1 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.202 OF 1999 1. Kailas Govinda Mandole Aged 25 years, Occ. Agril., 2. Shivaji Dhana Pawar, Aged 33 years, Occ. Agril., 3. Sukhdeo Dhana Pawar, Aged 48 years, Occ. Agril., 4. Tatya Govinda Mandole, Aged 23 years, Occ. Agril., 5. Rama Govinda Mandole, Aged 22 years, Occ. Agril., 6. Pandurang Bhika Jadhav, Aged 24 years, Occ. Agril., All R/o Chalisgaon, Taluka Chalisgon, District Jalgaon. ... APPELLANTS (Original Accused) VERSUS The State of Maharashtra Copy to be served on the Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad. ... RESPONDENT ..... Shri V.R. Dhorde, Advocate holding for Shri R.N. Dhorde, Advocate for appellants Shri N.B. Patil, A.P.P. for respondent ..... W I T H 2 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 CRIMINAL REVISION APPLICATION NO.266 OF 1999 Ramlal s/o Dhana Pawar age major, Occu. Agril., R/o Bhadgaon Road, Opposite Cotton Mill, Chalisgaon, District Jalgaon. .. PETITIONER VERSUS 1. The State of Maharashtra Copy to be served on the Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad. 2. Kailas s/o Govinda Mandole Aged 25 years, Occ. Agril., 3. Shivaji s/o Dhana Pawar, Aged 33 years, Occ. Agril., 4. Sukhdeo s/o Dhana Pawar, Aged 45 years, Occ. Agril., 5. Tatya s/o Govinda Mandole, Aged 23 years, Occ. Agril., 6. Rama s/o Govinda Mandole, Aged 22 years, Occ. Agril., 7. Pandurang s/o Bhika Jadhav, Aged 27 years, Occ. Agril., 8. Kisan s/o Yeshwant Jorvekar, Age 46 years, Occ. Editor Gramastha, R/o Shejawalkar Nagar, Chalisgaon, Taluka Chalisgaon, District Jalgaon. Nos.2 to 7 R/o Bhadgaon Road, 3 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 Opposite Cotton Mill, Chalisgaon, Taluka Chalisgaon, District Jalgaon. ... RESPONDENTS ..... Shri P.B. Patil, Advocate for petitioner Shri N.B. Patil, A.P.P. for respondent No.1. Shri V.R. Dhorde, Advocate holding for Shri R.N. Dhorde, Advocate for respondent Nos.2 to 8 ..... CORAM : K.U. CHANDIWAL, J. DATE : 6th May, 2011. J U D G M E N T : 1. The accused/ appellants have challenged conviction recorded in Sessions Case No.88/1996, by learned III Additional Sessions Judge, Jalgaon, convicting them for offence punishable under Section 147 of the Indian Penal Code, to undergo S.I. for three months, for offence under Section 148 of the Indian Penal Code, S.I. for three months, for offence under Section 323 read with Section 149 of the Indian Penal Code, S.I. for three months with fine. 2. The original complainant has also preferred Criminal Revision Application No.266/1999 challenging the inadequacy of sentence in the said Sessions Case No.88/1996 and also the acquittal of accused No.7 Kisan Jorvekar for offence under sections 147, 148, 307, 506 read with Section 149 of the Indian Penal Code. 4 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 The appeal was admitted on 5.5.1999 while in the revision, rule was issued on 11.8.1999. 3. The complainant Ramlal resides with his son Prakash, who in turn conducts a cycle repair shop. The controversy between Ramlal and his brother Sukhdeo, on account of residential house, was creating volatile turbulent atmosphere between the brothers. 4. On 4.9.1995, while Prakash was in his cycle shop, situated across the road in front of house of complainant, it revealed that Shivaji, another brother of the complainant and other 2-3 family members were abusing, assaulting Prakash at his cycle shop. Consequent upon the message, complainant Ramlal, his wife rushed and saw the respondents inflicting stick blow to Prakash. Intervention by complainant aggravated the situation and complainant, his wife Suman also suffered the assaults and the injury. Kisan Jorvekar standing nearby was allegedly instigating the accused but left the spot immediately. Accused Kailas tried to inflict blow of sword on complainant, however, complainant checked and refrained him by his hands. Bebibai, sister of the complainant was also not spared. In injured condition, complainant Prakash and others were referred for medical examination. Crime No.210/1995 was registered against the accused persons, they were charge 5 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 sheeted before learned Judicial Magistrate, First Class, Chalisgaon and after committal, charge was framed. Accused pleaded not guilty to the charge and learned Sessions Judge, on analysis of evidence of 13 witnesses, reached to aforementioned conclusions. 