{"id":47017,"date":"2011-09-23T00:00:00","date_gmt":"2011-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/central-prison-vs-the-state-of-maharashtra-on-23-september-2011"},"modified":"2017-02-23T16:14:06","modified_gmt":"2017-02-23T10:44:06","slug":"central-prison-vs-the-state-of-maharashtra-on-23-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/central-prison-vs-the-state-of-maharashtra-on-23-september-2011","title":{"rendered":"Central Prison vs The State Of Maharashtra on 23 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Central Prison vs The State Of Maharashtra on 23 September, 2011<\/div>\n
Bench: A.M. Thipsay<\/div>\n
                                                                                   Apeal-57-93\n                                                1\n    Dixit\n\n\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                                     \n                           CRIMINAL APPEAL NO.57 OF 1993\n\n\n\n\n                                                             \n    Sunil alias Pona Tolaram Pore (Varma),\n    R\/a. Idgah Road, Premnagar,\n    Jogeshwari (East), Bombay - 400 060\n    [At present imprisoned at District\n\n\n\n\n                                                            \n    Central Prison, Thane]                                                ...      Appellant\n              Versus\n    The State of Maharashtra                                              ...      Respondent\n\n\n\n\n                                                \n    Ms. Indu Verma for the Appellant (Original Accused No.2).\n                                 \n    Smt. V.R. Bhosale, APP, for the Respondent-State.\n                                \n                                             CORAM        : A.M. THIPSAY, J.\n\n                                             DATE               RD  SEPTEMBER, 2011.\n                                                          : 23                      \n              \n           \n\n\n\n    JUDGMENT :\n<\/pre>\n
    1.      The Appellant and three others were prosecuted on the allegations of <\/p>\n
    having committed offences punishable under Section 364 of the IPC and <\/p>\n
    Section 307 of the IPC read with Section 34 of the IPC, or, in the alternative, <\/p>\n
    Section 326 of the IPC read with Section 34 of the IPC.  After holding a trial, <\/p>\n
    the   learned   Additional   Sessions   Judge   for   Greater   Bombay   found   the <\/p>\n
    Appellant (the original Accused No.2) and the other accused guilty of an <\/p>\n
    offence   punishable   under   Section   326   of   the   IPC   read   with   Section   34 <\/p>\n
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\n                                                2<\/span>
\n    Dixit<\/p>\n
    thereof.   He   sentenced   the   Appellant   (original   Accused   No.2)   and   the <\/p>\n
    original   Accused   No.1   –   Jamaluddin  alias  Shendya   Sayyed   Hussein  –   to <\/p>\n
    suffer R.I. for seven years. He directed the original Accused Nos.3 and 4 –\n<\/p>\n
    Anwar   Khan  alias  Annu   Rafiq   Khan  and   Mohamed   Ayub   Mohamad   Isaq <\/p>\n
    Shaikh – to be released on probation of good conduct on their executing a <\/p>\n
    personal   bond   in   the   sum   of     Rs.5,000\/-   each,   as   contemplated   under <\/p>\n
    Section 360 of the Code of Criminal Procedure (hereinafter ‘the Code’ for <\/p>\n
    brevity). The said original Accused No.1 Jamaluddin had filed a separate <\/p>\n
    Appeal,   being   Criminal   Appeal   No.716   of   1992,   but   he   died   during   the <\/p>\n
    pendency of the said Appeal. That Appeal, therefore, stood abated.\n<\/p>\n
    2.      Since the Advocate, who had been appearing for the Appellant in this <\/p>\n
    Appeal, sought discharge, it was duly given and Ms. Indu Verma, Advocate, <\/p>\n
    was appointed for the Appellant under the Free Legal Aid Scheme.\n<\/p>\n
    3.      I have heard Ms. Indu Verma, the learned Advocate for the Appellant, <\/p>\n
    and Smt. V.R. Bhosale,  the learned APP  for  the  Respondent-State. I have <\/p>\n
    gone   through   the   impugned   Judgment   and   Order.   I   have   been   taken <\/p>\n
    through the evidence adduced before the trial Court.\n<\/p>\n
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                                                                                           Apeal-57-93
\n                                                     3<\/span>
\n    Dixit<\/p>\n
    4.      The   case   of   the   prosecution,   in   brief,   as   put   forth   before   the   trial <\/p>\n
    Court, was as follows :-\n<\/p>\n
    .       The Appellant and the other accused were known Gundas  and known <\/p>\n
    as such, in the locality where the First Informant Nafajat Hasmat Pathan <\/p>\n
    (PW-1) lived with his wife Tajbibi (PW-2). The Appellant and even the other <\/p>\n
    accused were known to the said Nafajat (PW-1) and Tajbibi (PW-2) since <\/p>\n
    prior to the incident. That, on 11th  April, 1988, the Appellant went to the <\/p>\n
    house of Nafajat at about 4:00 p.m., when Nafajat was not at home. The <\/p>\n
    Appellant enquired with Tajbibi (PW-2) about Nafajat (PW-1). Thereafter, in <\/p>\n
    the night, again, the Appellant and the original Accused No.1 Jamaluddin <\/p>\n
    went to the house of Nafajat (PW-1) and enquired about him, but at that <\/p>\n
    time also, Nafajat (PW-1) was not at home. That, at about 6:00 a.m. on the <\/p>\n
    next day, i.e. 12th April, 1988, while Nafajat (PW-1) and Tajbibi (PW-2) were <\/p>\n
    sleeping in their house, the Appellant and other Accused went there. On the <\/p>\n
    Appellant calling him by his name, Nafajat opened the door. Nafajat (PW-1) <\/p>\n
    and Tajbibi (PW-2) noticed the Appellant and the other accused standing in <\/p>\n
    front of the door of their house. The original Accused No.1 had a revolver in <\/p>\n
    his   hand  and  the   Appellant  and  the  other  accused  were   having  choppers <\/p>\n
    with them. The original Accused No.1 placed the revolver on the back of <\/p>\n
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\n                                                4<\/span>
\n    Dixit<\/p>\n
    Nafajat (PW-1). The Appellant tied the hands of Nafajat by a rope. All the <\/p>\n
    four   accused   then   dragged   Nafajat   to   a   nearby   place   i.e.   near   Munshi <\/p>\n
    Grocery Stores. The original Accused No.1 Jamaluddin –  who was already <\/p>\n
    holding a revolver in one hand – took the chopper, which was in the hand of <\/p>\n
    the original Accused No.4, and assaulted Nafajat (PW-1) on his shoulders.\n<\/p>\n
    The Appellant and the other two accused joined the original Accused No.1 <\/p>\n
    in the assault. All the accused – including the Appellant – assaulted Nafajat <\/p>\n
    (PW-1)   with   choppers   all   over   his  body.   Nafajat   (PW-1)   started  bleeding <\/p>\n
