Bombay High Court
The State Of Maharashtra vs Sampat S/O. Popat Shriram And ... on 1 February, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
908-Cri.Appeal.1298 of 2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1298 OF 2019
WITH ALS/2/2020
THE STATE OF MAHARASHTRA
VERSUS
SAMPAT S/O. POPAT SHRIRAM AND OTHERS
.....
APP for Appellant : Mrs. V. S. Chaudhari
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 1st FEBRUARY 2023
PER COURT :
1. Learned APP for the appellant-applicant State has preferred
Criminal Appeal No. 1298 of 2019 for enhancement and Application for Leave
to Appeal by State challenges the acquittal of respondents.
2. The respondents have faced prosecution in Sessions Case No. 34
of 2019 before the Additional Sessions Judge, Shrigonda. Prosecution has
examined in all 11 witnesses to bring home guilt of the accused persons by the
judgment and order dated 14.10.2019. All the respondents - original accused
Nos.1 to 7 have been held guilty for committing offence under section 326
read with 149 of Indian Penal Code. However, instead of sentencing them at
once, benefit of section 4 of the Probation of Offenders Act, 1958 (for short,
"P.O. Act") was given to them.
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3. Learned APP submits that the learned Additional Sessions Judge,
Shrigonda in his cryptic judgment, though has come to the conclusion that the
accused persons have committed offence under section 326 read with section
149 of Indian Penal Code, totally erred in applying section 4 of the P.O. Act.
He failed to consider that said benefit under section 4 of the P. O. Act cannot
be given to a person found guilty of having committed an offence punishable
with imprisonment for life.
4. Section 326 of IPC prescribes punishment up to imprisonment for
life. Further, the report of the Probation Officer appears to be not called as
there is absolutely no discussion about the same in the judgment. Further,
when the learned Additional Sessions Judge has applied section 149 of IPC, he
ought not to have acquitted the accused persons under section 143, 147 and
148 of IPC, and therefore, appeal deserves to be admitted and leave deserves
to be granted to challenge the entire decision.
5. We agree with the submissions on behalf of the State at this
prima facie stage. When the learned Additional Sessions Judge had come to
the conclusion that accused have committed offence under section 326 of IPC
then it ought to have seen as to whether section 4 of P. O. Act can be made
applicable. The wordings of section 4 of P. O. Act appears to be barred, when
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the offence to which the punishment prescribed is death or imprisonment for
life for granting the benefit under the Act. Though, section 7 of the P.O. Act
prescribes that the report of the Probation Officer to be confidential, it is
expected that reference of the same should be in the judgment and those
circumstances which prompted the concerned Judge to extend the benefit
under the same section should be reflected in the judgment. When a discretion
has been given, it has to be exercised judiciously that means all the necessary
legal provisions should be gone into.
6. When the learned Additional Sessions Judge has held the
respondents guilty of committing offence under section 149 of IPC by
observing that all the accused had come with common object to take revenge
of earlier days quarrel, it ought to have been considered that section 149 of
IPC would be applicable to the unlawful assembly which is described under
section 141 of IPC and made punishable under section 143 of IPC. In other
words, unless the ingredients of section 141 are held to be proved there
cannot be a conviction under section 149 of IPC. Therefore, the acquittal of
respondents needs to be reconsidered and for that purpose re-appreciation of
the evidence in the appeal is required.
7. We are, therefore, of the opinion that, the Criminal Appeal No.
1298 of 2019 deserves to be admitted and leave to appeal deserves to be
granted to the prosecution. Hence the following order :-
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ORDER
(i) The criminal appeal stands admitted.
(ii) Leave to file appeal is granted.
(iii) Compliance under section 390 of the Code of Criminal Procedure
be got done and the terms and the conditions for bail to be
decided by the learned trial Judge.
(iv) Issue notice to respondents, to be made returnable on 14.03.2023
(v) Call Record and Proceedings with paper-book.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale/-
