1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 150/1998 1 Govind s/o Ramji Dadhel, Age : 50 years, Occu. Agriculture, R/o Loha, Tq. Loha, Dist. Nanded. 2 Subhash s/o Namdeo Pole, Age : 30 years, Occu. Business, R/o Police Wadi, Tq. Loha, Dist. Nanded. 3 Madhav s/o Veokati Dhulgande, Age : 28 years, Occu. Agriculture, R/o Police Wadi, Tq. Loha. 4 Godawari w/o Laxman Salve, Age : 40 years, Occu. Labour, R/o Borli, Tq. Loha,Dist. Nanded. 5 Shobha d/o Shankar Waghmare, Age : 24 years, Occu. Household, R/o Indiranagar, Latur. 6 Mangal Digambar Laad, Age : 20 years, Occu. R/o Khandoba Galli, Latur. 7 Shobha w/o Madhav Dhulgande, Age : 20 years, Occu. Household, R/o Police Wadi, Tq. Loha, Dist. Nanded. ...Appellants. Versus The State of Maharashtra through Police Station Loha, Tq. Loha Dist. Nanded. ..Respondent. Shri A.S. Deshmukh, Advocate for appellants No.1 to 4. Shri S.G. Nandedkar, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J Date : 29th September, 2010. 2 ORAL JUDGMENT:- 1 Heard. 2 This appeal is filed against the judgment and order passed by the learned Additional Sessions Jude, Nanded dated 15/05/1998 convicting the appellants for the offence punishable under Section 395 and under Section 323 read with Section 149 of Indian Penal Code. 3 The appeal was filed by all 7 accused who were convicted by the impugned judgment in 1998 but the learned Assistant Public Prosecutor informs the Court that appellants No.2, 3 and 5 died during the pendency of the appeal and so the appeal is pressed only by the appellants No.1, 4, 6 and 7. 4 The facts leading to this case can be narrated as under. Except the appellant No.1, remaining appellants were running business of (Dhaba) restaurant at Borali naka on Latur–Nanded road. The incident took place on 16/01/1993 at about 3.30 p.m.. 5 It is the prosecution case that the complainant Kishan a Police constable wearing his uniform came and stood near Borali fata to go towards his police station which is situated at Malakoli a village on Latur Nanded road. He said, suddenly the appellant No.1 came to him and started abusing him. The appellant No.1 was accusing him of spoiling his business due to untimely patrolling visits of police. The complainant replied to him that the area did not fall within the jurisdiction of Malakoli Police Station and so he had no occasion to visit the restaurant during patrolling. He even suggested to him that the patrolling was probably done by the police of Loha Police Station. But he said, appellant No.1 was in aggressive mood and he started assaulting him with a stick. Soon other appellants gathered and they caught hold of the complainant and they showered blow of fists and kicks on his person. They then dragged the complainant to one of the 3 (dhaba) restaurants and inside the (dhaba) restaurant, they further assaulted him. Here they removed the clothes from the person of the complainant, took away cash amount of Rs.200/- from his pocket and snatched away his wrist watch. They even took away his bag in which he had kept his office documents. After severely beating him up, he said, he was allowed to go and thereafter he came out of the dhaba on the public road sans wearing his uniform but only in under- garments. A Police constable of Loha Police Station came there riding his motor cycle and he then helped him. He took away the complainant on his motor cycle to Loha Police Station where the complaint was lodged. The complainant lodged the complaint giving names of the appellants No.1 to 4 and added that the other three persons were workers in the (dhaba) restaurant, their names were not known to him. 6 There are three eye witnesses to this incident. The first one is the Police Constable who took the complainant with him on motor cycle to Loha Police Station. He is prosecution witness No.3 Chandrakant who stated that he saw the complainant being beaten up at the public road in front of the restaurant by 4 to 5 women and three men. He said that the assailants then took the complainant inside the restaurant and further beat him. He said, they used stick to assault him. He said, he was witnessing the incident by standing on the road in front of the restaurant. He identified the appellants being the assailants. In the cross examination, he admitted that, since prior to the incident he had seen the appellants in the restaurant though he said he had no occasion to visit their restaurant. 7 The third witness is one Uttam who said that he and his two friends prosecution witness No.5 Vikram and one Balaji, were riding their bicycles at the relevant time, in the vicinity of the 4 restaurant. At about 4.00 pm., when they reached near the restaurant, they saw a mob of 25 or more persons assembled on the road near the restaurant. He said, they stopped and noticed that three men and three women were beating up a police constable, by the side of the public road in front of the restaurant. He said thereafter, the assailants took the police constable inside the restaurant and removed his uniform from his person. He said, he also noticed that the assailants were beating the constable with fuel sticks. He said, after some time the victim constable came out and was taken away by another police constable on his motor cycle. 