Rajendra Haribhau Tadaskar vs State Of Mah., Thr. Pso Ps Teosa ...
2021 Latest Caselaw 1606 Bom

                                         1               crappeal 500.20 & 438.19.odt



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


                              CRIMINAL APPEAL NO.500 OF 2020
                                             WITH

                              CRIMINAL APPEAL NO.438 OF 2019

CRIMINAL APPEAL NO. 500 OF 2020

State of Maharashtra,
(Through The Station Officer,
Police Station, Teosa),
Tq. Teosa, Dist. Amravati.                          . . . APPELLANT

                     ...V E R S U S..

1. Rajendra S/o Haribhau Tadaskar,
   Aged about 40 years, Occ. Labour,
2. Sau. Aruna W/o. Rajendra Tadaskar,
   Aged about 40 years, Occ. Labour,

3.   Ku. Sujata D/o Rajendra Tadaskar,
     Aged about 19 years, Occ. Labour,

     All R/o. Wani (Mamadapur),
     Tq. Teosa, Dist. Amravati.                     . . . RESPONDENTS
Mrs. Mayuri Deshmukh, APP for the appellant.
Shri R.J. Mirza, Advocate for the respondents.

                              WITH

CRIMINAL APPEAL NO. 438 OF 2019

 1. Rajendra Haribhau Tadaskar,
    Age : 40 years,
    Occupation : Labourer,

 2. Sujata Haribhau Tadaskar,
    Age : 19 years,
    Occupation : Labourer,
    Both r/o. Wani-Mamdapur,
    Taluka and District : Amravati.                 . . . APPELLANTS




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                                       2                 crappeal 500.20 & 438.19.odt


                  ...V E R S U S..

 The State of Maharashtra
 Through PSO of Police Station
 Teosa, District : Amravati.                       . . . RESPONDENT

   Shri R.J. Mirza, Advocate for the appellants.
   Mrs. Mayuri Deshmukh, APP for the respondent.

                               CORAM : Z. A. HAQ AND
                                          AMIT B. BORKAR, JJ.
                               DECIDED ON 25/01/2021.

    JUDGMENT (PER : AMIT B. BORKAR, J.) :

1. Since, both these appeals arise out of the same set of

facts and common judgment, we are disposing them by common

judgment.

2. The appellants in Criminal Appeal No.438 of 2019

challenge the judgment and the order dated 26.4.2019 passed by

the Additional Sessions Judge-2, Amravati, in Sessions Trial No.16

of 2013, whereby the appellants have been convicted and

sentenced in the manner stated hereinafter:

(i) The appellant no.1, under Section 325 of the Indian Penal Code to undergo imprisonment for the period of three years and to pay fine of rupees five thousand in default to suffer simple imprisonment for three months; and

(ii) The appellant no.2, under section 324 of

3 crappeal 500.20 & 438.19.odt

Indian Penal Code to undergo rigorous imprisonment for the period of one year and to pay fine of rupees five thousand, in default to undergo two months simple imprisonment.

3. The State of Maharashtra has filed Criminal Appeal

No.500 of 2020 challenging acquittal of the accused nos.1 to 3 of

offence punishable under Section 302 of the Indian Penal Code

and acquittal of the accused no.2 of offence under Section 324 of

the Indian Penal Code.

4. Shortly stated the prosecution case runs as under:

On 10th July 2012, the Informant Anil (PW 1) lodged

report alleging that the accused nos.1 to 3 are residing near his

house. There was dispute about immovable property between the

Informant - Anil (PW 1) and the accused. On 10 th July 2012 at

about 7.00 p.m. when Anil (PW 1) returned to his home, the wife

of the Informant was cooking and the mother and the children of

the Informant were watching television in the front room. The

father of the Informant, Sukhdeorao Bhagat was in the courtyard.

