1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 235 OF 1997 1. Yunus Abdul Gani Shaikh, Age : 32 years, 2. Isak Abdul Gani Shaikh, Age : 26 years, 3. Jabbar Abdul Gani Shaikh, Age : 24 years, 4. Sattar Abdul Gani Shaikh, Age : Major, 5. Ahmed Abdul Gani Shaikh, Age : Major, Occ: Agri., All R/o Khamaswadi, Tq. Kallam, District Osmanabad. ..APPELLANTS -VERSUS- The State of Maharashtra, Through Kisan Ramling Kokane, Age : 30 years, Occ : Service, R/o Khamaswadi, Tq. Kallam, Dist. Osmanabad. (Copy to be served on P.P. High Court Bench at Aurangabad). ..RESPONDENTS Mr. V.D. Gunale, advocate for appellant. Mr. S.G.Nandedkar, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 22nd November, 2010 ORAL JUDGMENT : 1. This appeal is filed against the judgment and order passed by the learned II nd Additional Sessions Judge, Osmanabad in 2 Special Case No. 60 of 1995. The appellants were charged under Sections 147, 506, 323 r/w 149 of the Indian Penal Code and under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. They were however acquitted for the offence punishable under Section 3(x) of Atrocities Act but were convicted under Section 147, 506 r/w 149, 323 r/w 149 of the Indian Penal Code and were sentenced to suffer six months simple imprisonment on each accounts and to pay fine of Rs. 50/- each counts with a default clause. The sentences were directed to be run concurrently. 2. The facts of the prosecution case should be narrated as under. 3. On 18th October, 1995, the complainant who was then working as peon in bank at Khamaswadi, Tq. Kallam, Dist. Osmanabad had gone to a Restaurant at about 7.30 a.m. This Restaurant is situated in front of the bank. The appellant no.1 was present in the Restaurant along with other customers. Altercation between the appellant no.1 and the complainant started. The appellant no.1 came out of the Restaurant and asked the complainant to come out of the Restaurant and said then he will teach him a lesson. The complainant came out and there occurred scuffle between them. At that time, other appellant nos.2 to 5 came there. They joined the appellant no.1 in the assault. They delivered fist and kick blows on the complainant’s person and abused him on the basis of his scheduled caste. The complainant sustained injuries on his head and over his body. After the incident, he went to the bank, drafted a report in his own handwriting and went to Shiradhon Police Station. He submitted his report at about 9.30 a.m. and the police registered offence as Crime No. 96 of 1995 and referred the complainant to the Medical Officer. The Medical Officer noticed seven simple injuries on the complainant’s person 3 and issued a certificate. The police conducted the investigation and filed the charge sheet. 4. This case was conducted as a Special Case No. 60 of 1995 by the II Additional Sessions Judge at Osmanabad. The prosecution case mainly depends on prosecution witness no.1, the complainant, who remained faithful to the prosecution case and the Medical Officer, who described the injuries, which he noticed on the complainant’s person soon after the incident. The other two witnesses namely prosecution witness nos.3 and 4, who were named as Eye Witnesses in the F.I.R. turn hostile and did not support the prosecution case totally. 5. However, the prosecution witness nos. 3 and 4 admitted that they were present in the Restaurant at 7.30 a.m. and that altercation took place between the appellant no.1 and the complainant while they were inside the Restaurant. So, it is amply proved that the appellant no.1 was present in the Restaurant at the time of incident and he had altercation with the complainant. 6. The complainant described the incident as under :He said at about 7.30 a.m. on that day he went to the Restaurant to have cup of tea. He said, the prosecution witness nos.3 and 4 were present in the Restaurant. The prosecution witness no.4-Pashumiya was running the Restaurant. The complainant said that the prosecution witness no.4-Pashumiya was talking the trouble which he has faced due to non-payment of electricity bill. The complainant intervened and rather uninvitedly advised Pashumiya that had he paid the bill in time, he would not have faced any trouble. Hearing this advise, the appellant no.1 intervened and started abusing the complainant. He asked him as to why he entered into discussion between Pashumiya and other person. The complainant stated that the appellant no.1 challenged him to come out and he would beat him. He said, he came out of the Restaurant, a scuffle took place 4 between them. He said, by that time other appellant nos. 2 to 5, who are brothers of the appellant no.1 rushed to the spot. The complainant stated that the appellant no.5 delivered stick blow on his head while the rest of the accused delivered showered fists and kicks blows on his person. He also added that they abused him on basis of his caste and said that the complainant