CRI. APPEAL NO.297.2000.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.297 OF 2000
Bhaurao s/o Dayaram Lade,
Aged about 25 years,
R/o. Kohalitola,
Tah. Sadak-Arjuni, Distt. Bhandara. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
through PSO, Bhandara. .. RESPONDENT
..........
Shri V.D. Mule, Advocate for Appellant,
Ms. T.H. Udeshi, APP for Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : MARCH 30, 2017.
ORAL JUDGMENT By this appeal, original accused no.1 challenges the judgment and order dated 19.9.2000 passed by the learned Additional Sessions Judge, Bhandara in Special Criminal Case No.27/1995 convicting accused no.1 of the offences punishable under Sections 323 and 325 of the Indian Penal Code and sentencing him to pay a fine of Rs.300/- in-default to suffer rigorous imprisonment for one ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 2 month for the offence punishable under section 323 of the Indian Penal Code and for the offence punishable under section 325 of the Indian Penal Code to suffer rigorous imprisonment for one year with fine of Rs.300/- in-default to suffer rigorous imprisonment for one month. Accused was however acquitted of the offence punishable under section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. So far as co-accused Prabhu is concerned, he has been acquitted by the Trial court.
2] Prosecution case, in brief, is as under :
(a) On 3.11.1994 at around 8.00 pm, complainant Dilip Vankat Badole (PW-1) resident of Kohalitola, Tahsil-Sadak Arjuni, District-Bhandara was playing carom with others in a shop of Raju Gabhane. According to prosecution, accused Bhaurao came and obstructed Dilip. Altercation took place between accused and Dilip. It is alleged that accused took a stick from his father and assaulted the complainant. In the meanwhile, Jaswantabai, mother of complainant, came and tried to intervene in the quarrel. Accused also ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 3 assaulted mother of complainant with a stick, due to which, she sustained an injury resulting to fracture.
(b) Report was lodged by Dilip with Duggipar Police Station. Complainant and his mother were referred to Primary Health Centre, Sadak Arjuni. Jaswantabai was then referred to Civil Hospital, Bhandara. After x-ray examination, it was found that Jaswantabai had a fracture to her hand.
(c) On the basis of report, Crime
No.100/1994 was registered. PW-10 PSI Gajanan
took over investigation. He visited the place of
occurrence and recorded spot panchanama. Stick was seized from the accused. Its seizure panchanama was drawn. Statements of witnesses were recorded. After completing investigation, chargesheet was filed before the concerned court. 3] Charge came to be framed against the accused. He pleaded not guilty and claimed to be tried. The defence of accused was of total denial and false implication. 4] To substantiate the guilt of accused, prosecution ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 4 examined in all 11 witnesses. Considering the evidence of prosecution witnesses, trial court came to the conclusion that accused no.1 was guilty of the offences punishable under sections 323 and 325 of the Indian Penal Code. In consequence thereof, accused was convicted, as stated herein above. Being aggrieved by the judgment and order of conviction, present appeal has been preferred by original accused no.1.
5] Heard learned counsel for the parties. Perused reasons recorded by the trial court. On meticulous examination of evidence of injured and Medical Officer, this court, for the below mentioned reasons, finds that prosecution has proved the charge against the accused under sections 323 and 325 of the Indian Penal Code. 6] The star witnesses for prosecution are PW-1 Dilip, PW-2 Jaswantabai and PW-8 Hemraj. Dilip and Hemraj are the sons of Jaswantabai. They are related and interested witnesses. As such their evidence needs to be scrutinised with great care and caution.
