:
1. This appeal is filed by the appellant/State challenging the judgment and order dated 31st May, 1999 passed by the Judicial Magistrate First Class, Paithan, Dist. Aurangabad in Regular Criminal Case No. 47 of 1996, thereby acquitting the accused/respondents from commission of crime U/Sec. 452, 326, 324, 323, 504 and 506 r/w Sec. 34 of the Indian Penal Code.
2. The brief facts of the prosecution case are as under : The complainant Gangadhar @ Bhaurao Thorat is resident of village Muddalwadi, Tq. Paithan. In the year 1991 he sold the land of his son to the son of accused No. 1 Tatyaba. At that time there was encumbrance on the said land and land was indebted to society and Land Development Bank. One Ankush Jadhav was chairman of the said Society. On 09.04.1996 in the morning said Chairman approached the complainant and informed that accused No. 1 was insisting to refund the amount to him (accused No. 1) which amount was deducted from the payment of sugarcane of accused No. 1. Chairman Ankush Jadhav then asked the complainant to settle the matter. It is then alleged that, at that time, all accused having sticks in their hands entered the house of complainant Bhaurao and asked Bhaurao to return the Society amount. Bhaurao tried to persuade them but in vain. All accused then abused complainant. They beat complainant with fist and kick blows. Accused No. 2 and 3 assaulted him with sticks due to which there was injury on the head, right eye and back. At that time Rameshwar Tambe, Suryabhan Randhe, Atul Patel tried to intervene but accused also assaulted Randhe. Thereafter police came to spot of incident on telephonic call and complainant was taken to MIDC Police Station, Paithan where his complaint was recorded.
3. The crime was registered vide Cr. No. 33/1996 for the offences punishable U/Sec. 452, 324, 504 and 506 r/w Sec. 34 of the Indian Penal Code. On the very day of incident police Head Constable Shri Gaikwad who conducted investigation in the alleged offence proceeded to the spot of incident and drew spot panchanama, where from one white cap and pair of Kolhapuri Chappal were seized. Complainant was referred to Primary Health Centre for medical treatment. The blood stained bunian of complainant was also seized under panchanama. It is also alleged that accused produced sticks used at the time of commission of offence before Investigating Officer who seized under panchanama. The Investigating Officer also recorded the statements of witnesses. The other injured person Suryabhan Randhe was also referred to Hospital for treatment. After completion of investigation charge sheet is filed. Thus, it is the case of the prosecution that, all the accused in furtherance of their common intention after having made preparation of causing hurt to complainant committed house trespass, voluntarily caused grievous hurt to complainant and witness Suryabhan Randhe, intentionally insulted them and also committed criminal intimidation.
4. The charge against all accused was framed at Exhibit 04. The additional charge also came to be framed by the learned Trial Court. The accused pleaded not guilty to the charges leveled against them. The prosecution to prove the case against the accused examined in all eight witnesses including the complainant, injured witness Suryabhan Randhe, Medical Officer and Investigating Officer. The defence of the accused is that, he purchased the land of son of P.W. 2 Bhaurao. Accused then supplied sugarcane of the said land to sugar factory. There was loan advanced by society to P.W. 2 Bhaurao and the loan was encumbrance upon the said land. The society, however, recovered the said loan amount from the payment made by sugar factory to accused on account of supply of sugar cane by the accused. The accused then filed suit in the Cooperative Court for recovery of said amount. The complainant therefore, lodged the present false complaint to force the accused to withdraw that suit. The accused have not led any evidence in support of their defence.
5. The learned Additional Public Prosecutor appearing for the State invited my attention to the evidence of P.W. 2, P.W. 5 and P.W. 7 and also evidence of medical officer and also other evidence brought on record by the prosecution and submitted that, the judgment and order of the Trial Court acquitting the respondent/accused cannot be sustained. The Trial Court has not properly appreciated the evidence of the prosecution witnesses and medical evidence and completely went on wrong footing by taking into consideration minor discrepancies, contradictions and omissions and concluded that the respondents are entitled for the acquittal. The learned A.P.P. taken me through entire evidence brought on record by the prosecution and submitted that, this appeal deserves to be allowed.
