Bombay High Court
Uttam Rambhau Oval vs The State Of Mah And Ors on 22 September, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 596 OF 2011
1] Bapu s/o. Vithalrao Jadhav,
Age: 28 Years,
R/o. Shahinsha Nagar, Beed,
Tq. & Dist. Beed.
2] Laxman s/o. Marotirao Baswant,
Age: 29 Years,
R/o. as above.
3]
Raju s/o. Mohanrao Tak,
Age: 30 Years,
R/o. as above. APPELLANTS
[Orig. Accused]
VERSUS
1] State of Maharashtra,
Through Police Station,
Beed, Dist. Beed
Copy to be served on [P.P.].
2] Uttam s/o. Rambhau Oval,
Age R/o. Ashok Nagar,
Barshi Naka, Beed, Dist.Beed
[Added as per leave of Court
dtd.11.11.2011]. RESPONDENTS
WITH
CRIMINAL APPEAL NO. 437 OF 2014
Uttam s/o. Rambhau Oval,
Age 35 Years, Occ. Business,
R/o. Barshi Naka, Beed,
Tal. & Dist. Beed. APPELLANT
[Orig. complainant]
VERSUS
1] The State of Maharashtra,
Through Police Inspector,
Police Station, Beed,
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596.2011 Cri.Appeal.odt
2
Tal. and Dist. Beed
[Copy to be served on P.P.
High Court of Judicature of
Bombay Bench at Aurangabad]
2] Bapu s/o. Vitthalrao Jadhav,
Age 28 Years, R/o. Shahinsha Nagar,
Beed, Tal. & Dist. Beed.
3] Laxman s/o. Marotirao Baswant,
Age 29 Years, R/o. Ganesh Nagar,
Beed, Tal. & Dist. Beed.
4] Raju s/o. Mohanrao Tak,
Age 30 Years, R/o. as above
5] Santosh s/o. Vitthal Jadhav,
Age 20 Years, R/o. As above.
6] Bharat s/o. Marotirao Baswant,
Age 19 years, R/o. As above. RESPONDENTS
[Resp.Nos.2 to 6 are orig.
Orig. Accused]
...
Mr. R.G.Hange, Advocate, h/f. Mr. C.V. Thombre, Advocate
for the Appellants in Criminal Appeal No.596/2011.
Mr. Amol R. Gaikwad, Advocate for the Appellant in Criminal
Appeal No.437/2014.
Mr. V.D.Godbharle, APP for the Respondent - State
...
CORAM : S.S. SHINDE &
A.I.S.CHEEMA, JJ.
Reserved on : 07.07.2015
Pronounced on: 22.09.2015
JUDGMENT [Per S.S.Shinde, J.]:
1] Criminal Appeal No.596/2011 is filed by the
original accused and Criminal Appeal No.437/2014 is filed
by the original complainant, praying for enhancement of
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the sentence. Since both these Criminal Appeals are
arising out of the Judgment and Order dated 10.10.2011
passed by the Additional Sessions Judge-3, Beed in Sessions
Case No.40/2011, both these Criminal Appeals are being
heard together.
Facts of the prosecution case, in brief, are
as under:
2]
One Uttam Rambhau Ovhal [hereinafter
referred as 'the complainant'] lodged the complaint with
City Police Station, Beed, stating therein that, he is the
resident of Barshi Naka, Beed. In his house, there are his
parents, one brother namely Gautam and three sisters and
all of them reside together. He is employed in daily 'Dainik
Marathwada Sathi', since last 7 years prior to the date of
incident, he is working as a Recovery Agent. The
complainant is doing the work of collecting money for the
aforesaid daily news paper since then and gets Rs.1500/-
per month as his salary.
3] The complainant has alleged that, on
07.03.2008, he had collected Rs.2000/- from Balasaheb
Chavan, resident of Shahunagar, Beed towards
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advertisement charges and Rs.1000/- from Manik Baburao
Waghmare. Thereafter, at about 8.30 p.m. the
complainant, after collecting aforesaid amount, proceeded
to his office namely 'Dainik Marathwada Sathi' so as to
deposit the said amount in the office. But, when he
reached the office, he found that, Sub-Editor namely Sandip
Bendre was not available in the office. Therefore, he
carried the said amount along with him and proceeded
towards his house on his bicycle.
4] The complainant has further alleged that, at
about 9.00 p.m. he was proceeding from the District
Stadium to go to his house and was passing from Suraj Gold
Shop situated near Swami Smarth Temple, at that time
accused no. 1 Bapu Jadhav came in front of him, and
abused in filthy language on the caste of the complainant,
and asked complainant as to how much money did he want.
He further asked complainant, why he went to the house of
the accused, and thereafter, started assaulting the
complainant. At that time, other accused namely Santosh
Jadhav, Laxman Baswant, Bharat Baswant and Raju Tak had
come and they also started assaulting the complainant with
hockey stick and Kukries and gave blows on both hands,
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legs, neck and also on left ear, causing serious injuries to
him. The accused also gave blow on his face, as a result
one tooth was dislocated. Thereafter, said accused persons
robbed from him his money and mobile phone and fled
away.
