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2013 DIGILAW 1751 (BOM)

Sanjay Sukhdeo Telore v. State of Maharashtra

2013-08-28

M.L.TAHALIYANI

body2013
JUDGMENT M.L. TAHALIYANI, J. 1. Heard the learned Counsel appearing for applicant and learned Additional P.P. appearing for Respondent-State. This revision application impugns the judgment and order passed by the learned Sessions Judge, Greater Mumbai, in Appeal No. 71 of 2012 dismissing the appeal filed by the applicant against the judgment of Adhoc Assistant Sessions Judge, Mumbai, in sessions Case No. 779 of 2011. The applicant has been convicted by the learned Adhoc Assistant Sessions Judge for offence punishable under Section 307 of IPC and has been sentenced to suffer R.I. for five years and to pay fine of Rs. 5000/- and in default to suffer S.I. for six months. 2. The learned Counsel Mr. Nitin Sejpal has submitted that if this Court is inclined to hear the revision application finally, the applicant may not press for application No. 246 of 2013 for bail. 3. After having gone through the evidence of P.W.1, it was indicated to learned Counsel Mr. Nitin Sejpal that the matter can be heard finally today as it cannot take more than 10 to 15 minutes to decide the matter finally. The application No. 246 of 2013 is, therefore, not pressed. 4. As far as the revision application is concerned, the case of the prosecution was mainly based on evidence of P.W.1 the injured. P.W.1 is married and the applicant is also married. While the appellant-applicant and his wife used to sell vegetables, the applicant developed relations with P.W.1. There was long standing affair between P.W.1 and the applicant. Over a period of time, the wife of applicant and husband of P.W.1, both came to know about affair. The other family members of P.W.1 and the applicant also came to know about the affair between P.W.1 and the applicant. P.W.1 was asked by her husband to stop meeting the applicant and accordingly, P.W.1 suspended her meeting with the applicant. The applicant, therefore, felt aggrieved and he was annoyed over the conduct of P.W.1. 5. The applicant had allegedly assaulted P.W.1 on the date of offence while she was traveling in taxi, but the weapon used by the applicant was ordinary shaving blade. P.W.1 sustained bleeding injury on her neck due to assault. The matter was reported to police and offence under Section 324 IPC was registered and charge-sheet for offence punishable under Section 307 of IPC was filed. P.W.1 sustained bleeding injury on her neck due to assault. The matter was reported to police and offence under Section 324 IPC was registered and charge-sheet for offence punishable under Section 307 of IPC was filed. As already stated, the applicant was tried by Adhoc Assistant Sessions Judge, Greater Mumbai. He was convicted for offence under Section 307 of IPC, his appeal has been dismissed. 6. I have gone through the evidence of P.W.1 the injured, P.W.7 - Medical Officer and P.W.10 - Medical officer who has personally examined P.W.1. At the outset, it may be mentioned here that P.W.10 has nowhere stated that the injury suffered by P.W.1 was sufficient to cause death in ordinary course of the nature. The injury is described as cut injury with the dimensions 6 cm x 3 cm x 1 cm. The evidence of P.W.1 does not, in any manner, indicate that the applicant wanted to commit murder of P.W.I or wanted to cause bodily injury to P.W.1 which was sufficient to cause death in ordinary course .of nature. There is insufficient evidence to ascertain intention of the applicant. As already stated, the medical officer has not stated anything about nature of injury. There is no evidence that the injury was sufficient to cause death in ordinary course of nature. In my considered opinion, therefore, the injury caused by the appellant was not with an intention to cause death or to cause bodily injury sufficient to cause death in ordinary course of nature. The circumstances also do not indicate, in any manner, that the applicant wanted to kill the deceased. As such it can be safely said that the applicant had voluntarily caused hurt by means of blade i.e. weapon used for cutting. There is no evidence that the injury caused by the applicant was a grievous injury as defined under Section 320 of IPC. As such the offence committed by the applicant will fall under Section 324 of IPC. The judgment and order passed by both the Courts below will have to be modified. 7. As far as the sentence is concerned, the learned Counsel Mr. Sejpal, submitted that this Court may show utmost leniency in the matter of sentence as it is P.W.1 who was behind the applicant. It is not that there was one sided love on the part of the applicant. 7. As far as the sentence is concerned, the learned Counsel Mr. Sejpal, submitted that this Court may show utmost leniency in the matter of sentence as it is P.W.1 who was behind the applicant. It is not that there was one sided love on the part of the applicant. The evidence of P.W.1 in examination in chief itself indicate that P.W.1 herself was equally responsible for affair between P.W.1 and the applicant. I am, therefore, inclined to take a lenient view in the matter. Hence, I pass the following order:- (i) The conviction of the applicant for the offence under Section 307 of IPC is set aside. (ii) The applicant is convicted of the offence under Section 324 of IPC and sentenced to suffer R.I. for a period of 18 months (Eighteen Months) and to pay fine of Rs. 10,000/-. In default, to undergo S.I. for One month. Set off in the sentence be given to the applicant for the period already undergone by him. (iii) Criminal Revision application stands disposed of accordingly. (iv) In view of final disposal of Revision Application No. 250 of 2013, Criminal Application No. 246 of 2013 does not survive and it is accordingly disposed of. Ordered accordingly.