Rajendra Harakchand Bhandari & Ors vs State Of Maharashtra & Anr

Rajendra Harakchand Bhandari & Ors. .... Appellants

Versus

State of Maharashtra & Anr. ....Respondents

JUDGMENT

R.M. Lodha, J.

Leave granted.

2. Six persons - the appellants and two others - were

sent up for trial, inter alia, for various offences punishable

1

under the Indian Penal Code, 1860 (`IPC') initially to the Court

of IInd Additional Sessions Judge, Ahmednagar; later on trial

was transferred to the Court of IInd Additional Sessions Judge,

Shrirampur. The trial court acquitted two of them but convicted

the appellants vide judgment dated December 10, 1997 for the

offences punishable under Section 307 read with Section 149

IPC; Section 332 read with Section 149 IPC; Section 353 read

with Section 149 IPC; Section 147 IPC and Section 148 IPC.

As regards the offence punishable under Section 307 read

with Section 149 IPC, the trial court sentenced them to suffer

rigorous imprisonment for five years and to pay fine of Rs.

5000/- each with a default stipulation. For the other offences,

lesser punishment was awarded. The trial court ordered the

substantive sentences to run concurrently.

3. The convicts (appellants) filed criminal appeal

before the High Court of Judicature at Bombay, Appellate

Side, Bench at Aurangabad. The High Court vide its judgment

dated February 3, 2010 set aside the conviction of the

appellants for the offences punishable under Sections 147 and

148 IPC and altered their conviction to Section 307 read with

2 Section 34, Section 332 read with Section 34 and Section 353

read with Section 34 IPC and sentenced them to suffer

rigorous imprisonment for five years and to pay a fine of

Rs. 5,000/- for the offence under Section 307 read with

Section 34 IPC and lesser punishment for the other offences.

The High Court also ordered that the substantive sentences

shall run concurrently.

4. It is from the above judgment of the High Court that

the appellants have come up in appeal, by special leave.

5. Keshav Baurao Darandale (PW-8) was posted as a

clerk in the Block Office of Bhenda Co-operative Sugar Factory

Limited, Bhenda (Bk.) (for short, `the Sugar Factory'). On May

17, 1991 at about 11.00 a.m., Pradip Harakchand Bhandari

(A-2) went to the office of the Sugar Factory and asked PW-8

to take entry of the sugarcane grown by him. PW-8 informed

A-2 that he could not do that as the revenue entry relating to

the land where sugarcane has been grown bears an

endorsement of injunction. PW-8 told A-2 that he should take

permission in this regard from the Overseer -- Lahanu Garje

3

(PW-7). On hearing this, A-2 became infuriated and abused

PW-8 and beat him. Balasaheb Bhagwant Wabale (PW-5),

PW-7 and few others arrived there and intervened. A-2 then

went away.

6. PW-8 then went to the head office of the Sugar

Factory along with PW-7 and gave report of the incident. At

that time, two brothers of A-2 came there and started abusing.

However, the two agricultural officers present there persuaded

them to go away and they left the place. PW-8 then went to

Kukana Police Outpost along with security officer Tanaji Datir

(PW-10) for lodging the complaint. At that time, Rajendra

Harakchand Bhandari (A-1), Sunil Deshmukh (A-3), Bandu

Deshmukh (A-4), Sunil Sheshrao Garje (A-5), Sopan

Pandurang Kharade (A-6) came there along with A-2. It was

about 1.00 to 1.30 p.m. A-1 was armed with sword while the

others were armed with sticks. A-1 asked PW-8 to come out

but he refused; A-1 then entered the police outpost and gave

blow with sword on the head of PW-8. The other accused --

A-2, A-3, A-4, A-5 and A-6 -- also started beating PW-8.

4 A-2 and A-5 gave beating to Yadav Bhagwanta Satpute (PW-

4) and PW-10 as well.

7. PW-4 informed the incident to the Police Station,

Nawasa. Suryakant Pansare (PW-14) -- Assistant Police

Inspector -- immediately reached the scene of incident along

with the staff. The complaint of PW-8 was registered. PW-14

then recorded the statement of PW-4 and also statements of

few persons who were present there. The panchnama of the

spot was also drawn.

8. A-1 to A-3 ran away; went into hiding and obtained

anticipatory bail. They surrendered on May 29, 1991 and

produced the sword and sticks. PW-14 thereafter completed

the investigation and submitted charge sheet in the concerned

court. The accused were committed to the Court of Sessions.

9. The prosecution examined 14 witnesses (of them

PW-8, PW-4 and PW-10 were injured). In defence, A-1, who

set up the plea of alibi, examined three witnesses.

5 10. PW-8 was medically examined immediately after

the incident by Dr. A.M. Firodiya (PW-2). On the person of

PW-8, the following injuries were found :

"(1) Incised wound 5-1/2 c.m. x 2 c.m. x muscle

deep on the right parietal region, on the head

near the occipital region oblique in direction,

bleeding present.

(2) C.L.W. 4 c.m. x 1 c/m. x skin deep on the

right parietal region mid point, transverse in

direction.

(3) C.L.W. 3 c.m. x 1 c.m. x skin deep, on the left

occipital region on the head.

(4) C.L.W. 3 c.m. x 1 c.m. x skin deep on the left

parietal region posteriorly.

(5) C.L.W. 1-1/2 c.m. x 1 c.m. x skin deep on the

left side of head on the parietal region, above

No. 4 injury.

(6) C.L.W. 1-1/2 c.m. x 1 c.m. x skin deep on the

left parietal region near No. 5 injury.

(7) C.L.W. 2-1/2 c.m. x 1 c.m. x skin deep on the

parietal region on the head near injury No. 6.

(8) Contusion 4 c.m. x 1-1/4 c.m. on the right

thigh lower part."

According to PW-2, injury no. 1 was caused by a sharp object

which was possible with the sword. In his opinion, the injuries

6

on the person of PW-8 were sufficient in the ordinary course of

nature to cause death.

11. PW-10 was also medically examined by PW-2.

PW-2 found the following injuries on the person of PW-10:

"(1) Scratch 3 c.m. x 1/2 c.m. on the right leg

popliteal region.

(2) Contusion 4 c.m. x 1/1/2 c.m. on the left leg

popliteal region.

(3) Contusion 2 c.m. area on the left side of back

near below scapula.

(4) Contusion 2 c.m. area on the right side of

back below scapular region.

(5) Pain in left hand little finger."

12. On medical examination of PW-4, PW-2 found the

following injuries:

"(1) Contusion 14 c.ms. x 1 c.m. x on the left

side of back. Scapular region above

downwards.

(2) Swelling and tenderness on the left hand

near the little finger.

(3) Contusion 21 c.m. x 2 c.m. on the chest

oblique in direction passing sternum."

13. That A-1 was armed with a sword and A-2, A-5 and

A-6 were armed with sticks and that they caused injuries to

7

PW-4, PW-8 and PW-10 is clearly established from the

prosecution evidence. Although PW-10 was injured in the

incident and he did not fully support the prosecution case - he

was declared hostile as he was not honest in telling to the

court the whole truth - but the testimony of PW-4 and PW-8 is,

however, trustworthy. Their evidence, besides medical

evidence, is corroborated by Suresh Nikam (PW-12), who was

working in his bicycle repairing shop and on hearing shouts,

came out and saw that PW-8 was injured, his clothes were

torn and there was crowd of people.

14. The trial court and the High Court on appreciation

of the entire evidence on record have accepted the

prosecution case that on May 17, 1991 at about 1.00 p.m., A-

1, A-2, A-5 and A-6 armed with sword and sticks attacked PW-

8 and as a result thereof he sustained eight injuries; six of

these injuries were on head; injury no. 1 was caused by the

sharp object and the injuries caused by them to PW-8 were

sufficient in the ordinary course of nature to cause his death.

Insofar as High Court is concerned, it overturned the finding of

the trial court as regards formation of unlawful assembly and

8

acquitted the appellants for the offences punishable under

Sections 147 and 148 but maintained their conviction by

altering it to Section 307 read with Section 34; Section 332

read with Section 34 and Section 353 read with Section 34. In

our opinion, the consideration of the matter by the High Court

does not suffer from any error of fact or law. The plea of alibi

set up by A-1 has not been accepted by the trial court as well

as the High Court and we have no justifiable reason to take a

different view on that count.

15. As a matter of fact, Mr. Shekhar Naphade, learned

senior counsel for the appellants did not seriously contest the

conviction of the appellants for the above-mentioned offences.

He mainly argued for reduction of sentence. Learned senior

counsel would submit that the appellants were sugarcane

growers and the incident occurred because PW-8 refused to

make entry of sugarcane planted by A-2. He submitted that the

incident is almost two-decade old and during this time,

relations between the parties have become cordial and, as a

matter of fact, they have compromised their dispute. He also

submitted that the appellants do not have any criminal

9

background and they have not been involved in any crime

earlier.

16. We must immediately state that the offence under

Section 307 is not compoundable in terms of Section 320(9) of

the Code of Criminal Procedure, 1973 and, therefore,

compounding of the offence in the present case is out of

question. However, the circumstances pointed out by the

learned senior counsel do persuade us for a lenient view in

regard to the sentence. The incident occurred on May 17,

1991 and it is almost twenty years since then. The appellants

are agriculturists by occupation and have no previous criminal

background. There has been reconciliation amongst parties;

the relations between the appellants and the victim have

become cordial and prior to the appellants' surrender, the

parties have been living peacefully in the village. The

appellants have already undergone the sentence of more than

two and a half years. Having regard to these circumstances,

we are satisfied that ends of justice will be met if the

substantive sentence awarded to the appellants is reduced to

10

the period already undergone while maintaining the amount of

fine.

17. Consequently, while confirming the conviction of

the appellants for the offences punishable under Section 307

read with Section 34, Section 332 read with Section 34 and

Section 353 read with Section 34, the substantive sentence

awarded to them by the High Court is reduced to the period

already undergone. The fine amount and the default stipulation

remain as it is.

18. The appeal is allowed in part to the extent above.

.........................J.

(Aftab Alam)

....................... J.

(R. M. Lodha)

NEW DELHI,

APRIL 8, 2011.

11