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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.276 OF 2002
The State of Maharashtra,
through Police Station Officer,
Gadgenagar, Amravati. ....... APPELLANT
...V E R S U S...
Tekchand Motumal Sadani,
Aged 48 years, R/o Krushna Nagar,
Amravati. ....... RESPONDENT
WITH
CRIMINAL APPEAL NO.285 OF 2002
The State of Maharashtra,
through Police Station Officer,
Gadgenagar, Amravati. ....... APPELLANT
...V E R S U S...
Khemchand Lalchand Thadani,
Aged 43 years, R/o Sahkar Nagar,
Amravati. ....... RESPONDENT
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Shri H.R. Dhumale, APP for Appellant.
Shri R.M. Daga, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
26 SEPTEMBER, 2017.
ORAL JUDGMENT
1] Khemchand Lalchand Thadani and Tekchand
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Motumal Sadani faced trial for the offence punishable under section 324 read with section 34 of Indian Penal Code. By judgment and order dated 15.03.2002 in Regular Criminal Case 93/1999, the learned Judicial Magistrate First Class Court 3, Amravati was pleased to acquit Tekchand Motumal Sadani and to convict Khemchand Lalchand Thadani of offence punishable under section 324 of I.P.C. and to sentence Khemchand to imprisonment till rising of the Court and to payment of fine of Rs.1000/-. 2] Criminal Appeal 276/2002 is preferred by the State challenging the acquittal of Tekchand while Criminal Appeal 285/2002 is preferred by the State seeking enhancement of the sentence awarded to Khemchand.
3] Shri H.R. Dhumale, the learned A.P.P. has taken me through the entire evidence on record. The submission is, that the acquittal of Tekchand is against the weight of evidence. I am not convinced. The case of the prosecution, as can be culled out from the First Information Report lodged by Bulchand Tanwani is that at 11:30 a.m. on 09.04.1999 Khemchand, Tekchand, Vasantram and Pahlajmal came to the house of the complainant situated in ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 ::: apeal276.02+.J.odt 3 the premises of the factory owned by the complainant and started demanding refund of the partnership contribution of Rs.40,000/-. The informant told them that he did not have the amount then and there upon Khemchand and Tekchand started assaulting the informant. Khemchand and Tekchand inflicted a blow on the head of the informant from the backside with article lying in the factory and also inflicted blow on the nose of the informant. The F.I.R. further states Tekchand assaulted the son of the informant one Prakash with a wooden stool when Prakash attempted to intervene and rescue the informant.
4] Chandrashekhar Raut, supposed to be an eye witness is examined as P.W.1. He has not supported the prosecution and nothing is brought out in the cross examination by the A.P.P. to assist the prosecution. Pertinently, in the cross-examination on behalf of the accused, P.W.1 admits that he still employed with the complainant. Bulchand is examined as P.W.2 and states in the examination-in-chief that Khemchand inflicted blow 'of something' on his head from back side. He then states that his son Prakash came and Tekchand pressed the neck of Prakash and Khemchand inflicted a blow on the head of Prakash. In the cross-examination, ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 ::: apeal276.02+.J.odt 4 the statement that Khemchand dealt blow of stool on the head of P.W.2 and also on the head of Prakash is brought on record as an omission which is subsequently proved in the cross-examination of the I.O. The witness admits in the cross-examination that he was not assaulted by both Khemchand and Tekchand. Prakash is examined as P.W.3. He says that Khemchand inflicted a blow on the head of his father P.W.2. Prakash further states that when he intervened, accused Tekchand pressed his throat and accused Khemchand assaulted him with a stool on the head. One Ravi Sable P.W.5 who is examined as eye witness did not support the prosecution and nothing material is elicited in the cross-examination conducted by the learned A.P.P. Nitin Hinge is examined as P.W.6 who does support the prosecution to certain extent in the examination-in-chief. However, in the cross-examination the statement that out of the four persons one person assaulted P.W.2 with stool is shown to be an omission. The witness admits that he was not knowing the names of the assailants and it was Prakash who told the witness that the person who assaulted is Khemchand. Subhash Walekar who is examined as P.W.7. In the cross-examination, it is extracted from the said witness that when he noticed the incident, P.W.2 had fallen on the ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 ::: apeal276.02+.J.odt 5 table and blood was oozing from his head. The effort of the defence was to demonstrate that Subhash Walekar did not witness the incident. The Doctor Sheshrao Diwan is examined as P.W.10. He states that the injury described in Exh.44, which is the certificate pertaining to Prakash, is simple and is possible due to dash with some hard object. He admits that he did not notice any injury on the throat of Prakash and that if there is an attempt to press the neck, then some mark is likely to be visible. 5] In so far as the acquittal of Tekchand is concerned, I do not find any perversity in the view taken by the learned Magistrate. The evidence on record is grossly insufficient to hold Tekchand guilty of any offence much less under section 324 of I.P.C. The question of section 34 of I.P.C. being attracted also does not arise. Concededly, four persons including Khemchand and Tekchand went to the house and factory of P.W.2 to demand money. Nobody was armed. Possibly in the heat of the moment a blow was inflicted using a stool as a weapon of offence. It is difficult to hold that there was any meeting of mind or concerted planning so as to attract section 34 of I.P.C. There is nothing on record to suggest that Tekchand shared a common intention to ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 ::: apeal276.02+.J.odt 6 cause injury to Bulchand or his son Prakash. Criminal Appeal 276/2002 is without substance and must be rejected. 6] Shri Dhumale, the learned A.P.P. however, is serious in contending that the sentence awarded to Khemchand must be enhanced. He would urge that the sentence of imprisonment till rising of the Court is a mockery of justice. I do see some substance in the submission of the learned A.P.P. It is obvious that the learned Magistrate has been extremely lenient in awarding the punishment of imprisonment till rising of the Court. However, I am not inclined to enhance the sentence at this stage. The incident occurred about 18 years ago. It is true that the victim suffered an injury. But then, in the altercation and in a hit of passion, Khemchand picked up a stool and inflicted a solitary blow on the head of Bulchand. I do not consider it appropriate to enhance the sentence at this stage and after 18 years although I must reiterate that the learned A.P.P. is right in contending that the punishment till rising of the Court ought not to have been awarded then.
7] Shri R.M. Daga, the learned counsel for the accused ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 ::: apeal276.02+.J.odt 7 states that in order to express remorse the accused Khemchand has volunteered to contribute an amount of Rs.20,000/- to the District Legal Aid Committee, Amravati. This statement is accepted as an undertaking to the Court. The needful be done in a four weeks and the compliance praecipe be filed in the Registry. 8] In view of the aforesaid findings and observations, Criminal Appeal 285/2002 is also rejected.
9] If the amount is not deposited within the stipulated period, the prayer of the state for enhancement of the sentence may have to be considered afresh.
JUDGE NSN ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:41:07 :::