quarrel between the complainant and the applicant and according to the prosecution, the applicant suspected that the complainant Meghraj had illicit relation with his sister. The applicant was released on bail during the pencency of the appeal. During this period, he has not come to the adverse notice of the police and no complaint has been received from the complainant. In view of these facts and circumstances, in my view, the applicant is entitled to be given the benefit of section 4 of the Probation of Offenders Act, 1958. 5. Hence, the revision application is allowed. The petitioner is convicted for the offence punishable under section 326 read with section 324 of the Indian Penal Code. However, he is given the benefit of section 4 of the Probation of Offenders Act, 1958. The petitioner to execute a Bond of good behaviour for the period of one year from the date of this order in the sum of Rs. 5000/-. In view of the benefit of section 4 of the Probation of Offenders Act having been given to him, the petitioner shall not be sent to jail for the remaining part of the sentence. 6. The revision application is allowed in the above terms. Application allowed.