Bombay High Court
Purushottam Natthuji Patharikar And 11 ... vs State Of Mah. Thru. P.S.O. Telhara on 21 January, 2021
Author: Pushpa V. Ganediwala
Bench: Pushpa V. Ganediwala
209Cri.apeal81.08.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 81 OF 2008
1) Purushottam Natthuji Patharikar,
(original accused No. 1)
Aged about 37 years.
Occ. Cultivator
2) Narendra Dadarao Patharikar,
(original accused No. 2)
Aged about 36 years,
Occ. Cultivator
3) Pandurang Baliram Patharikar
(original accused No. 3)
Aged about 45 years,
Occ. Cultivator
4) Sunil Sopanrao Warankar,
(original accused No. 7)
Aged about 29 years,
Occ. Cultivator
5) Prashant alias Balkrushna
Dinkarrao Mohod
(original accused No. 10)
Aged about 40 years,
Occ. Cultivator
6) Santosh Shivlal Mohod,
(original accused No. 11)
Aged about 33 years,
Occ. Cultivator
7) Narendra Manikrao Mohod,
(original accused No. 12)
Aged about 33 years,
Occ. Cultivator
8) Devidas Ambadas Patharikar
(original accused No. 14)
Aged about 36 years,
Occ. Cultivator
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209Cri.apeal81.08.odt 2
9) Gajanan Shriram Patharikar,
(original accused No. 16)
Aged about 44 years,
Occ. Cultivator
10) Vijay Shaligram Mohod
(original accused No. 26)
Aged about 30 years,
Occ. Cultivator
11) Dadarao Yashwantrao Patharikar
(original accused No. 30 )
12) Janrao Gulabrao Patharikar
(original accused No. 6)
All residents of Manabda,
Tq. Telhara, Dist. Akola ...APPELLANTS
// VERSUS //
The State of Maharashtra
through P.S.O. Telhara,
District Akola ...RESPONDENT
_____________________________________________________________________________
Shri Suyash Agrawal, Adv. h/f Shri S.V. Sirpurkar, Advocate for the appellants.
Shri H.D. Dubey, A.P.P. for respondent - State.
__________________________________________________________________
CORAM : PUSHPA V. GANEDIWALA, J.
DATE : JANUARY 21, 2021
ORAL JUDGMENT :
This appeal is directed against the judgment and order dated 21/01/2008 passed by the Ad hoc Additional Sessions Judge, Akot, in Sessions Trial No.59/2005, by which the appellants have been convicted in Crime No.50/2004 for the offences punishable under Sections 147, 148, 452, 324, 336, 427 and 435 ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 3 read with Section 149 of the Indian Penal Code (for short "IPC") registered at Police Station, Telhara, District Akola.
2. For the offence punishable under Section 324 of the IPC, the appellants are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- (Rs. Five hundred only) each; in default, to undergo further rigorous imprisonment for one month.
For the offence punishable under Section 336 of IPC, the appellants are sentenced to suffer rigorous imprisonment for one month and to pay fine of Rs. 100/- (Rs. One hundred only) each; in default, to pay undergo further rigorous imprisonment for four days.
For the offence punishable under Section 427 of the IPC, the appellants are sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/- (Rs. Five hundred only) each; in default, to pay to undergo further rigorous imprisonment for one month.
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For the offence punishable under Section 435 of the IPC, the appellants are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- (Rs. One thousand only) each; in default, to undergo further rigorous imprisonment for two months.
For the offence punishable under Section 452 of the IPC, the appellants are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/- (Rs. Five hundred only) each; in default, to undergo further rigorous imprisonment for one month.
All the substantive sentences were directed to run concurrently.
The appellants have been acquitted of the offences punishable under Sections 294, 325, 506(2) of the IPC and Section 37(i) read with Section 135 of the Bombay Police Act, 1951.
3. In this crime, in all 32 accused faced the trial. Out of them, the conviction was recorded against the appellants, ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 5 i.e. accused Nos.1, 2, 3, 6, 7, 10, 11, 12, 14, 16, 26 and 30; while the other co-accused, i.e., accused Nos.4, 8, 9, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31 and 32 were acquitted by the Trial court. Accused Nos.6 and 30 have been released on the bond of good conduct. During trial, the accused No.5 was reported to be dead and hence the trial against him stood abated.
