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2005 DIGILAW 1269 (BOM)

Gulabrao v. State of Maharashtra

2005-09-22

A.H.JOSHI

body2005
Judgment A. H. JOSHI, J. ( 1 ) APPELLANTS were tried by learned Sixth Additional Sessions judge, Nagpur, In Sessions Trial No. 558 of 1992 for offence punishable under Section 302, read with section 34 of Indian penal Code. The accused were charged for committing murder of Manohar Sitaram ramteke by means of stick and knife. ( 2 ) THE injuries on the person of deceased, as seen in the Post-mortem report, which are about ten in number do sufficiently create a room for drawing an inference that in ordinary course. , the injuries would result in the death of the victim. Other injuries are minor. The stab wounds are cavity deep on the thoracic, abdominal and iliac regions. ( 3 ) LEST that the accused have some mitigating circumstances, the conviction, as occurred under Part-I of section 304, Indian Penal Code, seems unassailable. ( 4 ) BY way of grounds of appeal, the appellants have agitated contentions, namely:-" (a) Prosecution has to suffer blame of acting partially, since a prior registered crime of assault by the group of complainants on the house of the accused by trespassing, assaulting and outraging modesty of the inmates of the house has gone uninvestigated, which was the real cause of retaliation and/or provocation as well a defensive effort on the part of the accused. (b) the prosecution has audacity of denying injuries on the person of the accused no. 1. This is apparently because prosecution thought that they would be successful in diverting attention of the Court from the injury on the person of accused no. 1 , and to take advantage of the fact that the prosecution neglected to the said injury and did not bring on record evidence as to whether accused No. 1 was referred for medical examination and what was the outcome therefrom. (c) The recovery of weapons of assault was not proved. This would result in failure on the part of the prosecution to connect the accused, the weapon and the crime. However, on the face of the fact that accused did not plead something, such as alibi, and their presence has been proved, failure to establish the nexus of the injuries and the weapon will have to be construed adverse to the prosecution, since the injuries are not proved as caused by the weapon allegedly recovered. However, on the face of the fact that accused did not plead something, such as alibi, and their presence has been proved, failure to establish the nexus of the injuries and the weapon will have to be construed adverse to the prosecution, since the injuries are not proved as caused by the weapon allegedly recovered. (d) The fact that the Investigating officer has admitted that offence Crime No. 519/92 was registered under Sections 147, 148,149, 448 and 427, Indian penal Code, the defence suggested by the accused primarily in the cross-examination, and in the statement furtherance to Section 313, Criminal procedure Code, placed on record in writing is sufficient to demonstrate that the defence of the accused is that they did not commit the act of assaulting the victim in an unprovoked way. (e) Collective effect would be that the offence alleged against the accused would be liable to be construed something to be of a lesser degree than the offence for which they are convicted. It would, at the most, be under Section 304 Part-II and even under Section 335 of Indian Penal Code. (f) Additional ground urged at the time of hearing is that the accused were the only male members in the family. Accused No. 2 Dewaji Hajare has already passed away. Accused no. 1 - Gulabrao Hajare has already crossed 70 years and accused no. 3 has crossed 55 years. They have undergone sufficient punishment by virtue of male members in the family being required to undergo a trial and punishment. The accused were already in jail prior to conviction, namely accused No. 1 has undergone about nine and half months period, while accused no. 3 has suffered about three-and halfmonths period of imprisonment. " ( 5 ) LEARNED Advocate for the appellants urged that the admission of the investigating Officer about registration of crime at the behest of the accused is liable to be considered as a circumstance which resulted in provoking the accused. According to learned Advocate, it is seen from Exh. 55, the arrest panchanama, that injury on the person of accused No. 1 was seen and is recorded in the arrest panchanama. ( 6 ) LEARNED Advocate for the appellants emphasized that the prosecution had deliberately withheld some evidence. The Investigating Officer went to the extent of denying that accused-Gulab had shown injuries to his leg at the time of arrest. ( 6 ) LEARNED Advocate for