6. Since the Criminal Application No. 290/1999 is filed by the original complainant, the counsel for the complainant submitted that the respondent Nos. 1 to 4 and complainant have settled the matter amicably. The accused persons have also repented incident and also tendered apology to the complainant and injured Suryabhan Randhe. Considering this aspect, the complainant and injured have forgiven the accused persons. Therefore, the counsel for the appellant appearing in the revision would submit that, this Court may dispose of appeal in terms of compromise petition placed on record.
7. The learned counsel for the respondents submitted that, the present respondents/accused were charged for an offence punishable under Sec. 325, 324, 504, 506 r/w Sec. 34 of the Indian Penal Code. The Trial Court was pleased to acquit the respondents from the charges leveled against them. Hence being aggrieved by the judgment and order of acquittal the State has filed the present appeal. The prosecution in all has examined eight witnesses to prove the guilt of accused persons. Out of which P.W. 2 Bhaurao Thorat is the complainant and also alleged injured person. P.W. 5 Suryabhan Randhe is another alleged eye witness and injured. It was further alleged that, P.W. 7 Atul Patel is one of the eye witness to the said incident. P.W. 3 is Medical Officer Dr. Killarikar, who has treated the injured witnesses.
8. The learned counsel for respondents further submitted that, there are many discrepancies in the statements of these witnesses. Firstly, there is discrepancy in the statement of Bhau Thorat and Suryabhan Randhe in respect of manner of entry in the house of Bhau Thorat. Bhau Thorat deposed in respect of entry that Ankush Jadhav and all accused came at once, whereas Suryabhan Randhe deposed that before the arrival of Ankush Jadhav, accused came 15 minutes before. The another witness P.W. 7/Atul Patel deposed that, accused came after the arrival of Ankush Jadhav within a span of one and two minutes. These statements are doubtful. Secondly, the witnesses have not stated the specific abuses given by the accused. Thirdly, the witnesses Bhau Thorat and Suryabhan Randhe are silent on the point of threatening given by the accused/respondents. Only Atul Patel has stated that, threatening was given by the accused to kill the complainant and same is vague.
9. The learned counsel for the respondents further submitted that, there is variance in the statements of witnesses about demand of money by the accused persons. The complainant has stated that money was demanded by four accused, while in the deposition this witness stated that, only accused Tatyaba demanded the money. Whereas other witness Suryabhan Randhe stated before the Court that all accused demanded the money. The another witness Atul Patel is silent on the point of demand of money. The witness Bhau Thorat further deposed before the Court that, he told Tatyaba that, he had told Bank Officers to return their amount, while eye witness Suryabhan Randhe deposed before the Court that Bhau Thorat told that, he would think of amount of accused. The learned counsel further submitted that, in respect of incident of beating as per deposition of Bhau Thorat he deposed that, Bhausaheb and Sominath beat him with Lathi, however, this witness does not specify the act of the accused that, which of the accused had beaten him and the part of body on which he was beaten, whereas if the evidence of Suryabhan is perused, he deposed that, Bhausaheb and Sominath had beaten to Bhau Thorat on eye, neck and forehead, whereas the prosecution witness Atul Patel deposed before the Court that, Bhausaheb struck on forehead, while Sominath struck on the back of the complainant. This version again did not find place in the statement recorded by the police during investigation. Therefore, there are no specifications about the beating by lathy by accused Bhausaheb and Sominath in the statement of witnesses. There is also variance in the statement about beating. Bhau Thorat deposed before the Court that, he got injury at back due to fist blows, on the contrary witness Suryabhan Randhe did not state anything regarding beating by fists and blows at the back of the complainant. The complainant has not deposed that, he got injury to his neck.
10. The learned counsel further submitted that, P.W. 2/Bhau Thorat deposed that, Tatyaba was possessing the stone in his hand and he was beaten by stone, but this fact is not mentioned in the complaint before the police. The other witnesses have not deposed about this fact before the Court. The witness Suryabhan Randhe has admitted in his cross examination that except lathi he did not see any other article in the hands of the accused persons. The counsel further submitted that, these discrepancies create doubt about the happening of the incident and presence of the accused persons at the spot of incident. The learned counsel further submitted that, P.W. 7/Atul Patel deposed that, Sominath beat Rameshwar with lathi. Rameshwar is not injured in the said incident. No any medical certificate was filed by the prosecution in respect of any injury to Rameshwar. Other witnesses are silent about beating to Rameshwar. P.W. 5 Suryabhan Randhe deposed that, his thumb and finger were fractured. The witness Bhau Thorat deposed that the finger of Suryabhan was only fractured, but he did not mention which finger of Suryabhan was fractured. The witness Atul Patel also deposed that Bhausaheb beat Suryabhan Randhe at finger, but no specific finger is mentioned or deposed by the witnesses. There is no medical evidence in respect of the injury to the thumb of Suryabhan. The witness Suryabhan Randhe further deposed before the Court that the lathi was stained with blood, but no blood was found on the said lathi. The other witnesses are silent on this point. The learned counsel further submitted that, perusal of deposition of Suryabhan Randhe does not show on which part of head the stick was struck and he has also stated that he cannot state on which part of back of Bhau Thorat the stick was truck. He has also not stated on which side of neck the injury was inflicted. This itself creates the doubt about the presence of these witnesses on the alleged spot or happening of any incident on the spot.
