1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 478 OF 2007 1. Chandrakant M. Mhatre } Age: 51 years, Occ: Business } 2. Nandkumar Chandrakant Mhatre } Age: 25 years, Occ: Business } (Both r/o.: Village Khutari, } Tal. Panvel,Dist: Raigad) } (At present in Alibag District} .. Appellants V/s. The State of Maharashtra } .. Respondent Shri A. P. Mundargi, Senior Counsel with Shri Viresh V. Purwant, for Appellants. Shri N. N. Patil, for Respondent and Mrs.M. H. Mhatre,APP for the State. Coram: A. R. JOSHI, J. Dated: 10th June, 2009. ORAL JUDGMENT 1. Present appeal is preferred by Original Accused Nos.1 and 2, challenging their conviction for the offence punishable under section 307 r/w 34 of Indian Penal code. The said impugned Judgment and Order came to be passed by Sessions Court, Raigad on 17th April, 2007 in Sessions Case srj/- 2 No.86 of 2004. In the said case, in all four accused present were sentenced for the offence punishable under section 307 r/w 34 of I.P.C. for the assault caused on PW Nos.5, 6 and 7, the persons of the same village and of the same community. The said incident of assaulting occurred at about 1.45 p. m. on 30th March, 2004, near the house of Accused No.1 or of some relative, one Padu Mhatre, father of Accused No.4. Apparently, prior to this incident of assault, there was an incident in which Accused No.1 had been to the place of some construction of Jail in the village Ove, near Taloja. That time there was some altercation an d alleged threats were given to the relatives of the complainant, of dire consequences on account of supply of construction materials like sand, cement, stones, etc. As a follow up action, for said alleged threats, complainant and his relatives went to the house of Accused No.1 and his other relatives and there appeared to have occurred some alteration and in which, present applicant along with other Accused Nos.3 and 4 assaulted complainant and his two relatives PW Nos.6 and 7, by some weapons like swords. PW No.6 and 7 sustained injuries on head. There appears to be one injury on the right forearm of complainant PW No.5. After incident, PW Nos.6 and 7, fall on the ground and remained there till srj/- 3 the police party came, which occurred on filing on the complainant by PW No.5 Prakash Mhatre. All Accused including PW No.5, Prakash Mhatre were removed the hospital and were treated. Admittedly on the same day PW No.5 left the hospital against medical advise, however, PW Nos.6 and 7 the other two injureds namely Laxman Mhatre and Yashwant Mhatre were indoor patients till 5th April, 2004. The injuries to these two persons were substantiated by medical evidence of PW No.8 Dr. Chavan and by Medical Certificates Ex. 110, 111 and 112. 2. During the trial, nine witnesses were examined. Out of them, PW No.1 is panch. PW No.2 is a panch regarding recovery of clothes of Accused Nos.1 and 3. PW No.3 is the panch regarding voluntary statement of Accused No.2 and production of sword like stripes. Important prosecution witnesses are PW Nos.5, 6 and 7 who are the injured persons. They gave almost similar story of assault and regarding incident took place on the previous day of the assault. Next prosecution witness is PW No.8 Dr. Chavan of M.G.Medical College. The last prosecution witness is PW No.9, investigating Officer Shri Patil. srj/- 4 3. Considering the substantive evidence of PW Nos. 5,6 and 7, learned Sessions Judge convicted Accused Nos.1 and 2 to whom the major role of assault with the help of sword was assigned. As mentioned above, considering the same evidence of PW Nos.5, 6 and 7, deficient to link, Accused Nos.3 and 4, they were acquitted. Hence, it is the Judgment and Order of conviction of Accused Nos. 1 and 2, challenge before this Court. 4. At the threshold prior to discussing the arguments , advanced on behalf of Appellants, it may be mentioned that during the pendency of the present appeal, affidavits were filed on behalf of the three injured persons, PW Nos.5, 6 and 7, specifically mentioning that the dispute between them and the appellants was amicably settled and they are desirous of compounding the matter at the appellate stage. However, considering the provisions of section 320 of Cr.P.C, this Court declined said desire of both the parties and matter was directed to be heard expeditiously. In this premise, present appeal is taken up today in the Court and heard. At this stage. It may be mentioned that the learned Advocate Shri Nishikant Patil submitted before the Court on behalf of Complainant srj/- 5 Prakash Mhatre that the matter is compounded. However, it was made clear that said submission of amicable settlement can be considered while deciding the appeal and for reduction, if any of the quantum of imprisonment, in the event of coming to the conclusion of aspect of the guilty of the applicant for the offences charged. 5. During arguments, the learned counsel Shri Mundargi submitted that he is arguing the present matter on limited scope as to bringing the conviction of present applicants from the offence 307 to offence under section 324 of I.P.C. Alternatively, it is argued that , if at all, the conviction of the appellant is hold good for the offence punishable under section 307 r/w 34 of I.P.C. then at the most, the quantum of the substantive sentence can be reduced to the sentence which is already undergone by the appellants, mainly considering the amicable settlement between the parties. In short, it is argued on behalf of appellants, accepting the entire incident of alleged assault, the injuries sustained by the injured persons were not of such nature so as to attract provisions of section 307 of I.P.C. On this ground, much reliance srj/- 6 was placed on substantive evidence of PW No.8 Dr. Chavan. It is argued that though PW Nos.6 and 7 had sustained injury on their head, these are CLWS and there is nothing brought before the Court as to any fracture sustained by the persons. By pointing this evidence of the Medical Officer, it is submitted on behalf of appellant that such injuries were not so grave as to endanger life. In other words, it is argued on behalf of appellant that the incident was not of such a character as to conclude that the appellants were determined to do away with the injureds and to kill them on the spot. On the contrary, further argued that it was such incident at which the complaining party had been to the house of the accused person and there was in fact, throwing of stones and in that event, possibly there was retaliation by the appellants by using certain weapons like swords. All the same, it is submitted on behalf of the appellants that even accepting the entire incident, it may not attract such stringent punishment of 10 years. 6. Considering the rival submissions and considering the factual position and considering the ratios propounded by the authorities cited before the srj/- 7 Court in unreported case (Criminal Appeal No. 461 of 2006  Sanjay D. Donhe v/s. State of Maharashtra) (Criminal Revision Application No.348 of 2005  R.V. Banshetti v/s. The State of Maharashtra) (1995 Supp(4) (SCC) page 631  Salim and others v/s. State of M. P.), in the opinion of this Court, it would be in the fitness of the situation to held both the appellants guilty for the offence punishable under section 307 r/w 34 of I.P.C., but to reduce the sentence suitably considering the situation and in fact, the desire of complainant injured party. It may be mentioned that today PW Nos.5,6 and 7 are personally present before the Court and they are also represented by their Advocate as mentioned above, and they have categorically accepted the compounding of the matter. 7. In view of above, at the cost of repetition, it can be said that it is a matter in which by maintaining the conviction of the appellants for the offence punishable under section 307 r/w 34 of I.P.C., the sentence can be altered so as to meet the ends of justice. 8. Hence, present appeal is disposed off with following order:- srj/- 8 O R D E R (a) Criminal Appeal No.478 of 2007is allowed. Conviction of Appellant Nos.1 and 2 for offence punishable under section 307 r/w 34 of I.P.C. is maintained. (b) However, substantive sentence awarded against them for 10 years is reduced to the sentence already undergone by respective accused persons. It is reported that the fine amount imposed against them has already been paid. (c) That the above criminal appeal is accordingly disposed off. (A.R.JOSHI,J.) srj/- 9 srj/-