7] It is stated by Dilip that on the day of incident at about 8.00 pm, after taking meals, he had been to the shop ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 5 of Raju Gabhane for playing carom. It was the day of Laxmipujan. He himself, Purushottam, Yuvraj, Duryodhan were playing carom. After sometime, accused Bhaurao came there. He had consumed liquor. Bhaurao stopped the game. Complainant stated that he questioned the accused why he was obstructing the game and on that Bhaurao caught his collar, took stick from his father and assaulted on his face and left hand. He also stated that his mother intervened. At that time, Bhaurao also assaulted his mother with a stick. Thereafter, incident was reported to police. 8] The evidence of PW-2 Jaswantabai is on the similar line. She stated that on the day of incident, her son Dilip had taken meals and went towards the shop. Her house was near the shop. She heard the shout and went to the spot. According to Jaswantabai, Bhaurao and Prabhu were beating her son Dilip. She asked them not to beat and intervened. She states that she was assaulted by Bhaurao with a stick on her right hand and her right hand was fractured. Then they went to Police Patil and report came to be lodged. 9] PW-8 Hemraj, brother of complainant and son of Jaswantabai, fully corroborates the evidence of PW-1 Dilip ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 6 and PW-2 Jaswantabai. He states that Bhaurao had taken stick from his father and gave a blow of stick on the right hand of his mother. Nothing substantial could be elicited in the cross-examination of these witnesses to disbelieve their testimonies.
10] The evidence of PW-1 Dilip, PW-2 Jaswantabai and PW-8 Hemraj is assailed on the ground that independent witnesses PW-3 Purushottam, PW-4 Raju and PW-9 Hiwaraj do not support the evidence of complainant, his mother and brother. True, Purushottam was playing carom with complainant at the time of incident when accused came on the spot, raised quarrel and assaulted complainant and his mother and he does not support the prosecution. So far as witness Raju is concerned, his evidence only indicates that Bhaurao assaulted Dilip with stick. He is not aware whether mother of Dilip was assaulted or not. PW-9 Hiwaraj was also playing carom with complainant and others at the relevant time. He chose to resile from his statement recorded under Section 161 of the Code of Criminal Procedure and not to support the prosecution. Still the moot question is, whether evidence of complainant Dilip, injured Jaswantabai and PW-8 Hemraj is to be disbelieved only on the ground that ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 7 independent witnesses for some or the other reasons are not coming forward to state the truth before the court. All the three witnesses were cross-examined at length. Nothing could be brought on record in their piercing examination to show that they had a reason to grind an axe against the accused. On the contrary, facts would reveal that accused was known to them and it is not even the defence of accused that their relations were inimical or there was animosity between them. All the three witnesses fully support the case of prosecution and the trial court has scrutinised their evidence carefully and cautiously. This court finds no error with the reasons recorded by the trial court.
11] The next principal question relates to the quantum of sentence. Learned counsel for appellant submitted that benefit under Probation of Offenders Act was wrongly denied to appellant. He submits that considering the nature of offences, age of accused at the time of incident, circumstances in which incident occurred, past clean antecedents of accused, opportunity of reformation ought to have been given to the accused. Alternative submission is that accused was in custody from 19.11.1995 till ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 8 20.11.1995. The case has to travel a long. Accused has to carry stress of conviction waiting for a decision for a long time. In this situation, prayer is to release the accused on the period already undergone.
12] In response to the submission advanced on behalf of appellant, learned Additional Public Prosecutor vehemently contended that for extending the benefit under the Probation of Offenders Act, certain formalities are required to be completed. The report of Probationary Officer needs to be called and in the absence of such report, benefit under the Act cannot be extended. She also submits that looking to the nature of offence, Trial court has rightly rejected the contention of defence and denied the benefit of provisions of Probation of Offenders Act. 13] The undisputed facts are that incident took place in 1994. Trial concluded in the year 2000. Appeal was preferred in the year 2000. It is in 2017 that appeal is heard and decided. The circumstances would also indicate that incident occurred in the spur of moment. Altercation took place and there was an assault with the stick. In this background, submission made on behalf of appellant to ::: Uploaded on - 04/04/2017 ::: Downloaded on - 06/04/2017 00:24:44 ::: CRI. APPEAL NO.297.2000.odt 9 release him on the period of imprisonment already undergone needs to be accepted and the order of sentence is to be modified.
14] In the above premise : (i) Criminal Appeal No.297 of 2000 stands dismissed. (ii) The order of substantive sentence of imprisonment
for the offence punishable under Section 325 of the Indian Penal Code is modified and appellant is released on imprisonment already undergone.
(iii) Rest of order passed by the Trial court stands confirmed.
(iv) No costs.
(Kum. Indira Jain, J.)
Gulande, PA
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