    from the injuries sustained by him on account of the said assault. He fell on <\/p>\n
    the   ground.   All   the   four   accused   then   ran   away.   While   he   was   being <\/p>\n
    assaulted, Nafajat (PW-1) had raised an alarm, but his mouth was gagged <\/p>\n
    by the Appellant. Tajbibi (PW-2) and one Hanif Shaikh came to the spot <\/p>\n
    where   Nafajat   (PW-1)   was   lying   in   an   injured   condition.   Tajbibi   (PW-2) <\/p>\n
    rushed to Jogeshwari Police Station and reported the incident to PSI Nikam <\/p>\n
    (PW-8). PSI Nikam (PW-8) and the other Police staff went to the spot along <\/p>\n
    with Tajbibi (PW-2). The Police removed Nafajat (PW-1) to Cooper Hospital.\n<\/p>\n
    Dr. Satish Dharap (PW-3) examined Nafajat (PW-1) and noticed 39 wounds <\/p>\n
    on his person. Nafajat (PW-1) was admitted in the Emergency Ward of the <\/p>\n
    Hospital.   While   Nafajat   (PW-1)   was   being   treated,   PSI   Nikam   (PW-8) <\/p>\n
    recorded his statement; which was treated as the First Information Report <\/p>\n
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\n                                                                                         Apeal-57-93
\n                                                   5<\/span>
\n    Dixit<\/p>\n
    (Exhibit-13).   Thereafter,   the   statement   of   Tajbibi   (PW-2)   was   recorded.\n<\/p>\n
    Nafajat (PW-1) was treated in the hospital till he was discharged on 28 th <\/p>\n
    May, 1988.\n<\/p>\n
    .       After the registration of the crime, PI Puri (PW-9), PSI Avhad (PW-7), <\/p>\n
    PSI   Save   and   other   Police   staff   visited   the   spot   of   incident   and   drew   a <\/p>\n
    Panchnama  (Exhibit-18),   with  Subhash  Baliram Mestry (PW-4),   acting  as <\/p>\n
    one of the Panchas. Samples of blood were collected from the spot. Inquiries <\/p>\n
    were made with certain persons and their statements were recorded. Then <\/p>\n
    the blood stained clothes of Nafajat (PW-1), i.e. Shirt (Article 1) and Lungi <\/p>\n
    (Article 2), were taken charge of under the Panchanama (Exhibit-32).\n<\/p>\n
    5.      During the course of investigation, the original Accused No.1 disclosed <\/p>\n
    certain information pursuant to which the chopper (Article 5), which had <\/p>\n
    been   allegedly   used  in   commission   of  the   offence,   was  recovered   by   the <\/p>\n
    Police under a Panchanama (Exhibits 36 and 36A) in the presence of Panch <\/p>\n
    Umashankar Prajapati (PW-6). The articles, which had been seized in the <\/p>\n
    course of investigation, including the clothes of Nafajat (PW-1), were sent to <\/p>\n
    the Chemical Analyzer for examination and opinion.\n<\/p>\n
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                                                                                     Apeal-57-93
\n                                                 6<\/span>
\n    Dixit<\/p>\n
    .       On completion of investigation, a report under Section 173(2)(i) of <\/p>\n
    the Code of Criminal Procedure was submitted, on the basis of which the <\/p>\n
    Appellant   and   the   other   accused   were   prosecuted   and   convicted,   as <\/p>\n
    aforesaid.\n<\/p>\n
    6.      The prosecution examined ten witnesses during the trial. Originally, <\/p>\n
    the   charge,   that   had   been   framed   against   the   Appellant   and   the   other <\/p>\n
    accused, was only with respect to the offences punishable under Sections <\/p>\n
    364 of the IPC and 307 of the IPC read with Section 34 of the IPC. After the <\/p>\n
    entire   evidence   was   recorded,   however,   the   learned   Additional   Sessions <\/p>\n
    Judge framed a charge in respect of an offence punishable under Section <\/p>\n
    326  of  the IPC read  with  Section  34  of the IPC as an  alternative  to  the <\/p>\n
    charge of an offence punishable under Section 307 of the IPC read with <\/p>\n
    Section 34 of the IPC.\n<\/p>\n
    7.      The   main   witnesses   in   this   case   are   Nafajat   (PW-1)   and   Tajbibi <\/p>\n
    (PW-2). I have carefully gone through the evidence of these witnesses. That, <\/p>\n
    all   the   accused  persons,   including   the   Appellant,   were   known   to   Nafajat <\/p>\n
    (PW-1) and Tajbibi (PW-2) since previously, is not in dispute at all. Nafajat <\/p>\n
    (PW-1) has identified all the accused including the Appellant in the Court.\n<\/p>\n
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                                                                                      Apeal-57-93
\n                                                 7<\/span>
\n    Dixit<\/p>\n
    He has narrated the incident. According to him, in the night between 11 th <\/p>\n
    April, 1988 and 12th April, 1988, he returned home at about 12:30 a.m. and <\/p>\n
    at that time Tajbibi (PW-2) told him that the Appellant had come to enquire <\/p>\n
    about him at about 4:00 p.m. and, thereafter, at about 11:00 p.m. He has <\/p>\n
    then stated that at about 6:00 a.m., he heard a knock at the door and also <\/p>\n
    heard  the  Appellant  calling him by  his  name.  He  has  further  stated that <\/p>\n
    when he opened the door, he saw all the four accused standing in front of <\/p>\n
    his   door   and   when   he   came   out   of   his   house,   immediately,   the   original <\/p>\n
    Accused No.1 placed a revolver on his back. He has also stated about the <\/p>\n
    Appellant and the other accused having choppers in their hands. According <\/p>\n
    to him, Tajbibi (PW-2) came out and asked the accused persons as to what <\/p>\n
    was the matter when the original Accused No.1 told her that they all had <\/p>\n
    some work with Nafajat (PW-1), and that Nafajat (PW-1) would be coming <\/p>\n
    back soon. He then states that the Appellant tied both his hands by rope, <\/p>\n
    and that, then all the accused dragged him to a place near Munshi Grocery <\/p>\n
    Shop. According to him, the original Accused No.1 then asked him as to <\/p>\n
    where one Mohd. Shah was, when Nafajat (PW-1) stated that he did not <\/p>\n
    know his whereabouts. It is thereupon that the original Accused No.1 took <\/p>\n
    the   chopper   from   the   hands   of   the   original   Accused   No.4   and   assaulted <\/p>\n
    Nafajat (PW-1) with it on his shoulders. That, then all the accused joined <\/p>\n
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\n                                                 8<\/span>
\n    Dixit<\/p>\n
    him in assaulting Nafajat (PW-1) with choppers all over the body. Nafajat <\/p>\n
    (PW-1)   has   also   stated   about   the   Appellant   gagging   his   mouth,   when <\/p>\n
    Nafajat raised an alarm. That, Tajbibi (PW-2) and one Hanif Babu Shaikh <\/p>\n
    came   to   the   spot   where   Nafajat   (PW-1)   had   been   lying   in   an   injured <\/p>\n
