Case: Ajab and Others Vs. State of Maharashtra

In Sessions Case 13 of 1974, 23 persons were arraigned before the learned Additional Sessions Judge, Yavatmal for the commission of offences punishable under Section 147, 201, 216, 332 and 295, IPC. The learned judge convicted accused 2 and 17 to 21 under the aforesaid provisions and sentenced them to varying terms of imprisonment on each counts. All of them preferred an appeal to the High Court. Masodkar, U, who heard the appeal found that no error was committed by the trial court and dismissed the appeal. Against the said order, original accused 17 to 21 have approached this Court by special leave2. The facts giving rise to this appeal, briefly stated, are these : The incident in question occurred on December 26, 1972 between 2 p. m. and 5 p. m. in village Dahegaon. On that day, PW 1 head Constable Bansi received information that certain persons were gaming by placing bets at a cock fight. Thereupon, PW 1 raided the place in the company of police constables PWs 2, 4, 5, 12 and others and two panchas, PW 6 Narayan and PW 9 Prahlad. Twelve persons were arrested for gambling and a seizure panchnama was prepared Besides arresting the twelve persons who were found gambling, two dead cocks, ten live cocks, 12 katyams and Rs. 50 were seized under the seizure memo. Other members of the crowd who had succeeded in fleeing on the arrival of the police party regrouped themselves and started pelting stones as the police party was escorting the apprehended persons. In the confusion that followed by attack, the twelve apprehended persons broke loose and ran away along with the cocks. One of them even removed the seizure memo and the currency not from the pocket of the police constable who was in possession thereof They too joined the crowd which was pelting stones. The police party, therefore, ran away and some of them reached the police station Wadki and informed PW 3 Head Constable Kishan, (SHO) about the incident An entry was posted in the station diary about the incident but no offence was registered till PSI Gulamali returned on December 28, 1972. After registering the offence he went to Dahegaon on the 30th, drew up the panchnama, recorded statements ofand arrested the accused including the twelve persons who are apprehended earlier and had escaped3. The injured policemen were sent for treatment. They were examined by PW 7 Dr. Khadse. On examination of PWs 1, 4, 5, and 12 on the evening of December 26, 1972 it was noticed that they had certain trivial injuries which were possible by stones. PW 7 also examined some of the accused on December 31, 1972 but none of them had may visible injury. PW 8 Dr. Shankar Rao examined accused 17 on January 1, 1973 and noticed a healed scare 3/4" x 1/2 which was of little significance. In addition to this medical evidence the prosecution relied on the ocular evidence of PWs 1, 2, 4, 5, 6, and 12 to prove the actual occurrence. The learned counsel for the applicants contended that the prosecution version as regards the actual occurrence was highly suspect, more so because of the delay in lodging of FIR. We were taken through the evidence of the material witnesses." On a perusal of their evidence we are not inclined to think that the courts below and committed any error in the appreciation of their evidence We, therefore, do not think that this is a fit case for reappraisal of the evidence in exercise of jurisdiction under Article 136 of the Constitution

Reasoning: 5. Taking the last point first, we see merit in the contention that the conviction under Section 216 is wrong. Under that section person who harbours or conceals an offender who has escaped from custody or whose apprehension is ordered is liable for punishment if he has done so to prevent the offenders apprehension. In the present case, although the 12 persons who were apprehended for gaming had escaped, there was no evidence to show that any of the appellants was guilty of harbouring any of them. We are, therefore of the opinion that their conviction under section 216 IPC is not proper. The correct section to apply would be Section 224, IPC, which inter alia provides for punishment if a person escapes or attempts to escape from any custody in which he is lawfully detained. We are, therefore, of the opinion that the conviction under Section 216 IPC, is not proper and it ought to be under Section 224 IPC6. We agree with the learned counsel for the appellants that the case does not call for a severe punishment. The background in which the incident occurred, the minor injuries caused to some of the policemen and the circumstances in which the crowd pelted stones at the police party betray frustration for not being able to enjoy the cock fight rather than any real desire to attack the police party.