High Court
Legal Reasoning
Cri Appeal Nos.850 of 2018 and ors.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.850 OF 2018Sanjay s/o. Sitaram Kate,Age : 42 years, Occ. Labour,r/o. Kate Mala, Wadali, Tq. Shrigonda, Dist. Ahmednagar..AppellantVs.1.The State of Maharashtra,Through Police Inspector,Shrigonda Police Station, Dist. Ahmednagar2.Bhaskar s/o. Dada Kandekar,Age : 30 years, Occ. Agri.,r/o. Surdi, Tq. Shrigonda,Dist.Ahmednagar..Respondents----Mr.A.G.Vasmatkar, Advocate for appellant (appointed)Mrs.S.N.Deshmukh, APP for respondent no.1Mr.N.G.Kale, Advocate for respondent no.2----ANDCRIMINAL APPEAL NO.849 OF 2018The State of Maharashtra,Through Police Inspector,Shrigonda Police Station,Dist. Ahmednagar..AppellantVs.Sanjay Sitaram Kate,Age : 41 years, Occ. Labour,r/o. Kate Mala, Wadali,Tq. Shrigonda, Dist. Ahmednagar..Respondent 2Cri Appeal Nos.850 of 2018 and ors----Mrs.S.N.Deshmukh, APP for appellant – StateMr.A.G.Wasmatkar, Advocate for respondent----ANDCRIMINAL APPEAL NO.851 OF 2018Bhaskar s/o. Dada Khandekar,Age : 30 years, Occ.Agri.,r/o. Surodi, Tq. Shrigonda,Dist. Ahmednagar..AppellantVs.1.The State of Maharashtra,Through Shrigonda Police Station2.Sanjay Sitaram Kate,Age : 41 years, Occ. Labour, R/o. Kate Mala, Wadali,Tq. Shrigonda, Dist. Ahmednagar..Respondent ----Mr.N.G.Kale and Mr.S.B.Wakhre, Advocates for appellantMrs.S.N.Deshmukh, APP for respondent no.1 – StateMr.A.G.Wasmatkar, APP for respondent no.2---- CORAM: R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : MARCH 22, 2024 JUDGMENT (PER R.G.AVACHAT, J.) :- A group of these three appeals is being decided by thiscommon judgment and order, since they are interconnected. 3Cri Appeal Nos.850 of 2018 and ors2.Criminal Appeal No.850 of 2018 has been filed takingexception to the judgment and order dated 22.03.2018, passed bylearned Addl. Sessions Judge, Ahmednagar, in Sessions Case No.30of 2017, convicting the appellant for the offence punishable underSection 307 of Indian Penal Code and therefore, sentencing him tosuffer rigorous imprisonment for five years and to pay fine ofRs.50,000/-, in default, to undergo simple imprisonment for sixmonths.Criminal Appeal No.849 of 2018 has been filed by theState of Maharashtra for enhancement of the sentence imposedagainst the convict; while Criminal Appeal No.851 of 2018 has beenfiled by the original informant (father of victim) for enhancement ofamount of compensation directed to be paid by the convict to thevictim (son of the appellant).3.The facts, giving rise to these appeals, are as follows:-The appellant/convict was resident of village Surodi, Tq.Shrigonda, Dist. Ahmednagar. He was an ex-serviceman. He wasretired one year before the incident dated 23.11.2016. Bhaskar(informant)/appellant in Criminal Appeal No.851 of 2018, is alsoresident of the very village. The agricultural lands of bothappellant/convict and informant adjoin each other. There was 4Cri Appeal Nos.850 of 2018 and orsdispute between both of them over the agricultural lands. The waterpipeline of the informant has been laid from under the land of theappellant/convict. A civil suit was also pending between the two.4.It so happened that on 23.11.2016, by 10.00 in themorning, the appellant/convict took his cattle from the field of theinformant. Onion crop was there in the informant’s field. Brother ofthe informant asked the appellant/convict to take the cattle awayfrom the field. The appellant got annoyed. He abused the informant’sbrother and assaulted him. Fight took place between the two. Thematter reached Shrigonda Police Station. The injured (brother ofinformant) was examined at Rural Hospital, Shrigonda.5.We are concerned with the incident that took place littlepast 03.00 p.m. on the very day. Rohini (PW 2) is wife of theinformant. Master Karan was their son. He returned home by 03.15pm. from school. He was hungry. He, therefore, went to his mother(Rohini) in the field. Both of them, therefore, started back to theirresidence. The appellant/convict, all of a sudden, opened fire fromhis shot-gun towards Rohini and Master Karan. The pellets hit lowerlimbs of Karan. Rohini took shelter in an orchard. She raised hueand cry. Her cousin brother-in-law arrived. They took Karan to RuralHospital, at Shrigonda, and then, shifted him to