1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL No. 417/1997 1) Sanjay s/o Ananda Shinde, age 26 years, 2) Jalindar Kisan Meher, age 31 years, 3) Dattu S/o Kisan Pawar, age 28 years, 4) Kisan Nagu Meher, age 47 years, 5) Raghu S/o Nagu Meher, Age 42 years, 6) Sahebrao S/o Shankar Chaudhari, Age 47 years, 7) Narayan Kundlik Naik, Age 37 years, 8) Raosaheb Kisan Meher, Age 30 years, 9) Madhav S/o Nagu Meher, Age 44 years, 10) Madhav S/o Kisan Chaudhari, Age 42 years, All R/o Jamgaon, Tq. Parner, District – Ahmdnagar. ... Appellants. Versus 1) The State of Maharashtra 2 2) Ramesh Popat Mali, Age 38 years, Occu. Teacher, R/o Jamgaon, Tq. Parner, District – Ahmednagar. 3) Popat Khandu Mali, Age 48 years, Occu. Agril., R/o Jamgaon, Tq. Parner, District – Ahmedngar. ... Respondents. -------- Shri. R.N. Dhorde Advocate for the Appellants. Smt. A.V. Gondhalekar , Additional Public Prosecutor, for Respondent No. 1 State. Shri V.D. Patnurkar, Advocate for Respondent No. 2 & 3 -------- CORAM: V.R.Kingaonkar, J. DATE: 02nd September, 2009 Oral Judgement : 1) Challenge in this Appeal is to Judgment delivered by 3rd Additional Sessions Judge, Ahmednagar, in Sessions Case NO. 198/1995, whereby the appellants have been convicted for offences punishable under Section 143,148,307 read with Section 149, 324 read with Section 149, 506 (II) & 149 of IPC. They have been 3 sentenced to various terms and fine amount for such offences. 2) There is no dispute about the fact that in the evening of May 30th, 1995 injured Popat Khandu Mali was called by the Police at office of the village Cooperative Society for certain inquiry regarding a complaint application. There is also no dispute about the fact that the appellants No. 1 & 2 had given an application to the police alleging that injured Popat was dealing in distillation of illicit liquor and was doing anti-social activities. There is also no challenge to the prosecution version that when injured Popat and his son (Complainant Ramesh) came out of office of the Village society, after facing the police inquiry, they were assaulted and became injured during the course of the said assault. 3) Briefly stated, the prosecution case is that the appellants and other villagers were having 4 complaints about criminal activities of injured PW Popat. They wanted him to be weeded out from the village. They used to threaten him that if he will not leave the village then he will be done to death. In the relevant evening, the appellants formed an unlawful assembly at short distance from office of the Village Cooperative Society. They were armed with deadly weapons like knife, stones, bicycle chain and sticks. Soon after injured Popat came out of the Village Society’s office, the appellants mounted murderous assault on him by means of the dangerous weapons mentioned above. He suffered multiple injuries. He fell down at the spot in injured condition. His son was also injured during the course of incidence. One of the Police Constables rushed to the spot. Injured PW Popat was boarded in a private jeep vehicle. He was shifted to Primary Health Centre at Parner for medical treatment. He was given primary treatment and was referred to Civil Hospital at Ahmednagar. The Medical Officer noticed seven injuries on person of 5 injured PW Popat. His son i.e. the injured PW Ramesh lodged First Information Report alleging that the appellants, in furtherance of their common object, mounted murderous assault on his father. On the basis of the material gathered during the course of investigation, the appellants were put to trial for the offences punishable under Sections as mentioned above including offence punishable under Section 3 of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act. 4) The appellants pleaded ’not guilty’ to the charge (Exh. 3). The prosecution examined in all fourteen (14) witnesses in support of its case. Whereas the appellants examined DW Govind in support of the defence. Their defence was that a large number of public members had gathered around office of the Cooperative Society in order to see what was going on. After injured PW Popat and his son (PW Ramesh) came out of the office of the Village Cooperative Society, both of them 6 started abusing the villagers. The members of the crowd also addressed abuses to them. There was scuffle between the members of crowd on the one hand and the victims i.e. PW Popat & PW Ramesh on the other hand. As a sequel to the exchange of abuses in the course of scuffle and man-handling, PW Popat was injured when he was thrown on a wall. It was denied that the appellants were amongst crowd which had become unruly. 