SHIVAJI SATWAJI BHAGDEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:15272
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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                             CRIMINAL APPEAL NO.725 OF 2023

            Shivaji Satavaji Bhagde,
            since deceased through his LRS.,

            1.   Archana W/o. Shivaji Bhagade,
                 Age : 31 years, Occu. : Household,

            2.   Rajveer S/o. Shivaji Bhagade,
                 Age : 11 years,
                 Minor under guardian of His Mother,

            3.   Rajlaxmi D/o. Shivaji Bhagade,
                 Age : 12 years,
                 Minor under guardian of her Mother,

                 All R/o. Savargaon Bhagade,
                 Tq & Dist. Jalna.                                 … Appellants
                         Versus
                 The State of Maharashtra,
                 Through Police Station Taluka Jalna,
                 Tq. & Dist. Jalna.                                … Respondents
                                             …..
            Mr. Chaitanya S. Deshmukh, Advocate for Appellants.
            Mr. N. S. Tekale, APP for Respondent - State.
                                             …..
                                            CORAM : ABHAY S. WAGHWASE, J.
                                     RESERVED ON : 27 MARCH 2026
                                   PRONOUNCED ON : 10 APRIL 2026
            JUDGMENT :

            1.           This appeal challenges the judgment and order of

            conviction    passed    by   learned     Sessions   Judge,   Jalna   dated

            26.06.2023 passed in Sessions Case No. 75 of 2018 convicting

            present appellant for offence punishable under sections 224 and 353

            read with section 34 of Indian Penal Code (IPC).
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2.          Learned Advocate for the appellant submits that, during

the pendency of the appeal, the appellant has expired. By order of

this Court dated 12.12.2025, the legal heirs have been brought on

record, and the matter is now being prosecuted by them.



3.          In short, case of prosecution in trial court is that, present

appellant Shivaji and another accused Lahu Jadhav, who were in

police custody, were being escorted from jail to Court by the police

party. After they were produced, they were taken back in handcuffed

condition towards the van. That time, they complained that

handcuffs were excessively tight. When the Constable loosened it,

that time both accused took to heels and ran away with the

handcuffs. PW4 PHC Rathod chased them and finally managed to

catch hold of them, but that time, they assaulted PW4 PHC Rathod.

Therefore, PW4 PHC Rathod lodged report Exh.37. On the basis of

which, crime was registered bearing No.86 of 2016 for offence

punishable under sections 224, 333, 353 r/w 34 of IPC. After

investigation, both were charge-sheeted and were tried by learned

Sessions Judge to frame and explain the charge and conducted trial

and by judgment and order dated 26.06.2023 convicted them for

offence punishable under sections 224 and 353 r/w 34 of IPC and

332, respectively and sentenced to suffer maximum imprisonment of

one year for each of the offence.
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4.            Feeling aggrieved by the same, instant appeal has been

preferred.


                                SUBMISSIONS

On behalf of Appellant:


5.            Learned counsel for appellant would submit that, there

was false implication. That, prosecution case was rested on in all 9

witnesses. That, almost all the witnesses are police witnesses. That,

there were no independent witnesses. Thus, the entire case of

prosecution was based on the evidence of interested witnesses.

Moreover, none of the panchanamas were proved by the prosecution.

That, there is variance in the evidence of police witnesses. According

to learned counsel, essential ingredients for attracting the offence is

patently missing. Lastly, learned counsel for appellant would point

out that, as of today, the appellant convict has spent almost eleven

months   in    prison,    and    therefore,   there   being   no   previous

antecedents, he urges to release the accused on sentence already

undergone.


On behalf of Respondent – State:


6.            Learned APP opposed on the ground that conviction is

recorded on fullfledged trial. That, there is account of informant, who

was himself injured. There is also another eye witness account, who

was also police personnel and therefore, learned trial court rightly
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recorded the guilt. However, learned APP submits that, it appears

that, since the date of conviction, the appellant must have spent the

period as stated by learned counsel for appellant.



7.          Heard. Re-appreciated the evidence. Admittedly, there

was charge for offence punishable under sections 224, 333, 353 r/w

section 34 of IPC.



8.          In short, case of prosecution is that, appellants who were

in custody for commission of some crime, were produced before the

Court, and after they were being taken back, on the pretext of

handcuffs to be excessively tight, they got it loosened and thereafter

they both managed to flee from police custody. Finally, it seems that

chase was given and both were apprehended and on report of one

police PW4 PHC Rathod, crime was registered for above offence and

they were duly tried.



