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Sanjaykumar vs The State Of Maharashtra on 28 February, 2011

Bombay High Court
Sanjaykumar vs The State Of Maharashtra on 28 February, 2011
Bench: S. S. Shinde
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                        
                         BENCH AT AURANGABAD

               CRIMINAL APPEAL NO. 526 OF 2001




                                       
     Sanjaykumar s/o Kishanlal Jain,
     Age: 21 years, Occ: Business,
     R/o. Selamba, Tq. Sangbare,
     Dist.Bharuch (Gujrat State).                ..   APPELLANT




                               
               Versus
                  
     The State of Maharashtra.                   ..  RESPONDENT
                 
                    .....

     Mr. Gaurav Deshpande, Advocate holding for
     Mr. C.R. Deshpande, Advocate  for the Appellant.
     Mr. S.G. Nandedkar, A.P.P. for Respondent/State.
      


                   ......
   



                        CORAM : S. S. SHINDE, J.

DATE : 28TH FEBRUARY,2011.

ORAL JUDGMENT :

This appeal is filed by the accused-

appellant herein, challenging the judgment and

order dated 29-11-2001 passed by the learned

Additional Sessions Judge and Special Judge,

Shahada in Other Sessions Case No.16 of 2000 (Old

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O.S.C.No. 258 of 1994).

2. The case of the prosecution can be

briefly narrated as under:

Sukhlal Ahire, father of the complainant

Sudam Ahire, who is now no more, used to sit in

front of the shop of the complainant Sudam Ahire

and carry on business of boot polishing. The

complainant Sudam Ahire belongs to cobbler

community which is recognised as a scheduled

caste. All the accused belong to Jain community

which does not fall either under Scheduled caste

or under Scheduled tribe. It is further alleged

that on 25-05-1994 at about 15-00 hours on the

Main Road at village Khapar, the accused NO. 3

Sanjaykumar drove his vehicle through the articles

used for the boot polish business belonging to

Sukhlal Ahire and thereby caused damage of more

than Rs.50/-. While said Suklal Ahire was making

enquiry about the damage caused to him, to accused

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No.3, accused Nos.1 and 2 also came there.

3. It is alleged that all the accused not

being members of either scheduled caste or

scheduled tribe, intentionally insulted, with

intent to humiliate, the complainant Sudam Suklal,

his father Suklal Ahire and brother Hiraman Suklal

Ahire, members of Scheduled Caste, in public place

within public view, by giving them abusements in

the name of their caste as “Sale, Chamar Mat Gaye

hein”. It is further alleged that all the accused

voluntarily caused hurt to the complainant Sudam

by giving him fist blows and by giving bite to his

brother Hiraman. The accused gave them abusements

in filthy language. It is alleged that accused

No.3 by driving his vehicle through the articles

used for the business of boot polish belonging to

Suklal Ahire, caused him damage of more than

Rs.50/-.

The witnesses present there separated the

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incident. The complainant then approached the

police Outpost of village Khapar and lodged

complaint Exh. 26. On basis of said complaint,

offence came to be registered under Sections 3(1)

(x) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and

under Sections 323,324, 504, and 427 read with

Section 34 of the Indian Penal Code, against the

accused. The injured came to be referred to the

Medical Officer for examination and treatment.

The Investigating Officer visited the place of

occurrence and draw panchnama of scene of offence.

He collected medical certificate of the injures

from the Medical Officer. The Investigating

Officer recorded statements of the witnesses. He

also obtained the caste certificate of the

complainant Sudam Suklal Ahire and after due

completion of investigation, he submitted charge

sheet in the Court of the learned J.M.F.C. at

Taloda.

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4. The offence punishable under Section 3(1)

(x) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 being

exclusively triable by the Special Judge, the

learned J.M.F.C. Taloda, committed the case to the

Court of the Special Judge at Dhule. After

establishment of this Court at Shahada, the case

in hand came to be transferred and as such all the

accused have been tried by this Court.