8 Prosecution witness No.5 is the another eye witness who said that he was with prosecution witness No.4 Uttam and he too narrated the incident as narrated by Uttam. 9 In addition to this, the prosecution also proved through the deposition of prosecution witness No. 10 Chandrakant that in presence of Chandrakant and another witness, the appellant No.1 produced a rexine bag from his house on 18/03/1993 while he was in police custody. In this bag, the witness noticed following articles kept. (i) A torn police uniform, (ii) a wrist watch of HMT Company and two currency notes of Rs.10/-. The police uniform included buckle plate mentioning No. 194 of Nanded Police. This admittedly is the Buckle Number of the complainant. 10 As against this, the appellants took a very peculiar defence and they tried to prove their defence by getting certain admissions during the cross examination and then the appellants No. 1 to 5 recorded their own depositions on oath. In addition to that, they also recorded deposition of one defence witness. 11 The appellant No. 5 in her deposition stated that at the relevant time, she was working in the restaurant. The complainant 5 entered the restaurant wearing only his under-garments. He was in drunken condition. He came towards her and held her hand and started pulling her towards the rear side of the restaurant. She raised alarm and hearing her alarm, other women who were working in restaurant came to her rescue. She said, even the customers sitting in the restaurant came to her rescue and then assaulted her abuser. The depositions of other defence witnesses are not of any use for my discussion. 12 The question is whether the prosecution could prove its case. I am not inclined to believe the deposition of prosecution witness No.3 because there is a clear indication through depositions of other prosecution witness that the prosecution witness No. 3 Chandrakant arrived riding his motor cycle in front of the restaurant at the nick of the time when the complainant came out limping from the restaurant in injured condition. The complainant waived his hand to stop the prosecution witness No.3. The prosecution witness No. 3 stopped and then took the complainant on his motor cycle as pillion rider. In view of this, the prosecution witness No. 3 had no occasion to see the details of the incident that took place prior to his coming. The depositions of witness No.1, 2 and 4 clearly indicate that the prosecution witness No. 3 arrived at the scene of occurrence much latter when the beating was almost over. 13 The depositions of the other two prosecution witnesses namely the prosecution witness Nos. 4 and 5 Uttam and Vikram can not be taken seriously because admittedly they did not know the assailants of the complainant since prior to the incident. It is not prosecution case that they were shown the appellants in an identification parade which was held during the investigation. They admitted that they saw the appellants only in the Court after the date 6 of incident. The identification made by these witnesses of the appellants thus is unreliable and can not be accepted. 14 This leaves us with two depositions; one of the complainant and other of the appellant No.5 Shobha. I narrated as to what the complainant stated in respect of the genesis of the incident. He said that he was simply standing in front of the restaurant and suddenly the appellant No. 1 came and started abusing him for no fault on his part. I think, this part of the prosecution case is rather unbelievable. Assuming some of the appellants were running the restaurant and were carrying on some clandestine activities, they would know the policemen who came to their restaurant at odd hours for spoiling their business. Admittedly, the area where the restaurant is situated, is within the local limits of Loha Police Station. So, the Police from Loha Police Station would have visited the restaurant of the appellants and due to such visits, the appellants would identify police constables of Loha Police Station, who had visited the restaurant. So, all of sudden, the appellant No.1 was not likely to go and attack the complainant. The complainant was certainly concealing something. On one hand, he said that he had no reason to visit the restaurant of the appellants because the area did not fall within local limits of Malakoli Police station. Yet, he assertively stated that he knew the appellants No. 1 to 5, since prior to the incident. He did not explain as to how he knew them. 15 In this background, the depositions of the defence witness No. 5 (the appellant No. 5) assumes importance. She said, it was the complainant who provoked the incident. He started the same by trying to molest her. In the cross examination, she was suggested that she was in fact a prostitute operating from the restaurant. This suggestion along with the fact that the complainant knew the 7 appellants No. 1 to 5 since prior to the incident indicated that the complainant knew that certain