.[1]. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.834 OF 2007 CRIMINAL APPEAL NO.834 OF 2007 CRIMINAL APPEAL NO.834 OF 2007 Samiullah Allahbaksha Mahat, ] Age: 23 yrs, Convict No.B/5795,] Kolhapur Central Prison, ] Kolhapur-416007, Residing at ] 561, B-Ward, Bada Imam, ] Mangalwar Peth, Kolhapur. ] ..APPELLANT. Versus State of Maharashtra. ] ..RESPONDENT. . . . Mr.Sandeep Dadwal, Adv. appointed for the Appellant. Mr.Y.S.Shinde, APP, for the State. . . . CORAM : CORAM : CORAM : SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. SMT.V.K.TAHILRAMANI,J. DATED : APRIL 16, 2008. DATED : APRIL 16, 2008. DATED : APRIL 16, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The Appellant-orig.accused has preferred this Appeal through jail. The appellant has challenged the judgment and order dated 6th December, 2006 passed by the learned Ad-hoc Additional Sessions Judge-5, Kolhapur in Sessions Case No.41 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 307 of IPC and sentenced him to suffer RI for three years and fine of .[2]. Rs.10,000/-, in default, SI for four months. The learned Sessions Judge further directed that out of the fine amount of Rs.10,000/-, an amount of Rs.7,000/- shall be paid to the injured witness PW-2 Firozkhan Mahat. 2. The prosecution case, briefly stated, is as under : . The complainant Firozkhan Mahat (PW-2) was residing near Bara Imam, Mangalwar Peth in Kolhapur. The appellant-accused was residing in front two rooms and the complainant was residing in back side two rooms of the same building. The accused wanted to construct a room above the room of the complainant. As the complainant was not agreeable to this fact, there was a dispute between the complainant and the accused since about 15 days prior to the incident. On 7.1.2006 at about 10:00 p.m. to 10:30 p.m. the complainant was sitting along with PW-4 Zakir and PW-7 Salim on the Katta. At that time, the accused came from the backside and inflicted a blow with knife on the stomach of the complainant. .[3]. Thereafter, the accused went away. Zakir and Salim took Firozkhan to the hospital. Firozkhan was admitted in the hospital for fifteen days and his injury came to be operated. FIR came to be lodged by the injured witness PW-2 Firozkhan. After completion of investigation, the charge-sheet came to be filed against him. Thereafter the case came to be committed to the Court of Session. 3. The charge came to be framed against the appellant under Section 307 of IPC and in the alternative under Section 326 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para-1 above. Hence this Appeal. 4. I have heard Mr.Dadwal, learned Advocate appointed for the appellant and Mr.Shinde, learned APP for the Respondent-State. I have also perused .[4]. the judgment and order passed by the learned Sessions Judge as well as the record pertaining to the present case. 5. The prosecution has proved its case mainly on the basis of the evidence of three eye witnesses. Out of them, one is an injured eye witness i.e. PW-2 Firozkhan. The other two eye witnesses are PW-4 Zakir and PW-7 Salim. The injured witness PW-2 Firozkhan has stated that there was dispute in relation to construction of room between him and the appellant. On the day of the incident, the appellant came and inflicted a blow with knife on the stomach of this witness. This witness has stated that on on 7.1.2006 at about 10:00 p.m. to 10:30 p.m. he was sitting along with PW-4 Zakor and PW-7 Salim on the katta. At that time, the accused came from the backside and inflicted a blow with knife on the stomach of the complainant. Thereafter, the accused went away. Zakir and Salim took Firozkhan to the hospital. This witness (PW-2) has stated that he saw accused as there was light of the lamp from the electric pole, as the electric pole was just .[5]. behind the Katta. PW-4 Zakir and PW-7 Salim have corroborated this witness on all material particulars. Both these witnesses i.e. PW-4 Zakir & PW-7 Salim have stated that at about 10:00 to 10:30 p.m., they were sitting on Katta along with PW-2 Firozkhan and at that time the accused came there and he stabbed on Firoz’s stomach. Both these witnesses have deposed that they have witnessed this in the light of lamp from the electric pole which is just behind the Katta. Nothing has been elicited in the cross-examination of these three witnesses so as to disbelieve their testimony. 6. Thus, through the ocular evidence of these three eye witnesses the prosecution has proved that the appellant-accused stabbed PW-2 Firozkhan in his stomach with knife. Now it only remains to be seen whether the offence falls under Section 307 of IPC or 326 of IPC as contended by the learned Advocate for the appellant. After PW-2 Firozkhan came to be stabbed by the appellant, he was taken by Zakir and Salim to the hospital. PW-9 Dr. Deepak Patil examined PW-2 Firozkhan and .[6]. he found following injuries :- (1) Penetrating injury over abdomen epigentrium size 3 cm x 2 cm. vertical through the anterior abdominal wall amentum pounting. (a) Haemoperitoneum with clots, about one litre of blood. (b) Transverse calon 3 cm. vertical with jejunum injured at 3 places with active bleeding. (2) CLW 2nd web space of left hand ocm. x 1/2 cm size. . Dr.Patil has stated that the age of the injuries was within six hours and the above injuries were caused by sharp and cutting object. The injuries described in medical certificate Exh.30 would be possible by knife article no.6. He further opined that the nature of the injuries .[7]. was such that it was dangerous to life. The evidence of this witness, PW-9 Dr.Patil, shows that PW-2 Firozkhan was admitted in hospital from 7th January, 2006 till 19th January, 2006. 7. The learned Advocate for the appellant has submitted that only one injury was caused by the appellant to PW-2 Firozkhan and hence looking to the medical evidence, the case would not fall under Section 307 of IPC and it would fall under Section 326 of IPC. It is true that there is only one major injury on the abdomen, as the second injury is only CLW on the left hand. However, the major injury which is on the abdomen has caused the intestine to come out of the stomach. Moreover the injury has injured the intestine at three places and at all three places there was active bleeding. Looking to the weapon used i.e. knife and looking to the size of the injury and the nature of the injury coupled with the evidence of the doctor, in my opinion, the case would not fall under Section 326 of IPC and the learned Sessions Judge has rightly convicted the appellant under Section 307 of IPC. .[8]. 8. At this stage, the learned Advocate for the appellant has submitted that the appellant was only 22 years of age at the time of the incident and he is a poor person. The learned Advocate for the appellant further submitted that infact the appellant was not even been able to engage a lawyer and hence he has preferred this appeal through jail. The learned Advocate therefore prayed that atleast fine amount imposed on the appellant may be reduced. The fine amount imposed on the appellant is Rs.10,000/-. Out of the said amount of Rs.10,000/-, Rs.7,000/- is to be paid to the complainant i.e. injured witness PW-2 Firozkhan. Looking to the facts and circumstances, I am inclined to reduce the fine amount to Rs.7000/- 9. In the result the appeal is partly allowed. The conviction of the appellant under Section 307 of IPC is confirmed. The sentence of imprisonment of three years as imposed by the learned Sessions Judge is also confirmed. However, the fine amount is reduced from Rs.10,000 to Rs.7,000/-. If the .[9]. reduced fine amount of Rs.7,000/- is already deposited by the appellant, the same be paid over to PW-2 Firozkhan the injured witness. In case the amount of Rs.7,000/- is not paid by the appellant, in default, the appellant to suffer S.I. for one month. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)