Bombay High Court
Namdeo Tulshiram Mohadkar And Ors vs State Of Maharashtra on 7 May, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.338 OF 1998
Namdeo Tulshiram Mohadkar & Ors. .. Appellants
Versus
The State of Maharashtra .. Respondent
...
Mr.Sachin Gite for the Appellants.
Mr.Y.Y.Dabake, APP for the State.
...
CORAM: BHARATI DANGRE, J.
DATED : 07th MAY, 2021
P.C:-
1. This appeal was heard and closed for orders. By the
impugned judgment, the appellants have been convicted
merely for the charge under Section 325 of the IPC and
sentenced to suffer R.I. for fve years whereas one of the
appellants is convicted under Section 324 of the IPC. The
charge was levelled under Section 302 read with Section 34 of
the IPC, but the learned Sessions Court has acquitted the
accused of the said charge on the ground that the
victim/deceased was not admitted to medical aid immediately
and he was taken to the hospital on the next date. However,
the postmortem report opine the cause of death as "death due
to shock due to head injury". The head injury described in
column Nos.18 and 19 refect haematoma under the scalp over
vertex and both parietal bones and fracture of both parietal
M.M.Salgaonkar
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bones. It is possible that even if the medical aid was
immediately administered, the victim could not have been
saved. However, the learned Judge has adopted a strange
reasoning and acquitted the accused persons under Section
302 of the IPC.
2. On noticing the aforesaid in an appeal fled by the
appellants challenging conviction under Section 324 and 325
of the IPC, I have specifcally put a query to the learned APP
for the State as to whether the State has preferred any appeal
against the said judgment and the answer was in the negative.
I am, therefore, confronted with the situation whether the
power can be exercised by this Court to enhance the sentence
of the appellants in exercise of inherent jurisdiction of this
Court and in particular, in light of the decision in Popular
where the Apex Court has dealt with the
power of the High Court under Section 482 to correct the
errors of the court below and to pass such orders as may be
necessary to do justice to the parties and/or to prevent the
abuse of process of Court, but the issue that will again arise
and for which, I will have to seek assistance from the learned
counsel for the appellants as also from the learned APP is, as
to whether in absence of the acquittal being challenged by the
State, whether the sentence can be enhanced to that of the
charge for which the appellants are already acquitted. Since
the learned counsel Mr.Gite as well as the learned APP were
not aware of this line of reasoning, which was thought by me
while the judgment was being dictated, I deem it appropriate to
1 2006(7) SCC 296
M.M.Salgaonkar
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afford an opportunity to both the respective counsel to
advance their submissions on the said point.
For the said purpose, list the appeal on 14th June, 2021.
SMT. BHARATI DANGRE, J
M.M.Salgaonkar
