Raosaheb Dhondiram Darandale vs The State Of Maharashtra And Ors
2017 Latest Caselaw 4516 Bom

                                      1          21-cri_appeal542-2002


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD
                            
             CRIMINAL APPEAL NO.542 of 2002

Raosaheb s/o Dhondiram Darandale,
Age : 33 yrs, Occ. : Agri.,
Resident of Sonai, Taluka Newasa,
Dist. Ahmednagar.                    ..   Appellant 
                                  (Original accused) 
         Versus

The State of Maharashtra                           ..       Respondent

                         ..
Mr.D.R.Adhav, Advocate for appellant 

Ms.R.P.Gaur, APP for the respondent
                         ..

                                CORAM : SANGITRAO S. PATIL, J.

DATE : 14 JULY, 2017.

ORAL JUDGMENT :

The appellant has challenged his

conviction and sentence for the offences punishable

under Sections 307, 323 and 506 of the Indian Penal

Code recorded by the learned Addl. Sessions Judge,

Shrirampur, on 21.08.2002 in Sessions Case

No.84/1998.

2 21-cri_appeal542-2002

02. The case of the prosecution, in short, is

that the informant namely Mangal (PW 1) is the wife

of the appellant. The appellant used to take

suspicion against character of the informant. On

23.07.1998 at about 10.00 p.m., the appellant who

was under the influence of liquor, asked the

informant to tell the names of the persons with

whom she had relations or else, threatened to kill

her. Then, at about 4.00 a.m., the appellant tied a

rope around the neck of the informant, sat on her

chest and pulled the rope forcefully. The informant

raised shouts, however, the appellant did not

release the rope that was tied around her neck. She

became unconscious. She regained consciousness in

the Hospital of Dr.Mate. She was informed in the

hospital that the appellant also tried to commit

suicide by hanging himself. The appellant was also

admitted in the same hospital, where the informant

was admitted. The informant was discharged from the

hospital on the same day and then, she lodged

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F.I.R. in Police Station, Sonai. On the basis of

that F.I.R., Crime No.I-74/1998 came to be

registered against the appellant for the offences

punishable under Sections 307, 498-A, 309, 323 and

506 of the Indian Penal Code. The investigation

followed. A rope came to be seized under a

panchnama. Statements of witnesses were recorded.

After completion of the investigation, the

appellant came to be charge-sheeted for the above-

mentioned offences.

03. The prosecution examined nine witnesses to

bring home guilt of the appellant. The appellant

examined his sister - Mirabai as defence witness.

After evaluating the evidence on the record, the

learned Sessions Judge found the appellant guilty

of the offences punishable under Sections 307, 323

and 506 of the Indian Penal Code, however, did not

find him guilty for the offences punishable under

Sections 498-A and 309 of the Indian Penal Code.

He, therefore, acquitted the appellant of the said

4 21-cri_appeal542-2002

two offences. The appellant was sentenced to suffer

rigorous imprisonment for five years and to pay a

fine of Rs.2,000/-, in default to suffer simple

imprisonment for three months for the offence

punishable under Section 307 of the Indian Penal

Code; rigorous imprisonment for one month and to

pay a fine of Rs. 200/-, in default to undergo

simple imprisonment for seven days for the offence

punishable under Section 323 of the Indian Penal

Code; and rigorous imprisonment for three months

and to pay fine of Rs.500/-, in default to undergo

simple imprisonment for one month for the offence

punishable under section 506 of the Indian Penal

Code.

04. The learned Counsel for the appellant

submits that there has been delay of more than 24

hours in lodging the F.I.R., which has not been

explained. He submits that the facts of the case as

well as the evidence on record do not disclose the

ingredients of the offence punishable under Section

5 21-cri_appeal542-2002

of 307 of the Indian Penal Code. According to him,

during the course of domestic quarrel, the

informant sustained injuries. There was no

intention on the part of the appellant to commit

murder of the informant. He pointed out to the

medical evidence which does not support the case of

the prosecution that the informant sustained

injuries on her neck because of tying of a rope. He

further submits that the panchas to recovery of

rope did not support the prosecution. As such, the

seized rope cannot be connected with the incident

in question. He further submits that there is no

independent corroboration to the version of the

informant. On these grounds, he submits that the

appellant may be acquitted of the above-mention

offences.

05. As against this, the learned A.P.P.

submits that the appellant was suspecting character

of the informant, which was the cause for his

attacking the informant with intent to kill her.

6 21-cri_appeal542-2002

When the intention of the appellant to kill the

informant is proved by her evidence, even if there

is no injury noticed on the neck of the informant,

it cannot be said that the offence of attempting to

commit murder is not established. She submits that

the medical evidence shows that there was contusion

having length of 4 inches, which would indicate

that the appellant tried to kill the informant by

tying rope around her neck. She submits that the

evidence on record is sufficiently clear to

establish guilt of the appellant for the offences,

for which he was convicted by the trial Court.

06. The informant deposes that on 23.07.1998

at about 10.00 p.m., the appellant came home under

the influence of liquor and asked her to tell names

of the persons with whom she had relations. He

threatened to kill her in case names of those

persons were not disclosed. She provided food to

the appellant. At the time of having meals also,

the appellant repeated his demand for disclosure of

7 21-cri_appeal542-2002

the names. He then assaulted her by fists and kicks

on her chest. Thereafter, both of them went to

sleep near their daughter. At about 4.00 a.m., the

appellant tied a rope around her neck and sat on

her chest. He pulled the rope forcefully when she

raised shouts. The appellant did not release the

rope that was tied around her neck. She became

unconscious and regained consciousness in the

hospital of Dr.Mate (PW 9). This is all the

account of the incident given by the informant.

