2013 ALL MR (Cri) 3778
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T.V. NALAWADE, J.

Balu S/O. Nehaji Garde & Ors. Vs. The State Of Maharashtra

Criminal Appeal No. 373 of 2006

12th August, 2013

Petitioner Counsel: Mr. R.M. DESHMUKH
Respondent Counsel: Mr. D.R. KALE

(A) Penal Code (1860), Ss.307, 323, 504, 324, 34 - Bombay Police Act (1951), S.135 - Attempt to murder, grievous hurt and breach of peace - Appeal against conviction - Incident arising out of political dispute - Police Patil i.e. complainant was given a knife blow on his chest - Variation in his statement as to number of accused involved - Eye witnesses named in FIR not examined, those examined were not named in FIR - Single injury on chest of complainant was described by doctor as simple one - Considering circumstance and variations in statement of complainant, held, intention to kill the complainant cannot be drawn - If there was any such intention, accused could inflict more blows - Conviction under S.307 not sustainable - Offences under Ss.323 and 504 also not made out - At most, conviction can be under S.324 IPC and S.135 of Bombay Police Act. (Paras 7, 8, 9)

(B) Penal Code (1860), S.324 - Criminal P.C. (1973), S.320 - Grievous hurt by dangerous weapon - Compounding of offence - Offence is not compoundable, however when parties settle their dispute lenient view in matter of sentence can be taken. (Paras 12, 13)

Cases Cited:
Ram Lal & Anr. Vs. State of J. and K., 1999 ALL MR (Cri) 515 (S.C.) =AIR 1999 SC 895 [Para 11]
Surendra Nath Mohanty & Anr. Vs. State of Orissa, 1999 ALL MR (Cri) 1267 (S.C.) =AIR 1999 SC 2181 [Para 11]


JUDGMENT

JUDGMENT :- The appeal is filed against the judgment and order of Sessions Case No.113 of 2005, which was pending in Sessions Court, Beed. 7th Ad-hoc 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 30th 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 Ex-Sarpanch Raghunath Kirkit. Then 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 charge-sheet 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.

7. It appears that two eye witnesses mentioned in the FIR dated 30th 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 cross-examination 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 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. 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] : [1999 ALL MR (Cri) 515 (S.C.)], (Ram Lal and another Vs. State of J. and K.), and [AIR 1999 Supreme Court 2181] : [1999 ALL MR (Cri) 1267 (S.C.)], (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 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.

Appeal allowed.