K.E.M. Hospital,Pune. 5Cri Appeal Nos.850 of 2018 and ors6.Rohini had related the incident to the informant –Bhaskar, who, in turn, lodged the First Information Report (Exh.21).Based on the same, crime vide C.R. No.553 of 2016, came to beregistered against the appellant/convict for the offence punishableunder Section 307 of Indian Penal Code and under Section 3 readwith Section 25 of the Arms Act. The appellant/convict was arrested.The scene of offence panchnama (Exh.24) was drawn. Injurycertificate of the victim was obtained. Statements of the personsacquainted with the facts and circumstances of the case wererecorded. Upon completion of the investigation, the appellant/convictwas proceeded against by filing charge sheet in the Court of learnedJudicial Magistrate, First Class, Shrigonda, Dist. Ahmednagar. Thecase was committed to the court of learned Addl. Sessions Judge,Ahmednagar (trial court) for trial in accordance with law. The trialCourt, initially, framed Charge (Exh.12) for the offence under Section307 of Indian Penal Code and Section 3 read with Section 25 of theArms Act. It, however, deleted the charge for offences under theArms Act, for want of sanction.7.The appellant pleaded not guilty. His defence was offalse implication on account of civil dispute. According to him, theinformant, his brother and others had assaulted him. The 6Cri Appeal Nos.850 of 2018 and orsappellant/convict was armed with a shot-gun. The trigger got pulledaccidentally. According to him, Karan suffered injuries is a sheeraccident.8.The prosecution examined eight witnesses and producedin evidence certain documents to establish the charge (Exh.12). Onappreciation of the evidence in the case, the trial court convicted theappellant-Sanjay and consequently, sentenced as stated above.9.Heard learned counsel for the parties.10.Learned counsel appointed to represent theappellant/convict would submit that the appellant/convict hasundergone the entire sentence imposed against him. Learnedcounsel took us through the evidence on record to submit that allwas not well between the appellant/convict on one hand and theinformant and his family members, on the other. A civil litigationwas sub-judice. Number of complaints against each other were filedwith the concerned police station. According to him, it was a shot-gun and not a fire-arm and pellets (छर्रे(cid:3) ) hit legs of Karan and notbullets. The Government Medical Officer, Shrigonda, who examinedKaran, opined that the injuries were simple in nature. For thereasons best known to the informant, Karan was shifted to a private 7Cri Appeal Nos.850 of 2018 and orshospital in Pune. The medical certificate, suitable to the case of theinformant, was obtained with a view to see that the appellant/convictwas taught a lesson. He, therefore, submitted for allowing theCriminal Appeal (850 of 2018) and acquittal of the appellant/convict.11.Learned APP would, on the other hand, submit that notless than 16 pellets were removed from the lower limb of MasterKaran. Fire was opened towards Karan and his mother. Sameindicates the appellant’s intention to commit their murder. TheCourt’s attention was drawn to the definition of offence to commitmurder. Learned APP, therefore, urged for enhancement of thesentence.12.Learned counsel for the appellant/informant wouldsubmit that the compensation of Rs.50,000/- awarded by the trialcourt, has been grossly inadequate. Karan was operated upon inK.E.M. Hospital, Pune. A huge amount has been spent for hismedical treatment. According to him, the appellant/convict hasagricultural land. He is, thus, financially able to pay morecompensation. Learned counsel also adverted our attention toSection 357-A of the Code of Criminal Procedure, to submit that theDistrict Legal Services Authority or the State Legal Services Authoritymay be directed to pay the victim compensation of Rs.5 Lakhs. 