5] The complainant has further alleged that,
thereafter, Sub-Editor was called on phone and he took him
in the rickshaw to the Police Station, and thereafter to the
Hospital. His statement was recorded in the Hospital on
08.03.2008.
6] On the basis of his statement, the offence came
to be registered, punishable under Section 395 of IP Code
and under Section 3 [1] [x] of the Scheduled Castes and
Scheduled Tribes [Prevention of Atrocities] Act, 1989 [in
short 'Atrocities Act'], vide Crime No.29/2008.
7] Since the offence pertains to the Atrocities Act,
the investigation came to be carried out by the Assistant
Superintendent of Police. During the course of
investigation, the Investigation Officer conducted the spot
panchanama and recorded the statement of the witnesses.
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8] During the course of investigation, the accused
persons challenged the First Information Report before the
High Court vide Criminal Application No. 972/2008. The
High Court partly allowed the Criminal Application of
accused persons and quashed the FIR in respect of the
offence under Section 3 [1] [x] of the Atrocities Act, vide its
order dated 25.04.2008. The High Court, however,
observed
that, prosecution
offences punishable under IP Code.
can continue for alleged
9] After completing the investigation, the
Investigation Officer submitted charge-sheet before the
Judicial Magistrate First Class, Beed, for the offence
punishable under Section 147, 148, 149, 324, 325 of I.P.
Code. All the offences mentioned in the charge sheet are
triable by the Magistrate. However, since the Magistrate
found that the statements of the witnesses and the First
Information Report show that, the offence under Section
395 of IP Code is attracted, and since the offence under
Section 395 is triable by the Court of Sessions, he
committed the case to the Sessions Court vide committal
order dated 15.02.2010.
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10] After appearance of the accused and hearing
both the sides, the Sessions Court framed charge under
Section 147, 148, 149, 324, 325 and 395 of the IP Code.
The contents of the charge were read over and explained to
the accused persons in vernacular. The accused persons
pleaded not guilty and claimed to be tried.
11]
The trial Court, after full-fledged trial, convicted
the original accused Nos. 1 to 5 i.e. appellants in Criminal
Appeal No.596/2011. The accused Nos. 1 to 5 are
convicted for the offence punishable under Section 147 of
IP Code and sentenced to undergo R.I. for 3 months. The
accused nos. 1 to 5 are further convicted for the offence
punishable under Section 148 of IP Code and sentenced to
undergo R.I. for 3 months. The accused Nos. 1 to 5 are
further convicted for the offence punishable under Section
324 r/w. 149 of IP Code and each of them is sentenced to
undergo R.I. for 6 months and to pay fine of Rs.2,000/-
[Rs.Two Thousand only] by each, in default, undergo R.I. for
one month. The accused Nos. 1 to 5 are further convicted
for the offence punishable under Section 325 r/w. 149 of IP
Code and each of them is sentenced to undergo R.I. for 6
months and to pay fine of Rs.2000/- [Rs.Two Thousand
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only] by each, in default, undergo R.I. for one month.
However, the trial Court acquitted the accused for the
offence punishable under Section 395 of IP Code. Instead
of sentencing accused Nos. 2 and 4 namely Santosh Vitthal
Jadhav and Bharat Marotirao Baswant, they were directed
to be released on probation on executing a bond of Rs.
1000/- by each with one surety in the like amount, to
maintain good behaviour for a period of one year, failing
which they will be called upon to receive the sentence
which has been imposed on them. The trial Court further
ordered that, the substantive sentences of imprisonment of
accused nos. 1, 3 and 5 shall run concurrently. The set off
under Section 428 of Criminal Procedure Code was also
ordered. The trial Court further ordered that, 50% of the
fine amount be paid to the complainant namely Uttam s/o.
Nanabhau Ovhal, towards compensation. Hence this
Appeal.
12] The learned Advocate Mr.R.G.Hange, instructed
by Advocate Mr. C.V.Thombre appearing for the Appellants
in Criminal Appeal No.596/2012 submits that, the High
Court has already quashed charge under Section 3 [1] [x] of
the Atrocities Act against the appellants. It is submitted
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that, the trial Court acquitted the appellants for the offence
punishable under Section 395 of IP Code, and there are no
any cogent and convincing grounds to interfere in acquittal
of the appellants from the offence punishable under Section
395 of IP Code. It is submitted that, there was delay of one
day in lodging the First Information Report. The alleged
incident had taken place on 7th March, 2008 at 9.00 p.m.,
p.m.
but the complaint was lodged on 8th March, 2008 at 9.00
The said delay has not been explained by the
prosecution. It is further submitted that, PW-1 and PW-2
i.e. Panch witnesses have turned hostile so also PW-3 was
also declared hostile. The testimony of the complainant is
self-contradictory. It is submitted that, the complainant
deposed before the Court that, the amount was taken from
his pocket and then accused persons assaulted him.
However, it is stated in the complaint that, first he was
assaulted and then the amount was withdrawn from his
pocket. He further stated that, due to assault, he became
unconscious. But, previously, he stated that, he called
Sandip and Santosh on the spot. The complainant further
stated that, after lodging the complaint he went to the
Hospital, however, the complaint was lodged on next day at
9.00 p.m. In his cross examination, he stated that, he went
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to the house of the accused namely Bapu Jadhav, and
immediately thereafter, he himself denied the same.
