Salim Hawaldar Shaikh vs The State Of Maharashtra

This appeal takes exception to the judgment and order dated 25th November 1998 passed in Sessions Case No. 13 of 1997, whereby the present appellant is convicted for the offence punishable under Section 333 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced to suffer rigorous imprisonment for five years with fine of Rs. 3000/-, in default, rigorous imprisonment of six months

On 16^th March 1993 at around 6:30 pm, the action of demolition of unauthorized structures was undertaken by CIDCO in Kalamboli area. The demolition squad instructed the unauthorized occupants of the structures to remove their belongings before commencing the action of demolition.

It is the claimed by the prosecution that the accused persons including the present appellant started pelting stones at the demolition squad. Mr. Lotlikar PW1 and others sustained injuries in the said incident. In all seven accused were charged for the offenses punishable under Section 147, 148, 149, 332, 333, 336, and 337 of IPC. The prosecution led evidence of eight witnesses in order to bring home guilt of the accused persons. The Trial Court acquitted six accused persons whereas convicted the present appellant.

Learned counsel for the appellant submits that the evidence on record is not sufficient to bring home the guilt of the accused beyond reasonable doubt. It is her submission that the witness – Lotlikar though has deposed before the Trial Court with regard to the appellant/accused pelting stones at him resulting in causing of fracture injury to his elbow, however, his statement under Section 164 of the Cr.P.C. is inconsistent thereof. It is further argued that the witnesses had no acquaintance with the appellant/accused and in absence of Identification Parade being conducted, there was no question of he being convicted for any offence. Reference is also made to the statements of eyewitnesses who, according to her, gave different versions of the incident. On these amongst other contentions, acquittal is sought.

Learned APP opposed the appeal and supported the impugned judgment and order on the ground that the evidence of the injured eye witness is supported by the other witnesses to indicate that it was the appellant/accused who had pelted stone at PW2-Mr.Lotlikar which resulted in causing grievous hurt to him. It is submitted that the said grievous hurt i.e. displaced fracture caused to the witness is duly proved through the testimony of Dr.Thorat, PW7. Cross-examination is pointed out that in order to argue that there is no cross-examination suggesting non-causing of any fracture injury. It is thus his contention that the essential ingredients in order to prove the offence under Section 333 of IPC are proved and hence, there is no reason or justification to cause interference in the impugned judgment and order.

Though the appellant/accused is charged for number of offences, he stood acquitted in respect of all other offences except for the offence punishable under Section 333 of the IPC. In order to prove the offence under this provision, the prosecution is required to prove that grievous hurt is caused voluntarily in order to deter the public servant from doing his duty. In this regard, the evidence of the injured witness -Lotlikar PW2 indicates that he was working with CIDCO and was entrusted with the duty of demolition of unauthorized structures. In order to discharge his duties on 16th March 1993, he went to the spot along with other officials of CIDCO and started the action of demolition after calling upon the persons who were in the unauthorized structures to remove their belongings. In the cross-examination conducted by the defense, no dispute is made with regard to the fact that he was working as Chief Controller (Demolition) with CIDCO. Further, there is no dispute he being at the spot for discharging his duties. Similarly it is only case of the defense that the work of demolition of the structures was carried out unauthorizedly. It is thus clear from the evidence on record that the injured witness Lotlikar is a public servant and he was discharging his duty and in any case, his action needs to be accepted in colour of his duties..

There is evidence of Mr. Lotlikar which indicates that he had seen the present appellant having thrown the stone at him which has resulted in causing of fracture injury to his elbow. There is support to the testimony of this witness from the evidence of PW1 Kamble and PW3 Mr. Sarode. In fact, in the cross-examination conducted of the eye-witness, it is brought on record that the witness had acquaintance with the accused prior to the incident. Apart from this, evidence of Lotlikar indicates that the present appellant was called upon to remove his articles from the structure and, therefore, even before the occurrence of the actual incident of pelting of stones, the witness had occasion to see and talk to the appellant/accused. This relevant aspect has not been denied in the cross-examination. In such circumstances, this Court finds no substance in the contention of learned counsel for the appellant that this is a case wherein the identity of the appellant as a person who has caused injury to the

Insofar as causing of grievous hurt is concerned, the evidence of Mr. Lotlikar gets support from the testimony of Dr.Thorat-PW7. He categorically deposed about causing of displaced fracture to the witness and he having undergone surgery. There is no cross-examination on this point of the Medical Officer. It is also not suggested by the Doctor that no grievous hurt was caused. Having regard to the aforestated evidence, the prosecution has succeeded in proving all essential ingredients for constituting an offence under Section 333 of the IPC. This Court, therefore, finds no substance in the challenge to the order of conviction recorded by the Trial Court against the appellant.

At this stage, learned counsel submits that the appellant is presently aged 59 years with no criminal history behind him. It is, therefore, submitted that the benefit of probation be granted to the appellant. On instructions, she makes a statement that the appellant is ready to deposit sum of Rs.5000/- payable to the State Government. Learned APP opposed the said contention by stating that the appellant had committed serious offence against the government servants and prevented the government servants from committing their lawful duties, hence, he be seriously punished. It is also brought to the notice of this Court that not even for a single day, he was behind bard. It is his further submission that the offence under Section 333 mandates the imprisonment which may extend to 10 years.

Though the offence is punishable for imprisonment which may extend to 10 years, the Trial Court ought to have taken into consideration the circumstances under which offence has been committed, so also the act of the appellant/accused of pelting a single stone which has hit the injured causing grievous hurt to him. In such circumstances, this Court finds it proper to sentence the appellant to suffer simple imprisonment of six months with fine as directed to be paid by the Trial Court.

Since the offence is not punishable with death or imprisonment for life, there is no impediment to invoking the provisions of Section 4 of the Probation of Offenders Act. Admittedly, except for the present offence, no other criminal case is recorded against the appellant. The incident dates back to the year 1993. Thus, this is a fit case for extending the benefit of probation under the Probation of Offenders Act. Accordingly, the following order is passed:

The conviction of the appellant for the offence under Section 333 of the IPC is maintained. He is sentenced to suffer simple imprisonment for six months with fine as directed by Trial Court. However, instead of sentencing the appellant to undergo substantive punishment, the appellant is extended the benefit of Section 4 of the Probation of Offenders Act, 1958.

The appellant shall be released on probation of good conduct for a period of two (2) years, on his executing a personal bond of Rs. 15,000/- with one surety in the like amount to the satisfaction of the Trial Court.

During the probation period, the appellant shall:

The appellant is informed that violation of the above conditions or involvement in any criminal activity during the probation period will render him liable to be called back to serve the sentence awarded for the offence.

The appeal stands disposed of in above terms.