    condition.   He   has   then   stated   about   Tajbibi   (PW-1)   going   to   the   Police <\/p>\n
    Station, Police coming there and taking him to Cooper Hospital. He has also <\/p>\n
    stated about his statement being recorded by the Police in the hospital. The <\/p>\n
    F.I.R. (Exhibit-13) was read over to him in the Court and he stated that it <\/p>\n
    had been correctly recorded. He has also identified the Shirt (Article 1) and <\/p>\n
    Lungi (Article 2) as his, when they were shown to him in Court.\n<\/p>\n
    8.      In the cross-examination, a suggestion was given to him that he was <\/p>\n
    staying with one person by name Habib, but this suggestion has been denied <\/p>\n
    by Nafajat (PW-1), as ‘not true’. It was also suggested to him that Tajbibi <\/p>\n
    (PW-2) was not his lawfully wedded wife, and that, prior to her marriage <\/p>\n
    with Nafajat (PW-1), Tajbibi (PW-2) was residing with Habib, and that, they <\/p>\n
    were in love. The attempt in the cross-examination is to suggest that Nafajat <\/p>\n
    (PW-1)   had   a   quarrel   with   Habib,   and   that   because   Nafajat   (PW-1)   had <\/p>\n
    married   Tajbibi   (PW-2),   Habib   had   threatened   to   kill   him.   All   these <\/p>\n
    suggestions  have  been,  however,  denied by Nafajat  (PW-1).  A suggestion <\/p>\n
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\n                                                                                     Apeal-57-93
\n                                                 9<\/span>
\n    Dixit<\/p>\n
    was also given to him that a person by name Jafar had also threatened to <\/p>\n
    kill Nafajat, and that Jafar and Tajbibi had plans to marry. Nafajat (PW-1) <\/p>\n
    denied   such   suggestion   and   stated   that   he   did   not   even   know   any   such <\/p>\n
    person. It was also suggested to him that he was a contract killer, and that <\/p>\n
    he was involved in several cases of extortion, theft and robbery at several <\/p>\n
    Police Stations in Mumbai. It was also suggested that Tajbibi (PW-2), her <\/p>\n
    brother  and  her  parents  were  involved  in   several  Narcotics  cases.  It   was <\/p>\n
    suggested   that   Tajbibi’s   family   members   were   supplying   Brown   Sugar   to <\/p>\n
    several   persons   in   Jogeshwari   area.   All   sorts   of   suggestions,   that   the <\/p>\n
    Appellant had arranged for an accommodation for Nafajat in Jogeshwari, <\/p>\n
    that   Nafajat   had   borrowed   monies   from   the   original   Accused   No.1,   etc., <\/p>\n
    were given to Nafajat (PW-1); and all such suggestions have been denied by <\/p>\n
    him. It was ultimately suggested to him that Habib and Jafar had assaulted <\/p>\n
    him, and that he had not seen any of the accused assaulting him. It was <\/p>\n
    suggested   that   he   and   even   Tajbibi   (PW-2)   had   suppressed   the   name   of <\/p>\n
    Habib   and   Jafar   and   both   of   them   had   falsely   implicated   the   accused <\/p>\n
    persons.\n<\/p>\n
    9.      In the cross-examination, Nafajat (PW-1) was further questioned as to <\/p>\n
    how he knew all the four accused, to which he had replied that they were <\/p>\n
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\n                                                  10<\/span>
\n    Dixit<\/p>\n
    residents of the same locality as his, and that he used to see them often in <\/p>\n
    the   locality   itself.   It   was   also   suggested   that   Tajbibi   (PW-2)   had   not <\/p>\n
    informed him that original Accused Nos.1 and 2 had come to enquire about <\/p>\n
    him   at   his   house   on   11th  April,   1988,   and   that   the   Appellant\/original <\/p>\n
    Accused No.2 did not knock at his door at 6:00 a.m. etc. These suggestions <\/p>\n
    have been denied by Nafajat (PW-1).\n<\/p>\n
    10.<\/p>\n
            Nafajat (PW-1) was sought to be contradicted with reference to the <\/p>\n
    F.I.R.,   as   regards   whether   he  had  told  the   Police   that,   when   all  the   four <\/p>\n
    accused had come to his house, his wife had came out and asked all the <\/p>\n
    accused   as   to   what   was   the   matter,   by   pointing   out   the   omission   to <\/p>\n
    specifically state so in the F.I.R. I am not impressed by this attempt. The <\/p>\n
    story of Nafajat (PW-1) as well as of Tajbibi (PW-2) is that Tajbibi (PW-2) <\/p>\n
    was present in the house when Nafajat (PW-1) was taken away from his <\/p>\n
    house by the accused persons and nothing turns on whether Tajbibi (PW-2) <\/p>\n
    had asked all the accused as to what was the matter and further whether <\/p>\n
    that   Nafajat   (PW-1)   had   stated   before   the   Police   that   she   had   so   asked.\n<\/p>\n
    Thus, even if it is assumed that it was not stated to the Police by Nafajat <\/p>\n
    (PW-1), it cannot lead to the inference that Tajbibi (PW-2) had actually not <\/p>\n
    witnessed the knock at the door and taking away of Nafajat (PW-1); and <\/p>\n
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\n                                                11<\/span>
\n    Dixit<\/p>\n
    that what has been stated before the Court by Nafajat (PW-1) is, therefore, <\/p>\n
    an improvement.\n<\/p>\n
    11.     In her evidence, Tajbibi (PW-2) has narrated the facts in conformity <\/p>\n
    with the deposition of Nafajat (PW-1). She has stated that she knew all the <\/p>\n
    four accused since prior to the date of incident. She has identified all of <\/p>\n
    them in Court by pointing out towards them and by giving their names.\n<\/p>\n
    12.     Tajbibi (PW-2) has narrated the incident by stating that on 12th April, <\/p>\n
    1988,  at  about  6:00   a.m.,   the   Appellant   knocked  at   the  door and called <\/p>\n
    Nafajat (PW-1) by his name. That, when Nafajat (PW-1) opened the door, <\/p>\n
    Tajbibi (PW-2) was also awake and the child had also woken up. Tajbibi <\/p>\n
    (PW-2) has stated that the Appellant asked Nafajat (PW-1) to come out of <\/p>\n
    the house. That, she came out of the house and saw all the four accused, <\/p>\n
    including   the   Appellant,   standing   outside   the   door.   She   has   also   stated <\/p>\n
    about the original Accused No.1 having the revolver in his hand and the <\/p>\n
    other   accused   being   armed   with   choppers.   That,   she   asked   all   the   four <\/p>\n
    accused as to what was the matter, and that thereupon all the accused told <\/p>\n
    her   that   they   had  some   work   with  Nafajat   (PW-1)   and   were   taking  him <\/p>\n
    along.   Tajbibi   (PW-2)   went   inside   her   house,   but   after   the   accused   had <\/p>\n
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\n                                                  12<\/span>
\n    Dixit<\/p>\n
    taken away Nafajat (PW-1), she went out of her house along with the child <\/p>\n
