Sandip S/O Shrikisan Khanzode vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 1048 Bom

                                          1                                          apeal87.16




                                                                                  
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                          
                              NAGPUR BENCH, NAGPUR.


     CRIMINAL APPEAL NO. 87 OF 2016




                                                         
     Sandip s/o Shrikisan Khanzode,
     Aged about 24 years, 
     Occupation - Labour,




                                             
     R/o Mahagoan, Washim, 
     Tq. and District Washim. ig                                   ....       APPELLANT


                        VERSUS
                            
     The State of Maharashtra, 
     through Police Station Officer, 
     Police Station Risod, Tq. Risod,
      


     District Washim.                                              ....       RESPONDENT
   



     ______________________________________________________________
                 Shri A.D. Girdekar, Advocate for the appellant, 





          Shri S.M. Bhagde, Addl. Public Prosecutor for the respondent.
      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 31 MARCH, 2016.

st

ORAL JUDGMENT :

1. Heard Shri A.D. Girdekar, Advocate for the appellant and

Shri S.M. Bhagde, Additional Public Prosecutor for the respondent.

2. The appellant has challenged the judgment passed by the

learned Sessions Judge convicting the appellant for offence punishable

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under Section 323 read with Section 34 of the Indian Penal Code and

sentencing to suffer simple imprisonment for one month and to pay

fine of Rs.1,000/- and in default of payment of fine to undergo simple

imprisonment for fifteen days.

3. The case of the prosecution is :

The report was lodged on 26-08-2012 by Kishore Wanare

who was working as Talathi at Risod, contending that on that day he

received information that three Tractors were proceeding from

Mothegaon towards Risod and anticipating that the Tractors were

carrying illegal excavated sand, the applicant went to Malegaon Sqaure

and waited for the tractors. It was stated that one Tractor carrying

sand without permit came to the square, it was stopped and on enquiry

about the royalty, the driver of the Tractor got down and stated that

there was no permit to carry the sand. It was stated that when the

driver-Sandip (appellant) was asked to take the Tractor to police

station, he slapped the complainant and the co-accused Arshadali

abused the complainant and drove away the Tractor and while driving

away the Tractor tried to run over the person of the complainant

because of which the complainant had fallen and had suffered injury to

his left hand.

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On the complaint, crime was registered and investigation

was undertaken. After the investigation was completed, charge-sheet

was filed before the learned Magistrate and as the offence punishable

under Section 307 of the Indian Penal Code is triable by the Court of

Sessions, the matter was committed to the Court of Sessions.

The charge was framed, read over and explained to the

accused who did not accept the guilt and claimed to be tried.

The Sessions Court conducted the trial and by the

impugned judgment convicted the accused.

4. Shri A.D. Girdekar, Advocate for the appellant has

submitted that the learned Sessions Judge has concluded that the

prosecution has failed to prove that the accused obstructed the

complainant from performing his duties as public servant and had

voluntarily caused hurt to the complainant Kishore while he was

discharging his duty as public servant and in view of these findings,

there cannot be conviction as recorded by the learned Sessions Judge.

It is submitted that the learned Sessions Judge having found that part

of the contentions of the complainant regarding commission of offence

punishable under Sections 353, 332 and 307 read with Section 34 of

the Indian Penal Code having not been established, the contentions of

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the complainant regarding commission of offence punishable under

Section 323 read with Section 34 of the Indian Penal Code should not

have been believed. The learned Advocate has referred to the evidence

of the complainant Kishore (P.W.1) and has pointed out the admission

in examination-in-chief that the recital in the report about giving of

slap to the complainant by Sandip (appellant) was not stated by the

complainant. It is submitted that in view of the evidence of the

complainant, the conviction is unsustainable and has to be set aside.

5. Alternatively it is submitted that the sentence is of one

month and the appellant has already undergone substantial part of

sentence and considering the facts on the record and that the appellant

had not been involved in any crime earlier, the sentence be modified

and it be directed that the appellant be released having undergone the

punishment for the period for which he had been in Jail.

6. The learned Additional Public Prosecutor has supported

the judgment and has prayed that the appeal be dismissed.

7. With the assistance of the learned Advocate for the

appellant and learned Additional Public Prosecutor for the respondent,

5 apeal87.16

I have examined the evidence of the complainant Kishore. After

assessing the evidence and other circumstances brought on record, the

learned Sessions Judge has concluded that the prosecution has proved

that the accused had voluntarily caused hurt to the complainant by

slapping him and giving dash of Tractor to him. The learned Sessions

Judge has rightly convicted the appellant for offence punishable under

Section 323 read with Section 34 of the Indian Penal Code. I see no

reason to interfere with the findings recorded by the learned Sessions

Judge. The judgment passed by the learned Sessions Judge recording

conviction of the appellant for offence punishable under Section 323

read with Section 34 of the Indian Penal Code is maintained.

8. However, considering the fact that the appellant is

involved in crime for the first time, in my view, the interests of justice

would be sub-served by modifying the sentence imposed on the

appellant and instead of sentencing the appellant to suffer simple

imprisonment for one month, the appellant is sentenced to undergo

simple imprisonment for the period for which he had been in Jail. The

order passed by the learned Sessions Judge imposing fine of Rs.1,000/-

on the appellant and in default of payment of fine directing the

appellant to undergo simple imprisonment for fifteen days is

6 apeal87.16

maintained.

9. Hence, the following order :

i) The conviction of the appellant by the judgment passed by

the learned Sessions Judge in Sessions Trial No.9/2014 on

19-01-2016 is maintained, however, the sentence inflicted

on the appellant is modified and it is directed that instead

of simple imprisonment for one month, the appellant is

sentenced to undergo simple imprisonment for the period

for which he had been in Jail.

ii) The order passed by the learned Sessions Judge directing

the appellant to pay fine of Rs.1,000/- and in default of

payment of fine to suffer simple imprisonment for fifteen

days is maintained.

iii) If the custody of the appellant is not required in any other

case, he be released forthwith.

iv) The appeal is partly allowed in the above terms.

JUDGE

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