1 Criminal Rev.Appl.No.117 of 2006 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.117 OF 2006 Dnyanoba S/o.Maruti Sabde, Age-35 years, Occu-Agriculturist, R/o.At Post Bansuri, Tq.Nilanga, Dist.Latur APPLICANT VERSUS 1. Sheshrao S/o.Pandurang Sabde (Deleted) 2. Pandurang S/o.Mahadba Sabde, Age-67 years, Occu-Agriculturist, R/o.Chandoriwadi, Tq.Nilanga, Dist.Latur 3. Kundlik S/o.Mahdba Sabde, Age-73 years, Occu-Agriculturist, R/o.Chandoriwadi, Tq.Nilanga, Dist.Latur 4. Babu S/o.Mahadba Sabde, Age-60 years, Occu-Agriculturist, R/o.Chandoriwadi, Tq.Nilanga, Dist. Latur, 5. The State of Maharashtra RESPONDENTS Mr.V.D.Gunale, learned counsel for the applicant. Smt.S.D.Shelke, learned A.P.P. for respondent State Mr.S.M.Vibhute, learned counsel for respondents no.2 to 4. 2 Criminal Rev.Appl.No.117 of 2006 WITH CRIMINAL APPEAL NO.563 OF 2006 The State of Maharashtra, Through, Police Inspector, Police Station, Kasar-sirshi, Tq.Nilanga, Dist.Latur APPELLANT VERSUS 1. Pandurang Mahadba Sabde, Age-60 years, Occu-Agriculturist, 2. Kundlik Mahadba Sabde, Age-67 years, Occu-Agriculturist, Both R/o.Chandoriwadi, Tq.Nilanga, Dist. Latur RESPONDENTS Smt.S.D.Shelke, learned A.P.P. for appellan/ State Mr.S.M.Vibhute, learned counsel for respondents. (CORAM : A.V.POTDAR, J.) DATE : 07/07/2011 ORAL JUDGMENT : 1. Learned J.M.F.C. Nilanga has convicted the original accused no.1 Sheshrao Pandurang for an offence punishable u/s. 324 of the IPC, for which he was released on executing the bond u/s. 4 of The Probation of Offenders Act. Being aggrieved with the said order, the acquittal of original accused no.2 to 4, original complainant has filed criminal revision no.117/2006. The State have also questioned the correctness of the acquittal of original accused no.2 Pandurang and 3 Criminal Rev.Appl.No.117 of 2006 original accused no.3 Kundlik, for the alleged offence punishable u/s. 323, 504, 506(ii) r/w. 34 of the IPC. As the criminal revision so also the criminal appeal filed by the State are arises out of the judgment and order dated 20/01/2006 passed by J.M.F.C. Nilanga in RCC No. 268/2001, both of them to be disposed of by one common judgment. 2. Heard learned counsel Shri.V.D.Gunale for revision applicant, learned A.P.P. for State, and Shri.S.M.Vibhute, learned counsel for respondents no.2 to 4 in criminal revision and for respondents in criminal appeal. 3. I have perused the record and proceedings. It shows that on the complaint filed by P.W.No.2 Dnyanoba Maruti Sabde on 06/10/2001, an offence came to be registered in Nilanga Police Station vide CR No.143/2001 for an offene punishable u/s. 324, 504, 506 r/w. 34 of the IPC. During the investigation, spot panchnama was drawn in presence of panch witnesses, from where one sickle was recovered. During the investigation, complainant Dnyanoba was referred for his medical examination to P.H.C. Aura and he was examined by Dr.Vijaykumar Patil. Statements of some witnesses were recorded. On completion of investigation, charge sheet was filed against the respondents before J.M.F.C. Nilanga, who framed charge at Exh.18. During the trial, prosecution have examined total 5 witnesses including complainant Dnyanoba, panch witness Balaji, medical officer Dr.Vijaykumar Patil, alleged eye witness Govind Patil 4 Criminal Rev.Appl.No.117 of 2006 and the Investigation Officer. I have perused the evidence recorded before the Trial Court in respect of these witnesses. Perusal of evidence of P.W.No.1 Govind in the light of evidence given by Dnyanoba, can not be termed as an evidence of eye witness, as according to P.W.No.2 complainant/Dnyanoba, this Govind and Vitthal reached at the spot after the incident was over. Apart from it, evidence of prosecution witness Govind and Dnyanoba is totally silent on the point as to exact words of alteration at the time of alleged incident between the revision applicant/complainant and accused Sheshrao so also respondents/accused Pandurang and