PRAKASH DEORAM GURCHAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The two appellants who were original accused Nos. 2 and 3 in the trial Court stood their trial along with six other persons charged under sections 148, 307 read with section 149, 323 read with section 149 and in the alternative under section 307 read with section 34 of the Indian Penal Code, further in the alternative under sections 326, 325 and 323 read with section 34 Indian Penal Code. The trial Court found that the prosecution had not proved any unlawful assembly of five or more persons, and therefore, convicted the two appellants under sections 326 and 323 Indian Penal Code read with section 34 Indian Penal Code and sentenced each of them to rigorous imprisonment for six months on each of the two counts. All the other accused were acquitted. Aggrieved by their convictions and sentences the appellants have preferred this appeal. This Court while admitting the appeal issued notice of enhancement of sentence giving rise to Criminal Revision Application No. 116 of 1980. This judgment shall dispose of both the matters.

(2.) Incident took place on 18-1-1978 at 6.30 p.m. at village Amadgaon in Taluka Bhusawal of the Jalgaon District. The complainant Devaka (P.W. 14) and the original accused persons are inter related. They belong to Boudha community. The incident arose out of a quarrel four days earlier between Yeshwant (P.W. 16) the son of the complainant Devaka (P.W. 14) and Prakash the appellant No. 1 (original accused No. 2) over some money due from the latter to Yeshwant for purchases from Kirana shop of Yeshwant. At the time of the incident the eight accused along with one Ratan (who is absconding) assaulted Devaka (P.W. 14) with weapons including a spear, alleged to have been in the hands of the absconding accused Ratan. In the hands of Pandharinath the original accused No. 1 and Pralhad, original accused No. 3 were axes. Prakash, original accused No. 2 is alleged to have assaulted Devaka with a Musal i.e. a heavy wooden pounder. The incident was witnessed by several witnesses and as a result of the incident, Devaka (P.W. 14) received as many as 10 injuries including a fracture of the frontal bone, 2" in length. The other injuries were all incised injuries as could be caused by axes and spears. As a result of the incident, Devaka (P.W. 14) lodged the F.I.R. Exhibit 48 the same night at 10.45 p.m. at Bodwae Police Station. A dying declaration was also recorded from Devaka the same night by the Special Executive Magistrate, Jalgaon, Keshav Shankar Bhavsar, who however, was not examined at the trial though the dying declaration was used to contradict Devaka during his evidence.

(3.) The case mainly rests on the oral evidence of the several alleged eye witnesses, including Devaka (P.W. 14) the victim. As the learned judge of the trial Court found that there was no unlawful assembly of five or more persons with the common object of assaulting Devaka, the only question which now arises for our consideration is whether the two appellants could be said to have been proved to have caused by sharing of common intention causing grievous hurt to Devaka with sharp cutting instruments so as to bring them within the inculpatory ambit of section 326 read with section 34, Indian Penal Code.