IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Appeal No.672 of 2004 …

Ramesh Narayan Ghate, Aged 45 years, R/o Dasara Road, Gondhalipura, Nagpur. .. APPELLANT .. Versus ..

State of Maharashtra, through P.S.O. Kotwali, Nagpur. .. RESPONDENT Mr. A.M. Jaltare, Advocate for Appellant.

Mrs. Swati Kolhe, APP for Respondent ….

CORAM : MANISH PITALE, J. DATED : AUGUST 14, 2018.

ORAL JUDGMENT

1. By this appeal, the appellant has challenged judgment and order dated 21.06.2004 whereby he has been convicted under Section 307 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for a period of seven years, by the Court of Additional Sessions Judge, Nagpur (trial Court) in Sessions Trial No. 76 of 1999.

2. The prosecution case was that on 12.03.1998 at about 8.30 p.m. one Raju Bokde (injured victim) PW3 applied colour on the festival of Holi to the son of the appellant, a child aged about 5 years and this resulted in altercation between the appellant and the said injured victim PW3. On the next day i.e. on 13.03.1998 when the said Raju Bokde PW3 was standing in front of his house at about 10.30 a.m., the appellant came at the spot and inflicted a single blow by means of sharp weapon on the abdomen of the said PW3 resulting in bleeding injury. The friends and eyewitnesses to the incident then took the injured PW3 for treatment to the Government Medical College and Hospital at Nagpur. On the basis of the statement given by the injured PW3, a first information report (FIR) was registered against the appellant for offence punishable under 324 of the IPC i.e. voluntarily causing hurt by dangerous weapon or means.

3. The investigating ofÏcer in the present case recorded statements of eyewitnesses PW2 on 15.03.1998, PW5 on 17.03.1998 and PW4 on 06.05.1998. The weapon of assault, being a knife, was recovered and it was sent for chemical analysis. An injury certificate pertaining to the injury suffered by the said PW3 was also obtained and placed on record.

4. In support of its case, the prosecution examined 11 witnesses. The material witnesses were PW3 the injured victim, PWs 2,4 and 5 eyewitnesses to the incident, PW8 and PW11 the Doctors who examined and treated the injured victim and the investigating ofÏcer PW6. On the basis of the oral and documentary evidence on record, the trial Court came to the conclusion that the prosecution had proved its case against the appellant under Section 307 of the Indian Penal Code and he stood convicted and sentenced in the aforesaid manner. It is relevant that while the FIR was registered under Section 324 of the IPC, charge against the appellant was framed under Section 307 of the IPC.

5. Mr. A.M. Jaltare, learned counsel appearing on behalf of the appellant contended that the evidence of the alleged eyewitnesses was not trustworthy, particularly when their statements had been recorded after some delay. It was also contended that the nature of injury in the present case was such that its dimensions did not match with the weapon of assault i.e. the knife that was recovered in the present case. On this basis, it was contended that the statements given by the Doctors mechanically that the injury was sufÏcient in the ordinary course of nature to cause death, could not have been relied upon and that at worst, in the present case, the appellant could be held liable for having caused hurt by sharp weapon to the injured victim. On this basis, it was contended that the conviction could be altered from Section 307 to Section 324 of the IPC. Reliance was placed on judgments of this Court in the case of Santosh Gana Thakur .vs. State of Maharashtra – 2014 ALL MR (Cri) 4787, Deorao Motiram Sakharkar .vs. State of Maharashtra – 2017 ALL MR (Cri) 1809 and judgment of the Hon'ble Supreme Court in the case of Ramesh Kumar @ Babla .vs. State of Punjab – 2016 ALL SCR (Cri) 942

6. On the other hand, Mrs. Swati Kolhe, learned Additional Public Prosecutor, appearing on behalf of the respond