1 Cri.Rev.No.234 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.234 OF 2009 Kanhaiyalal Kisan Pardeshi, Age:47 years, Occu: Hotel, R/o : Chimthana, Tq.Shindkheda, Dist.Dhule. .. APPELLANT VERSUS State of Maharashtra (Copy served on the Public Prosecutor, High Court, Bench at Aurangabad ) ... RESPONDENT ..... Shri. Joydeep Chatterji, Advocate for the Applicant. Mr.D.V.Tele, A.P.P. for the Respondent / State. ..... CORAM : S.B.DESHMUKH, J. DATE OF RESERVING THE JUDGMENT : 29/11/2011 DATE OF PRONOUNCEMENT OF JUDGMENT : 02/12/2011 JUDGMENT (PER S.B.DESHMUKH, J.) 1. Heard learned counsel Mr.Joydeep Chatterji, instructed by Advocate Mr.Salgare for the petitioner and learned A.P.P. Mrs.B.R.Khekhale for the State. 2 Cri.Rev.No.234 of 2009 2. Rule made returnable forthwith. Taken up for final hearing with the consent of the counsel appearing for the parties. 3. The legality, correctness and propriety of the order passed by Learned Additional Sessions Judge, Dhule on 31st August, 2009 in Criminal Appeal No.91 of 2008, in relation to present petitioner is questioned in this revision petition. 4. This revision petition, has been filed by the petitioner on 2nd September, 2009. This petition was listed for admission before this Court on 4th September, 2009. This Court has issued notice returnable on 8th October, 2009. The learned counsel for the petitioner sought permission to produce copies of depositions and documents exhibited during the trial. Such permission was granted by this Court, by the order passed on 20th November, 2009. Hearing of the petition was adjourned to 18th December, 2009. By the order passed by this Court on 18th December, 2009 record and proceedings were called for and hearing of the petition was deferred till 15th of January, 2010. 5. Heard learned counsel Mr.Chatterji and learned A.P.P. Mrs.B.R.Khekhale on 29th November, 2011. 3 Cri.Rev.No.234 of 2009 6. The facts in brief necessary for disposal of this revision application are set out herein below : 7. The incident in the case on hand according to prosecution, occurred on 12th March, 2005. First information report regarding this incident dated 12th of March, 2005 was lodged by Mr.B.N.Sangle. Based on this report Crime No.I-20/2005 was registered against the present petitioner and three other persons. These four accused persons, including the present petitioner, were tried in RCC No.37 of 2005 for the offences punishable under sections 323, 332, 353, 504, 506 r/w.34 of Indian Penal Code. It is the case of the prosecution that informant Mr.B.N.Sangle, at the relevant time, was serving as Assistant Controller at Chimthana bus stand. One Mr.Avhad was a Depot Manager at Shindkheda depot. A week earlier from the day of incident, Depot Manager Mr.Avhad had visited Chimthana bus stand and found that original accused no.1 i. e. the petitioner in this petition had kept thorny bushes within the campus of bus stand. Mr.Avhad, a Depot Manager directed the informant Mr.B.N.Sangle, Assistant Controller to remove said thorny bushes. According to prosecution informant Mr.B.N.Sangle asked original accused no.1, i.e the present 4 Cri.Rev.No.234 of 2009 petitioner to remove said thorny bushes. It is alleged that petitioner did not budge. On the day of incident i.e. on 12th March, 2005 Sweeper Mr.Muslman Shaikh had been to the bus stand of Chimkhana for cleaning and sweeping the bus stand. On that day at about 8.30 a.m., it is alleged that Sweeper Mr.Shaikh and Waterman Mr.Vasant Bagul were cleaning the campus of bus stand Chimthana. At about 9.00 a.m. Mr.B.N.Sangle, an informant asked accused No.1 (present petitioner) to remove those thorny bushes. According to prosecution all original four accused persons who were present, got annoyed, had abused and threatened to kill the informant Mr.B.N.Sangle. It is also alleged that the accused No.2 Rajesh Gangaram Pardeshi (not party to this revision petition) had assaulted informant Mr.B.N.Sangle by fist blows more specifically on his right eye. According to prosecution case, all the accused persons including the present petitioner, had assaulted informant Mr.B.N.Sangle on stomach and back. According to prosecution Sweeper Mr.Musalman Shaikh and Waterman Mr.Bagul had rescued the informant Mr.B.N.Sangle. It is this incident, which has been reported by lodging first information report by informant Mr.B.N.Sangle, as referred to 5 Cri.Rev.No.234 of 2009 above. 