1 apeal458.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.458 OF 2004
1) Soma s/o Daulat Shivankar, -(Appeal abated)
Aged 43 years
2) Gunwant s/o Nilkanth Shivankar,
Aged 22 years,
3) Moreshwar s/o Gopal Shivankar,
Aged 46 years,
4) Shripat s/o Shalikram Shivankar,
Aged 21 years,
5) Kusoba s/o Bhiwaji Shivankar,
Aged 24 years,
6) Dilip s/o Dadaji Shivankar,
Aged 25 years,
7) Damodar s/o Baburao Shivankar,
Aged 24 years,
8) Deorao s/o Govinda Narule,
Aged 24 years,
All R/o Palependhari, Tahsil -
Lakhandur, District Bhandara. .... APPELLANTS
VERSUS
The State of Maharashtra,
through P.S.O. Palandur, Tahsil -
Lakhandur, District - Bhandara. .... RESPONDENT
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2 apeal458.04
______________________________________________________________
Shri R.M. Daga, Advocates for the appellants,
Ms. Trupti Udeshi, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 15 NOVEMBER, 2017.
th ORAL JUDGMENT :
Appellant 1 Soma Daulat Shivankar is dead and the appeal against appellant 1 stands abated as ordered by this Court on 13-11-2017.
2. Appellant 3 Moreshwar Gopal Shivankar is suffering from paralysis and is not in a position to attend the Court.
3. Shri R.M. Daga, learned Advocate who is appearing on behalf of appellants 2 to 8 states that the appellants and the complainant Shri Rajendra Gajghate have resolved their inter se differences since long. Appellants 2 to 8, except appellant No.3, are personally present in the Court. The complainant Rajendra Gajghate is also present in the Court and is represented by learned Advocate Smt. S.P. Kulkarni. I have personally questioned the complainant who asserts that his relations with the original accused have become cordial ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:06 ::: 3 apeal458.04 and they intend to forget all past disputes and live a peaceful life. The learned Advocate Smt. S.P. Kulkarni has identified the complainant Rajendra Gajghate.
4. The complainant Rajendra Gajbhate has also filed on record an affidavit dated 15-11-2017 to the said effect.
5. The offence under Section 307 of the Indian Penal Code is non-compoundable. However, consistent with the course adopted by the Hon'ble Supreme Court in the case of Ishwar Singh vs. State of M.P. reported in 2009 All MR (Cri.) 560 (SC) and followed thereafter while maintaining the conviction of the surviving appellants, I consider it appropriate to alter the sentence to already undergone.
6. Shri R.M. Daga, learned Advocate for the surviving appellants states that they have already undergone two months or thereabout detention.
7. I am persuaded to alter the sentence for reasons more than one. Firstly, the incident took place in the year 1998. The case of the prosecution is that the provocation for the assault was an unsavory and ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:06 ::: 4 apeal458.04 unfortunate incident involving the daughter of appellant 1 Soma and the complainant. Secondly, the surviving appellants appear to be agriculturists and labours who, according to the learned Advocate Shri R.M. Daga, do not have any criminal record. I have also given due consideration to the injuries suffered by the complainant. Since the surviving appellants and the complainant have decided to live peaceful life, I do not find it appropriate to record any further observation on the merits of the appeal. Suffice it to say that having given due consideration to the circumstances leading to the incident, the nature and extent of injury, the period undergone and the fact that the incident occurred in 1998 and the fact that the surviving appellants and the complainant are residing in the same village peacefully, I have deemed it appropriate in the peculiar facts of the case, to maintain the conviction and alter the sentence to already undergone.
8. The appeal is disposed of accordingly. The bail bonds of the accused shall stand discharged.
JUDGE adgokar ::: Uploaded on - 16/11/2017 ::: Downloaded on - 17/11/2017 01:58:06 :::