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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.3/2016
Ganesh Shankar Chavan,
aged about 46 Yrs.,
R/o Kolgaon Bk., Tq. Malegaon,
Distt. Washim. ..Appellant.
..Vs..
State of Maharashtra,
through Police Station Officer,
Malegaon, Distt. Washim. ..Respondent.
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Shri S.D. Chande, Advocate for the appellant.
Shri T.A. Mirza, A.P.P. for the State / respondent.
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CORAM : Z.A.HAQ, J.
DATE : 7.7.2017. ORAL JUDGMENT
1. Heard Shri S.D. Chande, Advocate for the appellant and Shri T.A. Mirza, A.P.P. for the State / respondent.
2. The accused has filed this appeal to challenge the judgment passed by the Sessions Court convicting him for the offence punishable under Section 304-II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for 30 days. ::: Uploaded on - 25/07/2017 ::: Downloaded on - 28/08/2017 09:24:12 :::
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3. The case of the prosecution is that on 17 th May, 2013 at about 5.30 p.m. the accused (appellant and his wife) committed murder of Arvind Dipke near the grocery shop of Balu Pawar by giving blows on the neck and near ear of the deceased. According to the prosecution, the appellant / accused No.1 gave blows by knife.
The crime was registered on the complaint lodged by Atul (son of deceased). After the registration of F.I.R., the investigation was undertaken and the appellant and his wife were arrested and after completing the investigation and necessary formalities, the charge-sheet was filed before the Court of Judicial Magistrate First Class for the offence punishable under Sections 302 and 307 of the Indian Penal Code and as the offence is punishable by the Sessions Court, the case was committed to the Sessions Court.
The Sessions Court framed the charges, explained the charges to the accused and as the accused did not accept the guilt, the trial was conducted. After conducting the trial, the Sessions Court recorded that the prosecution has proved that Arvind died homicidal death on 17th May, 2013, the prosecution has failed to prove the charge under Section 302 of the Indian Penal Code, however, the prosecution has proved the charge under Section 304-II of the Indian Penal Code against the accused No.1 - Ganesh /appellant.
On the basis of the findings recorded, the learned Sessions Judge acquitted the accused of the offence punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code, however, convicted the accused ::: Uploaded on - 25/07/2017 ::: Downloaded on - 28/08/2017 09:24:12 ::: 3 apeal3.16 No.1 / appellant for the offence punishable under Section 304-II of the Indian Penal Code and sentenced him as per the order.
4. The learned Advocate for the appellant has pointed out the conclusions of the learned Sessions Judge in paragraph No.32 of the impugned judgment and has submitted that once the Sessions Court doubted the claim of the eye witnesses that they have witnessed the incident, the appellant could not have been convicted.
5. With the assistance of the learned Advocate for the appellant and learned A.P.P. I have examined the record.
6. After considering the evidence of the prosecution witnesses and the other evidence available on record, the learned Sessions Judge has recorded that the occurrence of the incident is proved by the prosecution and it was outcome of a sudden fight between the appellant and the deceased. The learned Sessions Judge has exhaustively dealt with the evidence on record in paragraph No.33 and 35 of the judgment and has concluded in paragraph No.36 of the judgment that though the accused (appellant) was having knowledge that due to his act death of the victim can be caused, there was no intention to commit murder of the victim. I find that the conclusions of the learned Sessions Judge are based on proper appreciation of evidence on record. ::: Uploaded on - 25/07/2017 ::: Downloaded on - 28/08/2017 09:24:12 :::
4 apeal3.16 The submission made by the learned Advocate for the appellant relying on paragraph No.32 of the judgment cannot be accepted as the conclusions in this paragraph are on the point that none of the eye witnesses have actually witnessed the incident of assault by the accused on the victim. The learned Sessions Judge has not committed any error in appreciating the evidence on record and concluding that the occurrence of incident is proved by the prosecution. I do not find any error in appreciation of evidence by the learned Sessions Judge which necessitates interference by this Court with the conclusions convicting the appellant.
7. The learned Advocate for the appellant has made alternate submission that looking to the nature of incident and the fact that the appellant, who works as labourer for his livelihood, the sentence be reduced. Though the learned A.P.P. has opposed this alternate submission made by the learned Advocate for the appellant, considering the facts of the case, in my view, the interests of justice would be sub-served by passing the following order:
The judgment passed by the Sessions Judge convicting the appellant for the offence punishable under Section 304-II of the Indian Penal Code is maintained, however, the sentence imposed by the learned Sessions Judge directing the appellant to undergo rigorous imprisonment for 10 years is modified and it is directed that the appellant is sentenced to undergo imprisonment for 7 years.
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5 apeal3.16 The order passed by the Sessions Judge directing the appellant to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for 30 days is maintained.
The judgment passed by the Sessions Court in Sessions Case No.122/2013 on 13th January, 2015 is modified accordingly.
The appeal is partly allowed in the above terms.
The muddemal property be dealt with according to law after the period of appeal is over.
JUDGE Tambaskar.
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