11. It is further submitted that, Atul Patel has admitted in his cross examination that, he did not rescue the scuffle as small girl Bhargavi was with him, however in the deposition Bhau Thorat and Suryabhan Randhe are silent in respect of presence of said girl and on the contrary they have stated before the Court that Atul Patel has rescued the said quarrel. The counsel further submitted that, in the medical certificate the medical officer has shown in all 10 injuries on the person of Bhau Thorat, whereas Bhau Thorat in his deposition stated only three injuries which he has sustained. In the injury certificate of Suryabhan Randhe there is only one injury mentioned, but this witness before the Court has deposed that, he has sustained two fractures. No explanation is given about this discrepancy in the medical evidence and ocular evidence. Therefore, the medical evidence is required to be discarded. The counsel further submitted that, the witness Dr. Killarikar in his cross examination has admitted by the injuries are possible by fall while driving the motor cycle. This aspect again rulled out the possibility of any beating by the accused persons. Dr. Killarikar has not stated as to which of the injury is possible by which weapon i. e. lathi.
12. The learned counsel for the respondents further submitted that, it has come in evidence that son of Bhau Thorat had phoned the police and thereafter, the alleged complaint came to be lodged by him. Thus the said complaint at Exhibit 17 is hit by Section 162 of the Criminal Procedure Code and cannot be read in evidence. On this aspect the learned counsel for the respondents relied on the judgment reported in 1977 Cri. L. J. 107 in case of Raberi Karsan Cova and others v. The State of Gujrat.
13. The learned counsel for respondents further submitted that, the prosecution has purposely not examined the alleged material witnesses. As per the prosecution case Rameshwar Tambe was also alleged to have been beaten by the present accused person. Ankush Jadhav who is chairman of the society, due to whom the incident has happened, because he has deducted the amount of the present accused No. 1 from sugar cane bill directly and therefore the quarrel had taken place, Babasaheb Bodkhe, who alleged to be present at the time of alleged incident. Non examination of these material witnesses creates the doubt about the prosecution case, and therefore, adverse inference should have been drawn against the prosecution.
14. The counsel further submitted that, P.W. 1/panch witness has stated that one chapel was seized from the spot, however, he is unable to state as to whether it is of right leg or left leg. He further submitted that, perusal of muddemal article there is pair of chappal, but the prosecution has not brought any evidence to show that the said chappal is of accused/respondents. The blood stained blood has not been sent for C. A. examination so as to ascertain the blood on the said. P.W. 2 has stated in his statement that, there was blood on the spot of incident, but there is no such indication in the spot panchanama. Nothing has been recovered from the custody of accused. The recovery panchanama U/Sec. 27 of the Evidence is not proved by the prosecution. The P.W. 4/panch witness has turned hostile. The lathi which is alleged to be seized same is not having any identification mark or not having any signature of the panch witness. There is no proper recovery of muddemal articles as per the provisions of law. The investigating officer has not deposed before the Court about recovery of said articles from the accused/respondents.
15. The learned counsel further submitted that, lodging of F.I.R. and examination of Bhau Thorat by the Medical Officer also creates doubt. The witness Bhau Thorate deposed before the Court that, he lodged complaint at 10.00 a.m. on 09.04.1996. The I. O. deposed before the Court that, he recorded the statement of Bhau Thorat at about 9.15 to 9.30 a.m. in the Hospital. Perusal of F.I.R. reveals that, the same is lodged on 09.04.1996 at 11.35 a.m. in M.I.D.C. police station. Therefore,the learned counsel for respondents submitted that, this variance in the time creates doubt about the prosecution story.
