GOPINATH BUDHAJIBHOIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal has been referred to meunder section 392 of the Code of Criminal Procedurer, 1973, in view of the difference of opinion between Vaidya and Sawant JJ

(2.) The facts sufficiently appear in the discussion of the learned Judge. The main incident of 13-12-1972 has taken place at about 6 30 or 6.45 a rn. It is alleged to have been reported at the Beiapur Out Post at about 7.30 a. m. and at Thana Taluka Police Station at ; bout 9 30 a. m. The main evidence of the prostcution consists of the statements of Maruti, the complainant, Yeshwant who reported the incident to Maruti, Indubai, Raghubai and Sakhubai who were supposed to be physically present at the time of the assault by a group of 20 25 persons upon deceased Vishnu All the three women claimed that they receivtd the minor injuries as they tried to intervene.

(3.) The defence do not doubt that Vishnu has been put to death by severe beating. They also do not doubt the time and place of the incident What is alleged is that no-body seems to have seen the actual incident of assault and the story has been subsequently constructed by having the assissa- nce of close relations of the deceased. The learned trial Judge has, however, believed the above witnesses and by elimnating the other accused against whom there was very little evidence, he found against the four appellants, who are accused Nos 1, 19, 21 and 26 sufficient evidence to warrant their conviction under Section 304 Part I read with section 149 IPC as also under section 352 read with section 149 IPC, under section 323 read with section 149 IPC and under sections 143 and 147 IPC The major sentence of eight years rigorous imprisonment was passed under section 304 read with section 149 IPC. In addition, there are smaller sentences under section 352 read with section 149 IPC and under section 323 read with section 149 IPC. No sentence has been awarded for the other sections The substantive sentences were ordered run concurrently.