07. Dr.Mate (PW 9), who examined the informant

on 24.07.1998 at about 6.00 a.m., found a contused

lacerated wound around her neck. According to him,

it was a traumatic injury. He states that when the

informant came to his hospital, she was conscious.

She came there on foot. This evidence falsifies

the version of the respondent that she regained

consciousness in the hospital of Dr.Mate (PW 9).

When the informant tends to state something far

from the factual position, it will be risky and

8 21-cri_appeal542-2002

hazardous to rely on her sole testimony in respect

of the incident. The daughter of the informant was

present at the time of the incident, who could have

come before the Court to corroborate the version of

the informant. However, she has not been examined

by the prosecution without assigning any reason.

It has come in the cross-examination of Dr.Mate (PW

9) that if neck of a person is tied by means of

rope, there would be a ligature mark around the

neck of that person. He further states that there

was no injury of such kind around the neck of the

informant.

08. Dr.Madhavi Raje (PW 7), who examined the

informant on 25.07.1998, states that there was a

reddish blue contusion mark on front side of neck

of the informant, having length of 4 inches with

few abrasion marks extending behind right ear. She

further noted blunt trauma on back, chest and left

thigh of the informant. She mentioned that the said

injuries were caused by a blunt object. She states

9 21-cri_appeal542-2002

that if the neck of a person is tied by a rope

(Art.1), injury no.1 found on the neck of the

informant was possible. However, in her cross-

examination, she admits that if neck of a person is

tied by rope (Art.1), there would be ligature mark

around the neck. Admittedly, no ligature mark was

noticed around the neck of the informant.

Moreover, rope (Art.1) cannot be characterised as a

blunt object. In the circumstances, the case of the

informant that the appellant tried to kill her by

tying rope around her neck, cannot be accepted.

09. It is true that for establishing the

offence of attempting to commit murder, it is not

always necessary that there should be an injury.

The intention of the offender to kill a person has

to be established. In the present case, only

because it is alleged by the informant that the

appellant was suspecting her character, intention

on the part of the appellant to kill her cannot be

attributed. At the most, it can be said that

10 21-cri_appeal542-2002

because of suspecting character of the informant,

the accused used force against the informant during

the course of quarrel and caused her injuries. The

nature of the injuries sustained by the informant

reflects intention of the appellant. The said

injuries would rule out the possibility of there

being any intention on the part of the appellant to

kill her. Thus, the evidence on record is not

sufficient to establish guilt of the appellant for

the offence punishable under Section 307 of the

Indian Penal Code.

10. So far as the offence punishable under

Section 506 of the Indian Penal Code is concerned,

there must be positive and clinching evidence to

establish that the offender threatened the victim

with injury to his person, reputation or property

with intent to cause alarm to that person or to

cause him to do an act which he is legally bound to

do or to cause him to omit to do an act which he is

legally bound to do.

11 21-cri_appeal542-2002

11. In the present case, the single-sentenced

evidence of the informant that the appellant

threatened her of death, in case she did not

disclose the names of the persons with whom she had

relations, by itself would not be sufficient to

constitute the offence of criminal intimidation

punishable under Section 506 of the Indian Penal

Code.

12. So far as the offence punishable under

Section 323 of the Indian Penal Code is concerned,

the evidence of the informant coupled with the

medical evidence, is sufficient to establish guilt

of the appellant. I subscribe to the findings of

the learned Additional Sessions Judge in respect of

proof of guilt of the appellant for the offence

punishable under Section 323 of the Indian Penal

Code.

13. In view of the above facts and

circumstances of the case, the conviction of the

12 21-cri_appeal542-2002

appellant for the offences punishable under

Sections 307 and 506 of the Indian Penal Code would

not be sustainable. The prosecution has established

guilt of the appellant for the offence punishable

under Section 323 of the Indian Penal Code only.

14. The appellant has been sentenced by the

learned Sessions Judge to suffer rigorous

imprisonment for one month and to pay a fine of

Rs.200/-, in default to suffer simple imprisonment

for seven days for committing the offence

punishable under Section 323 of the Indian Penal

Code. The appellant was in jail from 25.07.1998 to

21.09.1998 during the investigation. Even after he

was convicted, he was behind the bars from

21.08.2002 to 15.12.2003. As such, he has already

undergone the sentence that was imposed on him for

the offence punishable under Section 323 of the

Indian Penal Code. He has already deposited the

fine amount. The amount of Rs.2,500/- deposited by

the appellant towards fine in respect of the

13 21-cri_appeal542-2002

offences under Sections 307 and 506 of the IPC,

though liable to be refunded to him, will have to

be ordered to be paid to the informant, as

compensation.

15. In the result, I pass the following

order :-

(i)            The appeal is partly allowed.


(ii)           The impugned judgment and order is  partly 

quashed and set aside.


(iii)          The   conviction   and   sentence   of   the 

appellant for the offences punishable under

Sections 307 and 506 of the Indian Penal Code are

set aside and he is acquitted of the said offences.

(iv) The conviction and sentence of the

appellant for the offence punishable under Section

323 of the Indian Penal Code, is maintained.

(v)            The   appellant   has   already   undergone   the 





                                   14           21-cri_appeal542-2002

sentence of imprisonment in respect of the offence

punishable under Section 323 of the Indian Penal

Code.

(vi) The amount of Rs.2,500/- deposited by the

appellant towards fine in connection with his

conviction for the offences punishable under

Sections 307 and 506 of the Indian Penal Code, be

paid to the informant namely, Mangal Raosaheb

Darandale, resident of Gopinathnagar, Shrirampur,

Dist. Ahmednagar as compensation.

(vii) The bail bonds of the appellant are

cancelled. He is set at liberty.

(viii) The appeal is accordingly disposed of.

[SANGITRAO S. PATIL, J.] kbp