Jagdish vs The State Of Maharashtra & Anr.

This criminal appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') challenges the judgment and order dated 16.01.2003 passed by the learned Joint District Judge and Additional Sessions Judge, Nanded, in Sessions Case No. 236 of 1997, whereby the appellant (accused No.2) has been convicted for the offence punishable under Section 307 of the Indian Penal Code, 1860 (for short, 'the IPC') and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/-, and in default of payment of fine, to suffer rigorous imprisonment for one month. Accused No.1 (Ananda Baburao Maske) is acquitted.

Brief facts of the prosecution case are that on 08.09.1995 at about 10.00 to 10.30 p.m., near the Police Headquarters, Nanded, during the Ganpati immersion procession, quarrel took place between accused No.1 Ananda and one unknown person. The complainant Deepak Nalawade (PW-1), a police constable, intervened in the said quarrel. The appellant (accused No.2 Jagdish) questioned the complainant as to why he was intervening and suddenly dealt a knife blow on his stomach and pushed him, causing him head injuries. The complainant fell unconscious and was hospitalized. On the basis of the statement of the complainant, Crime No. 221 of 1995 came to be registered at Police Station Vazirabad for the offence punishable under Section 307 read with Section 34 of the IPC.

After completion of investigation, the charge-sheet was filed, and the case was committed to the Court of Sessions. The charge was framed at exhibit 14. The accused pleaded not guilty and claimed to be tried. The prosecution examined the informant PW-1 Dipak Nalawade, eyewitness PW-2 Ganesh Ambekar, who turned hostile, PW-3 Amrut Kadam another eye-witness, PW-4 Vijay Mergu, recovery panch, PW-5 Mohammad Rahimoddin spot panch, PW-6 Dilip Tidke IO, PW-7 Dr.Nitin Bilolikar, Medical Officer, PW-8 Santosh Shriramwar, Police Constable and seizure panch and PW-9 Laxman Barole, Police Constable, who recorded the statement of the victim. After full trial, the learned Sessions Judge has convicted the appellant (accused No.2) under Section 307 of the IPC and acquitted accused No.1 Ananda.

Shri Mandlik, learned counsel for the appellant / accused, submits that the incident occurred suddenly during the festival procession without any premeditation or prior planning. There is material improvement and contradictions in the evidence of informant / victim (PW-1). The presence of PW-3 Amrut Kadam (Eye Witness) is doubtful as the informant / victim (PW-1) in his evidence has not taken his name and in fact, has taken the name of one constable Amar Pardeshi, who is not examined by the prosecution. He submits that, the incident is said to have occurred in front of the house of RPI Chavan and even he is not examined.

Shri Mandlik further submits that recovery of weapon and clothes after nearly one month from the appellant is rendered doubtful since the panch witnesses have turned hostile and moreover, even the C.A. report has shown inconclusive result so far as the appellant is concerned. He further submits that the weapon ‘knife’ allegedly used in the crime, was never confronted neither to P.W.-1 informant / victim nor to the Medical Officer P.W. – 7 Dr. Nitin Bilolikar, as such, the injury could not be proved beyond reasonable doubt.

Shri Mandlik vehemently submits that on same set of evidence, co-accused Ananda was acquitted and therefore, he prays for the principles of parity, relying upon the judgment delivered by the Hon’ble Supreme Court in the case of Javed Shaukat Ali Qureshi Vs State of Gujarat, 2023 SCC Online SC 1155. He further submits that the offence under Section 307 cannot be attracted as the essential ingredient for attracting the same is ‘intention’ and in the present case, the prosecution evidence does not establish the fact that there was intention or knowledge on part of the appellant / accused. In this regard, he places reliance upon the judgment in the case of Roshan Lal Vs State of Haryana and Another, 2026 INSC 524. The learned advocate further submits that mere mention of injury as ‘Grievous’ in medical certificate would not itself absolve the duty of the prosecution and the nature of injury will have to be determined by the learned Trial Court by considering the evidence on record coupled with provisions of Section 320 of Indian Penal Code. The learned advocate has lastly prayed that the appellant deserves to be acquitted by granting benefit of doubt due to aforementioned reasons.

Per contra, the learned APP supported the judgment of the Trial Court contending that the testimony of the injured complainant (P.W.-1) is fully corroborated by eye-witness Amrut Kadam (P.W.-3) and medical evidence of P.W.-7 Dr. Nitin Bilolikar, which establishes that the abdominal injury was grievous and could have caused death if timely treatment had not been administered. It was submitted that the conviction under Section 307 of the I.P.C. is well-founded and requires no interference.

After hearing the learned advocates for the respective parties at length and on careful perusal of evidence on record and the impugned judgment, it is evident that the incident took place during sudden altercation in the course of Ganpati immersion procession. There was no prior enmity, premeditation or pre-planning to cause death. The appellant allegedly reacted to the sudden intervention of the complainant (PW-1) during minor scuffle involving accused no.1 (Ananda) and alleged to have delivered a single blow. Although the medical evidence of P.W.-7 indicates that the injury was grievous and required surgical intervention, however, the absence of premeditation or repeated blows clearly indicates that the act was done without the requisite intention or knowledge to commit murder so as to attract Section 307 of the I.P.C. Moreover, the aspect of non-confrontation of weapon ‘knife’ neither to P.W.-1 Informant / Victim nor to P.W.-7 Dr. Nitin Bilolikar cannot be lost sight of as the same is detrimental to case of prosecution because it does not prove the injury attributed to the appellant. Moreover, the prosecution has failed to bring on record the fact that blood group of blood stains on knife recovered, belonged to the informant / victim (PW-1). Moreover, the weapon attributed to present appellant is recovered after one month of the incident and its C.A. report is inconclusive, as such, it cannot be conclusively said that the prosecution succeeded in proving the injury and more particularly, succeeded in proving the case beyond reasonable doubt.

The learned advocate Shri Mandlik has rightly placed reliance on the ratio laid down by the Hon’ble Supreme Court in Javed Shaukat Ali Qureshi (supra), to submit that when there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. In such case, the cases of both the accused will be governed by the principle of parity. The distinction between two accused, would amount to discrimination. In the case in hand, the co-accused Ananda was acquitted on same set of evidence by the learned Sessions Court, however, the present appellant is convicted. Therefore, on the ground of principle of parity as well, the conviction of the present appellant deserves to be set aside.

Considering the conspectus of the matter and evidence on record, the prosecution has failed to prove its case beyond reasonable doubt and therefore, the appellant deserves to be extended benefit of doubt. As such, the Criminal Appeal deserves to be allowed. Hence, the following order:-

The Criminal Appeal is allowed.

The judgment and order of conviction and sentence under Section 307 of the Indian Penal Code, 1860, recorded by the learned Joint District Judge and Additional Sessions Judge, Nanded, in Sessions Case No. 236 of 1997, dated 16.01.2003, is hereby set aside. The appellant is hereby acquitted of the offence punishable u/sec 307 of Indian Penal Code.

The bail bond stands cancelled and the fine amount, if paid, be returned to appellant / accused.

The surety, if any, stands discharged.

Record and proceedings be sent back to the Trial Court.