5) The learned Sessions Judge held that the appellants were members of an unlawful assembly which was formed with common object, namely, to eliminate injured PW Popat or to cause him grievous hurt. The learned Sessions Judge further held that the appellants were armed with dangerous weapons at the relevant time. The learned Sessions Judge held that the appellants mounted the assault in the relevant evening but it was not for the reason that injured PW Popat and his son are members of Scheduled Tribe being “BHIL” by caste. In keeping with such findings, 7 the appellants have been convicted for the offences as stated here-in-before. The appellants No. 2 & 3 have been convicted for the offence punishable under Section 307 read with 149 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for four (4) years and to pay fine of Rs. 1,000/- each in default to suffer rigorous imprisonment for six months, whereas the appellant No. 1,4,5,7,8and 10 have been convicted for offense punishable under Section 324, read with Section 149 of Indian Penal Code and have been sentenced to suffer rigorous imprisonment for six months each to pay fine of Rs. 500/- each in default to suffer rigorous imprisonment for one month. In respect of other offenses similar sentence is awarded to all of them. They have been sentenced to suffer Rigorous Imprisonment for one month and to pay fine of Rs. 200/- each in default to suffer rigorous imprisonment for the offence punishable Under Section 143 of the Indian Penal Code. They have been sentenced to suffer rigorous 8 imprisonment for six months and to pay fine of Rs. 200/- each in default to suffer rigorous imprisonment for one month for offence punishable under Section 148 of the Indian Penal Code. They have been sentenced to suffer rigorous imprisonment for one month, for offence punishable under Section 506(II) read with Section. 149 of the Indian Penal Code. The substantive sentences are directed to run concurrently. 6) In fact, the prosecution case regarding the incident of assault on injured PW Popat and his son is un-contraverted. Only defense put forth by the appellants is that they were assaulted by members of the unruly mob gathered outside the office of the Cooperative Society when PW Popat and his son Ramesh started addressing abuses to the villagers. It is pertinent to notice that, in order to establish such defence, the appellants got examined DW-1 Govind. It is the version of DW-1 Govind that appellant No. 1 Sanjay is a full 9 time worker of Scheme to make the village ideal in all respects. His version purports to show that injured PW Popat deals in manufacturing of illicit liquor. His version purports to show that injured PW Popat used to terrorize the villagers. He deposed that on 28th May, 1995 the villagers had lodged a complaint against injured PW Popat at the Police Station. He further deposed that the appellant No. 1 & 2 had also lodged a complaint and therefore, police men visited the village and called injured PW Popat at the office of Cooperative Society. He further deposed that son of PW Popat by name Sanjay was called at the office of Cooperative Society. At the relevant time injured Popat and his son PW Ramesh went to the office of the Cooperative Society which is situated in the area called as “Bangala Chowk”. He further deposed that often there is a crowd in that area. According to him, when injured Popat and PW Ramesh came out of the said office, they started abusing the villagers who had gathered around to watch what was going on. The villagers 10 also abused them and, therefore there was tension created at the place. He deposed that there was a scuffle between injured PW Popat and crowd. According to him, the villagers had forcefully thrown PW Popat and, therefore, he was injured. The defence version does not find any support otherwise. No report was lodged by any-one regarding the abuses addressed by PW Popat and his son to the villagers. It has come on record that, DW-1 Govind is Chairman of the Cooperative Milk Society. He was present in the meeting dated 11-11-1995 which was held in the village. It appears that there is no independent corroboration to infer his presence at the spot when the incident had occurred. 7) Coming to the version of PW Ramesh, PW 4 Popat and PW 11 Vasant Kulat (PCB 1080). It is amply clear that, the appellants awaited outside the office of the Cooperative Society in the relevant evening for PW Popat and his son to come out of that office and, thereafter, mounted 11 assault on him. It is argued that, presence of PW Ramesh at the spot is doubtful. It is pointed out that in his police statement it is reflected from report of PHC (B.No. 2932) PW Shinde that name of PW Ramesh was not mentioned as an eye witness. This argument is un-acceptable. It is important to notice that DW-1 Govind himself deposed that PW Ramesh had accompanied injured PW Popat at the relevant time when the assault was mounted on both of them. One cannot be oblivious of the fact that PW Popat and PW Ramesh lodged the FIR (Exh. 19) with promptitude. It is argued that delay caused in lodging the FIR would show deliberations made before giving the report. In fact, there appears no unreasonable delay committed by PW Ramesh. The incident occurred in the evening of 30th May, 1995. The first priority was to reach injured Popat to the Hospital in as much as he was seriously wounded. So also, the PW Ramesh was wounded during the course of assault. In his report, PW Ramesh explained as to how he was present in the native village. He is a 12 primary teacher. He had been to the native village due to summer vacations. The recitals of the First Information Report (Exh.19) would show that it was lodged in the next morning at wee hours and was registered at 03.35 hours. Normally, nobody would concoct the FIR and go to the