Though the complainant stated that, the accused used
weapon 'Kukri' while assaulting him, however, the medical
evidence shows none of the injuries are caused by the
pointed weapon. Though the complainant stated that, his
shirt button was broken and the clothes were blood stained,
however, the report of Investigation Officer is contrary to
it. He stated that, he shouted for help, but there was no
response. However, upon perusal of the evidence of PW-4
Sandeep, it is abundantly clear that, the spot of incident is
crowded place. It is further submitted that, if the evidence
of PW-5 is considered, in its entirety, same deserves to be
disbelieved. It is further submitted that, PW-4 did not
mention the name of the accused except the accused no.1.
His evidence is hearsay. PW-6 stated that, he has given Rs.
1,000/- to the complainant, however, the complainant
stated that, PW-6 had given Rs.2,000/-. Though the
complainant claims that, PW-7 has given Rs.1,000/-, but
said witness stated that, he gave Rs.2,000/- to the
complainant. PW-8 in his evidence stated that, except filing
of charge-sheet, he is not aware about any other thing. It is
submitted that, testimony of PW-9 Prabhakar Manoharrao
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Belsare clearly demonstrated that, there was delay of one
day in filing the First Information Report.
It is further submitted that, if the testimony of
PW-10 Dr. Baban Jadhav, Medical Officer, is considered in
its entirety, same is not consistent with the version of the
complainant. In fact, in his cross examination, he stated
that, he did not mention the colour of the injury in the
medical certificate so also he has to verify probable weapon
so as to mention directions and the age of the injuries, but
the same is not followed in the instant case so also it was
necessary to verify the clothes of the injured, but this is
also not followed by the PW-10. It is further submitted that,
during the course of examination of the Medical Officer, he
stated that, it is possible that if any body comes in contact
with the rough surface, there is possibility of simple injury.
The learned counsel further invited our attention to the
evidence of PW-9 Prabhakar Manoharrao Belsare
and in particular his cross examination and submits that, it
is not mentioned in the complaint that, along with Bapu
Jadhav others have also removed amount of Rs.3,000/-
from the persons of the complainant. Further there is no
mention in the complaint that, accused attacked the
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complainant with wooden sticks. It is not mentioned in the
complaint that, because of assault upon him, he became
unconscious and sustained grievous injuries.
13] The learned counsel appearing for the
appellants - original accused pressed into service
exposition of the Supreme Court in the case of Marudanal
Augusti Vs. State of Kerala1 and submits that, so far
acquittal of the accused from the offence punishable under
Section 395 of I.P. Code is concerned, same deserves no
interference, since the view taken by the trial Court was
possible view. The learned counsel pressed into the service
another exposition of the Supreme Court in the case of
Lallu Manjhi and another Vs. State of Jharkhand2 and
submits that, in case the evidence of the eye witness not
wholly reliable or wholly unreliable, and same is not fully
corroborated by medical evidence, same needs to be
disbelieved.
14] On the other hand, the learned counsel
appearing for the original complainant submits that, the
trial Court ought to have awarded maximum sentence for
1. AIR 1980 SC 638
2. AIR 2003 SC 854
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the offences for which the appellants are punished. It is
further submitted that, the version of the complainant and
other prosecution witnesses clearly demonstrated that, at
the relevant time, the complainant was having Rs.3,000/-
with him and same were removed by the accused persons
from his pocket, and therefore, the accused should have
been punished for the offence punishable under Section
395 of I.P. Code.
15] The learned APP appearing for the Respondent
- State invited our attention to the findings recorded by the
trial Court and submits that, the trial Court has rightly
convicted the accused. The trial Court ought to have
convicted the accused for the offence punishable under
Section 395 of I.P. Code. Therefore, he further submits
that, Criminal Appeal filed by the original complainant may
be allowed, and Criminal Appeal filed by the original
accused deserves to be dismissed.
16] We have given careful consideration to the
submissions of the learned counsel appearing for the
appellants - original accused, and the learned APP
appearing for the Respondent - State. With their able
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assistance, we have perused the entire evidence. Upon
perusal of the evidence of PW-1 to PW-3, the same is not
helpful to the prosecution inasmuch as all three witnesses
turned hostile and nothing useful to the prosecution, has
been brought on record during their cross examination by
the learned APP.
17]
The prosecution examined Sandeep Shriram
Bendre as PW-4. In his examination in chief, he stated that,
at the relevant time, he was working as Sub-Editor of
'Dainik Marathwada'. Uttam Ovhal was working as
Collection Agent. He was working with them since 7 to 8
years prior to the incident. On 07.03.2008, he came to his
office at 10.20 a.m. and he was working till 7.30 p.m. in his
office. He received phone call at about 9.00 p.m. from his
office. At that time, some shopkeepers came and told him
that, near Shivaji Stadium his collection agent Uttam Ovhal
has been assaulted. He immediately proceeded towards
the spot of incident and found Uttam Ovhal was injured and
sitting in unconscious state. He was taken to the City Police
Station in Rickshaw, and thereafter, the concerned Police
Officer gave him a paper, and thereafter, he took the said
injured Uttam to Civil Hospital, Beed. He inquired from the
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injured Uttam about the incident wherein he was told that,
one Bapu Jadhav and other persons, who were along with
him, assaulted him. When he did ask Bapu Jadhav about
payment, at that time Bapu Jadhav said to him that, why he
did go to his house to ask money, Bapu Jadhav and some
other persons assaulted him.
