Mr. S. S. Jadhavar, Advocate for the v. Bhadane, APP for

Legal Reasoning

CriRevn-127-2017+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 127 OF 2017WITHCRIMINAL APPLICATION NO. 69 OF 2020Ajinath Dhondiba Dhalpe,Age 40 years, Occu. Service,R/o. Shirapur, Taluka Ashti,District Beed.… ApplicantVersusThe State of MaharashtraThrough Ambhora Police Station,Taluka Ashti, District Beed.… Respondent…..Mr. S. S. Jadhavar, Advocate for the Applicant.Mr. C. V. Bhadane, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. DATED :21.02.2025JUDGMENT : 1.In this revision, there is challenge to the judgment and orderdated 15.05.2015 passed by learned JMFC, Ashti in RCC No. 43 of2012 and it being further partly confirmed by learned Sessions Judge,Beed by judgment and order dated 24.05.2017 in Criminal Appeal no.67 of 2015. CriRevn-127-2017+-2- BRIEF FACTS2.Ambhora Police chargesheeted present revisionist for offencepunishable under Sections 324, 323, 504, 506 of IPC resulting intotrial by learned JMFC, Ashti by way of RCC No. 43 of 2012, whereinprosecution set up a case that on 13.02.2011, when informant Suresh,his wife Shantabai and son Gahininath were creating a way from thefield of accused Ajinath, i.e. present revisionist, accused objected andfurther hit axe handle on the head of the informant, causing himgrievous injury. On report being received to that extent, AmbhoraPolice registered crime bearing no. 12 of 2011 and after gatheringevidence, chargesheeted present revisionist, who was tried by learnedJMFC, Ashti. Prosecution examined in all 7 witnesses and alsoadduced documentary evidence like injury certificate etc. Afterappreciating the case, learned JMFC, by judgment and order dated15.05.2015, held revisionist guilty for offences punishable underSections 324 and 323 of IPC, but acquitted him from charge ofSections 504 and 506 of IPC. 3.Aggrieved by the same, present revisionist preferred CriminalAppeal No. 67 of 2015 before learned Sessions Judge, Beed, who,after hearing appellant-revisionist as well as the State, partly allowed CriRevn-127-2017+-3- the appeal setting aside conviction for offence under Section 324 IPC,but confirmed and upheld the conviction for offence under Section323 of IPC. Hence present revision.SUBMISSIONSOn behalf of the revisionist :4. Sum and substance of the arguments put forth by learnedcounsel for the revisionist is that, there is false implication. That,there was improper appreciation of evidence. He pointed out that,there was no independent eye witness account. According to him,there was no convincing and legally acceptable evidence about assaultby means of handle of axe. However, both, learned trial court as wellas first appellate court, failed to consider and appreciate the evidencein this regard and directly accepted the prosecution case. That,answers given by witnesses in cross have not been touched orappreciated. Independent witness had not supported and therefore,both the courts below ought not to have straightway relied oninterested witness account. Hence, he questions the findings andconclusion by both, learned trial court as well as the first appellatecourt. CriRevn-127-2017+-4- 5.In the alternate, learned counsel for the revisionist pointed outthat occurrence is almost two decades old. That, revisionist was ayoung man at the time of the incident. That, sword of conviction ishanging over his head for almost over two decades and hence, heprays to give revisionist benefit of Probation of Offenders Act or tosentence him to suffer imprisonment already undergone. On behalf of the State :6.Learned APP opposed on the ground that on minor count, therewas assault with deadly weapon like axe on vital part like head. That,there is direct eye witness account. That, when eye witness accountwas credible, prosecution case was not affected by non-cooperationfrom independent witness. He submitted that there is medicalevidence. According to learned APP, required ingredients for offenceunder Section 323 of IPC were available in the prosecution evidenceand hence, findings and conclusion cannot be faulted at. Hence, heopposes revision and prays to dismiss it for want of merits.EVIDENCE BEFORE THE TRIAL COURT7.The role and status of the seven witnesses examined byprosecution in support of its case, and the sum and substance of theirevidence, can be summarized as under : CriRevn-127-2017+-5- PW1Suresh is the informant. In his evidence at Exhibit 17, hedeposed that accused is his brother. That, on 13.02.2011 at11.00 a.m., when he, along with his wife and son, werecreating road from the field of accused as per the court’s order,accused came there, obstructed them and gave blows with thehandle of axe on informant’s head and back, due to which hesuffered injury. His wife and son pacified accused andthereafter informant lodged report Exhibit 