Ankush Gade and Others vs The State of Maharashtra

S.S. Shinde, J.—This appeal is filed challenging the judgment and order dated 29.06.1999 passed by the 5th Additional Sessions Judge, Beed in Sessions Case No. 96/1997.

At the outset, the counsel for the Appellant submitted that, the Appellants are only aggrieved for convicting them for the offence punishable u/s ec. 324 of the Indian Penal Code. They are convicted u/s ec. 235(2) of the Cr. P. C. for the offence punishable u/s ec. 324 of the Indian Penal Code and sentenced to suffer simple imprisonment for three months and to pay fine of Rs. 500/each and in default of payment of fine the Appellants are directed to undergo further S. I. for one week (Seven days).

The facts are extensively narrated in the impugned judgment from para 2 to 5 and same are not repeated herein.

The counsel for the Appellant submitted that, the conviction of the Appellant cannot be sustained u/s ec. 324 of the Indian Penal Code, since there is no any corroborative piece of evidence to sustain the conviction. The prosecution has not examined important witnesses. Though the prosecution alleged that, there are 11 injured witnesses, however only three are examined. Their evidence is also not corroborated by medical evidence in material particulars. The recovery of weapons is also not convincingly proved. The Appellants have not used any dangerous weapon and injuries sustained by the victim are not grievous in nature. Therefore, the Appellants deserve to be acquitted.

On the other hand, the learned Additional Public Prosecutor relying on the findings and reasons recorded by the Trial Court submitted that, the Trial Court has analysed the evidence of injured witnesses. Medical evidence is brought on record and also there is recovery from the accused/Appellants. Therefore, the impugned judgment, therefore, may be confirmed by dismissing the appeal.

I have given due consideration to the submissions of learned Counsel for the Appellant and learned A.P.P. With the assistance of learned Counsel for both the parties, I have perused the evidence of the prosecution witnesses. There are in all eleven injured witnesses in the incident. The prosecution has examined three injured witnesses. They are P.W. 3/Janabai, P.W.5/Tukaram and P.W. 6/Ashabai. The medical officer was also examined. The medical officer in his evidence has stated about the injuries sustained by the injured persons. His evidence is extensively delt with by the Trial Court in para 19. The Trial Court has mentioned the names of the injured persons and injury certificates.

On perusal of the evidence of P.W. 2/Bhausaheb Maharnwar reveals that, accused No. 1 Ankush who is Appellant No. 1 herein and other accused No. 9 and 5 assaulted to Sarsabai. P.W. 2 further stated that, accused No. 1 and 13 assaulted to Janabai. The evidence of P.W. 3/Janabai reveals that, accused No. 1 and 13 assaulted her with danda. Her evidence specifically reveals in her cross examination that, accused No. 1 gave two blows of stick on her head, due to which she sustained bleeding injuries to her head. Besides, this there is evidence of P.W.6/Ashabai that accused No. 6 assaulted Janabai by danda. The evidence of this witness is corroborated by medical evidence and there is recovery of weapon. The Trial Court has extensively discussed the evidence of medical officer and recovery effected from the accused Ankush. Therefore, on independent scrutiny of the evidence, I find that, the Trial Court has rightly convicted the Appellant/accused for the offence punishable u/s ec. 324 of the Indian Penal Code. However, accused/Appellant Ankush was in jail from 10.06.1997 to 12.09.1997 and he was in jail for more than three months. Therefore, he need not be sent in jail. The sentence awarded to him stands confirmed.

As against accused No. 3/Uttam Laxman Maharnor i. e. Appellant No. 2/herein. The evidence of P.W. 5 Tukaram is specific and reveals that accused No. 3 assaulted Tukaram on his left hand by danda. His evidence is corroborated by evidence of P.W. 2. There is also medical evidence corroborated to evidence of P.W. 5. Therefore, the conviction of the accused Uttam Laxman Maharnor stands confirmed. The record reveals that, he was arrested on 10.06.1997 and he was released on bail on 27.06.1997. Therefore, he has already under gone sentence for 17 days.

