SURESH S/O NAMOMAL TOLANI AND ANRversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:44132


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                                                  -1-

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 413 OF 2016

                 1.    Suresh s/o Nanumal Tolani
                       Age: 52 years, Occu.: Business.

                 2.    Vicky s/o Suresh Tolani,
                       Age: 24 years, Occu.: Business,

                       Both R/o. Block No.B-3, Room No.7,
                       Kumarnagar, Sakri Road, Dhule.                   .. Appellants

                             Versus

                 .     State of Maharashtra
                       Through Dhule City Police Station,
                       Dhule, Tq. And Dist. Dhule                       .. Respondent
                                                  …
                 Mr. Ram. B. Deshpande, Advocate for the appellants.
                 Mr. S. M. Ganachari, APP for respondent/State.
                                                  ...

                                         CORAM :         ABHAY S. WAGHWASE, J.
                                         Reserved on         : 28.09.2026
                                         Pronounced on       : 29.09.2026

                 JUDGMENT :


                 1.    Appellant - a convict hereby challenges the judgment and order

                 of conviction rendered by learned Additional Sessions Judge, Dhule

                 dated 06.05.2016 in Sessions Case No.01 of 2012, by which

                 appellants stood convicted for offence under Section 323 of Indian

                 Penal Code [IPC].
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2.    The prosecution story, in brief, is that on 25.05.2011, the

informant, who was in the company of his father, saw a quarrel

taking place between one Vijendra and Suresh. Accused Vicky was

also in the company of one Akash. Suresh and his two sons were

abusing Vijendra questioning him whether the way belongs to his

father. When the informant and his father went to separate them, it

is alleged that Suresh and his two sons hit Vijendra with a stone after

his sons had caught hold of him. The informant as well as his father

were also assaulted. After Suresh and Vicky caught hold of the hands

of the informant’s father, Akash dealt a knife blow to his stomach. His

father was taken to hospital and report to the above extent was

lodged, on the basis of which crime was registered. After

investigation, Suresh and Vicky, who were arraigned as accused, tried

in the aforesaid Sessions Case, whereas trial of juvenile Akash was

separated.


.     The above trial ended up in conviction of accused Suresh and

Vicky for the offence under Section 323 of IPC and they were

sentenced to suffer imprisonment and to pay fine. Hence, instant

appeal by them.


3.    Learned Counsel for the appellants would point out that there

is false implication. According to him, there is no convincing and
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credible evidence to attract the conviction. Learned Counsel for the

appellants took this Court through the testimonies of the complainant

and PW5, the injured witness, as well as their cross-examinations, and

submitted that their testimonies are unworthy of credence in view of

the answers given by them during cross-examination. Moreover,

according to him, there is no independent witness account. There are

contradictions on the point of use of article for assault. Though the

injured was taken to the Civil Hospital, there is no documentary

evidence to that effect. Lastly, he submitted that the alleged

occurrence took place in 2011, the trial concluded in 2016, and the

appeal is being heard after a decade, i.e., in 2026. He further

submitted that there is now no animosity between the parties and that

the judgment of conviction has been looming large over the

appellants for a long period. He, therefore, urged this Court to extend

the benefit of Section 4 of the Probation of Offenders Act instead of

confirming the sentence.


4.    Learned APP strongly opposed the above appeal by pointing out

that there is convincing direct evidence along with injured witness

account. There is support from the medical evidence, and according

to him, the learned Trial Court having already shown leniency, the

appellants do not deserve any further leniency.
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5.    Re-appreciated the entire evidence. PW1 seems to be the

informant, who set law into motion; PW2 is the panch to seizure of

clothes; PW3 is the medical expert, who examined injured and issued

injury certificates Exhibit-39 and Exhibit-40; PW4 is the panch to

memorandum of disclosure at the hands of accused Akash; PW5 is the

injured; PW6 and PW7 are police officials; PW8 is the injured and

PW9 is an independent eye witness.


6.    On carefully going through the informant’s evidence at Exhibit-

30, it is emerging that, according to him, when he and his father PW8

went to separate the quarrel which was going on between accused

and PW5, at that time, accused Suresh and his two sons, namely,

Vicky and Akash hit Vijendra by means of stone and thereafter, it is

alleged that after incapacitating this witness, his father was stabbed

by accused Akash.

