Bombay High Court
Smt.Narmadabai Manohar Sadafale vs State Of Maharashtra on 31 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.104/2003
Bhaudeo Vishwanath Sushir,
aged 45 years, Occ. Agriculturist,
r/o Belkhed, Tq. Telhara, Dist. Akola. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, Hivarkhed,
Dist. Akola. ...RESPONDENT
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Mr. Anil Mardikar, Senior Advocate with Ms. Akshaya Kshirsagar,
Advocate for appellant.
Ms T. Udeshi, A.P.P. for respondent.
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AND
CRIMINAL APPEAL NO.200/2003
Smt. Narmadabai Manohar Sadafale,
aged 42 years, Household, r/o Belkhed,
Tq. Dist. Akola. .....APPELLANT
...V E R S U S...
State of Maharashtra through
Police Station Officer, Hivarkhed,
Dist. Akola. ...RESPONDENT
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Mr. Amol Mardikar, Advocate for appellant.
Ms T. Udeshi, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 31.07.2017
ORAL JUDGMENT
1. These two appeals are decided by this common
judgment since though the sessions trial were different, both the
incidents are parts of the same transaction.
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2. In Criminal Appeal No.104/2003, appellant-Bhaudeo is
convicted by the learned 3rd Ad hoc Additional Sessions Judge,
Akola in Sessions Trial No.92/1997 for an offence punishable
under Section 326 of the IPC and directed that he should suffer
rigorous imprisonment for 3 years and to pay a fine of Rs.250/- in
default to undergo further rigorous imprisonment for one month.
Criminal Appeal No.200/2003 is filed by Narmadabai.
She is convicted by the learned Additional Sessions Judge, Akola
on 08.01.2003 for the offence punishable under Section 337 of the
IPC and is sentenced to suffer rigorous imprisonment for 5 months
and to pay a fine of Rs.200/- in default to undergo further
rigorous imprisonment for 15 days.
3. I have heard Mr. Anil Mardikar, Senior Counsel along
with Ms Akshaya Kshirsagar, Advocate for appellant in Criminal
Appeal No.104/2003 and Mr. Amol Mardikar, counsel for the
appellant in Criminal Appeal No.200/2003. In both these appeals,
Ms Trupti Udeshi, A.P.P. represented the respondent-State.
4. Along with appellant-Bhaudeo his wife Sunandabai has
also faced Sessions Trial No.92/1997. Against this couple, charge
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under Section 307 read with Section 34 of the IPC was framed for
assaulting Narmadabai the appellant in Criminal Appeal no.
200/2003. The learned Judge of the Court below acquitted both;
Bhaudeo and his wife Sunandabai of the offence under Section
307 of the IPC. However, conviction was recorded against
Bhaudeo for an offence punishable under Section 326 of the IPC.
The State did not file any appeal against acquittal.
5. With the assistance of both the counsel appearing for
the parties, I have gone through the record and proceedings.
6. An offence was registered against Bhaudeo and his wife
Sunandabai vide Crime No.78/1996 on the report lodged by
Manohar (PW1). As per the FIR, Gopal (PW2) son of the first
informant came to him when he was taking rest in his house and
informed that his mother Narmadabai is assaulted by Bhaudeo and
his wife Sunandabai.
7. Crime No.79/1996 was registered against Narmadabai
on the report lodged by the appellant Bhaudeo vide Exh.-22, for
an offence punishable under Section 337 of the IPC. As per the
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report there was exchange of abuses in between Sunandabai and
Narmadabai. In that, Narmadabai pelted stones at Sunandabai
and that time Bhaudeo was struck by those stones resulting into
the head injury.
8. Bhimrao Ghurde (PW3), the investigating officer has
drawn panchanama Exh.-36 in Crime No.78/1996. In Crime No.
79/1996, spot panchanama is at Exh.-105. The spot panchanama
shows that the spot of incident is in front of house of Bhaudeo.
The learned trial Court in paragraph 27 of the judgment in
Sessions Trial No.92/1997 observed that there was no intention
on the part of Bhaudeo to commit murder of Narmadabai. Not
only that he has observed that though the weapon was an axe, he
did not use sharp part of it and assaulted Narmadabai by blunt
side. Therefore, in my view, the learned Judge of the Court below
has rightly acquitted Bhaudeo of the offence punishable under
Section 307 of the IPC. As per the prosecution case, fracture of
mandible was attributed to the weapon; iron pestle. According to
the prosecution, this weapon was not used by Bhaudeo but was
used by Sunandabai. Sunandabai is not convicted by the Court
below nor against her acquittal an appeal is preferred by the State.
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Thus the fracture to the mandible cannot be attributed to
Bhaudeo.
9. In Sessions Trial No.33/2000, the learned Additional
Sessions Judge who delivered the judgment on the same day
found that it is Narmadabai who has pelted stones and that stone
struck to the head of Bhaudeo and thereafter Bhaudeo assaulted
on Narmadabai by blunt side of the axe. Thus, in my view, the
learned Judge of the Court below ought not to have convicted the
appellant Bhaudeo for the offence punishable under Section 326
of the IPC but the offence which was proved by the prosecution in
my view is Section 335 of the IPC i.e. an assault because of
provocation. It was natural on the part of Bhaudeo to retaliate
since he was struck on his head by Narmadabai.
Narmadabai is also convicted by holding her guilty for
an offence punishable under Section 337 of the IPC.
10. Both these parties are residing in the same village. The
incident is of the year 1996. No other incident is brought on
record subsequently. It appears that the series of act started in
view of the verbal dual between the two members namely; the
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acquitted accused Sunandabai and other accused Narmadabai.
In that view of the matter, following order is passed.
ORDER
(i) Criminal Appeal Nos. 104/2003 and
200/2003 are partly allowed.
(ii) The conviction recorded against the
appellant-Bhaudeo Vishwanath Sushir in Criminal
Appeal No.104/2003 for an offence punishable
under Section 326 of the IPC is set aside.
Instead, he is convicted for an offence punishable
under Section 335 of the IPC.
(iii) Instead of jail sentence, it is hereby
directed that the appellant-Bhaudeo shall be
released on he executing bond of good behaviour
for a period of 2 years in this Court within 4
weeks from today.
(iv) The conviction recorded against the
appellant-Smt. Narmadabai Manohar Sadafale in
Criminal Appeal No.200/2003 for an offence
punishable under Section 337 of the IPC is
maintained. However, instead of jail sentence,
she is directed to execute bond of good behaviour
for a period of 2 years before this Court within 4
weeks from today.
JUDGE
kahale