Kundlik. Apart from it, the complaint at Exh.36 is also silent about the exact words which provoked the complainant to commit the offence. In the premise, I do not find any fault committed by the Trial Court in acquitting the accused for the offence punishable u/s. 504, 506 (ii) r/w 34 of the IPC. State have not questioned the punishment awarded to original accused no.1 Sheshrao. State has only questioned the acquittal of respondents Pandurang and Kundlik. Alleged offence as per the charge against these 2 respondents is an offence punishable u/s. 323 r/w. 34 of the IPC. It is not under dispute that on the next day of the incident, complainant Dnyanoba was referred for his medical examination and was examined by Dr.Vijay Patil. Medical certificate issued by him is at Exh.72. Only one injury is noticed by him, which was on the occipital region and the nature of injury is shown as simple, caused by hard and blunt object. Other than this injury, no injury was noticed on the person 5 Criminal Rev.Appl.No.117 of 2006 of the complainant Dnyanoba. Considering this evidence with the omni-bus allegations against these respondents i.e. respondent Kundlik and respondent Pandurang, learned Lower Court discarded the evidence of complainant P.W.No.2. At this stage, I can safely say that even though it is vehemently urged that by examining panch witness Balaji, prosecution has proved the spot panchnama, at the same time, nothing incriminating was recovered at the instance of respondents Pandurang and Kundlik from the spot. Considering this aspect, conviction can not be passed on the sole testimony of complainant Dnyanoba in the light of the fact that there is civil dispute pending in between the complainant, these respondents and respondent Sheshrao in the criminal revision. For these reasons, learned Lower Court has come to the conclusion that no case is made out to convict the respondent Pandurang and Kundlik and for the reasons recorded, both these respondents were acquitted. The view taken by the learned Lower Court is a probable view and neither counsel for revision applicant nor learned A.P.P. were able to point out any perversity in the judgment of the Lower Court. In the premise, State appeal failed. 4. Apart from acquittal of respondents Pandurang, Kundlik, original complainant have also questioned the punishment awarded to respondent Sheshrao in Criminal Revision No.117/2006 filed by the original complainant. Even though it is vehemently urged that there are other criminal cases to the credit of Sheshrao and others, 6 Criminal Rev.Appl.No.117 of 2006 but certified copies of those case papers were not produced before the Lower Court. It is the discretion of the Court Whether to release the offender, against whom the offence was proved under the provisions of Probation of Offenders Act, particularly by invoking the powers under Section 4 of the Probation of Offenders Act to release the offender on execution of bond of good behaviour for certain period. This discretion to be exercised under the reformative theory introduced to the criminal jurisprudence. At the same time the Court has to exercise this discretion considering whether the offender is a hardened criminal, and if released on execution of bond as provided under section 4 of the Probation of Offenders Act, he will create any law and order problem and during the period of observation, the report of the Probation Officer required to be called. In this case, no adverse report is received after the bond was executed by respondent Sheshrao. 5. In the circumstances, I do not feel that the discretion vested with the learned Trial Court was erroneously exercised. In the premise, no interference is required in the order passed in respect of respondent Sheshrao. In substance, criminal revision filed by the complainant and criminal appeal filed by the state are devoid of any merit and are disposed of accordingly. (A.V.POTDAR, J.) khs/JULY 2011/cri.rev.117-06