16. The learned counsel further submitted that, the defence of the accused is that, accused No. 1 has purchased the land of the son of complainant, which is encumbered with Land Development and Society. The society has recovered the amount from the present accused No. 1 and on account of the same there is dispute. Even the proceeding before the Cooperative Court is also pending at the relevant time. Therefore, to pressurize the accused persons, present false complaint is filed. The counsel further submitted that, the trial Court has considered all aspect of the matter and rightly evaluating the evidence on record, and has rightly given benefit of doubt to the accused and acquitted them. He further submitted that, it is well settled law that in case of appeal from acquittal, if the view taken by the trial Court is probable and possible, in that event the Appellate Court should not substitute the opinion. Therefore, the learned counsel for respondents would submit that, there is not ground to interfere with the judgment and order of acquittal passed by the Trail Court and the appeal deserves to be dismissed.
17. In support of his arguments the learned counsel for respondents relied on the following judgments of the Hon'ble Supreme Court and of this Court and other High Courts.
i) (2008) 5 S.C.C. 535 S. Rama Krishna V. S. Rami Reddy.
ii) 2009 Cri. L. J. 1899 Lunaram v. Bhupat Singh and others.
iii) AIR 1976 Supreme Court 2263(1) Lakshmi Singh and ors v. State of Bihar.
iv) AIR 1975 Supreme Court 1727 Ram Narain V. The State of Punjab.
v) 1997 Cri. L. J. 1788 Narayan Kanu Datavale and ors. vs. State of Maharashtra.
18. I have given due consideration to the submissions of the learned A.P.P. and learned counsel appearing for the original accused/respondents herein appeal and also submissions of counsel appearing for the original complainant.
Since the Trial Court has acquitted the respondents by concluding that the prosecution case suffers from infirmities, there are discrepancies, contradictions, omissions and improvements in the prosecution case. Therefore, I feel it appropriate to examine in depth entire evidence brought on record before the Trial Court.
19. P.W. 2/Gangadhar Bhaurao Thorat is original complainant whose evidence is at Exhibit 16. In his deposition before the Court this witness has stated that, the accused Tatyaba (A1), Bhausaheb (A2), Sominath (A3) and Babasaheb (A4) are known to him as they are resident of his village. In 1991 the land of his son was sold to son of Tatyaba (A1). At that time the land was indebted to the society and Land Development Bank. On 09.04.1996 at 9.00 a.m. Chairman of the Cooperative Society had come to his house. A loan instalment was deducted from the price of sugar cane of accused No. 1 Tatyarao Jadhav from the payment to be made by Sugar Factory. Therefore, said Tatyaba (A1) was annoyed and aggrieved. One Ankush Jadhav told to complainant that Tabyaba was abusing and intimidating him. He requested to settle the matter. At time Suryabhan Randhe, Atul Patel and Rameshwar Tambe were sitting in his house. At the relevant that time at about 9.00 a.m. Tatyaba (A1), Bhausaheb (A2), Sominath (A3), Babasaheb (A4) came to his house. He told Tatyaba that he would ask the bank officer to refund his amount and he should not abuse Ankush Jadhav. Tatyaba told him that he should pay his amount immediately. That time, Bhausaheb (A2) and Sominath (A3) started assaulting the complainant with sticks and Tatyaba (A1) and Babasaheb (A4) started assaulting him with fists blows and slaps. The complainant sustained stick blows on the skull, right eye and on forehead and he sustained fist blows on his back. He sustained bleeding injuries on his skull and right eye. At that time Suryabhan Randhe, Atul Patil and Rameshwar Tambe tried to rescue him. Suryabhan Randhe sustained fracture of his little finger. Complainant felt giddiness. About half an hour later, on the telephone call of his son police arrived to his house. He was assaulted for about 15 minutes. Then he lodged the complaint. He stated about lodging the complaint. He further stated that, Dr. Killarikar examined and treated him. He specifically stated that, he was indoor patient for three days and his blood stained baniyan was seized by the police. In his cross examination, he has minutely stated that, his son Bharat had obtained loan of Rs. 13,000/ from Co operative Society against the security of this loan and it was not repaid. He has also stated the age of his sons present in the house at the time of incident were 32, 22 and 18 years respectively.
On perusal of the cross examination of this witness, nothing substantial or significant has been brought on record by the defence.