9.          It appears that, evidence of PW4 PHC Rathod informant

is crucial. He in his evidence at Exh.36, has stated that, on

03.03.2016, around 3.15 p.m., in the Court premises of Jalna Court,

after the production of both accused Nos.1 and 2, a complaint of

handcuffed to be tight was made and that constable namely Bohare

made it loose. It is alleged that, thereafter both accused ran with the

handcuffs. They were given chase upto Ambad Naka. He stated that,
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both accused had beaten one person proceeding on Activa vehicle and

took his Activa, but they were caught and at that time, accused no.2

hit complainant with a stone near the ear. He brought accused no.2

to the police station and then lodged report Exh.37.



           Though above witness is cross examined, there is no

serious challenge to the above testimony.



10.         PW6 Police Constable Bahure is another important

witness and he is examined at Exh.55. He seems to be the eye witness

for the prosecution and he also narrated about accused persons

brought in police van for production and two accused persons after

giving jerk, fled and therefore, he himself and Digambar Rathod gave

a chase and they were caught, but accused Lahu assaulted Digambar

on the ear and that Digamber lodged report.



11.         Counsel for both the accused cross examined above

witnesses, but there is no effective cross-examination.



12.         PW5 Dr. Awachar and PW7 Dr. Bhiwte seem to be the

Doctors and they testified at Exh.52 and 58, respectively and

identified medical certificate (Exh.59).



           PW8 Patil and PW9 Sanap are police officials.
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13.          Appellant is convicted for offence punishable under

sections 224 and 353 of IPC. In order to establish the above charge, it

is incumbent upon prosecution to establish following essential

ingredients :-



      Section 224, IPC has two distinct parts. The first relates to

resistance to apprehension and the second part relates to escape

from custody. In order to bring home the guilt of the accused under

first part, the prosecution is to prove the following ingredients:


        1.   that the accused was charged or convicted;
        2.   that he offered resistance or obstruction to his
             apprehension;
        3.   that such resistance or obstruction was illegal; and
        4.   that the accused offered         such    resistance     or
             obstruction illegally.



      When the offence charged is that of escape or attempt to escape

from custody, the prosecution is to prove the following:


        1.   that the accused was taken into custody for
             commission of an offence;
        2.   that such detention in custody was lawful;
        3.   that the accused escaped from such custody or made
             an attempt to do so; and
        4.   that the accused did so intentionally.
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              The essential ingredients of the offence under section 354

of IPC are as under :

        i.     That the person assaulted must be a woman;
        ii.    That, the accused must have used criminal force on
               her; and
       Iii.    That the criminal force must have been used on the
               woman intending thereby to outrage her modesty.


14.           Thus, on analyzing the above evidence, more particularly

that of PW4 PHC Rathod and PW6 PC Bahure, prosecution has proved

that both accused, who were in police custody, were produced in the

court of Jalna and after remand, when they were being taken back,

there was complaint of tight handcuffing and when it was loosened,

they both gave jerk and fled. Police party managed to catch them at

some distance. Allegations about causing injury to the complainant

are substantiated by a medical expert. Therefore, prosecution indeed

has proved the charges.



15.           Submission before this court is that the maximum

sentence is of one year, and the convict has already undergone

almost 11 months, and therefore, it is prayed that the appellant be let

off for the sentence already undergone.



              In view of above submissions, the record is put to

scrutiny, which reveals that the conviction was recorded on
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26.06.2023, and admittedly this Court extended the benefit of

suspension of sentence by order dated 31.08.2023. In the operative

part of the judgment, it is mentioned that, the appellant was in jail

from 28.09.2016 to 08.08.2017. Resultantly, convict has already

suffered already almost 11 months of the sentence. Now, deceased is

said to be no more as he has expired, consequently, appeal gets

abated. Though appeal gets abated, conviction awarded by learned

trial Court is maintained. Hence, the following order is passed :


                                  ORDER

          (i)    The conviction of the appellant for offence
          punishable under sections 224 and 353 read with
          section 34 of IPC by learned Sessions Judge, Jalna dated
          26.06.2023 in Sessions Case No.75 of 2018 is hereby
          maintained.

          (ii)   Appeal is disposed of as abated.




                                           (ABHAY S. WAGHWASE, J.)




Tandale