18]
During his cross examination, he admitted that,
he knows accused Bapu Jadhav since he is a Vice-President
of Nationalist Congress Party. Bapu Jadhav is also active in
social functions. He is a respectable person of Beed City.
The defence has brought on record during his cross
examination that, spot of incident is in crowded locality.
19] The complainant was examined as PW-5 [Uttam
Rambhau Ovhal]. In his examination in chief, he stated
that, he has worked as Collection Agent at 'Dainik
Marathwada'. In his house, there are 4 sisters, one brother
and father and mother and he himself. They all stay
together. He was doing the work as Collection Agent,
preceding 7 Years to the date of incident. He further stated
that, he got Rs.1500/- per month towards his salary. On 7th
of 2008, he cannot say in which month, he had been to
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Balasaheb Chavan, resident of Shahu Nagar, for collecting
Rs.1000/- from him towards the amount of advertisement,
and also he went to Manik Waghmare to collect Rs.2000/-
towards advertisement, total amount of Rs.3000/- which
was collected by him from the aforesaid two persons with
him. He, thereafter, went to the office of Dainik
Marathwada for depositing the said collected amount at
around 8.30 p.m. At that time, Sandeep Bendre was not in
the office. Since he did not deposit the money in the office
and carried the said amount along with him and went
towards his home on his bicycle. He was driving his bicycle
near by the shop of Suraj Gold, situated near Swami
Samarth Temple. At that time, he was stopped by Bapu
Jadhav and Santosh Jadhav, Laxman Baswat, Bharat Baswat
and Raju Tak. Accused Bapu Jadhav said to him that, how
much money you wanted, and why did you go to his house.
Said Bapu Jadhav and aforesaid persons snatched his
money from his pocket and started assaulting him. They
assaulted him with hockey stick, Kukari and sticks. They
attacked him on his left and right hand and as a result of
which he sustained grievous injuries, and was operated on
his left hand wherein rod is inserted. Due to said assault,
he also lost one of his teeth. He also sustained injuries to
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his leg. Thereafter, the said persons took away his money
and his mobile phone. Thereafter, Sandeep Bedre and
Santosh Shethe were called on the spot of incident by
informing them on phone. Due to the said assault, he
became unconscious on the spot of incident. The said
assault was continued up to half an hour. Said Sandeep
Bedre lifted him from the spot of incident and put him in
rickshaw and took him to the City Police Station on lodging
complaint, he was taken to the Civil Hospital, Beed. In the
City Hospital, his complaint was recorded by the City Police
Station Officer. The same was recorded as per his say. The
same complaint bears his signature, the said was read over
to him. The contents of said complaint are true and
correct. Thereafter, he was examined by the Medical
Officer. He identified all the persons before the Court, who
assaulted him on the date of incident.
During his cross examination, he denied
suggestion that, he is a member of Republic Party of India.
He stated that, he was knowing the accused persons since
one month prior to the incident. He has further stated
details about the relationship between the accused inter se.
He denied the suggestion that, since he fell from the cycle
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and sustained injuries. He again stated that, the accused
has removed mobile from his pocket. The said fact was
stated to the Police Officer, but said statement was not
appearing in his statement recorded by the Police. He
further stated that, he stated in his complaint that, he
became unconscious due to assault by the accused
persons, but the same is not written in his complaint. He
cannot assign any reason for the same.
20] The prosecution did examine Manik Baburao
Waghmare as PW-6. In his deposition, he stated that, he
had given one advertisement in 'Daily Marathwada' news
paper, and he paid the amount of Rs.1,000/- towards
advertisement charges. PW-7 Balasaheb Shankarrao
Chavan has also stated in his deposition before the Court
that, he had given Rs.2,000/- to the Uttam Ovhal for giving
an advertisement in 'Daily Marathwada'.
21] The prosecution examined Somnath Shivaji
Kolhe as PW-8. In his deposition, he stated that, he was
posted at Police Station [City] Beed as PSI, since 2007. He
has received papers from ASV Shri Suvethaq and the said
papers forwarded to him for investigation after registering
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the crime. File was forwarded to him for recording
supplementary statements of witnesses on 30.05.2008. On
11.08.2008, he has recorded the statement of complainant,
Ganesh Bhosale, Sandeep Bedre and Ashok Rodge, as per
their say. After completion of investigation, charge-sheet
was submitted by him before Judicial Magistrate First Class
on 28.11.2008. He identified the accused persons, who are
present in the Court, against whom he has filed charge
sheet.
During his cross examination, he admitted that,
he did not do anything during the investigation, except
filing the charge-sheet.
