Vaijnath Babarao Dhonde & Anr vs State Of Maha
2016 Latest Caselaw 4724 Bom

                                                                  325.03crirevapp
                                        (1)

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                        
                          BENCH AT AURANGABAD
                                                  
            CRIMINAL REVISION APPLICATION NO.325 OF 2003




                                                
     1]       Shri. Vaijnath Babarao Dhonde
              Age 35 years, Occu. Agriculture,
              R/o. Shevdi (Bajirao),




                                               
              Tal. Loha, District Nanded

     2]       Shri. Mahadu Babarao Dhonde,
              Age 30 years, Occu. Service,




                                      
              R/o. As above
                                                         ..PETITIONERS

              VERSUS
                             
                            
     The State of Maharashtra
                                                         ..RESPONDENT


     Mr S.M. Godsay, Advocate for petitioners.
      


     Mr C.V. Dharurkar, A.P.P. for respondent.
   



                             CORAM :  N.W. SAMBRE, J.

DATE : 19th August, 2016

ORAL JUDGMENT :

Heard Mr. S.M. Godsay, learned counsel for

the applicants-accused and Mr. C.V. Dharurkar,

learned A.P.P. for the State.

2. Present revision is directed against the

judgment and Order passed by learned Judicial

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Magistrate, First Class, Kandhar in Regular

Criminal Case No. 256 of 1991 ordering the

conviction of the applicants for an offence

punishable under Section 324 of the Indian Penal

Code, sentencing the applicants to suffer rigorous

imprisonment for six months and to pay fine of

Rs. 500/-, in default to suffer simple imprisonment

for one month and the order passed by learned

Session Judge, Nanded in Criminal Appeal No. 52 of

1996 dismissing the appeal preferred by the present

applicants against the above order of conviction on

23rd September, 2003 and uphold their conviction.

3. Facts, as are necessary, for deciding the

present revision application, are as under :

On 19th September 1991 at about 8.30 a.m.

the complainant was assaulted by applicants by use

of deadly weapons as there was difference between

the applicants and the complainant over the

agricultural land.

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4. Pursuant to the complaint lodged after the

crime was registered, charge was framed against the

accused persons at Exhibit-43 for an offence

punishable under Sections 147, 148, 324, 325 read

with Section 149 of the Indian Penal code.

5. The prosecution has examined complainant

PW-1 Santram at Exhibit-63, PW-2 Ramrao Potphode at

Exhibit-69, PW-3 Basling Arale at Exhibit-70, PW-4

Gangadhar Mudewar at Exhibit-72, PW-5 Ahmed Ali at

Exhibit-73, PW-6 Abdul Rashid, panch for seizure of

weapon at Exhibit-74, PW-7 Shaikh Mohamad, panch

for seizure of weapon at Exhibit-75, PW-8 Dr.

Vinayak Kulkarni, Medical Officer at Exhibit-80,

PW-9 Maroti Dhonde at Exhibit-84, PW-10 Dattu

Potphode at Exhibit-85 and PW-11 Devidas Patil at

Exhibit-87.

6. The defence of the present applicants was

that of total denial.

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7. After considering the above referred

evidence in analytical manner, learned Judicial

Magistrate, First Class, Kandhar, by verdict dated

23rd July, 1996 convicted present applicants. The

said conviction is confirmed in Criminal Appeal

No.52 of 1996, by verdict dated 23 rd September,

2003 passed by learned Additional Sessions Judge,

Nanded.

8. While questioning the conviction,

Mr. Godsay, learned counsel for the applicants

submits that the material contradictions and

omissions appearing in the evidence of complainant

and witnesses are not considered by the Courts

below. According to him, once it is noticed that

the Investigating Officer was not examined, the

contradiction could not have proved in its proper

spirit. He would then took me through the charge

that was framed on 28th May, 1993 by learned

Judicial Magistrate, First Class, Kandhar, so as to

submit that defective charge was framed against the

accused, as such, the trial, according to him, is

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vitiated. He would then add that the ingredients of

common objects and unlawful assembly are since not

spelt out in the charge, the entire trial vitiates.

He would then submit that there is a denial of

principle of fair trial to the applicants, as the

Investigating Officer was not examined, which has

resulted into great prejudice and as such,

according to him, the applicants are entitled for

the acquittal.

9. Learned A.P.P. supported the judgment of

conviction based on the evidence that is brought on

record.

10. With the assistance of Mr. Godsay, learned

counsel for the applicants and Mr. Dharurkar,

learned A.P.P. for the State, I have perused the

evidence of complainant Santram, contents of

complaint dated 19th July, 1991, the evidence of

PW-3 Basling, spot panchnama at Exhibit-71, the

evidence of PW-4 Gangadhar, the evidence of PW-7

Shaikh Mohamad, so as to prove recovery of stick,

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seizure panchnama at Exhibit-77, Exhibit-78 and

Exhibit-79, evidence of PW-8 Dr. Vinayak, PW-9

Maroti, an eye witness.

11. Upon perusal of the evidence of all the

above referred witnesses, it could be rightly

gathered that the complainant PW-1 Santram suffered

injuries, which were caused by the present

applicants with the aid of stick, which was

recovered from their possession. The recovery of

stick which was used in the commission of crime was

proved by PW-7 Shaikh Mohammad, the injuries

suffered by Santram were proved by evidence of

witness No.8 Dr. Vinayak and other eye witnesses

i.e. PW-1 Santram, PW-2 Ramrao, PW-4 Gangadhar and

PW-9 Maroti.

12. So far as the claim of the applicants that

because of non-examination of the Investigating

Officer, the material omissions are not proved,

will be of hardly any assistance, as the recovery

was very much proved by examining panch witnesses

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and other evidence was duly adduced by eye

witnesses, who supported the prosecution story.

13. Having perused the judgments delivered by

both the Courts below, it could be noticed that the

role attributed to the applicants of participation

in the crime in question, particularly assaulting

the complainant Santram, Santram suffering injuries

and role played by each of the applicant was very

much proved beyond reasonable doubt.

14. In view of above, in my opinion, no case

for interference in the revisional jurisdiction is

made out. As such, the order of conviction is

required to be upheld.

15. This takes me to the next limb of

submission of Mr. Godsay, learned counsel of

applicants that benefit of Section 360 of the Code

of Criminal Procedure be extended to the present

applicants, particularly by releasing the

applicants on probation in exercise of power under

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the Probation of Offenders Act.

16. Perusal of the judgment of conviction

depicts that the applicants were convicted for an

offence punishable under Section 324 of the Indian

Penal Code and were sentenced to suffer rigorous

imprisonment for six months by judgment dated 23 rd

July, 1996. During the trial, so also during the

pendency of appeal, the applicants were on bail.

The alleged incident is of 1991. In my opinion,

having regard to the fact that the incident took

place about 26 years back from today and the

applicants were convicted for maximum punishment of

period of six months and the applicants have

already paid fine amount, the prayer of the

applicants for releasing them on probation needs to

be considered favourably. There is one more aspect

of the matter, which needs to be considered is, the

applicants herein during the pendency of the

present matter have not jumped conditions of the

bail or have not indulged themselves in any other

crime.

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17. In view thereof, the applicants are

entitled to be released on probation on the

following conditions :

(i) The applicants shall execute the bond of

good behaviour with one surety before the Probation

Officer for period of one year from the date of its

execution, within a period of four weeks from

today.

(ii) If the applicants engaged themselves in

the commission of crime, it will be appropriate

that the Probation Officer to submit report to that

effect to learned Judicial Magistrate, First Class,

Kandhar, who may apprehend the present applicants

and shall submit appropriate report to that effect

to this Court for further orders as regards the

probation.

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18. With the above observations, Criminal

Revision Application stands dismissed. Rule stands

discharged.

(N.W. SAMBRE, J.)

Tupe