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2014 DIGILAW 695 (BOM)

Gopal Punju Samudre v. State of Maharashtra

2014-03-13

A.I.S.CHEEMA

body2014
JUDGMENT Heard learned counsel for Petitioners. Notice to Respondent. Learned A.P.P. waives service of notice for Respondent State. Heard finally at the admission stage. 2. Learned counsel for Petitioners submits that the case of prosecution is that Petitioner Nos.1 and 2 were quarrelling with each other under influence of drink on 31st December, 2005 at about 10.45 p.m. at Smarak Chowk, Taloda, when it is alleged that the complainant- Police Constable Dharma More intervened. At that time, it is claimed that the Petitioner No.1 -Accused No.1 used criminal force to the constable Dharma Harchand More by holding constable with his shirt while he was on duty and it tore and button of the shirt was broken. Learned counsel submits that on these facts the matter went to the trial Court and the Judicial Magistrate, First Class, Taloda convicted Accused Nos.1 and 2 Mahendra Punju Samudre and Gopal Punju Samudre, for the offence punishable under Section 160 of the Indian Penal Code, 1860 (for short "I.P.C.") and sentenced to suffer simple imprisonment for 15 days and to pay fine of Rs.100/- (Rupees Hundred) and in default of payment of fine, to suffer further simple imprisonment for 7 days. The Petitioner No.1 Gopal Punju Samudre has been also convicted for the offence punishable under Section 353 of the I.P.C. and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- (Rupees One Thousand) and in default of payment of fine to suffer further rigorous imprisonment for one month. Similar punishment has been imposed for the offence punishable under Section 427 of the I.P.C. also on Accused No.1 Gopal Punju Samudre. The sentences have been directed to run consecutively. Learned counsel submitted that in Criminal Appeal No.39 of 2009, the Additional Sessions Judge, Shahada has dismissed the Appeal. 3. According to the learned counsel for Petitioners, the Courts below failed to take note of the fact that Accused No.1 was not found to be under the influence of alcohol and only Accused No.2 was found to be under influence of alcohol. According to learned counsel, the complainant Constable Dharma Harchand More was stated to be on combing night round duty but Police Inspector concerned in evidence, stated that the Constable was on fixed point duty. Argument on this count was wrongly discarded by the Sessions Court. According to learned counsel, the complainant Constable Dharma Harchand More was stated to be on combing night round duty but Police Inspector concerned in evidence, stated that the Constable was on fixed point duty. Argument on this count was wrongly discarded by the Sessions Court. It has been further argued that the evidence of complainant Dharma More, PW-1 was corroborated by his departmental colleagues PW-2 Dhanraj Mahire, PW-3 Vijay Tavde, but the other constable Sarfoddin was not examined. It was argued that this was pointed out to the Sessions Court but Sessions Court did not consider that the witness has not been examined. According to learned counsel, the Panchas of the Spot Panchnama and the seizure of the shirt did not support the prosecution and the Panchnamas were proved only through the Investigating Officer. It was further argued that First Information Report was filed one hour late but same has not been considered by both the Courts below. 4. Learned A.P.P. submitted that if the Judgments are considered, they are well reasoned and minor contradictions tried to be shown, were not material. According to learned A.P.P., shirt of the police constable who was on duty, was torn by the Accused No.1 and the conviction and sentence has been properly passed. 5. In the present matter, concurrent findings of the trial Court and Sessions Court are there, holding Accused persons guilty of the offences with which they were charged. I have gone through the record and I find that the Sessions Court duly dealt with the objections which are being raised. It has been rightly observed that when there is already evidence of complainant PW-1 More supported by another two witnesses, it is immaterial whether yet another police official has been examined or not. Perusal of the copy of First Information Report, available on record, shows that on 31st December, 2005 in the night the Head Constable Dharma More was on combing night round and had duty at the Smarak square at Taloda and with him the constable Dhanraj Mahire and Vijay Tavde were also on duty, who have been examined. There was other constable like Supdu Madan Ahire also. The incident is alleged to have taken place in the square where the Accused were fighting with each other. It appears that both the Accused are brothers. There was other constable like Supdu Madan Ahire also. The incident is alleged to have taken place in the square where the Accused were fighting with each other. It appears that both the Accused are brothers. The Sessions Court rightly observed that the quality of evidence is material and not the quantity. The Sessions Court has further discussed the evidence regarding Panchas becoming hostile and his believing the Investigating Officer regarding seizure and Spot Panchnama. 