22] The prosecution examined Prabhakar
Manoharraro Belsare as PW-9. He was attached with Police
Station Beed since 14.06.2007, and was working there till
2009. On 08.03.2008, the Police Inspector Shri Abale told
him that, one person namely Uttam Rambhau Ovhal is
admitted at Civil Hospital,Beed and directed him to go and
record his statement accordingly. After receiving the
instruction from the Police Inspector, he proceeded towards
Civil Hospital, Beed, to record the statement of the said
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person namely Uttam Rambhau Ovhal. Thereafter, he
recorded his statement as per his say. The statement was
recorded as per his say, and thereafter, signed the
complaint. Complaint is shown to him is the same. It bears
signature of complainant and he himself and its contents
are true and correct, which is at Exh.41. Thereafter, he
came to the Police Station and recorded their contents
about the same in the station diary.
offence was registered vide Crime No. 21/2008 under
Accordingly, the
Sections 395 of IP Code and under Section 3 [1] [x] of SC &
ST [Prevention of Atrocities] Act. The endorsement on the
complaint is in his own handwriting. Contents are true and
correct. The endorsement bears his signature, which is at
Exh.48. He knew and identified the complainant.
23] During his cross examination, he stated that, it
is not mentioned in the complaint that, Bapu Jadhav has
removed mobile phone from the pocket of the complainant.
He further stated that, it is true that, it is not mentioned in
the complaint that, along with Bapu Jadhav others have
also removed amount of Rs.3,000/- from the complainant.
He further stated that, there is no mention in the complaint
that, accused attacked the complainant with wooden sticks.
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It is not mentioned in the complaint that, because of assault
upon him, the complainant became unconscious and
sustained grievous injuries.
24] The prosecution examined Dr. Baban
Laxmanrao Jadhav as PW-10. In his examination in chief,
he stated that, he was in the Civil Hospital, Beed from the
period 2003 to 2009 as an Medical Officer. On 07.03.2008,
on that day, he was on duty at Civil Hospital, Beed as
C.M.O. Uttam Rambhau Ovhal was brought in the Hospital
on 07.03.2008. In the history, he has stated that, about
alleged assault, which took place on him on 07.03.2008 at
about 9.00 p.m. He has examined the victim Uttam Ovhal
at 9.30 p.m. During examination, he found following
injuries on the person of Uttam:
1] Contusion with abrasion : Over left Upper
Arm of size 4x3 cm caused within 24 hours,
probable weapon is hard and blunt object, simple in
nature.
2] Contusion: Over right Upper Arm of size 2x3
c.m., within 24 hours, probable weapon is hard and
blunt object, simple in nature.
3] Abrasion: Over right upper arm, of size 1x1/2
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cm, probable weapon is hard and blunt object,
simple in nature.
4] Contusion: Over occipital region, of size
3x2cm, probable weapon hard and blunt object,
caused within 24 hours, simple in nature.
5] Abrasion: Over left lower leg of size 3x1 cm,
within 24 hours, probable weapon is hard and blunt
object, simple in nature.
6] Fall of tooth: Right upper canine, bleeding
plus, caused within 24 hours, weapon hard and
blunt, grievous in nature.
7] X-ray No.1044 and 1045 dated 10.03.2008
shows fracture of right radius middle shaft caused
within 24 hours, weapons hard and blunt, grievous
in nature. X-ray No.1784 and 1785 dated
17.03.2009 shows fracture of right radius middle
shaft caused within 24 hours, weapon hard and
blunt, grievous in nature.
8] X-ray No.973 and 974 dated 7/3/2008, shows
fracture of left unla shaft, caused within 24 hours,
caused by hard and blunt object, grievous in nature.
Along with:-
X-ray No.990 and 991 dated 8/3/2008 shows
montaggia fracture dislocation and chif fracture of
lower 1/4th of left humar caused, within 24 hours,
caused by hard and blunt object, grievous in nature.
596.2011 Cri.Appeal.odt
The said injury certificate is issued by him under his
handwriting, and the same bears his signature. The
contents are true and correct, same is issued on
02.04.2008, which is at Exh. 53. Injuries mentioned at
Serial Nos. 1,2,5,6,7,8 in certificate are possible by the use
of hockey stick.
It is true that, during his cross examination, he
admitted that, for the assessment of the age of the injury,
colour is necessary factor to determine the age of injury. In
the MLC issued by him, he has not mentioned the colour.
He further stated that, he has not come across any other
injury on the victim other than the injuries mentioned in the
M.L.C. He further stated that, out of 8 injuries mentioned in
the M.L.C. none of them are inflicted by sharp and pointed
weapon. It is true that, rough surface is hard and blunt. It
is possible that, if any body comes in contact with the
rough surface, there is possibility of simple injury. Injury
mentioned in column no. 6, its verification and examination
is conducted through Dental Department. It is true that,
injuries at serial no.7 and 8 are the X-rays, which are taken
from the Radiology Department. He also admitted that, in
serial no.6 injury, he has not mentioned as to how many
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teeth were there in the upper jaw and in the lower jaw.
However, he specifically stated that, it is not possible when
a person is riding on bicycle and his foot get struck in the
chain, and he fallen down, such type of injuries are
possible.
25] The prosecution did examine Mohd. Suvez
Haque as PW-11. He was working as an Assistant S.P. at
Beed from September, 2007 to February, 2009. Since one
of the offences alleged was under the provisions of Section
3 [1] [x] of the SC & ST [Prevention of Atrocities] Act. He
undertook the investigation. However, it appears that, the
charge framed by the trial Court to try the accused for the
offence under the provisions of the said Act, was quashed
by the High Court, and therefore, the trial was restricted
only to the offences punishable under the provisions of
Indian Penal Code.