Yash (PW 3) informed Anil (PW 1) that the accused persons had

taken his grandfather on road by dragging and the accused no.2

was pushing him. When Anil (PW 1) came out of his house, at that

time, his father was on the road and his both hands were caught

4 crappeal 500.20 & 438.19.odt

by the accused nos.2 and 3. The accused no.1 was assaulting the

father of the Anil (PW 1) on his chest and abdomen by kicks and

fists blows blows. When Anil (PW 1) shouted and asked the

accused as to why they were assaulting his father, the accused

persons pushed the father of Anil (PW 1) Informant on road. It was

further alleged that when the Informant and his wife went near the

accused persons, at that time the accused no.3 threw chilly powder

into the eyes of the Informant and his wife. The persons from the

locality gathered at the spot of incident after hearing commotion

and brought the father of Anil (PW 1) to his house and kept on

bedstead. At that time, the father of Anil (PW 1) was not able to

talk and his movements were also stopped. It was declared that

the father of Anil (PW 1) died. Therefore, Anil (PW 1) lodged said

report against the accused persons.

5. On the basis of said report, Crime No.90 of 2012, under

Sections 302 and 324 read with Section 34 of the Indian Penal

Code came to be registered against the accused. Mohan Sugandhi,

A.P.I (PW 7) carried out investigation. Charge-sheet came to be

filed after completion of the investigation against the accused

persons.

6. Charges were framed under Sections 302 and 324 read

5 crappeal 500.20 & 438.19.odt

with Section 34 of the Indian Penal Code, which were read over

and explained to the accused in vernacular. The accused pleaded

not guilty and claimed to be tried. The defence of the accused was

of total denial and false implication.

7. The learned Trial Judge believed the evidence adduced

by the prosecution and convicted the accused nos.1 and 3 in the

manner, as stated above. The learned Trial Judge acquitted all the

accused of offence punishable under Section 302 of Indian Penal

Code and also acquitted the accused no.2 of offence under section

324 of Indian Penal Code. Hence, both these appeals.

8. We have heard the learned Advocate for accused and the

learned APP appearing for the state and perused the entire

material on record. In our view, Criminal Appeal No.500 of 2020

deserves to be partly allowed to the extent of convicting the

accused no.2 - appellant no.2 and Criminal Appeal No.438 of

2019 deserves to be dismissed.

9. Shri Raheel Mirza, learned Advocate appearing for the

convicts in Criminal Appeal no.438 of 2019, submitted that the

charge framed against the accused no.1 was under Section 324 of

the Indian Penal Code but, the accused no.1 was convicted of the

offence under Section 325 of the Indian Penal Code. He submitted

6 crappeal 500.20 & 438.19.odt

that the medical evidence is inconsistent with the testimonies of

the eye-witnesses. There is no medical evidence about throwing of

chilly powder by the accused nos.2 and 3. He further submitted

that there is no medical evidence regarding dragging of the

deceased by the accused. He further submitted that the learned

Trial Judge has rightly acquitted the accused no.2 and merely

because two views are possible, this Court may not interfere in the

acquittal of the accused no.2.

10. Ms. Mayuri Deshmukh, learned APP appearing for the

State, submitted that the accused no.1 has not suffered any

prejudice due to non-framing of the Charge under Section 325 of

the Indian Penal Code. She submitted that the Charge was framed

under Section 302 of the Indian Penal Code, which was major

charge than the Charge under Section 325 of the Indian Penal

Code and, therefore, there is no illegality in convicting the accused

no.1 of the offence punishable under Section 325 of the Indian

Penal Code. She submitted that the testimonies of all the three

eye-witnesses inspire confidence and, therefore, corroboration by

circumstantial evidence is not necessary to prove the Charge

against the accused. She submitted that insofar as the accused no.2

is concerned, the learned Trial Court has committed manifest

illegality by ignoring the material evidence of the eye-witnesses

7 crappeal 500.20 & 438.19.odt

specifically stating the role of the accused no.2 in dragging the

deceased. She submitted that the learned Trial Judge has

committed manifest error in not convicting all the accused for the

offence under Section 302 of the Indian Penal Code.

11. Three eye-witnesses Anil (PW 1), Yash (PW 3) and

Savita (PW 4 Savita) were examined by the prosecution. All three

eye-witnesses i.e. Anil (PW 1), Yash (PW 3) and Savita (PW 4)

gave evidence in respect of the assault on the deceased. In short,

Anil (PW 1), Yash (PW 3) and Savita (PW 4) stated that the

accused nos.2 and 3 caught hold of the deceased and the accused

no.1 assaulted the deceased by fists and kicks. Thus, the evidence

of Anil (PW 1) and Yash (PW 3) is consistent on the point of

assault on the deceased.

