Bhandari & Ors. Vs State of Maharashtra & ANR
R.M. Lodha, J.
persons - the appellants and two others - were sent up for trial, inter alia, for
various offences punishable under the Indian Penal Code, 1860 (`IPC') initially
to the Court of IInd Additional Sessions Judge, Ahmednagar; later on trial was
transferred to the Court of IInd Additional Sessions Judge, Shrirampur. The
trial court acquitted two of them but convicted the appellants vide judgment
dated December 10, 1997 for the offences punishable under Section 307 read with
Section 149 IPC; Section 332 read with Section 149 IPC; Section 353 read with
Section 149 IPC; Section 147 IPC and Section 148 IPC. As regards the offence punishable
under Section 307 read with Section 149 IPC, the trial court sentenced them to
suffer rigorous imprisonment for five years and to pay fine of Rs. 5000/- each
with a default stipulation. For the other offences, lesser punishment was awarded.
The trial court ordered the substantive sentences to run concurrently.
convicts (appellants) filed criminal appeal before the High Court of Judicature
at Bombay, Appellate Side, Bench at Aurangabad. The High Court vide its
judgment dated February 3, 2010 set aside the conviction of the appellants for
the offences punishable under Sections 147 and 148 IPC and altered their
conviction to Section 307 read with 2Section 34, Section 332 read with Section
34 and Section 353 read with Section 34 IPC and sentenced them to suffer rigorous
imprisonment for five years and to pay a fine of Rs. 5,000/- for the offence under
Section 307 read with Section 34 IPC and lesser punishment for the other
offences. The High Court also ordered that the substantive sentences shall run
is from the above judgment of the High Court that the appellants have come up
in appeal, by special leave.
Baurao Darandale (PW-8) was posted as a clerk in the Block Office of Bhenda
Co-operative Sugar Factory Limited, Bhenda (Bk.) (for short, `the Sugar
Factory'). On May 17, 1991 at about 11.00 a.m., Pradip Harakchand Bhandari (A-2)
went to the office of the Sugar Factory and asked PW-8 to take entry of the
sugarcane grown by him. PW-8 informed A-2 that he could not do that as the
revenue entry relating to the land where sugarcane has been grown bears an endorsement
of injunction. PW-8 told A-2 that he should take permission in this regard from
the Overseer -- Lahanu Garje (PW-7). On hearing this, A-2 became infuriated and
abused PW-8 and beat him. Balasaheb Bhagwant Wabale (PW-5), PW-7 and few others
arrived there and intervened. A-2 then went away.
then went to the head office of the Sugar Factory along with PW-7 and gave report
of the incident. At that time, two brothers of A-2 came there and started
abusing. However, the two agricultural officers present there persuaded them to
go away and they left the place. PW-8 then went to Kukana Police Outpost along
with security officer Tanaji Datir (PW-10) for lodging the complaint. At that time,
Rajendra Harakchand Bhandari (A-1), Sunil Deshmukh (A-3), Bandu Deshmukh (A-4),
Sunil Sheshrao Garje (A-5), Sopan Pandurang Kharade (A-6) came there along with
A-2. It was about 1.00 to 1.30 p.m. A-1 was armed with sword while the others were
armed with sticks. A-1 asked PW-8 to come out but he refused; A-1 then entered
the police outpost and gave blow with sword on the head of PW-8. The other
accused -- A-2, A-3, A-4, A-5 and A-6 -- also started beating PW-8. 4A-2 and
A-5 gave beating to Yadav Bhagwanta Satpute (PW-4) and PW-10 as well.
informed the incident to the Police Station, Nawasa. Suryakant Pansare (PW-14) --
Assistant Police Inspector -- immediately reached the scene of incident along with
the staff. The complaint of PW-8 was registered. PW-14 then recorded the
statement of PW-4 and also statements of few persons who were present there.
The panchnama of the spot was also drawn.
to A-3 ran away; went into hiding and obtained anticipatory bail. They surrendered
on May 29, 1991 and produced the sword and sticks. PW-14 thereafter completed the
investigation and submitted charge sheet in the concerned court. The accused
were committed to the Court of Sessions.
prosecution examined 14 witnesses (of them PW-8, PW-4 and PW-10 were injured). In
defence, A-1, who set up the plea of alibi, examined three witnesses.
was medically examined immediately after the incident by Dr. A.M. Firodiya (PW-2).
On the person of PW-8, the following injuries were found : "(1) Incised wound
5-1/2 c.m. x 2 c.m. x muscle deep on the right parietal region, on the head near
the occipital region oblique in direction, bleeding present. (2) C.L.W. 4 c.m. x
1 c/m. x skin deep on the right parietal region mid point, transverse in direction.
