Shama Bodu Sawwalakhe & 2 Ors vs State Of Mah.Thr.P.S.Mohadi
2017 Latest Caselaw 4624 Bom

                       Judgment



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                                                                 1

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

                                          CRIMINAL APPEAL NO.340 OF 2001

                       1. Shama alias Dhomnya s/o Bodu
                       Sawwalakhe, aged 45 years,
                       Occupation :- Labour.

                       2. Bhiva s/o Bodu Sawwalakhe,
                       aged 40 years, Occupation Labour.
 Appeal is abated 
 against appellant 
No.3 as per Court's    3. Madhukar s/o Bodu Sawwalakhe,
   order dated 
   22.12.2014
                       Aged 35 years, Occupation : Labour,

                       All Residents of Rampur, Taluka : Mohadi,
                       District Bhandara.                                                 ..... Appellants.

                                                        ::   VERSUS   ::

                       State of Maharashtra, through the
                       Police Station Mohadi, District :
                       Bhandara                                                        ..... Respondent.

                       ================================================================
                                  Shri R.M. Daga, Counsel for the appellants.
                                  Shri I.J. Damle, Addl.P.P. for the respondent/State.
                       ================================================================


                                                       CORAM : V.M. DESHPANDE, J.

                                                       DATE    : JULY 18, 2017.


                                                                                                         .....2/-




 Judgment



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ORAL JUDGMENT

1. The present appeal is directed against judgment

and order of conviction passed by learned Ad hoc Additional

Sessions Judge, Bhandara dated 3.11.2001, in Sessions Trial

No.141 of 1995, by which learned Judge of the Court below

convicted the appellants for the offence punishable under

Section 452 read with Section 34 of the Indian Penal Code and

directed that they should suffer rigorous imprisonment for 2

years and to pay a fine of Rs.2,000/- by each of them and in

default of payment of fine amount to suffer rigorous

imprisonment for 6 months more. They were also convicted

for the offence punishable under Section 307 read with

Section 34 of the Indian Penal Code and were directed to

suffer rigorous imprisonment for 5 years and to pay a fine of

Rs.5,000/- by each of them and in default of payment of fine

amount to suffer rigorous imprisonment for 1 year more.

.....3/-

Judgment

apeal340.01 32

2. During the pendency of the appeal, appellant No.3

Madhukar s/o Bodu Sawwalakhe expired and, therefore, by

order dated 22.12.2014 the appeal filed by him was ordered to

be abated.

3. I have heard learned counsel Shri R.M. Daga for

the appellants and learned Additional Public Prosecutor Shri

I.J. Damle for the respondent/State.

4. At the outset, learned counsel Shri R.M. Daga for

the appellant submits that looking to the nature of evidence,

as brought on record by the prosecution during the course of

Trial, it is crystal clear that no fault can be located in the

judgment while convicting the appellants for their respective

offences.

5. The only submission of learned counsel Shri R.M.

Daga for the appellants is in respect of quantum of sentence.

.....4/-

Judgment

apeal340.01 32

He produced a joint-affidavit filed by PW11 Babulal Upasrao

Sawwalakhe who himself was injured along with his mother

Sonabai w/o Upasrao Sawwalakhe. The said affidavit is taken

on record and is marked as "Annexure-X" for the purposes of

identification.

6. Learned counsel Shri R.M. Daga for the appellants

has invited my attention to an authoritative pronouncement

of the Honourable Apex Court in the case Ishwar Singh ..vs..

State of Madhya Pradesh, reported at 2009 ALL MR (Cri) 560

(SC) to buttress his submission that the appellants' sentence

can be reduced to the period which they have already

undergone in jail.

7. The date of occurrence is 23.6.1995. Thus, as on

today more than 22 years have lapsed. The said joint-affidavit

shows that after the period of occurrence, till today no

.....5/-

Judgment

apeal340.01 32

untoward incident has occurred. Further, as per

PW11 injured Babulal Upasrao Sawwalakhe, who has sworn

said joint-affidavit on behalf of his mother Sonabai, other

injured also, Sonabai is now aged about 87 years and she is

bedridden. Therefore, she is unable to attend the Court.

Learned counsel Shri R.M. Daga for the appellants has

identified Babulal Upasrao Sawwalakhe. I have also

personally enquired with Babulal Upasrao Sawwalakhe who

is personally present in the Court. He has stated that with the

intervention of elderly persons in the village, dispute between

him and the appellants is amicably settled and they have

decided to leave peaceful life, and since last 22 years they are

leading peaceful life. Further, he has stated that during last

22 years, there is no untoward incident between his family

and the family of appellants.

.....6/-

Judgment

apeal340.01 32

8. Record shows that appellants Shama alias

Dhomnya s/o Bodu Sawwalakhe and Bhiva s/o Bodu

Sawwalakhe were arrested on 26.6.1995 as per arrest

panchanama Exhibit 105. They were released on bail by the

Court below on 11.12.1995. During the pendency of Trial, they

were on bail and at no point of time they have misused the

liberty granted to them. After conviction on 3.11.2001, they

were taken into custody. They are released on bail by this

Court on 18.4.2002. Thus, their total jail period is about 10

months and 26 days.

9. In the present case, incident took place before

more than 22 years. The complainant party and the accused

are residing in the same village. As per said joint-affidavit,

they have already settled their dispute. No criminal

antecedents are reported against the appellants.

.....7/-

Judgment

apeal340.01 32

10. In that view of the matter and in view of the

decision of the Honourable Apex Court in the case of Ishwar

Singh ..vs.. State of Madhya Pradesh cited supra though I

confirm judgment and order of conviction, but modify the

order of sentence.

ORDER

i) The criminal appeal is partly allowed by

maintaining conviction recorded by learned

Ad hoc Additional Sessions Judge, Bhandara dated

3.11.2001, in Sessions Trial No.141 of 1995, by

reducing the jail sentence already undergone by

the appellants in jail.

ii) The sentence of payment of fine amount is not

disturbed.

.....8/-

Judgment

apeal340.01 32

iii) It is made clear that this Court's judgment will

not be a precedent for any other case.

iv) The criminal appeal is partly allowed and

disposed of.

JUDGE

!! BRW !!

...../-