Harnya Shileder Kale Vs. State of Maharashtra - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - shinde the said injury was caused within 24 hours and was attributable to a hard and blunt object like stone. 3 was possible by a sickle or suri and injuries 1 and 2 by a hard and blunt object like stone (article 2) or the ends of sickle (article no. assumes all the more significance in the instant case because admittedly there was bad blood between the appellant and the informant phonya because the latter was not giving the balance dowry amount of rs. we feel that in view of this bad blood the delay in the lodging of the f. 20. for the said reasons we feel that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt.vishnu sahai, j.1. through this appeal the appellant challenges the judgment and order dated 23.12.1994 passed by the 4th additional sessions judge, satara, in sessions case no. 36/1994, whereby he has been convicted and sentenced in the manner stated hereinafter:(i) under section 302, indian penal code to suffer imprisonment for life and to pay a fine of rs. 2,000/- in default to undergo 6 months r.i.;(ii) under section 323, indian penal code to suffer 6 months r.i. and to pay a fine of rs. 100/- in default to undergo 8 days r.i.the substantive sentences of the appellant were ordered to run concurrently.2. in short the prosecution case runs as under:the appellant alongwith his son adam (absconding accused), adam's wife chivchiv and second wife alaki (absconding accused) at the time of the incident was residing in a hut created in the land of one dnyanu shinde in village patkhal, district satara. in the adjoining huts the informant phonya pw 6, his father meharlal pw 9, his mother randi (the deceased), his sister baiji pw 8, baiji's husband anamat pw 11 and his brother balya pawar pw 10 were residing.it is said that about 5 years prior to the incident the appellant's daughter raji was married to the informant phonya and it was decided that the latter shall pay a dowry of rs. 4,000/- to the former. since the latter had only paid the former rs. 2,000/- and was not paying the balance rs. 2,000/- on 14.7.1993 at about 5 p.m. the appellant alongwith adam, chivchiv and alaki went to the hut of the informant. thereafter adam assaulted the informant with a stone on his head, resulting in his sustaining a bleeding injury. when the informant's mother randi rushed to intervene, the appellant assaulted her with a knife resulting in her sustaining a bleeding injury on her nose. chivchiv assaulted her with a stone near her left eye; and adam assaulted her with a sickle on her head which is said to have been brought by the appellant. as a consequence of the assault randi died. thereafter the appellant and others brought her corpse in the land of amrata nana and ran away. according to prosecution, apart from phonya who sustained injuries during the course of the incident this incident was seen by anandrao pw 7, baiji pw 8, meharlal pw 9, balya pw 10 and anamat pw 11.3. the evidence is that after the incident the informant phonya alongwith others went to the house of his cousin sister kanti in village tirupati and told her about the incident. he spent the night at her place. the next morning (morning of 15.7.1993) he alongwith kanti went to the place of the incident which they reached at about mid-day. thereafter the informant proceeded to satara taluka police station and lodged his f.i.r. at 4 p.m. on the basis of which p.w. 12 shankar patil, s.d. p. a. kolhapur, registered c.r. no. 95/93 under section 302, indian penal code against the appellant and others.4. the injuries of phonya were medically examined the same day at 9 p.m. by dr. anil shinde p.w. 2, who found that he had sustained the following injury :contusion over right side of forehead (frontal region at hair line) 3x2 cm. with swelling at wound, irregular central laceration 5mm x 2mm x 3mm with dark reddish clotted blood at wound and around wound.in the opinion of dr. shinde the said injury was caused within 24 hours and was attributable to a hard and blunt object like stone.the autopsy on the corpse of randi was conducted on 15.7.1993 between 7 p.m. to 8 p.m. by dr. digamber dayal p.w. 5 who found the following ante mortem injuries:1. contused lacerated wound 3 cm. x 2 cm. x 1 cm. bone deep on left side of maxilla, extending to upper lip, upper lip is cut on left side. bleeding was present. clotted blood is seen over upper lip on right side.2. d.i.w. 3 cm. x 2 cm. x.1/2 cm. of the bridge of the nose. bleeding was present.3. incised wound on right parietal region of skull, posteriorly 5 cm. x 4 cm. x bone deep, bleeding present, scalp flap was present.the doctor also found fracture of right parietal skull by palpation corresponding to external injury no. 3.in his statement in the trial court dr. dayal stated that the injury no. 3 was possible by a sickle or suri and injuries 1 and 2 by a hard and blunt object like stone (article 2) or the ends of sickle (article no. 9) dr. dayal further stated that injury no. 3 was sufficient in the ordinary course of nature to cause death.5. the investigation was conducted in the usual manner by p.w. 12 shankar patil, s.d.p.o. and ashok suryagandh p.w. 13. during the course of it, on the pointing out of the appellant, in the presence of public panch sakharam kondalkar p.w. 4 and p.s.i. ashok suryagandh, the knife and