Bombay High Court
Prabhakar Bhaduji Chavan vs State Of Mah. Thr. Pso Ps Chandur Rly., ... on 12 January, 2024
Author: M. W. Chandwani
Bench: M. W. Chandwani
2024:BHC-NAG:473
1 16 apeal-713-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 1154 OF 2023
IN
CRIMINAL APPEAL NO. 713 OF 2023
Prabhakar S/o. Bhaduji Chavan and another
Vs.
The State of Maharashtra
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Shri P. A. Kadu, Advocate for Appellants.
Ms. Kavita Bhondge, APP for non-applicant/State.
CORAM :- M. W. CHANDWANI, J.
DATED :- 12.01.2024
Heard.
2. The appellants seek suspension of
substantive sentence passed on 21.09.2023 by the
learned Additional Sessions Judge, Akot, Dist. Amravati
in Sessions Case No. 305/2021.
3. The appellants have been convicted for the
offence punishable under Sections 326 r/w. 34 of the
Indian Penal Code (IPC) and are directed to suffer
rigorous imprisonment for five years and to pay a fine of
₹5,000/- each by the order of conviction dated
21.09.2023.
4. Heard the learned counsel for the appellants
as well as the learned APP for the State.
RR Jaiswal/Wagh
2 16 apeal-713-23.odt
5. Having gone through the record and proceedings
including judgment. It is revealed that the appellants
were initially charged for the offence punishable under
Sections 307, 504 and 506 r/w. 34 of the IPC on the
allegations that on 07.09.2021, the appellant no. 1 and
appellant no. 2, who is son of the appellant no. 1,
assaulted victim-Lakhan (PW2) on his neck. Appellants
were tried and the learned Trial Court has found them
guilty for the offence punishable under Section 326 r/w.
34 of the IPC. The appellants were acquitted from the
other charges.
6. With the able assistance of the learned counsel for
the appellants as well as the learned APP for State, the
evidence of the prosecution witnesses are scanned.
7. A perusal of the impugned judgment shows that
the appellant no.1 assaulted the victim by means of sickle
on his neck. The judgment reveals that the alleged
assault by appellant no. 2, by means of sickle on the
person of the victim- Lakhan, has not been proved.
However, since the appellant no. 2 was present on the
spot, along with appellant no. 1, the learned Trial Court
has held that the assault was made by appellant no.1 in
presence of appellant no.2 and appellant no.2 did not
restrain his father from committing the said crime. On
these circumstances, the learned Trial Court inferred the
common intention of appellant no.2 to assault victim-
Lakhan and also convicted him for the offence punishable
under Section 326 of the IPC.
RR Jaiswal/Wagh
3 16 apeal-713-23.odt
8. Axiomatically, appellant no.2 has not assaulted
victim- Lakhan though, in their evidence, prosecution
witnesses tried to rope him as an assailant. An arguable
case is made out on findings of the learned Trial Court,
whereby the learned Trial Court has attributed his
presence on the spot and not restraining his father from
assaulting victim- Lakhan, as an act of sharing common
intention with applicant no. 1. In case of acquittal of
appellant no.2, who is in jail and if he is directed to
undergo the sentence awarded by the learned Trial Court,
then the position will be irreversible.
9. The appellant no.1, who is 67 years old, lost his
wife after the conviction and even he did not attend the
last rites of his wife. The appellants have been convicted
for fixed term of five years, which is relatively shorter
term. The appeal may not be heard in near future. In
totality of the above said circumstances and peculiar facts
of the case, a case is made out for suspension of sentence
of the appellants. Hence, I proceed to pass the following
order:-
i) The application is allowed.
ii) During pendency of the appeal, the
substantive sentence awarded to appellants -(1)
Prabhakar s/o Bhaduji Chavan and (2) Sandeep S/o
Prabhakar Chavan shall remain suspended.
RR Jaiswal/Wagh
4 16 apeal-713-23.odt
iii) The appellants -(1) Prabhakar s/o Bhaduji
Chavan and (2) Sandeep S/o Prabhakar Chavan shall be
released on bail on they executing a PR bond of
₹25,000/- (Rs. Twenty Five Thousand) each with one
solvent surety in the like amount.
iv) Appellants shall remain present before this
Court as and when directed.
(M. W. CHANDWANI, J.)
RR Jaiswal/Wagh
