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CASE NO.: Appeal (crl.)  849 of 2006

PETITIONER: MOHMAD AKRAM

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 31/01/2008

BENCH: P.P. NAOLEKAR & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT O R D E R   

1.      The appellant Mohmad Akram along with three other persons was tried for  committing  offences under Sections 324/307/302/34  of Indian Penal Code  (hereinafter referred to as \023I.P.C.\024).  The trial court by judgment and order dated  16.11.1999 convicted all the accused under Section 302 read with Section 34 I.P.C.   and sentenced them  to undergo life imprisonment and to pay fine of Rs.  3,000/- each  (rupees three thousand) and in default to undergo simple imprisonment for one year.  The appellant and three other accused persons were acquitted by the trial court under  Sections 307/324/34  I.P.C.  Aggrieved by the order of the learned Sessions Judge,  Criminal Appeal No. 460 of 1999 was  filed before the High Court.  The High Court,  by impugned judgment dated 14.9.2005, acquitted accused No. 2 Mohmad Aslam,  accused NO. 3  Mohmad Ajam and accused No. 4 Mohmad Mukarram under Section  302 read with Section 34 I.P.C. but maintained  the  sentence of appellant-accused  No. 1 Mohmad

Akram passed by the Sessions Court.  Aggrieved by the impugned judgment passed  by the High Court, the present appeal by special leave has been filed in this  Court.   

2.             The case of the prosecution is that on  11.1.1999, PW 12 Mirza  Jahangir  Yavar Ali lodged a report at Geverai Police Station stating that on the fateful day  he had gone to Beed for  selling sunglasses.  At about 7.45 p.m. he returned to  Gevrai.  While he was proceeding to his house on foot, he found appellant Mohmad  Akram, accused No. 2 Mohmad Aslam, accused No. 3 Mohmad Ajam and accused  No. 4 Mohmad Mukarram standing near his house by the side of the road and  hurling abuses on his family members.  On reaching the house, he made enquiry  with his sister-in-law Shabanabi (P.W. 13) and paternal aunt Zarinabi as to why  appellant and accused were hurling abuses upon which he was  informed that in  the morning there was a quarrel between children viz noori (PW15) and son and  daughter of appellant Mohmad Akram.  He was further informed that appellant  and accused persons had come to their house and beat the female inmates of the  house and report about the said incident was lodged with Georai Police Station.   When PW 12 Mirza Jahangir went to the accused persons  to enquire about the  cause of the incident, accused No.2 Mohmad Aslam dealt stick blow on his head  while appellant-

accused No. 1  Mohmad Akram dealt knife blow on his shoulder forearm and back.  In the meantime, his brother Parvez rushed to the spot to save him but he was  given stick blows by accused No. 3 Mohmad Ajam and accused No. 4 Mohmad  Mukarram.   Appellant Mohmad Akram and accused No. 2 Mohmad Aslam then  stabbed knife on the abdomen and other parts of body due to which Parvez fell  down on the ground   bleeding profusely.  PW 13 Shabanabi  was also given stick  blows by accused when she attempted to intervene in the incident.   Parvez was

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then taken to the hospital by his relatives where he succumbed to the injuries  caused by the appellant and accused persons.          3.      PW 20 Dr. Ashruba who conducted post-mortem examination  on 12.1.1999 on  the dead body of Parvez found the following injuries:

\0231. Incised perforated wound on left hypochondriac are of  abdomen of size 1 1/2\024 x 1/2\024 x 6\024.

Following were the correspondent internal injury:

1.      Incised perforated wound on greater curvature at middle part  size 1 1/2\024 x 1/2\024 x 6\024 going through both layers there was 200  ml. semi digested food with blood clot. 2.      Incised wound on left lobe at anterior surface of size 1 1/2\024  x1/2\024 x1/2\024.

In his examination-in-chief, PW 20 opined that  cause of death was  \023haemorrhagic shock due to incised perforated wound to vital organs like liver  and the stomach\024 and the injury found on the victim was sufficient in natural  course of things to cause his death.    In the incident, appellant also  sustained injuries and he was examined by the doctor. The evidence of  prosecution witness as regards other accused persons was disbelieved by the  courts and they were acquitted. 4.             We have heard learned counsel for the parties and  gone through the  material on record. 5.            In the facts and circumstances of the case and the nature of injury which is  one in number, we are of the opinion that the fatal injury inflicted on the  stomach which caused the death of Parvez (since deceased) was caused  with  the knowledge that the injury was likely to cause  death but without intention to  cause particular injury which was sufficient to cause death and, thus, we  convert the sentence of appellant from under Section 302  to Section 304-Part  II I.P.C. and sentence him to undergo R.I. for five years and  and to pay fine of  Rs.  3,000/-  (rupees three thousand) and in default to undergo simple  imprisonment for one year. The appellant shall be entitled for deduction of  sentence already undergone by him.

6.       With the aforesaid modification, appeal stands disposed of.