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Liladhar S/O Kashinath Gajbhiye … vs The State Of Maharashtra, Thr. … on 5 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.213 OF 2016

Liladhar s/o. Kashinath Gajbhiye,
Aged about 48 years, Occ. Labour,
R/o. Karambhad, Tah. Parshioni,
Dist. Nagpur …APPELLANT

…V E R S U S…

The State of Maharashtra,
Through Police Station Officer
Parshioni, District Nagpur …RESPONDENT
——————————————————————————————-
Ms. P. P. Chobe, counsel for the appellant (Appointed)
Mr. N.H. Joshi, Additional Public Prosecutor for Respondent.
——————————————————————————————-

CORAM:
ROHIT B. DEO, J.

DATE OF DECISION : 05.01.2018

ORAL JUDGMENT:

Challenge is to the judgment and order dated

17.5.2016, delivered by Sessions Judge, Nagpur in Sessions Trial

191 of 2015, by and under which, the appellant (hereinafter

referred to as “the accused”) is convicted for offence punishable

under section 307 of the Indian Penal Code (“IPC” for short) and is

sentenced to suffer rigorous imprisonment for ten years and to

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payment of fine of Rs. 5,000/- and is further convicted for offence

punishable under section 498-A and is sentenced to suffer simple

imprisonment for three years and to payment of fine of Rs.5,000/-.

2 Heard Smt. P. P. Chobe, the learned counsel for the

accused and Shri. N.H. Joshi, the learned Additional Public

Prosecutor for the respondent / State.

3 The accused is in jail custody since 4.2.2015. This

appeal was heard on 4.1.2018 at some length. Having given my

anxious consideration to the evidence on record, I was inclined to

uphold the conviction and to alter the sentence, which in the

circumstances, I prima facie felt was too harsh.

4 The circumstances which weighed with me while

arriving at the prima facie opinion was that the burns suffered by

the complainant, who is the wife of the accused, were superficial

although the medical evidence suggested 18% burns. The

evidence on record has not brought out clearly the exact contours

of the incident. The fact that the accused poured kerosene and

ignited a match stick causing the complainant to suffer

burn injuries is duly proved by the evidence of the

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complainant and Ms. Vidarbhakanya the daughter of the

complainant and the accused. However, the extent and volume of

the kerosene, the origin of the incident and the manner in which

the attempt to set complainant afire was made is a bit blurred. It

is on record that at the relevant time the accused was under the

influence of liquor.

5 However, at the conclusion of the hearing, the

complainant Surekha Liladhar Gajbhiye has appeared and has filed

on record an affidavit dated 5.1.2018. The affidavit reads thus:

“The abovesaid deponent as hereby take an oath and
solemnly affirms as under:

That on the basis of my complaint, the proceedings
under section 498-A and 307 of IPC were initiated against
my husband / appellant.

In this case the trial court has given conviction for
offence punishable under section 307 and 498-A of IPC,
thereby sentencing the Appellant to suffer rigorous
imprisonment for 10 years and to pay fine of Rs. 5,000/-
in default to further suffer simple imprisonment for 6
months, sentence for offence under section 307 of IPC and
further convicted vide section 235 of Code of Criminal
procedure for the offence punishable under section 498A
of IPC and to pay fine of Rs. 5,000/- in default to further
suffer simple imprisonment for 3 months, vide order

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dated 17.5.2016. Since 4.2.2015 the appellant is in jail.

In the meantime I used to meet the appellant with
our children. I have found that he is under full
repentance what actually he did and I am also convinced
that under influence of liquor only he has attacked me,
otherwise he is of good nature. So request is made to this
Hon’ble Court by me and on behalf of my children to
release him on the sentence already undergone. He may
be given one opportunity of rehabilitation.

I am swearing this affidavit with out of free will
with full consciousness without any force, coercion and
undue influence by anybody”.

6 The learned counsel for the accused Smt. P. P. Chobe,

has satisfied herself about the identity of the deponent. I have

personally interviewed the deponent. Her anxiety to put a quietus

to the unfortunate incident appears to be genuine and bonafide.

Smt. Chobe, the learned counsel for the accused has invited my

attention to the judgment of the Hon’ble Apex Court in Ishwar

Singh Vs. State of M.P., 2009 ALL MR (Cri.) 560 (S.C.).

7 On a holistic consideration of the evidence on record

and the desire of the complainant to make peace with her husband

– accused, I do not see any difficulty in maintaining the conviction

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and altering the sentence to already undergone.

8 The conviction of the accused under section 307 and

498-A of IPC is maintained. However, for both the offences the

accused is sentenced to imprisonment already undergone.

9 The accused be released from jail custody forthwith unless

he is required in some other case.

10 The appeal is partly allowed and disposed of in the above

terms.

11 The fees of the appointed counsel are quantified at

Rs. 5,000/-.

JUDGE

RS Belkhede

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