Bombay High Court
Robin Rupchand Nandgave vs The State Of Mah.Thr. Pso Wardha on 19 January, 2018
Bench: R. B. Deo
apeal418.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.418 O
F 2004
Robin s/o Rupchand Nandgave,
Aged about 22 years,
Occ: Student, R/o Railway Station Ward,
Sindhi, Tah. Seloo, District Wardha. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Sindhi,
Tah. Seloo, District Wardha. ....... RESPONDENT
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Shri Ranjit Singh, Advocate holding for Shri A.M. Ghare,
Advocate for Appellant.
Shri V.P. Gangane, APP for Respondent-State.
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CORAM: ROHIT B. DEO , J.
DATE: th
19 JANUARY
8 .
ORAL JUDGMENT
1] Exception is taken to the judgment and order dated
14.06.2004 passed by 2nd Ad-hoc Additional Sessions Judge,
Wardha in Sessions Trial 28/2003, by and under which, the
appellant (hereinafter referred to as 'the accused') is convicted for
offence punishable under section 324 of the Indian Penal Code
('IPC' for short) and is sentenced to suffer rigorous imprisonment
for two years and to payment of fine of Rs.500/-.
2] Heard Shri Ranjit Singh, the learned Counsel for the
appellant and Shri V.P. Gangane, the learned Additional Public
Prosecutor for the respondent-State.
3] The learned counsel for the accused would submit
that the judgment and order of acquittal militates against the
weight of evidence on record. Concededly, as is also the finding of
the learned Sessions Judge, the only material witness in a position
to testify about the incident of assault is P.W.1 Raju Laxmanrao
Bhagat. It is apparent from the evidence of P.W.2 Laxman s/o
Chokhaji Bhagat and P.W.3 Smt. Suman w/o Shatrughna Bhagat
that they have not witnessed the actual incident. The other witness
examined by the prosecution to throw light on the incident is P.W.4
Dilip s/o Keshav Manik, who did not support the prosecution and
was declared hostile. In the cross-examination conducted by the
learned A.P.P., P.W.4 Dilip has supported the prosecution to a
certain extent. However, even if the evidence of Dilip is considered
holistically, despite he being a hostile witness, it is apparent that
he is not an eye witness to the actual incident.
4] The injury certificate Exh.61 would reveal that the
injuries suffered are simple. The finding recorded by the learned
Sessions Judge that the injuries are simple is unexceptionable.
5] On a holistic appreciation of evidence on record, the
finding that the accused assaulted P.W.1 Raju does not suffer from
any serious error or infirmity. I have closely scrutinized the
evidence of injured P.W.1 Raju, who has no reason to falsely
implicate the accused and to exculpate the guilty. Concededly, the
incident occurred in the court-yard of the accused. I have no
hesitation in upholding the finding of conviction.
6] However, although the age of the accused is recorded
to as 22 by the learned Sessions Judge, the case papers would
show that the accused was not more than 20 at the time of the
incident. In order to satisfy the conscious of the court, the learned
counsel has produced before me the driving licence of the accused,
who incidentally is also present in the court since non-bailable
warrant was directed to be issued. The accused appeared suo motu
although the non-bailable warrant and prayed for recall of the
non-bailable warrant which is yet to be executed. Be that as it may,
it is indubitable that the accused was less than 20 years old as on
the date of the incident.
7] It is axiomatic, that had the learned Sessions Judge,
been alive to the age of the accused, would have been impelled to
consider grant of benefit of section 3 and 4 of the Probation of
Offenders Act, 1958 unless, having regard to the nature of the
offence and the character of the offender, the learned Sessions
Judge were to be satisfied that it is not desirable to deal with the
accused under section 3 or 4 of the Act. It would suffice to refer to
the following observations of the Apex Court in Ram Prakash v.
The State of H.P. reported in AIR 1973 SC 780.
While in the case of offenders who are above the
age of 21 years, absolute discretion is given to the Court
to release them after admonition or on probation of
good conduct, in the case of offenders below the age of
21 years an injunction is issued to the Court not to
sentence them to imprisonment unless it is satisfied that
having regard to the circumstances of the case,
including the nature of the offence and the character of
the offenders, it is not desirable to deal with them under
Sections 3 and 4 of the Act (Rattan Lal v. State of
Punjab, (1964) 7 SCR 676 = (AIR 1965 SC 444) and
Ramji Missir v. The State of Bihar, (1962) Supp 2 SCR
745 = (AIR 1963 SC 1088).
