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2009 DIGILAW 1683 (BOM)

Diwakar Maniram Kohale v. State of Maharastra

2009-12-07

R.C.CHAVAN

body2009
JUDGMENT (1) This revision is directed against the judgment of the learned Additional Sessions Judge, Chandrapur, in Criminal Appeal No. 16 of 2001, whereby the learned Sessions Judge set aside the applicant's conviction for offences punishable under Sections 186 and 353 of the Penal Code but maintained his conviction for offence punishable under Section 427 of the Penal Code, as also the sentence of simple imprisonment for one year and fine of Rs. 400/- imposed upon him by the learned judicial Magistrate First Class, Saoli, District Chandrapur. (2) It was alleged that the applicant and several others had obstructed complainant Mirkhurshid Ali, a Forester, and one Nannaware, a Forest Guard, when they were in the process of stopping illegal carrying of fuel wood from the forest. A bag containing official papers of the complainant was snatched from Nannaware and papers were allegedly torn. On a report by Mirkhurshid Ali, the police registered offences punishable under Sections 353, 332 and 427 of the Penal Code and seem to have also added offence punishable under Section 186 of the Penal Code. On completion of investigation, a charge- sheet was sent to the Court of Judicial Magistrate First Class, Saoli. The learned Magistrate charged the applicant of offences punishable under Sections 186, 353, 332 and 427 of the Penal Code, Since the applicant pleaded not guilty, he was put on trial, at which the prosecution examined in all six witnesses to bring home the guilt of the applicant. After considering the evidence tendered, the learned Magistrate acquitted the applicant of offence punishable under Section 332 of the Penal Code, but convicted and sentenced him for offences punishable under Sections 186, 353 and 427 of the Penal Code. (3) On appeal, the learned Additional Sessions Judge set aside the conviction of the applicant for offences punishable under Sections 186 and 353 of the Penal Code, holding that the learned Magistrate could not have taken cognizance of offence punishable under Section 186 of the Penal Code upon a police report, or, in other words, in the absence of a complaint from the officer concerned. The learned Additional Sessions Judge held that the offence punishable under Section 353 of the Penal Code was a connected offence or one of the same genre as that punishable under Section 186 of the Penal Code and, therefore, even for that offence, conviction could not have been handed down in view of the provisions of Section 195(l)(a) of the Code of Criminal Procedure. The State has not preferred any proceeding against that part of the judgment of the learned Additional Sessions Judge. Aggrieved by confirmation of his conviction for offence punishable under Section 427 of the Penal Code and sentence of simple imprisonment for one year and fine of Rs. 400/- imposed upon him by the learned Magistrate, the applicant is before this Court. (4) I have heard the learned counsel for the applicant, and the learned APP for the State. The learned counsel for the applicant submitted that the causation of the learned Additional Sessions Judge that offence punishable under Section 427 of the Penal Code was independent or unconnected is not correct. He submitted that when the entire event, comprising of obstruction to complainant Mirkhurshid Ali and one Nannaware, as also snatching of the papers and tearing them, was a part of same transaction the learned Additional Sessions Judge should have held that even cognizance of offence punishable under Section 427 of the Penal Code not have been taken by the learned Magistrate, except upon a complaint in writing by the public servant, who was obstructed in discharge of his duties. 6A. It is not necessary to examine this contention. In fact it is addition of Section 186 of the Penal Code by the police which has resulted in this mischief. As rightly submitted by the learned APP, it would have to be examined as to whether the offence punishable under Section 427 of the Penal Code was made out on the evidence tendered or not. (5) PW 1 Kalicharan was a panch at the panchnama, which was drawn up by the police after a report was received. This panchanama at Exhibit 14 shows that it was drawn up between 1 and 2 p.m., whereas PW 1 Kalicharan states that he was called by the police at 8 a.m. and panchanama was drawn up within an hour. This panchanama at Exhibit 14 shows that it was drawn up between 1 and 2 p.m., whereas PW 1 Kalicharan states that he was called by the police at 8 a.m. and panchanama was drawn up within an hour. However, these deviations in the investigation need not reduce the veracity of ocular account of the incident by the complainant and his colleagues. (A) PW 2 Tukaram, who was working as Watchman in the Forest Department, stated that Nannaware's papers were torn by the accused. His cross-examination on this point is only a suggestion, which was denied by him. (B) PW 3 Kisan had turned hostile, in the sense that he had not stated anything about assault, obstruction or tearing of papers, though he did state that there was a meeting between the accused and the forest officers. (C) PW 4 Forester Mirkhurshid Ali stated that on receipt of information, he along with his associates - Tukaram and Nannaware - went to inspect the bullock-carts which were used in carrying fuel wood. He states that the applicant and others obstructed him, scuffled with him, snatched his bag. and tore the documents and burnt them. (D) There are some omissions, which have been brought out in cross-examination, inasmuch as the witness had not mentioned in his report to the police that the bag was snatched from him and documents were burnt from his bag. (6) THE learned counsel for the applicant pointed out that PW 5 Nannaware had stated that the bag was snatched from him and the papers therefrom were torn and burned. He submitted that this would show that the allegations about tearing of the papers or snatching of the bag are not reliable, As rightly pointed out by the learned APP, a small deviation in the evidence about the incident, which had taken place about six years before the witnesses were examined, would not reduce the veracity of the testimonies of those witnesses and, therefore, the evidence ought to be believed, particularly since the witnesses are not shown to have any animosity towards the applicant to falsely implicate him in the offence. (7) Considering the evidence, as tendered, it does not appear that the conviction of the applicant for offence punishable under Sections 427 of the Penal Code recorded by the learned Magistrate, and maintained on appeal by the learned Additional Sessions Judge, warrants any interference in exercise of revisional jurisdiction by this Court, However, on the question of sentence, it seems that the learned Magistrate has been unduly harsh and has sentenced the applicant to simple imprisonment for one year for an offence for which even fine would have been adequate. It is not shown that the applicant is a habitual offender or had indulged even in the past in such acts. The applicant and several others were alleged to have been involved in the act and the applicant was the only person, who was identified. Considering the nature of allegations made, absence of previous criminal history, and the age of the applicant at the time of commission of offence as also the fact that almost fifteen years are now over since the offence was committed, ends of justice would be met if the sentence of imprisonment is set aside and substituted by fine alone. (8) In view of this, the revision is partly allowed. The conviction of the applicant for the offence punishable under Section 427 of the Penal Code is maintained, but the sentence to suffer simple imprisonment for one year and to pay a fine of Rs. 400/- is set aside and instead the applicant is sentenced to pay a fine of Rs. 1,000/-, or in default, to suffer further simple imprisonment for two months. Application partly allowed.