20. P.W. 5 Suryabhan Shankarrao Randhe also present at the spot at the time of incident. His evidence is at Exhibit 28. In his examination in chief, he has stated that, he know complainant Bhaurao and all accused who are before the Court. He further stated that, incident took place prior to two and half years. It was 8.00 to 9.00 a.m. in the house of complainant Bhaurao. At that time he was in the house of Bhaurao along with Atul Patel, Ram Tambe. They were talking to each other, at that time accused persons came there. There was some altercation between Thorat and accused persons. The accused persons started abusing to complainant. They pulled him. This witness has specifically stated that, accused Bhausaheb and Sominath were having sticks in their hands and by sticks they assaulted the complainant. They assaulted on his head, on forehead and on back side. He further specifically stated that, he was assaulted by Babasaheb by stick on his left hand, thereby thumb, little finger is injured. In his cross examination, though many suggestions were given to this witness, however, he has stated that, it is not true to say that neither Bhausaheb Thorat nor he himself received any blow. He further denied that, he slipped on the stone and because of that there was injury to his finger. He has specifically stated that, it is not true to say that while assaulting to Bhausaheb and Tatyaba he received stick blow. Therefore, if the evidence of this witness so far actual assault by the accused persons on the complainant is concerned, it corroborates with the evidence of P.W. 2/complainant. Both the witnesses have specifically stated the presence of all four accused in the house of complainant. The specific overt act is attributed by both the witnesses to Bhausaheb (A2) and Sominath (A3). So far as presence of all four accused is concerned, both the witnesses have stated so. P.W. 2 in his evidence even attributed over act to the accused No. 1Ankush and accused No. 4 Babasaheb that they gave fist blows and slaps to the complainant. So far assault by stick on the complainant and also to P.W. 5 is stated by both the witnesses P.W. 2 and P.W.5. Bhausaheb has not only assaulted the complainant, but he has also injured the P.W. 5 by stick blow. There was injury to the finger of the P.W. 5. On careful perusal of the cross examination, nothing substantial or significant has been brought on record by the defence so as to disbelieve the evidence of P.W. 5 given before the Court.
21. P.W. 7Atul Patel was also present at the time of incident in the house of complainant. P.W. 2 and P.W. 5 both have stated about his presence in the house when the accused persons came in the house of complainant. In his evidence he has stated all details and further stated that all the accused persons before the Court had come to place of incident at that time, accused abused and threatened to kill complainant over the society money disputes. Thereafter, accused Bhausaheb struck complainant/Bhaurao with stick on his fore head. Accused Sominath assaulted the complainant on his back. One Rameshwar and Babasaheb Bodkhe tried to separate the quarrel. At that time accused Sominath beat Rameshwar with stick. When Suryabhan Randhe intervened to separate the quarrel, accused beat with stick on his left hand. In his cross examination except minor discrepancies, nothing substantial has been brought on record so as to discard/disbelieve his evidence. The evidence of P.W. 7 so far actual incident is concerned and so far assault by Babasaheb on the complainant and also P.W. 5 Suryabhan is concerned, the evidence of P.W. 7 corroborates with the evidence of P.W. 2/complainant. The evidence of P.W. 7 even about overt act attributed to the Sominath also corroborates with the evidence of P.W. 2. Therefore, so far accused Babasaheb and accused Sominath are concerned all the three witnesses have stated in their substantive evidence before the Court about assault by them by use of sticks on complainant and Suryabhan Randhe.
22. There is evidence of medical officer Pandit Killarikar who has examined P.W. 2, whose evidence is at Exhibit 18. In his evidence he has stated that, he was working as medical officer since 1989. He was working as medical officer in Health Unit Paithan since 1991. On 09.04.1996 he examined Bhaurao Abaji Thorat referred to him by P.S.I. MIDC Police Station. On examination he found following injuries on his persons.
i) CLW right supra orbital region 1 x 1/4 x 1/4 inch. with black eye.
ii) Haeamotoma forehead 2 x 2 x 1/2 inch.
iii) Haeamotoma supra right orbital region 2 x 2 x 1/ inches.
iv) CLW root of nose size.
v) CLW right occipital region 1/4 x 1/4 x 1/4 inches.
vi) Abrasion left knee 1 x 1/2 x 1/2 inch.
vii) Abrasion right knee 1 x 1/2 x 1/2 inch.
viii) Contusion left axilary postesior axilary 2 x 2 x 1/2 inch.
ix) Contusion right infras soapular region 3 x 1/2 x 1/2 inch.
x) Contusion left infra scapular region 1 x 1/2 x 1/2 inch.
