1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 65/1998 Bharat s/o Motiram Pardeshi Age : 53 years Occupation : Labourer, R/o Kasba, Pathardi Tq. Pathardi Dist. Ahmednagar. ...Appellant. versus The State of Maharashtra ..Respondent. Shri N.K. Kakde Advocate for appellant. Shri B.V. Wagh, A.P.P. for respondent. CORAM : P.R. BORKAR, J. Date : 24/11/2009 ORAL JUDGMENT :- 1. This appeal is preferred by accused no.1. He is convicted of offences punishable u/s 452, 323 of I.P.C. by the learned Sessions Judge, Ahmednagar in Sessions Case No. 26/1995 decided on 12-02-1998 and sentenced to suffer simple imprisonment for one month and to pay a fine of Rs.300/- i. d. to undergo S.I. for 7 days for offence punishable u/s 452 of I.P.C. and sentenced to suffer simple imprisonment for 15 days and to pay a fine of 2 Rs.300/- i. d. to undergo simple imprisonment for 7 days for offence punishable u/s 323 of I.P.C.. 2. Laxman Dhondiram Yedke (P.W. 1), lodged complaint on 10-01-1995 in the Pathardi police station and stated that he is resident of Pathardi and he is running grocery shop. On 09/01/1995 he closed shop at 8.30 P.M. and went home. At that time, at about 9.30 P.M. present appellant and other two accused Dhondiram Garje and Rajendra Garje came and questioned Laxman (P.W.1) as to what objection he should have if instead of Shahabadi stone, tar road is prepared in the lane. Laxman (P.W.1) stated that, the shahabadi stone flooring of the lane was in good condition and there was no necessity of construction of tar road. At that time, there was exchange of words. Three accused persons abused the complainant. They entered his house and beat him with kicks and fist blows. At that time, the appellant gave blow with a leather belt on the left eye of Laxman. When his wife tried to intervene, she was pushed. She fell down and the child in the hands of his wife Kalawati was also injured. At that time, Hanif Bagwan and other persons from village gathered and then the accused / appellant went away. While 3 going, they gave threat of finishing entire family of the complainant. Police registered crime for offences punishable u/s 452, 323, 504, 506 r/w sec. 34 of I.P.C. and u/s 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to “Atrocities Act”) and u/s 7(1)(d) of the Protection of Civil Rights Act (hereinafter referred to “P.C.R.Act”). 3. After complaint was lodged, police sent the complainant for medical examination. Police recorded the statements of various witnesses. The accused were arrested. The appellant produced his leather belt which was attached under a panchanama. Finally, the charge sheet was sent. 4. The original accused nos.2 and 3 were acquitted of all offences charged. The appellant was also acquitted of all offences other than offences punishable u/s 452 and 323 of I.P.C.. He is convicted of above two offences as stated earlier. It is this order which is challenged. 5. The prosecution in all examined 7 witnesses. The panch witnesses (P.W.3) Sandip and Shankar (P.W.4) turned hostile and did not support prosecution case. Laxman (P.W.1), ( Ramnath Thorat P.W.2) and Kalawati w/o Shankar (P.W.5) are main witnesses. The complainant has stated that 4 accused no.1 / appellant was of Chambhar community as such of scheduled caste and therefore, he was acquitted of offences under Atrocities Act and also P.C.R.Act. Laxman mainly stated story as stated in the complaint, but his cross examination shows that he has exaggerated the story. Thus, he stated in cross examination that he was given 3 to 4 strokes with leather belt, but there was only one injury on infra orbital region which was contusion of 2 x 1/2 c. m. size. So, the say of Laxman (P.W.1) that he was given 3 to 4 strokes with leather belt and both the accused no.2 and 3 gave him kicks and fist blows appears to be just exaggeration. His wife Kalawatibai did not sustained any injury nor there is any evidence to show that the child of Laxman had any injury or was examined by Doctor. Wife Kalawati did not say about any injury of the child. She has deposed that she was pushed but she did not say that the child was with her when she was pushed. As per evidence of P.W.1 Laxman, his uncle Baburao Topaji and P.W.2 Ramnath Thorat came to rescue him but their names are not appearing in the F.I.R. lodged, but he has admitted in cross examination that accused no. 1 who is contractor and he had prepared new road and had removed Shahabadi stone flooring of the lane. The complainant 5 had asked him why he was doing so. It is the case of defence that Municipality has given work of preparing new road to the appellant. 6. P.W. 2 Ramnath Thorat has stated that he heard hue and cry from the house of complainant and therefore, went there and saw that the appellant was giving blows to the complainant with belt and accused nos. 2 and 3 were giving kicks and fist blows to P.W.1 Laxman and they intervened. In the cross examination, omission was brought on record regarding abuses over caste. The witnesses exaggerated in saying that due to assault, face of the complainant was swollen and blood was oozing from his left eye which not case as per evidence of Dr. Neware who only found one contusion on left infra orbital region of 2 x ½ c.m. size which was a simple injury. It is also clear that Ramnath is not independent witness. He was also witness in a case filed by brother of the present complainant. So far as Kalawati (P.W. 5) is concerned, she also stated that, the accused entered their house. Accused no.1 beat her husband with belt and accused no.2 and 3 gave blows to her husband, but according to her examination in chief, only one blow of leather belt was given by accused no.1. She did not state that when she was pushed, she had 6 sustained injury. She did not state that any child was with her when she was pushed. So, on the part of Laxman (P.W.1) there is tendency to exaggerate. 6. In cross examination of Kalawati, omission was brought on record to the effect that she did not state that accused nos. 2 and 3 had given kicks and fist blows. She denied that one Bagwan had come to rescue. This fact mentioned in F.I.R.. So, considering all the circumstances, in my opinion the incident is exaggerated by the prosecution witnesses. So, also it was given caste colour. However, the story of the incident appears to be true in as much as appellant / accused had gone to the house of complainant and he had caused him one injury. After giving anxious thoughts to the arguments advanced by Shri N.K. Kakde for appellant / accused and Shri B.V. Wagh A.P.P., the conviction u/s 452, 323 of I.P.C. is justified. However, the sentence is excessive. This is not case in which for one injury was caused in the heat of moment, the appellant should be sent for one month into the jail. In this view of the matter, in my opinion, sentence deserves to be modified. It is stated before me that, the appellant / accused was 53 years of age in the year 1999. Now, he is 67 years of age. It is also stated that, he is poor man. Considering 7 his age, at present in my opinion the order of sentence deserves to be modified. Hence, the appeal is partly allowed. 7. Criminal appeal is partly allowed. 8. Order of conviction u/s 452 and 323 of I.P.C. is confirmed. 9. Order of sentence is hereby set aside for each offence u/s 452 and 323 of I.P.C. and the accused / appellant is sentenced to suffer simple imprisonment till rising of court and to pay a fine of Rs.500/- on each count. 10. The amount of Rs.600/- is already paid by the accused / appellant towards fine. The accused / appellant shall pay additional fine amount of Rs. 400/- within period of four weeks from today in the Sessions Court, Ahmednagar, in default the accused / appellant shall undergo simple imprisonment of one week. 11. Inform this order to the Sessions Court, Ahmednagar. 12. Criminal appeal is disposed of.” [P.R. BORKAR, J.] tsk/criapl65.98