SHIVAJI GAONKAR Vs. STATE

JUDGEMENT

(1.) This appeal is by the accused who was charged and tried under Sections 504, 307, Indian Penal Code but who has been convicted and sentenced under Sections 326 and 324, Indian Penal Code.

(2.) The accused was charged and tried with the allegation that on 16.4.2005 at about 21.30 hours the accused first assaulted Suraj Chari PW1 with a broken sharp fanta bottle on his hand causing him bleeding injuries and thereafter the accused assaulted with the same bottle Ashok R. Zambaulikar PW2 on his neck in an attempt to murder him. The accused was also charged for having abused the said Ashok Zambaulikar PW2 with filthy-words such as "chedyecha", etc. In support of the charge prosecution had examined 15 witnesses and amongst them was Prashant PW12, the owner of Prashant General Stores where the incident is stated to have taken place, and, his other two brothers, namely, Paresh PW11and Mahesh PW14.

(3.) On the other hand, it was the case of the accused that on the said day he had gone to the said shop at about 7.45 p.m. and wTas standing near the corner of the said shop when about 8.10 p.m. Ashok PW2 came there and in spite of having a distance, to go to the shop dashed against his shoulder, from the back and when Ashok PW2 came out after purchasing something, the accused asked the said Ashok PW2 as to why he had dashed him to which he replied that he could do whatever he wished which was followed by a verbal altercation and thereafter the said Prashant PW12 and Sunil PW15 separated them and thereafter Ashok PW2 went away on his motorcycle and returned with Madhusudan PW8 and his wife and Suraj PW1 and one Sanjay Mesta and upon seeing them, Prashant PW12 told him to go inside the shop and he went inside the shop and thereafter the said persons Madhusudan PW8, Suraj PW1 and Ashok PW2 started calling him to come out of the shop and they were abusing him by bad words such as "Chedyeache bair yo tuka dakoita tu eklo asa". The accused further stated that he remained inside the shop and the said persons told Prashant PW12 to send him out of the shop and the said Prashant PW12 had told them not to fight and then the said persons told Prashant PW12 that in case he did not send the accused out of the shop they would damage his shop and thereafter they started banging the steel roof of the shop and started breaking the crates containing empty soft drink bottles which were outside the shop and broke the tube light and then Prashant PW12 told him to go out of the shop else the said persons would damage his shop and he came till about the counter of the said shop and seeing the said persons went again inside the shop and thereafter Prashant PW12 told him to go out of the shop as he wanted to close the shop and the moment he went out all the said persons started attacking him and dragging him to the place where there was a paitdal and on his right side there was Suraj Chari PW1 and behind him was Madhusudan PW8 and it is he who was carrying a broken glass bottle in his hand and while the said Madhusudan PW8 attempted to assault him with the broken glass bottle he ducked down and' the said broken glass bottle hit the right hand side of Suraj Chari PW3 and the neck and then the left hand side of neck of Ashok PW2. The accused stated that on that day he did not carry any glass bottle in his hand and the said persons also assaulted him with fist blows, kicks and with hands. Accused further stated that at the place where he was assaulted there was a pandaland it was dark there and it was dark because they had broken the tube light outside the shop and beyond the pandal there was a street light and thereafter Madhusudan PW8 started shouting that the accused assaulted Suraj Chari PW1 and Ashok PW2 with broken glass bottle to which he told them that he was not having any glass bottle in his hand and then Madhusudan PW8 started to give the broken glass bottles in his hands in which he did not take and thereafter he rescued himself and proceeded with one Sandesh to the Police Station and when he reached there he narrated the incident to one havaldar who kept him waiting there for about half an hour till the arrival of the Police Inspector Siddhant Shirodkar PW15 and when the Police Inspector PW18 came there, he went in his cabin to meet him but Madhusudan PW8 along with his wife were already there and the said Madhusudan PW8 was having in his hand the same broken glass bottle and then upon the direction of P.I Shirodkar PWI8 he was put in the lock-up. The accused told that he did not know at what time Suraj Chari PW1 came to the Police Station. The accused also stated that he had suffered injury on the stomach and the skin of his stomach was peeled off and he had also suffered injuries on his knee with minor bleeding. The accused also stated that on the day of incident he was wearing a T-shirt which was torn at the time of assault on the shoulder as well as at the waist level. The accused also stated that there was no enmity between him and the said Suraj Chari PW1 or Ashok PW2 or Madhusudan PW8. The accused stated that he did not assault Suraj Chari PW1 or Ashok PW2. The accused examined himself in support of his defence and the above is the version given by him in his evidence. The accused also examined Sandesh Shelpekar DW2 to corroborate his version i.e. that the latter had seen the said broken soda bottle in the hands of the said Madhusudan PW8.