ARUN SONAJI JAGTAP Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Borde, learned Counsel for the applicants accused and Mrs. Rasal, learned Additional Public Prosecutor for the State.

(2.) THE main grievance of the applicants is that the learned Additional Sessions Judge framed charge at Exhibit 5 in sessions case No.85/1995 but it is not in conformity with the accusations levelled against the applicants with reference to the law relevant for the purpose. Copy of the charge framed in the case is produced at Exhibit C at page 10. The gravamen of the prosecution case appears to be that 12 accused persons in number with their common object formed an unlawful assembly and in prosecution of the common object assaulted or injured the prosecution witnesses. The charge, therefore, must define as to what was the common object in the first place and secondly the charge must further indicate the act or acts committed by the members of the unlawful assembly. The learned Judge has also framed alternative charge with the aid of section 34 of the Indian Penal Code but the charge framed is also mixed with the common intention and common object and therefore, there is merit in the say of the applicants that the charge does not give requisite notice to the applicants and it prejudices the defence and the fair trial. The learned trial Judge, is, therefore, required to frame alternative charge against those accused persons who are liable to be punished with the aid of section 34 of the Indian Penal Code or for individual acts as the case may be. The two charges, one with the aid of section 149 of the Penal Code and another with the aid of Sec.34 of the Penal Code must be distinct. With these directions rule is made absolute in above directions. The matter is remanded to the court below for framing a proper charge in accordance with law. Order accordingly.