prostitutes were operating from the restaurant since prior to the incident. In this back ground, I am rather inclined to believe the defence version to some extent. I am inclined to believe it in respect of the genesis of the incident. It was probably the complainant who started the row by entering the restaurant and trying to molest the appellant No. 5 or some other women, in the restaurant. Unless this genesis is accepted, what happened further can not be explained. I am therefore, inclined to hold that it was the complainant who started the incident by acting lasciviously. This provoked violence from his victims. but what happened thereafter can well be understood. Once the complainant became target of the women in the restaurant, probably the other appellants joined them in the beating and they thrashed the complainant so much so that they even robbed him and removed his clothes. The further part of the incident was not warranted. The appellants and others could have limited their assault on the complainant only till he was dis-armed and was removed from the restaurant. Part of the defence version is not believable when it suggested that the complainant entered the restaurant without wearing his uniform but only wearing his under- garments and at that time he was intoxicated. This version is not believable because at the instance of the appellant No.1, during the investigation, the uniform of the complainant was recovered. 16 It is proved that the complainant was mercilessly beaten up; so much so that he sustained as many as 28 injuries. Almost all of them are contusions all over his body and few of them are abrasions and one was contused lacerated wound on his knee. Unfortunately, he did not suffer any grievous injury like fracture on limb etc.. It is also proved beyond reasonable doubt that when he 8 came out of the restaurant, he was not wearing his uniform and wearing only his under garments. It is further proved beyond doubt that the complainant lost his valuables like his back, his wrist watch and two currency notes of Rs.100/- in the melee. When he said that the appellants snatched away these articles from him during the incident,he cannot be disbelieved. The prosecution as said above, has amply proved that the appellant No. 1 during the course of investigation produced these articles from his house. In view of this, the prosecution has certainly proved the case of dacoity and causing of hurt. 17 The next question is, who could be convicted for these offences. The appellant No. 1 cannot escape the conviction because he was identified by the complainant and that there is evidence against him of discovery of stolen articles. The appellant No. 4 is a woman accused and is named in the complaint. The complainant knew her since prior to the incident. He has given description of her overtacts during the incident. So, her presence at the incident cannot be denied. She was one of the assailants of the complainant. In view of this evidence, even the appellant No. 4 can not escape the conviction. However, the remaining two appellants No. 6 and 7 are not names in the complaint. The complainant did not know them since prior to the incident and admittedly had no occasion to identify them in an identification parade. Their presence thus on the scene of occurrence can not be accepted. 18 Thereafter, I heard the appellants' advocate on the quantum of sentence. The learned advocate appearing for the appellants, pointed out that the incident is of 1993. More than 17 years have been passed since the incident. He said, the appellant No.1 is now 65 years old and has become old and infirm. He said, he 9 has lost his eye sight to the extent of 65%. On the other hand, he said the appellant No. 4 being a woman should be shown leniency in view of the fact that it was the complainant who started molesting one of the appellants. In view of this, I am inclined to reduce the substantive sentence awarded to the appellants No. 1 and 4 for offence punishable under Section 395 of Indian Penal Code to the period already undergone. Needless to say that sentence awarded to the appellants No.1 to 4 for offence punishable under Section 323 of Indian Penal code can be reduced to a fine. hence, order. ORDER a) The appeal is partly allowed. b) The appellants No. 6 and 7 are acquitted of the offence punishable under Section 395 and 323 read with Section 149 of Indian Penal code. c) The appellants No. 1 and 4 are convicted under Section 395 and 323 read with Section 149 of Indian Penal code. d) For the offence punishable under Section 395 Indian Penal code, they are sentenced to suffer the period of imprisonment which they have already undergone. e) For the offence punishable under Section 323 read with Section 149 of Indian Penal Code, the substantive sentence is set aside but they are sentence to pay a fine of Rs.5,000/- each. f) The complainant shall be paid Rs.5,000/- as compensation from the fine amount if the same is deposited by the appellants. In case of default to 10 pay the fine, he appellants are sentenced to suffer ten days' rigorous imprisonment. A.V. NIRGUDE, J. ts k/ok