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2005 DIGILAW 1744 (BOM)

Bhagwan Trimbak Garde v. State of Maharashtra

2005-12-16

A.H.JOSHI

body2005
JUDGMENT :- Appeal is called out for hearing. 2. The present Appellants along with other accused persons numbering ninety faced a trial for alleged commission of offences by them under Sections 147, 148, 307, 395, 120B, 323 and 427, all read with Section 149 of Indian Penal Code, and Section 37(1)(3), read with Section 135(1) of the Bombay Police Act, wherein the present appellants were held guilty for offences under Sections 147 and 148 of Indian Penal Code, Section 135(1)(3) of the Bombay Police Act, as well as Section 301, read with Section 149 of Indian Penal Code; and sentenced to Rigorous Imprisonment for [a] one year on each count with a fine of Rs.1,000=00 each, in lieu whereof, Rigorous Imprisonment for six months on each count, [b] six months with a fine of Rs.1,000=00 each, and, on failure to pay the same, Rigorous Imprisonment for two months, and [c] seven years with a fine of Rs.5,000=00 each, in lieu of which, Rigorous Imprisonment for one year, on the first, second, third and fourth counts respectively. 3. It is seen that the complainant has suffered a grievous hurt as his arm below wrist was separated by the injury. 4. It is also seen from evidence that the assault leading to amputation was done by Accused No.6 - Bhagwan. Role played by Accused NO.2 is his having caught hold of Ramrao Shenge, and thereby the facilitated the injury. It is seen from evidence that there cannot be two opinions about the role played by Accused No.6, while there is sufficient variation in evidence in so far as role played by Accused No.2 is concerned. 5. Testimony of witnesses varies on the role played by remaining accused, i.e., Accused Nos.1 and 3 to 5. 6. In the midst of hearing, both the Advocates have placed on record a Criminal Application, brining to the notice of Court that now parties have compounded, and are seeking permission for compounding the offence. 7. In view of the reported Judgments of Apex Court in the cases of [a] Surendra Nath Mohanty and Anr. Vs. State of Orissa [ AIR 1999 SC 2181 : 1999 ALL MR(Cri) 1267 (S.C.)] and [b] Ram Lal and Anr. Vs. 7. In view of the reported Judgments of Apex Court in the cases of [a] Surendra Nath Mohanty and Anr. Vs. State of Orissa [ AIR 1999 SC 2181 : 1999 ALL MR(Cri) 1267 (S.C.)] and [b] Ram Lal and Anr. Vs. State of Jammu and Kashmir [ AIR 1999 SC 895 : 1999 ALL MR (Cri) 515 (S.C.)], all the learned Advocates appearing for the parties agree that compounding would not be permissible. However, leniency in the matter of sentence would be possible In view of the facts and circumstances. 8. Learned Advocates for the Appellants have pointed out that Accused No.6 has three months pre-trial detention, and period thereafter is hearing around eleven months and a fortnight. In so far as Accused NO.2 is concerned, his detention prior to conviction is twenty-one days and a similar duration after conviction. Other accused, whose role is as members of' unlawful assembly, have undergone pre-trial detention for one month as far as Appellant No.1 is concerned and 21 days as to Appellant Nos.4 and 5. 9. It is also seen that no specific overfacts, including instigation, are brought on record as far as Accused Nos. 1 and 3 to 5 are concerned. 10. In view of the facts that now parties have adopted the role of 'forget and forgive', and now, they report that the bitterness is buried, it would be in the interest of justice to take a lenient view of the matter and alter the sentence. 11. In no circumstance, the sentence under Section 307 of Indian Penal Code could be confirmed. It could, at the most, be under Section 326 of Indian Penal Code. The sentence is, therefore, altered to Section 326 in place of Section 307 of Indian Penal Code, as far as Appellant Nos.2 and 6 are concerned. 12. Other accused are acquitted as far as conviction under Section 307 of Indian Penal Code is concerned. 13. [a] Appellant Nos.2 and 6 are sentenced to suffer imprisonment corresponding to the period of detention already undergone by them under Section 326; Indian Penal Code, and, hence, they shall be set free forthwith. [b] Sentence of all the accused under Sections 147 and 148, Indian Penal Code, as well as Section 13.5(1)(3) of Bombay Police Act is modified to period already undergone by them as sentence running concurrently. [b] Sentence of all the accused under Sections 147 and 148, Indian Penal Code, as well as Section 13.5(1)(3) of Bombay Police Act is modified to period already undergone by them as sentence running concurrently. [c] In view of above [a] and [b], Appeal is partly allowed. [d] Criminal Application No.3209 of 2005 does not survive.