4. It may be noted that the State of Maharashtra has not preferred appeal against the acquittal of the co-accused. The learned Trial Court justified their acquittal on the ground that the presence and identity of these accused persons, being members of an unlawful assembly, have not been established from the evidence of at least two prosecution witnesses.
5. The prosecution case, in brief, is as under :
(i) On 08/07/2004, PW-1 Pundlik - the informant, had attended a rally of the Nationalist Congress Party at Shegaon.
Accused No. 1 - Purushottam Pathrikar had also attended the said rally. During the rally, accused Purushottam uttered ill words about the Nationalist Congress, which annoyed the party members from Amravati, who then quarreled with Purushottam ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 6 and jostled him. PW-1- informant then returned to his village Adsul.
(ii) On the same day at around 9.00 to 9.30 p.m., while PW-1 and his family members, including his brothers and parents, were present in the house, a mob of around 100 to 125 people came and started pelting of stones towards his house. PW-2 Deolal, the father of PW-1, came at the main gate of the house to see as to what has happened. The people had broken the gate of the fencing and entered into the courtyard. The appellants and the co-accused, who have been acquitted, and Mahadeo Tulshiram Chikte (original accused No. 5), who died, were the part of that group. The members of the mob were armed with sticks and spears. They were abusing in the name of PW-1. Accused No.2 Narendra Pathrikar assaulted Deolal (PW-2) with a stick . Accused No. 1 Purushottam Pathrikar assaulted PW-3 Ratan with a spear. Due to pelting of stones, Sushilabai, the mother of PW-1, sustained injury on her leg.
(iii) It is the further case of the prosecution that during the course of the incident, the accused damaged the vehicles which ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 7 were parked there. They set on fire a structure of straw and fodder. Thereafter, the members of the mob left the place.
6. On the next day of the incident, PW-1 Pundlik Devlal Arbat lodged a report of the incident at Police Station, Telhara. On the basis of the said report, a crime at Serial No.50/04 came to be registered for the offences punishable under Sections 147, 148, 436, 452, 337, 324, 325, 294, 427, 506 and 323 of the IPC and under Section 37(i) read with Section 135 of the Bombay Police Act, 1951 against the accused. During investigation, 18 accused came to be arrested and weapons, i.e. sticks, were recovered from the accused persons at their behest under Section 27 of the Indian Evidence Act. One spear was recovered at the instance of accused No. 1 Purushottam. The other accused were released on anticipatory bail and as per the practice prevailing then, these accused surrendered before the trial Court and were released on regular bail. The arrested accused were also released on regular bail immediately after their remand to judicial custody.
7. During the course of investigation, the Investigating Officer (PW-12) visited the spot of the incident and conducted ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 8 spot panchnama. The injured were sent to the hospital for their treatment. PW-12 recorded statements of witnesses. After investigation, PW-12 filed the chargesheet to the Court of Judicial Magistrate First Class, Telhara, which in turn committed the case to the Court of Session, Akot, as the offence punishable under Section 436 of IPC is exclusively triable by the Court of Session. The learned Additional Session Judge framed the charge (Exhibit 47) against the accused for the above-mentioned offences, to which they pleaded not guilty and claimed to be tried. Their plea was recorded. In order to bring home the guilt against the accused, the prosecution examined in all 12 witnesses and also brought on record the relevant documents. The names of the witnesses and the details of the documents are as under :
PW-1 - Pundlik s/o Devlal Arbat (informant) PW-2 - Devlal s/o Ramdhan Arbat (injured eye witness) PW-3 - Ramanlal s/o Devlal Arbat (injured eye witness) PW-4 - Bhaskar s/o Dadarao Arbat (injured eye witness) PW-5 - Punjabrao s/o Devchand Punde (Spot Panch) PW-6 - Rajaram s/o Samadhan Warkhade (injured eye witness) PW-7 - Ramnarayan @ Balu s/o Shaligram Arbat (eye witness) PW-8 - Dr. Asha w/o Anant Mirge (Private Medical Practitioner) PW-9 - Dr. Avinash s/o Hanmantrao Patil (Private Medical Practitioner) PW-10-Pandurang s/o Jagannath Bharsakle (recovery panch-hostile witness) PW-11 - Dr. Anil s/o Hanumandas Mal (Medical Officer) PW-12 - Shri Rajendra s/o Pundlikrao Manware (Investigating Officer) Documents :
F.I.R. (Exh. 95) Printed F.I.R. (Exh. 96) Spot Panchnama (Exh. 106) ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 9 Seizure Panchnama (Exh. 134 to 147) Injury Certificates and medical reports (Exh. 116, 122 to 129, 113 & 114)
8. The learned Trial Court examined the accused persons under Section 313 of the Code of Criminal Procedure, 1908 and recorded their statements. The accused also placed on record their additional written statements (Exhibit 152). The defence of the accused was of total denial. They claimed to have been falsely involved in the incident. The witnesses are interested, being relatives of PW-1. Accused Vijay Mohod defeated PW-1 in Zilla Parishad Election from Narsapur Constituency. There is a political rivalry between PW-1 and accused persons, especially accused No. 1 Purushottam. Accused have not led any defence evidence.
9. The Trial Court, on the basis of evidence on record and the submissions on behalf of the parties, passed the judgment of conviction against the appellants, as the presence of the appellants on the spot, being the members of the unlawful assembly, has been established through the testimonies of at least two witnesses and acquitted the other co-accused for want of the corroborative evidence. This judgment is assailed by the appellants in this appeal.
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10. I have heard Advocate Shri Suyash Agrawal, holding for Shri S.V. Sirpurkar, learned counsel appearing for the appellants/ accused, and Shri H.D. Dubey, learned Additional Public Prosecutor for the respondent - State. With the assistance of the learned counsel for both the parties, I have also gone through the record
11. The learned counsel Shri Suyash Agrawal, appearing for the appellants, submits that all the aforesaid offences, except offence punishable under Section 436 of the IPC, are triable by the Court of Magistrate.
12. It is further submitted that though the charge against the appellants has been framed for the offence punishable under Section 436 of the IPC, which was triable by the Sessions Court, the conviction of the appellants is recorded under Section 435 of the IPC, which is triable by the Magistrate. It is further submitted that in none of the aforesaid offences, which have been proved against the appellants, the minimum sentence of imprisonment is provided. It is submitted that the incident is of the year 2004, i.e. prior to 16 years, and it had happened due to political rivalry ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 11 between the two groups in the Village. It is submitted that none of the appellants are of criminal mentality. They have roots in the Society and are settled in their life. None of the appellants have any criminal antecedents. The learned counsel for the appellants further submitted that if at all the Court found the appellants/accused guilty of the offence, then considering the nature of offence and the injuries, the imprisonment for two years to the appellants/accused is harsh. The learned counsel urged to release the appellants/accused on enhanced amount of fine instead of sentence of imprisonment or to release them on a bond of good behavior under the provisions of the Probation of Offenders' Act, 1958.
13. Shri Dubey, learned Additional Public Prosecutor, while supporting the impugned judgment and order, fairly submits for passing the appropriate order.
14. I have considered the submissions made on behalf of both the sides. At the outset, it is a case of a riot by 100 to 125 people. It is not in dispute that the roots of the riot lie in the political rivalry between the two political groups. The appellants have been convicted for the aforesaid offences with the aid of ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 12 Section 149 of IPC, they being the members of the unlawful assembly, the object of which was to cause hurt to the PW-1 and his family members. With regard to the conviction of the accused with the aid of vicarious liability, the Hon'ble Apex Court, in the case of Masalti Vs. The State of Uttar Pradesh reported in AIR 1965 SCC 202, while dealing with the issue that whether an overt act of each of the members of the unlawful assembly is necessary for fixing a criminal liability with the aid of Section 149 of the IPC, it is held that a person who is alleged to be a member of an unlawful assembly, it has to be proved against him that he was one of the persons constituting the assembly and he entertained along with the other member of the assembly the common object as defined by Section 141 of the IPC.
It is also well-settled through a catena of judgments of the Hon'ble Apex Court that the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 13 the case of a person falls within the ingredients of the section the fact that he did nothing with his own hands would be immaterial.
In the case of Masalti (supra) , considering the large number of offenders involved in the case, the Hon'ble Apex Court developed the concept of 'Two witness theory'. The relevant part of the said judgment is reproduced below:
"......... where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 14
15. Keeping the aforesaid dictum in mind, I proceed to discuss the evidence on record. A perusal of the depositions of the prosecution eye-witnesses, especially PW-2, PW-3, PW-4 and PW-6, would reveal that the appellants/accused were present in the mob. A careful and comparative examination of their testimonies would further reveal that the name of each of the appellants/accused was taken by at least two witnesses. The appellants have been identified by the witnesses in the Court. Since these witnesses being injured witnesses and the injuries on their persons have been proved through the injury certificates and the oral testimony of Medical Officer, their presence at the spot of the incident have been clearly established. The injured eye-witnesses deposed about holding of sticks by the appellants/ accused. The sticks were recovered from the custody of some of the appellants/accused during the course of investigation under recovery panchnama. A perusal of the injury certificates (Exhibits 122 to 129) would reveal simple injuries by hard and blunt object and none of the injuries is said to be caused with spear allegedly in the hands of accused No. 1. Admittedly, none of the injured was required to have been admitted in the hospital. Each of the four injured witnesses sustained one or two ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 15 simple injuries. Considering the oral evidence of the injured eye-witnesses i.e. PW-2, PW-3, PW-4 and PW-6, supported by the medical evidence, the learned Trial Court has rightly convicted the appellants/accused for the offences punishable under Sections 147, 148 and 324 of the IPC and acquitted the appellants/accused of the offence punishable under Section 325 of the IPC.
16. It is worthwhile to note that the learned Trial Court has not considered the testimony of PW-1 - the informant as reliable, for the reason that in his report (Exh. 95) he has stated that out of fear of injury he had concealed himself during the incident and, therefore, he could not have witnessed the entire incident. The trial Court also preferred not to rely on the testimony of PW-7, who claimed to have been the injured eye-witness, for want of his injury certificate on record. I do not find any fault with the Trial Court for not considering the testimonies of PW-1 and PW-7 by it. The testimony of the other prosecution witnesses are sufficient to bring home the guilt against the appellants/accused for some of the offences. ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 16
17. With regard to the conviction under Section 336 of the IPC, the injured witnesses (PW-2, 3, 4 and 6) in clear terms stated about pelting of stones by the appellants/accused to the house of PW-1. The spot panchnama (Exhibit 106), which is established through PW-5 and PW-12 (Investigating Officer) would further reveal pieces of bricks outside and inside the premises of house of PW-1. This would clearly establish the fact of pelting of stones indiscriminately, rashly and negligently by the accused persons towards the house of PW-1 in prosecution of their common object to hurt the inmates of the house. The learned Trial court has rightly convicted the appellants/accused for the offence under Section 336 of the IPC.
18. With regard to the conviction of the appellants/accused under Section 427 of the IPC, the prosecution also succeeded in establishing that the group of persons, including the appellants/accused herein, also damaged the vehicles, i.e. tractor, jeep and two-wheeler, which were parked in the premises of PW-1. This part of evidence is further corroborated by the spot panchnama (Exhibit 106). The learned Trial Court has rightly held that the appellants/accused in prosecution of their common object committed mischief and thereby caused damage to the ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:28 ::: 209Cri.apeal81.08.odt 17 vehicles, which were parked in the premises where the incident occurred.
19. With regard to the conviction of the appellants/accused for the offence punishable under Section 452, i.e. house-trespass after preparation for hurt, assault or wrongful restraint, the prosecution witnesses deposed about entering of some of the members of the mob into the courtyard (fenced with straws) which was in the front of the house of PW-1 by breaking open the door of the main gate. None of the prosecution witnesses deposed that the members of the mob entered into the house of PW-1. The evidence, which is brought on record, would reveal that the members of the mob criminally trespassed into the property of PW-1, which is a minor offence punishable under Section 447 of IPC. So also, the learned Additional Public Prosecutor could not point out any material from the record to believe the prosecution story of house-trespass. For these reasons, this Court is unable to agree with the findings recorded by the learned Trial Court. The prosecution has failed to prove beyond reasonable doubt the offence under Section 452 of the IPC and, therefore, the appellants are entitled to be acquitted of this offence. However, the appellants are convicted for the ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 18 minor offence of criminal trespass defined under Section 441 of IPC and punishable under Section 447 of the IPC.
20. With regard to the conviction of the appellants for the offence punishable under Section 435 of the IPC, i.e. mischief by fire, it is to be noted that the Trial Court acquitted the appellants of the offence under Section 435 and recorded the conviction for the minor offence punishable under Section 436 of the IPC. The relevant Paragraph No. 17 from the judgment of the Trial Court is reproduced below :
"17. As regards the arson i.e. mischief by fire the spot panchnama would show that structure of straw was destructed. Spot panchnama does not mention that the cattle shade was destructed or servants cottage was destructed. PW 2 says that structure of straw used as residence for their servants was destroyed by fire. However, spot panchnama does not mention that it was used for residence of the servant. F.I.R. mentions that the shade was set on fire. At the time of spot panchnama the situation was inspected by the police officer and panch witnesses. It is not the statement of panchnama that the structure under which the cattles were tethered, destructed. Hence, the mischief of fire would come under Section 435 and not under Section 436 of I.P.C. During the fire incident ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 19 even some fodder was destroyed. Now as regards the criminal intimidation, there is no evidence to establish that offence."
21. The prosecution eyewitnesses deposed that the members of the mob set on fire the structure of straws adjoining the house of PW-1. As stated earlier, it is well-settled through a catena of judgments of the Hon'ble Apex Court that the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. In the present case, the prosecution has failed to establish the fact that mischief by fire was the common object of the unlawful mob. Secondly, the learned Additional Public Prosecutor could not point out from the record that the members of the mob was having knowledge that some of the members of the mob may commit an offence of mischief by fire. No doubt, for proving common object of the assembly, it is not necessary that there should have been prior plan or meeting of minds by the members. The common object can also be developed at the spot of the incident. However, there is absolutely no evidence as to how could the mob arrange for the fire or match-stick to ignite ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 20 the structure of straws. The prosecution evidence on this aspect is vague and general in nature. The offence of mischief by fire or arson is a serious offence. The appellants have been convicted with the aid of vicarious liability. In the absence of specific evidence of the fact that the appellants, being members of the unlawful assembly, were knowing that the offence of the arson is likely to be committed by the mob, they could not have been punished for this offence.
22. As per prosecution evidence, the members of the unlawful assembly were holding sticks. This part of the evidence would reveal that in prosecution of the common object of the unlawful assembly to hurt the prosecution witnesses, the members of the assembly had come with the sticks. Considering the evidence of the conduct and prior preparation of the assembly, the common object of the assembly for hurting PW-1 and his family members was obvious. Hence, the conviction of the appellants by the Trial Court for the offence under Section 324 of IPC was valid in view of the evidence on record.
23. Furthermore, there are materials on record with regard to damaging the vehicles with the sticks. However, with regard to ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 21 mischief by fire, there is absolutely no evidence that each of the appellants/accused were knowing that the object of the mob was to commit mischief by fire or the act of mischief by fire was likely in those circumstances. For these reasons, in the considered view of this Court, the appellants are required to be acquitted of the offence punishable under Section 435 of the IPC.
24. Now the question before this Court is with regard to the sentence to be imposed. Evidently, there were no serious injuries on the persons of the victims of the incident. The injuries were simple in nature. None of the victims were required to be admitted in the hospital. In the view of this Court, though there is no sentencing policy put in place, however, it is the basic principle of criminal jurisprudence that the sentence should commensurate with the seriousness of the offence.
25. Considering the nature of the crime, the weapons used, the number of injuries, the nature of injuries, the number of injured in the incident involving 100 to 125 people with sticks in hands, the absence of overt act by the appellants in causing such injuries as their conviction is mainly with the aid of vicarious liability, ages of the appellant, delay in the proceedings and ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 22 absence of criminal antecedents against them, in the considered opinion of this Court, the sentence of fine would serve the purpose, as none of the offences, which has been proved against the appellants/accused, are punishable with imprisonment and fine. All the offences, i.e. the offences under Sections 324, 336, 427 and 441 of the IPC, are either punishable with imprisonment or fine or both. For the above-stated reasons, in the opinion of this Court, the imposing punishment of fine would serve the purpose. On this aspect, it would be apposite to rely on the judgment of the learned Division Bench of this Court in the case of State of The State of Maharashtra V/s Joseph Mingel Koli and ors. reported in 1997 (1) Bom.C.R. 362, wherein their Lordships of this Court, while considering as to what sentence should be imposed on the accused, in Paragraph Nos.37 and 38, observed that as the incident took place more than 18 years ago, no specific acts have been assigned in the incident to any of the respondents therein, the age of the respondents at the time of imposing sentence and absence of criminal antecedents to their discredit, their Lordships have imposed the punishment for fine only for the conviction of the respondents for the offences punishable under Sections 143, 147, 324, 323, 337 and 436 read with Section 149 of the IPC.
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26. In the instant case, the appellants/accused have faced ignominy of the criminal proceeding since last 16 years. The occurrence of the incident was due to political rivalry. Admittedly, the appellants/accused do not have any criminal antecedent to their discredit. Each of the appellants/accused is aged above 50 years. It is worthwhile to note that the learned Trial Court released appellant Nos.11 and 12, by name (i) Janrao Pathrikar (accused No. 6) and (ii) Dadarao Pathrikar (accused No. 30), on the execution of bond of good conduct, considering their ages, being above 50 years.
27. For the reasons stated above, I am convinced that the justice would be done by imposing the enhanced amount of fine on the appellants. In this view of the matter, I pass the following order :
(1) The conviction of the appellants/accused for the offences punishable under Sections 147, 148, 324, 336 and 427 read with Section 149 of Indian Penal Code is maintained. The appellants/accused are acquitted of the offences punishable under ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 24 Sections 452 and 335 of the IPC. However, they are convicted for the minor offence punishable under Section 447 of the IPC.
(2) The sentence of imprisonment and fine in the aforesaid offences is modified into sentence of enhanced amount of fine as directed below :
i) For the conviction under Section 148 of the IPC, the appellants/accused Nos. 1 to 10 to pay fine amount of Rs. 2,000/- each; in default, to undergo rigorous imprisonment for two months.
ii) For the conviction under Section 324 of the IPC, the appellants/accused Nos.1 to 10 to pay fine amount of Rs. 2,000/- each; in default, to undergo rigorous imprisonment for two months.
iii) For the conviction under Section 336 of the IPC, the appellants/accused Nos. 1 to 10 to pay fine amount of Rs.200/- each; in default, to undergo rigorous imprisonment for ten days.
iv) For the conviction under Section 427 of the IPC, the appellants/accused Nos.1 to 10 to pay fine amount of Rs. 2,000/- each; in default, to undergo rigorous imprisonment for two months.::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 ::: 209Cri.apeal81.08.odt 25
v) For the conviction under Section 447 of the IPC, the appellants/accused Nos.1 to 10 to pay fine amount of Rs.500/- each; in default, to undergo rigorous imprisonment for fifteen days.
(3) The aforesaid fine amount includes the fine amount already paid. Out of this, an amount of Rs.30,000/- (Rs. Thirty thousand only) be remitted to the complainant towards compensation under Section 357 of the Code of Criminal Procedure.
(4) The benefit of the Probation of Offenders' Act extended to the appellants/accused Nos.11 and 12 shall remain the same.
(5) Bail bonds of the appellants/accused stand cancelled and the sureties are discharged.
28. The criminal appeal is partly allowed and disposed of accordingly.
JUDGE *DB ::: Uploaded on - 04/05/2021 ::: Downloaded on - 23/08/2021 21:58:29 :::