BHUPESH RAMCHANDRA MORE Vs. THE 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 preeminently 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.) AT the trial, the defence had raised a plea of private defence. In this behalf, this is what has been observed in para 15 of the Judgment: