Ashok Patalu @ Yeshwant Shere & Ors vs State Of Maharashtra
2016 Latest Caselaw 751 Bom

                                                                        Cri.Appeal 281/2001
                                               1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO.281 OF 2001




                                                                                  
    1.      Ashok s/o Patalu @ Yeshwant Shere,
            Age 26 years, Occu. Agri.,




                                                          
    2.      Vishnu s/o Patalu @ Yeshwant Shere,
            Age 30 years, Occu. Agri.,

    3.      Kalyan s/o Patalu @ Yeshwant Shere,




                                                         
            Age 35 years, Occu. Agri.,

            All residents of Undengaon,
            Taluka Paranda, Dist. Osmanabad                               ..Appellants




                                             
                              Versus

    .       The State of Maharashtra
                               ig                                         ..Respondent

    Mr Satej S. Jadhav, Advocate for appellants
    Ms R.P. Gaur, A.P.P. for respondent
                             
                                                   CORAM : N.W. SAMBRE, J.

                                                   DATE     : 18th March 2016
    ORAL JUDGMENT
      
   



            Heard.

2. The appellants-accused are convicted and sentenced by the

learned 2nd Additional Sessions Judge, Osmanabad under Section 235

(2) of Code of Criminal Procedure for an offence punishable under

Section 225 of the Indian Penal Code to undergo rigorous

imprisonment for a period of two years each and in default of

payment of fine Rs.500/- to undergo simple imprisonment for two

months; and under Section 235 (2), for an offence punishable under

Section 323 read with Sec.34 of Indian Penal Code and to undergo

rigorous imprisonment for a period of six months each and in default

of payment of fine of Rs.200/- to undergo simple imprisonment for one

Cri.Appeal 281/2001

month, vide judgment and order dated 20 th June 2001, as such

present appeal.

3. On 17th September 1997, complainant Navnath claimed to have

attempted to lure the wife of appellant No.1 Ashok resulting into

dispute between them. In the above referred background, it is the

prosecution story that the complainant Navnath was injured after the

present appellants assaulted him resulting into registration of crime in

question.

4. After the investigation in the matter complete and charge-sheet

was filed, charge was framed on 17th October 2000 vide Exh.15 and

thereafter the trial was conducted.

5. In the above background, learned Counsel for the appellants

would submit that looking to the nature of conviction and the

background in which the alleged offence claimed to have been

committed, the appellants be granted benefit of the provisions of

Probation of Offenders Act. He would then submit that there is no

past criminal antecedents and the offence is not having colour of an

economic offence.

6. Learned A.P.P. submits that the Court may also consider the

award of compensation to the victim, while releasing the appellants

on probation.

7. In this background, I have gone through the judgment of

learned Sessions Judge convicting the accused as observed herein

above.

Cri.Appeal 281/2001

8. This Court is aware about the approach of the Apex Court in the

matter of State through C.B.I. Anti Corruption Branch,

Chandigarh Vs. Sanjiv Bhalla & Anr., reported in 2014 (8)

Scale 377, observing that the Courts are required to grant benefit of

Probation of Offenders Act to the convicts-accused, if they qualify the

requirements under the said Act.

9. In paragraph 12 (2) of the said judgment, it is observed thus :

"12 (2). Every accused person need not be detained,

arrested and imprisoned - liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need

not be hanged however shrill the cry "off with his head" - and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless

all other options are foreclosed. Just sentencing is as

much as aspect of justice as a fair trial and every sentencing judge would do well to ask: Is the sentence being awarded fair and just ?

In paragraphs 27 (17), and 28 (18) of the said judgment it is

observed thus :

27 (17). These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift = from punishment being a humanizing mission to punishment being deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal

Cri.Appeal 281/2001

Procedure Code and the Probation of Offenders Act, what is imperative for the judge is to strike a fine balance between releasing a convict after admonition or on

probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of

rehabilitation and the humanizing mission must not be forgotten.

28 (18) These are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section

357 of the Criminal Procedure Code). Yet, additional

changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including

the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions ?

Then finally, while summoning up in paragraph 31 (21) of the

judgment, the Apex Court observed thus :

           31 (21)           To sum up :
           (a)      For awarding a just sentence, the Trial Judge must

consider the provisions of the Probation of Offenders Act

and the provisions on probation in the Criminal Procedure Code;

(b) When it is not possible to release a convict on probation, the Trial Judge must record his or her reasons;

(c) The grant of compensation to the victim of a crime is equally a part of just sentencing;

Cri.Appeal 281/2001

(d) When it is not possible to grant compensation to the victim of crime, the Trial Judge must record his or her

reasons: and

(e) The Trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case."

10. In the above referred background, if the case of the present

appellants is analysed, it is required to be noted that the accused

persons were admitted to bail by this Court. So also they were on bail

before the learned Sessions Court.

11. Apart from above, it is required to be noted that the condition of

bail or the liberty enjoyed by them during trial was not misused.

12. The fact remains that there are no criminal antecedents. As

such, the appellants in my opinion are entitled for the benefit of

provisions of Probation of Offenders Act. Hence, I propose to pass the

following order :

(a) The appellants be released under the provisions of Probation of

Offenders Act;

(b) Each of the appellants be execute a bond of good behaviour

within a period of thirty (30) days from today before the concerned

Probation Officer. They shall also report the concerned Probation

Officer once in three months;

Cri.Appeal 281/2001

(c) In case the Probation Officer finds that the appellants have

violated the above conditions, he shall be free to report the same to

this Court.

13. Criminal Appeal, as such stands partly allowed and disposed of

in above terms.

( N.W. SAMBRE, J.)

vvr