had become arrogant. The complainant thereafter stated that after the incident, he went to the bank, prepared an application and submitted to the Police Station. In cross examination, he admitted that in the F.I.R. he mentioned that the incident took place in the bank but he corrected himself and said that the incident did not occur in the bank but it occurred in public place, on the road in front of the bank. The learned Advocate appearing for the appellants tried to take advantage of this discrepancy. However, this really is not discrepancy at all. If one goes through the F.I.R. which is at Exhibit-40, it does not really indicate that the incident took place inside the bank. However, the F.I.R. neither discloses that the incident took place inside the bank or it started at Restaurant etc. But the F.I.R. clearly mentions the time of the incident, names of the assailants and the witnesses. In my view, the admission as mentioned above on the part of the complainant about the place of incident is not of much consequence. 7. The complainant also admitted that while he was drafting his complaint in the bank, five to six persons were present in the bank and they assisted him in drafting the application. The learned Advocate appearing for the appellants tried to take advantage of this, to assert that the complaint was drafted with a view to implicate the appellants in a false case and that narration in the complaint is not spontaneous. I am afraid, this argument is also not acceptable. Soon after the incident, the complainant could have gone to the Police Station straight without entering into the bank or 5 without jotting down the complaint in his own handwriting. But he thought it proper to jot down the complaint before going to the police station. This course of action was not unjustifiable. It was quite natural because the complainant worked in the bank and had come to the bank quite early before the bank started business. 8.He then said that he went to the Police Station by Jeep and reached there at about 9 to 9.30 a. m. This shows that the complainant was quite diligent and he reached the police station quite in time soon after the incident. He admitted that two years prior to the incident there happened some quarrel between him and the appellant no.5-Ahmed over certain transaction which took place between the appellant no.5 and the bank. He admitted that the appellant no.5 had taken loan from the bank. This admission, in my view, is not quite relevant because the defence has not given the exact nature of quarrel that has been taken place between the appellant no.5 and the complainant over the loan transaction. The defence, it seems was rather cautious not to explore this area further. So, in my view, the defence is unable to take advantage of this admission. In any case, that incident involved only the appellant no.5 whereas, in this case, the quarrel took place initially between the appellant no.1 and the complainant. There is nothing on record to show that the complaint had any grudge against the appellant No.1. 9. The prosecution witness no.2 Dr. Rajendra Veer deposed that on that day at about 9.30 a. m. the complainant was referred to him and he said, he noticed as many as seven simple injuries on the person of the complainant. Out of this injury no.1 and 2 were on head of the complainant. They were contusions with abrasions. He said, he also found contusions with abrasions on lower limbs of the complainant. The injuries on the head of the complainant can be attributed to the stick blow, which the appellant no.5 allegedly 6 delivered. The number of injuries and their severity indicates that the appellant was thoroughly beaten up by his assailants. The question is whether the complainant should be believed. The learned Judge of the Lower Court did not accept his case that he was abused on the basis of his case. However, the rest of the details of his deposition were held to be believable. 10. The learned Advocate appearing for the appellants asserted that on the face of it, the version of the complainant appears exaggerated. He suggested that at least the complainant falsely implicated the appellants No.2 to 4. He pointed out that there is no indication in the F.I.R. that the stick was used by the appellant no. 5. He further pointed out that though the appellant nos. 2 to 4 are shown to be perpetrators and assailants of the complainant, no specific role is attributed to them. The appellants now can not take advantage of the improvements made over the contents of the F.I.R. because in the cross examination the appellants did not ask the complainant as to why he made improvement over the contents of F.I.R. The appellants had ample opportunity to cross examine the complainant on this point but since they avoided to do so the complainant received no opportunity to explain as to why there is apparent improvement in his deposition from the contents of the F.I.R. So, this submission of the learned Advocate appearing for the appellants is not acceptable. 