sickle alleged to have been used in the incident were recovered. we are not adverting to this recovery in detail because for very plausible reasons contained in the impugned judgment the learned trial judge has not placed reliance on it. in short the said reasons are :(i) sakharam kondalkar p.w. 4 has turned hostile and (ii) there was neither any blood on the sickle or knife, nor were the said weapons sent to the chemical analyst.6. after completing the investigation ashok suryagandh p.w. 13 on 10.1.1994, submitted the charge-sheet.7. the case was committed to the court of sessions in the usual manner where the appellant alongwith chivchiv was charged for offences under sections 302 read with 34, indian penal code and 325 read with 34, indian penal code.8. during trial in all the prosecution examined 13 witnesses, 6 out of them viz. phonya, anandrao, baiji, meharlal, balya, and anamat p.ws. 6, 7, 8, 9, 10 and 11 respectively were examined as eye witnesses.9. the defence of the appellant was that of denial. however, he did not examine any witness in his defence.10. on completion of the trial the learned trial judge acquitted co-accused chivchiv but convicted and sentenced the appellant in the manner stated in para 1. the state of maharashtra has not impugned the acquittal of chivchiv by preferring an appeal against the acquittal under section 378(1), criminal procedure code.11. we have heard the learned counsel for the parties and perused the entire evidence on record. in our view this appeal deserves to be allowed.12. as mentioned earlier to substantiate its case in all the prosecution examined six eye witnesses. out of them anandrao p.w. 7 turned hostile. the learned trial judge placed reliance on the evidence of phonya, baiji, meharlal, balya, and anamat p.ws. 6, 8, 9, 10 and 11 respectively, for convicting the appellant.13. at the very outset it has to be borne in mind that all these witnesses are interested witnesses inasmuch as phonya is the victim, meharlal is his father, balya is his brother, baiji is his sister and anmai is his brother-in-law, being the husband of baiji.it is pertinent to point out that the deceased randi was the wife of meharlal. on account of the circumstance that all these five eye witnesses are interested witnesses we have to evaluate their evidence with caution and in our view, once we adopt such an approach it would be extremely difficult to believe their evidence.all these witnesses have categorically stated that the appellant assaulted randi with a knife on her nose. earlier we have referred to the ante mortem injuries sustained by randi and we find that the autopsy surgeon dr. dayal found no injury attributable to knife on her corpse. it is true that dr. dayal did find an injury on randi's nose (injury no. 2) but that was not an incised or perforating injury, but on the converse was a contused lacerated wound.in this connection it would be pertinent to refer to the examination-in-chief of dr. dayal to whom the prosecution specifically suggested that injury no. 2 was attributable to a stone.in our view, the absence of a knife injury on the nose of the deceased belies the participation of the appellant in the incident.14. it is prudent not to accept interested ocular account if it is not corroborated by medical evidence.15. another reason why we do not think it pertinent to sustain the conviction of the appellant is that the f.i.r. of the incident was lodged practically 23 hours after the incident and this we find to be rather strange because this incident was seen by six eye witnesses. in our view had this averment of the prosecution been really true then the informant alongwith some of the witnesses could have proceeded to satara taluka police station the same day (14.7.1993) and lodged the f.i.r.16. in the instant case what we find is that the incident took place on 14.7.1993 at about 5 p.m. but the f.i.r. was lodged on the next day (15.7.1993) at about 4 p.m.17. we feel it pertinent to point out that the explanation furnished for delay in lodging of the f.i.r. viz. the informant that night went to the house of his cousin sister kanti in village tirupati, spent the night there; next morning alongwith her came to the place of the incident; and then lodged the f.i.r. is unworthy of acceptance.18. the delay in the lodging of the f.i.r. assumes all the more significance in the instant case because admittedly there was bad blood between the appellant and the informant phonya because the latter was not giving the balance dowry amount of rs. 2,000/- to the former who was repeatedly demanding it. we feel that in view of this bad blood the delay in the lodging of the f.i.r. could have been utilised by the informant to falsely nominate the appellant.19. we have already mentioned earlier that the learned trial judge for plausible reasons has not placed any reliance on the recovery of knife and sickle on the pointing out of the appellant.20. for the said reasons we feel that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt.21. in the result, this appeal is allowed. the conviction and sentence of the appellant for the offences punishable under sections 302 read with 34, indian penal code and 323 read with 34, indian penal code is set aside- in case he has paid the fine it shall be refunded to him. the appellant is in jail and shall be released forthwith unless wanted in some other case.