State Of ... vs Kamlakar S/O Dajiba Bhure And 3 ...
2017 Latest Caselaw 1357 Bom

apeal.554.02.jud                    1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR

                    CRIMINAL APPEAL NO.554 OF 2002


State of Maharashtra,
through Police Station Officer,
Police Station, Girad,
District Wardha.                                            .... Appellant

       -- Versus -

1]     Kamlakar s/o Dajiba Bhure,
       Aged about 22 years,
       R/o Hiwara, Tahsil Samudrapur,
       District Wardha.

2]     Damodhar s/o Kisanrao Dekate,
       Aged 27 years.

3]     Laxman s/o Vithalrao Domewale,
       Aged 21 years.

4]     Bhaskar s/o Govindrao Domewale
       Aged 21 years.

       Res. No.2 to 4 r/o Sirshi,
       Tahsil Samudrapur, District Wardha.             .... Respondents

                    CRIMINAL APPEAL NO.560 OF 2002


State of Maharashtra,
through Police Station Officer,
Police Station, Girad,
District Wardha.                                            .... Appellant

       -- Versus -



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 apeal.554.02.jud                            2


1]     Kamlakar s/o Dajiba Bhure,
       Aged about 22 years,
       R/o Hiwara, Tahsil Samudrapur,
       District Wardha.

2]     Damodhar s/o Kisanrao Dekate,
       Aged 27 years.

3]     Laxman s/o Vithalrao Domewale,
       Aged 21 years.

4]     Bhaskar s/o Govindrao Domewale
       Aged 21 years.

       Res. No.2 to 4 r/o Sirshi,
       Tahsil Samudrapur, District Wardha.                     .... Respondents
                            -------------
Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
Shri R.B. Gaikwad, Advocate for the Respondents.
                            -------------


                CORAM           : KUM. INDIRA JAIN, JJ.

                DATE            : 31st MARCH, 2017.


ORAL JUDGMENT :-

Both these appeals arise out of judgment and order

dated 28/06/2002 passed by the learned Ad hoc Additional

Sessions Judge, Wardha in Special Case No.4/1996. By the said

judgment and order, accused have been convicted of the offence

punishable under Section 324 read with Section 34 of the Indian

Penal Code and sentenced to suffer till rising of the Court with

fine of Rs.300/- each, in default to suffer rigorous imprisonment

for 30 days. The accused were, however, acquitted of the

offences punishable under Sections 342, 504 and 506 of the

Indian Penal Code and Section 3(i)(x) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as 'the Atrocities Act' for short).

02] Being aggrieved by judgment and order of acquittal of

accused under Sections 342 and 506 of the Indian Penal Code,

State has preferred Criminal Appeal No.554/2002. Criminal

Appeal No.560/2002 is also filed by the State for enhancement of

sentence under Section 324 of the Indian Penal Code.

03] Prosecution case, as can be revealed from the charge-

sheet and connecting papers thereto, may be stated in brief as

under :

(i) Complainant Nana Jayram Irpate [PW-4] was residing

at Hiwara-Hiwari, District Nagpur since 1991-92 along

with his wife and children in the house of his mother-

in-law Shewantabai Parchake. Before two months of

the incident, he shifted to his permanent place of

residence.

(ii) Incident occurred on 13/04/1995 between 02:00 p.m.

and 02:30 p.m. Complainant Nana had been to

village Hiwara to meet his mother-in-law Shewantabai

Parchake. As his mother-in-law was not available, he

went to the field of Haribhau Ukre. According to the

prosecution, accused entered in the field of Haribhau

Ukre. They started abusing complainant Nana on his

caste. Accused Kamlakar was alleging that Nana used

to tease his niece and hurled abuses on that count.

Accused then lifted Nana and took him to the field of

Devendra Wandile. Accused tied hands and legs of

Nana, started beating him by means of a wooden

stick (Ubhari), fist and kick blows. Nana sustained

multiple injuries to his legs, hands, chest and finger.

Accused after assault, untied Nana and threw him

away on Dhura of one Ramchandra Kumbhare and

also threatened to kill the complainant.

(iii) On 14/04/1995, Nana went to Police Station, Girad

and lodged report. Crime No.21/1995 came to be

registered against the accused. Injured was referred

to Primary Health Center, Girad. Investigation was

taken over by PSI Hake. Investigating Officer visited

the place of occurrence and recorded spot-

panchnama. Wooden stick lying on the spot was

seized in the presence of panch-witnesses.

Statements of witnesses were recorded. On

completing investigation, charge-sheet was submitted

to the Court.

04] Charge of alleged offence was explained to accused

vide Exh.19. They pleaded not guilty and claimed to be tried.