18. PW2Annasaheb acted as pancha to spot panchanama Exhibit 24.PW3Shivlal, pancha witness, who did not support prosecution.PW4Shanta is the wife of informant. She clams to be the eyewitness. Her evidence is at Exhibit 31. Regarding theoccurrence, she deposed that three years before, when she, herhusband and son were making way with the help of axe, herbrother-in-law (accused) came there, snatched the axe fromher husband’s hands and gave blow of axe handle on the headof her husband. That, she, her son and one Kantilal intervenedand thereafter her husband lodged report with Ambhora PoliceStation.PW5Vijay, an acquaintance, who turned hostile.PW6ASI Trimbak Khelbude was the Investigating Officer. CriRevn-127-2017+-6- PW7Dr. Vinod Kakade was the treating doctor. He claims to havenoticed three injuries on the person of informant, i.e. CLWover right vertex area, abrasion over right arm and contusionover right middle arm. According to him all three injuries weresimple in nature and caused by hard and blunt object.ANALYSIS8.Conviction recorded for offence under Section 323 andconfirmed by learned first appellate court is the subject matter of theinstant revision. Learned counsel submitted that there is noconvincing evidence and that, there is no independent witness.According to him, it is doubtful whether there was use of any axe as isalleged by prosecution. In the alternative, it is his submission that aperiod of almost two decades has lapsed since the occurrence and heseeks either benefit of probation or reducing the sentence toimprisonment already undergone, i.e. for two days, by the presentapplicant till he was released on bail.9.Re-appreciated the evidence. Evidence of informant Suresh, hiswife and doctor is crucial. Informant, in his evidence at Exhibit 17,which is reproduced above, has categorically stated that he, his wifeand son were creating a road. At that time, he was obstructed bypresent revisionist and was hit by means of handle of the axe, CriRevn-127-2017+-7- resulting into injury. His wife Shanta (PW4), who was party to theoccurrence, has also deposed in the witness box by virtue of evidenceat Exhibit 31. She lends support to the version of her husband aboutrevisionist hitting with the handle of axe on the head of her husband.Therefore, as regards the occurrence is concerned, evidence of injuredinformant finds support from his wife, who is eye witness. Evidence ofdoctor, who is examined as PW7, shows that on examination henoticed three injuries, of which he has given description in thewitness box. Therefore, apparently apart from injured witness accountsupported by eye witness account, occurrence of injury is fortified bymedical expert. 10.No doubt trial was conducted by learned JMFC vide RCC No.43 of 2012 resulting into conviction by order dated 15.05.2015 i.e.exactly 10 years back. On appeal, learned Sessions Judge, after re-appreciating the evidence, has confirmed the conviction, but only foroffence under Section 323 of IPC by judgment and order dated24.05.2017. Therefore, even such judgment of learned Sessions Judgeis almost eight years back. As submitted, sword of conviction ishanging over the revisionist since almost two decades. Apparently,parties are real brothers. Statement is made across the bar by learnedcounsel for the revisionist that now harmonious relations are restored. CriRevn-127-2017+-8- The Hon’ble Apex Court, in the case of Jagat Pal Singh and others v.State of Haryana 1999 SCC (Cri) 1313, wherein also there wasconviction under Sections 323, 452 and 506 r/w 34 of IPC, haspermitted invoking Section 4 of the Probation of Offenders Act, 1958in a case of similar nature. Here also, there are no criminalantecedents and taking above material into consideration, in stead ofsentencing him to suffer imprisonment, benefit of probation isrequired to be extended by following consequential directions. Hence,following order is passed :ORDERI.The Criminal Revision Application is partly allowed.II.The conviction under Section 323 of IPC awarded to therevisionist Ajinath Dhondiba Dhalpe by learned JMFC, Ashti in RCCNo. 43 of 2012 and confirmed by the learned Sessions Judge, Beed byjudgment and order dated 24.05.2017 in Criminal Appeal no. 67 of2015, is hereby upheld.HOWEVERIII.Instead of sentencing revisionist to imprisonment, he is directedto be released on probation of good conduct by entering into a bondwith one surety to appear and receive the sentence when called uponduring the period of one year. CriRevn-127-2017+-9- IV.The bond for a period of one year shall be executed by himbefore the trial court within a period of four weeks from today.V. The Criminal Revision Application is accordingly disposed off.VI.In view of disposal of the Criminal Revision Application,pending Criminal Application also stands disposed off. [ABHAY S. WAGHWASE, J.]vre