Kanhaiyalal Kisan Pardeshi vs Copy Served On The Public
2011 Latest Caselaw 162 Bom

                                  1              Cri.Rev.No.234 of 2009

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD




                                                                       
             CRIMINAL REVISION APPLICATION NO.234 OF 2009




                                               
             Kanhaiyalal Kisan Pardeshi,
             Age:47 years, Occu: Hotel,




                                              
             R/o : Chimthana, Tq.Shindkheda,
             Dist.Dhule.                           ..          APPELLANT

                 VERSUS




                                     
            State of Maharashtra
                    
            (Copy served on the Public
            Prosecutor, High Court,
            Bench at Aurangabad )                 ...       RESPONDENT
                   
                          .....

     Shri. Joydeep Chatterji, Advocate for the Applicant.
      

     Mr.D.V.Tele, A.P.P. for the Respondent / State.
                          .....
   



                                  CORAM : S.B.DESHMUKH, J.





                          DATE OF RESERVING
                          THE JUDGMENT          : 29/11/2011
                          DATE OF PRONOUNCEMENT
                          OF JUDGMENT           : 02/12/2011





     JUDGMENT (PER S.B.DESHMUKH, J.)

1. Heard learned counsel Mr.Joydeep Chatterji, instructed

by Advocate Mr.Salgare for the petitioner and learned A.P.P.

Mrs.B.R.Khekhale for the State.

2. Rule made returnable forthwith. Taken up for final hearing

with the consent of the counsel appearing for the parties.

3. The legality, correctness and propriety of the order passed

by Learned Additional Sessions Judge, Dhule on 31st August,

2009 in Criminal Appeal No.91 of 2008, in relation to present

petitioner is questioned in this revision petition.

4. This revision petition, has been filed by the petitioner on

2nd September, 2009. This petition was listed for admission

before this Court on 4th September, 2009. This Court has

issued notice returnable on 8th October, 2009. The learned

counsel for the petitioner sought permission to produce copies

of depositions and documents exhibited during the trial. Such

permission was granted by this Court, by the order passed on

20th November, 2009. Hearing of the petition was adjourned to

18th December, 2009. By the order passed by this Court on 18th

December, 2009 record and proceedings were called for and

hearing of the petition was deferred till 15th of January, 2010.

5. Heard learned counsel Mr.Chatterji and learned A.P.P.

Mrs.B.R.Khekhale on 29th November, 2011.

6. The facts in brief necessary for disposal of this revision

application are set out herein below :

7. The incident in the case on hand according to prosecution,

occurred on 12th March, 2005. First information report regarding

this incident dated 12th of March, 2005 was lodged by

Mr.B.N.Sangle. Based on this report Crime No.I-20/2005 was

registered against the present petitioner and three other

persons.

These four accused persons, including the present

petitioner, were tried in RCC No.37 of 2005 for the offences

punishable under sections 323, 332, 353, 504, 506 r/w.34 of

Indian Penal Code. It is the case of the prosecution that

informant Mr.B.N.Sangle, at the relevant time, was serving as

Assistant Controller at Chimthana bus stand. One Mr.Avhad

was a Depot Manager at Shindkheda depot. A week earlier from

the day of incident, Depot Manager Mr.Avhad had visited

Chimthana bus stand and found that original accused no.1 i. e.

the petitioner in this petition had kept thorny bushes within the

campus of bus stand. Mr.Avhad, a Depot Manager directed the

informant Mr.B.N.Sangle, Assistant Controller to remove said

thorny bushes. According to prosecution informant

Mr.B.N.Sangle asked original accused no.1, i.e the present

petitioner to remove said thorny bushes. It is alleged that

petitioner did not budge. On the day of incident i.e. on 12th

March, 2005 Sweeper Mr.Muslman Shaikh had been to the bus

stand of Chimkhana for cleaning and sweeping the bus stand.

On that day at about 8.30 a.m., it is alleged that Sweeper

Mr.Shaikh and Waterman Mr.Vasant Bagul were cleaning the

campus of bus stand Chimthana. At about 9.00 a.m.