5. Learned counsel for the appellants submits that, almost all the witnesses are inter-se relations to the complainant including the accused, while accused/ appellant No.1 was not related to the family. There was no assault by accused/ appellant. There was a dispute at a club/ gambling den in which complainant or his son have suffered the injuries and a different colour to the events is given. The role attributed to Kailas having brought a sword and attempted to assault is disputed as to from where he could bring such deadly weapon to inflict blow. If accused had left on the pretext that Prakash was dead, the nature of injuries did not indicate that he was dead. There is variance in sequence of the events and the acts and general statement is made of assault, and in exaggeration. Ramlal did not sustain any injury even after facing an attempted brutal assault on him. 6. The second limb of submission is, the alleged events have taken place on 4.9.1995 before 16 years, the parties are inter- se relations barring appellant Kailas and none has criminal record, 6 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 benefit of Probation of Offenders Act, 1958 be showered. 7. Mr. Patil, learned counsel for the complainant submits that the gravity of the assault and the fear carried by the complainant needs consideration to enhance the sentence and to convict the acquitted accused. 8. The spot where the incident has taken place being in front of complainant Ramlal’s house, it is unconceivable that his evidence or his wife’s evidence or of Bebibai would be leaning to a embroided evidence, accelerated in exaggerated form. The relations of accused Shivaji and Sukhdeo to be real brothers of the complainant and the parties not sailing well over immovable property i.e. residential house is not in controversy. The accounts of events given by P.W.2 Ramlal illustrate, he was in his house with his wife. Owing to commotion, his daughters Sangita and Vaishali went ahead and Vaishali informed about the accused/ appellants assaulting, abusing Prakash. Testimony of P.W.2 Ramlal is supported by his son P.W.6 Prakash who was presnet at the shop at 8.30 a.m. and how his uncle and others barged at him. The account of P.W.2 Ramlal and P.W.6 Prakash is supported by Sumanbai, who has also suffered the brunt of assault from the accused. P.W.8 Bebibai is sister of the accused and also of the appellant. Since she 7 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 heard the commotion and brawl between her relations, she tried to intervene and separate persons in the group. She names accused Shivaji, Sukhdeo, Tatya, Pandurang Rama to be beating her brother Ramlal and his son Prakash. P.W.5 Sudam has his hotel nearby and has supported the events as narrated by the aforesaid witness. P.W. 10 Vaishali, as stated above, went across the road on hearing commotion, but could not intervene as the rage of accused/ appellant could not be faced by her. The accused persons are of acquaintance. 9. The injuries suffered by complainant and the witnesses speak for itself and it seldom is possible that a event of a club is projected to have happened at the spot i.e. cycle shop. These are illusory submissions, far stretched and difficult to digest to act upon. There was remote chance for injured ladies to be at a gambling den. None would espouse a cause either way. Exhibit 58 is the spot panchanama, which specify shop of Prakash match to the narration of P.W.2 Ramlal to be in front of his house. The hotel of Sudam is little away but that will not change the colour and complexion as the hue and cry and commotion could not lost attention of the passers- by. 10. Evidence of Dr. Chavan (P.W.3) has established the 8 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 injuries suffered by Prakash, which was a head injury – CLW over left frontal region of head 2 cm. x 1 ½ cm. The gravity illustrated, it was skull bone deep. Prakash had abrasion at his left shoulder, contusion at elbow joint. Dr. Chavan has also informed of the injuries of Ramlal of identical head injury, CLW over lateral part side of brain, few abrasions, Sumanbai had blunt injury over her abdomen, at her chest. Bebibai had also blunt injury. Dr. Chavan is independent witness having examined the injured between 9.00 a.m. to 9.30 a.m. immediately after the incident carving significance. The injuries were fresh which cements that the attack on the complainant and the injured was at the spot of Prakash’s shop and could not be at the club. The injuries were certified to be by hard and blunt object. 11. Shalig Amrut Jadhav (P.W.9) conducts the betel shop nearby Mill on Bhadgaon Road. He was taking breakfast in the house. Suddenly the accused Kailas, Rama, Pandurang, Tatya barged in his house. He was dragged. The accused assaulted him with sticks. Kailas had brick in his hand. He was beaten at the back also. Intervention by his mother did not mend the attack and assault. His shirt was stained with blood (Article 7). He has identified the accused in the Court. It was suggested, since he 9 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 faced Criminal Case No.207/1995 under Section 324 of the Indian Penal Code, and the accused are witnesses in the said case, hence he has embroidered the picture. There was no reason for the accused/ appellants to drag him from a distance of 1 Km. He informs that Prakash, Ramlal, Sumanbai and Bebibai were at hospital but unconscious. He spoke to them on the next day when statement of Ramlal was recorded by P.S.I. 12. Re-visiting the facts, I find that contradictions in the evidence of P.W.9 Shalig are proved by P.W.3 P.S.I. Chavan, P.W.13 Police Officer, however, it will not change the complicity of the assault in the light of the medical evidence. 