12. The evidence of Anil (PW 1) and Yash (PW 3) shows that

the accused no.1 assaulted the deceased with fists and kicks blows

with the result, the deceased sustained injuries and died. But, it

appears that the wife of the Informant - Savita (PW 4) deposed

that her father-in-law fell down on the road due to assault;

whereas Yash (PW 3) improved his version by deposing that the

accused pushed his grandfather. This material improvement on the

part of Yash (PW 3) - the son of the Informant has been duly

proved by the Investigating Officer (PW 7), which creates doubt

8 crappeal 500.20 & 438.19.odt

about pushing of the deceased by the accused no.1. Thus, on the

point of pushing of the deceased by the accused persons, the

evidence of Anil (PW 1), Yash (PW 3) and Savita (PW 4) is not

consistent. The Trial Court has rightly disbelieved their evidence

on the point of pushing of the deceased by the accused no.1.

13. There is no evidence brought on record by the

prosecution that the accused persons pushed the deceased on the

road. Savita (PW 4)the wife of the informant admitted that on the

day of incident, there was rainfall. Under these circumstances, the

trial court is justified in granting benefit of doubt to the accused

persons that the deceased might have fallen on the ground and

sustained brain injury due to road having become slippery.

Therefore, we are of the view that the acquittal of the accused

under Section 302 of the Indian Penal Code need not be interfered

with, as the finding of the Trial Court on the point of the acquittal

of the accused under Section 302 of the Indian Penal Code is a

possible view.

14. Insofar as the act of assault on the deceased by the

accused no.1 by fists and kicks blows is concerned, the evidence of

Anil (PW 1) and Yash (PW 3) is consistent that the accused no.1

had assaulted the deceased, which resulted into linear fracture of

length of 5 cms. in oblique direction on right occipital region of

9 crappeal 500.20 & 438.19.odt

skull. Therefore, the Trial Court is fully justified in holding that the

accused no.1 is guilty of voluntarily causing grievous hurt to the

deceased Sukhdeorao.

15. The Trial Court has convicted and sentenced the accused

no. 1 of offence under Section 325 of the Indian Penal Code . It

needs to be noted that the Trial Court had framed following two

charges:

"Firstly -That you on 10.07.2012 at about 7.15 p.m. at village Wani (Mamdapur), Tq. Tiwaa, Dist. Amravati, within the jurisdiction of Police Station, Tiwasa, in furtherance of your common intention, committed murder by intentionally and knowingly caused the death of Sukhdeorao Bhiwaji Bhagat, aged about 60 years, R/o. Wani, and thereby committed an offence punishable under Section 302 r/w 34 of the Indian Penal Code, and within my cognizance.

SECONDLY : That you on the aforesaid date, time and place, in furtherance of your common intention, voluntarily caused hurt to Anil Sukhdeorao Bhagat, aged about 40 years and Sau. Savita Anil Bhagat, aged about 30 years, both R/o.Wani, by throwing chilly powder in their eyes, and thereby committed an offence punishable under Section 324 r/w 34 of the Indian Penal Code, and within my cognizance."

16. The Charge, which was framed against the accused

persons and, in particular, the accused no.1 was for offence under

10 crappeal 500.20 & 438.19.odt

Section 302 of the Indian Penal Code, which is for major offence,

therefore the conviction of accused no. 1 of minor offence under

Section 325 of the Indian Penal Code, cannot be faulted. The

expression "minor offence" occurring in subsections (1) and (2) to

section 222 has not been defined either in this section , or

anywhere else in the Code. It is, however, well settled that the

gravity of punishment is not the test to decide whether a particular

offence is said to be a major or minor offence. The Minor offence

certainly does not mean an offence for which a lesser punishment

has been prescribed. The section does not refer to the gravity of

punishment at all, and as such, to determine what constitutes a

"minor offence" within the meaning of Section 222 , one must

examine the wordings of sub-sections (1) and (2) thereof. It is

because an offence can be treated as "minor" within the meaning

of the said section with reference to the "main" or "major" offence

referred to therein and not independently of it. When a person is

charged of an offence of murder, but the proved facts reduce the

offence to culpable homicide not amounting to murder, or that of

causing grievous hurt by dangerous weapon, a person charged of

an offence of murder which is punishable under section 302 of the

IPC, can, therefore, be convicted of an offence punishable under

section 325 of IPC , as the case may be, though no separate charge

11 crappeal 500.20 & 438.19.odt

is framed under any of these sections. The accused no.1 has not

demonstrated any prejudice caused to him due to non-framing of

the Charge under Section 325 of the Indian Penal Code.