26] It appears that, the defence examined
Chanchal Bapu Jadhav as PW-1. In her deposition before
the Court, she stated that, her husband's mobile phone
number is 9850297745. Her husband used to tell her that,
some persons used to call him giving impression that, the
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voice of the said person is of female. On 7th March, 2008,
her husband received a phone call at about 4.45 p.m. on his
phone, thereafter, phone was disconnected. Again at 5.45
p.m. a phone call was received on the aforesaid mentioned
cell phone. The caller started abusing in filthy language.
The caller told his name as Uttam Ovhal and then phone
was disconnected. Thereafter, she waited for her husband,
but he did not come. Thereafter, she along with other
relatives, went to the Police Station and at about 9.30 p.m.
she lodged the complaint in the Police Station. She denied
suggestion, during her cross examination that, she did not
receive call.
27] We have discussed the evidence of all the
prosecution witnesses and also defence witness. Upon
careful perusal of the evidence of PW-4 and PW-5, and also
the Investigating Officer, there is no doubt that, the
incident had taken place on the relevant date. The
evidence of PW-1 i.e. Chanchal Jadhav would make it
abundantly clear that, she received the phone call and
caller told his name as Uttam Ovhal.
28] The trial Court has discussed in para 64 about
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the motive for commission of offence and upon
independent scrutiny of the evidence, we find that, the trial
Court has rightly held that, there was motive for
commission of the alleged offence.
29] It is true that, the Medical Officer and also the
complainant have given some admissions during their cross
examinations, which would certainly help the defence.
However, if the evidence of the prosecution witnesses read
in its entirety and in particular the evidence of PW-4, PW-5
and the Medical Officer, it is abundantly clear that, the
incident had taken place.
30] So far offence under Section 395 is concerned,
the trial Court in para 76 of the Judgment has given cogent
reasons for acquitting the accused from the said offence,
and we do not see any reason to interfere in the said
findings, since those are in consonance with the evidence
brought on record, and in particular the evidence of the
Investigation Officer.
31] For the above reasons, we find that no fault can
be found with the conviction imposed by the trial Court on
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the accused persons. This takes us to the sentence passed
by the trial Court. The final order passed by the trial Court
reads as under :
ORDER
1) Accused nos.1 to 5, are
hereby convicted u/sec.235(2) of Cr.P.C. for
the offence punishable U/sec.147 of I.P.C.
and sentenced to undergo R.I. for (3)
months.
2) Accused nos.1 to 5 (are)
further convicted U/sec.235(2) of Cr.P.C. for
the offence punishable U/sec. 148 of I.P.C.
and sentenced to undergo R.I. for (3)
months.
3) Accused nos.1 to 5 (are)
further convicted U/sec.235(2) of Cr.P.C. for
the offence punishable U/sec.324 r/w 149 of
I.P.C. and each of them is sentenced to
undergo R.I. for (6) months and to pay fine
of Rs.2,000/- (Rs.Two thousand only) by
each, in default, undergo R.I. for one month.
4) Accused nos.1 to 5 (are)
further convicted U/sec. 235(2) of Cr.P.C. for
the offence punishable U/sec. 325 r/w 149 of
I.P.C. and each of them is sentenced to
undergo R.I. for (6) months and to pay fine
596.2011 Cri.Appeal.odt
of Rs.2,000/- (Rs. Two thousand only) by
each, in default, undergo R.I. for one month.
5) Accused nos.1 to 5 are
hereby acquitted U/sec. 235(1) of Cr.P.C. for
the offence punishable U/sec. 395 of I.P.C.
6) Instead of sentencing
accused nos.2 and 4 namely Santosh Vithal
Jadhav and Bharat Marotirao Baswant, they
be released on probation on executing a
bond of Rs.1,000/- by each with one surety
in the like amount, to maintain good
behaviour for a period of one year, failing
which they will be called upon to receive the
sentence which has been imposed on them.
7) The substantive sentences
of imprisonment of accused nos.1, 3 and 5
shall run concurrently.
8) Accused nos.1 to 5 shall
surrender to their bail bonds.
9) Accused nos.1,3 and 5 are
entitled for set off, as per Section 428 of
Cr.P.C. for the period of detention, if any,
undergone by them, during investigation.
10) Out of the fine amount
deposited in this Court, 50% of the fine
596.2011 Cri.Appeal.odt
amount be paid to the complainant Uttam
s/o. Nanabhau Ovhal, towards
compensation, towards injury sustained by
him, U/sec. 357 of Cr.P.C., after appeal
period is over.."
