The State Of Mah vs Martand Poona Patil
2017 Latest Caselaw 9031 Bom

                                     1      Appals 124 & 340 of 2002

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 124 of 2002

     Martand Poona Patil,
     Age 46 years,
     Occupation : Service,
     R/o Dhule, District Dhule.               ..    Appellant.

             Versus

     The State of Maharashtra.                .. Respondent.

                                ----
     Shri. Joydeep Chatterjee, Advocate, for appellant.

     Shri. V.S. Badakh, Additional Public Prosecutor, for
     respondent.
                                 ----

                                   With

                       Criminal Appeal No. 340 of 2002

     The State of Maharashtra.                 ..   Appellant.

             Versus

     Martand Poona Patil,
     Age 42 years,
     Occupation : Nil,
     R/o Mohadi Upnagar, Dhule.               .. Respondent.

                                     ----

     Shri. V.S. Badakh, Additional Public Prosecutor, for
     appellant.

     Shri. Joydeep Chatterjee, Advocate, for respondent.

                                     ----




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                                        2     Appals 124 & 340 of 2002

                                Coram:     T.V. NALAWADE &
                                           A.M. DHAWALE, JJ.

                               Date:       24 November 2017

     JUDGMENT (Per T.V. Nalawade, J.:


     1)               Both the appeals are filed against the judgment

and order of Sessions Case No.79/2001 which was

pending in the Court of learned First Ad-hoc Additional

Sessions Judge Dhule. The appellant accused is convicted

and sentenced for offence punishable under section 324

IPC by the trial Court when he was charged for offence

punishable under section 307 IPC. To challenge the

conviction and sentence the appeal is filed by the accused

bearing No.124 of 2002 and the other appeal is filed by

the State as the State is feeling aggrieved due to acquittal

of the accused of the offence punishable under section

307 IPC. Both the sides are heard.

2) The first informant Gokul Vankhede is an

Advocate practicing at Dhule. One Chandrabhagabai was

his client. Chandrabhagabai had some dispute with

Martand Patil, present accused. The accused had sent a

notice through Advocate to Chandrabhagabai and for

3 Appals 124 & 340 of 2002

Chandrabhagabai, the first informant, Advocate Vankhede

had given reply to the notice. The accused approached

Advocate Vankhede and expressed that he was ready to

compromise the matter out of Court. Due to that one

meeting was held and the compromise was reduced into

writing on stamp paper and that compromise took place

on 30-6-2000.

3) About 1.1/2 to 2 months prior to the date of the

incident, accused approached Advocate Vankhede and

expressed that he had sustained loss of Rs.10 to 15

thousand due to his intervention and he should return that

amount to him. Vankhede denied that he had caused loss

to the accused but the accused was not convinced.

4) On 18-3-2001 at about 12.30 noon accused

came to the house of Advocate Wankhede and gave him

call from outside. When Vankhede went out of the house

accused gave threat by saying that if the amount was not

returned to him, he would finish Vankhede. When

Vankhede said that he had no concern with the matter

now, he accused took out a knife from his pocket and

4 Appals 124 & 340 of 2002

attempted a blow of the knife on the neck of Vankhede.

Vankhede tried to avoid the blow but the blow hit on his

left hand and he sustained bleeding injury. He shouted or

help and then his nephew Sanjay and a friend of Sanjay,

namely Dipak rushed to the spot. After seeing these two

boys the accused ran away by using his cycle.

5) On 18-3-2001 itself Advocate Vankhede gave

report to Dhule City Police Station and on that basis crime

at CR No.57/2001 came to be registered initially for

offence punishable under sections 324/506 IPC. During

the course of investigation, panchanama of the spot was

prepared and Wankhede produced his clothes. Vankhede

was referred for medical examination and one incised

wound was found on his left hand. The accused came to

be arrested.

6) On 22-3-2001 while in police custody accused

gave statement under section 27 of the Evidence Act and

he showed willingness to produce the weapon which was

kept near 'Rup-Sandhya' Bungalow. Memorandum of the

statement was prepared. The accused then took the

5 Appals 124 & 340 of 2002

panchas and the police to the spot and from there he

produced a knife which was found concealed under the

heap of stones. There were blood stains on this knife and

it came to be seized under panchanama.

