NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.  902          OF 2011 (Arising out of SLP (Criminal) No. 3068 of 2010)

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  

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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  

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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  

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(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.  

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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.

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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  

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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  

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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  

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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  

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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  

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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.

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