5. Charge Exh.17 came to be framed against

the accused. The particulars of accusation were

read over and explained to the accused in

vernacular to which they pleaded not guilty. The

defence of the accused is that, there are two

groups in Jain community at their village Khapar.

Mohan Seth is the head of the rival group and at

his instance, the complainant Sudam lodged false

complaint against them.

6. After recording the evidence and hearing

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the Counsel for the parties, learned Additional

Sessions Judge and Special Judge, Shahada held

guilty the appellant herein for the offence

punishable under Section 427 of the Indian Penal

Code and convicted under Section 235(2) of the

Code of Criminal Procedure. He is sentenced to

suffer simple imprisonment for one month and to

pay a fine of Rs.500/- (Rs. Five hundred only), in

default of payment of fine, he has to undergo

further simple imprisonment for a period of

fifteen days. Hence this appeal.

7. Learned Counsel for the appellant

submitted that the prosecution has utterly failed

to bring on record any overtact on the part of the

appellant-accused to cause wrongful loss or damage

to the respondent. He further submitted that out

of four witnesses, which were examined by the

prosecution, one is the Investigating Officer and

remaining three witnesses have turned hostile.

Nothing has been gathered from the spot, as

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revealed from the spot panchnama. He further

submitted that unless the calculation is done, it

cannot be said that the appellant-accused

committed mischief and thereby caused loss or

damage to the amount of Rs.50/- or upwards to the

respondent. Learned Counsel for the appellant

invited my attention to the impugned judgment and

reasons recorded by the trial Court and submitted

that the trial Court has not discussed any

evidence and in absence of any discussion about

the evidence brought on record, the trial Court

has convicted the accused-appellant. Therefore,

Counsel for the appellant would submit that the

appellant-accused deserves to be acquitted.

8. On the other hand, learned A.P.P. for the

respondent – State, relying on the reasons

recorded by the trial Court and upon reading

provisions of Section 427 of the Indian Penal

Code, would submit that, mens-rea is not necessary

to fulfill the ingredients of the Section 427 of

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the Indian Penal Code and therefore, the trial

Court has rightly convicted the appellant-accused

since he caused damage to the property of the

respondent. Therefore, he would submit that the

appeal may be dismissed.

9. I have given due consideration to the

submission of the Counsel for the appellant and

learned A.P.P. for the respondent-State. I have

carefully perused the Record and Proceedings and

also impugned judgment. It is not in dispute that

complainant Sudam Ahire and injured Hiraman Ahire

turned hostile. They were examined at Exhibit-25

and 29 respectively. They have stated before the

Court that no such incident had happened and

nobody gave them abusement in the name of their

caste. Another witness namely P.W. 2 also did not

support the prosecution case and did not state

anything against the accused. P.S.I. Mr. Deshmukh,

who is the Investigating Officer is not examined

by the prosecution and also Medical Officer is not

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examined, and there is no evidence to the effect

that the accused voluntarily caused hurt to

complainant Sudam Ahire and his brother Hiraman

Ahire and they received injuries.

10. Upon perusal of the spot panchnama, it

does not support to the prosecution story. It is

admitted position that, there is no any exercise

to calculate the alleged loss sustained by the

complainant.

11. In my opinion, the standard of proof

required in criminal case has not been brought on

record by the prosecution. When the prosecution

witnesses turned hostile including the

complainant, in that case, the trial Court was not

correct in convicting the appellant-accused. In

my opinion, there was no sufficient, cogent and

clinching evidence to convict the appellant-

accused.

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12. Therefore, in my opinion, the impugned

judgment and order passed by the trial Court is

required to be interfered. Accordingly, same is

quashed and set aside. Appeal is allowed. The

appellant-accused is acquitted for the offence

punishable under Section 427 of the Indian Penal

Code. His bail bond stands cancelled. Amount of

fine of Rs.500/- (Rs. Five hundred only) be

returned to the appellant-accused. Appeal stands

disposed of.

13. Original Record and Proceedings, if any,

be sent back forthwith, to the concerned Court.

[S. S. SHINDE, J.]

sut/feb11/criapl526.01

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