Dhyaneshwar S/O Ganba Varthi vs State Of ...
2018 Latest Caselaw 686 Bom

 apeal609of02.odt                          1




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


                        CRIMINAL APPEAL 609 OF 2002


 Dhnyaneshwar s/o. Ganba Varthi,
 aged about 37 years, Occ. Business,
 resident of Magagaur,
 Tahsil Katol, District Nagpur                                       ...APPELLANT


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


 State of Maharashtra, 
 through Police Station Officer,
 Kondhali, District Nagpur                                            ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. V.D. Muley, counsel for appellant.
 Mr. N.H. Joshi, Additional Public Prosecutor for respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

DATE OF DECISION :19.01.2018

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 28.10.2002 delivered by the 1st Adhoc Additional Sessions

Judge, Nagpur in Session Trial 456 of 2000, by and under which,

the appellant (hereinafter referred to as "the accused") is

convicted for offence punishable under section 307 of the Indian

Penal Code ("IPC" for short) and is sentenced to suffer rigorous

imprisonment for four years and to payment of fine of Rs.1,000/-

and is further convicted for offence punishable under section 324

of the IPC and is sentenced to suffer rigorous imprisonment for

two years and to payment of fine of Rs. 500/-.

2 Heard Shri V.D. Muley, the learned counsel for the

accused and Shri N.H. Joshi, the learned Additional Public

Prosecutor for the respondent / State.

3 The case of the prosecution in brief, is that on

1.3.2000 at 7.30 p.m. the injured Ramchandra (PW 1) was in his

pan shop, "Sanjay Pan Mandir" when the accused arrived at the

pan stall. The accused was armed with a knife and after

quarreling with PW 1 Ramchandra, the accused gave a blow on

the abdomen region of PW 1. PW 1 was taken to Rural Hospital,

Katol and thereafter admitted in Mayo Hospital, Nagpur. His

statement was recorded in Mayo hospital on 3.3.2000 which is

treated as First Information Report (Exh. 13). The motive for the

knife blow was the inimical relations between the injured PW 1

and the accused. PW 1 states that he had helped the police to

seize illicit liquor from a relative of the accused one Balkrushna

Varthi.

4 The defence of the accused is of false implication.

The accused also asserted that his relations with the injured PW 1

were strained although the defence gives different reasons for the

strained relationship. The defence is that the injured PW 1 was

brandishing a knife and fell down in the drain under the influence

of liquor and hurt himself.

5 The prosecution has examined as many as twenty

witnesses to prove the offence. The testimony of PW 1

Ramchandra, who has deposed that at 7.30 p.m. on 1.3.2000 the

accused assaulted him with knife is not shaken in the cross

examination. Minor omissions, which do not dent the credibility

of evidence, are brought on record. The attempt of the defence

was to suggest that PW 1 under the influence of liquor and while

brandishing knife was abusing the accused. The suggestion given

to PW 1 is that he started running towards house of the accused

and fell in the drain. The defence is noted only for rejection.

Nothing is brought on record to probabilize the defence. The

medical officer has correctly stated in the cross examination that

had the accused fallen in the drain, signs of other injuries on his

person would be visible. The medical evidence apart, there is

nothing on record to suggest that PW 1 suffered injury due to his

own knife when he fell in the drain while being under the

influence of liquor.

6 The ocular evidence of PW 1 who is injured is more

than amply corroborated by PW 6 Sanjay and PW 7 Shantabai, the

brother and mother of injured PW 1. PW 9 Sitabai, who is

residing near the spot has deposed that she heard shouts from the

pan shop and saw accused and PW 1 quarreling. PW 9 thereafter

went to the house of PW 1 and gave information of the quarrel to

PW 7 Shantabai. PW 9 Sitabai states that when she again went to

the spot, PW 1 Ramchandra was lying on the ground.

7 PW 8 Suresh who is examined as eye witness did not

support the prosecution. However, the fact that the independent

eye witness PW 8 Suresh has not supported the prosecution would

not dilute the probative value of the implicitly reliable version of

the injured PW 1 Ramchandra, PW 6 Sanjay and PW 7 Shantabai.

I am not impressed by the submission that since the witnesses are

relatives, they are interested witnesses. A related witness is not

necessarily an interested witness. I have found the testimonies of

the brother and mother of injured Ramchandra confidence

inspiring. There is no reason to disbelieve the evidence of injured

and PW 6 and PW 7 only because PW 8 Suresh did not support

the prosecution.

8 The finding recorded by the learned Sessions Judge

that accused delivered a knife blow to PW 1 is exceptionable.

However, it is difficult to hold that the prosecution has established

offence under section 307 of IPC. It is not in dispute that a single

blow was inflicted. The accused did not make any attempt to

continue the assault or to take the assault to the logical end, if the

intention were to be to kill PW 1. It is not the case of the

prosecution that accused was prevented from continuing the

assault. The evidence is suggesting that there was a quarrel

although the details are blurred. In the circumstances available on

record, it would be unsafe to convict the accused under section

307 of IPC. However, PW 1 was operated and three internal

wounds were noticed which according to the medical officer could

be caused by single blow. In view of the medical evidence on

record, the accused is liable to be convicted under section 326 of

IPC.

9 In so far as sentence is concerned, the accused and

the injured PW 1 have moved a joint application 42 of 2018

seeking permission to compound the offence. Paragraph 3 of the

application reads thus:

"That, the matter is compromised by the appellant and injured amicably. They are the resident of village Magagsur, Tahsil Katol, District Nagpur. The incident is of the year 2000. After long gap of time, the relations between the appellant and injured is very good and families of both is on very good terms. It is submitted that no fruitful purpose would be served in continuing the case, and thus prays for permission to compound the offence in extra ordinary jurisdiction of this Hon'ble Court".

Both the complainant and the accused are present. I have

interviewed the complainant Shri Ramchandra Ankushraoji

Mankar in order to satisfy the conscious of the Court that the

process of law is not being subverted and I am satisfied that the

joint application is not malafide. Offence punishable under

section 326 of IPC is not compoundable offence. However, in view

of the fact that the accused and the injured PW 1 are before the

Court contending that the offence be compounded in view of the

contents of paragraph 3 reproduced supra, I am inclined to

sentence the accused to detention already undergone.

Hence, this order:

i) The conviction of the accused for the offence punishable

under section 307 of IPC is set aside and the accused is instead

convicted under section 326 of IPC and is sentenced to detention

already undergone.

ii) Criminal Application 42 of 2018 is disposed of.

   iii)     The appeal is partly allowed.



                                                                 JUDGE




RS Belkhede