    to   look   for   him.   She   has   stated   that   she   then   saw   him   in   an   injured <\/p>\n
    condition near Munshi Grocery Shop, which was situated at a distance of <\/p>\n
    about 5 to 10 minutes from her house. She has stated that her husband –\n<\/p>\n
    Nafajat (PW-1) – was bleeding profusely from the severe injuries, which he <\/p>\n
    had sustained. According to her, while on the way, she was accosted by the <\/p>\n
    original   Accused   No.1   and   the   Appellant,   who   threatened   her   that   they <\/p>\n
    would kill her, if she would proceed further. She has then stated about going <\/p>\n
    to Jogeshwari Police Station and reporting the matter to the Police, and that <\/p>\n
    Nafajat (PW-1) was, thereafter, taken in a police van to the Cooper Hospital.\n<\/p>\n
    13.     In   the   cross-examination,   an   attempt   was   made   to   suggest   that   in <\/p>\n
    front of the entrance door of her house, four persons would not be able to <\/p>\n
    stand simultaneously, and that, therefore, she could not have seen all the <\/p>\n
    four accused. This has been denied by the witness. A suggestion was given <\/p>\n
    that she and her husband were on friendly terms with the accused persons, <\/p>\n
    which was also denied by her.\n<\/p>\n
    14.     Tajbibi (PW-2) was questioned as to when she went out to see what <\/p>\n
    had happened to Nafajat (PW-1), whether she had taken her child with her.\n<\/p>\n
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                                                                                    Apeal-57-93
\n                                               13<\/span>
\n    Dixit<\/p>\n
    Tajbibi (PW-2) had, initially, stated that she left the child with one of the <\/p>\n
    neighbours   and  went   alone   to  look  for  Nafajat   (PW-1),   but   has  later   on <\/p>\n
    stated that she did not remember exactly whether she had taken the child <\/p>\n
    along with her to the spot where Nafajat (PW-1) was lying in an injured <\/p>\n
    condition.\n<\/p>\n
    15.     Tajbibi (PW-2) claims to have seen that the hands of Nafajat (PW-1) <\/p>\n
    were tied behind the back by a rope. She was also asked about one Habib <\/p>\n
    Talwar and she has stated that she did not know any such person. In the <\/p>\n
    cross-examination, she was confronted with the fact that, that the Accused <\/p>\n
    No.1 was having a revolver was not appearing in her statement recorded by <\/p>\n
    the Police and she was unable to state why it was not recorded though she <\/p>\n
    claimed to have told the same to the Police. Similarly, the omission to state <\/p>\n
    to the Police about the original Accused No.1 and the Appellant threatening <\/p>\n
    her when she was proceeding to see where Nafajat (PW-1) was, has also <\/p>\n
    been   brought   on   record.   Though   Tajbibi   (PW-2)   was   extensively   cross-\n<\/p>\n
    examined, I do not find that her testimony has been shaken in any manner.\n<\/p>\n
    Several wild suggestions – as were given to Nafajat (PW-1) – were given to <\/p>\n
    Tajbibi (PW-2) also, such as Nafajat (PW-1) was concerned in a murder case, <\/p>\n
    that he had been attested in a robbery case, and that Tajbibi’s brother was <\/p>\n
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\n                                                                                      Apeal-57-93
\n                                                 14<\/span>
\n    Dixit<\/p>\n
    involved in a rape case, and that he was dealing in brown sugar, etc. It was <\/p>\n
    also suggested to her that one Hanif Khadfa had taken possession of her <\/p>\n
    house and had assaulted her, and that, at that time, she had gone to the <\/p>\n
    original   Accused   No.1   for   help.   These   suggestions   have   been   denied   by <\/p>\n
    Tajbibi (PW-2) as false.\n<\/p>\n
    16.     The evidence of Nafajat (PW-1) and Tajbibi (PW-2) is corroborated by <\/p>\n
    the   evidence   of   Dr.   Satish   Dharap   (PW-3),   who   had   examined   Nafajat <\/p>\n
    (PW-1) in the Cooper Hospital. Dr. Satish Dharap (PW-3) has mentioned <\/p>\n
    that there were 39 wounds on the person of Nafajat (PW-1), out of which <\/p>\n
    37   were   incise   wounds.   Out   of   these   wounds,   two   wounds   were   on   the <\/p>\n
    scalp. He has identified the endorsement on the F.I.R., which he said was in <\/p>\n
    his   own   handwriting.   He   had   brought   the   case   papers   in   respect   of   the <\/p>\n
    treatment given to Nafajat (PW-1) in the Cooper Hospital.\n<\/p>\n
    17.     His   cross-examination   has   been   quite   lengthy,   but   nothing,   which <\/p>\n
    would   shake   his   evidence   given   in   the   examination-in-chief,   has   been <\/p>\n
    brought   on   record.   Part   of   the   cross-examination   was   directed   towards <\/p>\n
    establishing that the injuries caused to Nafajat (PW-1) were not that serious.\n<\/p>\n
    Part   of   the   cross-examination   was   directed   towards   suggesting   that   the <\/p>\n
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\n                                                                                      Apeal-57-93
\n                                                 15<\/span>
\n    Dixit<\/p>\n
    injuries sustained by him could not have been caused by the choppers. Dr. <\/p>\n
    Satish Dharap (PW-3) has admitted that two of the injuries could not be <\/p>\n
    caused by sharp weapon, and that they would be caused, if one would fall <\/p>\n
    on  the  ground and, if  dashed against  any  hard or blunt  surface.  He  has <\/p>\n
    categorically   stated   that   considering   the   loss   of   blood   from   the   injuries <\/p>\n
    caused to Nafajat (PW-1), the 38 injuries were enough to cause death in all <\/p>\n
    probability.   He   has,   however,   admitted   that   no   major   blood   vessel   was <\/p>\n
    actively bleeding except for the injury mentioned at Sr. No.13 in the Medical <\/p>\n
    Certificate (Exhibit 19) issued by him. The purpose of some of the questions <\/p>\n
    put to this witness in the cross-examination was, apparently, to show that <\/p>\n
    the injuries were quite minor. In my opinion, this has not been successful <\/p>\n
    and the evidence of this witness is not shaken in any manner.\n<\/p>\n
    18.     I find that though Nafajat (PW-1) and Tajbibi (PW-2) were extensively <\/p>\n
    cross-examined, and that all sorts of suggestions – quite contradictory at <\/p>\n
    times – were given to both of them, their testimony, which is supported by <\/p>\n
    the   medical   evidence   and   the   evidence   of   the   Police   Officers   on   certain <\/p>\n
    aspects, is not shaken at all. In fact, some of the suggestions in the cross-\n<\/p>\n
    examination are quite curious, in as much as, it is suggested that Nafajat <\/p>\n
    (PW-1)   and   Tajbibi   (PW-2)   were   not   disclosing   the   names   of   the   real <\/p>\n
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\n                                                                                       Apeal-57-93
\n                                                  16<\/span>
\n    Dixit<\/p>\n
    assailants   and  they   were   falsely   implicating   the   accused  persons   without <\/p>\n
    suggesting any reason for protecting the real culprits and for implicating the <\/p>\n
    accused persons falsely. It would not be possible to accept that after having <\/p>\n
    suffered   such   a   murderous   assault,   the   victim   would   not   name   the   real <\/p>\n
    assailants,   but   implicate   some   totally   different   persons   as   the   assailants.\n<\/p>\n
    Interestingly, it was also suggested to Tajbibi (PW-2) that actually she and <\/p>\n
    Nafajat (PW-1) had been helped by the original Accused No.1; in which case <\/p>\n
    it would be difficult to conceive a reason for the false implication of the <\/p>\n
    original Accused No.1 and the other accused including the Appellant.\n<\/p>\n
    19.     The learned Additional Sessions Judge, Greater Bombay, has believed <\/p>\n
    the   evidence   of   Nafajat   (PW-1)   and   Tajbibi   (PW-2).   He   has   found   their <\/p>\n
    versions   consistent   and   natural.   The   minor   variations   in   the   evidence   of <\/p>\n
    these witnesses and the possibility of their having made some improvement <\/p>\n
    on some minor matters have been rightly ignored by the trial Court as not of <\/p>\n
    any consequence.\n<\/p>\n
    20.     The evidence of PSI Vithal Nikam (PW-8) attached to the Jogeshwari <\/p>\n
    Police   Station   at   the   material   time,   shows   that   while   he   was   on   station <\/p>\n
    house duty from 8 p.m. on 11th April, 1988 to 8 a.m. on 12th April, 1988, at <\/p>\n
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\n                                                                                     Apeal-57-93
\n                                                17<\/span>
\n    Dixit<\/p>\n
    about   7:30   a.m.,   Tajbibi   (PW-2)   came   running   to   the   Police   Station   and <\/p>\n
    reported that her husband was assaulted and was lying on the road in an <\/p>\n
    injured  condition.   PSI   Nikam   (PW-8)  thereafter  immediately  went   to  the <\/p>\n
    spot along with Tajbibi (PW-2) and police staff. He has stated that they went <\/p>\n
    near Munshi Grocery Shop where Nafajat (PW-1) was lying in an injured <\/p>\n
    condition. He has then stated that Nafajat (PW-1) was lifted and put in the <\/p>\n
    Police Jeep and then taken to Cooper Hospital, where he was admitted in <\/p>\n
    emergency   ward.   According   to   him,   he   then   recorded   the   statement   of <\/p>\n
    Nafajat   (PW-1)   after   obtaining   permission   from   the   Doctor   attending   to <\/p>\n
    Nafajat   (PW-1).   The   F.I.R.   (Exhibit-13)   was   shown   to   him   and   he   has <\/p>\n
    identified   the   same   as   the   said   statement   of   Nafajat   (PW-1)   which   was <\/p>\n
    recorded by him in the Cooper Hospital.\n<\/p>\n
    21.     PSI Nikam (PW-8) has then stated that he along with Tajbibi (PW-2), <\/p>\n
    PI Puri (PW-9), PSI Avhad, PSI Save and other Policemen went to the scene <\/p>\n
    of offence and, that, under a Panchnama, the measurements of the room of <\/p>\n
    Nafajat (PW-1) were taken. The surroundings were also noted and then the <\/p>\n
    Police   Party   and   the   Panchas   went   to   the   scene   of   offence,   which   was <\/p>\n
    situated at a distance of about 1 furlong from the house of Nafajat (PW-1).\n<\/p>\n
    He has then stated about collecting samples of blood, mud stain with blood <\/p>\n
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\n                                                                                        Apeal-57-93
\n                                                  18<\/span>
\n    Dixit<\/p>\n
    etc.   from   the   place   of   incident.   He   was   extensively   cross-examined   on <\/p>\n
    various aspects of the matter, but I do not find anything that would assist <\/p>\n
    the   Appellant   has   been   brought   out   on   record   as   a   result   of   the   cross-\n<\/p>\n
    examination. He has admitted that Tajbibi’s name has not been mentioned <\/p>\n
    in the entry made in the Station House Diary (as the person coming to the <\/p>\n
    Police Station), but, in my opinion, this cannot be lead to any doubt as to <\/p>\n
    whether Tajbibi (PW-2) had, indeed, gone to the Police Station. PSI Nikam <\/p>\n
    (PW-8)  has   given   a   reason   for   not   mentioning   this  in   the   Station   House <\/p>\n
    Diary   and,   according   to   him,   as  Nafajat   (PW-1)   was   lying   in   a   seriously <\/p>\n
    injured   condition,   he   left   the   Police   Station   immediately   and,   that, <\/p>\n
    therefore, he did not make any entry in that regard in the Station House <\/p>\n
    Diary. He was then questioned as to whether he mentioned in the Station <\/p>\n
    Diary Entry that he left the Police Station for going to the hospital etc. and <\/p>\n
    the witness has stated that it was not so mentioned. I am unable to accept <\/p>\n
    that this would throw a doubt on the version of Tajbibi (PW-2) and of this <\/p>\n
    witness   about   Tajbibi   (PW-2)   having   gone   to   the   Police   Station   and   this <\/p>\n
    witness, along with other Police personnel having gone to the place where <\/p>\n
    Nafajat (PW-1) was lying in an injured condition. The omission of Nafajat <\/p>\n
    (PW-1)   to   state   before   the   Police   that   when   the   accused   persons   had <\/p>\n
    knocked the door of his house at around 6:00 a.m., Tajbibi (PW-2) had also <\/p>\n
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\n                                                                                      Apeal-57-93
\n                                                 19<\/span>
\n    Dixit<\/p>\n
    woken   up   and   had   come   up   to   the   door,   was   brought   on   record   by <\/p>\n
    confronting PSI Nikam (PW-8) with the same. I am of the opinion that such <\/p>\n
    omission is inconsequential and cannot lead to an inference that in spite of <\/p>\n
    the door of the house being knocked and in spite of the room being a small <\/p>\n
    one, Tajbibi (PW-2) did not wake up and did not see as to who had knocked <\/p>\n
    the  door  or  who had  come   there.  It   is  unlikely that  when  the   door  was <\/p>\n
    knocked   at   such   early   hours   and   when   Nafajat   (PW-1)   had   woken   up, <\/p>\n
    Tajbibi (PW-2) would continue to sleep and would not try to know who had <\/p>\n
    come.\n<\/p>\n
    22.     The case of the prosecution cannot be disbelieved merely because this <\/p>\n