8. After registration of the crime no.I-20/2005 investigation was carried out, completed and chargesheet was filed against the four accused persons, including present petitioner for the offences punishable under sections 323, 353, 504, 506 r/w.34 of Indian Penal Code. The police submitted chargesheet in the court of Judicial Magistrate ( First Class ) Shindkheda, District Dhule. Learned Judicial Magistrate ( First Class ) Shindkheda framed charges against the all accused persons including the present petitioner at Exh.11. The charges were explained and readover to accused persons. They were denied. Trial was claimed by the accused persons. 9. On trial, the Learned Judicial Magistrate ( First Class) Shindkheda convicted all four accused persons, including the present petitioner, for the offences punishable under Sections 332 and 353 r/w.34 of Indian Penal Code. All the accused persons, however, have been acquitted of the offences punishable under sections 504, 506 r/w.34 of Indian Penal Code. The present petitioner who was accused No.1, has been sentenced to undergo rigorous imprisonment for six months and 6 Cri.Rev.No.234 of 2009 to pay fine of Rs.3000/- ( Rupees Three Thousand), in-default to undergo simple imprisonment for one month. This punishment was imposed for the conviction of offence under Section 332 of Indian Penal Code to the present petitioner. The original accused Nos.2 to 4 have been sentenced to pay fine of Rs.3000/- each, indefault to undergo simple imprisonment for a month for the offence punishable under sections 332 r/w.34 of Indian Penal Code. Even though all four accused have been convicted for the offences punishable under section 332 and 353 of Indian Penal Code, no separate punishment is awarded for offence under Section 353. This judgment has been delivered by the Learned Judicial Magistrate (First Class), Shindkheda on 08/07/2008 in R.C.C.No.37 of 2005. 10. The present petitioner original accused No.1 alone challenged his conviction for the offence punishable under Sections 332 and 353 r/w.34 of Indian Penal Code, by filing Criminal Appeal No.91 of 2008 in the Sessions Court at Dhule under Section 374 of the Criminal Procedure Code, suffice to note that even though original accused Nos.2, 3 and 4 had been convicted and sentenced for the offences punishable under 7 Cri.Rev.No.234 of 2009 sections 332 and 353 r/w.34 of Indian Penal Code by the learned trial court in R.C.C.No.37 of 2005. They did not challenge said conviction and sentence. 11. Criminal Appeal No.91 of 2008 filed by the present petitioner before the Learned Sessions Court Dhule was made over to Learned Additional Sessions Judge Dhule. The Learned Additional Sessions Judge Dhule heard and dismissed Criminal Appeal No.91 of 2008 filed by the present petitioner by impugned judgment and order passed on 31st August 2009. The appellant ( present petitioner ) was present in the Court before the Learned Additional Sessions Judge Dhule, on 31st August 2009. He was taken in the custody to undergo the sentence. 12. It is this judgment and order of Learned Additional Sessions Judge in Criminal Appeal No.91 of 2008 is assailed in this revision application by the petitioner. This Court has passed an order in Criminal Application No.3086 of 2009, and has granted bail to present petitioner. 8 Cri.Rev.No.234 of 2009 13. The Learned Appellate Court appears to have accepted the evidence of P.W.1 Mr.Baban Namdeo Sangle. The evidence of P.W.2 Muslim Shaikh Nabi, according to Learned Appellate Court, corroborates the evidence of P.W.1 Mr.B.N.Sangle. The learned counsel present before the Court are in agreement that the medical certificate pertaining to injuries sustained by P.W.1 Mr.B.N.Sangle is on record however is not established. The Learned A.P.P. points out the observations of the Appellate Court in para 18 of the judgment, though the Medical Officer to whom P.W.1 Mr.B.N.Sangle had been referred, is not examined, inference has been drawn by Appellate Court that suggestion given to