Soma Daulat Shivankar And 7 Others vs The State Of Mah.Pso Bhandara
2017 Latest Caselaw 8736 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.458 OF 2004


 1) Soma s/o Daulat Shivankar,         -(Appeal abated)
     Aged 43 years

 2) Gunwant s/o Nilkanth Shivankar,
     Aged 22 years, 

 3) Moreshwar s/o Gopal Shivankar,
     Aged 46 years, 

 4) Shripat s/o Shalikram Shivankar,
     Aged 21 years, 

 5) Kusoba s/o Bhiwaji Shivankar,
     Aged 24 years, 

 6) Dilip s/o Dadaji Shivankar,
     Aged 25 years, 

 7) Damodar s/o Baburao Shivankar,
     Aged 24 years, 

 8) Deorao s/o Govinda Narule,
     Aged 24 years, 

     All R/o Palependhari, Tahsil - 
     Lakhandur, District Bhandara.                   ....       APPELLANTS


                     VERSUS


 The State of Maharashtra, 
 through P.S.O. Palandur, Tahsil - 
 Lakhandur, District - Bhandara.                     ....       RESPONDENT




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 ______________________________________________________________

             Shri R.M. Daga, Advocates for the appellants, 
            Ms. Trupti Udeshi, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 15 NOVEMBER, 2017.

th

ORAL JUDGMENT :

Appellant 1 Soma Daulat Shivankar is dead and the appeal

against appellant 1 stands abated as ordered by this Court on

13-11-2017.

2. Appellant 3 Moreshwar Gopal Shivankar is suffering from

paralysis and is not in a position to attend the Court.

3. Shri R.M. Daga, learned Advocate who is appearing on

behalf of appellants 2 to 8 states that the appellants and the

complainant Shri Rajendra Gajghate have resolved their inter se

differences since long. Appellants 2 to 8, except appellant No.3, are

personally present in the Court. The complainant Rajendra Gajghate is

also present in the Court and is represented by learned Advocate Smt.

S.P. Kulkarni. I have personally questioned the complainant who

asserts that his relations with the original accused have become cordial

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and they intend to forget all past disputes and live a peaceful life. The

learned Advocate Smt. S.P. Kulkarni has identified the complainant

Rajendra Gajghate.

4. The complainant Rajendra Gajbhate has also filed on

record an affidavit dated 15-11-2017 to the said effect.

5. The offence under Section 307 of the Indian Penal Code is

non-compoundable. However, consistent with the course adopted by

the Hon'ble Supreme Court in the case of Ishwar Singh vs. State of

M.P. reported in 2009 All MR (Cri.) 560 (SC) and followed thereafter

while maintaining the conviction of the surviving appellants, I consider

it appropriate to alter the sentence to already undergone.

6. Shri R.M. Daga, learned Advocate for the surviving

appellants states that they have already undergone two months or

thereabout detention.

7. I am persuaded to alter the sentence for reasons more than

one. Firstly, the incident took place in the year 1998. The case of the

prosecution is that the provocation for the assault was an unsavory and

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unfortunate incident involving the daughter of appellant 1 Soma and

the complainant. Secondly, the surviving appellants appear to be

agriculturists and labours who, according to the learned Advocate Shri

R.M. Daga, do not have any criminal record. I have also given due

consideration to the injuries suffered by the complainant. Since the

surviving appellants and the complainant have decided to live peaceful

life, I do not find it appropriate to record any further observation on

the merits of the appeal. Suffice it to say that having given due

consideration to the circumstances leading to the incident, the nature

and extent of injury, the period undergone and the fact that the

incident occurred in 1998 and the fact that the surviving appellants

and the complainant are residing in the same village peacefully, I have

deemed it appropriate in the peculiar facts of the case, to maintain the

conviction and alter the sentence to already undergone.

8. The appeal is disposed of accordingly. The bail bonds of

the accused shall stand discharged.

JUDGE adgokar