Mr.B.N.Sangle, an informant asked accused No.1 (present

petitioner) to remove those thorny bushes. According to

prosecution all original four accused persons who were present,

got annoyed, had abused and threatened to kill the informant

Mr.B.N.Sangle. It is also alleged that the accused No.2 Rajesh

Gangaram Pardeshi (not party to this revision petition) had

assaulted informant Mr.B.N.Sangle by fist blows more

specifically on his right eye. According to prosecution case, all

the accused persons including the present petitioner, had

assaulted informant Mr.B.N.Sangle on stomach and back.

According to prosecution Sweeper Mr.Musalman Shaikh and

Waterman Mr.Bagul had rescued the informant Mr.B.N.Sangle.

It is this incident, which has been reported by lodging first

information report by informant Mr.B.N.Sangle, as referred to

above.

8. After registration of the crime no.I-20/2005 investigation

was carried out, completed and chargesheet was filed against

the four accused persons, including present petitioner for the

offences punishable under sections 323, 353, 504, 506 r/w.34 of

Indian Penal Code. The police submitted chargesheet in the

court of Judicial Magistrate ( First Class ) Shindkheda, District

Dhule. Learned Judicial Magistrate ( First Class ) Shindkheda

framed charges against the all accused persons including the

present petitioner at Exh.11. The charges were explained and

readover to accused persons. They were denied. Trial was

claimed by the accused persons.

9. On trial, the Learned Judicial Magistrate ( First Class)

Shindkheda convicted all four accused persons, including the

present petitioner, for the offences punishable under Sections

332 and 353 r/w.34 of Indian Penal Code. All the accused

persons, however, have been acquitted of the offences

punishable under sections 504, 506 r/w.34 of Indian Penal

Code. The present petitioner who was accused No.1, has been

sentenced to undergo rigorous imprisonment for six months and

to pay fine of Rs.3000/- ( Rupees Three Thousand), in-default

to undergo simple imprisonment for one month. This

punishment was imposed for the conviction of offence under

Section 332 of Indian Penal Code to the present petitioner. The

original accused Nos.2 to 4 have been sentenced to pay fine of

Rs.3000/- each, indefault to undergo simple imprisonment for a

month for the offence punishable under sections 332 r/w.34 of

Indian Penal Code. Even though all four accused have been

convicted for the offences punishable under section 332 and

353 of Indian Penal Code, no separate punishment is awarded

for offence under Section 353. This judgment has been

delivered by the Learned Judicial Magistrate (First Class),

Shindkheda on 08/07/2008 in R.C.C.No.37 of 2005.

10. The present petitioner original accused No.1 alone

challenged his conviction for the offence punishable under

Sections 332 and 353 r/w.34 of Indian Penal Code, by filing

Criminal Appeal No.91 of 2008 in the Sessions Court at Dhule

under Section 374 of the Criminal Procedure Code, suffice to

note that even though original accused Nos.2, 3 and 4 had been

convicted and sentenced for the offences punishable under

sections 332 and 353 r/w.34 of Indian Penal Code by the

learned trial court in R.C.C.No.37 of 2005. They did not

challenge said conviction and sentence.

11. Criminal Appeal No.91 of 2008 filed by the present

petitioner before the Learned Sessions Court Dhule was made

over to Learned Additional Sessions Judge Dhule. The Learned

Additional Sessions Judge Dhule heard and dismissed Criminal

Appeal No.91 of 2008 filed by the present petitioner by

impugned judgment and order passed on 31st August 2009.

The appellant ( present petitioner ) was present in the Court

before the Learned Additional Sessions Judge Dhule, on 31st

August 2009. He was taken in the custody to undergo the

sentence.

12. It is this judgment and order of Learned Additional

Sessions Judge in Criminal Appeal No.91 of 2008 is assailed in

this revision application by the petitioner. This Court has passed

an order in Criminal Application No.3086 of 2009, and has

granted bail to present petitioner.