8Cri Appeal Nos.850 of 2018 and orsLearned counsel relied on the following judgments:-(i)Hari Kishan and State of Haryana Vs.Sukhbir Singh and ors., AIR 1988 SC 2127;(ii)Neeraj Sharma Vs. State ofChhattisgarh, AIR 2024 SC 27113.Considered the submissions advanced. Perused theevidence on record. Let us advert to the evidence in the case andappreciate the same.14.PW 1 – Bhaskar, informant, is not an eye-witness to theincident. His evidence indicates that the appellant/convict’sresidence and agricultural land adjoin his (informant) agriculturalland. There was dispute between the two over agricultural field. On23.11.2016 at 10.00 in the morning, the appellant/convict took hiscattle from the field of the appellant. Onion crop was there in theinformant’s field. Brother of the informant asked the appellant/convict to take the cattle away from the field. The appellant gotannoyed. He abused the informant’s brother and assaulted him.Fight took place between the two. The matter reached ShrigondaPolice Station. The injured was examined at Rural Hospital,Shrigonda. It is further in his evidence that his wife Rohini (PW 2) 9Cri Appeal Nos.850 of 2018 and orsinformed him the appellant to have opened fire at her and their son,Master Karan. He, therefore, rushed to them. He first took Karan toRural Hospital, Shrigonda and then, shifted him to K.E.M. Hospital,Pune. It is further in his evidence that he lodged the FIR (Exh.21)against the appellant.During cross-examination of PW 1 – Bhaskar, it has beenbrought on record that his pipeline runs from below the land of theappellant. The appellant had asked him to remove the same. Theappellant was constructing a pond (शेत तळे). A civil suit, R.C.S. No.209of 2016, was pending between them.15.Since the evidence of PW 1 - Bhaskar is hearsay, we donot propose to refer it in extenso. Suffice it to say, based on the FIRlodged by him, criminal law was set in motion. It has been broughtthrough his evidence that all was not well between him and theappellant/convict. The appellant had assaulted the brother of PW 1 –Bhaskar in the morning. 16.Then, we have evidence of PW 2 – Rohini. It is in herevidence that Master Karan came home from school by 03.15 p.m.She was in the field. Karan was hungry. Both of them, therefore,were on way back home. All of a sudden, firing started. She saw theappellant to have opened fire at both of them. The appellant was 10Cri Appeal Nos.850 of 2018 and orsstanding on the roof of his house. It is further in her evidence thatpellets hit lower limbs of Karan. Rohini took shelter in an orchard.She raised hue and cry. Her cousin brother-in-law arrived. Sheimmediately contacted her husband (informant). They took Karan toRural Hospital, at Shrigonda and then shifted him to K.E.M. Hospital,Pune. It is further in her evidence that Karan underwent operations.Twenty-one out of 22 pellets from his legs were removed.During her cross-examination, it has come on record thatshe did not report the incident to the police though she was an eye-witness and even targeted victim. All the suggestions, indicating theappellant’s defence, have been denied by her.17.PW 5 – Karan testified consistent with the evidence of hismother Rohini. It is in his evidence that the Major (appellant/convict)had opened fire at him. He identified the appellant before the court.His evidence indicates that after the incident, he was rushed to RuralHospital, Shrigonda and then, was shifted to K.E.M. Hospital, Pune.He has, however, admitted that his mother had told him to deposethat he sustained pellets injuries when they were returning home.18.PW 6 – Dr. Kishorkumar was Medical Officer at RuralHospital, Shrigonda. He examined Master Karan by 04.20 p.m. on23.11.2016 and noticed following injuries :- 11Cri Appeal Nos.850 of 2018 and orsGunshot injuries to right and left limb.To the right leg, below knee there were 13entry points of bullets, of average size 0.5 x0.3 c.m. There was no exit wound. Therewas no tenderness over bone.To the left leg there were multiple bulletentry points above knee. Those were 8 innumbers, 0.5 x 0.3 c.m. average size. Therewas also no exit wound. No tenderness wasto the bones.In his opinion, the age of injuries was within three hours. The injurieswere simple in nature. There was mild bleeding from the entry-sideof the wound. The patient was referred to Civil Hospital,Ahmednagar, for further management. He issued certificate(Exh.32).19.Then we have evidence of PW 8 – Dr. Shashank. Hisevidence suggests that he was Pediatric Surgeon at K.E.M. Hospital,Pune. Master Karan was admitted to hospital. The patient hadsustained gun-shot injuries to his both lower legs. He examined thepatient. The