7) Statements of Chandrabhagabai, the client of

Advocate Vankhede, and the aforesaid two witnesses came

to be recorded. After completion of investigation, charge-

sheet came to be filed for offence punishable under

section 307 of the Indian Penal Code. Charge was framed

for this offence to which the accused pleaded not guilty.

Prosecution examined in all 9 witnesses to prove the

offence. The accused took defence of total denial. The trial

Court has believed the first informant but the trial Court

has held that intention of murder cannot be gathered from

the circumstances and the trial Court has convicted the

appellant for offence punishable under section 324, Indian

Penal Code.

8) Vankhede (PW-1) has given evidence which is

mostly in accordance with the contentions made in the

F.I.R. He has given evidence that the accused had created

6 Appals 124 & 340 of 2002

dispute and he was asking for giving Rs.10,000/- to him.

He has given evidence on the incident which took place on

18-3-2001 at 12.30 p.m. In the examination-in-chief he has

tried to say that when the talk was going on, his nephew

Sanjay came out of the house and along with him there

was Dipak, a friend of Sanjay and in their presence the

accused took out a knife from his pocket and made an

attempt to give blow of the knife on his neck. He has

deposed that he then shouted loudly and the aforesaid two

boys rushed forward and then the accused ran away. He

has given evidence that after the incident he, his nephew

and the friend of the nephew, Dipak Gawale went to Police

Station where report at Exhibit 21 was given. The record

like the notice received by his client, the reply given by

him is also produced in the Court. The clothes which were

having blood stains and which were produced by Advocate

Wankhede before police are identified by him in the Court.

The accused has not disputed that there was such

exchange of notices and then Advocate had taken steps to

settle the matter and that the compromise document was

also prepared by him.

7 Appals 124 & 340 of 2002

9) Most of the cross-examination of Advocate

Vankhede is on the aforesaid dispute which was going on

between the accused and Chandrabhagabai. In the cross-

examination he has tried to say that he was at a distance

of 5 to 7 feet from the entrance door of his house and

there the incident took place. He has given evidence that

when the exchange of words started and the accused

raised his voice and then his nephew and the friend of the

nephew came out and then the incident took place. His

attention was drawn to the contents of the F.I.R. showing

that his nephew and the friend of the nephew came out

only after he started shouting and this portion is denied by

him. Thus, for some version there is no corroboration of

the F.I.R. and to some extent PW-1 gave evidence which is

not consistent with the F.I.R.

10) Dipak Gawale (PW-5) is the friend of the

nephew of the first informant. His evidence shows that his

residential place is situated at 6 to 7 kilometers from the

spot of offence. He gave statement to police on 20-3-2001,

after two days of the incident. He has given evidence that

on hearing of shouts loudly outside the house he and

8 Appals 124 & 340 of 2002

Sanjay came out of the house and then the quarrel

started. The evidence of PW-1 shows that he shouted only

when the blow hit on his left hand. Though it can be said

that the evidence of Dipak (PW-5) is not that convincing

and there is probability that he had no opportunity to

witness the incident, there is circumstantial check to the

evidence of PW-1.

11) Dr. Gopal Pasari (PW-6) is examined to prove

that PW-1 had sustained injuries. In his evidence the

injury certificate is proved at Exhibit 36 and the evidence

of PW-6 shows that PW-1 had sustained incised wound of

the size of 9 x 1/4 x 1/4 cm on left upper portion of left

arm laterally and he had sustained abrasion over right

little finger. It is not the case of PW-1 that injury No.2 was

caused by the accused and PW-1 is not in a position to say

as to how he sustained injury No.2 on that date. Both the

injuries were sustained at the same time as per the

medical evidence. Both the injuries are described as

simple. the evidence of the doctor in the cross-

examination shows that he did not find serious damage to

the muscles and three was a cut to the epidermis only.

9 Appals 124 & 340 of 2002

Dr. Gopal (PW-6) has admitted that such injury can be

caused by sharp weapon and the age of the injury was

within 8 hours.

12) Prosecution has examined Madan Gaikwad

(PW-2) panch witness on the panchanama of recovery of

weapon and Shivram Mali (PW-9) (PSI of Dhule City

Police Station) who made the investigation of the matter.