It is clear that although the trial Court wanted
to release accused no.2 - Santosh s/o Vithal Jadhav and
accused no.4 - Bharat s/o Marotirao Baswant, aged about
20 and 19 years respectively, on probation, it passed order
of sentence including punishment of imprisonment as well
as fine as can be seen from paragraph nos.1 to 4 of the
order and passed contradictory order in paragraph no.6,
stating that instead of sentencing accused nos.2 and 4
they are to be released on probation. When the provisions
of Section 4 of the Probation of Offenders Act, 1958 are
perused it is quite clear that while invoking the provisions
of the Probation of Offenders Act under Section 4, it was
mandate of the law that "instead of sentencing" accused
"at once to any punishment" the Court was required to
direct that the accused be released on "entering into a
bond" with or without sureties and "to appear and receive
sentence when called upon during such period not
exceeding three years, as the Court may direct and in the
596.2011 Cri.Appeal.odt
meanwhile keep peace and be of good behaviour". In view
of Section 6 of the Probation of Offenders Act, there are
restrictions on imprisonment of offenders under 21 years of
age. We are not interfering with the application of
Offenders Act to accused nos.2 and 4, however, the order
suffered in simultaneous passing of the sentence of
imprisonment and fine. For these reasons, the sentence
imposed of imprisonment and fine as against accused no.2
- Santosh s/o Vitthal Jadhav and accused no.4 - Bharat s/o
Marotirao Baswant in above paragraph nos.1 to 4 of the
trial Court order is quashed and set aside.
32] We have to now consider the sentence passed
against the appellants in Criminal Appeal No.596/2011 i.e.
original accused Nos.1, 3 and 5. If the reasons recorded by
the trial Court are perused for not invoking the provisions of
the Probation of Offenders Act as regards these appellants
are seen, the trial Court reiterated facts of the offences
which had been committed and merely observed that as
these accused persons are "quite major", they are not
entitled to the benefit of Probation of Offenders Act. We do
not find that the trial Court recorded appropriate reasons
while not invoking the Probation of Offenders Act. Criminal
596.2011 Cri.Appeal.odt
Manual issued by the High Court in Chapter XI paragraph 4
has given guidelines under the Probation of Offenders Act
as under :-
"4. The Act lays down three
distinctive methods of treatment for different
classes of offenders :-
ig (a) Section 3 deals exclusively
with first offenders, who are convicted of an
offence punishable with not more than two
years' imprisonment. It provides for release
of such offenders after due admonition. This
method of treatment is likely to be effective
only for a small number of offenders, as it
provides neither for bonds nor sureties and
merely sends the offender back, without any
constructive help, to live in the same
conditions, in which he lived when he
committed the offence.
(b) Section 4 (1) provides for
release on probation. It lays down that the
offender should enter into a bond and he may
also be required to give sureties. It would
normally be advisable to take sureties in
addition to personal bonds, as sureties are
themselves a guarantee of some efforts
towards reform and a safeguard against the
596.2011 Cri.Appeal.odt
offender removing himself outside the
jurisdiction of the Court and breaking the
conditions of the bond entered into by him.
(c) Section 4 (2) provides for
release under the supervision of a Probation
Officer. This is the most constructive type of
treatment. Experience has proved that
offenders are far more likely to make good,
when ig placed under the guidance of a
Probation Officer. It is, therefore, advisable
that even in the case of first offenders, they
should be dealt with under Section 4(2) in
preference to discharge after admonition
under Section 3.
(d) Under Section 4(3), the
Court has power, while making a supervision
order, to direct additional conditions to be
inserted in the bond to be entered into by the
offender under Section 4(1), and in doing so
the Court must have regard to the particular
circumstances of each individual case.
The terms and conditions of the
supervision order shall be explained to the
offenders and one copy of the supervision
order shall be furnished forthwith to each of
the offenders, the sureties, if any, and the
Probation Officer concerned. The form of
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supervision order has been prescribed under
the Rules made under the Act.
(e) In suitable cases, the
offender may be directed under Section 5 to
pay compensation and cost of proceedings to
the person to whom loss or injury has been
caused.
ig (f) During the period of his
probation, the offender has to keep away
from crime and maintain good behaviour. If
he fails to do so, he may be sentenced for the
offence of which he was convicted, or on such
first time failure, a penalty of fine not
exceeding fifty rupees may be imposed upon
him under Section 9 (3) of the Act.
(g) According to the mandatory
provision of Section 6, when any person
under 21 years of age is found guilty of an
offence punishable with imprisonment (not
for life), before passing any order of sentence
of imprisonment, the Court shall call for a
report from the District Probation Officer,
consider such report, if any, and then record
its reasons and pass such order to sentence
of imprisonment (except for life), as it deems
fit in the circumstances of the case."
596.2011 Cri.Appeal.odt
33] Keeping in view these guidelines as well as the
provisions of the Probation of Offenders Act, being major is
not a disqualification for consideration under the Probation
of Offenders Act. If the person has not been found guilty of
the offence punishable with death or imprisonment for life,
the provisions of the Act need to be considered, specially
when the accused is first time offender. The facts of the
case, social background and personal factors of the
accused are relevant. Under the proviso to Sub Section 1
of Section 4 of the Probation of Offenders Act, the Court is
required to ascertain whether the accused has a fixed place
of abode or regular occupation. Sub Section 2 of Section 4
lays down that the Court "shall" take into consideration the
report, if any, of the probation officer concerned in relation
to the case. Thus, calling of the report of probation officer is
necessary while considering the provisions of the Probation
of Offenders Act, 1958. In the present matter, the judgment
of the trial Court does not show that it called for the report
of probation officer.
