1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 1539/2009 The State of Maharashtra. Applicant. V E R S U S Santosh s/o Namdeo Walke and others Respondents. Shri Godbharle, learned A. P. P. for the applicant-appellant. Shri S.S. Jadhavar, Advocate for the respondents CORAM : S. B. DESHMUKH & S.S. SHINDE, JJ. DATE : 21ST APRIL, 2010. PER COURT :- 1. We have heard learned A. P. P. Mr. Godbharle, for the applicant, Advocate Mr. Jadhavar for respondents No. 1 to 3. 2- The respondents in the case on hand were tried for the offence punishable under section 307, 325, 324, 504 read with section 34 of Indian Penal Code with section 25 (1) of the Indian Arms Act. It was Sessions Case No.77/2007. Trial court after recording evidence passed an order of conviction, acquittal in relation to all accused persons. Indisputably, there were three accused persons who are respondents in this criminal application. We have seen operative part of the judgment of the trial court in relation to finding recorded by the trial court. 2 Acquittal of the respondents for the offence punishable under section 307 r.w. 34 of Indian Penal Code mainly is sought to be appealed on behalf the State and for that purpose present criminal application for leave of this Court to appeal is sought. 3- Mr. Godbharle, learned A. P. P. submitted that date of incident in the case on hand is November 17, 2006. Place of incident is an agricultural land bearing gat No.38, at village Hivara, Tq Ashti, District Beed. Many witnesses examined on behalf of the prosecution, some are important witnesses from the view point of the application on hand. P.W. 4 Baburao Walke, P.W. 9 Murlidhar Lagad, are injured witnesses. P.W.1 Narayan Walke is a complainant claims to be an eye witness also. On behalf of the prosecution, P.W.5 Nanasaheb Chavan who according to prosecution is an eye witness, is also examined. P.W.8 Trimbak is also eye witness examined on behalf of the prosecution. Apart from these witnesses, P. W 6 Dr. Vilas Meshram, P.W.11 Dr. Smt. Vijaya Sardesai and P.W.12 Dr. Kisan Golhar have been examined on behalf of the prosecution. 4- Mr. Godbharle, learned A.P.P. refers to paragraphs No.47, 48 and 49 of the Judgment. According to him, the weapon used by the assailants while inflicting injuries is important. Nature of injuries, if it is opined by the Medical Officer to that of simple, according to him is ir- 3 relevant. Intention and knowledge causing a bodily injury ought to have been considered by the trial court and respondents ought to have been convicted for offence under section 307 of Indian Penal Code. He, therefore, concludes by seeking grant of leave to appeal. 5- Mr. Jadhavar, learned counsel, who appears on behalf of the respondents refers to paragraph No.42 of the judgment. He has pointed out admission given by the Medical Officer. He also pointed nature of injuries admitted by P. W. 6 pertaining to injuries 1 to 4 is simple in nature. According to him, trial court has properly appreciated the evidence and passed an order. Regarding punishment, he submitted that it is a discretion of the trial court. In the case on hand, trial court has considered the attending circumstances and imposed three months simple imprisonment for the offence punishable under section 324 of Indian Penal Code. According to him, no case for grant of leave. While concluding his submission, he argued that allegation of the prosecution pertaining to weapon used is of the sword. Knowledge and intention is material. If at all, it was intention of the assailants to inflict injuries with the help of sword, injuries of more grievous nature ought to have been caused to the injured persons. According to him, trial court has considered all these aspects of the matter and justifiably acquitted the respondents for the offence punishable under section 307 r.w. section 34 of the Indian Penal Code. 4 6- We have considered submissions made on behalf of the parties. Mr. Godbharle, learned A.P. P. relied on the judgment of the Honourable Supreme Court in the matter of R. Prakash Vs. State of Karnataka reported in 2004 Cri. L. J. 1391. There, Honourable Supreme Court in paragraphs No. 8 and 9 has interpreted section 307 of I.P.C. based on material brought on record, in that case. 7- We have given due consideration to the submissions made on behalf of the counsel for the parties. We have taken into account provisions laid down under section 307 of the Penal Code. In our view, taking into account the material on record case for grant of leave in favour of the prosecution is established. 8- Criminal Application is allowed in terms of prayer clause 8 - ‘B’ and disposed of. Action under section 390 to be followed. Learned Sessions Judge, Beed is further directed to secure presence of respondents on quarterly basis. ( S.S. SHINDE ) ( S.B.DESHMUKH ) JUDGE JUDGE. aaa/1539.09 .......