(3) C.L.W. 3 c.m. x 1 c.m. x skin deep, on the left occipital region on the
head. (4) C.L.W. 3 c.m. x 1 c.m. x skin deep on the left parietal region
posteriorly. (5) C.L.W. 1-1/2 c.m. x 1 c.m. x skin deep on the left side of
head on the parietal region, above No. 4 injury. (6) C.L.W. 1-1/2 c.m. x 1 c.m.
x skin deep on the left parietal region near No. 5 injury. (7) C.L.W. 2-1/2
c.m. x 1 c.m. x skin deep on the parietal region on the head near injury No. 6.
(8) Contusion 4 c.m. x 1-1/4 c.m. on the right thigh lower part." According
to PW-2, injury no. 1 was caused by a sharp object which was possible with the
sword. In his opinion, the injuries 6on the person of PW-8 were sufficient in
the ordinary course of nature to cause death.
was also medically examined by PW-2. PW-2 found the following injuries on the
person of PW-10: "(1) Scratch 3 c.m. x 1/2 c.m. on the right leg popliteal
region. (2) Contusion 4 c.m. x 1/1/2 c.m. on the left leg popliteal region. (3)
Contusion 2 c.m. area on the left side of back near below scapula. (4) Contusion
2 c.m. area on the right side of back below scapular region. (5) Pain in left
hand little finger."
medical examination of PW-4, PW-2 found the following injuries: "(1) Contusion
14 c.ms. x 1 c.m. x on the left side of back. Scapular region above downwards. (2)
Swelling and tenderness on the left hand near the little finger. (3) Contusion 21
c.m. x 2 c.m. on the chest oblique in direction passing sternum."
A-1 was armed with a sword and A-2, A-5 and A-6 were armed with sticks and that
they caused injuries to 7PW-4, PW-8 and PW-10 is clearly established from the prosecution
evidence. Although PW-10 was injured in the incident and he did not fully
support the prosecution case - he was declared hostile as he was not honest in telling
to the court the whole truth - but the testimony of PW-4 and PW-8 is, however, trustworthy.
Their evidence, besides medical evidence, is corroborated by Suresh Nikam
(PW-12), who was working in his bicycle repairing shop and on hearing shouts, came
out and saw that PW-8 was injured, his clothes were torn and there was crowd of
trial court and the High Court on appreciation of the entire evidence on record
have accepted the prosecution case that on May 17, 1991 at about 1.00 p.m., A-1,
A-2, A-5 and A-6 armed with sword and sticks attacked PW-8 and as a result thereof
he sustained eight injuries; six of these injuries were on head; injury no. 1 was
caused by the sharp object and the injuries caused by them to PW-8 were sufficient
in the ordinary course of nature to cause his death. Insofar as High Court is
concerned, it overturned the finding of the trial court as regards formation of
unlawful assembly and 8acquitted the appellants for the offences punishable under
Sections 147 and 148 but maintained their conviction by altering it to Section 307
read with Section 34; Section 332 read with Section 34 and Section 353 read
with Section 34. In our opinion, the consideration of the matter by the High
Court does not suffer from any error of fact or law. The plea of alibi set up
by A-1 has not been accepted by the trial court as well as the High Court and
we have no justifiable reason to take a different view on that count.
a matter of fact, Mr. Shekhar Naphade, learned senior counsel for the
appellants did not seriously contest the conviction of the appellants for the
above-mentioned offences. He mainly argued for reduction of sentence. Learned senior
counsel would submit that the appellants were sugarcane growers and the incident
occurred because PW-8 refused to make entry of sugarcane planted by A-2. He
submitted that the incident is almost two-decade old and during this time, relations
between the parties have become cordial and, as a matter of fact, they have
compromised their dispute. He also submitted that the appellants do not have any
criminal 9background and they have not been involved in any crime earlier.
must immediately state that the offence under Section 307 is not compoundable
in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and, therefore,
compounding of the offence in the present case is out of question. However, the
circumstances pointed out by the learned senior counsel do persuade us for a lenient
view in regard to the sentence. The incident occurred on May 17, 1991 and it is
almost twenty years since then. The appellants are agriculturists by occupation
and have no previous criminal background. There has been reconciliation amongst
parties; the relations between the appellants and the victim have become cordial
and prior to the appellants' surrender, the parties have been living peacefully
in the village. The appellants have already undergone the sentence of more than
two and a half years. Having regard to these circumstances, we are satisfied that
ends of justice will be met if the substantive sentence awarded to the
appellants is reduced to 10the period already undergone while maintaining the
amount of fine.
while confirming the conviction of the appellants for the offences punishable
under Section 307 read with Section 34, Section 332 read with Section 34 and Section
353 read with Section 34, the substantive sentence awarded to them by the High Court
is reduced to the period already undergone. The fine amount and the default
stipulation remain as it is.
appeal is allowed in part to the extent above.
J. (R. M. Lodha)
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