1997 ALL MR (Cri) 745
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ( NAGPUR BENCH )

M.B. GHODESWAR, J.

Rauf Khan S/O Inayat Khan Vs. The State Of Maharashtra And Another

Criminal Rivision Application No. 92 of 1995

6th August, 1996

Petitioner Counsel: S/Shri J. M. GANDHI and S. D. GADHIA, Smt. NEETA JOG

Probation of Offenders Act (1958), S.4 - Accused properly convicted under S.323, Penal Code - Was 25 years of age when incident took place - First offence - fine paid - He is entitled to probation

Criminal P.C. (1973), S.360. (Para 4)

Cases Cited:
1982 Cr. L.J. 629 [Para 4]


JUDGMENT

M. B. GHODESWAR :- The applicant has challenged the judgment and order dated 14.7.1988 passed by the Judicial Magistrate First Class, Court No.3, Achalpur in Criminal Case No.95 of 1994 convicting the appellant for the offence punishable under Section 323 of the Indian Penal Code and sentencing to suffer R.I. for two months with fine of Rs.500/- and in default to suffer R.I. for one month and the order dated 16.5.1995 passed by the Additional Sessions Judge, Achalpur in Criminal Appeal No.62/91 ( Old Criminal Appeal No.59/88 ) dismissing the appeal and confirming the judgment and order of the Trial Magistrate on the ground that the impugned orders are illegal and perverse.

2. The incident took place on 29.6.1984 in which the applicant assaulted Shrikrishna (P.W.3) - by screw driver on the abdomen - when Shrikrishna intervened in the quarrel that ensued between the father of Shrikrishna by name Hanaji (P.W.1). Shrikrishna received bleeding injury as a result of the said assault by the applicant. He was sent for medical examination. His blood stained banyan was seized. The screw driver was also seized from the applicant. The defence of the applicant that there was scuffle and in that scuffle, Shrikrishna received injury by screw driver is disbelieved by the courts below. The Doctor who examined injured Shrikrishna is not examined by the prosecution and therefore, the courts below found that the offence under Section 323 of the Indian Penal Code is established against the applicant.

3. The learned Counsel for the applicant has submitted that there are omissions, contradictions and discrepancies in the evidence and as they have not been considered, the impugned orders are perverse. There is concurrent finding of the two courts below. It is settled law that finding of fact cannot be disturbed in revision. Therefore, there is no substance in this contention of the learned Counsel for the applicant.

4. It is further submitted by the learned Counsel for the applicant that the applicant was aged 25 years when the Trial Magistrate passed the order of conviction. ------ It was argued before the Trial Magistrate that the applicant be released on a bond under Section 4 of the Probation of Offenders Act. The said argument did not find favour with the trial Magistrate, though the applicant remained in custody from 5.7.1987 to 10.7.1987. In the memo of appeal, a specific ground is raised that the Trial Magistrate has erred in holding that the benefit of Probation of Offenders Act should not be given to the applicant. Though no fault can be found with the judgment and order of the Additional Sessions Judge for convicting the appellant, in my view, the appellate Court ought to have considered this plea of the applicant as he was very young at the time of commission of the offence and there was no conviction at his credit. Moreover, after 12 years, no purpose would be served in sending the applicant in jail custody for the sentence of rigorous imprisonment. The applicant has already paid the fine. The courts are bound to consider the plea of the accused for his release on probation. The learned Counsel has relied on the decision reported in 1982 Criminal Law Journal 629 (1) (Roshanali Burhanali Syed v. State of Gujarat), head note of which reads as under :

" Probation of Offenders Act (20 of 1958), S.4(1) - Release on probation - Accused above 21 years of age - He could still be released on probation in view of S.4(1). "

Therefore, in my view, the applicant is entitled for the benefit of Section 4(1) of the Probation of Offenders Act. There is no substance in the contentions raised on behalf of the applicant. No illegality is committed. The impugned orders passed by the courts below cannot be said to be perverse. The impugned orders i.e. the order dt. 14.7.1988 passed by the Judicial Magistrate First Class, Court No.3, Achalpur in Criminal Case No.95/94 and the order dated 16.5.1995 passed by the Additional Sessions Judge, Achalpur in Criminal Appeal No.62/91 ( Old No.59/88 ) in respect of the conviction of the applicant under Section 323 of the Indian Penal Code are maintained. However, instead of sentencing the applicant at once, it is directed that the applicant be released on his entering into a bond for a period of two years with one surety in the sum of Rs.1,000/- ( Rupees One Thousand ) only, to appear and receive the sentence when called upon during the said period of two years and in the meantime to keep peace and be of good behaviour. The revision is thus partly allowed.

Revision Partly Allowed.