The another accused is Rama Laxman Maharnor. As against him P.W. 5/Tukaram deposed that, accused No. 4 assaulted on his back by stick due to which P.W. 5/Tukaram fell down. Said version of P.W. 5 is corroborated with the evidence of P.W. 2/Bhausaheb. He has stated that, accused No. 4 assaulted to Tukaram. Therefore, there is corroboration to the evidence of P.W. 5. There is also medical evidence and recovery of weapon. Therefore, conviction of Appellant No. 3/Rama Laxman Maharnor stands confirmed. So for sentence of this Appellant/accused is concerned, he was arrested on 10.06.1997 and was released on 12.09.1997. Therefore, he has also completed more than three months in jail. Since he has already undergone the sentence, there is no need to sent him in jail.

The Appellant No. 5/Vishwanath Ashruba Shirwale is original accused No. 16. The evidence of P.W. 3/Janabai and P.W. 6 reveals that accused No. 16 assaulted Bhausaheb on head by danda. The evidence of P.W. 2/Bhausaheb reveals that accused No. 16 assaulted P.W. 6 and the said version is corroborated by P.W. 6. According to P.W. 6 accused No. 16 assaulted her by danda. Thus, the evidence of P.W. 2 and P.W. 6 is consistent that accused No. 16 assaulted P.W. 6/Ashabai by danda. The record shows that, he was arrested on 16.06.1997 and released on 26.06.1997.

The Appellant No. 4/Bajirao Uttam Maharnor is original accused No. 13. The evidence of P.W. 2/Bhausaheb and P.W. 6/Ashabai reveals that accused No. 13 assaulted the P.W. 6 Ashabai by danda. The evidence of P.W. 2 also reveal that accused No. 13 assaulted to P.W. 3/Janabai and this version of P.W. 2 is supported with the evidence of P.W. 3/Janabai. According to P.W. 3/Janabai, accused No. 13 assaulted on her head, both hands, chest by danda. Therefore, this evidence is also corroborated by the medical evidence. Therefore, the conviction of this accused/Appellant also stands confirmed. However, the record shows that, he was in jail from 11.06.1997 to 12.09.1997. He was in jail for 94 days. He was in jail for more than three months. Therefore, he need not be sent in jail.

However, it is admitted position that, so far accused No. 1Ankush Laxman Gade was arrested on 10.06.1997 and he was released on bail on 12.09.1997. Therefore, he has already undergone the period of sentence awarded by the Trial Court. So far the accused No. 4 Rama Maharnor is concerned, he was arrested on 10.06.1997 and was released on 12.09.1997. Therefore, he has also completed more than three months in jail. So far accused No. 13 Bajirao Uttam Maharnor was concerned, he was arrested on 11.06.1997 and came to be released on bail on 12.09.1997. He was in jail for 94 days. He has also completed three months in jail. Now accused No. 3 Uttam Laxman Maharnor was arrested on 10.06.1997 and he was released on bail on 27.06.1997. The another accused namely Vishwanath was arrested on 11.06.1997 and he came to be released on bail on 26.06.1997. Therefore, so far accused No. 3 Uttam and accused No. 16 Vishwanath are concerned they were in jail for about 17 days.

However, counsel appearing for the Appellant submits that, they are not the habitual offenders. They have not committed any other offence. The alleged incident had taken place on 09.06.1997 i. e. 14 years before. They have the dependent children and wives. Therefore, this Court may take lenient view and he has no objection if the fine amount is increased.

Considering the submissions of the learned Counsel for the Appellant, the impugned judgment and order is confirmed. However, so far accused/Appellant No. 1 Ankush Laxman Gade, Appellant No. 2/Uttam Laxman Maharnor and Appellant No. 4/Bajirao Uttam Maharnor, since they were in jail for more than three months. Therefore, they have already undergone the sentence and set off is also given by the Trial Court in the order, therefore, they are not required to be sent in jail.

So far remaining two accused are concerned, the judgment and order of conviction is confirmed. However, the sentence given by the Trial Court is reduced to already undergone. The order of the Trial Court to the extent of awarding fine amount of Rs. 500/qua accused No. 3 Uttam and accused No. 16 Vishwanath is modified, they should pay fine amount of Rs. 5,000/. It is reported that, they have already deposited Rs. 500/before the Trial Court. So they should deposit Rs. 4,500/within six weeks from today before the Trial Court and inform this Court accordingly. In case Appellant No. 3 Uttam and accused No. 16 Vishwanath fails to deposit the fine amount within six weeks from today in default they will have to undergo remaining part of sentence. In short, they will have to be in jail for 73 days.

It is made clear that, none of the accused is required to be sent in jail. The present appeal is partly allowed in above terms and stands disposed of. The original record and proceedings be sent back to the concerned Court forthwith.