17. With regard to throwing of chilly powder on Anil (PW1)

and Savita (PW4), the Informant - Anil (PW 1) stated that when he

and his wife Savita (PW 4) reached the spot of incident, at that

time the accused nos.2 and 3 had thrown chilly powder in their

eyes. In the evidence of (PW1), there is omission regarding name

of the accused no.2, which has been proved by the Investigating

Officer (PW 7). Yash (PW 3) and Savita (PW 4) have deposed that

the accused no.3 had thrown chilly powder in the eyes of Anil

(PW 1) and Savita (PW 4). Thus, the Trial Court has correctly

recorded finding that the accused no.3 had voluntarily caused hurt

by means of chilly powder and has rightly convicted the accused

no.3 of offence punishable under Section 324 of the Indian Penal

Code.

18. Insofar as acquittal of the accused no.2 - Aruna is

concerned, the learned Trial Judge has ignored material evidence

in the form of evidence of Savita (PW 4), wherein Savita (PW 4)

specifically stated that Aruna (accused no.2) took her father-in-

law on the road by dragging from the courtyard. The said

evidence has not been shaken by the defence in the cross-

12 crappeal 500.20 & 438.19.odt

examination. We therefore hold the accused no.2 - Aruna guilty

of offence punishable under Section 324 of the Indian Penal Code.

19. At his stage Shri Raheel Mirza, learned Advocate for the

appellants submitted that all accused are above 21 years of age.

They belong to a humble family and have a village background.

They have been convicted under Sections 324 and 325 of the

Indian Penal Code. There is no criminal history to their discredit.

Therefore, they are entitled to have benefit of provisions of the

Probation of Offenders Act, 1958.

20. We have considered the request of Shri Mirza, learned

Advocate for the appellants. The accused no.1 - Rajendra

Haribhau Tadaskar has been convicted for offence under Section

325 of the Indian Penal Code and has been sentenced for the

period of three years. We are of the view that no purpose would

be served by granting him the benefit of the Probation of Offenders

Act, 1958. Insofar as the accused nos. 2 and 3 are concerned, both

the accused are females and they have no criminal antecedents to

their discredit. The offence, for which, they are convicted is their

first offence. The role of the accused nos.2 and 3 in the offence for

which they are convicted is not serious and, hence, we find it to be

a fit case in which the benefit of probation can be granted in

favour of the accused nos.2 and 3. We, therefore, pass the

13 crappeal 500.20 & 438.19.odt

following order:

ORDER

(i) Criminal Appeal No.438 of 2019 is dismissed.

(ii) Criminal Appeal No.500 of 2020 is partly allowed.

(iii) Accused no.1 - Rajendra Haribhau Tadaskar shall

undergo punishment, as directed by the Trial Court.

(iv) The sentence of the accused no.2 - Aruna Rajendra

Tadaskar and the accused no.3 - Ku. Sujata d/o Rajendra Tadaskar

for offence under Section 324 read with Section 34 of the Indian

Penal Code is set aside and instead, the accused no.2 - Aruna

Rajendra Tadaskar and the accused no.3 - Ku. Sujata d/o Rajendra

Tadaskar are entitled to get benefit of Section 4 of the Probation of

Offenders Act, 1958.

(v) The accused no.2 - Aruna Rajendra Tadaskar and the

accused no.3 - Ku.Sujata Rajendra Tadaskar shall execute personal

bond each with two sureties to the effect that they shall not

commit any offence and shall observe good behaviour and shall

maintain peace during the period of one year from today. If there

is breach of any of the conditions, accused no. 3 subject herself to

undergo sentence as imposed by the trial court and accused no. 2

shall undergo rigorous imprisonment for the period of six months

and to pay fine of rupees one thousand, in default to undergo one

14 crappeal 500.20 & 438.19.odt

month simple imprisonment.

(vi) The bonds and sureties, as stated above, shall be filed

before the Sessions Court, Amravati by the accused nos.2 and 3

within the period of two months, from the date of the judgment.

(vii) Muddemal property, if any, be disposed as directed by

the Sessions Court.

                  JUDGE                                                   JUDGE




    Ambulkar