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2016 DIGILAW 172 (BOM)

SHALIKRAM v. STATE OF MAHARASHTRA

2016-01-27

A.B.CHAUDHARI

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JUDGMENT : A.B. Chaudhari, J. 1. Being aggrieved by the judgment and order dated 30-11-2002 in Sessions Case No. 90/1996 passed by the learned 1st Ad hoc Additional Sessions Judge, Gadchiroli, convicting the appellant for the offence punishable under section 307 of the Indian Penal Code and sentencing him to suffer R.I. for seven years and to pay a fine of Rs. 1,000/-, the present Appeal was filed by the appellant. 2. In support of the Appeal, Shri N.R. Saboo, learned counsel for the appellant vehemently contended that the evidence of PW 1-Laxman, the complainant, is totally unbelievable and untrustworthy and should have been rejected at the threshold by the learned Sessions Court. According to him, the solitary testimony of PW 1-Laxman could not have been relied on for basing the conviction for offence punishable under section 307 of the Indian Penal Code. He then submitted that the medical evidence is contrary to the ocular testimony of PW 1-Laxman and, therefore, an order of acquittal should have been recorded by the learned Sessions Judge. He further submitted that the offence punishable under section 307, Indian Penal Code is not at all proved by the prosecution which, at the most could be of a lesser gravity. He lastly submitted that the offence in question allegedly took place in the year 1996 and, therefore, the appellant now need not be sent to jail, that too after efflux of so many years. 3. Per contra, Ms. N.P. Mehta, the learned Additional Public Prosecutor, opposed the Appeal tooth and nail and supported the impugned judgment and order. She submitted that the learned Sessions Court did not commit any mistake in believing the solitary testimony of PW 1-Laxman, particularly when the testimony is trustworthy and no infirmity whatsoever could be found. There is no law that solitary testimony cannot be believed by the Courts of law. She then submitted that giving electric current in a lonely field in the midnight, when the complainant was sleeping, could have certainly proved to be dangerous and detrimental to the life of the complainant, and as such, the conviction is legal, correct and proper. She ultimately prayed for dismissal of the Appeal, since the offence has been proved to the hilt. 4. She ultimately prayed for dismissal of the Appeal, since the offence has been proved to the hilt. 4. I have perused the impugned judgment and order made by the Sessions Court and the evidence of PW 1-Laxman, so also his cross-examination and I find no infirmity whatsoever in his evidence. The submission made by Mr. Saboo that there is inconsistency between the oral evidence and medical evidence inasmuch as Laxman stated in his cross-examination that the injury was at his right leg. The fact of receiving burn injury on his right leg by an electric current is fully corroborated by the medical evidence. Insofar as the midnight incident is concerned, it is the case of the prosecution that there was enmity between the appellant and the complainant, over the bullocks, and that is the reason why the appellant wanted to teach a lesson to the complainant and, therefore, chose the time of midnight, with live wire in his hands, gave a shock on the right leg, while Laxman was sleeping. The submission that in the midnight the appellant could not be identified must fall to the ground for the simple reason that enmity between them was the reason and both of them hails from the same place, knowing each other fully. The other witnesses were not examined from the same village in order to verify the truthfulness of the incident again does not appeal to me. The reason is that in the midnight the Court cannot expect the villagers to come to the rescue of PW 1-Laxman and see the appellant ran away from the spot of the incident. Thus, the testimony of PW 1 which is otherwise trustworthy, has rightly been believed by the learned Sessions Judge. In that view of the matter, the submission made by the learned counsel for the appellant that the order of acquittal should been recorded must be rejected out-rightly. 5. The next question is what offence is proved by the prosecution, on the basis of the evidence tendered before the trial judge. Careful perusal of the entire evidence and the factual background of the case shows that there was enmity over the bullocks between the appellant and the complainant. 5. The next question is what offence is proved by the prosecution, on the basis of the evidence tendered before the trial judge. Careful perusal of the entire evidence and the factual background of the case shows that there was enmity over the bullocks between the appellant and the complainant. The incident shows that the appellant went along with live wire to the field of complainant and gave a shock on his right leg while he was sleeping and caused small burn injury to his right leg and immediately ran away. Had there been intention to murder the complainant, the appellant would not have left the complainant by causing injury and running away. Thus, this evidence of PW 1, by itself, shows that that there was no intention of committing murder. As such, offence punishable under section 307, Indian Penal Code was not proved by the prosecution since the appellant used the live wire to cause injury to the complainant. The offence that is constituted or proved by the prosecution was only 324, Indian Penal Code. Hence, I hold that the conviction recorded by the learned Judge of the Sessions Court for offence punishable under section 307, Indian Penal Code is not legal, correct and proper and, on the contrary, the conviction should have been recorded under section 324, Indian Penal Code. 6. The next question is about sentence. The appellant has already undergone one and a half months imprisonment during the trial proceedings. I think, the appellant should be slapped a fine in the sum of Rs. 10,000/-, payable to the Government and should be let off on the sentence that he has already undergone. In the wake of the above discussion, I make the following order: ORDER:- (i) Criminal Appeal No. 695/2002 is partly allowed. (ii) The judgment of conviction of the appellant for the offence punishable under section 307, Indian Penal Code, passed by the lower Appellate Court dated 30-11-2002, is set aside and is modified and the appellant instead held guilty of offence punishable under section 324, Indian Penal Code. (iii) The appellant is sentenced to undergo imprisonment for the period for which he has already undergone; plus he shall pay Rs. 10,000/- (rupees ten thousand) to the Government by depositing the same with the trial Judge, within a period of six months from today, in default the appellant shall undergo R.I. for six months. (iii) The appellant is sentenced to undergo imprisonment for the period for which he has already undergone; plus he shall pay Rs. 10,000/- (rupees ten thousand) to the Government by depositing the same with the trial Judge, within a period of six months from today, in default the appellant shall undergo R.I. for six months. (iv) The bail bonds of the appellant shall stand cancelled.