Research › Search › Judgment

Bombay High Court · body

2013 DIGILAW 2004 (BOM)

Raju Zanaklal Johare v. State of Maharashtra

2013-09-26

P.D.KODE

body2013
JUDGMENT By this application in revision, applicant no.1 convicted for commission of offence under Section 326 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- in-default of payment of fine, to suffer rigorous imprisonment for one month and so also for offence under Section 324 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.200/- in-default of payment of fine, to suffer rigorous imprisonment for seven days and whose said conviction was modified by partly allowing Criminal Appeal No.6 of 2005 preferred, by the appellate court to the tune of convicting the applicant only for commission of offence under Section 324 r/w 34 of the Indian Penal Code sentencing to suffer rigorous imprisonment for six months, has questioned the legality, impropriety and correctness of order passed by the trial court as well as modified by the appellate court. 2. The said prosecution had arisen out of investigation made by Buldana Police in Crime No.178/2003 registered upon the First Information Report lodged by PW1 Ashok Shriram Gaikwad on 30.7.2003 regarding an incident of assault which had occurred on the previous day i.e. in a night in between 29/30th July, 2003 at about 1.00 midnight, in which the applicant along with other co-accused, assaulted PW 1 Ashok Gaikwad, PW2 Konduba Gaikwad and PW3 Sanjay Gaikwad. As a result of investigation, Buldana Police charge-sheeted the applicant and other co-accused for commission of offence under Section 307 r/w Section 34 of the Indian Penal Code. 3. It is the prosecution case that during the incident occurred, the applicant was used rapi and stick while co-accused used the fist blows for assaulting first informant and his companions. The said incident occurred on the road near the house of PW2 Konduba at village Kolwad, District-Buldana. The applicant and the companions were tried by the learned Assistant• Sessions Judge, Buldana for commission of offence under Section 307 r/w 34 of the Indian Penal Code. The trial court, at the conclusion of the trial, came to the conclusion of the applicant having committed an offence under Sections 326 and 324 r/w 34 of the Indian Penal Code. However, as observed earlier, the appellate court was pleased to modify the said sentence, as narrated earlier. 4. Ms. The trial court, at the conclusion of the trial, came to the conclusion of the applicant having committed an offence under Sections 326 and 324 r/w 34 of the Indian Penal Code. However, as observed earlier, the appellate court was pleased to modify the said sentence, as narrated earlier. 4. Ms. Kulkarni, learned counsel appointed on behalf of the applicant, meticulously taking through the record and proceedings fairly submitted that she is not assailing the order of conviction as modified by the appellate court and is restricting her submission only to the quantum of sentence awarded. She further submitted that the evidence on record as well as the appreciation of the same made by the appellate court, reveals that during the incident, the applicant has assaulted only PW1 Ashok and he has not indulged in any activity of assaulting other three victim of offence. It is urged that the evidence reveals that during, the said incident while assaulting PW1 Ashok, the applicant had given only one blow over frontal area of skull causing him one injury. Learned counsel was very much right in submitting that though all the accused including the applicant, at the original trial, were charged for commission of offence under Section 307 r/w 34 of the Indian Penal Code even the trial court convicted applicant no. 1 only for commission of offence under Section 324 r/w 34 of the Indian Penal Code. She was further right in submitting that in an appeal preferred only by applicant no. 1 and co-accused no.2, the said conviction was modified from Section 326 r/w 34 of the Indian Penal Code to conviction under Section 324 r/w 34 of the Indian Penal Code. It was submitted that thus there is no material surfaced on record of applicant no. 1 having committed for offence under Section 326 of the Indian Penal Code for which one of the accused is found guilty by the trial court. It is urged that thus considering the role played by the applicant and the circumstances in which the incident had occurred, the sentence of six months awarded to the applicant is harsh. 5. Learned counsel for the applicant further submitted that the applicant is a labourer and has to support his family. She pointed that during the proceeding before the trial court, the applicant was in jail from 5.8.2003 to 6.9.2003. 5. Learned counsel for the applicant further submitted that the applicant is a labourer and has to support his family. She pointed that during the proceeding before the trial court, the applicant was in jail from 5.8.2003 to 6.9.2003. It is submitted that he was further in jail from 10.12.2004 to 25.10.2007 i.e. after his appeal was partly dismissed by the trial court. Learned counsel contended that considering the facts and circumstances of the case and the fact of applicant hailing from poor strata of the community, the sentence levied upon him be reduced to such an extent as deem, fit and proper by the court. 6. Mr. T.A. Mirza, learned A.P.P. for the Non-Applicant- State, submitted that factual position submitted by the learned counsel for the applicant regarding the period for which he is in custody and the role played by him being correct. He further submitted that the record also reveals that the applicant was labourer by profession and he has family to support. He further states that since the learned counsel for the applicant has not attempted to assail the order of conviction of an appellant for offence under Section 324 r/w 34 of the Indian Penal Code maintained by the appellate court, he is leaving the question of quantum of sentence to be awarded to the court. 7. After carefully considering the subject matter of the said case, the same reveals that incident in question had arisen due to occurrence of earlier incident in which Ku. Meena d/o PW 2 Kondiba was teased by Sanjay and Suresh, who are relatives of accused no.2. Thereafter, a meeting had taken place on 29.7.2003 at the house of PW2 Kondiba for settlement of dispute and with the mediation made by Police Patil, the matter was settled. It appears that incident in question was outcome of earlier incident occurred. Thus, considering the reasons behind occurrence of such an incident and the same being not dueto any long standing enmity in between the parties and was germane to the act of teasing of girl and role played by the applicant, the sentence of six months awarded to the applicant appears to be excessive. The same appears accordingly having due regard to the nature of injuries sustained by PW1 Ashok. 8. The same appears accordingly having due regard to the nature of injuries sustained by PW1 Ashok. 8. Hence, in the facts and circumstances of the case, the application in revision deserves to be allowed only to extent to the quantum of sentence imposed upon the applicant by reducing the sentence of rigorous imprisonment for six months awarded to him to the tune of sentence of two months with fine of Rs.200/- and in default of payment of fine, further sentence of seven days. The sentence imposed upon the applicant stands modified accordingly. 9. The Criminal Revision Application stands disposed of as partly allowed on aforesaid terms. 10. The fee of learned counsel appointed on behalf of the applicant, is quantified to the tune of Rs.2,500/-. Revision allowed.