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SUPREME COURT OF INDIA
R. BANUMATHI, R. SUBHASH REDDY, JJ.
Shankar & Ors. - Appellants
Versus
The State of Maharashtra & Anr. - Respondents
Criminal Appeal No(s). 390 of 2019 (Arising out of (Crl.) No(s).9920 of 2018)
Decided On : 26-02-2019
Conviction - Dispute over agricultural land - Sections 436 and 323 I.P.C. - The court discussed the evidence of the witnesses and the actions of the appellants, ultimately setting aside the conviction of the second appellant under Section 436 I.P.C. read with Section 34 I.P.C. and modifying the sentence of imprisonment for the first and third appellants based on the compromise between the parties.
Fact of the Case:
Dispute over agricultural land led to a wordy quarrel and stone pelting, and the setting fire to the house of the complainant. The trial court convicted the appellants under Sections 436 and 323 I.P.C. read with Section 34 I.P.C. The High Court affirmed the conviction and sentence, leading to this appeal.
Finding of the Court:
The court found that the second appellant's overt act of setting fire to the house was not proven, and there was no evidence to hold that he shared only common intention with the other appellants. The conviction of the first and third appellants under Section 436 read with Section 34 I.P.C. was confirmed, but the conviction of the second appellant under Section 436 read with Section 34 I.P.C. was set aside. The court also considered the compromise between the parties and modified the sentence of imprisonment for the first and third appellants.
Issues: Dispute over agricultural land, stone pelting, setting fire to the house, conviction under Sections 436 and 323 I.P.C. read with Section 34 I.P.C., and the impact of the compromise between the parties on the sentence.
Ratio Decidendi: The court considered the evidence of the witnesses and the actions of the appellants to determine the culpability of each appellant. Additionally, the court took into account the compromise between the parties as a relevant factor in considering the quantum of sentence.
Final Decision: The conviction of the first and third appellants under Section 436 read with Section 34 I.P.C. was confirmed, but their sentence of imprisonment was modified based on the compromise between the parties. The conviction of the second appellant under Section 436 read with Section 34 I.P.C. was set aside. The conviction of all appellants under Section 323 I.P.C. was set aside based on the compromise between the parties.
JUDGMENT :
BANUMATHI, J.
1. Leave granted.
2. Being aggrieved by the conviction under Sections 436 and 323 I.P.C. read with Section 34 I.P.C. the appellants no.1 to 3 have preferred this appeal.
3. Appellant no.1-Shankar @ Shankar Harale and respondent no.2-Namdeo @ Namdeo Satwaji Harale (complainant) are the real brothers. Their agricultural lands are adjacent to each other and there was dispute between them on account of boundary of the field. On 21st May, 2009, respondent no.2-Namdeo (complainant) along with his two sons went to the Tehsil Office. At about 5.00 p.m. the appellants went to the hut of the second respondent (complainant) and there was wordy quarrel between the appellants and Dhondubai (PW-3) and Kanupatra @ Kanopatra (PW-4) who are wife and daughter-in-law of the complainant. During the wordy quarrel, appellant no.2-Vivek pelted stones and the same hit on Dhondubai (PW-3). On being exhorted by appellant no.1-Shankar, appellant no.3-Parvatibai wife of appellant no. 1 set fire to the house of the second respondent-complainant. On the complaint lodged by the second respondent-Namdeo law was set in motion. On completion of investigation charge-sheet was filed against the appellants under sections 436, 323, 504 and 506 IPC.
4. Based on the evidence of injured witness Dhondubai (PW-3) and Kanupatra (PW-4) and also taking into consideration the evidence of Dr. Dattarao Mirzapure (PW-8) who issued injury certificate to Dhondubai (PW-3), the Trial Court convicted the appellants under Sections 436 read with section 34 IPC and 323 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo rigorous imprisonment for five years and six months respectively.
5. In appeal, the High Court affirmed the conviction of the appellants under Section 436 I.P.C. read with Section 34 I.P.C. and the conviction under Section 323 I.P.C. and also maintained the sentence of imprisonment on each of the appellants-accused. Being aggrieved, the appellants preferred this appeal.
6. We have heard Mr. Sudhanshu S. Choudhari, learned counsel appearing for the appellants, Mr. Venkata Krishna Kunduru, learned counsel appearing for the respondent-State and Mr. Shakul R. Ghatole, learned counsel appearing for respondent no.2 (complainant) and also perused the impugned judgment and the evidence/materials on record.
7. Dhondubai (PW-3) and Kanupatra (PW-4) are the eye-witnesses to the occurrence. In her evidence Dhondubai (PW-3) has stated that appellant no.2-Vivek pelted stones towards her which hit on her head and that she sustained injuries. Dhondubai (PW-3) further stated that on being exhorted by appellant no.1-Shankar Harale appellant no.3-Parvatibai set fire to her house. The evidence of Dhoundubai (PW-3) is corroborated by Kanupatra (PW-4), daughter-in-law of the second respondent-Namdeo (complainant).
8. By a careful consideration of evidence of Dhondubai (PW-3) and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who is said to have wordy quarrel and pelted stones on Dhondubai (PW-3). The overt act of setting fire to the house is not attributed to him by either of the witnesses. Equally we do not find any evidence to hold that the second appellant-Vivek shared only common intention with appellants no.1 and 3 to invoke section 34 I.P.C. and to maintain the conviction of the second appellant-Vivek under Section 436 I.P.C. read with Section 34 I.P.C. The conviction of the second appellant-Vivek under Section 436 read with Section 34 I.P.C. is therefore set aside and appeal of second appellant which is allowed to that extent.
9. However, the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 read with Section 34 I.P.C. is confirmed. But so far as the act of the second appellant-Vivek hitting Dhondubai (PW-3) with the stone, the conviction of the second appellant-Vivek under Section 323 I.P.C. is sustained.
10. The appellants have filed a memo of compromise stating therein that they have compromised the matt
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