1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO. 41 OF 1997 1. Sk. Chand Sk. Rehman Choudhary, aged 24 years. 2. Sd. Asif Sd. Yusuf, aged 20 years. 3. Sk. Salim Sk. Gambhir, aged 27 years. 4. Sk. Gaffar Sk. Sattar, aged 22 years. 5. Bismilla Kha Ataulla Kha, aged 22 years, all r/o Ward No. 7, Buldana, District Buldana. ... APPELLANTS. - VERSUS - State of Maharashtra, through P.S.O. P.S. Buldana. ... RESPONDENT. .... Mr. Firdos Mirza Advocate for the Appellants. Mr. D.B. Patel, APP, for Respondent. ..... CORAM : A.B.CHAUDHARI, J. RESERVED ON : 16.2.2009. PRONOUNCED ON : 18.3.2009. 2 J U D G M E N T : Being aggrieved by the judgment and order dated 28.1.1997 passed by Additional Sessions Judge Buldana in S.T. No. 21 of 1995 convicting the appellants for the offence punishable under Section 353 read with Section 34 of Indian Penal Code and sentencing them to undergo rigorous imprisonment for two years; for the offence punishable under Section 332 read with Section 34 of Indian Penal Code and sentencing them to undergo rigorous imprisonment for three years and under Section 333 of Indian Penal Code and sentencing them to suffer rigorous imprisonment for four years, the present appeal was filed by them. 2. In support of appeal, Mr. Firdos Mirza, learned counsel for the appellants made following submissions - (i) the trial court wrongly assumed that the injured persons in the incident, namely Purushottam Bute, Mohan Chavan, Punjabrao Raut, and Kamlakar Chavan were performing public duty and that they were assaulted with a view to prevent them from performing their public duty. In the absence of evidence about the knowledge of the appellants that the victims were required to be prevented from performing public duty, the appellants could not be held guilty of the offence punishable under Sections 353, 332 and 333 of Indian Penal Code for which they have been convicted. 3 Requisite knowledge and intention of the appellants has not been proved and therefore the trial Court erred in assuming that there was such intention or knowledge on their part. (ii) reading of evidence itself shows that it was the case of prosecution that the appellants had come in search of Purushottam Bute and not for assaulting other victims. (iii) merely because the victims were government servants it does not automatically follow nor there is a presumption that the offence would be of assaulting public servant, and at the most could be called a private quarrel between them. In support of this proposition he relied on the decision of this Court in Murlidhar Krishnaraoji Virulkar v. State of Maharashtra – 2006 ALL MR (Cri) 155 (Para 9) and AIR 1978 SC 1141- D.Chattaiah & anr. v. State of A.P. (Para 9 & 10). There is a variance in the versions given by the prosecution witnesses which is material and the trial Court ought not to have ignored the same. (iv) the medical evidence does not support the prosecution evidence and therefore the entire evidence is liable to be rejected. (v) though all the appellants were not named by the witnesses but different witnesses took different names of the 4 accused persons, it was risky to rely upon such evidence and convict the appellants. (vi) though witness Purushottam Bute assumed that he was dragged on the ground with his chest rubbing the ground, no injury has been found on the chest. In support of this submission, he relied on the decision of this Court in Shantaram Baburao More & anr. V. The State of Maharashtra – 2002 ALL MR (Cri) 1286. (vii) the prosecution evidence was therefore liable to be rejected in its entirety and the appellants deserve to be acquitted. (viii) In the alternative, the sentence that is awarded to the appellants is excess and looking to the nature of incident projected by the prosecution, the sentence deserves to be reduced. 3. Per contra, Mr.Patel, learned APP, opposed the appeal and argued that the appellants were committing theft of forest produce on regular basis and two days before the incident in question they were prosecuted by Bute and in order to take revenge the appellants made preparation together and attacked Bute and others who were on surveillance in the forest. Therefore, they were on public duty and the trial Court has rightly convicted them for the offences punishable under Sections 353, 332 and 333 read with 5 Section 34 of Indian Penal Code. All the appellants have been named by the witnesses as assailants and some of the witnesses have even suffered fracture due to assault by the appellants with the stick. The judgment made by the trial Court is well reasoned and shows no perversity and this Court should not interfere with the said judgment of conviction. The alternative prayer for reduction of sentence cannot be accepted because the appellants wanted to terrorise the public servants from performing their duty. He, therefore, prayed for dismissal of appeal. 