1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.269 OF 1997. Devanand S/o Waman Jawale, Age 23 years, Occ.Student, R/o Patoda, Dist.Beed. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mrs.S.S.Jadhav, advocate holding for Mr.B.N.Palve, advocate for the appellant. Mr.K.S.Patil, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 31.08.2009. ORAL JUDGMENT 1. This appeal is directed against judgment rendered by learned 2nd Additional Sessions Judge, Beed, in Sessions Case No. 50/1997, whereby the appellant, who was original accused No.1, has been convicted for offence punishable U/s 304-II of the I.P.Code and has 2 been sentenced to suffer rigorous imprisonment for two (2) years. 2. Briefly stated, the prosecution case before the learned Sessions Judge, was that on 4.4.1997 at about 2-00 p.m. deceased Gautam and his wife (P.W.Nilawatibai) were proceeding towards their agricultural land to pick up and fetch firewood. The appellant is nephew of deceased Gautam. He and the other two accused persons, who are his parents, obstructed said Gautam and P.W.Nilawatibai. The appellant inquired whether they were going to withdraw the suit filed by them. His father instigated him to mount assault on deceased Gautam. Therefore, the appellant picked up a stone from nearby and hit the same on the head of Gautam. He fell down. Blood gushed out of the head injury. Father of the appellant brought bullock-cart when he saw that injured Gautam had become unconscious. The appellant's father took injured Gautam to Government Hospital at Patoda for treatment. The injured was referred to Civil Hospital. He died on 5.4.1997, as a result of the head injury. His 3 wife (P.W.Nilawatibai) lodged FIR (Exh.23). On that basis, certain investigation was carried out by the Police. The Police charge-sheeted the appellant and his parents for offence punishable U/s 302 read with Section 34 of the I.P.Code and also for offence punishable U/s 504 read with Section 34 of the I.P.Code. 3. The appellant denied truth into the accusations. He asserted that he was framed in the false case. It was the defence version that deceased Gautam was dealing in preparation of illicit liquor and was prosecuted for offence punishable U/s 66(i)(b) of the Bombay Prohibition Act. It was submitted that the Civil litigation was going on between deceased Gautam and the appellant's father for partition of the properties. 4. At the trial, the prosecution examined P.W.Nilawatibai and other witnesses including P.W.1 Ram. The learned Sessions Judge, came to the conclusion that the appellant had no intention to cause death of his uncle i.e. 4 deceased Gautam. The learned Sessions Judge held that the incident occurred all of a sudden and the appellant hit the stone on head of Gautam at instigation of the father. The learned Sessions Judge came to the conclusion that the offence would come within the ambit of part-II of Section 304 of the I.P.Code. Considering the young age of the appellant, substantive sentence of only two (2) years was awarded to him. 5. Heard learned counsel Smt.Jadhav, learned advocate holding for Mr.B.N.Palve, advocate for the appellant and Mr.K.S.Patil, learned A.P.P. for the State. I have gone through the proceedings with their help. 6. At the out-set, it may be stated that Mrs.Jadhav, did not press into service the legality and propriety of the order of conviction. She would submit that the order of conviction rendered by the learned Sessions Judge, is not being challenged. She seeks to challenge only the quantum of sentence awarded to the appellant. She submits that the Civil 5 litigation between deceased and father of the appellant has now come to an end due to settlement between the parties. She would submit that relations between the two families are now normal due to the settlement of the Civil dispute. She has placed on record copy of application filed in Civil suit bearing RCS No. 267/1989, for appointment of Court Commissioner and copy of the compromise deed (Collectively marked as "X"). It is submitted that the appellant was aged about 22/23 years at the relevant time and might have suddenly assaulted deceased Gautam when his father directed him to do so. It is pointed out that the appellant has undergone imprisonment for about five (5) months. The learned A.P.P. submits that the sentence awarded to the appellant is proportionate to the act of culpability. 7. So far as question of sentence is concerned, it may be gathered that the appellant was College going student at the relevant time. He was aged about 22/23 years. The young age could not have kept him waiting any more when the 6 father told him to assault the uncle (deceased Gautam). The sword of substantive imprisonment is hanging on his head since about 12 years. By now, due to the conviction rendered against him, the possibility of getting employment in the Government service is also lost. His family is of agriculturist. There is material on record to infer that deceased Gautam was dealing in nefarious business of distillation of illicit liquor. It has come on record that no sooner injured Guatam had fallen down, the appellant's father immediately brought a bullock-cart and took him to the Hospital. This conduct of the appellant and his family members would show that there was no intention to cause death of said Gautam. The fact that the death occurred is another thing. The reason for the assault was probably that deceased Gautam and P.W.Nilawatibai were going towards the disputed agricultural land in order to collect firewood. Therefore, the appellant and his parents apprehended that they would be put to loss due to ill intended acts of deceased Gautam. In this background, the substantive sentence is required to be suitably 7 reduced. The appellant is not hardened criminal. The incident sparked of due to the Civil dispute pertaining to the possession of the agricultural land in which deceased Gautam was claiming his share. That Civil dispute has come to an end. It appears from recitals of the application filed on record that consent of P.W. Nilawatibai was required to be recorded by appointment of a Court-Commissioner in view of the fact that she is suffering from paralysis and was unable to move out of the residential house. The change in the circumstances are required to be taken into account. Therefore, if the appellant is called upon to undergo the remaining part of the substantive sentence then it may effect strained relationship. In this view of the matter, I deem it proper to modify the sentence awarded to the appellant by imposing fine amount instead of remaining part of the substantive sentence. 8. In the result, the appeal is dismissed on merits but the substantive sentence is modified as below : 8 . Instead of the sentence of rigorous imprisonment for two (2) years, the appellant is directed to be released on the term which has already been undergone by him as an under-trial prisoner during the trial and as a convicted prisoner after the conviction and is sentenced further to pay fine of Rs.10,000/- (Rupees ten thousand), in default to undergo rigorous imprisonment for six (6) months period. Out of the fine amount if deposited, an amount of Rs.5,000/- (Rupees five thousand) be made over to P.W. Nilawatibai by sending the same vide money order. At request of Mrs.Jadhav, learned advocate, four (4) weeks time is granted to deposit the amount. (V.R.KINGAONKAR,J.) asp/office/Crappeal26997