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2019 Supreme(Bom) 2134
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. Shriram, J.
Sandip Alias Baba Laxman Jagde - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 683 of 2006
Decided On : 06-05-2019
Abhaykumar Apte, Adv., S.V. Sonawane, Adv.
Headnote:
Indian Penal Code, 1860 - Sections 323, 34, 143, 147, 148, 307 and 149 - Bombay Police Act - Sections 37 and 135 - Arms Act - Sections 25 and 4 - Probation of Offenders Act, 1958 - Sections 3 and 4 - Attempt To Commit Murder - Guilty Of Offence Punishable - Suffer Simple Imprisonment - It is prosecution case that complainant and one were going through a particular road - At that time all accused were passing from there and on seeing complainant started abusing them - It seems appellant slapped and when asked reason for slapping all accused started beating complainant and rained punches and kicks on them - It is also stated that appellant inflicted a knife wound - When they saw was bleeding all accused ran away - Complainant thereafter took to hospital for treatment based on that complaint was registered in police station charging accused for offences as mentioned earlier - Held, In fairness learned APP agreed with what court stated - Learned APP also as an officer of court stated that prosecution has not challenged impugned order having passed chance of challenging impugned order will not arise - Learned APP also stated that she has no instructions about any further offence being committed by appellant after incident for which he was convicted - Having considered facts and circumstances of case and after having considered provisions I am of view that instead of sentencing accused to punishment accused should be released on probation of good conduct appellant is directed to be released on his entering into a bond with one surety and receive sentence when called upon during such period which will be six months and in meantime keep peace and good behavior - States that accused has his fixed place of abode at building - A copy of driving license and aadhar card of appellant is scanned and reproduced - Appeal stands disposed.
JUDGMENT
K R Shriram, J. -This appeal has been filed impugning an order of conviction dated 8.6.2006 whereby the appellant has been held guilty of offence punishable under Section 323 of the Indian Penal Code. The appellant was sentenced to suffer simple imprisonment for one month and to pay fine of Rs.1000/- and in default of fine, he was to undergo further simple imprisonment for one month.
2. The appellant herein is an accused in a case registered at Sahakar Nagar Police station, Pune vide Crime registered No.302 of 2005 and the appellant came to be arrested along with 9 other persons. All were tried together by the learned 14th Ad hoc Additional Sessions Judge, Pune after framing charge for the offences punishable under Sections 143, 147, 148, 307 r/w section 149, 307, r/w section 34 of the Indian Penal Code, under section 37(1) r/w section 135 of the Bombay Police Act and under section 4 r/w section 25 of the Arms Act, as alleged by the prosecution.
3. It is the prosecution''s case that on 5.8.2005 at 9.30 p.m., the complainant and one Sunil Bibwe were going through a particular road. At that time, all the accused were passing from there and on seeing the complainant and Sunil Bibwe started abusing them. It seems Baba Jagade, the appellant, slapped Sunil Bibwe and when asked the reason for slapping all the accused started beating the complainant and Sunil and rained punches and kicks on them. It is also stated that Baba Jagade (appellant) inflicted a knife wound on Sunil. When they saw, Sunil was bleeding, all the accused ran away. The complainant thereafter took Sunil to Dr.Rao''s hospital for treatment. Based on that, complaint was registered in the Sahakar Nagar Police station charging the accused for offences as mentioned earlier.
4. There were totally 10 accused, the 1st of which is Sandip alias Baba Laxman Jagade, the appellant, who it is alleged has knifed Sunil.
5. To bring home the guilt of the accused, the prosecution examined totally 11 witnesses. The prosecution also relied, inter alia , on the complaint (Exh.20) and spot panchanama (Exh.27). The prosecution also relied upon medical certificate regarding injuries sustained by Sameer Shivaji Bibwe (Exh.30), Sunil Shivaji Bibwe (Exh.29). Injury certificate of Vithal Bibwe (Exh.37), Amol Bibwe (Exh.38), panchanama (Exh.32), report submitted by PSI S.R.Patil (Exh.43) and Chemical Analysis reports at (Exhibits.45, 46 & 47).
6. The following 9 points were raised by the Court and the findings were as under :-
Points
Findings
1. Does prosecution prove that on 5.8.2005 at 9.30 PM in front of Jadge building, at Bhbewadi, accused nos.1 to 10 formed an unlawful assembly, the common object of which was to attempt to commit murder of Sunil Bibwe by causing grievous hurt to compllainant Chetan Sarkale and Sunil Bibwe and thereby committed an offence punishable u/s.143 of Indian Penal Code ?
In the negative
2. Does prosecution further prove that on 582005 at 930 PM in front of Jagde building, Bibewadi Pune, accused nos.1 to 10 being the members of unlawful assembly committed rioting & thereby committed and offence punishable under Section 147 r/w 149 of IPC ?
In the negative
3. Does prosecution further prove that on 582005 at 930 PM in front of Jagde building at Bibwe Wadi, Pune, accused nos.1 to 10 being members of unlawful assembly committed rioting by means of deadly weapons llike knife and thereby committed an offence punishable u/s.148 r/w 149 of IPC ?
In the negative.
4. Does prosecution prove that on 58 2005 at 930 PM in front of Jagde Building, at Bibwewadi, Pune accused nos.1 to 10 being members of an unlawfull assembly, in prosecution of common object of such assemblly, assaulted Sunil Bibwe with such intention & kjnowledge and under such circumstances that if you have caused death of Sunil bibwe they would have been guilty of murder and