Evidence is given that on 22-3-2001 in the presence of

panch witness accused gave statement that he had

concealed the knife under heap of stones near Saibaba

Nagar Society. Memorandum of the statement is proved

at 26. Evidence is given that the accused then took the

police and the panchas to the spot and he produced a

knife which was found to be kept under heap of stones.

panchanama of seized is proved at Exhibit 27. Nothing

could be brought on the record in the cross-examination

of these witness to create doubt about their evidence. It is

only suggested to Madan Gaikwad (PW-2) that due to

acquaintance with police he has signed on the record and

no statement was given by the accused.

                                         10    Appals 124 & 340 of 2002

     13)              Prosecution has examined Chandrabhagabai

(PW-3) the client of Advocate Vankhede and some record

is produced about the dispute, but as already observed,

the accused is not denying that there was such dispute

and so the evidence of Chandrabhagabai need not be

considered in detail. Even the evidence given by Barikrao

Shriram (PW-7) Advocate from Dhule to prove that there

was some dispute and the accused was asking the first

informant to give him Rs.10,000/- need not be considered.

14) It is true that the F.I.R. was given immediately

after the incident by PW-1 and he was medically examined

on the same day. However, PW-1 produced his clothes on

the next day. It is not possible to believe that when two

young boys like the nephew and the friend of the nephew

were in the company of the first informant, attempt was

made on the life of Advocate Vankhede by the accused. In

any case only one injury which can be caused by weapon

like knife was found on the person of Wankhede and that

too on left arm. It is already observed that there is no

possibility of considering the evidence of Dipak Gawale

for corroboration of the evidence of PW-1. The spot

11 Appals 124 & 340 of 2002

panchanama (Exhibit 19) was admitted by the defence. No

sign of the incident was found there. There is possibility

that there was some dispute between the accused and the

first informant, Advocate, but the dispute was not that

serous and the evidence is not sufficient to draw inference

that there was the intention of murder. Such finding is

given by the trial Court which is a possible view in view of

the evidence of the matter and so this Court holds that it

is not possible to interfere in the finding given by the trial

Court that this is not a case of offence punishable under

section 307 IPC but the offence committed one falls under

section 324 IPC.

15) The learned counsel for the appellant-accused

submitted that he is Ex-serviceman aged about 62 years.

Some record is produced regarding his service from

Indian Army. Learned counsel for the accused submitted

that the trial Court has sentenced the accused with

imprisonment of one year and further sentenced for

imprisonment for 3 months in default of payment of fine

and this sentence is little bit harsh. In view of the nature

of evidence in the matter this Court holds that the

12 Appals 124 & 340 of 2002

sentence is little bit harsh. The submissions made show

that the appellant has already undergone imprisonment of

about one month. This Court holds that sentence of

imprisonment for the period already undergone by the

accused will be just and sufficient but the fine amount can

be increased. The incident is of the year 2001 and we are

considering the appeal in the year 2017. This Court holds

that the find amount can be increased to make it Rs.5000/-

and the fine amount can be paid to the first informant.

16) In the result, Criminal Appeal No.340 of 2002

of the State is dismissed.

17) The appeal of the accused bearing Criminal

Appeal No.124 of 2002 is partly allowed. The conviction

given to the accused for offence under section 324 IPC is

maintained but the sentence is reduced to make it

imprisonment for the period undergone and the accused is

to pay fine amount of Rs.5000/- (Rupees Five Thousand).

In default of payment of fine, he is to undergo simple

imprisonment for the period of one month. Fine amount of

Rs.500/- already deposited needs to be considered and the

13 Appals 124 & 340 of 2002

appellant is required to pay Rs.4500/- within 30 days from

the date of this order. After depositing the amount the

entire amount is to be given to the first informant,

Advocate Wankhede as compensation. Considering time

given for making payment of fine amount, till that time no

coercive steps are to be taken like issuing conviction

warrant and the bail bonds will stand cancelled after that

period. Authenticated copy of operative order is to

supplied to the appellant-accused.

                    Sd/-                                   Sd/-
     (A.M. DHAWALE, J.)                     (T.V. NALAWADE, J.)




     rsl