    witness   did   not   make   any   record   of   what   Tajbibi   (PW-2)   told   him   after <\/p>\n
    coming to the Police Station. Tajbibi (PW-2) as well as the witness, at that <\/p>\n
    stage,   were   concerned   more   with   the   condition   of   the   injured   Nafajat <\/p>\n
    (PW-1)   and   the   explanation   of   the   witness   that   he   noticed   that   Tajbibi <\/p>\n
    (PW-2) was very much frightened, and that she did not tell him as to who <\/p>\n
    and how many were the assailants, he did not ask her the same, is quite <\/p>\n
    acceptable.\n<\/p>\n
    23.     In   his   evidence,   the   Investigating   Officer   PI   Shankar   Puri   (PW-9) <\/p>\n
    speaks about the arrest of the Appellant on 15th  April, 1988. According to <\/p>\n
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\n                                                                                     Apeal-57-93
\n                                                20<\/span>
\n    Dixit<\/p>\n
    him, the Appellant was arrested on 15th  April, 1988 by one PSI Sankhe in <\/p>\n
    C.R. No.119 of 1988 of Jogeshwari Police Station and, later, he was arrested <\/p>\n
    in this case. He has spoken about having taken charge of the clothes of the <\/p>\n
    person   of   the   Appellant   in   the   presence   of   Panchas.   His   evidence   which <\/p>\n
    relates to the other accused is not necessary to be discussed here and it is <\/p>\n
    sufficient to observe that the cross-examination as of this witness had not <\/p>\n
    yielded anything in favour of the present Appellant.\n<\/p>\n
    24.     The evidence of other witnesses is not significant and, as a matter of <\/p>\n
    fact, not relevant in the context of the case against the Appellant. Therefore, <\/p>\n
    only a brief reference to the same would suffice. Subhash Mestry (PW-4) is <\/p>\n
    the Panch in respect of the Spot Panchnamas. Mohd. Jamil Khan (PW-5) is <\/p>\n
    supposed to be a Panch in respect of arrest of the Appellant on 15th  April, <\/p>\n
    1988. He has,  however, not supported the prosecution  and  was declared <\/p>\n
    hostile. Uma Shankar Prajapati (PW-6) is also a Panch Witness in respect of <\/p>\n
    the recovery of a Chopper at the instance of the original Accused No.1. This <\/p>\n
    witness   did   not   support   the   case   of   the   prosecution   and   was   declared <\/p>\n
    hostile. In any case, his evidence was not relevant in the   context of the <\/p>\n
    question   of   guilt   or   innocence   of   the   present   Appellant.   Similarly,   the <\/p>\n
    evidence   of   Bhanudas   Avahad   (PW-7),   Police   Sub-Inspector   attached   to <\/p>\n
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\n                                                                                         Apeal-57-93
\n                                                   21<\/span>
\n    Dixit<\/p>\n
    Jogeshwari   Police   Station,   at   the   material   time,   also   is   in   respect   of   the <\/p>\n
    involvement of the original Accused No.4 and does not relate to the present <\/p>\n
    Appellant. The evidence of Narayan Patil (PW-10), who was attached to the <\/p>\n
    Jogeshwari Police Station as Inspector of Police at the material time, is also <\/p>\n
    not relevant in the context of the case against the Appellant.\n<\/p>\n
    25.     The trial Court has believed the version of Nafajat (PW-1) and Tajbibi <\/p>\n
    (PW-2), which has been corroborated by the medical evidence and also by <\/p>\n
    the evidence of PSI Nikam (PW-8). On an independent re-appreciation and <\/p>\n
    re-evaluation of the evidence, this Court also comes to the conclusion that <\/p>\n
    the assault on Nafajat (PW-1) by the accused persons was clearly proved, <\/p>\n
    and that the role of the Appellant, as alleged by the prosecution, had also <\/p>\n
    been satisfactorily proved.\n<\/p>\n
    26.     Ms.   Indu   Verma,   the   learned  Advocate   for   the   Appellant,   advanced <\/p>\n
    some arguments with respect to the unreliability of the prosecution version.\n<\/p>\n
    According to her, the theory of the hands of the Nafajat (PW-1) having been <\/p>\n
    tied by a rope cannot be believed, and that the witnesses are not telling the <\/p>\n
    truth in that regard. She pointed out that no rope had been seized during <\/p>\n
    the   investigation.  She   also   pointed  out   that   though  the   allegation   of  the <\/p>\n
    original   Accused   No.1   having   a   revolver   with   him   has   been   levelled,   no <\/p>\n
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\n                                                                                      Apeal-57-93
\n                                                 22<\/span>
\n    Dixit<\/p>\n
    revolver has been seized. According to her, therefore, the witnesses cannot <\/p>\n
    be termed as wholly reliable. There is undoubtedly some substance in the <\/p>\n
    contentions advanced by the learned Advocate for the Appellant and though <\/p>\n
    it is possible to find out some faults in the investigation, it is not possible to <\/p>\n
    accept that no assault, as alleged, had taken place at the time and place <\/p>\n
    mentioned by Nafajat (PW-1) and Tajbibi (PW-2). The number of injuries <\/p>\n
    sustained   by   Nafajat   (PW-1)   are   wholly   consistent   with   the   version   of <\/p>\n
    Nafajat (PW-1) and Tajbibi (PW-2). The place where the incident took place <\/p>\n
    also cannot be disputed. Once it is established beyond any reasonable doubt <\/p>\n
    that  Nafajat  (PW-1) was  assaulted  at  the  given  time  and  place,  the  only <\/p>\n
    possibility required to be considered for exonerating the Appellant, would <\/p>\n
    be   that   the   Appellant   was   not   among   the   assailants.   In   that   case,   the <\/p>\n
    possibility of Nafajat (PW-1) and Tajbibi (PW-2) having falsely implicated <\/p>\n
    the Appellant needs to be considered. I have considered the same and, in <\/p>\n
    my opinion, such possibility has to be forthwith rejected. It is significant that <\/p>\n
    no reason has been suggested for Nafajat (PW-1) to implicate the Appellant <\/p>\n
    falsely.   On   the   contrary,   the   wild,   somewhat   reckless   and   at   times <\/p>\n
    contradictory suggestions, that had been given to Nafajat (PW-1) and Tajbibi <\/p>\n
    (PW-2) in the cross-examination, themselves indicate that there was hardly <\/p>\n
    any scope for challenging the evidence of these witnesses.\n<\/p>\n
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                                                                                       Apeal-57-93
\n                                                 23<\/span>
\n    Dixit<\/p>\n
    27.     That no rope was taken charge of in the course of investigation and no <\/p>\n
    revolver could be seized in the course of investigation, though may indicate <\/p>\n
