Full Judgment Text
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71-Cri.Appeal.373.06.doc
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 373 OF 2006
1. Balu s/o Nehaji Garde,
Age 26 years, Occ. Agril.,
R/o. Kathoda, Tal. Georai,
District Beed.
2. Anirudh alias Anil Nehaji Garde,
Age 30 years, Occ. Nil,
R/o. as above.
3. Rakhmaji s/o Nehaji Garde,
Age 35 years, Occ. Agril.,
R/o. as above. ... APPELLANTS
V E R S U S
The State of Maharashtra,
Through P.S.I. Police Station,
Talwada, Tal, Georai, Dist. Beed.
Copy to be served on the Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad. ... RESPONDENT
Mr. R.M. Deshmukh, Advocate for the Appellants.
Mr. D.R.Kale, AGP for Respondent / State.
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CORAM :
T.V.NALAWADE, J.
DATE : 12
th
August, 2013.
ORAL JUDGMENT:
1 The appeal is filed against the judgment and order of
Sessions Case No.113 of 2005, which was pending in Sessions Court,
Beed. 7
th
Adhoc Additional Sessions Judge, Beed has convicted and
sentence the Appellants for the offence punishable under Sections 307
read with 34 of the Indian Penal Code. They are also convicted and
sentenced for the offence punishable under Sections 323 read with 34 of
the Indian Penal Code and also for the offence punishable under Section
504 read with 34 of the Indian Penal Code and the provisions of the
Bombay Police Act.
2 Both the sides are heard.
3 In short, the facts leading to the institution of the appeal can
be stated as follows:
The Complainant Pralhad Tishtak was working as
Police Patil of his village Kathoda. The Appellants are real brothers,
interse. Accused No.4 was their father. The incident took place on 30
th
March, 2004 after 05:30 pm. The Complainant was in the company of his
two labours and he was intercepted at Golegaon Phata by the accused.
The Appellants picked up quarrel with the Complainant by saying that he
was unnecessarily giving support to ExSarpanch Raghunath Kirkit. Then
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Accused Nos.2 and 3 held two hands of the Complainant and Accused No.
1 gave blow of knife on the chest of the Complainant. Accused No.4
allegedly instructed the other accused to finish the Complainant. One
Raghunath Kirkit reached to the spot after the incident and then the
Complainant was shifted to Government Hospital. The Complainant
sustained bleeding injury on his chest during the incident and he gave the
report on the same day.
4 During the course of investigation, all the accused came to be
arrested. On the basis of statement given by Accused No.1 under Section
27 of the Evidence Act, the knife came to be recovered. The clothes of the
Complainant and the accused were taken over. The chargesheet came to
be filed for the aforesaid offence. The charge came to be framed for the
aforesaid offences. The accused took the defence of total denial.
5 In the trial Court, the Complainant and two eye witnesses
were examined. Some witnesses are examined to prove the recovery of
knife at the instance of Accused No.1. Record like CA report is produced.
Doctor is examined to prove the injury certificate in respect of the
Complainant.
6 The Complainant has given evidence against Accused No.1
that he used knife in the incident. He has made allegation that Accused
Nos.2 and 3 were holding his hands when Accused No.1 gave blow of knife
on his chest.
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7 It appears that two eye witnesses mentioned in the FIR dated
30
th
March, 2004, are not examined by the prosecution. Two other
witnesses, who are not named in FIR are examined. They have given
similar version against Accused Nos.1 to 3. The evidence is given as
against Accused No.4 also, but he is acquitted by the trial Court.
8 The evidence of Complainant shows that after giving of FIR by
him, so many statements were given by him. His statement was also
recorded through the Executive Magistrate, which is at Exhibit – 59. In the
so called dying declaration, he disclosed that out of four accused, two
accused were holding him and other two had given blow of knife on his
chest. This circumstance is brought on record by the defence, but the trial
Court has not discussed this circumstance.
9 The evidence collected and which is considered by the trial
Court shows that out of some political dispute, the incident took place. The
evidence in crossexamination shows that one accused reached there
subsequently and he had given the blow of knife. If the Complainant is
believed then it can be said that four persons were involved in the incident.
Inspite of this circumstance, only one injury was found on the chest of the
Complainant. The doctor has described this injury as simple injury. The
learned APP submitted that the intention can be gathered from the
circumstances that Accused No.1 was carrying knife and he had given the
blow on the chest. This Court holds that in view of the aforesaid
circumstances and the variation made in the disclosures by the
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Complainant, it is difficult to believe that any of the accused had intention
to kill the Complainant. If there was really such intention, there was
nobody to prevent the Appellants to inflict more blows. This Court holds
that the trial Court has committed error in holding that the offence
punishable under Section 307 of the Indian Penal Code is proved. Even
when only one person was injured, the trial Court has given conviction for
the offence punishable under Section 323 read with 34 of the Indian Penal
Code also. When the evidence does not disclose that the present
Appellants had given threats or abuses, the conviction is given for the
offence punishable under Section 504 read with Section 34 of the Indian
Penal Code also. These circumstances show that the trial Court did not
apply the mind and the material on record was not correctly appreciated.