P.W.1 in cross examination shows that P.W.1 had received injury. According to Learned A.P.P. the Appellate Court has justifiably recorded the findings that P.W.1 Mr.B.N.Sangle had received injury during the occurrence. Learned A.P.P. However points out observation of the Appellate Court in para 18 of the judgment that hurt was caused to P.W.1 due to assault on his person by accused persons, by fist blows on his stomach and back. 14. With the assistance of the learned counsel present before the Court I have considered the findings of Learned 9 Cri.Rev.No.234 of 2009 Appellate Court in para 19, regarding offence punishable under Section 353. Learned counsel for the petitioner, took me to the first information report at Exh.21. It is alleged by the informant in F.I.R. that on the date of incident and at relevant time he had instructed the accused to remove thorny bushes from western part of bus stand. The accused got annoyed and all accused abused him and assaulted with fist blows and kicks. With the assistance of learned counsel for the parties, I have also considered the evidence of P.W.1. The evidence of P.W.1 Mr.B.N.Sangle shows that when he asked all accused persons to remove said fencing, they did not listen to him. It is further categorically stated; “ the accused persons have started to abuse and assaulted me. The accused persons have assaulted me by kicks and fist blows.” The learned counsel for the petitioner submits that assault by kicks and fist blows is attributed to all four accused and not to the petitioner alone. He further points out evidence of P.W.2 Muslim Shaikh Nabi ( Sweeper ). This witness claims that he had seen quarrel between P.W.1 and accused. Here also learned counsel for the petitioner points out that the allegations are only regarding quarrel and not pertaining to assault by petitioner with fist blows 10 Cri.Rev.No.234 of 2009 and kicks. Learned A.P.P. could not point out attribution of specific role to the petitioner, i.e. assault by kicks and fist blows to P.W.1 Sangle on stomach and back. Learned A.P.P. however supports the judgment of Appellate Court. 15. The status of informant Mr.B.N.Sangle as a public servant being Assistant Controller of M.S.R.T.C. at the relevant time is admitted by the learned counsel for the petitioner. I have considered the definition of hurt under Section 319 of Indian Penal Code, meaning " bodily pain, disease or infirmity to any person." It is not the case of disease or infirmity to informant in the case on hand. It is the case of hurt i.e. causing bodily pain by assaulting informant by the petitioner with fist blows and kicks. There is no specific evidence showing that petitioner alone assaulted informant with kicks and fist blows and caused hurt within the meaning of Section 319. Even if the evidence of P.W.1 and P.W.2 is accepted in its entirety, in my opinion, there is absolutely no material on record to show that petitioner caused voluntary hurt to deter P.W.1 Mr.B.N.Sangle while performing his duty as a public servant. Use of criminal force to deter public servant from discharging his duty is the offence 11 Cri.Rev.No.234 of 2009 under Section 353. In my view there is absolutely no material against the present petitioner proving that he has either assaulted or used criminal force to deter P.W.1 Mr.B.N.Sangle from discharing his duty on the date of incident. The conviction imposed upon the present petitioner for the offence punishable under Sections 332, 353 needs to be quashed and set aside by giving benefit of doubt to the petitioner in the facts, circumstances and material brought on record. 16. In the light of observation made in forgoing paragraphs, in my view, present application needs to be allowed by quashing the conviction and sentence imposed upon the present petitioner for the offence punishable under Section 332. 17. In the result Revision Application is allowed in terms of prayer clause ‘ C ‘ . The petitioner is acquitted of the offences punishable under Sections 332 and 353 of Indian Penal Code, His bail bonds stand cancelled. Fine, if paid, be refunded to the petitioner. Rule made absolute in above terms. Sd/- ( S.B.Deshmukh, J.) cri.apln 234.09/dsp 12 Cri.Rev.No.234 of 2009