Ganesh S/O Kashiram Devkar And ... vs State Of Mah. Thr. Pso Buldhana ...
2022 Latest Caselaw 10265 Bom

                                   1



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

      CRIMINAL REVISION APPLICATION (REVN) NO. 120/2021

     1.   Ganesh S/o Kashiram Devkar,
          aged 41 years, Occ. Agriculturist.

     2.   Kashiram S/o. Devrao Devkar,
          aged about 71 years, Occ. Agriculturist,

          Both R/o. Dahad (Bk.) Ta. & Dist.
          Buldhana,

                                               .....      APPLICANTS


                                VERSUS

          State of Maharashtra, through
          P.S.O. Buldhana (Rural),
          Buldhana.



                                                     .....NON-APPLICANT/

_____________________________________________________________
       Mr. R. M. Daga, Advocate for applicants.
       Mr. I. Damle, APP for non-applicant/State.
______________________________________________________________

                    CORAM                      : VINAY JOSHI, J.

                    DATE OF JUDGMENT           : 06.10.2022.

ORAL JUDGMENT :

           Heard.


2.         Admit.

3. This revision application is of accused No. 2 (applicant

No.1) and accused No. 3 (applicant No. 2) of Regular Criminal Case

No. 207/2012 challenging the order of conviction.

4. Facts in brief are that, on 29.09.2012 while informant

(injured) Ramkrishna Uttam Raut was returning from his field,

applicants along with co-accused Kautikarao assaulted him by means of

stick and rare handle of axe, causing him bleeding injury. On the basis

of said incident, informant has lodged report on 09.10.2012 with

concerned Police Station which was registered vide Crime No. 56/2012

for the offence punishable under Sections 325, 504, 506 read with

Section 34 of the Indian Penal Code. The Police have completed the

investigation and filed charge-sheet against three accused. The

prosecution led evidence of eight witnesses as well as relied on certain

documents.

5. On full-fledged, the learned Magistrate was pleased to

acquit accused No. 1 - Kautikrao Kashiram Deokar whilst held accused

No. 2 Ganesh Kashiram Deokar and accused No. 3 - Kashiram Deorao

Deokar guilty. The Magistrate has convicted accused No. 2, Ganesh for

the offence punishable under Section 324 of the Indian Penal Code, and

sentenced him to suffer simple imprisonment for one year along with

fine of Rs. 1,000/-. Likewise accused No. 3, Kashiram was convicted

for the offence punishable under Section 325 of the Indian Penal Code,

and sentenced to suffer simple imprisonment for one year along with

fine of Rs. 1,000/- vide judgment and order dated 11.10.2014.

6. Both convicted accused have challenged the order of

conviction in Criminal Appeal No. 76/2014. Being aggrieved by

acquittal of accused No. 1, the informant has filed Criminal Appeal No.

50/2015 as well as filed Criminal Revision No. 112/2014 seeking

enhancement of sentence of convicted accused. The learned Sessions

Judge heard all the matters together since they were arising out of the

same judgment and order of the Trial Court. The learned Sessions

Judge has dismissed both appeals as well as revision and thereby

confirmed the order of the learned Magistrate.

7. Being aggrieved by the dismissal of Criminal Appeal

No. 76/2014, the convicted accused are before this Court. Though the

informant's appeal as well as revision was dismissed, he has not

challenged the same. Thus, the legality and correctness of the

conviction of accused Nos. 2 and 3 is for consideration in this revision

application. Besides challenging the order of conviction on merit, the

learned counsel appearing for applicants would submit that the

sentence imposed by the Trial Court and confirmed by the Sessions

Court is disproportionate. He would submit that accused No. 3 is 73

years of age having several ailments. Moreover, it is contended that the

alleged occurrence was of the year 2012 and no offence was registered

against accused No. 3 till then. He would submit that though one

crime was registered against accused No. 2, however in the said case,

he was discharged as a result of compromise. It is submitted that both

parties are resident of same village.

8. The learned APP resisted the submission on merits. It is

argued that the prosecution led evidence of injured as well as three

eye-witnesses which is sufficient to establish the guilt. Moreover,

medical evidence strongly supports the testimony of the eye-witnesses.

On the point, sentence though he admits that the incident is very old,

however considering the gravity of occurrence, submitted to maintain

the sentence.

9. As per police report of injured, on 29.09.2012 in the

evening around 07.00 p.m., he was returning to his house. In the way,

accused No. 3, accosted him who was accompanied by his two sons.

Quarrel took place in which accused No. 3 who was under influence of

liquor had dealt a stick blow at his right hand wrist whilst accused No.

