ASHISH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant has been convicted by learned Ad-hoc Additional Sessions Judge-1, Nagpur for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to suffer R.I. for four years and to pay a fine of Rs. 4,000/-. The appellant has been further convicted of the offence punishable u/s. 504 of the I.P.C. and is sentenced suffer R.I. for six months and to pay a fine of Rs. 1000/-, in default S.I. for one month. The conviction of the appellant is mainly based on the evidence of PW 1, 3 and 4. PW 1 is running a lottery shop by name, "Mohan Lottery Centre". PW 3-Abdul Rashid Sarvar was one of the employees of PW 1. The appellant had allegedly visited the said Centre on 5th June, 2012 and had some quarrel with PW 3. While P.W. 3 was returning home, it is alleged, the appellant had inflicted an injury on the neck of P.W. 3 by means of a blade. P.W. 3 was taken to the hospital and was treated for the injury. The F.I.R. was lodged and further investigation was taken up. The appellant was arrested during the course of investigation. The Cutter allegedly used by the appellant was seized by the police on basis of the information given by the appellant. Identification parade was also held, in which the appellant was identified by P.W. 3.

(2.) After having gone through the evidence, particularly the evidence of P.W. 1 and P.W. 3, the learned trial Court has come to the conclusion that the appellant had caused injury to the P.W. 3 with such an intention and under such circumstances that had the P.W. 3 died, the appellant would have been guilty of offence of murder.

(3.) Before proceeding further, I may state here that from the evidence of prosecution witnesses, it does not appear that the appellant has committed any act which may not fall under Section 504 of the I.P.C. The conviction of the appellant for the said offence appears to be bad in law as it is not based on the evidence on record. As far as the conviction of the appellant under section 307 of the I.P.C. is concerned, it appears that the learned trial Judge has not considered the issue in proper perspective. From the evidence of P.W. 3, who is injured in this case, it does not appear that there was an intention on the part of the appellant to cause death of P.W. 3 or there was an intention to cause injury to PW 3 which was sufficient to cause death in ordinary course of the nature. Since a small injury by means of blade was caused, in my opinion, the act of the appellant falls u/s. 324 of the I.P.C. The conviction of the appellant u/s. 307 of the I.P.C. was not correct. Hence, the Appeal will have to be allowed partly. As far as the sentence is concerned, the appellant has remained in custody from 7th June, 2012 to 22nd November 2012 and further from 3rd April 2013 to 16th July, 2013. As such, the appellant has remained in custody for about nine months. The appellant is aged about 22 years and he is from poor strata of the society. He is a painter by profession. Considering the age of the appellant and considering his clean background, I am of the view that the sentence already undergone by the appellant will serve the ends of justice. Hence I pass the following order: