Bombay High Court
Rameshwar S/O Gomaji Bhiogade vs State Of Maharashtra, Thr. Pso on 18 January, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal43.12.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL N
O
.43 O
F 2012
Rameshwar s/o Gomaji Bhiogade
Aged 71 years, Occ: Pensioner,
R/o Kasturba Gandhi Ward,
Bhandara, Tah. & Dist. Bhandara. ....... APPELLANT
...V E R S U S...
State of Maharashtra through
P.S.O., Bhandara. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Shri N.S. Khandewale, Advocate for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 11.10.2017 DATE OF PRONOUNCING THE JUDGMENT : 18.01.2018 1] The appellant Rameshwar Bhiogade is assailing the
judgment and order dated 18.01.2012 passed by the Special Judge, Bhandara in Special Criminal Case 5/2010, by and under which, the appellant is convicted for offence punishable under section 323 of the Indian Penal Code and is sentenced to suffer simple imprisonment for two months and to payment of fine of ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 2 Rs.1000/-. The appellant faced trial along with one Umesh Padole for offences punishable under section 323, 504 and 506 of the Indian Penal Code and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The co-accused is acquitted of all offences and the appellant (hereinafter referred to as "the accused") is convicted as aforestated.
2] The case of the prosecution is that on 24.04.2010 at 09:00 a.m. the accused abused the complainant Siddarth Meshram, a member of Scheduled Caste, by uttering the words "Sale, Mahare, Too Mukhyaddhyapak Ki Khurchi Pe Kaise Baithta Hai Main Dekhta Hoon" with the intention of insulting and humiliating the complainant in public view. The accused also caused hurt to the complainant.
3] The genesis of the prosecution case lies in Exh.18 which is oral report lodged by the complainant Siddarth Meshram on 24.04.2010. The gist of the oral report is that the complainant is in-charge Head Master of Modern High School and Junior ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 3 College, Satona, Tahsil Mohadi, District Bhandara. At 09:00 a.m. on 24.04.2010 the accused and one Umesh Padole came to his office and demanded attendance register of teachers. The complainant told them that the register cannot be given without the permission of the President. The accused forcibly removed the register from the almirah, the complainant requested the accused not to touch the register and in response the accused threatened, pushed and shoved the complainant. The complainant hurled castiest abuses with the intention of humiliating the complainant. The report makes reference to several persons who were present in the office of the complainant when the incident occurred.
4] The complainant who is examined as P.W.1 describes the accused as Secretary of the institution and the acquitted co-accused as the dismissed Head Master. P.W.1, after deposing that the accused demanded the register states that the accused pushed him and asserted him on back with elbow. The deposition is that accused hurt castiest abuses and issued threat. P.W.1 has proved the oral report Exh.18.
::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 4
P.W.1 is subjected to lengthy and gruelling cross-examination in which it is extracted that nobody gave charge of the post of Head Master to the complainant. He admits that the order of the Education Officer conferring administrative power on the complainant is cancelled. He admits he did not have the authority to carry on banking transaction. P.W.1 further admits that he withdrew Rs.12,000/- from the Co-operative Bank and no entry of the said amount was taken in the cash book. P.W.1 admits that he did not give account of the said withdrawal to anybody. He admits that he gave the account of the said amount to the school only on 13.06.2011. He admits that when he gave the account he was not the Head Master of the school. The rest of the cross-examination is substantially directed to bring on record the factional feud in the administration of the school. The endevaour of the defence was to demonstrate that while there was indeed a verbal altercation, the accused is falsely implicated by P.W.1 at the instance of the rival group. The witness is also suggested that since the accused intended to prosecute the witness under section 406 of IPC, the report was lodged as a counter blast. ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 5 5] P.W.2 Mahadeo Sidam is the Police Officer who registered Crime 52/2010 on the basis of oral report. He has proved the printed F.I.R. Exh.20.
6] P.W.3 Baban Nikhare is examined as an eye witness. He has deposed that there was an altercation between the complainant and the accused in view of the refusal of the complainant to make available the record demanded by the accused. P.W.3 states that the accused gave an elbow blow on the neck of the complainant. P.W.3 admits that complainant was not allowing the accused to fix the seal to the almirah and a verbal altercation ensued. He admits that while fixing the seal the complainant caught hold of the hand of accused and there was a scuffle.
7] P.W.4 Indira Bandebuche has deposed that there was an altercation between the complainant and the accused since the complainant refused to make available the record. P.W.4 was declared hostile. In the cross-examination on behalf of the learned A.P.P. P.W.4 admits that accused was pushing the complainant. ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 6 8] P.W.5 Anil Raut did not support the prosecution in entirety and was declared hostile.
9] P.W.6 Rameshwar Hatwar, witness to the spot panchnama did not support the prosecution, was declared hostile and cross examined by the learned A.P.P. His evidence is however, of scant relevance.
10] P.W.7 Sanjay Gabhane has deposed that there was an altercation, the complainant was abused and the accused also inflicted an elbow blow on the neck of the complainant. 11] P.W.8 Bhagawan Sakure has deposed that there was an altercation of words between the complainant and the accused and in the scuffle, the elbow of the accused hit the complainant. 12] P.W.9 Dilip Chacherkar has obviously exaggerated and has deposed that the accused not only gave an elbow blow to the complainant but also inflicted two slaps.
::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 7 13] P.W.10 Dilip Bhimate has deposed that there was an altercation, that abuses were hurled and the accused inflicted elbow blow on the person of the complainant.
14] P.W.11 Dr. Suhas Gajbhiye who examined the complainant states that he did not notice any obvious evidence of injury.
15] P.W.12 Pankaj Dahane is the Investigating Officer. 16] With the assistance of the learned counsel for the accused Shri Khandewale and the learned A.P.P. Shri Dhumale. I have given anxious consideration to the evidence on record. The evidence on record does establish beyond reasonable doubt that there was indeed an altercation between the complainant and the accused. The cause is also proved. It is also proved beyond reasonable doubt that in the altercation the complainant received an elbow blow. Prosecution witnesses are in unison in asserting that the complainant received an elbow blow although there is a variance as to the body part on which the elbow blow was ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 8 received. One of the prosecution witnesses (P.W.8) states in the scuffle the elbow of the accused hit of the complainant. The finding of the learned Sessions Judge that offence punishable under section 323 of IPC is established does not suffer from any serious infirmity. However, considering that the complainant did not suffer any injury, that the incident occurred in the heat generated due to the altercation which ensued because the accused, who is the Secretary of the institution, demanded certain record which the complainant who claims to be then the in-charge Head Master refused to make available, that the incident occurred more than seven years and eight months ago and the accused is today aged 76 years, I am not inclined to uphold the sentence of imprisonment.
17] In the result, I pass the following order:
[i] The conviction of the accused under section 323 of the I.P.C. is maintained. The sentence of simple imprisonment for a period of two months is set aside and the sentence of fine of ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 ::: apeal43.12.J.odt 9 Rs.1000/- is maintained.
[ii] With this alteration in the sentence, the appeal is partly allowed and disposed of.
JUDGE NSN ::: Uploaded on - 18/01/2018 ::: Downloaded on - 19/01/2018 02:36:10 :::