All the injuries were simple. The patient was referred to Aurangabad Medical College Hospital Aurangabad for ENT check up. This witness stated before the Court that, he has issued the certificate. The certificate shown to him before the Court bears his signature. He identified the contents of signature on the said Exhibit 19. He further stated in his evidence that on the same day at 12.10 noon he examined P.W. 5/Suryabhan Randhe. He found following injuries :
i) Contusion left little finger 1 x 1/2 x 1/2 inch. From perusal of his cross examination except that he has stated all the injuries of Bhaurao are possible by a fall while driving a motor cycle, nothing substantial has been brought on record by the defence so as to disbelieve his evidence. Therefore, if the evidence of P.W. 2, P.W. 5 and P.W. 7 is read in its entirety, there is no manner of doubt that all accused persons went to the house of complainant at about 9.00 a.m. on the date of incident and started quarreling with the complainant. The presence of P.W. 2, P.W. 5 and P.W. 7 is established by the prosecution. All the three witnesses have stated that all the respondents/accused came to the house of complainant. The evidence of P.W. 2, P.W. 5 and P.W. 7 in respect of overt act and active participation of accused No. 2 Babasaheb is clearly stated by the witnesses in their substantive evidence before the Court. The specific roll is attributed to him. All the three witnesses have stated that, Babasaheb (A2) assaulted the complainant by stick and also assaulted the P.W. 5. The medical evidence is brought on record by the prosecution. The medical officer is also examined. The complainant has suffered as many as 10 injuries and P.W. 5 has also suffered injuries. The injury sustained by P.W. 5 is grievous in nature as stated by the doctor. So far involvement of the accused No. 3 Sominath is concerned, all the three witnesses i. e. P.W. 2, P.W. 5 and P.W. 7 in material particulars have stated about his active participation in the commission of offence. He has assaulted by stick on the complainant. The medical evidence fully supports the prosecution case. Therefore, when there is evidence in the nature of eye witnesses before the Court, which is direct evidence and which is corroborated by the medical evidence in respect of injuries inflicted by the accused No. 2 and 3, in my opinion, the Trial Court was not correct in giving importance to the insignificant discrepancies in the version of prosecution witnesses. The trial Court should not have ignored the overwhelming direct evidence in the nature of eye witnesses attributing overt act of the accused and medical evidence which corroborates to the version of the eye witnesses. The one of the reason given by the Trial Court that, no blood was found on the stick though it is stated by the witnesses, is eye wash to ignore and keep aside the direct evidence corroborated by the medical evidence brought on record by the prosecution. The evidence of P.W. 2/complainant is corroborated by the evidence of P.W. 5 and also P.W. 7. Further evidence of P.W. 5 is corroborated by the evidence of P.W. 2 and P.W. 7. Therefore, in my opinion, so far presence of accused/appellant Babasaheb in the house of complainant has bene stated by all the witnesses.
23. In my considered opinion on reading evidence of P.W. 2, P.W. 5 and P.W. 7 coupled with medical evidence, it is to be concluded that the accused persons committed house tress pass in order to commit an offence punishable with imprisonment. They went to the house of complainant with preparation by holding sticks in their hands for assaulting the complainant. Therefore, all the four accused are liable to be convicted U/Sec. 451 of the Indian Penal Code.
24. Though the P.W. 2 in his complaint has stated about overt act played by the accused No. 1Tatyaba, accused No. 4 Babasaheb that, fist blows and slaps were given by them. However, the other witnesses P.W. 5 and P.W. 7 have not given details about overt act or roll played by them. Therefore, in my opinion, it may not be safe to reverse their acquittal for the offence punishable U/Sec. 326, 324 r/w Sec. 34 of the I. P. Code. However, so far criminal intimidation is concerned, all the witnesses have stated in specific terms that the accused came prepared and intimidated the complainant and also other witnesses. Therefore, all the respondents are liable to be convicted for the offence punishable U/Sec. 506 of the Indian Penal Code.