    that Nafajat (PW-1) and Tajbibi (PW-2) are not  wholly reliable  witnesses, <\/p>\n
    their evidence cannot be discarded only on that ground, with respect to the <\/p>\n
    incident   of   assault   and   the   involvement   of   the   Appellant   in   the   assault.\n<\/p>\n
    There   is   a   circumstantial   guarantee   with   respect   to   the   version   of   these <\/p>\n
    witnesses, apart from the fact  that the same is fully corroborated by the <\/p>\n
    evidence   of   Dr.   Satish   Dharap   (PW-3)   and   PSI   Nikam   (PW-8),   which <\/p>\n
    evidence has remained unshaken.\n<\/p>\n
    28.     In my opinion, therefore, the finding of guilt of the accused persons –\n<\/p>\n
    including the Appellant – as arrived at by the learned Additional Sessions <\/p>\n
    Judge is proper and legal. As a matter of fact, the reasoning of the learned <\/p>\n
    Sessions Judge that this assault was not sufficient to conclude the offence to <\/p>\n
    be one punishable under Section 307 of the IPC is quite doubtful. This view <\/p>\n
    has been taken only on the basis that there had been no injuries on the vital <\/p>\n
    part of the body of Nafajat (PW-1), which, in my opinion, could not have <\/p>\n
    been the sole criteria to consider what offence the Appellant and the other <\/p>\n
    accused had committed. The number of injuries and the medical opinion <\/p>\n
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\n                                                                                          Apeal-57-93
\n                                                    24<\/span>
\n    Dixit<\/p>\n
    that they were – at least collectively – sufficient in the ordinary course of <\/p>\n
    nature   to   cause   death   needed   to   be   considered   in   this   context.   Anyway, <\/p>\n
    since   the   State   has   not   preferred  any   Appeal   from   the   conviction   of   the <\/p>\n
    Appellant   with   respect   to   a   lesser   offence,   I   do   not   wish   to   discuss   this <\/p>\n
    aspect any further and leave it at that.\n<\/p>\n
    29.     Thus, there appears to be no infirmity in the judgment and order of <\/p>\n
    conviction of the Appellant, as recorded by the Additional Sessions Judge, <\/p>\n
    Greater Bombay.\n<\/p>\n
    30.     The   learned   Counsel   for   the   Appellant,   however,   urged   that <\/p>\n
    considering  all   the   relevant   aspects  of  the   matter,   it   would  be   proper   to <\/p>\n
    reduce the sentence imposed on the Appellant.\n<\/p>\n
    31.     Before considering this aspect of the matter, it would not be out of <\/p>\n
    place   to  mention   an   error  committed  by   the   learned  Additional   Sessions <\/p>\n
    Judge, though the same is not relevant in the context of the present Appeal;\n<\/p>\n
    as a reference to the same would clarify the legal position with respect to <\/p>\n
    the applicability of Section 360 of the Code to the State of Maharashtra.\n<\/p>\n
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                                                                                     Apeal-57-93
\n                                                25<\/span>
\n    Dixit<\/p>\n
    32.     The learned Additional Sessions Judge dealt with the original Accused <\/p>\n
    Nos.3 and 4, under the provisions of Section 360 of the Code. They were <\/p>\n
    convicted  of   an   offence   punishable   under  Section   326   of   the   IPC,   which <\/p>\n
    offence   is   punishable   with   imprisonment   for   life.   A   reading   of   Section <\/p>\n
    360(1) shows that it is not applicable where the conviction is in respect of <\/p>\n
    an offence ‘punishable with death or imprisonment for life’. It has been held <\/p>\n
    that   the   phrase  ‘punishable   with   death   or   imprisonment   for   life’  must   be <\/p>\n
    interpreted   disjunctively.   The   said   phrase   must   be   read   as   referring   to <\/p>\n
    offences where the punishment would be death, or where the punishment <\/p>\n
    would be imprisonment for life. Thus, even where imprisonment for life is <\/p>\n
    the maximum punishment provided for the offence, of which the accused is <\/p>\n
    convicted, the benefit of Section 360 cannot be extended to such accused.\n<\/p>\n
    There was, therefore, no scope for extending the benefit of the provisions of <\/p>\n
    Section 360 to the original Accused Nos.3 and 4, as was done by the learned <\/p>\n
    Additional Sessions Judge.\n<\/p>\n
    33.     Even  otherwise,     whether,  on  facts,   it  was a  fit  case   to  release  the <\/p>\n
    offenders  on probation of  good  conduct, regard  being had  to  the factors <\/p>\n
    mentioned in the said Section, does not appear to have been considered at <\/p>\n
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\n                                                                                          Apeal-57-93
\n                                                    26<\/span>
\n    Dixit<\/p>\n
    all   by   the   learned   Additional   Sessions   Judge.   What   was   considered   as   a <\/p>\n
    ground for extending the benefit of probation is that the said accused were in  <\/p>\n
    custody for more than two years and more than four years, respectively. This <\/p>\n
    was   not   a   relevant   consideration   at   all,   for   extending   the   benefit   of <\/p>\n
    probation to them.\n<\/p>\n
    34.     Moreover, there was a basic error in applying the provisions of Section <\/p>\n
    360   of   the   Code,   as   the   said   section   has   no   application   to   the   State   of <\/p>\n
    Maharashtra. It is because the Probation of Offenders Act, 1958 is in force <\/p>\n
    in the State of Maharashtra. It has been brought in force in different parts of <\/p>\n
    the   State   of   Maharashtra   on   different   dates.   In   some   Districts,   it   was <\/p>\n
    brought   in   force   on   1st  November,   1966;   in   some   other   Districts,   it   was <\/p>\n
    brought in force on 1st February, 1970. By 15
\n                                                  th
\n                                                    August, 1972, it was brought<\/p>\n
    in force throughout the State of Maharashtra. Section 19 of the Probation of <\/p>\n
    Offenders Act, 1958, reads as follows :\n<\/p>\n
                  “Section 19. Section 562 of the Code not to apply
\n                  in certain areas.- Subject to the provisions of Section
\n                  18, Section 562 of the Code shall cease to apply to the
\n                  States or parts thereof in which this act is brought into
\n                  force.”\n<\/p><\/blockquote>\n
    35.     Undoubtedly, this Section refers to Section 562 of the Old Code i.e. <\/p>\n
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\n                                                                                      Apeal-57-93