patient was in shock. He was frightened and becamepale. There was tachycardia due to heavy loss of blood. There were13 wounds to his right foot near ankle and 5 wounds to his left thighregion. The patient was operated by him on the same day. Heremoved all the superficial pellets from his both the legs, mostly 12Cri Appeal Nos.850 of 2018 and orsfrom the ankle region. On the next day, he was again operated andthe pellets in the joint region and bones were removed by theOrthopedic team. He was in the team. On the first day, 8 pelletswere removed and on the second day, 10 pellets were removed fromthe legs of the patient. The patient was admitted in K.E.M. Hospitalfor 12 days.20.PW 8 – Dr. Shashank observed that the nature of theinjuries on the patient was grievous. Such wounds were possible byfiring of bullets from a fire-arm, i.e. 12-bore pistol. It is further in hisevidence that at the time of examination of the patient, he haddrawn a rough sketch of the injuries on both legs of patient. During cross-examination, he testified to have not notedthe nature of injuries to be grievous. He went on to admit that theinjuries were not fatal. 21.We do not propose to refer to the evidence of otherwitnesses, namely, PW 3 - Ashok, who is witness to the scene ofoffence panchnama (Exh.24) and PW 4 – Balasaheb, A.S.I., whotendered in evidence copies of FIR (Exh.26), lodged by the brother ofBhaskar in respect of the incident that took place at 10.00 in themorning. 13Cri Appeal Nos.850 of 2018 and ors22.What could be observed is that there was a long-standingdispute between the appellant and the informant. A civil suit waspending. Number of complaints were lodged against each other withthe concerned Police Station. On the given day, the appellant/convicthad, first, quarreled with the brother of the informant. The matterhad reached the Police Station. In the afternoon, the appellant/convict opened fire from his shot-gun at PW 2 – Rohini and her sonPW 5 – Karan. As a result thereof, pellets (छर्रे(cid:3)) hit lower limb of Karan.PW 6 - Dr.Kishorkumar found the injuries to be simple. PW 8 – Dr.Shashank, the Medical Officer attached to K.E.M.Hopital, Pune, too,testified that he did not observe in his certificate or medical papersthat the the injuries were grievous in nature. True, all the medicalpapers of Karan, maintained by K.E.M. Hospital, have been placed onrecord. The Medical Officer observed the injuries were not fatal.Admittedly, those were not on vital part of Karan. True, fire wasopened towards Rohini and Karan. We, therefore, find that it was abid on the lives of both Master Karan and his mother Rohini.PW 2 – Rohini did not suffer any injury. Karan appears to havesuffered injuries to his lower limbs. He appears to have beencompletely recovered. The appellant has served out the entiresentence of five years of imprisonment. 14Cri Appeal Nos.850 of 2018 and ors23.In the facts and circumstances of the case, we are notinclined to allow the State's appeal (Criminal Appeal No.849 of 2018)for enhancement of sentence. We also find no merit in the appeal(Criminal Appeal No.850 of 2018) filed by the appellant/convict.Both these appeals stand dismissed.24.So far as regards Criminal Appeal No.851 of 2018 forenhancement of compensation is concerned, convict - Sanjay hasbeen directed to pay fine of Rs.50,000/-. It has further been directedthat the fine amount, if recovered, be paid to the informant ascompensation in terms of Section 357(1) of the Code of CriminalProcedure. Although the convict appears to have undergone thesentence in default of payment of fine, still, the fine could berecovered (Section 70 of Indian Penal Code).25.In exercise of the powers/jurisdiction under sub-section(2) of Section 357-A of the Code of Criminal Procedure, we requestthe District Legal Services Authority, Ahmednagar, to decide thequantum of compensation to be awarded under the scheme referredto in sub-section (1) of Section 357-A of Cr.P.C. We expect that theauthority would decide the amount of compensation, which shall notbe less than Rs.25,000/- and more than Rs.40,000/-.
Decision
15Cri Appeal Nos.850 of 2018 and ors26.With the aforesaid directions, Criminal Appeal No.851 of2018 stands disposed of.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP