Bombay High Court
Kishan Masaji Sakhare vs State Of Maha & Ors on 20 July, 2016
Bench: V.K. Jadhav
1 Cri Revn 400.2003.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 400 OF 2003
Kishan s/o Masaji Sakhare,
age major, Occ. Labourer,
R/o Puini (Khd), Tq. Basmath,
Dist. Hingoli. ..Rev. Petitioner..
(orig complainant)
VERSUS
1. The State of Maharashtra,
[Copy served on P P High Court,
of Judicature of Bombay
Bench at Aurangabad.]
2. Balaji s/o Bhikaji Kadam,
age 29 yrs.
3. Ashok s/o Limbaji Kadam,
age 29 yrs.
4. Pandit s/o Sambhaji Kadam,
age 34 yrs.
5. Bhikaji s/o Dajiba Kadam,
age 34 yrs.
6. Namdeo s/o Shripati Kadam,
age 54 yrs.
7. Devidas s/o Limbaji Kadam,
age 29 yrs.
8. Maroti s/o Piraji Kadam,
age 36 yrs
9. Ganesh s/o Vitthal Kadam,
age 34 yrs.
10. Gopal s/o Venkoji Kadam,
age 32 yrs.
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2 Cri Revn 400.2003.odt
11. Sudam s/o Ganpati Kadam,
age 22 yrs.
All R/o Parwa, Tq. Basmath,
Dist. Hingoli.
12. Datta s/o Sakharam Chopade,
age 42 yrs.
13. Subhash s/o Jairam Chopade,
age 39 yrs.
Both R/o Puini (Kd), Tq. Basmath,
District Hingoli. ..Respondents..
ig ...
Advocate for Applicant : Mr V D Patnoorkar
APP for Respondents: Mr C V Dharurkar
Advocate for Respondents 2-7, 9-13 : Mr S P Katneshwarkar
...
CORAM : V.K. JADHAV, J.
Dated: July 20, 2016
...
ORAL JUDGMENT :-
1. Heard learned counsel for the revision petitioner and
the learned counsel appearing for the respondents/original
accused. I have also heard the learned APP for the
respondent State.
2. Revision petitioner is the original complainant. On the
basis of his complaint, crime came to be registered in the
concerned police station for the offences punishable u/s 147,
148, 149, 504, 506 r/w 34 of Indian Penal Code and also u/s
3 (1) (x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and also under section
3 Cri Revn 400.2003.odt
7(1)(d) of the protection of Civil Rights Act. All
respondents/original accused came to be tried by the
Additional Sessions Judge, and Special Judge (Under
Atrocities Act), Parbhani vide Special Case No.83/1994. The
learned Additional Sessions Judge, Parbhani, by judgment
and order dated 10.9.1998, acquitted all the accused persons
for the offences punishable under sections 147, 148, 149,
323, 506 read with section 34 of the Indian Penal Code and
also under section 3(1) (x) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities Act), 1989 and also
under section 7(1) (d) of the protection of Civil Rights Act.
Being aggrieved by the same, original complainant has
preferred this Criminal Revision Application against order of
acquittal.
3. The learned counsel for the revision applicant submits
that, the learned Additional Sessions Judge, in paragraph
no.20 of the judgment, has accepted that all the witnesses
have stated utterances of the accused which amount to
abuse on the basis of caste. Admittedly, all the accused are
belonging to community 'Maratha', whereas all the eye
witnesses are belonging to a community "Nav-Boudha".
Learned counsel submits that, prosecution has succeeded in
proving charge u/s 3 (1) (x) of the Scheduled Castes and
4 Cri Revn 400.2003.odt
Scheduled Tribes (Prevention of Atrocities) Act against
respondents/original accused. Learned counsel submits
that, in paragraph no.18 of the judgment, learned Additional
Sessions Judge, Parbhani has also observed that the
witnesses have sustained injuries, however, they have not
sustained any grievous injury. Learned counsel submits
that, in the backdrop of these observations, the Additional
Sessions Judge ought to have convicted all the accused for
the charges levelled against them. However, the learned
Additional Sessions Judge, Parbhani, by its impugned
judgment and order dated 10.9.1998, acquitted all the
accused. Learned counsel submits that, the order passed by
the Additional Sessions Judge in Special Case No.83/1994 is
liable to be quashed and set aside and respondents/original
accused are liable to be convicted for the charges levelled and
proved against them.
4. Learned counsel for respondents/original accused
submits that, the learned Additional Sessions Judge has
accepted the utterances of the accused, which amount to
abuse on the basis of caste, however, further observed in the
same paragraph that, in the evidence of eye witnesses, false-
hood might have been mixed to aggravate the offence against
the accused. In the same paragraph, learned Additional
5 Cri Revn 400.2003.odt
Sessions Judge has concluded points by observing that as
far as actual utterances at the relevant time, the same has
not been proved beyond reasonable doubt. Learned counsel
submits that, there is an element of exaggeration at the time
of lodging of the report and incident took place because of an
attempt of encroachment alone. Learned counsel submits
that, the Additional Sessions Judge, Parbhani has, thus,
rightly given benefit of doubt to the respondents/accused.
Learned counsel submits that, so far as injuries sustained
by witnesses is concerned, learned Additional Sessions
Judge has rightly observed in paragraph No.18 of the
Judgment that, there is an attempt on the part of the
prosecution witnesses to convert Gayran land into
agricultural land. Learned counsel submits that, if the
villagers have right to graze their cattle in common grazing
ground, and if any person prevents such activities, aggrieved
person has right to exercise private defence. None of the
prosecution witnesses have sustained grievous injury. The
learned Additional Sessions Judge, Parbhani, has, therefore
observed that, even if it is concluded that accused did use
force, it appears that they used force within the degree
wherein the right of private defence is allowed to be
exercised. Learned counsel submits that Additional Sessions
Judge has rightly observed that the respondents/accused
6 Cri Revn 400.2003.odt
have not exceeded the right of private defence. Learned
counsel submits that, learned Additional Sessions Judge has
thus rightly given benefit of doubt to all the accused and
accordingly acquitted them.
5. I have also heard learned APP for the State.
6. So far as allegations about abuses given to the
prosecution witnesses on caste basis are concerned, it
appears that, alleged incident had taken place on account of
an attempt of encroachment over the Gayran land. It is
thus, unlikely on the part of respondents/original accused to
make utterances which amount to abuse on the basis of
caste. The learned Additional Sessions Judge has rightly
observed that there was element of exaggeration in the
evidence of prosecution witnesses.
7. On the day of incident, at about 10.00 am, all the
prosecution witnesses entered into the cattle field and
started digging operations so that they could cultivate the
said land. Accused are the adjoining land owners. They
were grazing their cattle in the said Gayran since many
years. Even though accused have not raised a specific
private defence, however, the same can be considered while
7 Cri Revn 400.2003.odt
appreciating the prosecution evidence. On the day of
incident, if there was an attempt on the part of the
prosecution witnesses to convert Gayran land into
agricultural land, adjoining land holders have every right to
prevent them from converting said Gayran land into
agricultural land illegally. Learned Judge of the Trial Court
is right in saying that even though the accused used force,
they have used said force within the degree wherein right of
private defence is allowed to be exercised. None of the
prosecution witnesses sustained grievous injuries as such.
In that way, accused have not exceeded their right to private
defence.
8. In view of the above, I do not find any fault in the
impugned Judgment and order of acquittal passed by the
learned Additional Sessions Judge, Parbhani in Special Case
No.83/1994. No interference is called for. Criminal Revision
Application is hereby dismissed.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
