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2019 Supreme(Bom) 179
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.K. SONAWANE, J.
Walmik - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 21 of 2007
Decided On : 28-02-2019
R.N. Dhorde, Adv., V.R. Dhorde, Adv., M.M. Nelekar, Adv.
Headnote:
Indian Penal Code,1860 - Sections 147, 148, 323, 324, 307, 353, 332 read with section 149 - Code of Criminal Procedure, 1973 - Section 313(1)(b) - Arms Act, 1959 - Section 5 read with Section 27 - Prevention of Damage to Public Property Act, 1984 - Sections 3 and 4 – Appeal Against Conviction - Scenario of prosecution case culled out in brief is that function of inaugurations of branch office of political party known as was scheduled to be held on at village District Beed - Therefore Police Personnel PHC P and others were deployed for duty in village- All police personnel on Bandobast duty had been to village in Government vehicle Police Jeep bearing MH was driver of Police Jeep inaugural function commenced at about in night hours - Leader of BJP political party inaugurated Branch Office of - Sarpanch was President of function - When leader was addressing to gathering that time person from audience uttered obscene and lewd comments towards – Held, There were allegations that accused including appellant formed unlawful assembly and in prosecution of common object of such assembly pelted stones assaulted Police personnels and caused damages to Police vehicle etc - But learned trial Court found reluctant to draw adverse inference against all of them even for charges under Section 353 of IPC - As discussed above act of appellant flashing revolver to Police Personnel would not itself sufficient to constitute offence under Section 307 of IPC against him - Therefore there is no propriety to fasten guilt under Section 353 of IPC against sole appellant when he has been absolved from offence of unlawful assembly rioting etc - In result conviction of appellant under Section 307 and 353 of IPC is required to be upset and set aside - Appeal stands disposed of
K.K. SONAWANE, J.
1. Being dis-satisfied with the conviction for the offence punishable under Sections 307 and 353 of the Indian Penal Code (IPC) and resultant sentence of rigorous imprisonment for two years and to pay a fine of Rs.7,000/- in default to suffer simple imprisonment for a period of six months and rigorous imprisonment for one year and to pay fine of Rs.2,000/- in default to suffer simple imprisonment for a period of three months on both counts respectively, imposed by the learned Ad-hoc Additional Sessions Judge, Ambejogai, District Beed, in Sessions Case No. 93 of 2005, the appellant preferred the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (Cr.P.C.), to redress his grievances.
2. The scenario of the prosecution case culled out in brief is that, the function of inaugurations of branch office of political party known as "Bhartiya Yuva Morcha" was scheduled to be held on 21-01- 2002 at village Aswalamba, Taluka Parali, District Beed. Therefore, the Police Personnel PHC Shri. Gajkoas, PC Bandu Kadam, PC Awachar (Bhavsar), PC Sarukh and others were deployed for Bandobast duty in the village. All the police personnel on Bandobast duty had been to the village Aswalamba in Government vehicle Police Jeep bearing MH-06- M-9816. The PC Sy. Amjad Sy. Meer was the driver of the Police Jeep. The inaugural function commenced at about 10.00 p.m. in the night hours. The leader of BJP political party Shri. Dhananjay Mundhe inaugurated the Branch Office of Yuva Morcha. The Sarpanch Shri. Jiwraj Dhakne was the President of function. When the leader Shri. Dhananjay Mundhe was addressing to the gathering, that time, the person Shri. Shivaji Mundhe from audience uttered the obscene and lewd comments towards leader Shri. Dhananjay Mundhe. The disgusting and offensive words passed by the person Shri. Shivaji Mundhe created chaos and confusion in the gathering. The restive audience became violent and started attacking the miscreant namely Shri. Shivaji Mundhe. The Police Personnel on Bandobast duty rushed to maintain law and problem. The Police Personnel took the miscreant Shivaji Mundhe in their custody and requested the member of the assembly not to attack him. But, the mob was not in a condition to listen. They started pelting stones and insisted for custody of the miscreant Shivaji Mundhe. The police personnel anyhow succeeded to extricate him from the clutches of the mob. In the attempt, police personnel also received the injuries following scuffle and stone pelting by the mob. However, police personnel made the injured Shivaji Mundhe to sit in the jeep, and the driver PC Sayyed attempted to switch on the vehicle jeep for proceeding towards Ambejogai Police Station. But, the mob cordoned off the vehicle to prevent the police personnel to carry the miscreants Shivaji Mundhe away from the spot. The mob flung the stones. The vehicle jeep caused damage in the incident. Meanwhile, the appellant-accused Shri. Walmik Karad caught hold the shirt collar of PC Sy. Amjad - driver of the Police Jeep vehicle. He took out the weapon revolver and put it on the head near the ear of PC Sy. Amjad. But, suddenly some one else pulled back the appellant Walmik Karad, and thereafter, the Police vehicle proceeded further towards Ambejogai with injured Shri. Shivaji Mundhe and other police staff. The police personnel PHC Shri. Sambhaji Gajkos filed the report of the incident to the Police of Ambejogai Police Station.
3. Pursuant to FIR of PHC Gajkos, the concerned PSO of Ambejogai Police Station registered the Crime No. 16 of 2002 under Sections 147, 148, 323, 324, 307, 353, 332 read with section 149 of the IPC as well as Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984, and Section 5 read with Section 27 of the Arms Act, 1959. Accordingly, police set the penal law in motion. The investigation was entrusted to P.I. Shri Chavan. He visited to the spot of incident and drawn the panchnama of sc
