BRUNDABAN MISHRA Vs. KALU MISHRA

JUDGEMENT

(1.) THE accused persons each of whom have been fined Rs. 100/ - for having assaulted the informant who objected to their entry into his premises and plucking the mangoes without his consent, has challenged the order of conviction and sentence passed by the trial Court which has been confirmed by the appellate Court on the ground that both the accused persons having been above the age of 21 years, were entitled to the benefits under sections 3 and 4 of the Probation of offenders Act, 1958 (for short "the Act") and the Courts below have not considered their entitlement to such benefits under the aforesaid two sections of the Act. The petitioners further contend that they are also entitled to be considered under section 360 of the Code of Criminal Procedure (for short "the Cr. P.C.'') which has also not been done by the Courts below.

(2.) THE case of the complainant was that at about 10.00 a.m., on 2.5.1980 he found the accused persons plucking mangoes from his garden and on protest he was abused in filthy language and the present petitioner No. 1 dealt two slaps on his right cheek and accused, Gadadhar (petitioner No. 2) dealt two fist blows on his back and left the place with the mangoes. Since the police did not take any action on the F.I.R. lodged by P.W. 3, the present opposite party was forced to file a complaint petition under sections 379, 323 & 504, I.P.C.

(3.) THE complainant examined himself as the P.W. 3 and adduced evidence through two independent witnesses, viz., P.Ws. 1 and 2 who are said to be the eye -witnesses. From the side of the defence, one witness has been examined and the Courts came to the finding, that the accused persons had committed theft of the mangoes from the tree. There is also finding by the trial Court that the accused persons assaulted and caused injury to the complainant, but recorded a finding in favour of the accused persons holding that the accused persons had not committed any offence under section 504, I.P.C. which finding is confirmed by the appellate Court. On the merits of the case, the learned counsel for the petitioners urged that there was delay of four days in filing the complaint case and since P.W. 2 was examined on behalf of the prosecution and said that the accused persons were plucking coconuts, the entire case of the prosecution has been falsified and since no doctor has been examined to prove the injury, the entire case of the prosecution should have been disbelieved. That apart there has been some discrepancy with regard to the number of blows and slaps the injured received on his body. I do not find any merit in such contention of the complainant. It is the case of the accused persons that since the police was informed and did not take any action against the accused persons on the information of the informant, the informant had to file a complaint case thereafter hence the delay. So far as the statement of the P.W. 2 that he found accused persons plucking coconuts, appears to be a typographical error because in the said deposition. P.W. 2 has also stated that the accused persons were plucking mangoes. It is only in one place alone instead of "Mangoes", it has been typed as 'coconuts'. So far as injury on the person of the uncle, the present opposite party is concerned, the same is very minor, being only fist blow and slaps on the back and cheek of the complainant Because of the nature of the assault, it would not have served any purpose in getting examined by the doctor. It is revealed from the prosecution evidence that the mangoes were stolen by the accused persons and the complainant was assaulted by them. I do not consider that there is any ground to exercise my revisional jurisdiction to set aside this finding.