34] Even for accused nos.2 and 4, the Court should
have called the report before invoking Section 6 of the
Probation of Offenders Act. We have however refrained
596.2011 Cri.Appeal.odt
from interfering with that part of the order of the trial Court,
keeping in view the fact that the offence is old one and the
period specified for the probation is also over.
35] We have called the report of the probation
officer as regards to the accused in Criminal Appeal No.
596/2011. The pre-sentence reports under Rule 17 of the
Maharashtra Probation of Offenders Rule, 1966 have been
received. We have now gone through those reports, as
regards appellant no.2 - Laxman s/o Marotirao Baswant and
appellant no.3 - Raju s/o Mohanrao Tak. The reports are
positive and show that these appellants-accused are
residents of Bahirwadi, Taluka and District Beed and
Jawheri Lane at Beed and having families. The reports show
that these two appellants are first time accused. There are
no earlier other cases against them. The probation officer
has recommended that they should be dealt with under
Section 4 (1) of the Probation of Offenders Act. Looking to
the facts of the present matter, the offences which are
proved against these accused, their family background and
the fact that they are first time offenders, we find even
these appellant nos.2 and 3, original accused nos.3 and 4
deserve to be dealt with under the Probation of Offenders
596.2011 Cri.Appeal.odt
Act. In addition to bond, they should be made to pay
compensation under Section 5 of the Act.
36] As regards appellant no.1 - Bapu s/o Vithalrao
Jadhav, the report of the probation officer shows that
against him there were four earlier offences registered
regarding which he has faced trials. The offences were
under Sections 326, 504, 324, 323, 506 and also Section
354 of Indian Penal Code. There was a case under Section
135 of the Bombay Police Act which came to be closed. The
report shows that in the IPC offences with which the
accused was charged, in three matters the accused has
been released.
37] No doubt the probation officer has mentioned
that there is no earlier conviction against this appellant
accused no.1 Bapu and for him also recommended that he
may be dealt with under Section 4 (1) of the Probation of
Offenders Act. However, looking to the fact that this
accused had four earlier prosecutions against him out of
which in three of the matters, there were criminal offences
involving physical hurt, it appears that repeated filing of
criminal cases has not deterred this accused from involving
596.2011 Cri.Appeal.odt
himself in further crimes of physical assault. Probably he
has developed an impression that nothing ultimately
happens. Looking to the facts of the present matter where
this accused no.1 led others from the front when he
stopped the complainant asking him how much money he
wants and why he had gone to his house and then attacked
the complainant causing grievous hurt, we do not find that
this appellant/accused no.1 Bapu s/o Vithalrao Jadhav
deserves to be dealt with under the Probation of Offenders
Act.
For the above reasons, we pass the following
order.
A] Criminal Appeal No.596/2011 is rejected as far
as regards appellant no.1 - Bapu s/o Vithalrao Jadhav is
concerned. Bail bonds of this accused are cancelled. He
shall surrender forthwith. The trial Court shall ensure that
the sentence as passed against him is executed forthwith.
B] Criminal Appeal No.596/2011 as regards
appellant no.2 - Laxman s/o Marotirao Baswant and
appellant no.3 - Raju s/o Mohanrao Tak (original accused
nos.3 and 5 respectively) is partly allowed. The sentence of
596.2011 Cri.Appeal.odt
imprisonment and fine as imposed by the trial Court against
these appellants is quashed and set aside. The conviction
of these accused under Sections 147, 148, 324 read with
149 and under Section 325 read with 149 of Indian Penal
Code is maintained. However, instead of sentencing them
immediately to any punishment, it is directed that they
shall be released on depositing compensation of
Rs.25,000/- (Rupees Twenty Five Thousand Only) each
under Section 5 and on their entering into bond under
Section 4 (1) of the Probation of Offenders Act, 1958, with
one surety each, to appear and receive sentence when
called upon, during the period of one year next, and in the
meantime, keep peace and be of good behaviour. The bond
shall be executed before the trial Court within a period of
15 days from the date of this judgment and order. Till then
the bail bonds of these appellants shall remain valid. In
addition, supervision order under Section 4 (3) shall also be
issued and the appellant no.2 - Laxman s/o Marotirao
Baswant and appellant no.3 - Raju s/o Mohanrao Tak
(accused nos.3 and 5) shall remain under the supervision of
the probation officer to be named by the trial Court for a
period of one year. The appellant nos.2 and 3 shall also
enter into a bond with one surety each under Section 4 (4)
596.2011 Cri.Appeal.odt
of the Probation of Offenders Act, 1958 and observe the
conditions of the bond and shall not involve themselves in
any criminal offence.
The amount of compensation directed shall be
deposited in trial Court. The fine if paid earlier by these
accused Nos.3 and 5, be adjusted in the compensation
amount to be deposited. The amount of compensation, on
deposit shall be paid to complainant Uttam Rambhau Oval.
The trial Court shall secure the presence of appellant nos.2
and 3 for compliance of these orders and shall explain the
terms and conditions of the orders and bonds to be
executed. The appellant nos.2 and 3 shall appear before
the trial Court on 5th October, 2015.
C] Criminal Appeal No.437/2014 stands dismissed
for the reasons assigned in para 30 of the Judgment.
Sd/- Sd/-
[A.I.S.CHEEMA, J.] [S.S. SHINDE, J.]
DDC
