Bombay High Court
Ashok Hari Gharde vs State Of Mah.Thr.Pso Nagpur on 31 January, 2018
Bench: R. B. Deo
1 apeal533.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 533 OF 2004
Ashok s/o Hari Gharde,
Aged about 25 years,
Occupation - Labour,
R/o Hiwara (Benda), Tahsil-Ramtek,
District Nagpur. .... APPELLANT
VERSUS
State of Maharashtra,
through P.S.O., Ramtek,
District-Nagpur. .... RESPONDENT
______________________________________________________________
Shri R.R. Prajapati, Advocate for the appellant,
Smt. S.V. Kolhe, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 31
JANUARY, 2018.
st
ORAL JUDGMENT :
The appellant is assailing the judgment and order dated
17-7-2004 rendered by the learned 3rd Ad hoc Additional Sessions
Judge, Nagpur in Sessions Trial 105/2002, by and under which the
appellant-accused is convicted for offence punishable under Section
307 of the Indian Penal Code ("IPC" for short) and is sentenced to
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suffer rigorous imprisonment for five years and to payment of fine of
Rs.1,000/-.
2. Heard Shri R.R. Prajapati, learned Counsel for the
appellant and Smt. S.V. Kolhe, learned Additional Public Prosecutor for
the respondent.
3. The learned Counsel for the appellant-accused would
submit that even if the evidence on record is taken at face value,
offence punishable under Section 307 of the IPC is not established by
the prosecution. He invites my attention to the evidence on record,
both ocular and medical. The doctor, who examined the injured,
(P.W.1) has opined that the solitary lacerated wound may have been
caused due to the blunt side of the weapon (axe).
4. Concededly, single blow with the blunt side of the axe was
inflicted, although on a vital part of the body.
5. The prelude appears to be an altercation between the
brother of the injured and the family members of the accused. The
injured is the cousin brother of the accused.
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6. The prosecution witnesses, of course, do not state in the
examination-in-chief that the assault was preceded by an altercation.
However, in the cross-examination, it is brought on record that the
prelude to the assault was an altercation over breaking of the earthen
pots.
7. Even if the evidence on record is taken at face value, it is
difficult to come to any conclusion with reasonable certainty that the
requisite intention or knowledge contemplated by Section 307 of the
IPC can be attributed to the accused.
8. However, the accused deserves to be convicted under
Section 326 of the IPC. The blow, albeit from the blunt side of the axe,
caused fracture of left fronto-parietal region. The injury was, therefore,
grievous in nature.
9. The conviction of the appellant under Section 307 of the
IPC is set aside and instead the appellant-accused is convicted for
offence punishable under Section 326 of the IPC.
10. In so far as sentence is concerned, injured Rajesh Gharde
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has left for heavenly abode in the year 2009. His widow, whom I have
personally interviewed, Smt. Ramakanta Rajesh Gharde has filed on
record an affidavit. The relevant portions of which read thus :
3. That, on the basis of said FIR S.T. No.105/2002 was
registered against the appellant and others. That, in
Sessions Trial Vijay Domaji Gharde was acquitted and
Padmakar Domaji Gharde expired before commencement of
trial and the present appellant (Ashok Gharde) has been
convicted on 17-7-2004 for sentence to suffer R.I. for five
years. That, since 2007 the relation between the appellant
family and my family were good and cordial till today and
also appellant having good and cordial relationship with my
late husband also.
4. That, my husband expired on 15-2-2009 at Indira
Gandhi Medical College (MAYO) and at the relevant time
also, the appellant help me and my family for the assistance
of treatment at Hospital. That, the appellant and late
deceased Rajesh Gharde were the real cousins and are
residing in the same locality. And after the death of Rajesh
Gharde, the relation between the appellant family and the
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deponent families were good and cordial and the appellant is
also looking the daily affairs of the business of the family.
That, the appellant also borne expenses on the marriage of
deponents daughter by name Neha performed on 18-4-2016
at Kamptee Road, Nagpur. That the deponent also was as
witness in the Sessions Trial as P.W.2 and she deposed on
10-2-2004 before the Sessions Court, Nagpur.
5. That at present the deponent having no grievance
against the appellant and she also does not want to
prosecute the matter and she want to compound the appeal
proceeding because at present the relations between the
appellant family and my family has been good and cordial,
so the present appeal against the appellant and the offence
under Section 307 be compounded in view of settlement
between myself and appellant's family.
11. The offence is non-compoundable, as is fairly conceded by
the learned Counsel for the accused. However, consistent with the
view of the Hon'ble Apex Court in Ishwar Singh vs. State of Madhya
Pradesh reported in (2008) 15 SCC 667, I see no impediment in
altering the sentence to already undergone. The appellant has suffered
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detention, as under trial prisoner and as a convict for more than two
months. The incident occurred more than 16 years ago. The family of
the injured and the accused, who are relatives, have buried the past.
12. In view of the affidavit filed on record and the attending
circumstances, while convicting the appellant under Section 326 of the
IPC, I deem it appropriate to sentence the appellant-accused to
detention/imprisonment already undergone.
13. The appeal is partly allowed and disposed of.
14. The bail bond of the accused shall stand discharged.
JUDGE
adgokar
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