Ashok s/o Hari Gharde vs State of Maharashtra

The appellant is assailing the judgment and order dated

17-7-2004 rendered by the learned 3rd Ad hoc Additional Sessions

Judge, Nagpur in Sessions Trial 105/2002, by and under which the

appellant-accused is convicted for offence punishable under Section

307 of the Indian Penal Code (" IPC " for short) and is sentenced to

suffer rigorous imprisonment for five years and to payment of fine of

Rs.1,000/-.

Heard Shri R.R. Prajapati, learned Counsel for the

appellant and Smt. S.V. Kolhe, learned Additional Public Prosecutor for

the respondent.

The learned Counsel for the appellant-accused would

submit that even if the evidence on record is taken at face value,

offence punishable under Section 307 of the IPC is not established by

the prosecution. He invites my attention to the evidence on record,

both ocular and medical. The doctor, who examined the injured,

(P.W.1) has opined that the solitary lacerated wound may have been

caused due to the blunt side of the weapon (axe).

Concededly, single blow with the blunt side of the axe was

inflicted, although on a vital part of the body.

The prelude appears to be an altercation between the

brother of the injured and the family members of the accused. The

injured is the cousin brother of the accused.

The prosecution witnesses, of course, do not state in the

examination-in-chief that the assault was preceded by an altercation.

However, in the cross-examination, it is brought on record that the

prelude to the assault was an altercation over breaking of the earthen

pots.

Even if the evidence on record is taken at face value, it is

difficult to come to any conclusion with reasonable certainty that the

requisite intention or knowledge contemplated by Section 307 of the

IPC can be attributed to the accused.

However, the accused deserves to be convicted under

Section 326 of the IPC. The blow, albeit from the blunt side of the axe,

caused fracture of left fronto-parietal region. The injury was, therefore,

grievous in nature.

The conviction of the appellant under Section 307 of the

IPC is set aside and instead the appellant-accused is convicted for

offence punishable under Section 326 of the IPC.

In so far as sentence is concerned, injured Rajesh Gharde

has left for heavenly abode in the year 2009. His widow, whom I have

personally interviewed, Smt. Ramakanta Rajesh Gharde has filed on

record an affidavit. The relevant portions of which read thus :

That, on the basis of said FIR S.T. No.105/2002 was

registered against the appellant and others. That, in

Sessions Trial Vijay Domaji Gharde was acquitted and

Padmakar Domaji Gharde expired before commencement of

trial and the present appellant (Ashok Gharde) has been

convicted on 17-7-2004 for sentence to suffer R.I. for five

years. That, since 2007 the relation between the appellant

family and my family were good and cordial till today and

also appellant having good and cordial relationship with my

late husband also.

That, my husband expired on 15-2-2009 at Indira

Gandhi Medical College (MAYO) and at the relevant time

also, the appellant help me and my family for the assistance

of treatment at Hospital. That, the appellant and late

deceased Rajesh Gharde were the real cousins and are

residing in the same locality. And after the death of Rajesh

Gharde, the relation between the appellant family and the

deponent families were good and cordial and the appellant is

also looking the daily affairs of the business of the family.

That, the appellant also borne expenses on the marriage of

deponents daughter by name Neha performed on 18-4-2016

at Kamptee Road, Nagpur. That the deponent also was as

witness in the Sessions Trial as P.W.2 and she deposed on

10-2-2004 before the Sessions Court, Nagpur.

That at present the deponent having no grievance

against the appellant and she also does not want to

prosecute the matter and she want to compound the appeal

proceeding because at present the relations between the

appellant family and my family has been good and cordial,

so the present appeal against the appellant and the offence

under Section 307 be compounded in view of settlement

between myself and appellant''s family.

The offence is non-compoundable, as is fairly conceded by

the learned Counsel for the accused. However, consistent with the

view of the Hon''ble Apex Court in Ishwar Singh vs. State of Madhya

Pradesh reported in (2008) 15 SCC 667, I see no impediment in

altering the sentence to already undergone. The appellant has suffered

detention, as under trial prisoner and as a convict for more than two

months. The incident occurred more than 16 years ago. The family of

the injured and the accused, who are relatives, have buried the past.

In view of the affidavit filed on record and the attending

circumstances, while convicting the appellant under Section 326 of the

IPC, I deem it appropriate to sentence the appellant-accused to

detention/imprisonment already undergone.

The appeal is partly allowed and disposed of.

The bail bond of the accused shall stand discharged.