2 dealt a blow at his head and neck by iron rod. He stated that accused

No. 1, Kautikrao Kashiram Deokar also beat by kicks and fist blows at

his chest. The prosecution led evidence of in all eight witnesses to

establish the guilt. Injured Ramkrishna has specifically stated the act of

accused Nos. 2 and 3 about the assault. His cross-examination

remained to be abortive. The prosecution has led evidence of PW-4,

Sitaram Raut who is independent eye-witness. He has squarely

supported the evidence of informant on material aspect. Likewise,

evidence of PW-5, Vandana Raut and PW-7, Anita Raut also support the

prosecution case. Cross-examination of these witnesses withstood to

their evidence. The prosecution has also examined Medical Officer as

well as produced medico-legal certificate. As per the evidence of

Medical Officer, injured sustain the injuries namely:-

(I) Abrasions size of 3 x 0.5 cm on forehead left side.

          (ii)     Blunt trauma on left side mandible.

          (iii)    Blunt trauma to right hand.

The injuries were at forehead, face and right hand which corroborates

the ocular evidence.

10. The Trial Court as well as the First Appellate Court has

rightly considered the evidence while holding accused Nos. 2 and 3

guilty. On revisiting the entire material, it is evident that the evidence

led by the prosecution is sufficient to establish the incident as alleged.

As per evidence of medical officer, injured sustained right hand

metacarpal bone fracture, whilst other injuries were of simple nature.

Since accused No. 2 has used handle of axe which is a dangerous

weapon, his conviction under Section 324 is well justifiable likewise

accused No. 3 caused grievous hurt by stick, conviction under Section

325 of the Indian Penal Code is maintainable. In view of that, the

challenge raised by the applicants on merits is untenable. Both the

Courts below have properly appreciated the evidence, while recording

the finding of guilt, which calls no interference.

11. Coming to the aspect of sentence, the Trial Court has

sentenced both of them to undergo simple imprisonment for one year

and to pay fine of Rs. 1,000/- each with default caluse. The learned

counsel appearing for the applicants primly argued that the applicants

are not history sheeter nor having criminal antecedents. It is submitted

that though applicants were convicted for the incident of the year 2012,

till date i.e. during span of last ten years, there was no quarrel or

incident of assault in between the parties. The incident was a sudden

outcome at the instance of some village dispute. Both the parties, are

residing in the same village.

12. It is submitted that the applicants are agriculturists. The

applicant No. 1, Ganesh is cultivating the land and earning for his

livelihood. He is shouldering the responsibility of his wife and kids.

As regards to applicant No. 2, Kashiram, he is 73 years of age and

suffering from various ailments.

13. Always a sentence shall be in proportion to the atrocities

committed by the accused. Section 324 of the Indian Penal Code

provides punishment of imprisonment of either description for a term

which may extend to three years or with fine or with both. Section 325

of the Indian Penal Code, provides punishment of imprisonment of

either description for a term which may extend to seven years along

with fine. The Legislature has purposefully left a vast discretion with

the Courts while imposing punishment as no minimum sentence has

been prescribed by the statute. Obviously, on the basis of emerging

facts and taking into account over all circumstances, the sentence has

to be awarded.

14. The applicants are villagers, doing agricultural work. It

reveals that out of villager rivalry or may be due to land dispute, there

appears to be sudden incident of quarrel. Pertinent to note that

incident was occurred prior to a decade, concededly no further

untowards incident in between the parties was reported. The

applicants had faced criminal prosecution for last 10 years and were

under shadow of conviction from the year 2014. Having regard to

these peculiar facts and especially incident is very old, the

circumstances do not warrant to take stringent view. On the other

hand, injured can be adequately compensated from the fine amount

which would suffice the purpose. Moreover, it will maintain harmony

in the village.

15. The First Appellate Court had dismissed the appeal on

15.12.2021 on which both applicants were taken in to custody. This

Court vide order dated 21.12.2021 has suspended the execution of

sentence and it is informed that after two days, they were released

from Jail, meaning thereby, they were in custody for eight days. By

taking into account all these factors, I deem it appropriate to mold the

sentence by upholding conviction.

16. In view of above, the conviction recorded by both the

Courts is maintained, however sentence needs to be modified as

below:-

(I) Criminal Revision is partly allowed.

(II) Conviction of both the applicants in Regular Criminal Case No. 207/2012 is maintained, instead of sentenceing the applicants as directed by the Courts below, they are sentenced for the period which they have already undergone, along with fine of Rs. 25,000/- each to be deposited in the Trial Court within a period of two weeks from today, in-default, they shall suffer simple

imprisonment for six months.

(III) On recovery of fine amount, it shall be paid to the informant namely Ramkrishna Uttam Raut towards compensation in terms of Section 357(1) of the Code of Criminal Procedure.

17. Application stands disposed of in above terms.

(VINAY JOSHI, J.) Gohane

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.10.10 18:16:10 +0530