Bombay High Court
Pradip @ Balu @ Dikya @ Shyam S/O ... vs State Of Maharashtra Thr. Pso. Mul on 18 July, 2017
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 389 OF 2001
Pradip alias Balu alias Dikya alias Shyam
S/o Narayan Meshram,
Aged about 26 years, Occ-Business,
R/o Kelzar, Tahsil-Mul,
District-Chandrapur. ..... APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Mul,
District-Chandrapur(M.S.) ...RESPONDENT
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Smt. Preeti Rane, Advocate with Smt.J.A.Malnas,Advocate for
appellant.
Shri R.S.Nayak,A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JULY 18,2017
ORAL JUDGMENT
Heard Smt. Preeti Rane, learned counsel with
Smt.J.A.Malnas,learned counsel for the appellant and Shri
R.S.Nayak, learned A.P.P. for State in extenso. With the assistance
of both the learned counsels I have gone through the record and
proceedings.
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2] The present appeal is directed against the judgment
and order of conviction passed by learned 1 st Ad-hoc Additional
Sessions Judge,Chandrapur, on 1/12/2001 in S.T.No.7/2001 by
which the Court below has convicted the appellant for the offence
punishable under Section 353 of the Indian Penal Code and is
directed to suffer R.I. for one year an to pay fine of Rs. 100/- and
in default of payment of fine he is directed to suffer further R.I. for
one month. He is also convicted for the offence punishable under
Sectin 332 of the Indian Penal Code and sentenced to suffer R.I.
for one year and to pay fine of Rs. 100/- and in default of payment
of fine to suffer further R.I. for one month.
3] A charge was framed by the Court below against the
appellant that on 13/10/2000 at about 18.00 hrs. at Mouza
Kelzar, he assaulted H.C.Shriram ,B.No.1305(PW1) when he was
discharging his duties as a public servant and also caused grievous
hurt to him. The Court below therefore framed charge against him
for the offence punishable under Sections 353 and 333 of the
Indian Penal Code. The appellant denied the charge and claimed
for his trial. In order to prove the charge the prosecution has
examined in all 8 witnesses.
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4] P.W.1 Shriram Sitaram Bharadkar lodged a report
(Exh.11) with P.S.Mul on 13/10/2000. As per the said report
dated 13/10/2000 he alongwith Rambhau Keshavrao Shende
(PW4) went on motorcycle in Chiroli bit conducting inquiry of
application and executing warrant. After conducting the inquiry in
application at Mouza- Telewahi they left at Kelzar for inquiry into
application. On reaching there in connection with the complaint
he recorded the statements of complainant Yadao Hiraman Nimjke
and non-applicant Babu Narayan Meshram and witnesses. At that
time, he noticed appellant against whom there was a arrest
warrant in Criminal Case No.2/1993 . He gave understanding to
him about the warrant in presence of police patil Shri Wasudeo
Bhauji Gauture(PW2). At that time there was altercation with the
appellant, first informant and Rambhau(PW4). There was a scuffle
amongst them and thereafter appellant ran away. During the
scuffle first informant received injuries on his knee and left
thumb.
5] H.C.Kawadu Budhaji Lade (PW8) registered the F.I.R.
The printed F.I.R. is at Exh.12. He thereafter sent Shriram
Bharadkar(PW1) for medical examination under memo (Exh.28).
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6] Dr.Dilip S/o Shamrao Kamble examined Shriram(PW1)
and issued medical certificate (Exh.29). After completion of
investigation chargesheet was filed.
7] In order to prove the charge under Section 353 of the
Indian Penal Code the prosecution is required to prove that there
was deterrence at the hands of the appellant to a public servant
while discharging his duties. According to evidence of
Shriram(PW1) and Rambhau(PW4) they had been to village for
execution of warrant. It was incumbent on the part of the
prosecution to prove that standing warrant which was issued
against the appellant and Shriram(PW1) and Rambhau(PW4)
were at village Kelzar to execute the said warrant. According to
evidence of Shriram (PW1) there was scuffle in between him,
Rambhau(PW4) and appellant. The learned Judge of the Court
below has noticed that though prosecution claims that injuries
suffered by the public servant were grievous in nature, however
the prosecution could not prove that the injuries were grievous.
However, looking to the medical certificate (Exh.29) the injuries
are noticed on the person of complainant and therefore in my view
the Court below has rightly recording the finding that the injuries
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were simple in nature.
8] The prosecution has not filed on record the copy of the
standing warrant which in my view goes to the root of the matter.
The learned A.P.P. also could not point out the said warrant. The
issuance of warrant against the appellant is not proved at all.
Therefore, the charge that the appellant has caused deterrence in
execution of warrant against him in my view is not fully proved.
9] The remand papers shows that appellant was arrested
on 28/11/2000 and he was released on bail on 12/1/2001. Thus,
for 1 and ½ month he was in jail.
10] Looking to the fact that Shriram(PW1) suffered simple
injuries and the fact that the prosecution could not prove the
execution of the standing warrant against appellant in my view,
the appeal needs to be partly allowed. Accordingly, I pass the
following order.
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ORDER
I) The appeal is partly allowed.
II) The conviction of the appellant for the offence
punishable under Section 353 of the Indian Penal Code
is hereby set aside.
III) The conviction of the appellant under Section 332 of
the Indian Penal Code is hereby upheld, however I
modified the order of sentence from one year jail
period to the period for which the appellant has
already undergone in jail.
IV) With this, appeal is partly allowed and disposed of.
JUDGE
puk