Police Station at such odd hours. It is highly probable that PW Ramesh had gone to the Police Station in the odd hours after mid-night but was required to wait till the FIR was registered at about 3.35 A.M. Under the circumstances, it cannot be said that there is material delay committed while lodging the FIR. 8) The version of PW Ramesh lends corroboration to the recitals of the FIR and the case of the prosecution. He narrated as to how the incident had occurred. His version purports to show that PW 11 Constable Vasant Kulat had visited office of the Cooperative Society along-with Constable Waghmare for inquiry into the complaint lodged against his father i.e. PW Popat. His version reveals that when his father and himself waited 13 out of the entrance of the Cooperative Society’s office, the appellants approached them and started assaulting both of them. His version purports to show that, the appellant No. 2 Jalindhar was having a knife, the appellant Nos. 3 & 9 were armed with bicycle chains and other appellants were armed with stones and sticks. His version purports to show that injured PW Popat became unconscious after the assault. Nothing could be gathered from his searching cross- examination. 9) On close scrutiny of version of PW Popat it is amply clear that he was assaulted on road in front of the office of the Cooperative Society by the appellants. It has come on record that when he and his son were proceeding towards the office of the Cooperative Society, some of the persons were seen standing in 3/4 groups. The very fact that the appellants were armed with bicycle chains, knife, sticks and stones is eloquent. Though PW Popat is the victim of assault, he has 14 no business to falsely frame the appellants and exclude the real culprits. It is well settled that version of injured victim is more reliable in the ordinary set up because he is not likely to screen the real culprits for no much reason. Admittedly, the appellant Nos. 1 & 2 were self- proclaimed crusaders to bring about total ban for liquor vending in the village. The documents on record would show that resolutions were passed by the Village Panchayat to impose ban for liquor vending and take appropriate action against the liquor vendors. The appellants No. 1 & 2 had made complaints against PW 4 Popat regarding his alleged murky business of illicit destillation of country liquor and vending thereof in the Village locality. He did not stop such business. Obviously, the appellant Nos. 1 & 2 along with other appellants were determined to teach him a lesson. 10) The versions of above two injured witnesses are duly corroborated by PW 11 Vasant Kulat (PCB 15 No.1080). He is Police Constable and has no business to take sides. His testimony would show that, he heard noise coming from side of the office of the Cooperative Society, just after PW Popat and PW Ramesh had left the office. So he and another Police Constable came out to see as to what was going on. He narrated that appellant NO. 2 Jalindhar was armed with a big knife (Sura), the appellant No. 3 & 9 were armed with stones. He noticed that, the appellants were beating injured Popat by means of the said weapons. His version purport to show that he and another Police Constable rushed there and separated the appellants. He saw that injured PW Popat was lying in pool of blood. He arranged for a private jeep vehicle and took injured PW Popat to the Primary Health centre at Parner. Since there was tension in the locality of the village, the Police Constables remained at the spot to avoid any further un-toward incident. The conduct of PW Vasant is quite natural. He denied that there was about 100/150 public members outside 16 office of the cooperative Society. He also denied that then 100/150 villagers were assaulting injured PW Popat and PW Ramesh. He has no reason to speak lie. His presence at the spot is natural one. 11) The eye witness account tendered as above is further corroborated the medical evidence placed on record. The testimony of PW 5 Dr. Sanjay Thube would show that on 30th May, 1995, he examined injured Popat. He noticed following seven injuries on the person of PW Popat : 1) incised wound on frontal regon varticle 5cm. X ½ cm. Bone deep on mid-line. 2) Incise wound on frontal region rt.side verticle 8 cm. X ½ cm. X 1/2cm clean out edged. 3) Zigzag contused lacerated wound at middle aspect of scalp. 3 cm. X 1cm. X 1 cm. 4) contused lacerated wound on left parietal region 3cm x 1 cm x 3 Cm. 5) contused lacerated wound on cipital region, 2x ½ x ½ cm. 17 6) Incised wound on rt. Parietal region, transverse, 3x1x1cm. Fresh bleeding present, clean out edge. 7) Contused lacerated wound on left parietal region 1 x 1 x ½ cm. He corroborated recitals of the Medical papers (Exh. 31). The learned counsel, appearing for the appellants, would point out that there was no injury on knee of PW Popat. Though there was no knee injury on knee of PW Popat, he was claiming that the appellant No. 2 had assaulted him by means of knife on the left knee. It was suggested to PW Sanjy that the injuries could be caused due to fall or other accidental reasons. However, in view of the fact that the incident of assault is admitted one, no much importance can be given to such suggestions. 