Their defence was of total denial and false implication. It

appears from the line of cross-examination that accused raised

specific defence and submitted that complainant-Nana used to

tease niece of accused Kamlakar and on that count Kamlakar has

scolded Nana prior to the incident. Being annoyed with the

same, Nana falsely implicated the accused.

05] To substantiate the alleged guilt of accused,

prosecution examined in all seven witnesses. Considering the

evidence of prosecution witnesses and submissions made on

behalf of the parties, trial Court came to the conclusion that

offence under Section 324 read with Section 34 of the Indian

Penal Code has been made out against the accused and to that

extent, prosecution succeeded. So far as other offences are

concerned, including offences under the Atrocities Act, trial Court

negatived the charge and acquitted the accused. Being

dissatisfied with the order of sentence awarded for the offence

under Section 324 read with Section 34 of the Indian Penal Code

and acquittal of the accused for the offences under Sections 342

and 506 of the Indian Penal Code, State has come up in these

appeals.

06] Heard Shri I.J. Damle, learned Additional Public

Prosecutor for State and Shri R.B. Gaikwad, learned Counsel for

respondents. Perused reasonings recorded by the trial Court.

On meticulous examination of evidence of the injured, eye

witnesses and Medical Officer, this Court for below mentioned

reasons finds that accused has been rightly acquitted of the

offences punishable under Sections 342 and 506 of the Indian

Penal Code. The grievance regarding inadequate sentence for

the offence punishable under Section 324 read with Section 34

of the Indian Penal Code is also not sustainable in the eyes of

law.

07] PW-4 Nana Irpate is injured-cum-complainant and a

star witness for the prosecution. He states that on the day of

incident, he had been to the house of his mother-in-law

Shewantabai Parchake. She was not found and, therefore, he

went to the field of Haribhau Ukre. He stated that accused

persons entered the field, caught hold him and forcibly took him

to the adjoining field of one Devendra Wandile. He also states

that in the field of Devendra Wandile, accused tied his hands and

legs by means of a rope and accused Kamlakar dealt blows with

wooden stick (Ubhari) and other persons beat him by fist and

kick blows. He stated that he was let free by the accused.

Thereafter, having realized that he may die, accused persons left

the spot. On the next day, he lodged report. He identifies the

stick used by the accused in the assault.

08] The evidence of injured Nana is corroborated by eye-

witnesses PW-2 Pandhari Botre and PW-3 Rahul Walke. On

assault, PW-2 Pandhari stated that all the four accused persons

reached in the field of Ukre, lifted Nana, took him to another field

belonging to one Devendra Wandile and beat him. The evidence

of PW-3 Rahul is also on the same line. PW-5 Dr. Bhaurao Umate

is Medical Officer, who examined the injured and found injuries

on the hands and legs of the injured. Medical Officer opined that

injuries might have been caused by hard and blunt object.

Wooden stick has been seized from the spot. Though spot-panch

does not support the prosecution and Investigating Officer has

not been examined, there is no reason to disbelieve the

evidence of complainant Nana on the manner of incident and the

genesis of prosecution story given by him.

09] Regarding offences under Sections 342 and 506 of the

Indian Penal Code, no clinching and cogent evidence on wrongful

confinement and criminal intimidation is adduced. For want of

sufficient evidence, trial Court has rightly concluded that

offences under Sections 342 and 506 of the Indian Penal Code

were not proved beyond reasonable doubt against the accused.

On the basis of evidence, findings recorded by the trial Court

cannot be said to be unjust, improper or perverse. Considering

the parameters laid down for interference in appeal against

acquittal and well settled propositions of law in that regard, no

interference in the order of acquittal for the offences punishable

under Sections 342 and 506 of the Indian Penal Code is

warranted here.

10] So far as quantum of sentence for the offence

punishable under Section 324 read with Section 34 of the Indian

Penal Code is concerned, it is significant to note that incident

occurred in the year 1995. Trial commenced in 2001 and

concluded in 2002. Present appeals are being disposed of in the

year 2017. Mental stress which respondents had to carry over a

period of 22 years is not less than the stringent punishment

prescribed for the offence punishable under Section 324 of the

Indian Penal Code. Respondents have no criminal background.

The reports show that their past antecedents are clean and clear.

Considering the nature of offence, manner of incident, past

antecedents of respondents and the period of around 22 years

for which litigation had to travel this Court does not find that the

quantum of sentence can be termed as inadequate or

insufficient.

11] In the above premise, both the appeals are found

without substance and merits. Hence, the following order:

ORDER

 Criminal Appeal Nos.554/2002 and 560/2002 are dismissed

with no order as to costs.

(Kum. Indira Jain, J.) *sdw