11. Indeed, the complainant has not attributed any specific role to the appellant nos. 2, 3 and 4. He made only omnibus statement that they showered fist and kick blows and abused him on the basis of his caste. So the question is whether the complainant can be believed about this part of his case that the appellant nos. 2 to 4 participated in the assault. My answer to this is in affirmative. The complainant can not be disbelieved when he implicated the appellant nos. 2 to 4. Since beginning, he had been naming them 7 as his assailants. In the F.I.R. their names are present. In deposition, he specifically mentioned their names. His description of the assault is quite short. He only specifically stated that the appellant no.4 delivered one blow of stick on his head. He has not attributed specific authorship to any of the appellants as regards the other injuries, he sustained all over his person,. He has not given details of assault. But not giving details of the assault would not prove him unbelievable. The appellants can not deny the fact that the complainant suffered seven simple injuries all over his person. Initially a scuffle took place between the appellant nos.1 and the complainant. The match was certainly even between them. In such scuffle, there was possibility of the appellant no.1's sustaining some injuries. But that is not the case. The match it seems soon became uneven because other appellants rushed apparently to launch further attack on the complainant. This resulted into the number of injuries, which the complainant sustained. In addition to this, the complainant’s deposition that the appellant no.5 delivered on his head stick blow can not be disbelieved because there is injury corresponding to such blow on his head. In view of this, the deposition of the complainant is believable and I am inclined to accept it. 12. However, the learned Judge of the Trial Court committed only one error while appreciating the case of the prosecution. I think, he erroneously convicted the appellant nos.2 to 5 for the offence punishable under Section 506 r/w 149 of the Indian Penal Code. The offence of criminal intimidation apparently was committed only by the appellant no.1 when he threatened the complainant that he would beat no sooner he would come out of the Restaurant. No other appellants were present when this threat was delivered. They, therefore, can not be held guilty for committing offence for criminal intimidation. This offence is 8 apparently committed prior to forming of unlawful assembly. This minor correction is required in the judgment of the Lower Court. 13. The learned Advocate appearing for the appellants then contended that the appellants may be shown leniency. He said the incident took place in 1995. The appellants are on bail since last 15 years, but are under the constant threat of this case. He said, there were no criminal antecedents to the appellants neither there is any new case against them. He urged the Court to extend the benefit of probation of Offenders Act and benefit of Section 360 of the Criminal Procedure Code to the appellants. He urged the Court to reduce the substantive sentence of the appellants to the period, which they have already undergone. 14. All the above mentioned circumstance, in my view, are not sufficient to give the benefit of probation to the appellants. The incident took place without any provocation from the complainant's side. All alone the appellant no.1 aggressively incited violence. He threatened the complainant, asked him to come out of the Restaurant and assaulted him. Soon thereafter other appellants came. The appellant no.5 was even armed with a stick. Assuming that the complainant was having scuffle with the appellant no.1, the remaining appellants could have separated the complainant and the appellant no.1 and could have pacified them. But instead of this they helped the appellant no.1 to severally beat the complainant. In view of these circumstances, in which the offence was committed, I am not inclined to give benefit of probation and of good conduct to the appellants. The appellants were sentenced to suffer simple imprisonment only. The learned Judge of the Lower Court did not give any reason as to why he has chosen simple imprisonment over the usual choice of rigorous imprisonment. In a case of this nature, the choice of simple imprisonment was apparently incorrect. But, since the State has not filed any appeal against the 9 Judgment and order of the Lower Court, I am not inclined to interfere in such choice. 15. The appeal is partly allowed. The appellant nos.2 to 5 are acquitted of the offence punishable under Section 506 r/w 149 of the Indian Penal Code. Rest of the order passed by the learned Judge of the Trial Court remains intact. Issue arrest warrant against the appellants. ( A.V.NIRGUDE ) JUDGE gas/cria235.97/ ok