13. The Learned Appellate Court appears to have accepted

the evidence of P.W.1 Mr.Baban Namdeo Sangle. The evidence

of P.W.2 Muslim Shaikh Nabi, according to Learned Appellate

Court, corroborates the evidence of P.W.1 Mr.B.N.Sangle. The

learned counsel present before the Court are in agreement that

the medical certificate pertaining to injuries sustained by P.W.1

Mr.B.N.Sangle is on record however is not established. The

Learned A.P.P. points out the observations of the Appellate

Court in para 18 of the judgment, though the Medical Officer to

whom P.W.1 Mr.B.N.Sangle had been referred, is not

examined, inference has been drawn by Appellate Court that

suggestion given to P.W.1 in cross examination shows that

P.W.1 had received injury. According to Learned A.P.P. the

Appellate Court has justifiably recorded the findings that P.W.1

Mr.B.N.Sangle had received injury during the occurrence.

Learned A.P.P. However points out observation of the Appellate

Court in para 18 of the judgment that hurt was caused to P.W.1

due to assault on his person by accused persons, by fist blows

on his stomach and back.

14. With the assistance of the learned counsel present

before the Court I have considered the findings of Learned

Appellate Court in para 19, regarding offence punishable under

Section 353. Learned counsel for the petitioner, took me to the

first information report at Exh.21. It is alleged by the informant

in F.I.R. that on the date of incident and at relevant time he had

instructed the accused to remove thorny bushes from western

part of bus stand. The accused got annoyed and all accused

abused him and assaulted with fist blows and kicks. With the

assistance of learned counsel for the parties, I have also

considered the evidence of P.W.1. The evidence of P.W.1

Mr.B.N.Sangle shows that when he asked all accused persons

to remove said fencing, they did not listen to him. It is further

categorically stated; " the accused persons have started to

abuse and assaulted me. The accused persons have assaulted

me by kicks and fist blows." The learned counsel for the

petitioner submits that assault by kicks and fist blows is

attributed to all four accused and not to the petitioner alone. He

further points out evidence of P.W.2 Muslim Shaikh Nabi

( Sweeper ). This witness claims that he had seen quarrel

between P.W.1 and accused. Here also learned counsel for the

petitioner points out that the allegations are only regarding

quarrel and not pertaining to assault by petitioner with fist blows

and kicks. Learned A.P.P. could not point out attribution of

specific role to the petitioner, i.e. assault by kicks and fist blows

to P.W.1 Sangle on stomach and back. Learned A.P.P. however

supports the judgment of Appellate Court.

15. The status of informant Mr.B.N.Sangle as a public

servant being Assistant Controller of M.S.R.T.C. at the relevant

time is admitted by the learned counsel for the petitioner. I have

considered the definition of hurt under Section 319 of Indian

Penal Code, meaning " bodily pain, disease or infirmity to any

person." It is not the case of disease or infirmity to informant in

the case on hand. It is the case of hurt i.e. causing bodily pain

by assaulting informant by the petitioner with fist blows and

kicks. There is no specific evidence showing that petitioner

alone assaulted informant with kicks and fist blows and caused

hurt within the meaning of Section 319. Even if the evidence of

P.W.1 and P.W.2 is accepted in its entirety, in my opinion, there

is absolutely no material on record to show that petitioner

caused voluntary hurt to deter P.W.1 Mr.B.N.Sangle while

performing his duty as a public servant. Use of criminal force to

deter public servant from discharging his duty is the offence

under Section 353. In my view there is absolutely no material

against the present petitioner proving that he has either

assaulted or used criminal force to deter P.W.1 Mr.B.N.Sangle

from discharing his duty on the date of incident. The conviction

imposed upon the present petitioner for the offence punishable

under Sections 332, 353 needs to be quashed and set aside by

giving benefit of doubt to the petitioner in the facts,

circumstances and material brought on record.

16. In the light of observation made in forgoing paragraphs, in

my view, present application needs to be allowed by quashing

the conviction and sentence imposed upon the present

petitioner for the offence punishable under Section 332.

17. In the result Revision Application is allowed in terms of

prayer clause ' C ' . The petitioner is acquitted of the offences

punishable under Sections 332 and 353 of Indian Penal Code,

His bail bonds stand cancelled. Fine, if paid, be refunded to the

petitioner. Rule made absolute in above terms.

Sd/-

( S.B.Deshmukh, J.)

cri.apln 234.09/dsp