Yashpal Vilas Labade vs The State Of Maharashtra

Convict for offence under Section 323, 324 of Indian Penal Code (for short “IPC”) hereby takes exception to the judgment and order of conviction dated 11.12.2015 passed by Special Judge, Osmanabad in Special Case No.8 of 2015.

Brief snapshot of the prosecution in trial Court is that on 02.02.2015, accused visited the brick kiln run by complainant and his father and sought the whereabouts of complainant’s father by inappropriately addressing his father, which was objected by complainant. In this backdrop, it is alleged that after hurling caste abuses, with reference to complainant’s caste, there was assault by means of kicks/fist blows and stone. On receipt of complaint to that extent from P.W.1, law was set into motion. On completion of investigation accused was charge-sheeted for offence punishable under Sections 323, 324 and 504 of IPC and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “Atrocities Act”). The trial ended up in acquittal from charges of Atrocities Act, but conviction came to be recorded for offence under Section 324 of IPC, awarding rigorous imprisonment for six months with fine and in default to suffer one month imprisonment. No separate sentence was awarded for the offence under Section 323 of IPC, though he was also convicted for the said offence.

Feeling aggrieved by the above judgment of conviction, original accused – convict has preferred instant appeal.

Learned Counsel for appellant would submit that on same set of evidence, there is acquittal from charges under Section 3(1)(x) of the Atrocities Act, but there is conviction for provisions of IPC. According to him, case is rested on as many as seven witnesses. According to learned Counsel for appellant, evidence of complainant and P.W.2 though consistent, it has come in the cross-examination of P.W.5 medical officer that injury suffered by complainant is possible on account of impact with the shaft of the cattle shed and as such there is other possibility of suffering injury. He would submit that even otherwise incident had taken place on the spur of the moment. He would submit that there is previous enmity on account of quarrel due to payment of bricks. Moreover, there is no independent witness and, even otherwise as almost 10 years have lapsed since the judgment, the sword of conviction has been hanging over the head of the appellant for more than a decade and, therefore, pointing out that the appellant has no criminal antecedents, the benefit of the Probation of Offenders Act may be extended to him, which trial Court failed to extend in spite of being urged.

In answer to above, learned APP would take this Court through the testimony of complainant and P.W.2 and would submit that there is corroboration to the testimony of complainant, who himself is a victim. She pointed out that treating doctor has been examined and he has found one CLW injury on occipital part which is attributable to the assault by accused. Therefore, as the case was proved beyond reasonable doubt, she urges to dismiss the appeal for want of merits.

Prosecution case of trial Court rest on evidence of as many as seven witnesses. Going by the charge, evidence of complainant assumes importance and is required to be dealt at the threshold followed by other evidence.

P.W.1 Sachin, who is examined at Exhibit 11, has stated that his family runs brick kiln. That, on 02.02.2015, around 3.00 p.m. while he was present on the brick kiln, accused came and asked whereabouts of his father in rude manner, to which he objected and requested the accused to address his father properly. Thereupon, it is alleged that accused hurled caste abuses and, thereafter, inflicted fist/kick blows and then hit the stone on the head causing injury and he was rescued by his mother and brother and other employees.

He identified complaint lodged by him. Nothing adverse has been brought in his cross-examination so as to doubt the veracity and credibility of his version.

P.W.2 also deposed like P.W.1 that accused came, addressed father of P.W.1 in rude manner while seeking his whereabouts and when objected to, he hurled caste abuses and also gave kicks/fist blows followed by hitting of stone. Even nothing damaging has been brought in his cross-examination by the defence.

P.W.3 seems to be panch at spot.

P.W.4 seems to be an independent witness and he in his evidence at Exhibit-16 stated that he was present with others on the brick kiln where even complainant was present and he also stated that accused came there to inquire about the whereabouts of complainant’s father by addressing him as Pandya and in turn, complainant requested him to properly address his father, which was followed by abuse, giving kicks/fist blows and hitting stone on the head. Even during his cross-examination, nothing adverse has been brought so as to disbelieve his version.

P.W.5 is the medical officer, who claims to have examined complainant on 02.02.2015 and has noticed CLW injury on the scalp and occipital region. He gave measurement of injury and identified certificate issued by him. Though this witness in cross-examination expressed possibility of said injury on account of impact with rift of cattle shed, this doctor had occasion to examine and treat the complainant on the very day in the casualty. In the medical certificate, it is clearly stated that there is history of assault. Therefore, submission of learned counsel for appellant about medical expert expressing other possibility of injury has no substance. On complete re-appreciation, this Court finds that there is injured witness account finding support from independent witnesses as well as medical expert. Therefore, conviction awarded by trial Court cannot be faulted.

Learned Counsel for appellant, in the alternative, urges for extending the benefit of the Probation of Offenders Act on the ground that the appellant has no criminal antecedents and, secondly, for almost more than a decade, the sword of conviction has been looming large over the head of the appellant, which itself is a sort of punishment for him.

Admittedly, from the above discussed evidence, the occurrence seems to have taken place all of a sudden and on the spur of the moment. The manner in which complainant’s father was addressed was objected by complainant which triggered the occurrence. Though there are accusations of hurling caste abuses, appellant is already acquitted from the said charge.

The Hon’ble Apex Court in the case of Sitaram Paswan and ors. vs. State of Bihar, [AIR 2005 SC 3534] also, in an appeal arising out of order of conviction for offence under Section 323 of IPC, on plea and ground of securing benefits of Section 3 and 4 of Probation of Offenders Act, 1958, extended the benefit of Section 4 of the probation of offenders Act 1958.

Likewise, the Hon’ble Apex Court, in the case of Jagat Pal Singh and others v. State of Haryana 1999 SCC (Cri) 1313, wherein also there was conviction under Sections 323, 452 and 506 r/w 34 of IPC, has permitted invoking Section 4 of the Probation of Offenders Act, 1958 in a case of similar nature. Here also, there are no criminal antecedents and taking quantum of sentence awarded by the Trial Court into account, instead of sentencing him to suffer imprisonment, benefit of probation is required to be extended by following consequential directions. Hence, following order is passed :

HOWEVER