State Of Mah vs Shahaji Bajirao Waghmare
2016 Latest Caselaw 1336 Bom

                                                               Cri.Appeal No.200/2005
                                              1




                                                                               
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                       
                        CRIMINAL APPEAL NO.200 OF 2005




                                                      
     The State of Maharashtra
     through Sou. Mandakini w/o
     Dharmraj Waghmare
     R/o Pangaon, Tq. Kallam,




                                         
     District Osmanabad                                 ...   APPELLANT
                              ig                  (Original Complainant)

              VERSUS
                            
     Shahaji Bajirao Waghmare,
     Age 23 years, Occu. Agri.,
     R/o Pangaon, Tq. Kallam,
     District Osmanabad                                ...      RESPONDENT
      


                       .....
   



     Shri A.M. Phule, A.P.P. for appellant/ State
     Shri D.H. Jadhav, Advocate for respondent - not present
                       .....





                                     CORAM:       A.I.S. CHEEMA, J.

                                     DATED:       7th April, 2016.





     ORAL JUDGMENT :

1. Heard learned A.P.P. for the appellant/ State.

2. This appeal is by State seeking enhancement of the

sentence which was passed by the trial Court. The facts in brief

Cri.Appeal No.200/2005

are as follows.

3. On 2.9.1994, at about 9.00 p.m., at village Pangaon,

Taluka Kallam, the accused committed criminal trespass by

entering into the house of complainant Mandakini and causing

hurt to her by using sword. The accused had run away after

causing injury. The accused had been seeking partition.

4.

The F.I.R. was registered and the offence was

investigated. The sword was discovered from the house of

accused. Police prepared spot panchanama. The statements of

witnesses were recorded and charge sheet was filed. The

Assistant Sessions Judge framed charge under Section 452, 307,

341, 504 and 506 of the Indian Penal Code. Prosecution

examined the complainant as P.W.2 and her daughter Jayshree

as P.W.1 to corroborate. The F.I.R. was proved. The Medical

Officer P.W.3 Manik Dikale was also examined to prove the

medical certificate. The panchas of the recovery and spot P.W.3

to P.W.5 turned hostile. The investigating officer was examined

as P.W.7.

5. The trial Court, after considering the evidence,

acquitted the accused of Sections 341, 504 and 506 of the Indian

Penal Code. The accused was convicted for offence under

Cri.Appeal No.200/2005

Section 324 of the Indian Penal Code and sentenced to suffer

simple imprisonment for three months; for offence under Section

452 of the Indian Penal Code, it was directed that the accused to

suffer simple imprisonment for three months and to pay fine of

Rs.2000/-, in default to suffer simple imprisonment for one

month. Against such sentence passed, the present appeal was

filed by the State with a prayer to enhance the sentence.

6.

The learned A.P.P. vehemently argued and submitted

that the sentence of the accused was much inadequate. The

A.P.P. submitted that, the facts of the matter spelt out an offence

under Section 307 of the Indian Penal Code. The blow given on

the head was by sword and actually Section 307 of the Indian

Penal Code was attracted. A.P.P. submitted that, the medical

certificate and the evidence of P.W.3 shows that, injury No.1 and

2, which are caused to complainant Mandakini were possible by

sharp weapon and injury No.3 was caused by hard and blunt

object. The injury No.1 and 2 are incised wound on right sholder

while the injury No.3 - contused lacerated wound was on the

head, which was bone deep. The learned A.P.P. submitted that,

keeping this in view, the sentence was most inadequate.

7. Going through the material available and going

Cri.Appeal No.200/2005

through the evidence of P.W.3 Dr. Manik Dikale read with the

medical certificate, A.P.P. is unable to show that any of the

injuries of complainant were grievous. P.W.3 Dr. Manik Dikale

has stated that the injuries were simple. It is the evidence of

doctor that the injury No.1 and 2 could be caused by sword. The

same were on the shoulder. Although the doctor deposed that

injury No.3 was on vital part of body and if treatment would not

have been given in time, death was possible, still when the trial

Court recorded judgment convicting the accused under Section

324 of the Indian Penal Code, the State did not file appeal

against acquittal under Section 307 of the Indian Penal Code.

Now it would not be appropriate to go into the question whether

Section 307 was made out if the State did not file appeal against

acquittal under Section 307 of the Indian Penal Code. The trial

Court, in its reasonings, proceeded on the basis that offence

under Section 307 is not made out and that offence under

Section 324 is made out. Accordingly, the sentence was passed.

Present appeal is only regarding inadequate sentence.

8. As regards the question if sentence under Section

324 of the Indian Penal Code was insufficient, reference may be

made to para 36 of the judgment. The trial Court observed as

under :

Cri.Appeal No.200/2005

"36. On hearing both sides particularly the accused in person admittedly the alleged offence was committed

out of landed dispute. As such accused has no personal enmity with the victim for any other reason. The victim and accused are related to each other. I am told at the bar by learned Advocate Mr. B.R. Mane that, accused was in jail for about 11 months. Besides that,

considering the fact that, accused is married person shouldering responsibility of wife and two kids and as well as he is poor agriculturist, in my opinion, no fruitful purpose would be served, if he is sent behind the bar. Considering above aspects to meet the ends of justice,

I proceed to pass the following order :

ig ORDER

Accused is acquitted of the offences punishable

under Section 341, 504 and 506 of I.P.C.

Accused is convicted of the offence punishable under Section 324 of I.P.C. and sentenced to suffer simple imprisonment of 3 months.

Accused is also convicted of the offence

punishable under Section 452 of I.P.C. and sentenced to suffer simple imprisonment for 3 months and to pay a fine of Rs.2000/- in default to suffer simple imprisonment for one month.

Both the sentences to run concurrently.

Accused is entitled for set off, under Section 428 of Cr.P.C.

Out of fine realized, an amount of Rs.1500/- be

paid to complainant Mandakini Dharmaraj Waghmare after appeal period.

The muddemal property sword and clothes being worthless be destroyed after appeal period."

9. Looking to the above paragraph, it is clear that the

trial Court took note of the fact that the accused was in jail for

Cri.Appeal No.200/2005

about 11 months and that the dispute arose because of property

and there was no personal enmity as such. The trial Court took

note of the fact that the accused was married and had wife and

children and that he is a poor agriculturist. Thus, it exercised its

discretion.

10. Unless it can be shown that the discretion exercised

was illegal/ arbitrary or sentence is frivolous, interference will not

be appropriate. In the facts of the matter, no such grounds are

made out looking to reasons recorded by trial Court.

11. For such reasons, I do not find any substance in the

appeal. The appeal is dismissed.

(A.I.S. CHEEMA, J.)