MUSA KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Bombay High Court dated 4/8 November, 1971 dismissing the appeal of the appellants and affirming the convictions and sentences passed on them by the Additional Sessions Judge, Aurangabad. The appellants were accused Nos. 4, 7, 8, 9, 11, 12, 20 and 22. The appellants were tried along with other accused persons by the Additional Sessions Judge, Aurangabad who convicted 14 out of 24 accused under various sections of the Indian Penal Code. The High Court, acquitted six persons, namely, accused Nos. 15, 16, 17, 19, 21 and 24, but upheld the convictions of the appellants. The High Court refused to give a certificate for leave to appeal to this Court, and after obtaining special leave the appellants have filed the present appeal.

(2.) The appellants were convicted under Section 395, I.P.C. to rigorous imprisonment for two years and a fine of Rs. 100/- each, under Sections 323/149 to three months rigorous imprisonment, under Sections 427/149 to one year's rigorous imprisonment, under Sections 435/149, I.P.C. to two years - rigorous imprisonment and a fine of Rs. 100/- each under Sections 457/149, I.P.C. to two years rigorous imprisonment and under Section 147, I.P.C. to one year's rigorous imprisonment all the sentences to run concurrently. For the purpose of brevity instead of naming the accused individually they will be referred to in this judgment as 'A' No. so and so. Appellant No. 1 Musa Khan is A-4, appellant No. 2 Sardar Khan is A-7, appellant No. 3 Jani is A-8 appellant No. 4 Mohd. Fashiuddin is A-9 appellant No. 5 Mohd Eqbal is A-11, appellant No. 6 Abdul Hamid in A-12, appellant No. 7 Saber Ali Khan is A-20 and appellant No. 8 Mohd. Azam Khan is A-22.

(3.) We might further state that so far as A-4 is concerned he is brother of A-11 and A-12. A-4 was aged about 20 years in 1968 when the occurrence is said to have taken place. A-7 was about 15 years on the date of occurrence and A-9 was about 20 years on the date of occurrence. But other accused were over 25 years of age. We have made a particular reference to this fact, because as important argument was advanced before us that even if the offences are held to have been proved against A-4, A-7 and A-9 this was a fit case in which they should have been proceeded under Sections 4 and 6 of the Probation of Offenders Act, 1958.