8] Nothing is brought to my notice to suggest that there
is any impediment in granting the benefit of section 3 and 4 of the
Probation of Offenders Act to the accused. This court is statutorily
bound to consider granting the benefit, unless for reasons to be
recorded this court is satisfied that it would not be desirable to
deal with the accused under section 3 or 4 having regard to the
circumstances of the case including the nature of offence and
character of the offender.
9] Section 6 of the Probation of Offenders Act, 1958
reads thus:
6. Restrictions on imprisonment of offenders under
twenty-one years of age.--(1) When any person
under twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment
(but not with imprisonment for life), the Court by
which the person is found guilty shall not sentence him
to imprisonment unless it is satisfied that, having
regard to the circumstances of the case including the
nature of the offence and the character of the offender,
it would not be desirable to deal with him under section
3 or section 4, and if the Court passes any sentence of
imprisonment on the offender, it shall record its reasons
for doing so.
(2) For the purpose of satisfying itself whether it
would not be desirable to deal under section 3 or
section 4 with an offender referred to in sub-section (1)
the Court shall not for a report from the probation
officer and consider the report, if any, and any other
information available to it relating to the character and
physical and mental condition of the offender.
10] The enunciation of law, consistent with the dictum in
Ram Prakash v. The State of H.P. reported in AIR 1973 SC 780 is
also discernible in the judgments of the Apex Court in Musakhan
and others vs. State of Maharashtra reported in AIR 1976 SC 2566
and the relevant observations read thus:
7. Taking A-4 we find that he was a young
man of 20 years in 1968 when the occurrence took
place and he is the brother of A-11 and A-12. The only
evidence of his participation in the incident at the
Bharat Lodge consists of P.W. 1 Prakash and P.W. 16
Vishwanath. So far as P.W. 16 is concerned his evidence
has been rejected as he was not able to identify the
appellant at a test identification parade. Further more,
in view of the evidence of P.W. 16 extracted above, it
would appear that he does not mention A-4 as one of
the persons who had taken part in removing the cash
box from the counter. In these circumstances, therefore,
A-4 can only be convicted at the most under Sections
149/425, I.P.C. As this appellant does not appear to
have taken any part either in the raid which was made
at the Engineering College hostel or at the chawl he can
only be responsible for the mischief which was caused at
the Bharat Lodge. As his conviction under Sections
395/149 fails, the appellant can only be convicted
under Sections 149/425, I.P.C. The other convictions
and sentences recorded against him are set aside. As,
however, the appellant was a boy of 20 years, his case
clearly falls within the purview of the Probation of
Offenders Act, 1958. The Probation of Offenders Act is a
social legislation which is meant to reform juvenile
offenders so as to prevent them from becoming
hardened criminals by providing an educative and
reformative treatment to them by the Government.
Unfortunately, though the provisions of Section 6 of the
Probation of Offenders Act are mandatory, the Courts
do not appear to make wise use of these provisions
which is necessary to protect our younger generation
from becoming professional criminals and, therefore, a
menace to the society. It may be that the appellant A-4
was not dealt with under the provisions of Section 6 of
the Probation of Offenders Act because of the charge
under Section 395, I.P.C. but that charge having failed,
there is no impediment now in his being dealt with
under the provisions of Section 6 of the Probation of
Offenders Act. In these circumstances, therefore, we
would set aside the convictions and sentences imposed
on A-4 Musa Khan and direct that he be released on his
entering into a bond with two sureties of Rs. 500/- each
for a period of one year in order to keep the peace and
be of good behavior. The appellant will report to the
Probation Officer appointed within the jurisdiction of
the place where he resides.
11] I am satisfied that the accused was only 20 years old
as on the date of the incident. I am also satisfied that having
regard to the circumstances, the character of the accused and the
nature of offence and the backdrop in which the alleged incident
took place, the accused deserves to be granted the benefit of
section 3 and 4 of the Act.
12] In the result, I pass the following order:
[i] The conviction of the accused under section
324 of the Indian Penal Code is maintained.
[ii] However, the accused is granted the benefit of
probation and is released on his entering into a
bond, to appear and receive sentence when
called upon during the period of one year and
in the meanwhile to keep the peace and be of
good behaviour.
[iii] The accused shall furnish the bond in the trial
court.
13] The appeal is partly allowed in the above terms.
JUDGE
NSN
