1 Criminal AppealNo.362/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.362/1999. 1) Hanif Khan s/o Habib Khan Age: 27 Yrs. Occ.Labour R/o Khan Galli, Vaijapur, Dist.Aurangabad. 2) Shaikh Sattar s/o Shaikh Ismail, Age: 28 Yrs., occu. Labour, r/o as above. - APPELLANTS VERSUS The State of Maharashtra. - RESPONDENT ***** Mr.Zia-ul-Mustafa, Advocate for Appellants; Mr.VH Dighe, APP for State. Mr.GR Syed, Adv. For injured/complainant. ----- CORAM : K.U.CHANDIWAL, J. DATE : 31st March, 2011. JUDGMENT: 1) Heard learned Counsel for the respective parties. 2) Both the Counsel reiterate that the matter is compounded by the parties, they do not wish to further prosecute the same. Both the counsel submit, that maintaining the conviction, the sentence may be reduced. 2 Criminal AppealNo.362/1999 3) On merits, Mr.Mustafa points that the injury sufferd by the complainant – Shaikh Mukhtar s/o Abdul Bashir, was incised stab wound, perforating through the layers of wall oblique over right hypochondrium – 1" x ½ ". Even if it is referred to be a grievous injury, it could not be so. 4) The complainant – Shaikh Mukhtar was discharged from the hospital on the same day without further medical treatment or requiring strict bed-rest. The Medical Officer at Vaijapur – Dr. Milind Kulkarni has examined the injured/complainant – Shaikh Mukhtar on 22.4.1991 and the doctor found a single injury as referred above. After examination of the patient, he referred the patient to Medical College & Hospital, Aurangabad, Certificate (Exhibit-32) was issued. 5) The learned Counsel and learned APP are not in a position to inform of evidence of any medical officer to endorse that the victim/complainant was admitted in Medical College and Hospital, Aurangabad. 6) PW 1 - Shaikh Mukhtar in his evidence has narrated that accused no.5 gave a blow with 3 Criminal AppealNo.362/1999 knife causing injury to his left hand in between his fingers and there was beating by kicks and fist blows. However, this is not reflected in the medical examination. The second incident narrated by Shaikh Muthtar is of 22nd April, 1991, when allegedly the accused no.2 Ali Khan assaulted him with a Bamboo stick, resulting in abrasion to his neck. At that time, allegedly accused no.3 – Sattar Tamboli caught him from behind. 7) On analysis of evidence of the complainant, his brother, the learned Sessions Judge at Aurangabad in Sessions Case No.55/1994, convicted the accused nos.1 and 3 (the appellants herein) for an offence under Section 326 r/w 34 of Indian Penal Code and directed to undergo R.I. for three years and to pay fine of Rs.2,000/- each. Out of fine amount, amount of Rs.2,000/- was to be paid to the complainant. 8) Fine amount is deposited on 18.8.1999. 9) Considering above nature of evidence, the case would hardly fall in terms of infraction of Section 326 of Indian Penal Code, inviting sentence of three years, it would at the most, infraction of Section 324 of IPC, which illustrate,- voluntarily causing hurt by 4 Criminal AppealNo.362/1999 dangerous weapon or means. Maximum punishment provided for that is of three years or fine or with both. 10) Since the matter is settled between the parties, as there is an affidavit of complainant – Shaikh Mukhtar Shaikh Bashir, identified by Mr. GR Sayed and compromise arrived at between the parties under the signatures of the appellants/accused; the complainant and their counsel, placed on record, the parties being of the same city Vaijapur and residing in the same locality, compounding is permitted. However, the conviction is modified in following terms. 11) The appeal is partly allowed. Instead of convicting for an offence under Section 326 r/w 34 of Indian Penal Code, the accused/appellants are convicted for an offence under Section 324 r/w 34 of IPC with fine amount of Rs.2,000/- each. The appellants/accused are directed to undergo R.I. for a period of four days, which the appellants have already undergone. ( K.U.CHANDIWAL ) JUDGE bdv/