This Court holds that at the most the offence punishable under Section 324
is made out and that too against Accused No.1. Even if it is presumed that
Accused Nos.2 and 3 being real brothers of Accused No.1, were present in
the company of Accused No.1, as against them also the material would be
for the offence punishable under Sections 324 read with Section 34 of the
Indian Penal Code. This Court holds that conviction and sentence given
for the offence punishable under Section 307 read with Section 34 of the
Indian Penal Code cannot sustain in law.
10 The learned counsel for the Appellants submitted that the
parties have settled the dispute out of the Court. Affidavit of the original
Complainant is filed on record to that effect. Permission is sought for
compounding the offence as they want to live with peace in the village.
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The offence punishable under Section 324 of the Indian Penal Code also is
not compoundable. However, in view of the compromise, a lenient view
can be taken.
11 The learned counsel for the Appellants placed reliance on the
cases reported as [AIR 1999 Supreme Court 895], (Ram Lal and
another Vs. State of J. and K.) , and [AIR 1999 Supreme Court 2181],
(Surendra Nath Mohanty and another Vs. State of Orissa) . In the first
case, in similar circumstances and when there was material for the proof of
offence punishable under Section 326 of the Indian Penal Code, the Apex
Court took a lenient view due to the compromise and held that
imprisonment for six months, the period undergone was sufficient and the
sentence was reduced accordingly. In the second case, in similar
circumstances, the undergone period, of three months was held to be
sufficient and the sentence was reduced to that extent.
12 In view of the facts and circumstances of the present case and
the observations made in the aforesaid cases by the Apex Court, this Court
holds that a lenient view needs to be taken and the sentence needs to be
reduced.
13 In the result, the appeal is allowed. The judgment and order
of the Sessions Court of convicting and sentencing the Appellants for the
offence punishable under Section 307 read with 34 and Section 323 read
with 34 and Section 504 read with 34 of the Indian Penal Code is hereby
set aside. The Appellants stand convicted for the offence punishable
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under Section 324 read with 34 of the Indian Penal Code and also for the
offence punishable under Section 135 of the Bombay Police Act. The
Appellants are behind bars for about three months and so the Appellants
are sentenced to suffer imprisonment of the period already undergone.
The other part of the operative over of the trial Court with regard to fine is
maintained and that fine is to be treated as fine imposed for the offence
punishable under Section 324 read with 34 of the Indian Penal Code.
[ T.V.NALAWADE, J. ]
ndm
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71-Cri.Appeal.373.06.doc
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 373 OF 2006
1. Balu s/o Nehaji Garde,
Age 26 years, Occ. Agril.,
R/o. Kathoda, Tal. Georai,
District Beed.
2. Anirudh alias Anil Nehaji Garde,
Age 30 years, Occ. Nil,
R/o. as above.
3. Rakhmaji s/o Nehaji Garde,
Age 35 years, Occ. Agril.,
R/o. as above. ... APPELLANTS
V E R S U S
The State of Maharashtra,
Through P.S.I. Police Station,
Talwada, Tal, Georai, Dist. Beed.
Copy to be served on the Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad. ... RESPONDENT
Mr. R.M. Deshmukh, Advocate for the Appellants.
Mr. D.R.Kale, AGP for Respondent / State.
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71-Cri.Appeal.373.06.doc
CORAM :
T.V.NALAWADE, J.
DATE : 12
th
August, 2013.
ORAL JUDGMENT:
1 The appeal is filed against the judgment and order of
Sessions Case No.113 of 2005, which was pending in Sessions Court,
Beed. 7
th
Adhoc Additional Sessions Judge, Beed has convicted and
sentence the Appellants for the offence punishable under Sections 307
read with 34 of the Indian Penal Code. They are also convicted and
sentenced for the offence punishable under Sections 323 read with 34 of
the Indian Penal Code and also for the offence punishable under Section
504 read with 34 of the Indian Penal Code and the provisions of the
Bombay Police Act.
2 Both the sides are heard.
3 In short, the facts leading to the institution of the appeal can
be stated as follows:
The Complainant Pralhad Tishtak was working as
Police Patil of his village Kathoda. The Appellants are real brothers,
interse. Accused No.4 was their father. The incident took place on 30
th
March, 2004 after 05:30 pm. The Complainant was in the company of his
two labours and he was intercepted at Golegaon Phata by the accused.
The Appellants picked up quarrel with the Complainant by saying that he
was unnecessarily giving support to ExSarpanch Raghunath Kirkit. Then
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71-Cri.Appeal.373.06.doc
Accused Nos.2 and 3 held two hands of the Complainant and Accused No.
1 gave blow of knife on the chest of the Complainant. Accused No.4
allegedly instructed the other accused to finish the Complainant. One
Raghunath Kirkit reached to the spot after the incident and then the
Complainant was shifted to Government Hospital. The Complainant
sustained bleeding injury on his chest during the incident and he gave the
report on the same day.