12) The version of PW 15 Dr. Pramod Pargaonkar also corroborates the fact that two injuries were found on the person of PW Ramesh during the course of clinical examination on 31-05-1995. He 18 corroborated recitals of the Medico legal Certificate (Ex.58) 13) Considering the ocular account of the incident, particularly unimpleaded version of PW Vasant Kulat (Constable) and the corroborative medical evidence, I am satisifed that the learned Sessions Judge has rightly reached conclusion that the appellants had mounted the assault on PW Popat and his son in the relevant evening. It is duly proved that they were waiting outside office of the Cooperative Society for PW Popat and his son to come out. They were, in fact, waiting for an opportunity to teach a lesson to PW Popat who did not budge and continued the alleged business of illicit liquor vending. Suffice it to say that the appellants are proved to be the assailants and have been rightly convicted by the Sessions Court. 14) At this juncture, the question which would arise is whether the conviction of the appellants 19 for offense punishable under Section 307 of Indian Penal Code is legal and proper. It is pertinent to note that PW Popat did not receive a single injury on any vital part of his body. The prosecution has not adduced any sufficient evidence to show that PW Popat could have lost his life as a result of said injuries. The Medical Officer (PW Dr. Sanjay Thube) vaguely deposed that if the patient was not properly treated, the cumulative effect of the injuries could have caused his death. This is a too sweeping statement. It is necessary to reach conclusion that in the ordinary course of nature the injury/ injuries could have resulted into the death. The vague statement of PW Dr. Sanjay Thube is insufficient to reach conclusion that the appellants or any of them attempted to cause death of injured PW Popat. What transpires from the record is that they wanted to teach him a lesson because he had not stopped the business of illicit liquor distillation and vending. There was no personal animosity of the appellants 20 against him. It is probable that after PW Popat and his son went out of the office of the Cooperative Society, there was some fracas and immediately it was followed by the assault. Under the circumstances, the conviction for offence punishable under Section 307 read with Section 149 of Indian Penal Code is improper and unsustainable. 15) The Medical evidence does not show that PW Popat had received any grievous injury nor there is evidence to reach conclusion that he was unable to follow the daily pursuits for more than 21 days. In this view of the matter, it will have to be said that the prosecution has proved only the offence punishable under Section 324 read with 149 of Indian Penal Code. It is proved that the appellants were members of an unlawful assembly which was formed with common object to assault PW Popat. 16) So far as the sentence is concerned, Mr. R.N. 21 Dhorde would submit that the sentence is too harsh. He would point out that the appeal is being decided after 12 years of the incident. He would submit that the appellants may be released on Probation. He invited my attention to observations in “ Naib Singh V/s. State of Punjab (1994) 4 SCC 401 and Nasiruddin Khan & others V/s. State of Bihar 2008(12) SCC 129” . The Apex Court in “Nasiruddin Kahan & others” (Supra) observed that, due to long passage of time and the period of sentence, the appellants No. 2 & 3 could be given benefit of Section 360 of the Criminal Procedure Code. Still, however, it cannot be over-looked that those appellants were found guilty for the offence punishable under Section 326 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for one year. Such benefit was not given to appellant No. 1 Nasuriddin therein. There are cases and cases. Here is a case in which the appellants took law in hands in an attempt to punish PW Popat for the reason that he was not abiding himself their by 22 diktat. If such acts are not properly punished, then it would perhaps lead to law lessness in the society. In this view of the matter, I am unable to accept to the request of the learned Counsel for the appellants granting benefit of Probation to them. 17) For the reasons afore stated, I am inclined to hold that the conviction of the appellant Nos. 2,3 & 9 for the offense punishable under Section 307 and 149 of Indian Penal Code is improper and liable to be interfered with. The remaining order of conviction, however, is legal and proper and no interference is called for. 18) In the result the appeal is partly allowed to the extent of the appellant Nos. 2,3 & 9 and the order of conviction rendered against them for offence punishable under Section 307 read with 149 of Indian Penal Code is set aside. However, the appeal to the extent of remaining part of the order of conviction and sentence is dismissed. The appellants shall surrender to the bail. At 23 this juncture, the learned Advocate for appellants prays for time to surrender. Two weeks’ time is granted to the appellants to surrender before Sessions Court for undergoing remaining part of the substantiative sentence. (V.R. KINGAONKAR, J.) sdm/crappe.417.97