Rameshwar S/O Gomaji Bhiogade vs State Of Maharashtra, Thr. Pso
2018 Latest Caselaw 588 Bom

 apeal43.12.J.odt                          1




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

                       CRIMINAL APPEAL  N
                                          O
                                             .43 O
                                                   F 2012
                                                         

          Rameshwar s/o Gomaji Bhiogade
          Aged 71 years, Occ: Pensioner,
          R/o Kasturba Gandhi Ward,
          Bhandara, Tah. & Dist. Bhandara.                   ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra through
          P.S.O., Bhandara.                                  ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri N.S. Khandewale, Advocate for Appellant.
          Shri H.R. Dhumale, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

DATE OF RESERVING THE JUDGMENT : 11.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 18.01.2018

1] The appellant Rameshwar Bhiogade is assailing the

judgment and order dated 18.01.2012 passed by the Special

Judge, Bhandara in Special Criminal Case 5/2010, by and under

which, the appellant is convicted for offence punishable under

section 323 of the Indian Penal Code and is sentenced to suffer

simple imprisonment for two months and to payment of fine of

Rs.1000/-. The appellant faced trial along with one Umesh Padole

for offences punishable under section 323, 504 and 506 of the

Indian Penal Code and section 3(1)(x) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The co-accused is acquitted of all offences and the appellant

(hereinafter referred to as "the accused") is convicted as

aforestated.

2] The case of the prosecution is that on 24.04.2010 at

09:00 a.m. the accused abused the complainant Siddarth

Meshram, a member of Scheduled Caste, by uttering the words

"Sale, Mahare, Too Mukhyaddhyapak Ki Khurchi Pe Kaise Baithta

Hai Main Dekhta Hoon" with the intention of insulting and

humiliating the complainant in public view. The accused also

caused hurt to the complainant.

3] The genesis of the prosecution case lies in Exh.18

which is oral report lodged by the complainant Siddarth Meshram

on 24.04.2010. The gist of the oral report is that the complainant

is in-charge Head Master of Modern High School and Junior

College, Satona, Tahsil Mohadi, District Bhandara. At 09:00 a.m.

on 24.04.2010 the accused and one Umesh Padole came to his

office and demanded attendance register of teachers.

The complainant told them that the register cannot be given

without the permission of the President. The accused forcibly

removed the register from the almirah, the complainant requested

the accused not to touch the register and in response the accused

threatened, pushed and shoved the complainant. The complainant

hurled castiest abuses with the intention of humiliating the

complainant. The report makes reference to several persons who

were present in the office of the complainant when the incident

occurred.

4] The complainant who is examined as P.W.1 describes

the accused as Secretary of the institution and the acquitted

co-accused as the dismissed Head Master. P.W.1, after deposing

that the accused demanded the register states that the accused

pushed him and asserted him on back with elbow. The deposition

is that accused hurt castiest abuses and issued threat. P.W.1 has

proved the oral report Exh.18.

P.W.1 is subjected to lengthy and gruelling

cross-examination in which it is extracted that nobody gave charge

of the post of Head Master to the complainant. He admits that the

order of the Education Officer conferring administrative power on

the complainant is cancelled. He admits he did not have the

authority to carry on banking transaction. P.W.1 further admits that

he withdrew Rs.12,000/- from the Co-operative Bank and no entry

of the said amount was taken in the cash book. P.W.1 admits that

he did not give account of the said withdrawal to anybody.

He admits that he gave the account of the said amount to the

school only on 13.06.2011. He admits that when he gave the

account he was not the Head Master of the school. The rest of the

cross-examination is substantially directed to bring on record the

factional feud in the administration of the school. The endevaour

of the defence was to demonstrate that while there was indeed a

verbal altercation, the accused is falsely implicated by P.W.1 at the

instance of the rival group. The witness is also suggested that since

the accused intended to prosecute the witness under section 406

of IPC, the report was lodged as a counter blast.

5] P.W.2 Mahadeo Sidam is the Police Officer who

registered Crime 52/2010 on the basis of oral report. He has

proved the printed F.I.R. Exh.20.

6] P.W.3 Baban Nikhare is examined as an eye witness.

He has deposed that there was an altercation between the

complainant and the accused in view of the refusal of the

complainant to make available the record demanded by the

accused. P.W.3 states that the accused gave an elbow blow on the

neck of the complainant. P.W.3 admits that complainant was not

allowing the accused to fix the seal to the almirah and a verbal

altercation ensued. He admits that while fixing the seal the

complainant caught hold of the hand of accused and there was a

scuffle.

7] P.W.4 Indira Bandebuche has deposed that there was

an altercation between the complainant and the accused since the

complainant refused to make available the record. P.W.4 was

declared hostile. In the cross-examination on behalf of the learned

A.P.P. P.W.4 admits that accused was pushing the complainant.

8] P.W.5 Anil Raut did not support the prosecution in

entirety and was declared hostile.

9] P.W.6 Rameshwar Hatwar, witness to the spot

panchnama did not support the prosecution, was declared hostile

and cross examined by the learned A.P.P. His evidence is however,

of scant relevance.

10] P.W.7 Sanjay Gabhane has deposed that there was an

altercation, the complainant was abused and the accused also

inflicted an elbow blow on the neck of the complainant.

11] P.W.8 Bhagawan Sakure has deposed that there was an

altercation of words between the complainant and the accused

and in the scuffle, the elbow of the accused hit the complainant.

12] P.W.9 Dilip Chacherkar has obviously exaggerated and

has deposed that the accused not only gave an elbow blow to the

complainant but also inflicted two slaps.

13] P.W.10 Dilip Bhimate has deposed that there was an

altercation, that abuses were hurled and the accused inflicted

elbow blow on the person of the complainant.

14] P.W.11 Dr. Suhas Gajbhiye who examined the

complainant states that he did not notice any obvious evidence of

injury.

15] P.W.12 Pankaj Dahane is the Investigating Officer.

16] With the assistance of the learned counsel for the

accused Shri Khandewale and the learned A.P.P. Shri Dhumale.

I have given anxious consideration to the evidence on record.

The evidence on record does establish beyond reasonable doubt

that there was indeed an altercation between the complainant and

the accused. The cause is also proved. It is also proved beyond

reasonable doubt that in the altercation the complainant received

an elbow blow. Prosecution witnesses are in unison in asserting

that the complainant received an elbow blow although there is a

variance as to the body part on which the elbow blow was

received. One of the prosecution witnesses (P.W.8) states in the

scuffle the elbow of the accused hit of the complainant.

The finding of the learned Sessions Judge that offence punishable

under section 323 of IPC is established does not suffer from any

serious infirmity. However, considering that the complainant did

not suffer any injury, that the incident occurred in the heat

generated due to the altercation which ensued because the

accused, who is the Secretary of the institution, demanded certain

record which the complainant who claims to be then the in-charge

Head Master refused to make available, that the incident occurred

more than seven years and eight months ago and the accused is

today aged 76 years, I am not inclined to uphold the sentence of

imprisonment.

17] In the result, I pass the following order:

[i] The conviction of the accused under section

323 of the I.P.C. is maintained. The sentence of

simple imprisonment for a period of two

months is set aside and the sentence of fine of

Rs.1000/- is maintained.

[ii] With this alteration in the sentence, the appeal

is partly allowed and disposed of.

JUDGE

NSN