1 Cri.Appeal No.383/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.383/1998. with CRIMINAL APPLICATION NO.1541/2011 1) Shaikh Burhan s/o Shaikh Burhan, Age: 38 Yrs., occu.Agril. r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. 2) Shaikh Dilawar s/o Shaikh Burhan, Age: 33 Yrs., occu. Agril. r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. 3) Shaikh Ramjan s/o Shaikh Burhan, Age: 25 Yrs., r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. 4) Shaikh Bilal s/o Shaikh Burhan, Age: 23 Yrs. r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. 5) Shaikh Burhan s/o Shaikh Nabi, Age: 68 yrs., occu. Agril. r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. - APPELLANTS (orig.Accused) VERSUS 1) The State of Maharashtra Through the Pachod Police Station, Tq.Paithan, District Aurangabad. 2) Kadu s/o Dattatratraya Magare 2 Cri.Appeal No.383/1998 Age: Major, occu. Agril. r/o Ranjangaon (Dandge), Tq.Paithan, Dist.Aurangabad. - RESPONDENTS ***** Mr.NS Ghanekar and Mr.DK Kulkarni, Advocates for Appellants; Mr.VH Dighe, APP for State. Mr.NB Deshpande, Adv. For Respondenbt No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 29th April, 2011. ORAL JUDGMENT: 1) Heard the learned Counsel for the parties. 2) The appeal is admitted on 21.12.1998. The accused/appellant questions conviction in Sessions Case No.85/1995 for an offence under Section 325 of IPC of accused nos. 2 and 5 to undergo rigorous imprisonment of three years and to pay fine of Rs.2,500/- and under section 323 of IPC of accused nos. 1, 3 and 4, on their executing bond of good behaviour in the sum of Rs.3,000/- recorded by the learned Additional Sessions Judge at Aurangabad dated 2nd December, 1998. 3) The appeal was substantially heard. Then Mr.Ghanekar, learned Counsel for the appellants, moved an application to consider releasing the 3 Cri.Appeal No.383/1998 accused/appellants on probation. A report of Probation Officer was called. Report dated 20th April, 2011 records that the appellants and the family members are under tremendous pressure of fate of the appeal pending since 18 years. They feel repentance that a trivial issue has taken their precious 18 years of the life and mental peace. 4) The complainant was also heard. The complainant says, he was, owing to the assault hospitalized and had to spent amount. He does not dispute that the parties named are neighbours on the agricultural property and no overt act or no controversy has erupted after the initial incident dated 23.6.1993. 5) As it is, the learned Sessions Judge has acquitted the accused/appellants for ofence under Sections 147, 148 and 149 of IPC and also for offence under Section 3(1)(x) of SC and ST (Prevention of Atrocities) Act, 1989. 6) The learned Counsel for the appellants on 25th April, 2011, made a statement that the appellants have deposited total fine of Rs. 5,000/- before the Sessions Court at Aurangabad, out of which, Rs.4,000/- is receivable by the complainant. Additionally, the appellants 4 Cri.Appeal No.383/1998 endeavoured to deposit a consolidated compensation of Rs.40,000/-. Consequent upon such submission, the appellants have deposited amount of Rs.40,000/- in this Court on 28.4.2011. 7) The learned Sessions Judge has given benefit to original accused nos. 1, 3 and 4 for having committed offence punishable under Section 323 of IPC in the circumstances, that they should be released on probation of good behaviour on each of them executing a bond of good behaviour for a sum Rs.3,000/- along a surety of like amount for the period of six months. 8) The appellant Nos. 2 and 5 are presently said to be 51 and 68 years of age respectively. No criminal record or overt act is perpetuated by them as the complainant agrees the position. 9) The contention of Shri Ghanekar to enlarge the accused/appellants on probation in terms of Sections 3 and 4 of the Probation of Offenders Act, 1958, needs consideration. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed offence punishable with death or imprisonment for life. Section 360 of Cr.P.C. Does not provide for any role for Probation Officer in assisting the Court 5 Cri.Appeal No.383/1998 in relation to supervision. But, the Probation of Offenders Act takes a care in this area. Considering the age of the appellants, referred above, and their clean record, after 18 years, sending them in prison would be taking toll of life of at least appellant no.5 at his advanced age. The matter does not involve to a heinous crime against society. It was a clash on agricultural boundary dispute, and parties have paid the price since last 18 years. Taking evaluation of these aspects, enforcement of Probation of Offenders Act in such area of events is imperative and essential too. Even if merits against the appellant nos. 2 and 5 speak of their assaulting the complainant with lethal weapon, however, maintaining the conviction, they deserve to be released on a bond of good behaviour. However a care can also be taken to secure the bond for three years instead of six months to ensure peace and tranquillity in the area. 10) Considering the above features of the matter, The conviction recorded against the appellants is maintained. However, appellant No.2 – Shaikh Dilawar s/o Shaikh Burhan (Budhan) and appellant no.5 – Shaikh Burhan (Budhan) Shaikh Nabi, be released on their executing a bond of good-behaviour in the sum of Rs.5,000/- (Rupees five thousand) for a period of three years in 6 Cri.Appeal No.383/1998 terms of Section 4 of the Probation of Offenders Act, 1958, for offence under Section 325 IPC, instead of undergoing the sentence. The appellants/accused to behave properly. They will not indulge in any criminal activity, not to harass, humiliate the complainant. If the accused/appellants commit any offence and brech of the terms of the bond, they will undergo the rest of the sentence. The bond to be executed before the learned Additional Sessions Judge, Aurangabad in Sessions Case No.85/1995 within a month.The Probation Officer will monitor the movements and conduct of the appellants periodically and maintain record to this effect.The amount of compensation of Rs.4,000/- (Rupees four thousand)p is enhanced to Rs. 44,000/- (Rupees fourty four thousand). The complainant is at liberty to receive Rs.44,000/- (Rupees fourty four thousand) deposited before the Sessions Court and this Court. Criminal Appeal is partly allowed. Criminal Application No.1541/2011 moved for releasing the applicants/accused on probation is allowed in above terms. (K.U.CHANDIWAL) JUDGE bdv/