\n                                                 27<\/span>
\n    Dixit<\/p>\n
    the Code of Criminal Procedure, 1898. The new Code came in force on the <\/p>\n
    1st day of April, 1974, but Section 19 of the Probation of Offenders Act was <\/p>\n
    not amended in consequence of the same. However, this aspect does not <\/p>\n
    affect the efficacy or operation of Section 19(1) in any manner. The reason <\/p>\n
    is  that  the  provisions  of  Section 562  of  the  Code  of  Criminal Procedure, <\/p>\n
    1898 have substantially  been incorporated in Section 360 of the new Code <\/p>\n
    of   Criminal   Procedure,   1973.   In   other   words,   the   provisions   of   both   the <\/p>\n
    sections are in pari materia. In view of the provisions of Section 8(1) of the <\/p>\n
    General   Clauses   Act,   the   reference   in   Section   19   of   the   Probation   of <\/p>\n
    Offenders Act, to Section 562 of the old Code, has to be construed as a <\/p>\n
    reference to Section 360 of the new Code.  The result is that in the States <\/p>\n
    where the Probation of Offenders Act has been brought in force, Section 360 <\/p>\n
    of the Code of Criminal Procedure can have no application. The same view <\/p>\n
    has been taken by the Kerala High Court in the case of State of Kerala Vs. <\/p>\n
    Chellappan George, reported in  1983 CR.L.J. 1780. The Karnataka High <\/p>\n
    Court also, in the case of B.S.M. Ganganna Vs. State of Karnataka & Ors., <\/p>\n
    reported in 1987 CRI.L.J. 561, has taken the same view by observing that <\/p>\n
    the   Probation   of   Offenders   Act,   1958   being   in   force   in   Karnataka,   the <\/p>\n
    provisions contained in Section 360 of the new Code are not applicable in <\/p>\n
    that State. Again, a Full Bench of Himachal Pradesh High Court has also <\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 17:46:01 :::<\/span>
\n                                                                                      Apeal-57-93
\n                                                 28<\/span>
\n    Dixit<\/p>\n
    taken  the  same  view  in  the  case  of  State of Himachal Pradesh Vs. Lat  <\/p>\n
    Singh & Ors., reported in 1990 CRI.L.J. 723.\n<\/p>\n
    36.     Thus, the learned Additional Sessions Judge was not right in applying <\/p>\n
    the provisions of Section 360 of the Code to the original Accused Nos.3 and <\/p>\n
    4. Even otherwise, it does not appear to be a case where the benefit of the <\/p>\n
    provisions   of   probation,   even   as   per   the   provisions   of   the   Probation   of <\/p>\n
    Offenders Act, could have been given.\n<\/p>\n
    37.     Since   the   Respondent-State   has   not   challenged   the   release   of   the <\/p>\n
    original Accused Nos.3 and 4 by adopting appropriate proceedings before <\/p>\n
    this Court, no further action in the matter is warranted, at this distance of <\/p>\n
    time. However, it was thought fit to make the above observation as to the <\/p>\n
    correct   legal   position,   as   instances   were   noticed   wherein   the   Courts   in <\/p>\n
    Maharashtra   had   invoked   the   provisions   of   Section   360   of   the   Code   of <\/p>\n
    Criminal Procedure, instead of the provisions of the Probation of Offenders <\/p>\n
    Act, for releasing an accused on probation of good conduct. It is, therefore, <\/p>\n
    felt that the correct legal position with respect to the applicability of Section <\/p>\n
    360 of the Code needs to be brought to the notice of the Subordinate Courts <\/p>\n
    in Maharashtra.\n<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 17:46:02 :::<\/span><\/p>\n
                                                                                       Apeal-57-93
\n                                                 29<\/span>
\n    Dixit<\/p>\n
    38.     I shall now come back to the question as to whether it would be just <\/p>\n
    and proper to reduce the sentence imposed upon the Appellant by the trial <\/p>\n
    Court. I have taken into consideration the submissions made in this regard <\/p>\n
    by the learned Counsel for the Appellant. The incident had taken place on <\/p>\n
    12th  April, 1988 i.e. more than 23 years back. The Appellant had been on <\/p>\n
    bail during the trial and even during the pendency of the Appeal. He came <\/p>\n
    to   be   taken   in   custody   only   a   few   months   back.   The   submission   of   the <\/p>\n
    learned Counsel that no specific role in the incident has been attributed to <\/p>\n
    the Appellant as the author of the any particular injury or injuries suffered <\/p>\n
    by the victim has also to be accepted. Further, during the period of about 23 <\/p>\n
    years, while the Appellant was on bail, he does not seem to have committed <\/p>\n
    any offence. At, least there is nothing to indicate so and not even a claim to <\/p>\n
    that effect.\n<\/p>\n
    39.     Considering   all   the   relevant   aspects   of   the   matter   and,   more <\/p>\n
    particularly, that the Appellant shall suffer punishment for something which <\/p>\n
    had been done by him about 23 years back, I am inclined to reduce the <\/p>\n
    sentence imposed on the Appellant by the trial Court.\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 17:46:02 :::<\/span><\/p>\n
                                                                                   Apeal-57-93
\n                                               30<\/span>
\n    Dixit<\/p>\n
    40.     In the result, the Appeal is partly allowed.\n<\/p>\n
    41.     The   order   of   conviction   of   the   Appellant,   as   recorded   by   the <\/p>\n
    Additional Sessions Judge, is maintained. However, the sentence imposed <\/p>\n
    upon the Appellant is reduced to Rigorous Imprisonment for five years.\n<\/p>\n
    42.     Save and except the aforesaid, no other order in this Appeal, which <\/p>\n
    stands disposed of in the aforesaid terms.\n<\/p>\n
                                                               [A.M. THIPSAY, J.]<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:46:02 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Central Prison vs The State Of Maharashtra on 23 September, 2011 Bench: A.M. Thipsay Apeal-57-93 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.57 OF 1993 Sunil alias Pona Tolaram Pore (Varma), R\/a. Idgah Road, Premnagar, Jogeshwari (East), Bombay – 400 060 [At present imprisoned […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-47017","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nCentral Prison vs The State Of Maharashtra on 23 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/central-prison-vs-the-state-of-maharashtra-on-23-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Central Prison vs The State Of Maharashtra on 23 September, 2011 - 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