BHAGWAN S/O SHRIRANG CHORMALEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:38638


                                                                      CriAppeal-455-2016
                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO.455 OF 2016

                 Bhagwan s/o Shrirang Chormale
                 Age: 61 years, Occu.: Agril.,
                 R/o. Laxmipur, Tq. Wadwani,
                 Dist. Beed.                                             .. Appellant

                       Versus
                 The State of Maharashtra                                .. Respondent
                                                  ...
                 Mr. Sudarshan J. Salunke, Advocate for Appellant.
                 Mr. S. M. Ganachari, APP for respondent/State.
                                                  ...

                                                CORAM :     ABHAY S. WAGHWASE, J.

                                        RESERVED ON :       25.08.2026
                                     PRONOUNCED ON :        27.08.2026

                 JUDGMENT :-

                 1.      Appellant/original accused/convict hereby takes exception to

                 challenge the judgment and order dated 01.07.2016 passed by

                 learned Additional Sessions Judge, Majalgaon in Special Case

                 (Atrocity) No.04 of 2016, by which he came to be convicted for

                 offence under Section 323 Indian Penal Code [IPC] and sentenced to

                 suffer rigorous imprisonment for one year and also to pay fine.


                 2.    In short, case of prosecution in trial Court was that on

                 01.08.2015 when informant was returning after answering nature's

                 call, at that time, accused/appellant came across with axe in his hand
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and questioned him, as to why two days back informant had talked

with him about the flow of water. It is alleged that there was abuses

on caste basis followed by use of axe in assaulting on the head and

hand. On receipt of complaint to that extent, crime was registered

bearing No.65 of 2015 for offence under Sections 324, 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"].


.     After investigation, PW8 Investigating Officer charge-sheeted

accused, who was tried vide above Special Case by learned Additional

Sessions Judge, Majalgaon.


.     At trial, prosecution adduced evidence of as many as eight

witnesses and also relied on documentary evidence like panchnama

and injury certificate. After hearing both sides, learned Trial Court

accepted the case of prosecution as proved beyond reasonable doubt

and convicted accused vide above judgment and order, which is now

sought to be challenged in the instant appeal.


3.    Learned Counsel for the appellant pointed out that there is false

implication due to previous enmity. That, no such occurrence had

taken place on 01.08.2015. He pointed out that though the

prosecution has adduced evidence of as many as eight witnesses,
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there is no independent eyewitness. He emphasized that though there

are allegations of use of an axe, the same was not produced before

the Court and, further, there is no link evidence on the point of use of

the said axe in any assault. He pointed out that even injuries suffered

by informant were simple in nature. He took this Court through the

length and breadth of prosecution witnesses and also the answers

given in cross-examination and would also question the story of

prosecution. He pointed out that though the medical expert has been

examined, the said witness was not confronted with the alleged

articles seized while securing the opinion.


.     Lastly, he submitted that even otherwise, at the time of

judgment, the accused was 60 years of age and now, almost a decade

has passed since the judgment and order of conviction. Now, the

appellant is almost 70 years of age and, in the alternative, he

submitted that the benefit of Section 4 of the Probation of Offenders

Act be extended to the appellant.


4.    Learned APP would oppose on the ground that prosecution has

proved the case beyond reasonable doubt. Informant's evidence has

remained intact and is convincing. There is no reason to discard the

testimony of other witnesses also. That, regarding injury suffered by

victim/informant, prosecution has adduced testimony of medical
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expert, who has not only examined and treated victim, but also issued

injury certificate. Thus, according to him, charge of voluntarily

causing hurt has been substantiated by the prosecution. For said

reason, he prays to dismiss the appeal for want of merits.


5.    Sum and substance of the evidence before trial Court :


.     PW1 informant has been examined at Exhibit-12. After giving

his caste and community, he stated that he had been to answer

nature’s call. When he stopped near Government Borewell at that

time accused came along with she-goats and started hurling abuses on

caste basis and thereafter, accused hit him with axe on the backside of

head as well as hand. He shouted, as a result of which, his wife and

son came and took him to police station, where he gave report

Exhibit-13.


.     In his cross-examination, the location of his residence and the

relatives residing in the neighbourhood were elicited. He denied that

he dislikes joint residence of accused with Champabai. He admitted

that he himself and other villagers have made encroachment and

were grazing cattle, of which crime was registered. He admitted that

panch witness and PW2 happens to be his relative and almost all

prosecution witnesses are his close relatives. Omission is brought to
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the extent that his son Indrasen had come to the spot along with the

wife of informant; after the incident he went to police station and

lodged report. Rest is all denial.