13. P.W.2 Ramlal implicated Kisan Jorvekar for inflicting knife blow at his head and also beating his wife. However, this does not find in his F.I.R. Exhibit 68. This is even not supported by P.W.5 Sudam, P.W.6 Prakash, P.W.8 Bebibai or Vaishali (P.W.10). 14. The blood stained apparels of the injured collected at the hospital were also identified. 15. It is inconceivable that over a dispute of club the accused/ appellants are falsely implicated. The overall survey of the 10 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 evidence illustrate that the learned Sessions Judge, having verified the evidence from all the angles, reached to the afore-referred findings of convicting the accused/ appellant. He gave benefit in the light of evidence from the accusations under Sections 307, 506 and 149 of the Indian Penal Code. Kisan Jorvekar could not be said to have participated and he was rightly acquitted. 16. The incident of assault, has taken place before 16 years when the accused/ appellants were young. Two of the accused/ appellants are brothers of the complainant and uncle of Prakash. Section 4 of the Probation of Offenders Act applies to any person found guilty of having committed offence punishable with death or imprisonment for life. Age is not a bar to consider protective umbrella of the Act. There is nothing to suggest, the accused/ appellants, after 1995, have continued their illegalities of humiliating the complainant or the family members. The instant matter, does not involve a heinous crime against society. It was a clash on the immovable property between basically two brothers. Taking evaluation of these aspects, enforcement of Probation of Offenders Act in such area of relations is imperative and essential. It will avoid struggle for conviction as the complainant desires and at the same time it will ensure a passage of protection to the complainant or the injured as the appellants have to maintain peace else to face the left 11 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 over sentence. The provisions of Probation of Offenders Act cannot be whittled down for by the assertion that their engagement could be a weapon to the accused/ appellants to continue their illegalities. In the set of above situation, the accused/ appellants deserve protective umbrella under Probation of Offenders Act. 17. The revision seeking enhancement and also setting aside acquittal of respondent No.8, in the light of foregoing discussion, would not logically lean to accept that findings of the learned Sessions Judge are perverse. The learned Sessions Judge has assigned reasons as to why he discarded evidence against respondent No.8 in the revision and as to why evidence concerning infraction of Section 307 of the Indian Penal Code faced deflation. 18. Taking these aspects into consideration, the conviction recorded against the appellants is maintained. However, the appellants be released on their executing a bond of good behaviour in the sum of Rs.5000/- (Rupees five thousand) each for a period of three years in terms of Section 4 of the Probation of Offenders Act, 1958. 19. The accused/ appellants, during the above period and even otherwise, are expected to maintain peace and tranquility, they will not indulge in any criminal activity, not to harass, humiliate the 12 Criminal Appeal No.202/1999 with Criminal Revision Application No.266/1999 complainant and the injured persons. If the accused/ appellants commit any offence and breach of the terms of the bond, they are bound to undergo rest of the sentence. 20. The bond to be executed before the learned Additional Sessions Judge, Jalgaon in Sessions Case No.88/1996 up to 10.6.2011. 21. Copy of the judgment be sent to the Probation Officer at Chalisgaon, who will monitor movements and conduct of the appellants periodically and maintain record to this effect. He will also independently report to the learned Additional Sessions Judge at Jalgaon if any breach of the above terms are recorded/ noticed. 22. The revision seeking punishment for offence punishable under Sections 147, 148, 149, 307, 323, 506 of the Indian Penal Code against the accused/ appellants and challenging acquittal of respondent No.8 Kisan Jorvekar is rejected. K.U. CHANDIWAL JUDGE