1 Cri.Appeal 44-97 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.44 OF 1997 Tukaram Narayan Thavai ..Appellant Age : 46 years, R/o. Dhakte Wadhav, Taluka : Pen District Raigad. V/s. The State of Maharashtra ..Respondent Mrs.Sonia Miskin i/b. Mr.N.B.Shah, Advocate, for the Appellant Mrs.A.A.Mane, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 10TH JANUARY, 2011 ORAL JUDGMENT . This Criminal Appeal is directed against the Judgment of the IIIrd Additional Sessions Judge, Raigad-Alibag, whereby he convicted the appellant for the offence punishable under Sections 326 & 504 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and one year and to pay a fine of Rs.1,000/- & Rs. 500/- respectively on the two counts. 2 Cri.Appeal 44-97 2. Facts which are material for deciding this Criminal Appeal are as under :- The appellant is related to victim Suresh Mhatre. On 14th May, 1995, Suresh Mhatre had gone to the house of one Subhash Mhatre for dinner. The appellant had also come to the house of Subhash Mhatre. There was an exchange of words on account of request by Suresh to the appellant to clean court-yard of his residence, as there was marriage of brother of Suresh. Thereupon, the appellant pelted a brick at Suresh which Suresh succeeded in avoiding. The appellant then gave a blow by knife on the person of Suresh and he sustained injuries on the left elbow and left side of chest. On hearing cries neighbours gathered and one Gopinath Mali managed to snatch away the knife from the Appellant. He eventually handed over the knife to Police Patil Maruti Mhatre who gave it to the police. Suresh was taken to the 3 Cri.Appeal 44-97 hospital and on his report, an offence was registered. During the course of investigation, police drew panchanama of the spot, seized incriminating material and sent it to the Forensic Science Laboratory and after receipt of report from the Forensic Science Laboratory, sent charge sheet to the Court of the Judicial Magistrate First Class, Taluka : Pen, District : Raigad. 3. Upon commitment of the case to the Court of Sessions at Alibag, the learned Additional Sessions Judge charged the appellant of the offence punishable under Sections 307 & 504 of the Indian Penal Code. Since the appellant pleaded not guilty to the charge, he was put on trial at which the prosecution examined in all nine witnesses to bring home guilt of the accused. After considering the evidence of the prosecution witnesses, the learned Additional Sessions Judge came to hold that the prosecution has 4 Cri.Appeal 44-97 not proved charge of the offence punishable under Section 307 of the Indian Penal Code. However, he held the appellant guilty of causing grievous hurt to Suresh by means of a dangerous weapon and therefore, proceeded to convict him of the offence punishable under Section 326 of the Indian Penal Code. He also convicted the appellant of the offence punishable under Section 504 of the Indian Penal Code and sentenced him as mentioned in the earlier part of the Judgment. Aggrieved thereby, the appellant is before this Court. 4. I have heard the learned Counsel for the appellant and the learned APP for the State. 5. With the assistance of the learned Counsel for the respective parties I have gone through the evidence on record. P.W.1 Bandhu Gaikwad is Circle officer, who drew sketch of the spot. P.W.2 Suresh Mhatre is the victim, 5 Cri.Appeal 44-97 who states about the infliction and assault. He stated that the appellant pelted a brick at him which he managed to avoid and thereafter, appellant drew out a knife and administered three blows on his person. The victim claims to have received a blow at his thigh but this injury at thigh was not observed by P.W.8 Dr. Ramdas Khune, who had examined the victim. The learned Counsel for the appellant submitted that according to the FIR at Exhibit 17 proved by P.W.2 Suresh Mhatre, the alleged incident was witnessed by Vilas Damodar and Kashinath Mhatre. Vilas has not been examined. P.W.5 Kashinath Mhatre does not state about actually witnessing the incident but he did actually see the knife stained with blood. The learned Counsel for the appellant, therefore, submits that the evidence of P.W.2 may not be believed. 