4. I have gone through the entire evidence on record with the assistance of learned counsel for respective parties and also gone through the judgment of the trial Court. P.W.2 Purshottam Bute is the prime witness examined by the prosecution. He deposed that a week before the incident he had challaned the accused persons for commission of theft of forest produce. He further deposed that on the date of incident at about 8-00 a.m. he and others were on patrolling duty in Hanvatkhed Shivar and were resting at one place. At about 3-00 p.m. when the appellants came there they started enquiring about Purshottam Bute. Sk.Chand then dragged Bute and when other foresters tried to intervene they were beaten by other appellants with sticks. The accused persons then assaulted Bute with stick on his left hand, thumb of right hand and on both the legs. He became unconscious. Similar is the evidence of other witnesses, namely P.W.1 Subhash Jadhao, P.W.3 Mohan Chavan, P.W.4 Pralhad Kaluse, P.W.5 Panjabrao Raut and P.W.6 Kamlakar Chavan. All the 6 witnesses are consistent in saying that the accused persons suddenly came, started enquiring about Bute and no sooner Bute was seen they dragged him and started assaulting him. The evidence does not at all show that at the time of incident or on the date of incident, the appellants wanted to commit theft in the forest or that they were seen moving in the forest for the commission of theft or they made any preparation for committing theft in the forest and in order to deter Purushottam Bute and others from performing their duty as public servants they assaulted these foresters. It is not the evidence that the appellants uttered any word suggesting that they wanted to prevent or deter the foresters from discharging their public duty for which they had been making surveillance in the forest. On the contrary, the consistent evidence of these witnesses straightway shows that the appellants were in search of Bute and they had intention to assault him, perhaps because they were challaned by P.W.2 Bute earlier, but that by itself, in my opinion, would not attract the offence punishable under Sections 353, 332 and 333 read with section 34 of Indian Penal Code. There is no presumption in law that merely because a public servant is assaulted the same would automatically become assault on a public servant while discharging public duty. The oral evidence tendered before the Court by these witnesses do not show any such intention or act on their part. The finding recorded by the trial Court that some days before the incident in question they were challaned by P.W.2 Bute and therefore they wanted to deter Bute and others from performing their duty is contrary to the 7 evidence. I, therefore, hold that the appellants have not assaulted P.W. 2 Purushottam Bute and others with a view to deter them from performing their duty. 5. The fact of assault on P.W.2 Purushottam Bute and others by means of sticks by the appellants has however been duly proved and the appellants in my opinion are clearly guilty of offence punishable under Section 324 read with Section 34 of Indian Penal Code. Though there is no charge under Section 324 of Indian Penal Code framed against the appellants, the charge under Sections 353, 332 and 333 of Indian Penal Code relate to assault but of a higher degree as the victims are public servants. Offence under Section 324 of Indian Penal Code is therefore clearly made out and though there is no charge levelled against them, fact remains that offence under Section 324 being lower in degree , the appellants could be convicted for the said offence punishable under Section 324 of Indian Penal Code. As a matter of fact the victims Purushottam Bute and others have suffered fracture as per the evidence of Dr.Suresh Jatkar (P.W.7) but the prosecution has failed to produce and prove the X-ray plates etc. on record to prove the fractures and that is why it is not possible to convict the appellants for the offence punishable under Section 325 of Indian Penal Code. 6. Perusal of medical evidence clearly shows that the appellants had assaulted victim Purushottam Bute (P.W.2) and others by means of sticks. The evidence further shows that P.W.1 Subhash Jadhao named Sk.Chand, Sk. 8 Asif as the assailants. P.W.2 Purushottam Bute named Sk. Chand, Sk. Asif and Sk. Salim and Bismilla as the assailants. P.W.3 Mohan named Slaim, Chand, Asif, Gaffar as the assailants. P.W.4 Pralhad named Sk. Chand, Sk. Asif, Sk. Salim, Bismilla and Gaffar as the assailants. P.W.5 Punjabrao named Sk.Chand and Sk. Salim as the assailants. P.W.6 Kamlakar named Sk.Chand, Sk. Asif, Sk. Salim, Sk. Gaffar and Bismilla. Thus these witnesses have named all the accused persons. The submission made by the learned counsel for the appellants that it is not proved that all the accused persons had assaulted does not appear to be correct. In a melee, it is not possible to expect the witnesses to disclose the exact names of the accused persons , but in the instant case one or the other witnesses have named all the appellants. Hence, all the appellants are guilty of offence punishable under Section 324 read with Section 34 of Indian Penal Code. The impugned judgment therefore will have to be interfered with. In the result, I make the following order. 7. Appeal is partly allowed. Impugned judgment and order holding the appellants guilty of the offence punishable under Sections 353 read with Section 34 IPC, 332 read with Section 34 of IPC and 333 read with Section 34 of IPC are set aside and in its place all the appellants are convicted for the offence punishable under Section 324 read with Section 34 of Indian Penal Code and are sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs.2,000/- each, in default rigorous imprisonment for one month. If the amount of fine is deposited, the same shall be equally 9 paid by way of compensation to P.W.2 Pushottam Bute, P.W. 3 Mohan Chavan, P.W.5 Panjabrao Raut and P.W. 6 Kamlakar Chavan. JUDGE /TA/