Harishchandra s/o Kashiram Bawankar vs The State of Maharashtra

Challenge is to the judgment and order dated

14.05.2010 rendered by the Additional Sessions Judge, Bhandara

in Sessions Trial 69/2007, by and under which, the

appellant-accused is convicted for offence punishable under

Section 325 of the Indian Penal Code ('' IPC '' for short) and is

sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs.5000/-.

Heard Shri K.B. Zinjarde, the learned counsel for the

appellant and Shri N.R. Patil, the learned Additional Public

Prosecutor for the respondent-State.

The learned counsel for the accused submits that the

evidence on record is grossly insufficient to sustain the conviction.

The prelude to the incident is not brought on record by the

prosecution, is the submission. The defence that P.W.4 Rameshwar

suffered injuries when his head accidentally hit the iron wheel of

the tractor is probablized on the touchstone of probabilities, is the

submission.

Per contra, Shri N.R. Patil, the learned A.P.P. would

submit that the testimonies of the eye witnesses are consistent.

The evidence of P.W.4 is amply corroborated by the evidence of

P.W.2 Wasudeo and P.W.3 Digamber the father and brother of the

injured Rameshwar, respectively. There is no reason why the

evidence of the injured witness should be disbelieved, is the

submission.

I have closely scrutinized the evidence and the

reasons recorded by the learned Sessions Judge, and having done

so, I do not see any infirmity in the finding recorded that the

accused assaulted the injured P.W.4 Rameshwar with spade.

The evidence of the injured, which is even otherwise,

entitled to be placed on higher pedestal than that of the other

witnesses, as is rightly submitted by the learned A.P.P., is more than

corroborated by the evidence of P.W.2 Wasudeo and P.W.3

Digamber. The evidence is consistent. There is no reason for the

injured witness to falsely inculpate the accused. The evidence is

corroborated by the medical evidence. The defence that injured

accidentally dashed against the tractor which caused the head

injury is not probablized even on the touchstone of preponderance

of probabilities. The criticism that the owner of the tractor one

Raju was not examined, is misplaced. The evidence, must

necessarily be weighed and not counted. It is trite law that in a

criminal trial the burden is that of the prosecution to bring home

the charge beyond reasonable doubt. However, if the defence is

that the injured witness suffered injury due to dash against the

tractor, which according to the defence was in the field of the

accused, the owner of the tractor, if at all he was an eye witness,

could have been examined in defence. I see no reason to disagree

with the learned Sessions Judge who has correctly marshalled the

evidence on record to come to a conclusion that the assault is

proved.

In view of the submission of the learned counsel that

the accused deserves to be granted the benefit of the Probation of

Offenders Act, by order dated 08.02.2018 the report of the District

Probation Officer was summoned. I have perused the report,

which recommends grant of probation.

The incident occurred more than ten years ago.

The prelude to the incident is to a certain extent blurred.

The possibility of an altercation in which both the injured and the

accused engaged in a scuffle, is not excluded. A single blow is

struck with a spade. The accused was indubitably breaking or

otherwise working on the embankment (dhura) when the

altercation occurred. It is not that the accused went out of the way

to lay his hands on the spade. Having perused the report of the

District Probation Officer, I am of the opinion that sending the

accused to jail may possibly convert him into an obdurate

criminal. The accused deserves a chance to reform. I am therefore,

inclined to grant the benefit of the Probation of Offenders Act, to

the accused. The conviction of the accused under Section 325 of

the Indian Penal Code is maintained. However, the sentence of

imprisonment is set aside. The accused is extended the benefit of

Section 4 of the Probation of Offenders Act, 1958. The accused to

execute bond before the trial court to appear and receive sentence

if and when called upon during the period of one year and to keep

the peace and be a good behaviour. Bail bond of the accused shall

stand discharged.

The appeal is disposed of in the above terms