Bhaurao S/O Sayaram Lade vs State Of ...
2017 Latest Caselaw 1301 Bom

 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

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

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

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

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

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

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

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

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