the appellants emphasized that the prosecution had deliberately withheld some evidence. The Investigating Officer went to the extent of denying that accused-Gulab had shown injuries to his leg at the time of arrest. This witness had no reason to lie, except for covering his own lapses in the investigation which, if covered, would prove the guilt of the accused, and if uncovered, would prove the mitigating circumstances. ( 7 ) THE accused have brought on record not only in the cross-examination of the Investigating Officer, but also in the cross-examinations of the complainant and eye-witnesses that about three days prior, the controversy and quarrel between the two families was going on and it reached the peak when the family of complainant attacked the family of accused. ( 8 ) THE fact that PW 4 - Harishchandra who is the witness of recovery of weapons, in fact, proves that the said recovery was not done in the manner in which the prosecution has claimed. He says that he does not know from where the weapons were brought. ( 9 ) IN the midst of hearing, when the learned Advocate for the appellants found that the case is not of a clear acquittal, he wanted to make an effort to have the situation mitigated by compensating the widow of the victim. ( 10 ) BY virtue of the efforts of compounding which the accused have done, smt. Shashikala widow of Manohar ramteke has appeared through Advocate and also in person in this Court suo moto and has filed an affidavit, which is identified by Advocate Ms. S. K. Tembhurkar. In her affidavit, she has stated that in the passage of time, with view of harmony and peace, and in view of fact that, in the meantime, accused did not cause any harm and compensated her by paying rs. 10,000-00 by a Demand Draft. By this affidavit, Smt. Shashkala probably wants to suggest now that she has no grievance and accused persons, who were appellants, want to plead before the Court the fact that they are compensating widow of the deceased Manohar, be considered as mitigating circumstance. ( 11 ) AFTER considering the facts and mitigating circumstances, this Court is of the view that the assault by the accused persons was in retaliation and an act in reflex of being provoked. ( 11 ) AFTER considering the facts and mitigating circumstances, this Court is of the view that the assault by the accused persons was in retaliation and an act in reflex of being provoked. In any case, the case does not fall in Section 304 part-I, Indian Penal Code. The act of accused is liable to be regarded as offence punishable under Section 335, and they are accordingly convicted under Section 335 of Indian Penal Code. ( 12 ) CONSIDERING the fact that the incident refers back to 1992, the trial commenced in 1996 and the appeal is reaching final hearing in 2005, the sufferance of the accused and their family members is much more punishment. This Court, therefore, considers that if the accused are sentenced equal to the period already undergone by way of substantive sentence and are directed to pay, in addition, a fine of Rs. 10,000-00 (rupees ten thousand only) each, it shall meet the ends of justice. This Court directs the appellants that the amount of fine be ordered to be paid within a period of two months. The said amount be paid to the widow of deceased Manohar, namely Smt. Shashikala widow of manohar Ramteke, when deposited. In the event, each accused fails to make such deposit within a period of two months from the date of this judgment, they will have to undergo a sentence of rigorous Imprisonment for a period of one year, in addition to period of imprisonment already undergone. ( 13 ) IN the result, appeal is partly allowed. The accused-appellant Nos. 1 and 2 are convicted for offence punishable under section 335, Indian Penal code. The substantive sentence shall be the period undergone and a fine of rs. 10,000-00 (rupees ten thousand only) each to be deposited within two months from the date of judgment. On a failure of the accused to pay the fine within a period of two months from the date of this judgment, they will have to undergo a sentence of Rigorous Imprisonment for a period of one year, in addition to period of imprisonment already undergone. On a failure of the accused to pay the fine within a period of two months from the date of this judgment, they will have to undergo a sentence of Rigorous Imprisonment for a period of one year, in addition to period of imprisonment already undergone. ( 14 ) ON deposit of fine amount by the accused, the amount of fine be paid to the widow of deceased Manohar, namely Smt. Shashikala Manohar Ramteke, and this payment shall be in addition to amount already paid and without prejudice to her right available to her, if any, in law. Appeal partly allowed.