6. There is no reason why the Police Officers should be speaking against the Petitioners-Accused persons. There is nothing to show that they have any enmity or grudge against the Petitioners. As such both the Courts below rightly relied on the evidence of the Police Officers. There is no substance in the contention that there was delay, as Sessions Court has rightly discussed as to how the evidence shows that at the time of incident, the other police force was required to be called as the Accused persons were not ready and willing to go to the Police Station. As such delay of one hour cannot be said to be really a delay. In fact it can be said that there is no delay. 7. There is no substance in this Criminal Revision Application filed by the Accused Petitioners and there is nothing illegal, irregular or improper in the Judgments and findings of the subordinate Courts, as far as regards the merits of the matter are concerned and no interference on that count is called for. 8. However, the only point regarding which interference is called for, is the sentence which has been passed as far as regards Petitioner No.1 - Accused No.1 is concerned. The Judicial Magistrate First Class has directed that Accused No.1 Gopal Punju Samudre to suffer rigorous imprisonment for one year on the count of Section 353 of the I.P.C. and on the count of Section 427 of I.P.C. separate sentence is passed for the period of one year and the sentences have been directed• to run consecutively. 9. The Judicial Magistrate First Class has directed that Accused No.1 Gopal Punju Samudre to suffer rigorous imprisonment for one year on the count of Section 353 of the I.P.C. and on the count of Section 427 of I.P.C. separate sentence is passed for the period of one year and the sentences have been directed• to run consecutively. 9. Keeping in view Section 31 of the Cr.P.C. read with Section 71 of I.P.C., on consideration of the facts of the present matter, it will have to be said that the use of criminal force by Petitioner No.1 to deter complainant Dharma More from interfering in the quarrel of both the Accused, by holding his shirt causing the same to tear and the button to break off is one act. No doubt, it constitutes offence under Section 353 as well as 427 of the I.P.C. also, as has been held by the subordinate Courts. The act being one even if separate sentences have been passed, it would be appropriate to make the substantive sentences to run concurrently instead of consecutively. 10. As far as quantum of the sentence is concerned, the Advocate for the Petitioners submits that the incident occurred at the spur of moment and there are no criminal antecedents of the Accused No.1 and thus leniency may be shown. Considering the material on record, I find that the sentence is some what harsh. However, it cannot be forgotten that when such incident like present one is taking place, if a Constable is interfering, it will be duty of every citizen to respect and citizens cannot be allowed to aggravate the situation by using criminal force against Police Constable who is discharging his duty to ensure that law and order is maintained. As such sentence of imprisonment has to be imposed. However, the same can be reduced to the period of three months, as no earlier criminal record is shown. 11. For the above reasons, I pass following order:- ORDER (A) Criminal Revision Application is partly allowed. (B) The conviction and sentence as imposed on Accused No.2 Mahendra Punju Samudre by the Judicial Magistrate First Class and which has been confirmed by the Sessions Court, is maintained. (C) The conviction and sentence under Section 160 of the I.P.C. as imposed on Accused No.1 Gopal Punju Samudre is also maintained. (B) The conviction and sentence as imposed on Accused No.2 Mahendra Punju Samudre by the Judicial Magistrate First Class and which has been confirmed by the Sessions Court, is maintained. (C) The conviction and sentence under Section 160 of the I.P.C. as imposed on Accused No.1 Gopal Punju Samudre is also maintained. (D) As far as regards the sentence imposed on Accused No.1 Gopal Punju Samudre under Section 353 and 427 of IPC is concerned, the same is altered regarding extent as under: (i) It is directed that Accused No.1 is further convicted for offence under Section 353 of IPC and sentenced to suffer Rigorous Imprisonment for THREE MONTHS and to pay fine of Rs.1,000/- (Rupees One Thousand). In default of payment of fine he shall further suffer Rigorous Imprisonment for one month. (ii) Accused No.1 is further convicted for offence punishable under Section 427 of IPC and sentenced to suffer Rigorous Imprisonment for THREE MONTHS and to pay a fine of Rs.1,000/- (Rupees One Thousand). In default of payment of fine he shall further suffer Rigorous Imprisonment of one month. (E) All the substantive sentences shall run concurrently. Criminal Revision Application stands disposed of in the above terms. Revision partly allowed.