6. As rightly pointed out by the learned APP, apart from Suresh Mhatre the victim, who 6 Cri.Appeal 44-97 states about the injury on his person, P.W.3 Gopinath Mali, P.W.4 Subhash Mhatre & P.W.5 Kashinath Mhatre all state that they saw the incident, in the sense that they saw the appellant as well as the victim at the spot with the appellant holding a knife stained with blood. P.W.6 Maruti Mhatre Police Patil handed over the knife to the police. Therefore, since there is absolutely no possibility of Suresh Mhatre inflicting a blow on his own person or implicating the appellant in an offence on account of injury caused by someone else, the learned Additional Sessions Judge rightly believed version of these witnesses and held the appellant to be author of these injuries sustained by Suresh Mhatre. 7. P.W.8 Dr. Ramdas Khune, who had examined the victim had found that the victim had as many as three injuries. The first injury was on the right elbow 1 inch above joint and laterally, of the dimension 4 x ½ x 7 Cri.Appeal 44-97 2 cms. He also observed an incised wound on right upper arm, laterally 2 inch above elbow of the dimension 2 x ½ x 2 cms. The third injury was incised wound on and about 8th rib placed obliquely on 8th rib extending up to the back of the dimension 20 x 1 x 1 cms The Medical officer had failed to mention that the injury was on the left side and seems to have mentioned right elbow by mistake. However, this is not material though the learned Counsel for the appellant wanted the evidence about the injuries to be rejected on this count. Though the Medical officer had categorized the injury as grievous in nature in his Certificate at Exhibit 27, it must be seen that none of the injuries qualify to be grievous hurt as defined in Section 320 of the Indian Penal Code. Dr. Ramdas Khune had not stated that the injury around 8th rib was on account of thrusting of a knife on the left side of the chest. The victim was in hospital only for one night and neither the 8 Cri.Appeal 44-97 evidence of Medical officer and nor that of the victim shows that the victim was unable to follow his daily pursuits or was not forced to be in bed for 20 days. Therefore, though in the opinion of the Dr. Ramdas Khune, for medical purpose the injuries may be grievous, they do not qualify to be grievous hurt as defined in Section 320 of the Indian Penal Code. Consequently, the learned Additional Sessions Judge could not have recorded the conviction of the appellant for the offence punishable under Section 326 of the Indian Penal Code. The conviction, therefore, will have to be altered to one under Section 324 of the Indian Penal Code, since the injury was caused by means of knife. 8. The maximum punishment for the offence punishable under Section 324 of the Indian Penal Code is imprisonment for three years. The learned Counsel for the appellant submitted that the appellant has no previous 9 Cri.Appeal 44-97 Criminal history and the appellant is not shown to have been involved in any Criminal act for all these 14 years, since conviction is recorded till date and therefore, urges that the appellant may be let off with only fine. The learned APP submits that only providentially the victim has escaped with not a very serious injury. She points out that injury on the chest was of the length 20 cm though it did not penetrate. Considering this, following order would meet ends of justice. 9. Insofar as Section 504 of the Indian Penal Code is concerned, since the appellant had hurled abuses at the victim, conviction of the appellant for the said offence must be maintained. 10. In the result, the Criminal Appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 326 10 Cri.Appeal 44-97 of the Indian Penal Code is altered to that for the offence punishable under Section 324 of the Indian Penal Code and sentence is reduced to rigorous imprisonment for a period of three years with a fine of Rs.5000/- or in default rigorous imprisonment for further period of nine months. Conviction of the appellant for the offence punishable under Section 504 of the Indian Penal Code and sentence imposed is maintained. Substantive sentences shall run concurrently. If the appellant does not surrender to his bail within a period of four weeks, the learned Additional Sessions Judge to take steps to have the appellant arrested and committed to prison to serve his sentence. (R.C.CHAVAN, J.)