HARSHAL ALIAS BANTI Vs. STATE OFMAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dt. 12.5.2009 passed by the Adhoc Additional Sessions Judge-1, Chandrapur in Sessions Trial No. 43 of 2008, the appellants/accused have preferred the present appeal. By the said Judgment, the learned trial Judge convicted all the appellants for the offence punishable under Section 302 r/w. 149 of the Indian Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs. 2000/- each in default to undergo rigorous imprisonment for six months. The learned trial Judge also convicted all the appellants for the offence punishable under Sections 147 and 148 of the Indian penal Code and sentenced them to undergo rigorous imprisonment for two years. Both the sentences were directed to run concurrently. The prosecution case is that complainant Rukhsat Riyaz Sheikh, r/o. Jalnagar Ward, Chandarpur lodged report (Exh. 35) to Police Station, Ramnagar stating therein that her son Mehraj Riyaz Sheikh, aged about 19 years was killed by the accused persons. On 16.11.2007, at about 8.00 p.m., she came to know from her younger daughter Nainu that the accused persons have assaulted her son Mehraj by gupti and rod and therefore, she rushed to her house and then to the hospital. After the report was taken down by the Police Station Officer, investigation started. All the accused persons were arrested except one namely Ganesh Pendam, who is absconding. After the investigation was carried out, the charge sheet was filed in the Court. The prosecution examined in all thirteen witnesses in support of its case. The learned trial Court after hearing the evidence convicted the appellants as afore-said. Hence, this appeal.

(2.) In support of the appeal, Mr. R.M. Daga, learned Counsel for the appellants made the following submissions:

(3.) Per contra, the learned A.P.P. supports the impugned Judgment and Order and argued that the two eye witnesses Nalini (PW-4) and Pravin (PW-7) have rightly been believed by the learned trial Court. The evidence about formation of unlawful assembly by the appellants and then assault on the deceased is strong enough to support the conviction. The learned A.P.P. argued that there is no case for conversion of the major offence of murder into lower offence. He prayed for dismissal of the appeal.