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2014 DIGILAW 2248 (BOM)

Sanjay Shankar Shahu v. State of Maharashtra

2014-11-07

M.L.TAHALIYANI

body2014
JUDGMENT : M.L. Tahaliyani, J. 1. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the respondent/State. The appellant has been convicted by the learned Additional Sessions Judge, Nagpur for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. Five Hundred in default to suffer simple imprisonment for one month. The appellant was tried along with accused No. 2 Deelip @ Vicky Shalikram Shahu. The accused No. 2 has been acquitted of the charge. 2. The incident in question had occurred on 26th January, 2012 at about 9.30 p.m. at MHADA Colony, Nagpur. It is alleged that complainant-P.W. 1 Ashish Karne was sitting near his house and was chitchatting with his brother viz. Atul Karne. In the meantime, the appellant came there and assaulted P.W. 2 by knife and caused injury to his abdominal area. Injured P.W. 2 was taken to hospital and was admitted in the hospital and was discharged on 19th March, 2012. He was examined and treated by medical officers of Mayo Hospital. 3. First Information Report was lodged on the complaint made by P.W. 1 against the appellant and one of his friends. During the course of investigation it was revealed that accused No. 2 Vicky was also involved in the alleged crime. Spot Panchnama was drawn, statements of the witnesses were recorded and after completion of investigation charge-sheet was filed in the Court of Magistrate. After committal of the case, the learned Additional Sessions Judge had framed charge under Section 307 read with Section 34 of the Indian Penal Code against the appellant and accused No. 2 Vicky. As already stated, accused No. 2 has been acquitted. As far as appellant is concerned, the evidence of P.W. Nos. 1 and 2 clearly shows that the appellant was involved in the offence of assault. The evidence of P.W. 4 also shows that P.W. 2 was assaulted by somebody on the night of the incident. The evidence of Medical Officer examined by the respondents also establishes that P.W. 2 was indoor patient from 26th January, 2012 to 19th March, 2012. Though the medical officers who had examined and treated P.W. 2 had not been examined, the appellant had not challenged the injuries suffered by P.W. 2. The evidence of Medical Officer examined by the respondents also establishes that P.W. 2 was indoor patient from 26th January, 2012 to 19th March, 2012. Though the medical officers who had examined and treated P.W. 2 had not been examined, the appellant had not challenged the injuries suffered by P.W. 2. P.W. 2 had stab injury over left iliac region measuring 3 cm x 2 cm through and through. The medical officer had opined that the injury was of serious nature. 4. It has come on record that P.W. 2 was under the influence of liquor at the time of incident. It has also come in the evidence that P.W. 2 had been abusing one Shahu. At this stage, it is necessary to be stated here that the surname of the appellant is Shahu. 5. Before I proceed, I find it necessary to mention here that to establish charge under Section 307 of the Indian Penal Code, the proof of nature of injury by itself may not be sufficient. The respondents were under obligation to establish by circumstantial evidence that the appellant intended to cause death of the deceased or intended to cause injuries of the nature sufficient to cause death in ordinary course of the nature. In the present case, the evidence clearly established that the appellant had caused injury to P.W. 2 by means of a sharp weapon. P.W. 2 was unable to follow his ordinary pursuits due to bodily pain caused by the injury for a period of more than 21 days. Therefore, the injury caused to P.W. 2 was grievous hurt within the meaning of Section 320 of the Indian Penal Code. The weapon used was sharp weapon. The question which needs determination in the present appeal is, whether the appellant had requisite intention. I have taken note of the fact that P.W. 2 was under the influence of liquor and he was abusing Shahu. It clearly appears that the appellant was offended because of the filthy abuses hurled by P.W. 2 and therefore, had assaulted P.W. 2. In the circumstances, it is not possible to say that the appellant wanted to cause death of the deceased or that he intended to cause bodily injury sufficient to cause death in ordinary course of the nature. It clearly appears that the appellant was offended because of the filthy abuses hurled by P.W. 2 and therefore, had assaulted P.W. 2. In the circumstances, it is not possible to say that the appellant wanted to cause death of the deceased or that he intended to cause bodily injury sufficient to cause death in ordinary course of the nature. Therefore, in my opinion, there are no circumstances to indicate that had P.W. 2 died the appellant would have been guilty of the offence of murder. In the present circumstances, even death of P.W. 2 could not have been established charge under Section 302 of the Indian Penal Code against the appellant. It, therefore, follows that the charge under Section 307 of the Indian Penal Code could not be established by the respondents. However, since the weapon used by the appellant was a sharp weapon and since P.W. 2 was admitted as indoor patient for more than 21 days, the offence committed by the appellant falls under Section 326 of the Indian Penal Code. 6. Though the person convicted of the offence punishable under Section 326 of the Indian Penal Code also can be sentenced to suffer life imprisonment, two offences, one punishable under Section 326 of the Indian Penal Code and other punishable under Section 307 of the Indian Penal Code are distinct in nature inasmuch as 'intention' part of the offence is concerned. The offence punishable under Section 326 of the Indian Penal Code involves the act of accused which is 'voluntary' in nature whereas in the case for the offence punishable under Section 307 of the Indian Penal Code the prosecution is always under obligation to establish the requisite intention. Since in the present case, this Court has opined that the appellant did not have intention to cause death of P.W. 1 nor had he intention to cause injury to P.W. 2 of the nature which was sufficient to cause death in ordinary course of the nature, I am inclined to set aside the order of the trial Court convicting the appellant for the offence punishable under Section 307 of the Indian Penal Code. In my opinion, the appellant had committed offence punishable under Section 326 of the Indian Penal Code. The appellant has remained in custody from 26th January, 2012 till today. In my opinion, the appellant had committed offence punishable under Section 326 of the Indian Penal Code. The appellant has remained in custody from 26th January, 2012 till today. In my opinion, the imprisonment already undergone by the appellant will meet the ends of justice in the facts and circumstances of this case. I, therefore, pass the following order. "i. The appeal is partly allowed. ii. The judgment and order passed by the learned trial Court, convicting the appellant for the offence punishable under Section 307of the Indian Penal Code and sentence imposed by the trial Court, is set aside. iii. The appellant is convicted for the offence punishable under Section 326 of the Indian Penal Code and is sentenced to suffer imprisonment for the period already undergone by him and to pay a fine of Rupees Five Hundred in default to suffer simple imprisonment for one week." The appeal accordingly stands disposed of.