25. The overt act attributed to accused No. 2/Babasaheb by the P.W. 2, P.W. 5 and P.W. 7 is specific. They have stated that, Babasaheb has assaulted by stick to the complainant and also to the P.W. 5 and to that effect medical evidence is brought on record by the prosecution which fully supports the case of the prosecution. Therefore, the accused No. 2 has committed offence punishable U/Sec. 323 of the Indian Penal Code. Therefore, he is liable to be convicted for the offence punishable under Sec. 323 of I. P. Code. The overt act attributed to Sominath is concerned, there is evidence of P.W. 5 and P.W. 7 that he assaulted to the complainant. However, taking entire evidence into consideration, he is liable to be convicted U/Sec. 323 of the Indian Penal Code.
26. The revision filed by the complainant is also heard. The complainant is ready to compromise the matter and the complainant and injured P.W. 5 Suryabhan Randhe and appellant/accused have also filed the compromise petition stating therein that accused persons and complainant and one injured Suryabhan Randhe have arrived at compromise and they amicably settled the dispute with the accused and injured are residing in the same village and they are distinct relative, the complainant and injured after long battle with the accused desired to settle the dispute. The accused/appellants also tendered apology to the complainant and injured Suryabhan Randhe. Considering this aspect the complainant and injured have forgiven the accused persons. Therefore, they have prayed that matter deserves to be compounded and the matter may be disposed of in view of compromise petition.
27. In the result all the accused/respondents are convicted for the offence punishable U/Sec. 451 and 506 of the Indian Penal Code. The original accused No. 2/Bhausaheb Jadhav and accused No. 3/Sominath are also convicted for the offence punishable U/Sec. 323 of the Indian Penal Code.
28. The main question is what sentence should be given to all these accused. The incident had taken place on 09.04.1996. The respondents are acquitted by the Trial Court and they have enjoyed the liberty from 1999 till date. The learned counsel for the respondents orally submitted that, the respondents have not committed any other offence either prior to the date of incident or after that. Their families are dependent upon them and sending them in jail after so many years would create hardship to them and their families. The learned counsel humbly submitted that the good conduct of the respondents/original accused for all these years may be taken into consideration. There is no any other incident between the parties after the alleged incident in 1996. The counsel for the respondents also invited my attention to the compromise petition filed by the complainant, injured witness and respondents with supporting affidavits and, therefore, the counsel for the respondent and complainant prayed that, this appeal and revision may be disposed in terms of compromise petition. The counsel for the respondents submits that, all the respondents i. e. original accused are present before this Court. This Court is not convinced to dispose of the matter in terms of compromise petition by confirming the order of acquittal. However, taking lenient view in the matter, I feel it appropriate to pass following order :
As stated in para 27 all the respondents/original accused are convicted for the offence punishable U/Sec. 451 and 506 of the Indian Penal Code. In addition to this the original accused/respondent No. 2 Bhausaheb Jadhav and original accused No. 3/Sominath Jadhav are convicted for the offence punishable U/Sec. 323 of the Indian Penal Code. However, so far sentence is concerned all the accused are sentenced to suffer till rising of the Court.
In addition to above the accused/respondent No. 1/Tatyaba Jadhav and the accused/respondent No. 4/Babasaheb Jadhav to deposit fine of Rs. 2,000/ each in the Registry of this Court within one week from today. In case fine amount is not deposited, they will have to undergo S. I. for 15 days. The other accused/respondent No. 2 Bhausaheb Jadhav and accused/respondent No. 3 Sominath Jadhav to deposit Rs. 5,000/ each as fine amount in the Registry of this Court within one week from today. In case fine amount is not deposited, they have to suffer S. I. for one month.
The appeal is partly allowed and same stands disposed of in above terms. The impugned judgment and order in respect of respondent/accused No. 1 Tatyaba Jadhav and respondent/accused No. 4 Babasaheb Jadhav acquitting them
from the offence punishable U/Sec. 451 and 506 is quashed and set aside. However, the rest of the order acquitting them from offence punishable under other sections of Indian Penal Code is maintained.
So far respondent/accused No. 2 Bhausaheb Jadhav and respondent/accused No. 3 Sominath Jadhav the impugned judgment and order acquitting them from the offence punishable U/Sec. 323, 451 and 506 is quashed and set aside, however, the rest of the order acquitting them from offence punishable under other sections of Indian Penal Code is maintained. In the light of above discussion, the Criminal Revision Application No. 290/1999 also stands disposed of. List this matter on 10.03.2011 to ascertain compliance of todays order.