4 During the course of investigation, all the accused came to be
arrested. On the basis of statement given by Accused No.1 under Section
27 of the Evidence Act, the knife came to be recovered. The clothes of the
Complainant and the accused were taken over. The chargesheet came to
be filed for the aforesaid offence. The charge came to be framed for the
aforesaid offences. The accused took the defence of total denial.
5 In the trial Court, the Complainant and two eye witnesses
were examined. Some witnesses are examined to prove the recovery of
knife at the instance of Accused No.1. Record like CA report is produced.
Doctor is examined to prove the injury certificate in respect of the
Complainant.
6 The Complainant has given evidence against Accused No.1
that he used knife in the incident. He has made allegation that Accused
Nos.2 and 3 were holding his hands when Accused No.1 gave blow of knife
on his chest.
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7 It appears that two eye witnesses mentioned in the FIR dated
30
th
March, 2004, are not examined by the prosecution. Two other
witnesses, who are not named in FIR are examined. They have given
similar version against Accused Nos.1 to 3. The evidence is given as
against Accused No.4 also, but he is acquitted by the trial Court.
8 The evidence of Complainant shows that after giving of FIR by
him, so many statements were given by him. His statement was also
recorded through the Executive Magistrate, which is at Exhibit – 59. In the
so called dying declaration, he disclosed that out of four accused, two
accused were holding him and other two had given blow of knife on his
chest. This circumstance is brought on record by the defence, but the trial
Court has not discussed this circumstance.
9 The evidence collected and which is considered by the trial
Court shows that out of some political dispute, the incident took place. The
evidence in crossexamination shows that one accused reached there
subsequently and he had given the blow of knife. If the Complainant is
believed then it can be said that four persons were involved in the incident.
Inspite of this circumstance, only one injury was found on the chest of the
Complainant. The doctor has described this injury as simple injury. The
learned APP submitted that the intention can be gathered from the
circumstances that Accused No.1 was carrying knife and he had given the
blow on the chest. This Court holds that in view of the aforesaid
circumstances and the variation made in the disclosures by the
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Complainant, it is difficult to believe that any of the accused had intention
to kill the Complainant. If there was really such intention, there was
nobody to prevent the Appellants to inflict more blows. This Court holds
that the trial Court has committed error in holding that the offence
punishable under Section 307 of the Indian Penal Code is proved. Even
when only one person was injured, the trial Court has given conviction for
the offence punishable under Section 323 read with 34 of the Indian Penal
Code also. When the evidence does not disclose that the present
Appellants had given threats or abuses, the conviction is given for the
offence punishable under Section 504 read with Section 34 of the Indian
Penal Code also. These circumstances show that the trial Court did not
apply the mind and the material on record was not correctly appreciated.
This Court holds that at the most the offence punishable under Section 324
is made out and that too against Accused No.1. Even if it is presumed that
Accused Nos.2 and 3 being real brothers of Accused No.1, were present in
the company of Accused No.1, as against them also the material would be
for the offence punishable under Sections 324 read with Section 34 of the
Indian Penal Code. This Court holds that conviction and sentence given
for the offence punishable under Section 307 read with Section 34 of the
Indian Penal Code cannot sustain in law.
10 The learned counsel for the Appellants submitted that the
parties have settled the dispute out of the Court. Affidavit of the original
Complainant is filed on record to that effect. Permission is sought for
compounding the offence as they want to live with peace in the village.
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The offence punishable under Section 324 of the Indian Penal Code also is
not compoundable. However, in view of the compromise, a lenient view
can be taken.
11 The learned counsel for the Appellants placed reliance on the
cases reported as [AIR 1999 Supreme Court 895], (Ram Lal and
another Vs. State of J. and K.) , and [AIR 1999 Supreme Court 2181],
(Surendra Nath Mohanty and another Vs. State of Orissa) . In the first
case, in similar circumstances and when there was material for the proof of
offence punishable under Section 326 of the Indian Penal Code, the Apex
Court took a lenient view due to the compromise and held that
imprisonment for six months, the period undergone was sufficient and the
sentence was reduced accordingly. In the second case, in similar
circumstances, the undergone period, of three months was held to be
sufficient and the sentence was reduced to that extent.
12 In view of the facts and circumstances of the present case and
the observations made in the aforesaid cases by the Apex Court, this Court
holds that a lenient view needs to be taken and the sentence needs to be
reduced.
13 In the result, the appeal is allowed. The judgment and order
of the Sessions Court of convicting and sentencing the Appellants for the
offence punishable under Section 307 read with 34 and Section 323 read
with 34 and Section 504 read with 34 of the Indian Penal Code is hereby
set aside. The Appellants stand convicted for the offence punishable
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71-Cri.Appeal.373.06.doc
under Section 324 read with 34 of the Indian Penal Code and also for the
offence punishable under Section 135 of the Bombay Police Act. The
Appellants are behind bars for about three months and so the Appellants
are sentenced to suffer imprisonment of the period already undergone.
The other part of the operative over of the trial Court with regard to fine is
maintained and that fine is to be treated as fine imposed for the offence
punishable under Section 324 read with 34 of the Indian Penal Code.
[ T.V.NALAWADE, J. ]
ndm
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