BALKRISHNA DATTARAM SALGAOKAR Vs. STATE OF MAHARASHTRFA

JUDGEMENT

(1.) The appellant has been charged of having committed an offence of attempt to murder punishable under section 307 of the Indian Penal Code. After trial, the appellant was convicted for an offence punishable under section 308 and thereafter, given the benefit of Section 4(1) of the Probation of Offenders Act, 1958 and therefore directed to execute a personal bond of Rs. 5,000/- with one surety in the like amount in order to appear and receive sentence in case such contingency arises, He also was directed to pay compensation of Rs. 1,000/-to the injured person.

(2.) The prosecution case has been that on 29th March, 1982, at about 8.20 a.m. the complainant Diogo Proenca went to the property known as Juliana OxirT belonging to his father in the company of his brother Jose Proenca, his, father Benjamin Proenca two pluckers namely Shamlo Simapuruskar, Simon Fernandes and one Pedro Coutinho, for the purpose of plucking the coconut from trees. While in the property the complainant his brother and father, found a stone wall in front of the house of the appellant which was obstructing their way to the property. The appellant is a mundkar in the property. The father, of the complainant began to remove the stones of the said wall, which had been built with loose stones, with the help of the appellant and Jose Proenca. At that time, the appellant began to abuse Benjamin Proenca with filthy words, and when told to stop such abuses, he assaulted Benjamin Proenca with a kick on his right thigh. Thereafter, the mother and one brother of the appellant intervened and took him inside their house. They latched the door of the house with a latch existing outside the door. Once inside, while Benjamin Proenca was having a discussion with the mother of the appellant, the latter fired a shot from an air-gun through the window of his house. The shot was fired against the complainant Diogo and hit him on the left frontal area of the bead. Diogo fell down unconscious and bleeding, and. thereafter, was taken first to the Police Out-Post and from there to the Medical College, Panjim.

(3.) The learned trial Judge, in his judgment dated 17th May, 1986, held that an incident had taken place in the property Juliana Oxir when the complainant has accompanied his father and his brother to pluck coconuts therein. The learned Judge recorded a finding that the evidence was showing that Benjamin Proenca has found a wall of loose stones built near the house of the appellant and that he along with the complainant and his brother Jose Proenca began to demolish such wan. This gave cause to the appellant starting to abuse the said Benjamin with filthy words and to assault him with a kick on his right thigh. The learned Judge further recorded a finding that the mother and brother of the appellant removed him from the place and took him inside their house, latching the door from outside. Finally, he recorded a finding that the appellant shot the complainant Diogo by firing an air gun from inside the house. The learned Judge however, held the view that the air gun ordinarily does not constitute a weapon likely to cause death and therefore, he was of the opinion that the prosecution has failed to establish, that the appellant has shot the complainant Diogo with intention to kill him or with the knowledge that his act of firing the air gun against the complainant was likely to cause his death. However, he took the view that the facts proved were falling squarely under the provision of Section 308 I.P.C.