1 cria167.99 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 167 OF 1999 Shankar S/o Nagorao Suryawanshi, Age : 30 years, Occ : Agril., R/o Kopra, Tq. Hadgaon, Dist. Nanded ..APPELLANT -VERSUS- The State of Maharashtra (Through the Police Station at Tansa, Tq. Hadgaon, Dist. nanded) ..RESPONDENT Mr. Ganesh Patil, Advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent. CORAM : A.V. NIRGUDE, J. Date : 20th December, 2010 ORAL JUDGMENT : 1. The appellant is challenging the judgment and order passed by the learned Additional Sessions Judge, Nanded in Sessions Case No. 46/1995 dated 20th March, 1999, convicting the appellant for the offence punishable under Sections 307 r/w Section 149, 324 r/w Section 149, 147 and 148 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years for the offence punishable under Section 307 of the Indian Penal Code and to pay fine of Rs. 1000/- with default clause. No separate sentence for the offences punishable under Sections 324, 147 and 148 were awarded to him. 2. The appellant was accused no.2 before the Lower Court and there were in all seven accused. Before the trial took place the main accused, the accused no.1 expired, so the appellant and five others were tried for the offences punishable 2 cria167.99 under Section 307, 324, 147, 148 r/w Section 149 of the Indian Penal Code. 3. The prosecution case was that the appellant and the six accused attacked the complainant on 9th October, 1994 near his agricultural field at village Kopra, Tq. Hadgaon, Dist. Nanded. It is said that the assailants were found with weapons like sword, sticks and axe. Due to attack the complainant sustained various injuries, some of them were grievous in nature. Even the person who intervened to rescue the complainant also sustained one bleeding injury on his head. 4. The prosecution case depended upon the depositions of in all 10 witnesses. The prosecution witness no.1Kishan gave a graphic details as to how the incident took placeand as to how the accused and the appellant attacked him and others. He said that on 9th October, 1994, at about 4 p.m. he and his two brothers Nagurao and Vithal took meals and drank water of a rivulet, which flew adjacent to his field. He said, as they came to their field from the rivulet, the appellant and other six personwho were hiding behind the bushes attacked him and his brothers. He then narrated how he was attacked and given various blows of various weapons by the accused. He specifically mentioned that accused no.3- Pandurang dealt a sword blow on his left foot near ankle. He further mentioned that the accused no.6-Namdeo dealt an axe blow on left side of his forehead just above his eyebrow. He said, deceased accused-Dadarao used a sword to give a blow on his back. He said, other accused including the appellant used sticks to attack him. He, however, did not state that the appellant dealt any blow on any particular place of his body. However, he stated that the appellant dealt one blow of his stick on the head of his brother Nagurao. Even Nagurao, the prosecution witness no.2 reiterated 3 cria167.99 the story of the previous witness and stated that the appellant was armed with a stick and had given one blow of stick on his head causing bleeding injuries. 5. The medical certificate which was proved by the prosecution witness no.8-Dr. Sangvikar clearly mentions that complainant -P.W.No.1 -Kisan had sustained various injuries corresponding to the details of the attack given by the P.W.No.1 above. 6. The prosecution witness no.2 Nagorao the brother of the P.W.No.1 also an injured was examined by the prosecution witness no.10-Dr. Sangewar who certified that the prosecution witness no.2 Nagurao has sustained one bleeding injury on his head and the weapon that could have been used for causing this injury, was hard and blunt. The injury was simple in nature. 7. The learned Judge of the Lower Court accepted the prosecution case. He believed all the witnesses and then convicted all the accused including the appellant for the offences under Section 307, 324, 147, 148 r/w Section 149 of the Indian Penal Code. Surprisingly, the learned Judge chose to extend the benefit of Probation of Offenders Act to other accused and did not award them substantive sentence at all even though as said above, they were found to have used dangerous weapons and had caused grievous injuries to the victims. 8. Though, the role of the present appellant was not comparatively as serious as that of other accused, the learned Judge refused to give him the benefit of Probation of Offenders Act. The reason was that he had previous conviction for the offence punishable under Sections 147, 323 r/w 149 of the Indian Penal Code in R.C.C. No. 133/1990. This judgment of conviction was passed on 20th September, 1997 and this was probably shown 4 cria167.99 to the learned Additional Sessions Judge. In view of this Judgment, the learned Judge of the trial Court held that the appellant was not entitled to benefit of Probation of Offenders Act. Fortunately for the appellant, the judgment and order of conviction recorded in R.C.C. No. 133/1990 was further challenged in Criminal Appeal No. 52/1997 and this appeal was rather belatedly disposed of on 2nd November, 2006. This time, the learned Sessions Judge acquitted the appellant of the offences punishable under Section 147, 323 r/w Section 149 of the Indian Penal Code. (A certified copy of the said judgment in the Criminal Appeal No. 52/1997 produced by the appellant is taken on record and marked as `X’). In view of this the appellant is in similar position as that of the other convicted accused. And on the ground of parity he too, is entitled to benefit of Probation of Offenders Act. In fact, the role of the appellant in the incident was not as serious as that of the other accused and so also, the appellant deserves the benefit of Probation of Offenders Act. 9. The appeal should therefore succeed. The appeal is partly allowed. The appellant’s conviction under Section 324, 307 r/w Section 149, under Sections 147 and 148 of the Indian Penal Code is maintained. His substantive sentence is reduced to the period which he has already undergone. The sentence of fine shall remain intact. The fine amount is already deposited by the appellant. The appeal stands disposed of. (A.V. NIRGUDE) JUDGE gas/cria167.99/ok