BHUPESH RAMCHANDRA MORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) A short question which is agitated in the present appeal is, whether the appellant is entitled to a benefit of the provisions of the probation of Offenders Act, 1958? By a judgment and order, passed on the 14th of May, 1987 by the learned 6th Additional Sessions Judge, Thane, in Sessions Case No. 445 of 1986, appellant, who is original accused No. 1, is acquitted of the offence punishable under section 302 read with section 34 of the Indian Penal Code, but is convicted for offence punishable under section 304 Part-II of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 300 in default to suffer further rigorous imprisonment for one month. By the very same order accused Nos. 2 and 3 are acquitted of all the charges levelled against them. The order, in so far as the same is adverse to accused No. 1, is impugned in the present appeal.

(2.) THE only contention which has been raised by Shri Chitnis, the learned Advocate appearing in support of the appeal, is that benefit of the provisions of section 6 of the Probation of Offenders Act, 1958 ought to have been extended in favour of accused No. 1. Shri Chitnis has pointed out that a separate application seeking the benefit of the said Act was filed before the learned Judge of the trial Court, that application is at Exhibit-28. However, the learned Judge has declined to extend the benefit to accused No. 1. According to Shri Chitnis, this is preminently a fit case for granting the benefit of the said provisions. He has further criticised the reasons which have been given by the learned Judge of the trial Court for rejecting the prayer of the accused for being granted the benefit of section 6 of the Act.

(3.) IN order to determine the merits of the prayer made by Shri chitnis, it would be necessary to see the nature of offence which is alleged to have been committed by the accused. At Exhibit 9, we have the first information report, which has been lodged by P. W. 1 Chandrakant Babul More, who is the son of the deceased Babulal. The incident in question has taken place on the 5th of March, 1986 at about 8. 30 p. m. According to the complainant, he was in his house at that time. At that time, he saw his uncles son Satish Pandurang and accused No. 2 who is the brother of Satish, abusing and beating each other. The complainant came out of his house and advised them against abusing and beating each other. At that time there was exchange of severe beating between Satish and accused No. 2. The complainant, therefore, went there to rescue. At that time the three accused suddenly appeared on the scene and started beating the complainant. The complainant cried loudly. Hence, the father of the complainant Babulal and the wife of the complainant Chandrakala came to rescue the complainant. At that time accused No. 1 gave two blows with a cricket stump on the head of Babulal. Babulal fell on the ground. Accused Nos. 2 and 3 assaulted the complainant and his wife with hands and legs. Neighbours arrived and hence the accused ran away. During the incident both accused No. 1 and his mother had sustained injuries. These injuries are noted in a medical certificate which is at Exhibit 12. The injuries sustained by Ramabai More, who is the mother of the accused No. 1 are as under: insized wound over left parietal occipital region, oblique indirection, 3" X ?" bone deep with huge haemotoma of 3" size. " the very same certificate also describes the injury sustained by accused No. 1, the same are as under. "c. L. W. over forehead, central region with size 2" X ?" bone deep. " it would, thus, appear that as far as the mother of accused No. 1 is concerned, she is alleged to have been assaulted on her head with the help of a Koyeta. She had sustained an incised wound over the left parietal region, oblique in nature of a size of 3" X ?" with a big haemotoma of 3. 5" in circumstance. It would, thus, appear that Ramabai had sustained a serious injury on the vital part of her body namely her head. Similarly, accused No. 1 has also bone deep. Hence, two person had sustained serious injuries at the time of the incident. As far as the injuries on the person of the deceased are concerned, the medical officer found an incised wound over the central part of the vertex towards the right side with depression of I. R. S. roughly rupee one coin size. There was profuse bleeding with depressed fracture of bone, size of the wound was 3?" X ?" with the substance of the brain protuding. The injury was bone deep. The second injury was a constused lacerated wound over the left orbital margin size ?" X ?" X ?" and the third injury certificate is to be found at Exhibit II.