RAJU ZANAKLAL JOHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this application in revision, applicant no.1 convicted for commission of offence under Section 326 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/ - in -default of payment of fine, to suffer rigorous imprisonment for one month and so also for offence under Section 324 r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.200/ - in -default of payment of fine, to suffer rigorous imprisonment for seven days and whose said conviction was modified by partly allowing Criminal Appeal No.6 of 2005 preferred, by the appellate court to the tune of convicting the applicant only for commission of offence under Section 324 r/w 34 of the Indian Penal Code sentencing to suffer rigorous imprisonment for six months, has questioned the legality, impropriety and correctness of order passed by the trial court as well as modified by the appellate court.

(2.) THE said prosecution had arisen out of investigation made by Buldana Police in Crime No.178/2003 registered upon the First Information Report lodged by PW1 Ashok Shriram Gaikwad on 30.7.2003 regarding an incident of assault which had occurred on the previous day i.e. in a night in between 29/30th July, 2003 at about 1.00 midnight, in which the applicant along with other co -accused, assaulted PW1 Ashok Gaikwad, PW2 Konduba Gaikwad and PW3 Sanjay Gaikwad. As a result of investigation, Buldana Police charge -sheeted the applicant and other co -accused for commission of offence under Section 307 r/w Section 34 of the Indian Penal Code.

(3.) MS . Kulkarni, learned counsel appointed on behalf of the applicant, meticulously taking through the record and proceedings fairly submitted that she is not assailing the order of conviction as modified by the appellate court and is restricting her submission only to the quantum of sentence awarded. She further submitted that the evidence on record as well as the appreciation of the same made by the appellate court, reveals that during the incident, the applicant has assaulted only PW1 Ashok and he has not indulged in any activity of assaulting other three victim of offence. It is urged that the evidence reveals that during the said incident while assaulting PW1 Ashok, the applicant had given only one blow over frontal area of skull causing him one injury. Learned counsel was very much right in submitting that though all the accused including the applicant, at the original trial, were charged for commission of offence under Section 307 r/w 34 of the Indian Penal Code, even the trial court convicted applicant no.1 only for commission of offence under Section 324 r/w 34 of the Indian Penal Code. She was further right in submitting that in an appeal preferred only by applicant no.1 and co -accused no.2, the said conviction was modified from Section 326 r/w 34 of the Indian Penal Code to conviction under Section 324 r/w 34 of the Indian Penal Code. It was submitted that thus there is no material surfaced on record of applicant no.1 having committed for offence under Section 326 of the Indian Penal Code for which one of the accused is found guilty by the trial court. It is urged that thus considering the role played by the applicant and the circumstances in which the incident had occurred, the sentence of six months awarded to the applicant is harsh.