6.    PW2 is the panch to the seizure panchanama i.e. seizure of

clothes of victim vide Exhibit-16.

.     In cross-examination, he admitted to be the relative of

informant. Rest is all denial.


7.    PW3 is the spot panch, who identified spot panchanama

Exhibit-18.

.     While under cross-examination, he admitted that writing of

panchanama was going on when he reached the spot and he also

admitted that Mariba is his relative.


8.    PW4, wife of the informant, deposed that on 01.08.2015, she

heard shouts of her husband, so she went to the borewell and noticed

that her husband had suffered a bleeding injury. Thereafter, she, as

well as her son, took him to the police station. In the examination-in-

chief itself, she has stated that a quarrel took place between her

husband and the accused on account of letting wastage water from

the house.

.     While under cross-examination, she admitted that she is not
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witness to the incident. Rest is all denial.


9.    PW5 is the panch to the seizure of axe vide panchnama dated

06.08.2015, which was allegedly recovered on memorandum of

disclosure of accused under Section 27 of the Indian Evidence Act.

Nothing damaging has been brought in his cross-


10.   PW6 is the Investigating Officer, who narrated all steps taken

by him during investigation.


11.   PW7 is the medical officer, who examined and treated

informant and issued certificate Exhibit-29 about injuries to be simple

in nature.

.     While under cross-examination, he admitted that he did not

possess record of the hospital and that medical certificate is issued on

the basis of MLC register.       He admitted that age of the injury,

probable weapon and nature of injury is not quoted in the MLC

register. Except the admission that injury Nos.1 and 2 are possible on

coming in contact with sharp weapon of borewell, rest is all denial.


12.   PW8 is the second Investigating Officer, who charge-sheeted

accused.


13.   Re-appreciated the above entire evidence, more particularly,

informant's evidence. He has narrated that when he had been for
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                                  -7-

answering nature’s call, accused, initially, in the backdrop of previous

incident regarding letting of water, hurled caste abuses and

thereafter, hit the informant with an axe on the back of head and

hand. The evidence of this witness finds support from the evidence of

PW7, the medical expert, who had occasion to examine and treat the

informant. Though the informant and this witness were cross-

examined, nothing adverse has been brought on record in their cross-

examination. Indeed, as submitted, the prosecution in the Trial Court

failed to confront the seized weapon to the medical expert while

seeking his opinion, but on account of such lapse alone, the cogent

and reliable evidence of complainant cannot be doubted, more

particularly when there is recovery of axe under the memorandum of

disclosure of accused himself. Therefore, indeed, as submitted by

learned APP, the offence of voluntarily causing hurt is substantiated

by the prosecution.


.     In the alternative, it is submitted that the accused be given the

benefit of Section 4 of the Probation of Offenders Act, considering his

age and the fact that he has no criminal antecedents.


14.   Perused the papers. Admittedly, in the judgment of conviction,

age of accused is noted as 60 years. The judgment was rendered in

2016. The appeal has taken almost a decade to be heard and decided.
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Therefore, as on today, appellant must be 70 years of age. There are

no criminal antecedents against the appellant.


15.   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.


16.   Therefore, considering his age as on today and relying on the

above referred judgments of the Hon’ble Apex Court, as the sword of

conviction has been looming large over the head of the appellant for

almost a decade, instead of sentencing him to suffer imprisonment,

this Court is inclined to extend the benefit of Section 4 of the

Probation of Offenders Act by issuing following consequential

directions. Hence, the following order is passed :-
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                                    -9-


                                 ORDER

      I.       The Criminal Appeal is partly allowed.

      II.      The conviction awarded under Section 323 of IPC to the

      appellant – Bhagwan Shrirang Chormale in Special Case

      (Atrocity) No.04 of 2016 by learned Additional Sessions Judge,

      Majalgaon vide judgment and order dated 01.07.2016, is

      hereby maintained.

                     HOWEVER

      III.     Instead of sentencing appellant to imprisonment, he is

      directed to be released on probation of good conduct by

      entering into a bond with one surety to appear and receive the

      sentence when called upon during the period of one year.


      IV.      The bond for a period of one year shall be executed by

      him before the trial Court within a period of four weeks from

      today.


      V.       The Criminal Appeal is accordingly disposed off.



                                           [ABHAY S. WAGHWASE, J.]

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