Heard Mr. S. S. Thombre, learned counsel for the v. M. Jaware, learned APP for the
Legal Reasoning
1 Cr.Appeal844.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD993 CRIMINAL APPEAL NO. 844 OF 20241. Bandu s/o Haribhau GhuleAge : 52 years, Occu. Agril.,R/o Takali, Taluka Kaij,District Beed.2.Jalinder Vishwanath GhuleAge : 45 years, Occu. Agril,R/o Vikhe Patil Karkhana,Taluka Kaij, District Beed. … Appellants[Orig. Accused Nos. 1 & 9]Versus.The State of MaharashtraThrough Police Station Officer,Ambajogai Rural,Taluka Ambajogai, District Beed. … Respondent...Advocate for Appellant : Mr. S. S. ThombreAPP for Respondent/State : Mr. V. M. JawareAdvocate for Informant & Victim : Ms. Amita Chate (Through VC)...CORAM:ARUN R. PEDNEKER, J.DATE:09.07.2025PER COURT:1.Heard Mr. S. S. Thombre, learned counsel for the appellants,Mr. V. M. Jaware, learned APP for the respondent / State and Ms. AmitaChate (Through VC) for the informant and victim. 2 Cr.Appeal844.20242.The learned counsel for the appellants submits that the trialcourt has recorded conviction under Section 365 of the Indian PenalCode, 1860, convicting the appellants and has awarded sentence ofimprisonment for 5 years. The sentence awarded by the trial court readsas under:“:: O R D E R ::(1) Accused Nos. 1 and 9 respectively Bandu HaribhauGhule and Jalindar Vishvnath Ghule are convicted for theoffences punishable under Sections 143, 147, 323, 341, 342,346, 363 and 365 r/w. 149 of Indian Penal Code, 1860 videprovision of Section 235(2) of Cr.P.C.(2) However, as discussed above, since the offencespunishable under sections 341, 342 r/w. 149 are minor ascompared to the offence punishable under section 346 r/w.149 of IPC, the accused are not separately sentenced for theoffences punishable under sections 341 and 342 of IPC.Similarly, since the offence punishable under section 363r/w. 149 is minor as compared to the offence under section365 r/w. 149 of IPC, the accused are not separatelysentenced for the offence punishable under section 363 r/w.149 of IPC.(a) The accused Nos.1 and 9 Bandu Haribhau Ghule andJalindar Vishvnath Ghule are sentenced to sufferimprisonment for a period of six months and fine ofRs.1000/- (Rs. One thousand only), each, in defaultimprisonment for 15 days for the offence punishable undersection 143 of IPC 1860.(b) They are sentenced to suffer imprisonment for a periodof six months and fine of Rs.1000/- (Rs. One thousand only)each in default imprisonment for 15 days for the offencepunishable under section 147 of IPC 1860.(c) They are sentenced to suffer imprisonment for a periodof one year and fine of Rs.1000/- (Rs. One thousand only) 3 Cr.Appeal844.2024each in default imprisonment for 15 days for the offencepunishable under section 323 r/w. 149 of IPC 1860.(d) They are sentenced to suffer imprisonment for a periodof three years and fine of Rs.5000/- (Rs. Five thousand only)each in default imprisonment for one month for the offencepunishable under section 346 of IPC 1860.(e) They are sentenced to suffer imprisonment for a periodof five years and fine of Rs.5000/- (Rs. Five thousand only)each in default imprisonment for one month for the offencepunishable under section 365 of IPC 1860.(3) The substantive sentences shall run concurrently.”3.The learned counsel for the appellants submits that therewere certain transactions between the parties and he submits thatadvance was given to the informant’s husband and that in terms of theadvances paid the informant’s husband he was supposed to providesugarcane labourer to the sugar factory alternatively to return the money.On acceptance of payment labourers were not supplied. The money wasalso not returned and, thus, there was possibility that the appellantscould have initiated legal proceedings against the husband of theinformant. As such, to avoid the situation, the case of kidnapping wasregistered against the appellants. However, the trial court has recordedconviction after considering the evidence.4.The case against the appellants is that on 18.04.2011, whilethe informant and her husband were returning towards the village, theirmotorcycle was intercepted by a Scoripio jeep and unknown persons, 4 Cr.Appeal844.2024who alighted from the vehicle, initially trapped her husband in a net,beat him and forcibly took him in the vehicle and kidnapped herhusband. It is also stated that the victim has also given names of numberof persons including the present appellants as the persons who havekidnapped the victim. It is also stated that there were two eye witnessesfor the incident. 