.     Nothing adverse has been brought in his cross-examination so

as to disbelieve his above testimony.


7.    Injured PW5 Vijendra at Exhibit-50 has stated that while he was

proceeding on a Scooty, accused Suresh came, intercepted and started

abusing him in the backdrop of using way. He further deposed that

he was made to fall down and that people gathered at the spot. One

Shashikant i.e. PW8 came to rescue the quarrel, but accused Suresh
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threatened him also and at that time, accused Suresh summoned his

sons Akash and Vicky, who came and assaulted Shashikant i.e. PW8.

According to him, Akash dealt blow with knife in the stomach of

Shashikant.


8.    PW8 Shashikant, another injured witness, has also deposed at

Exhibit-58 that on 25.05.2011, while he was in the company of his

son near Suresh Milk Dairy, he intervened in a heated exchange of

words between Suresh and Vijendra. At that time, accused Suresh told

him that he had no concern with the matter, picked up a stone and

assaulted Vijendra. Thereafter, accused Suresh and Vicky caught hold

of him, whereupon Akash dealt a knife blow to his stomach, as a

result of which he fell unconscious and was taken to the hospital.

.       Even nothing adverse has been brought in his cross-

examination on the point of actual assault, except minor omissions.


9.    PW3, a medical expert, in his evidence at Exhibit-38, testified

about examining patient Shashikant as well as Vijendra, who had duly

suffered blunt trauma in abdomen and right elbow respectively with

abrasions. According to him injuries suffered by Shashikant were

grievous in nature and possible by sharp weapon like knife, whereas

injuries suffered by Vijendra were simple in nature.
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.     Though this medical expert was cross-examined, he admitted

that the injuries sustained by Vijendra were possible if a person fall

from a motorcycle on a hard surface. However, he denied that the

injuries sustained by Shashikant could have been caused by a fall. He

further denied the suggestion that the said injuries could not have

been caused by a sharp weapon.


10.   The net result of above analysis is that simple injuries on

Vijendra and grievous injuries on Shashikant has been duly proved by

prosecution. Eye witness account finds support from medical

evidence.


11.   However, here, the author of the grievous stab injury is accused

Akash, but he was not tried by the trial Court being juvenile and

moreover, he reportedly died in another incident.


12.   Thus, the appellants, Suresh and Vicky, have been found guilty

of the offence punishable under Section 323 of the IPC for assaulting

the injured with a stone. Apparently, the incident arose out of a

heated exchange of words. There was no previous enmity between the

injured and the accused. The injured had merely intervened to rescue

the parties and sustained injuries. The occurrence, as pointed out, is

of the year 2011. The learned Trial Court convicted both the
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appellants for the offence punishable under Section 323 of the IPC

and sentenced them to undergo imprisonment for six months. No

other crime has been reported against them apart from the present

offence. Almost 15 years have elapsed since the occurrence, and

almost a decade has elapsed since their conviction. Considering the

nature of the offence under Section 323 of the IPC and the absence of

criminal antecedents, both the appellants deserve to be extended the

benefit of Section 4 of the Probation of Offenders Act.Hence, the

following order :-


                               ORDER


      I.     The Criminal Appeal is partly allowed.


      II.    The conviction awarded under Section 323 of IPC to the

      appellants viz., (1) Suresh s/o Nanumal Tolani and (2) Vicky

      s/o Suresh Tolani in Sessions Case No.01 of 2012 by learned

      Additional Sessions Judge, Dhule vide judgment and order

      dated 06.05.2016, is hereby maintained.


                     HOWEVER


      III.   Instead of sentencing appellants to imprisonment, they

      are directed to be released on probation of good conduct by
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      entering into a bond with one surety each to appear and receive

      the sentence when called upon during the period of one year.


      IV.      The bond for a period of one year shall be executed by

      him before the trial Court within a period of four weeks from

      today.


      V.       The Criminal Appeal is accordingly disposed off.



                                            [ABHAY S. WAGHWASE, J.]



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