11. Learned Counsel for the applicant submitted that the entire
evidence adduced by the prosecution is not sufficient to establish the
charge against the present applicant to prove the offence under Section
353 and 332 of the IPC. The evidence of the complainant is not
corroborated by the independent witness. The prosecution witnesses PW-
4 Pradeep Patil and PW-5 Rahul Mahalle have not supported the
prosecution case. PW-3 - Sharad Mehare and PW-6 Nilesh Susatkar also
not supportted the prosecution case. The evidence of the Medical Officer
also shows that the injury sustained by the injured is simple in nature
and he has also admitted that fracture of bone of the nose is possible by
fist blows. He further admitted that this type of injuries are possible if
any person slept and fallen down on hard surface. Thus, there is no
corroboration from the expert opinion also as to the nature of the
injuries is concerned. Alternatively, he prayed that being there are no
criminal antecedents against the present applicant and one opportunity
is to be granted to him to reform himself, therefore, he be released by
giving the benefit of Section 4 of the Probation of the Offenders Act.
12. Learned APP strongly opposed the application and
submitted that the evidence of the complainant himself is sufficient to
prove the charge against the accused, which is corroborated by the
medical evidence. One criminal case was lodged against the present
applicant, but he was acquitted from the said charges. She submitted
that considering the involvement of the present applicant he is not
entitled for any benefit under Section 4 of the Probation of Offenders
Act. In view of that, the prayer for benefit under Section 4 deserves to be
rejected. She submitted that being the revision application is devoid of
merits, liable to be dismissed.
13. I have heard learned Counsel for both the sides. On perusal
of the evidence admittedly, PW-3, PW-4, PW-5 and PW-6 who are the
independent witnesses have not supported the prosecution case. The
evidence of PW-1 injured Rajesh Krushnasa Sarag deposes that alleged
incident has occurred during the night hours on the intervening night of
09/04/2013 and 10/04/2013. The alleged incident has taken place on
10/04/2023 at about 7:45 PM in the premises of the Court of Civil
Judge, Senior Division, when the informant had been to attend his
duties. The evidence shows that on that day, the informant was on night
duty as a Watchman in Murtizapur Court as he was working as a Peon.
He has witnessed that lights of the Bar room are on therefore, he went
there and saw the present applicant sitting inside the bar room,
therefore, he asked him to leave the bar room. On that there was a hot
exchange of words between them and the present applicant gave a fist
blows on his face due to which he sustained the injuries. Therefore, he
approached to the police station and lodged the report. As per his
evidence, he has informed the said incident to his Superiors and at the
relevant time, the Advocates were present in the bar room, who have
witnessed the said incident. The cross-examination of this witness shows
that he has not filed on record any documents to show that he was on a
night duty on the day of incident. The fact that the lights of the bar room
were on is not stated by him while lodging the report, and therefore,
that omission is brought on record. Except this cross-examination,
nothing incriminating is brought on record. The eye-witnesses who are
Advocates, none of them have supported the prosecution case. Even PW-
2 who acted as a Panch has also not supported the prosecution case.
Only PW-8 who is the Medical Officer who narrated about the medical
examination and stated that the injured has sustained the simple injury
due to the fist blows. He has also admitted that said injury is possible if
any person slept and fallen down on hard surface. On appreciation of the
evidence, the accusation of the present accused is proved as the evidence
of the complainant is supported by the medical evidence.
14. I have perused the material on record, and there is no
reason to disagree with the finding recorded by the learned Judicial
Magistrate First Class and confirmed by the Sessions Judge, Akola.
It does not appear that the applicant was implicated falsely in the
alleged offence. His presence is specifically narrated by the PW-1 who
has sustained the injuries and the same is corroborated by the medical
evidence. Considering the facts that the evidence which is on record
sufficiently proves the involvement of the present applicant in the
alleged offence. Alternatively, the learned Counsel for the applicant
prayed for the benefit of Section 4 of the Probation of Offenders Act,
therefore, the report of the Probation Officer was called, and the report
is submitted by the Probation Officer, Akola in favour of the present
applicant. It is submitted by the Probation Officer that opportunity can
be granted to the present applicant as there are no criminal antecedents
against him, and his overall conduct is good, and therefore, he can be
benefited by giving the benefit under Section 4 of the Probation of
Offenders Act. Thus, considering the report and considering the fact that
alleged incident has taken place in the year 2013, the applicant is having
a family to support. As there are no criminal antecedents and his
involvement is not revealed in criminal activities, therefore, he is entitled
to have an opportunity to reform.
15. While maintaining the conviction i.e. the sentence of
imprisonment and payment of fine requires to be set aside and instead
the applicant can be released on probation bond. Therefore, the
application deserves to to be partly allowed. Accordingly, I proceed to
pass following order:
(i) The application is partly allowed.
(ii) The applicant shall remain under the supervision of
the concerned Probation Officer, District Akola for the next
two years.
(iii) The applicant shall enter into a bond to permanently
reside within the territorial jurisdiction of the District
Probation Officer, Akola and to furnish to the Probation
Officer his Cell phone number and permanent address.
(iv) The applicant shall further undertake not to involve
himself in any criminal or other undesirable activities.
16. The application is disposed of accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