5.The trial court has appreciated the evidence placed on recordand formulated the points and rendered findings thereon as under:9. Following Points arise for determination of this Court. Court records its findings thereon forreasons to be recorded below.Sr.No.P O I N T S FINDINGS1) Whether prosecution proves that all the accusedPartly Yes to the extentformed an unlawful assembly and were itsof accused Nos.1 & 9.member with a view to kidnap the BalasahebSidram, wrongfully confine him and to causedecoity and thereby committed an offencepunishable under section 143 of the Indian PenalCode, 1860?2)Whether prosecution proves that all abovePartly Yes to the extentaccused used force or violence being the memberof accused Nos.1 & 9.of an unlawful assembly, in prosecution of thecommon object of said assembly and therebycommitted an offence of rioting punishable undersection 147 the Indian Penal Code, 1860?3)Whether prosecution proves that all aboveNo.accused, armed with deadly weapons, used forceor violence being the member of an unlawfulassembly, in prosecution of the common object ofsaid assembly and thereby committed an offenceof rioting punishable under section 148 the IndianPenal Code, 1860?4)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, voluntarily caused hurt to theBalasaheb Sidram Rathod and thereby committedan offence punishable under section 323 r/w. 149the Indian Penal Code, 1860? 5 Cr.Appeal844.20245)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, wrongfully restrained theBalasaheb Sidram Rathod from proceedingtowards his desire direction of Radi tanda andthereby committed an offence punishable undersection 341 r/w. 149 the Indian Penal Code, 1860?6)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, wrongfully confined the BalasahebSidram Rathod and thereby committed an offencepunishable under section 342 r/w. 149 the IndianPenal Code, 1860?7)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, wrongfully confined the BalasahebSidram Rathod in such a manner that it may notbe known to any person and thereby committed anoffence punishable under section 346 r/w. 149 theIndian Penal Code, 1860?8)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, kidnapped the Balasaheb SidramRathod and thereby committed an offencepunishable under section 363 r/w. 149 the IndianPenal Code, 1860?9)Whether prosecution proves that all abovePartly Yes to the extentaccused, being the member of an unlawfulof accused Nos.1 & 9.assembly, in prosecution of the common object ofsaid assembly, kidnapped the Balasaheb SidramRathod with an intention of causing him to besecretly and wrongfully confine him and therebycommitted an offence punishable under section365 r/w. 149 the Indian Penal Code, 1860?10)Whether prosecution proves that all aboveIn the negative.accused, being five or more persons conjointlysnatched away the gold ornament, cash and / ormobile phone with sim cards of and from theBalasaheb Rathod and thereby committed anoffence of decoity punishable under section 395the Indian Penal Code, 1860?11)What Order? As per final order. 6 Cr.Appeal844.2024It was held that the present appellants had kidnapped thehusband of the informant. The learned counsel appearing for theappellants submits that there is no evidence that the victim waskidnapped for the period of 29 days and, although, near about elevennames were taken as the accused who had kidnapped the informant’shusband only 2 of them are convicted for the said offence. He submitsthat there is no evidence to indicate that the informant’s husband waskidnapped for 29 days. The informant’s husband himself appeared andthat he has sustained injuries before 2 to 3 days prior. In any event, thelearned counsel submits that the case arises out of civil dispute. 6.The learned counsel for the appellants further submits thatthe informant, victim and the appellants have settled their dispute andthe informant and victim have also filed the affidavits before this courtthat they have no objection if the dispute is resolved and that theaffidavits are filed by the victim and the informant. The same has beenverified before the Registrar of this court. The present appellants is incustody for last 9 months, as such, the appellants submits that theconviction be maintained and the sentence be reduced to the sentenceundergone.7.The learned counsel for the appellants also submits thatthere is no minimum sentence prescribed for the offence. The learned
Decision
7 Cr.Appeal844.2024APP has submitted that once the conviction is maintained the sentencecan be imposed at the discretion of the court depending upon the factsituation.8.In view of the above and considering the submissions, moreparticularly, that the offence as alleged has arisen out of civil transactionand, also, considering the affidavits filed by the victim and informant, Iproceed to pass the following order:ORDER(I)The Criminal Appeal is partly allowed.(II)The impugned conviction is maintained and the impugnedsentence imposed therein is reduced to undergone. The fine amountalready imposed is also made a part of sentence. The bail bonds of theappellants, if any, shall stand cancelled.(III)The appellants BANDU HARIBHAU GHULE and JALINDERVISHWANATH GHULE shall be released unless required in any other case.(IV)The impugned order dated 04.09.2024, passed by thelearned Additional Session Judge, Ambajogai stands modified accordinglyto the extent of present appellants.(V)The Criminal Appeal stands disposed of accordingly. [ARUN R. PEDNEKER, J.]marathe