State Of Maharashtra vs Tekchand Motumal Sadani
2017 Latest Caselaw 7555 Bom

 apeal276.02+.J.odt                        1




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

                     CRIMINAL APPEAL NO.276 OF 2002

          The State of Maharashtra,
          through Police Station Officer,
          Gadgenagar, Amravati.           ....... APPELLANT

                                   ...V E R S U S...

          Tekchand Motumal Sadani,
          Aged 48 years, R/o Krushna Nagar,
          Amravati.                    ....... RESPONDENT

                                          WITH

                     CRIMINAL APPEAL NO.285 OF 2002

          The State of Maharashtra,
          through Police Station Officer,
          Gadgenagar, Amravati.           ....... APPELLANT

                                   ...V E R S U S...

          Khemchand Lalchand Thadani,
          Aged 43 years, R/o Sahkar Nagar,
          Amravati.                                 ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri H.R. Dhumale, APP for Appellant.
          Shri R.M. Daga, Advocate for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            26    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               Khemchand   Lalchand   Thadani   and   Tekchand

Motumal Sadani faced trial for the offence punishable under

section 324 read with section 34 of Indian Penal Code.

By judgment and order dated 15.03.2002 in Regular Criminal

Case 93/1999, the learned Judicial Magistrate First Class Court 3,

Amravati was pleased to acquit Tekchand Motumal Sadani and to

convict Khemchand Lalchand Thadani of offence punishable under

section 324 of I.P.C. and to sentence Khemchand to imprisonment

till rising of the Court and to payment of fine of Rs.1000/-.

2] Criminal Appeal 276/2002 is preferred by the State

challenging the acquittal of Tekchand while Criminal Appeal

285/2002 is preferred by the State seeking enhancement of the

sentence awarded to Khemchand.

3] Shri H.R. Dhumale, the learned A.P.P. has taken me

through the entire evidence on record. The submission is, that the

acquittal of Tekchand is against the weight of evidence. I am not

convinced. The case of the prosecution, as can be culled out from

the First Information Report lodged by Bulchand Tanwani is that

at 11:30 a.m. on 09.04.1999 Khemchand, Tekchand, Vasantram

and Pahlajmal came to the house of the complainant situated in

the premises of the factory owned by the complainant and started

demanding refund of the partnership contribution of Rs.40,000/-.

The informant told them that he did not have the amount then

and there upon Khemchand and Tekchand started assaulting the

informant. Khemchand and Tekchand inflicted a blow on the head

of the informant from the backside with article lying in the factory

and also inflicted blow on the nose of the informant. The F.I.R.

further states Tekchand assaulted the son of the informant one

Prakash with a wooden stool when Prakash attempted to

intervene and rescue the informant.

4] Chandrashekhar Raut, supposed to be an eye witness

is examined as P.W.1. He has not supported the prosecution and

nothing is brought out in the cross examination by the A.P.P. to

assist the prosecution. Pertinently, in the cross-examination on

behalf of the accused, P.W.1 admits that he still employed with

the complainant. Bulchand is examined as P.W.2 and states in the

examination-in-chief that Khemchand inflicted blow 'of something'

on his head from back side. He then states that his son Prakash

came and Tekchand pressed the neck of Prakash and Khemchand

inflicted a blow on the head of Prakash. In the cross-examination,

the statement that Khemchand dealt blow of stool on the head of

P.W.2 and also on the head of Prakash is brought on record as an

omission which is subsequently proved in the cross-examination of

the I.O. The witness admits in the cross-examination that he was

not assaulted by both Khemchand and Tekchand. Prakash is

examined as P.W.3. He says that Khemchand inflicted a blow on

the head of his father P.W.2. Prakash further states that when he

intervened, accused Tekchand pressed his throat and accused

Khemchand assaulted him with a stool on the head. One Ravi

Sable P.W.5 who is examined as eye witness did not support the

prosecution and nothing material is elicited in the

cross-examination conducted by the learned A.P.P. Nitin Hinge is

examined as P.W.6 who does support the prosecution to certain

extent in the examination-in-chief. However, in the

cross-examination the statement that out of the four persons one

person assaulted P.W.2 with stool is shown to be an omission.

The witness admits that he was not knowing the names of the

assailants and it was Prakash who told the witness that the person

who assaulted is Khemchand. Subhash Walekar who is examined

as P.W.7. In the cross-examination, it is extracted from the said

witness that when he noticed the incident, P.W.2 had fallen on the

table and blood was oozing from his head. The effort of the

defence was to demonstrate that Subhash Walekar did not witness

the incident. The Doctor Sheshrao Diwan is examined as P.W.10.

He states that the injury described in Exh.44, which is the

certificate pertaining to Prakash, is simple and is possible due to

dash with some hard object. He admits that he did not notice any

injury on the throat of Prakash and that if there is an attempt to

press the neck, then some mark is likely to be visible.

5] In so far as the acquittal of Tekchand is concerned,

I do not find any perversity in the view taken by the learned

Magistrate. The evidence on record is grossly insufficient to hold

Tekchand guilty of any offence much less under section 324 of

I.P.C. The question of section 34 of I.P.C. being attracted also does

not arise. Concededly, four persons including Khemchand and

Tekchand went to the house and factory of P.W.2 to demand

money. Nobody was armed. Possibly in the heat of the moment a

blow was inflicted using a stool as a weapon of offence. It is

difficult to hold that there was any meeting of mind or concerted

planning so as to attract section 34 of I.P.C. There is nothing on

record to suggest that Tekchand shared a common intention to

cause injury to Bulchand or his son Prakash. Criminal Appeal

276/2002 is without substance and must be rejected.

6] Shri Dhumale, the learned A.P.P. however, is serious

in contending that the sentence awarded to Khemchand must be

enhanced. He would urge that the sentence of imprisonment till

rising of the Court is a mockery of justice. I do see some substance

in the submission of the learned A.P.P. It is obvious that the

learned Magistrate has been extremely lenient in awarding the

punishment of imprisonment till rising of the Court. However, I

am not inclined to enhance the sentence at this stage.

The incident occurred about 18 years ago. It is true that the victim

suffered an injury. But then, in the altercation and in a hit of

passion, Khemchand picked up a stool and inflicted a solitary blow

on the head of Bulchand. I do not consider it appropriate to

enhance the sentence at this stage and after 18 years although

I must reiterate that the learned A.P.P. is right in contending that

the punishment till rising of the Court ought not to have been

awarded then.

7] Shri R.M. Daga, the learned counsel for the accused

states that in order to express remorse the accused Khemchand

has volunteered to contribute an amount of Rs.20,000/- to the

District Legal Aid Committee, Amravati. This statement is

accepted as an undertaking to the Court. The needful be done in a

four weeks and the compliance praecipe be filed in the Registry.

8] In view of the aforesaid findings and observations,

Criminal Appeal 285/2002 is also rejected.

9] If the amount is not deposited within the stipulated

period, the prayer of the state for enhancement of the sentence

may have to be considered afresh.

JUDGE

NSN