Bombay High Court
Gangaram S/O Waman Wajir vs The State Of Maharashtra And Anr on 9 March, 2016
Bench: N.W. Sambre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 877 OF 2015
Gangaram s/o Waman Wajir,
Age: 30 years, Occ: Agri.,
R/o. Phule Pimpalgaon,
Tq. Majalgaon, Dist. Beed. ...Appellant
versus
1. The State of Maharashtra
2. Anil Gangaram Jadhav,
Age: 50 years, Occ: Agri.,
R/o. Phule Pimpalgaon,
Tq. Majalgaon, Dist. Beed. ...Respondents
.....
Mr. Rajendra G. Hange, Advocate for appellant
Mr. D.V. Tele, A.P.P. for respondent No. 1
Mr. M.M. Parghane, Advocate for respondent No. 2
.....
CORAM : N.W. SAMBRE, J.
DATE : 9th MARCH, 2016
ORAL JUDGMENT :
The appellant-accused No.1 Gangaram Waman Wajir
came to be convicted by Additional Sessions Judge, Majalgaon on
17th November, 2015 in Sessions Case No. 35/2014 for the offence
punishable under section 307 read with section 34 of the Indian
Penal Code and sentenced him to suffer rigorous imprisonment for
seven years and pay fine of Rs.3000/-, in default to suffer simple
imprisonment for six months. As a consequence, the appellant is
behind the bars since then.
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2. The learned Counsel for the appellant submits that,
learned Sessions Court has awarded sentence of seven years and
fine of Rs. 3,000/-. According to him, fine amount of Rs. 3,000/- is
already paid and as against rigorous imprisonment of seven years,
the appellant-accused has already undergone more than 20 months
of imprisonment.
3.
In the above background, learned Counsel submits that,
the appellant is entitled to be released, in view of affidavit filed by the
respondent No. 2-complainant Anil Gangadhar Jadhav. He would
then submit that even if the offence is punishable under section 307
of Indian Penal Code, the medical evidence speaks of sufferance of
only one grievous injury and simple injury. He would then invite my
attention to the testimony of prosecution witness No. 6 Dr. Rupali
Solanke so as to substantiate his contention and also testimony of
prosecution witness No. 1-victim namely, Anil Gangadhar Jadhav,
who filed complaint in the present case. The perusal of both these
depositions depict that the complainant Anil claimed to have suffered
incised wound, as he was beaten by the present appellant on his
head by means of an axe. If evidence of Doctor in the said
background is read, it is required to be noted that the following
injuries i.e.
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1. CLW right temporo occipital regiion, 6 x 4 c.m.
2. CLW left fronto temporal region, 3 x 2 c.m.
3. CLW left forehead near eye, 2 x 1 c.m.
were simple in nature and claimed to have been caused by hard and
blunt object.
4. In the above background, learned Counsel submits that
the conviction of the appellant for offence punishable under section
307 of the Indian Penal Code is required to be reassessed.
5. Learned Counsel for the complainant- Anil submits that
the complainant personally present in the Court and is identified.
According to him, the offence at the most could be termed to be
under section 323 of Indian Penal Code and not under section 307 of
Indian Penal Code. He has volunteered for compounding of the said
offence in view of provisions of section 320 of Code of Criminal
Procedure.
6. Learned A. P. P. has opposed compounding of offence
on the ground that offence punishable section 307 of Indian Penal
Code is non compoundable, for which the appellant was convicted.
According to him, there is sufficient evidence against the appellant,
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as such the prayer for compounding be rejected.
7. Having bestowed my thought to the submissions made,
particularly in the light of evidence of P.W. 1 Anil- complainant and
P.W. 6 - Dr. Rupali, it is required to be inferred that the complainant
suffered simple injuries, which offence is punishable under section
323 of Indian Penal Code and appellant herein has already
undergone rigorous imprisonment for more than twenty months.
The complainant, who is personally present through his
Counsel has volunteered for compounding which appears to be
without any influence.
8. In the above referred background, having regard to the
law laid down by the Apex Court in the matter of Ishwar Singh Vs.
State of Madhya Pradesh reported in 2009 ALL MR (Cri.) 560
(S.C.) and in the matter of Padmalyan & anr. Vs. Sarasan & anr.
reported in 2013 ALL MR (Cri.) 2958(S.C.), it will be appropriate, in
my opinion, to allow the appeal. Hence I pass following order:
: ORDER:
(a) The conviction and sentence of the appellant for offence
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punishable under Section 307 of the Indian Penal Code is set aside.
Instead, the appellant is convicted for the offence punishable under
section 323 of the Indian Penal Code and same is compounded as
prayed by the complainant.
(b) In view of the fact that the appellant has already
undergone rigorous imprisonment for more than twenty months, it will
be appropriate to direct that he be released forthwith on the term of
imprisonment which he has already undergone, if not required in any
other crime.
(c) The fine amount be paid to the complainant.
9. Criminal Appeal stands partly allowed in above terms.
[ N.W. SAMBRE, J. ]
Tupe/09.03.16
